This Article is written by Srishti Kaushal, a first-year student of Rajiv Gandhi National University of Law, Patiala. In this article, she discusses the provisions regarding kidnapping and abduction, enshrined in Section 359 to 374 of the Indian Penal Code, 1860.

Introduction 

Though, Indian laws prohibit abduction and kidnapping, since 2005, more than 100,000 kidnapping and abduction cases have come up in India. People have continued to take advantage of the tender age of minors to kidnap them and exploit and force them to perform horrendous acts. Such offences are an attack on the liberty and freedom of citizens and must be prevented. 

Section 359 to 374 of Indian Penal Code, 1860 provides for punishments for these offences. In this article, we will discuss these provisions in detail, understand the essentials of kidnapping and abduction, discuss the difference between kidnapping and abduction and also discuss the provisions regarding forced slavery, labour and sale and purchase of minors for illegal purposes.

Kidnapping 

Kidnapping means taking away a person against his/her will by force, threat or deceit. Usually, the purpose of kidnapping is to get a ransom, or for some political or other purposes etc. Kidnapping is classified into two categories in Section 359 of the Indian Penal Code and defined in Section 360 and 361 of the Indian Penal Code. Let’s understand these sections better.

As per Section 359 of the Indian Penal Code, Kidnapping is of two types:

1. Kidnapping from India,
2. Kidnapping from lawful guardianship.

These two types are explained in Section 360 and 361. Let’s look into them in detail.

Kidnapping from India

Section 360 explains kidnapping from India. According to section 360, if any person takes a person beyond the limits of India against the consent of that person or against the consent of someone who is legally entitled to give consent on that person’s behalf, then the offence of kidnapping from India is committed. 

Illustration: ‘A’ is a woman living in New Delhi. ‘B takes ‘A’ to Bangladesh without her consent. ‘B’ committed the offence of kidnapping ‘A’ from India.

Keeping of Lawful Guardian

Section 361 explains kidnapping from lawful guardianship. According to this section, if a person takes away or entices a minor (i.e, a boy under the age of 16 years and a girl under the age of 18 years) or a person of unsound mind, away from his/her lawful guardian without the guardian’s consent, then that person commits the offence of kidnapping from lawful guardianship.

Thus, the essentials of kidnapping from lawful guardianship are:

Illustration: ‘A’ is a boy of 13 years of age, living under the lawful guardianship of his mother, ‘Z’. ‘B’ ‘convinces him to accompany him to his house against the consent of his mother. According to Section 361, ‘B’ has committed the offence of Kidnapping from lawful guardianship. 

Here, the minor is ‘A’; the lawful guardian is his mother, ‘Z’ and the person who is committing the offence is ‘B’ as he is taking A away from ‘Z’ against Z’s consent.

This section also mentions an exception. It says that it does not result in the crime of kidnapping from lawful guardianship, if the person in good faith, i.e, honestly with reason, believes that:

1. He is entitled to the lawful custody of the child; or
2. He is the father of an illegitimate child.

Hence, If in the above illustration, ‘B’ believes that ‘A’ is his illegitimate son, then his act of convincing him to come to his house without his mother’s consent would not result in kidnapping from lawful guardianship.

State of Haryana v. Raja Ram, AIR 1973 SC 819

To understand this better let’s look at the case of State of Haryana v. Raja Ram.

Facts

Some J had tried to seduce the prosecutrix, a girl of 14 years to come and live with him. The girl’s father forbade J from coming to their house and in response, J started sending her messages through the respondent.

• One day, the respondent went to the girl and asked him to come to his house and later sent his daughter to bring her. At his house, the respondent told her to come to his house at midnight so that she can be taken to J.
• That night when she went to his house, the respondent took her to J.

Issue

Whether the respondent was guilty of the offence under section 361 of IPC?

Judgement

The trial court held him guilty, but the High court acquitted him. On appeal to the Supreme court, it was held that:

• Section 361 is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having their custody.
• The consent of a child is completely immaterial and only the guardian’s consent is relevant to decide whether the offence was committed or not.
• ‘Taking’ as mentioned in the Section is not only through fraud or force but also through persuasion by the accused which creates willingness on the part of minor to be taken away from his/her lawful guardian.
• In this case, the respondent was held guilty under section 361 as it was the respondent’s action which persuaded the prosecutrix from going out of her father’s keeping, against her father’s wishes.

Age of the Minor

Section 361 of the Indian Penal Code clearly states that minor is:

• A male under the age of 16 years,
• A female under the age of 18 years.

However, it must be highlighted here that in Manipur, the age of 18 years of females in section 361 is replaced with 15 years. Hence if a female of 16 years is taken from her lawful guardians in Manipur, it would not result in kidnapping from lawful guardianship. 

Moreover, the Allahabad High Court in Smt Suman and another. V. State of Uttar Pradesh gave a peculiar judgement. It was held that if a minor girl, who is 17 years old and is mature enough to understand the consequences and rationale behind her action, leaves the guardianship of her parents to live with a boy who has in no way subjected her to any kind of pressure, inducement etc, i.t cannot result in an offence under section 361 of IPC and is not punishable.

Taking and Enticing

Section 361 mentions whoever ‘takes or entices’ a minor away from his/her guardian against the guardian’s will, is punishable with the offence of kidnapping from lawful guardianship.

Let’s understand the meaning of taking and enticing by looking at a few case laws.

Biswanath Mallick v. State of Orissa (1995) Cr LJ 1416

The first case we will be looking into is Biswant Mallick v. State of Orissa

Facts

• Kalyani, had been kidnapped by the accused/petitioner Biswant Mallick when she had gone out around midnight. He first took her to Cuttack, then to Bhubaneshwar and finally to Jeypore.
• Her father lodged a complaint at the police station. During the investigation, she was found and rescued from the house of a relative of the accused.
• The petitioner was held guilty and sentenced to two years rigorous imprisonment and a fine of Rs. 100.
• On the petition, the counsel for the accused argued that the girl had attained the age of discretion (age to take decisions for herself and understand the consequences of her act) as she was 17 years, 8 months and 7 days old and thus kidnapping did not take place.

Issue

Clarity of Section 361 and explanation of taking and enticing as given in the section.

Judgement 

Court clarified the difference between take and entice as given in section 361 of the Indian Penal Code.

• The court said that the word ‘take’ means cause to go or to escort or to get into possession. This means that in taking, the desire of the person being taken to be taken is missing. 

(To understand this better let’s look at an illustration. If ‘A’ is taken away against her own consent, it is taking)

• Enticing, on the other hand, is the act of the accused which induces the person kidnapped to go to the kidnapper, by his/her own wish. It is exciting hope or desire in a person to be taken away. Enticement is completely dependant upon the mental state of the person when the inducement happens. It is not confined to a single form of allurement and any act which is enough to allure a minor girl is enough to constitute allurement.
• The court further clarified that mental attitude is immaterial ( minor’s willingness or unwillingness) is not relevant for taking. However, in enticement, the kidnapper convinces the minor, through allurement, to do something he/she would otherwise not do.
• It was also held that force or fraud is not necessary to constitute enticement or taking away.

S Varadarajan v. State of Madras, AIR 1965 SC 942

The meaning of taking was further clarified by the court in the case S Varadarjan v. The State of Madras.

Facts

• Varadarajan, the appellant was living next to Savitri’s (a minor girl) house. They talked every day and became good friends. One day, Savitri’s sister, Rama caught them talking and asked her about it. Savitri told her that she wanted to marry him. Rama told her father about this who inquired Savitri. She started crying but didn’t reply to her father’s question. Consequently, he decided to send her to a relative’s house, away from Varadarajan.
• Next morning, Savitri called the appellant and told him to meet her on a certain road. They met and she sat in his car. They both went to the house of P.T. Sami with a view to take him as a witness to their marriage. They went to the Registrar’s office where they both got their marriage registered. Thereafter, the went to Sattur, Sirkulam, Coimbatore, and Tanjore.
• On the morning of the day she went away, her father, Natraj realised she was missing and tried to find her around the area where they lived. However, all his attempts were futile and he filed a complaint at the police station. The police took up the investigation and ultimately apprehended the appellant at Tanjore.

Issue

Whether the essential of ‘taking’ of Savitri was fulfilled or not?

Judgement

• The court held that where a minor girl leaves the protection of her father to join the accused, knowing and completely understanding the consequences of her act, it cannot be said that the accused has taken her away from the keeping of legal guardian.
• In such case, for the accused to be held guilty, it must be established that the accused induced the minor or actively participated in developing such intention in her mind, either immediately prior or at some prior stage of her leaving her father’s protection. 
• The accused cannot be held guilty simply because after leaving her guardian’s house willingly she joined the accused and the accused encouraged her to not return to her guardian’s house by taking her to different places.

Punishment for Kidnapping

Section 363 of the Indian Penal Code lays down the punishment for both kinds of kidnapping (Kidnapping from India and Kidnapping from lawful guardianship).

The punishment prescribed in this section is :

• Imprisonment of either description which can extend up to seven years, and
• Fine.

Imprisonment of either term means either of the two imprisonments prescribed in the Indian Penal Code:

• Simple Imprisonment: This means that during the imprisonment, the prisoner is idle and is not required to do any hard labour.
• Rigorous Imprisonment: This means that during the imprisonment, the prisoner must engage in hard labour.

Before we move forward, it is important to mention an exception laid down in the case of Chadrakala Menon and another v. Vipin Menon. In this case, the appellant Chandrakala was married to Vipin Menon. They both were settled in the United States and were well employed. They had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences arose between them and they decided to get separated. While Vipin Menon filed an application for his daughter’s custody, the child continued to live with her maternal grandparents. One day, while the custody application was still to be decided upon, Vipin Menon took his daughter away with him to a different state. The grandparents lodged a complaint of kidnapping against him. However, the court held that Vipin Menon was the natural guardian of the child 

Abduction 

Section 362 of the Indian Penal Code defines abduction. It says that if a person compels another person to go from one place, or induces some person to go from one place, then the offence of abduction is committed.

Thus, Abduction is an offence in which a person is moved from one place, against his/her will by forceful compulsion or by use of deceitful means. Clearly, the essentials of abduction are:

‘I’llustration: ‘B’ slaps and hurts ‘A’ and tells her that if she would not leave with him, he would kill her. In this case, ‘B’ commits the offence of abduction as he uses forceful means to take ‘A’ away from her house. 

Here, ‘A’ is the person abducted and ‘B’ is the criminal; threatening ‘A’ to kill her and slapping and hurting her amounts to use of force, and taking her away from her house established the essentials of taking a person away from a particular place.

Let’s understand all these essentials in depth.

Ingredients

By Force

Section 362 says that abduction can happen in two ways. One of these is force. In abduction, a person is forced to go from one place to another, against his/her will. The use of force, as mentioned in this section, must be actual, and not just a threat of force to constitute abduction.

In this reference, we can look at the case State of West Bengal v. Mir Mohammad Omar.

Facts

• The victim, Mahesh Kumar Aggarwal was doing small business in Calcutta. The accused, Mir Mohammad Omar and Sajad Ali wanted him to pay them INR 50,000 for allowing him to do his business without any hindrance or obstructions. But Mahesh did not agree to their demands which led to a fight.
• A few nights later, when Mahesh returned to his house, his sister told him that a few assailants had come before looking for him, and were threatening to hurt him. Scared, Mahesh left to take asylum at his friend’s house for the night.
• Just an hour after he had been at his friend’s place, a man came to tell Mahesh that Omar is waiting outside for him. Mahesh went out and Omar asked him to accompany him, but Mahesh disagreed. Thereafter, Omar forcibly took Mahesh to the Rickshaw, but Mahesh escaped and went to a neighbour’s house where he took asylum.
• At around 2:30, the accused entered Mahesh’s room and dragged him out. He resisted but was beaten by a lathi and taken away. His neighbour went and lodged a police complaint that very night.

Judgement

The court held that there is enough evidence to show that Mahesh was abducted. It was said that abduction takes place when a person is compelled by force to go from a place. In this case, Mahesh was taken away from two places, first from his friends’ place, which he escaped and second from the neighbour’s place. In both instances, force was used. Hence, the accused were held liable.

Deceitful Means

According to Section 362, the other way abduction can take place is by inducing someone to go from someplace by misleading him/her to do something he/she would not normally do. The scope of inducement here is very wide. 

Illustration: ‘A’ is a man who wears the uniform of a police officer to convince a girl, ‘B’ to come to his house with him, and because of his misrepresentation she goes with him. In this case, ‘A’ uses deceitful means to commit the offence of abduction.

Let’s look at case law to understand how abductions happen through deceitful means.

To go from any place

For abduction to be completed, it is essential that the person is compelled to go from one place to some other place, either forcefully or by using deceitful means. It cannot be called abduction if the person is not taken to someplace.

Now let’s discuss an important judgement given in the case of Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67. It was held that mere abduction is no offence at all. The guilty and wrongful intention must be present for the offence to be punishable.

For this very reason, IPC provides for different punishments for abduction with different intentions. Like abduction for kidnapping is punishable in Section 363A with imprisonment up to ten years, abduction with the intention of murder is punishable with life imprisonment etc. Now let’s discuss these specific provisions in detail.

Aggravated forms of Kidnapping or Abduction

Kidnapping or Maiming for Begging

Section 363A of the Indian Penal Code talks about the offence of kidnapping or maiming a minor for begging. It states that:

• If a person kidnaps a minor or obtains custody of a minor, even though he is not his/her lawful guardian, so as to employ the minor in begging, he/she would be liable for this offence. The punishment prescribed in Section 363A of the Indian Penal Code for this is imprisonment up to 10 years and fine.
• Maim means to wound or injure a part of the body so that it is permanently damaged. As per this section, If a person maims a minor so that the minor can be employed in begging, he/she is liable for imprisonment for life and fine.
• The section also states that if a person, not being the minor’s lawful guardian, employs a minor in begging, it will be assumed by the court that such person kidnapped the minor. The person would have the burden of proof to prove that he is innocent.

Section 363 A, itself, defines what begging constitutes as per this provision. It means:

• Asking or receiving alms (money was given to poor people) in a public place for singing, dancing, fortune-telling, performing tricks, selling goods, etc.
• Entering someone’s private place to ask or receive alms.
• Exposing any wound, injury, deformity or disease of oneself, some other person or some animal, for obtaining or extorting alms.
• Using a minor as an exhibit to receive or solicit alms.

Illustration: ‘A’ took away ‘B’, a 12-year-old boy, from his father, without his consent, so as to make him beg on the streets of Delhi. In this case, ‘A’ completed the kidnapping from lawful gu’a’rdianship as soon as he took ‘B’ away from his father. And because it was for the purpose of making him beg on the streets of Delhi, ‘A’ is guilty of the offence under section 363 A of IPC.

Abducting or Kidnapping to Murder

As per Section 364 of Indian Penal Code, if a person is kidnapped or abducted by a person with the intention or knowledge that the person is going to be murdered or is going to be put in danger of being murder, such person is punishable with imprisonment for life or rigorous imprisonment for a term up to 10 years and a fine.

Illustration: ‘A’ takes away ‘B’ from his house to a forest, against B’s consent with the knowledge that ‘B’ would be sacrificed to a deity. ‘A’ is guilty of abduction for murder.

To understand this section better, let’s look at the case of Shri Moni Neog and others v. the State of Assam.

Facts

• Sanjay Ghose was the General Secretary of an NGO, working for the welfare of people at Maijuli. As their work started to spread, the members of a banned militant group, United Liberated Front of Assam (ULFA), started to feel unhappy and scared of people losing faith in them, because of their growing dedication for Sanjay Ghose’s NGO. They suspected Sanjay Ghose to be a RAW Agent and developed hostility towards him.
• One afternoon, he was stopped by two of the accused and taken to a house despite his protest. He was taken to a house where some more militants joined him. He was then taken on a boat to another house, along with more militants, all of whom were armed. At night, some people near that house heard gunshots.
• When he didn’t return home for a couple of days, his wife filed a police report. Upon investigation, it was found that he is dead. It was accused that these militants had murdered him.

Judgement

• The court held that the abductors of Sanjay Ghose had abducted him with the intention to murder him, or at least had the knowledge that he may be murdered or had put him in danger of being murdered,
• It further said whether he was murdered or not is immaterial. What is important is that the abductors did not at any stage gave an indication that they would spare his life.
• As a result, the court convicted the accused and awarded them life imprisonment and a fine of Rs. 2000 each.

Kidnapping for Ransom

Section 364A of IPC provides for punishment to the whoever threatens to hurt or cause death to that person who he has kidnapped or abducted or detained after kidnapping or abducting in order to compel either the government or some foreign state or any other person to do or abstain from doing an act or pay a certain sum of money. The punishment is death or imprisonment for life, and fine, as mentioned in Section 364A IPC. The essentials of the offence under Section 364A are:

Netra Pal v. State (National Capital Territory of Delhi), 2001

The first case we will discuss is Netra Pal v. State (National Capital Territory of Delhi), in which the court discusses one essential of the offence.

Facts

• The appellant Netra Pal was known to Master Tanu Johia, a 6-year-old boy. One day he had taken the boy along with other boys on a joy ride in a Rickshaw. While he dropped the other boys, he did not drop off Tanu. His mother had thought that Netra Pal would come back with her son in a while. When he didn’t come back, she told his father. He tried to find him around the area where they live, but failed to locate them and filed a police report.
• The police went to the appellant’s village and found him there along with the child. He was apprehended and a letter asking for Rs. 50,000 in ransom was found in his possession.

Issue 

• What do the words “To pay ransom” stand for – is it enough to show that kidnapping or abduction was done with an intention to extract ransom or is it necessary that such demand must be communicated?
•  Whether the letter recovered from the appellant would constitute as demand for ransom?  

Judgement

The court held that mere recovery of the letter assumed to have been written by the appellant demanding Rs. 50000 for the safety and return of the child is not enough to cover “ to pay the ransom” by itself. Demand by a kidnapper is an essential ingredient of the offence because, for the purpose of getting paid ransom, demand must be communicated.

Malleshi v. State of Karnataka (2004)

The next case which we must discuss in this reference is Malleshi v. the State of Karnataka.

Facts

• Vijaybhaskar was studying in college and living at his uncle’s place. He used to go to Chitradurga, where his college was, through a bus, along with another friend. One day when he was waiting to board the bus to go back to his house, he was called by a man who told him he knew his father. He further inquired about the college’s fees saying he wanted to enrol his son here. He then led Vijaybhasker to a jeep informing him that his son is there and made him sit in the jeep.
• Then two other men joined him and treated him well till they crossed Chitradurga. Once they did, they enquired about his father’s phone number and told him that they want a ransom of Rs. 4,00,000. On the way, they stopped to buy cigarettes. The driver of the jeep told him to run off. He listened to his advice and found out he was in Byrapur village. He informed the villagers who caught hold of the abductors and handed them over to the police.

Issue

Whether the alleged demand for ransom was established or not?

Judgement

The court held that Vijaybhasker has been abducted through deceitful means. They further referred to the case of Netra Pal v. State and said that the difference of fact that the abducted person, in that case, was a child and in the present case is an adult who can look after himself must be mentioned. It was held that in this case, the demand for ransom had been conveyed to the victim and the offence was completed. The court further said that it cannot be a straight jacket rule that the demand for abduction must always be made to the person who is required to ultimately pay it.

Vikram Singh v. Union of India, (2015)

The next case, we will be looking at is Vikram Singh v. Union of India, in which the punishment prescribed in Section 354A IPC was evaluated.

Facts and Issue: The appellant had kidnapped a 16-year-old boy and asked for Rs. 50 lacs in ransom. They had then killed this boy. In this case, the appellants filed a writ petition in the Supreme Court to declare Section 364A inserted in the Indian Penal Code as ultra vires (beyond the legal power) of the Constitution to the extent that the same prescribes death sentence for anyone found guilty. He also said that section 364 A was added only to deal with terrorist-related ransom since kidnapping/ abduction has already been dealt with in the previous section. He further prayed for quashing death sentence given to him under this section.

Judgement

• The court held that section 364A is very wide. There is nothing which suggests that this section is limited to offences against a foreign state or international governmental organisation, and covers all the “any other person” as well. 
• Court also emphasised upon various Indian and foreign judgements to highlight the importance of proportionality of punishment. It held that the job of giving punishment is the job of the legislature, and the court can only intervene when it feels that the punishment is outrageously disproportionate. In section 364A however, when death is concerned the courts do reserve the right to give death penalty or if not required, a lesser punishment of life imprisonment. Hence, it is not ultra vires with the constitution. 

Kidnapping or abduction with intent to secret and wrongful confinement

Section 365 of IPC provides for punishing a person who kidnaps or abducts someone with the intention of wrongfully and secretly confining them with imprisonment up to 7 years and fine.

Illustration: ‘A’ takes ‘B’ away from her legal guardian, against the consent of such guardian, with the intention of hiding her in his house. Here ‘A’ has kidnapped ‘B’ with the intent of secret confinement, and thus, he is punishable under section 365 of IPC.

Kidnapping or Abduction a woman to compel her for marriage, etc

Section 366 of Indian Penal Code punishes a person who kidnaps or abducts a woman with the intention to force her into a marriage or with the knowledge that she would be forced into marriage. It also provides punishment for a person who kidnaps or abducts a person to force her into illicit intercourse or has the knowledge that because of such kidnap or abduction, she would be forced into illicit intercourse. 

The punishment prescribed in this section is imprisonment for up to 10 years and fine.

Illustration: ‘A’ and ‘B’ are brothers. ‘A’ wanted to marry ‘C’, but she did not want to. ‘A’ asked ‘B’ to abduct ‘C’ so that he can marry her. ‘B’ did as was asked from him and took ‘A’ from her house to ‘A’. Here ‘B’ is guilty of the offence under section 366 as he abducted a woman, ‘C’ with the knowledge that would be compelled into marriage.

Minor’s consent to marry her Kidnapper: Is it valid?

To look at if minor’s consent to marry her kidnapper or engage in sexual intercourse with him is enough or not, let’s look at the case of Thakorlal D. Vadgama v. State of Gujarat.

Thakorlal D. Vadgama v. State of Gujarat, 1973

Facts

• Mohini’s parents got to know that she had been having sexual intercourse with the appellant and reprimanded her. They also sent a letter to him telling him to stay away from Mohini. She, however, met him again when she had gone to Ahmedabad on a school trip and for two months after that, they kept sending each other letters in which Mohini had complained about her parents ill-treating her and expressed her desire to leave her house.
• Next month, the appellant asked her to meet him at his house and she met him there. He made her write three letters to her father, the appellant and the police superintendent. These letters contained complaints of ill-treatment by her parents and also said that she had taken Rs. 250 from the appellant and was leaving to Bombay..
• He then made her sit in a cars’ dicky and took her away to someplace. Then he had sexual intercourse with her against her wishes. Meanwhile, her father filed a case. Next morning, while investigating police came to his house to search it for Mohini. The appellant hid Mohini in his garage and later told her to run out in the street, where the police found him. On medical examination, no evidence of forced intercourse was found.

Issue

Whether or not consent from Mohini absolves the appellant from his crime?

Judgement

• The court held that in the present case, the appellant got close to the minor girl in the manner of making promises and giving her gifts, like new clothes, etc. He took advantage of this closeness to entice her out of her parent’s guardianship and thus kidnapped her. 
• The court further, clarified the legal position with respect to an offence under section 366 of IPC and said that law seeks to protect the minor children from being seduced into illicit activities and also the rights of the guardians towards their children. It clarified that kidnapping can be done by enticing or inducing minor out of the keeping of their guardians. Hence, it was held that Mohini’s acceptance to go with him and have intercourse with him is not enough to absolve him from the offence.

Procuration of Minor Girl

Section 366A of the Indian Penal Code prescribes punishment for any person who induces a girl under the age of 18, to go from someplace or to do some act, such that she will be forced or seduced to engage in illicit intercourse with some person. Such inducement must be done intentionally or with the knowledge that she will be forced to engage in such acts.

The punishment prescribed for the same is imprisonment for up to ten years and fine.

Kidnapping or Abducting to subject a person to Grievous Hurt

Section 367 of the Indian Penal Code states that if a person kidnaps or abducts a person so that such person is subjected to or is put in danger of grievous hurt, slavery or unnatural lust of any person, must be punished with either rigorous or simple imprisonment up to 10 years and fine.

Grievous hurt has been defined in section 320 of IPC. It includes:

• Emasculation (Removal of male reproductive organs),
• Permanently damaging eyesight in any eye,
• Permanently damaging hearing in any ear,
• Causing permanent loss of some joint,
• Permanent disfigurement of face or the head
• Fracture and dislocation of teeth or bone(s)
• Any hurt which endangers the life of a person and causing the sufferer to suffer severe body pain within twenty days of the causation of hurt.

Wrongfully Concealing or Keeping in Confinement a kidnapped or abducted person

Section 368 of the Indian Penal Code provides that if a person knows that a person has been kidnapped or abducted, and wrongfully confides such kidnapped person, would be punished as if he had kidnapped or abducted the person with the intention to keep or confide in him/her.

This section can be better understood by looking at the following case:

Smt. Saroj Kumari v. State of Uttar Pradesh, AIR 1973 SC 201

Facts

• The accused had kidnapped the minor male child of Smt. Gomti Devi, who was just born a few hours ago. She took him away by saying that the staff nurse wanted to do the cord dressing of the child.
• When the child was not returned to the ward, even after an hour, Smt. Gomti Devi told the sister-in-charge. She searched the premises for the accused and the child. When she failed to find them the doctor and superintendent of the hospital was informed and they further told the police.
• On investigation, police found the child at the house of Ram Das, who was the tenant of the appellant. At the time of the seizure of child, appellant was lying next to the child and the accused kidnapper was sitting in the same room.The appellant was charged with a punishment of rigorous imprisonment for 5 years under Section 368 of IPC and the accused was charged under Section 363 (kidnapping for murder). 

Issue

Is the appellant guilty under section 368 of IPC?

Judgement

• The court dismissed the appeal petition. It explained that to constitute an offence under Section 368 of IPC, three essential must be fulfilled. These are: (1) The person in question must be kidnapped; (2) The accused must know that the person has been kidnapped (3) The accused having such knowledge wrongfully conceals or confines the person.
• In the present case, the first essential was fulfilled when the accused took the 15 hours old child away from his mother, the lawful guardian. The second essential was an inference drawn from the facts of the case and the third essential was evidenced as the appellant made it appear that the child was hers.

Kidnapping or Abducting Child under ten years with the intent to steal from its person

According to Section 369 of Indian Penal Code a person who kidnaps a child under 10 years of age to steal any movable property from him/her, will be punished with imprisonment up to 7 years and also fine.

Illustration: A kidnaps B, an 8 years old girl using her mother’s mobile phone, to steal that phone. Here, A is guilty under section 369 of IPC.

Difference between Kidnapping and Abduction

Now that we have understood what kidnapping and abduction are let’s understand the difference between them.

Trafficking and Slavery

Section 370 of the Indian Penal Code was recently amended after the Delhi rape case in 2013. Now, it states the definition and punishments of trafficking.

As per this section, if anyone recruits, transports, harbours, transfers or receives a person for the purpose of exploitation commits the offence of trafficking. This is done by :

• Using fraud, deception or abuse of power, or
• Using threats, or
• Using force or coercion, or
• Abduction, or 
• Inducement of the person extorted himself or someone who has authority over him.

Exploitation, as mentioned in this section has a very wide ambit, and refers to  sexual exploitation, slavery or practices similar to it, servitude or forced removal of organs.

It must also be mentioned that the consent of the victim is completely immaterial for the offence of trafficking.

The punishment for this offence has been given in depth in this Section. These are as follow:

Sale or Purchase of Minors for Immoral Purposes

Section 372 of the Indian Penal Code provides that if a person sells or allows hiring of any person under the age of 18 years, with the intention or knowledge that such a person would be used for prostitution or illicit intercourse, then he/she will be punished with either simple or rigorous imprisonment for a period of up to 10 years and would also be punished with fine.

Illicit purposes, as mentioned in the section, means sexual intercourse between people who are not married or united by any union recognised in a personal law or custom.

Illustration: ‘A’ is a brothel owner. ‘B’ sells ‘C’ to A for Rs. 1,00,000 so that she (C) can be used as a prostitute. Here, ‘B’ has committed an offence under Section 372 of IPC.

Similarly, Section 373 of Indian Penal Code provides the punishment for a person who buys a minor for immoral purposes. It states that if a person buys or hires or in some other way obtains a person under the age of 18 years, with the intention of using or knowledge that such person would be used for purposes like prostitution or illicit intercourse, then he/she will be punished with either simple or rigorous imprisonment for a period of up to 10 years and would also be punished with fine.

Continuing with the above illustration: In that case, ‘A’, the brothel owner would be liable for the offence under Section 363 of IPC as he purchased ‘C’ for Rs. 1,00,000 with the intention of engaging her in prostitution.

Forced Labour

Section 374 of Indian Penal Code states the offence of unlawful compulsory labour. As per this section, if a person unlawfully forces some person to provide labour against his will, then he is punished with either simple or rigorous imprisonment for a period of up to one year, or with fine, or with both imprisonment and fine.

Conclusion 

Kidnapping and abduction are dangerous acts which harm the freedom of a person. Section 359 to 369 go a long way in securing the liberty of people. They give protection to children against kidnapping and abduction. Moreover, they reinforce the rights of guardians to have control over the children who are easily moved and convinced by the words of conspiring adults. The number of abduction and kidnapping cases is enormous and is only increasing. There is a dire need to prevent these horrendous crimes and stop the culture of kidnapping and abduction from spreading, especially when it is done for marriages, forced sexual intercourses and forced begar etc. These children require safe release, medical, psychological and legal assistance as such acts take away the good days of childhood away from them as they are subjected to mental and physical torture.

To overcome these offences, not only do the states need to work together but also a co-task among nations need to be cultivated. Moreover, it is needed to be understood that a criminal would go around the laws, and indulge in these acts. What is required to prevent these offences is hand in hand working of non-governmental organisations and government bodies, and more sensitisation.

References

1. https://safecity.in/kidnapping-and-abduction-know-your-rights
2. https://blog.ipleaders.in/difference-between-abduction-and-kidnapping/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Ravi Karan, pursuing a Diploma in Companies Act, Corporate Governance and SEBI Regulations from LawSikho.com. Here he discusses “Listing of a company – Benefits for employees”.

Introduction

Founder of Virgin Group – Sir Richard Branson once wisely said – “Take Care Of Your Employees And they will Take Care Of Your Business”. Companies want to create a truly competitive and compelling employee benefits package as it is an inevitable requirement these days to retain top talent.  Leaders who care about their workers are able to create a motivational work-place environment. As an employer, you are required to offer certain benefits like social security taxes, unemployment insurance,  medical insurance and worker’s compensation etc. based on the size of your company. The goal is to remain competitive in the marketplace. There are plenty of low-cost benefit options at the company’s disposal to help sweeten the deal. But where to start?

Benefits for employees upon the listing of a company are regulated by SEBI (share-based employee benefits) regulations, 2014. Broadly these regulations apply to Employee stock option schemes (ESOS), Employee stock purchase schemes (ESPS), Stock appreciation rights (SAR) schemes, general employee benefits schemes (GEBS) and retirement benefit schemes (RBS).  

Employee benefit schemes

1. Employee stock option scheme (ESOS)

ESOS means a scheme under which a company grants a stock option to its employee either directly or through a trust.

In 1980, Muhammad Anwar Ahmed bought shares of Wipro for INR 10,000 which is currently worth more than INR 500 Crore. This is not an outlier case of an investor minting money by investing in an early-stage company that transformed into a behemoth in future. There are many examples of employees who have made huge gains by subscribing to employee stock option schemes of privately held companies or unlisted public companies that went on to become public companies by listing on bourses.

ESOS gives an employee ownership interest in the company. Early-stage companies that are generally cash-starved not only can attract top talent but also can offer them less compensation by giving them a pie of ownership in the company. In a layman term, an employer allocates stock options to their employees based on a set criterion as explained in ESOS. Thereafter once vesting period is over, employees can exercise the shares of the company at a pre-determined price. Henceforth they are able to own equity in the company. Once the company decides to issue its IPO, it will provide a window of opportunity for these employees to make a windfall gain by selling their stocks in the share market. 

However, there is number of caveats that may undermine the successful ESOP millionaire stories of employees. Some of these can be the dismal performance of stock upon listing or resignation/termination of the employee before the expiry of the vesting period. 

Click Above

Subject to the provisions of SEBI (share-based employee benefits regulations) 2014, ESOS shall contain the details of the manner in which the scheme will be implemented and operated. No ESOS shall be offered unless the disclosures, as specified by Board in this regard are made by the company to the prospective option grantees. The company granting an option to its employees pursuant to ESOS will have the freedom to determine the exercise price subject to conforming to the accounting policies specified in regulation 15 of SEBI (share-based employee benefits) regulations,2014. There shall be a minimum vesting period of one year in case of ESOS. The company may specify the lock-in period for the shares issued pursuant to the exercise of the option.

Direct route to grant ESOP’s VS trust route to grant ESOP’s

Key managerial personnel, directors and their relatives cannot be trustees of the trust. Also, shareholders holding more than 10% of the paid-up capital of the company cannot be appointed as trustees. Trust should comply with SEBI (Prohibition of Insider Trading) Regulations, 1992. The trust should maintain proper accounts and documents for all the transactions related to these schemes. Also separately a trust deed containing necessary provisions specified by SEBI should be filed with stock exchanges where the shares of the company are listed.

2. Employee stock purchase scheme (ESPS)

ESPS lets employees purchase stocks of the company at a discounted price. There is two kinds of ESPS – Qualified and Non-Qualified schemes. Shareholder approvals are required for effective implementation of qualified scheme whereas there is no such requirement for the non-qualified scheme. Price for shares is decided by the company, and the shares issued are locked for minimum one year after allotment. However, when shares are issued at the same price as in public issue, there will be no lock-in period for them.

3. Stock appreciation rights scheme (SARS)

An employee can be benefitted by SARS when the price of the stock rises.  There is no need to buy any stock. Thus, it is an incentive given to employee without investing anything upfront. Therefore, there is no need to pay an exercise price by an employee. The incentive can be either in the form of cash or shares. There will not be any dividend or voting rights for SAR granted to an employee. 

4. General employee benefits scheme (GEBS)

GEBS intends to utilize shares of the company for employee welfare, healthcare benefits, accidental or death insurances. In accordance with SEBI regulations, a company implementing GEBS through trust route via secondary acquisition is required to take separate approval from the shareholders of the company. The holding of the trust should not exceed 2% of the paid-up capital of the company as on the date of the financial year immediately prior to the year in which shareholder approval is obtained. The shares held by the trust should not be more than 10% of the book value or market value or fair value of the total assets of the scheme. 

5. Retirement benefit scheme (RBS)

RBS intends to utilize shares of the company for retirement benefits of employees. The shares held by the trust which is looking after the retirement benefits scheme should not be more than 10% of book value or market value or fair value of total assets of the scheme.

Eligibility 

Compensation committee established by the company decides eligibility criteria for employees to subscribe to these schemes. To align it with Companies Act 2013, independent directors have been excluded from the category of eligible employees to whom share-based employee benefits can be granted. In case of listed entities, any amount of benefit granted to an independent director before the enactment of new norms under the companies act, 2013 is valid and can be vested/exercised as per terms of the grant. Further, a permanent employee or Director of an Associate Company has been covered in addition to those of the Company, it’s Subsidiary and Holding Company as an employee to participate in schemes. The Compensation Committee shall be constituted as provided under the Companies Act, 2013. The Compensation Committee shall formulate detailed policy and administer the policies and procedures for the implementation of schemes. SEBI board can grant relaxation from strict compliance with any of these regulations upon receiving application by a company in this regard. Such application should be submitted by a company with a non-refundable fee of rupees of INR one lakh by NEFT/RTGS/IMPS/bankers cheque/demand draft payable at Mumbai in favour of the SEBI board. In case of contravention of these regulations, SEBI board can trigger the clauses SEBI India act, 1992 (15 of 1992), the securities contracts (regulation) act, 1956 (42 of 1956) or the companies act, 2013 (18 of 2013).

The compensation committee should prepare rules of the schemes, select eligible employees, enact policies for effective compliance and governance, implement schemes by themselves in case of the direct route or empower the trust members in case of trust route and repay a loan to employees in case of winding up. 

Conclusion

SEBI (Share-based employee benefits) regulations 2014 have replaced SEBI (employee stock option scheme and employee stock purchase scheme).  Apart from the benefits discussed above, these regulations have also made it possible for these schemes to be eligible in open offers, buybacks and delisting offers without complying with a minimum holding period of six months. These regulations allow listed companies to purchase shares from the open market through a trust for the benefit of their employees which were earlier restricted. The intent is to prevent unfair practices involved in the secondary acquisition of shares and to align the benefits in accordance with internationally recognized best practices such as stock appreciation rights, general employee benefit schemes and retirement benefit schemes. It is certainly a step in the right direction.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Avinash Kumar, a 3rd-year law student from School of law, UPES Dehradun. In this article, he discusses the “Calculation of Depreciation Under The Income Tax Act 1961”. He also discusses the written down value method and additional depreciation under the Income Tax Act. 

Introduction

The provision for allowing depreciation is contained in Section 32 of the Income Tax  Act, 1961 and is regulated under Rule 5 of the Income Tax Rules. When there is a decline in the value of the tangible or intangible asset used by the assessee, then the deduction is permissible under the Income Tax Act. While at the time of the deduction, the income-tax department calculates the depreciation on the total cost of an asset over the life of the asset. An assessee can calculate the deduction caused by depreciation under a straight-line method or by written line method (WLM). The income tax department uses the concept of a written line method (WLM). However, at the time of deducting depreciation, generating or distribution of power, the Income-tax department uses the concept of “Additional general method”. In certain circumstances, the Income Tax Act allows a deduction for additional depreciation in the year of purchase.

Meaning of depreciation under the Income Tax Act

Section 32 of the Income Tax Act 1961 talks about depreciation. Depreciation is defined as a reduction in the value of the asset due to wear and tear of the asset. People claim the deduction of depreciation only for accounting or for the purpose of taxation.

Income Tax Act of 1961 allows the depreciation of tangible assets and intangible assets. In the case of a tangible asset, you can claim the deduction against building, plant, and machinery. In the case of an intangible asset, you can claim a deduction against the patents, trademark, copyright, license, franchise or any other business or commercial right of similar nature. You can claim the deduction on depreciation on those assets which have been used by the assessee for the purpose of business or profession during the previous year.

If any asset which has been used for more than 180 days then 50% of depreciation is allowable in that year. For availing the benefit of deduction under depreciation, it is not mandatory that assets should be used by the assessee in the previous year. If an asset is purchased by the assessee and then leased out to the lessee, the assessee can claim the deduction of depreciation under the Income Tax Act.  

Rates of depreciation

Rates of depreciation on the following assets: 

• Building for residential use: 5%;  
• Building for non-residential use: 10%;
• Furniture and fittings: 10%;
• Computers including software: 40%;
• Plant and machinery: 15%;
• Motor vehicles for personal use: 15%;
• Motor vehicles for commercial use: 30%;
• Ships: 20%;
• Aircraft: 40%;
• All intangible assets: 25%. 

To know more about the depreciation rate on different assets you can click here

Condition for claiming depreciation under Income tax

For availing the deduction on depreciation, an assessee will have to fulfill some conditions. These conditions are as follows:

• Classification of Assets: For availing the benefit of depreciation, the owner of the asset should be an assessee. The asset can be tangible or intangible. With respect to a tangible asset, the asset should be a building, machinery, plant or furniture. With respect to intangible assets, assets should be patent rights, copyrights, trademark, license, franchise or any similar nature which is acquired on or after 1.04.1998. While calculating the depreciation on the building, the income tax department calculates the depreciation only on the building. They don’t calculate the cost of the land on which the building is situated. The reason behind not including the cost of the land into the building is that land does not suffer any depreciation because of wear and tear or its usage. 
• Ownership vs lease: An assessee can claim the depreciation only on those capital assets which are owned by him. If the assessee wants to avail the deduction on the depreciation of building then assessee should be the owner of those buildings. It is not necessary that an assessee should be the owner of that land. If an assessee has constructed the building but the land belongs to someone else then he has a right to claim the deduction of depreciation on buildings. If the assessee is a tenant or using the building then he can’t claim the deduction. If an assessee has taken the lease of the land and has constructed a building on that land, he is entitled to avail the allowances of depreciation. In the case of hire and purchase, if an assessee hires the machinery for a short period of time then, in that case, he is not entitled to claim the deduction. But, in case of purchase, if an assessee acquires the property and becomes the owner of the property he is entitled to claim the deduction.
• Used for the purpose of profession or business: for availing the allowance for depreciation, it is necessary that the asset has been used for the purpose of business or profession. However, it is not necessary for availing the allowance for depreciation, for which an assessee will have to use the asset throughout the accounting year. Thus, if the assessee has used the asset for a small period of time in an accounting year then he is entitled to avail the allowances for depreciation. You can take the example of any seasonal factory. Let’s take the example of sugar factories. Sugar factories don’t open for a whole year but if the asset has been used at any time during the accounting year in a factory then in such conditions factory owners are entitled to claim depreciation. Under Section 38 of the Income Tax Act 1961, the income tax officer has a right to determine the proportionate part of the depreciation. 
• Can’t claim the deduction on sold assets: An assessee can not claim the deduction on depreciable assets. If an asset is sold, destroyed or demolished in the same year when it was acquired then assessee can not claim the deduction.
• If an asset has a co-owner then the co-owner can also claim the depreciation on the asset. 

Written down value method (Block wise)

Every year the book value of the asset decreases and depreciation of the asset is computed on the book value of the asset. The written down value (WDV) method is the best way to calculate the depreciation of the asset because the depreciation amount goes on decreasing with time. Section 32(1) of the Income Tax Act 1961 says that depreciation should be computed at the prescribed percentage on the WDV of the asset, which in turn is calculated with reference to the actual cost of the asset. When an assessee is acquiring the asset in the previous year then the actual cost becomes the WDV. While the asset acquired in earlier year WDV shall be equal to the actual cost incurred less depreciation allowed under the Act.  

This may be easily followed by the following example:

Depreciable assets on 1.04.2017 on which the depreciation is available at the same rate of 25%.

Additional depreciation under the Income Tax Act

The Income Tax Act only permits the written down value method. As per the Additional depreciation method, you can get the deduction only on those assets which have been used in the business or profession. However, an assessee can get the deduction only when assets are used in the year in which it was purchased. But as per the new amendment in the Income Tax Act, 1961, Section 32(1)(iia) says that an assessee can get depreciation of 20% on those plants and machinery which have been involved in the business of manufacture or production of an article. For availing the deduction under additional depreciation the purchase and installation date should be after the 31st March 2005. An assessee can not avail of the additional depreciation on aircraft and ships. These are excluded from additional depreciation. 

From the assessment year 2013-14, a new provision has been added. Further, from 2017-18, another new provision has been added in the Income Tax Act, 1961 which says that those assessees who are involved in the profession of power, can also avail the benefits of the additional depreciation. If an asset has been used for less than 180 days then additional depreciation is allowed at 50% of the rate of additional depreciation.  

Depreciation in backward area

From 1st April 2016, Section 32(1)(iia), of the Income Tax Act, 1961 allows the possibility of depreciation in the backward areas. If an assessee sets up a business of manufacturing or production in any backward state (Bihar, Andhra Pradesh, Telangana, West Bengal) then, the additional depreciation available to those assessees is 35%, not 20%. Shifts and aircraft are excluded from the additional depreciation. However, an assessee can purchase and install the machinery.    

Who is non-eligible for the additional depreciation?

As per Section 32(1)(iia) of the Income Tax Act, 1961, if an assessee fulfills the below conditions, they are not eligible for availing the deduction under additional depreciation:

• Additional depreciation can not be claimed on plants and machinery which has been used outside India, before being installed in India. 
• You cannot claim the deduction on those plants and machinery which have been installed in the office premises or in residential accommodation. 
• An assessee can not claim the deduction under additional depreciation on assets such as furniture, buildings, ships, aircraft, office appliances, the vehicle used in road transport, residential accommodation including in the nature of the guest house.  

Additional depreciation to the generation of electricity

Deduction on additional depreciation is permissible only for that assessee who is involved in the production. A matter of conflict has been raised by the assessee who was generating the electricity. However, a certain amendment has been made by the parliament for allowing the additional depreciation to the assessee.

A claim was raised by the assessee, a joint venture company which was involved in thermal power plant for availing the benefit of deduction on additional depreciation under Section 32(1)(iia) of the Income Tax Act. However, an assessing officer rejected the claim on the ground that this type of benefit will only be granted to the assessee who is involved in the production of an article and this does not include the generation of electricity. After that, the Income-tax department served the notice to the assessee under Section 154 of the Income Tax Act 1962 the assessee gave an explanation to the income-tax officer which was not accepted by the assessing officer. 

In 2013, Section 32(1)(iia) of the Income Tax Act was amended and after the amendment Income Tax Act 1961, made a provision that says that additional depreciation could be granted to an entity that is involved in the business which generates and distributes power. In the case of the State of Andhra Pradesh vs NTPC, the Supreme Court held that electricity is able to be transmitted, transferred and delivered. So on this logic, the Income-tax Officer can not deny an assessee from claiming additional depreciation for generating electricity. The Supreme Court gave the judgment in favor of the assessee and held that an assessee who is generating electricity can claim the deduction of additional depreciation under Section 32 (1)(iia) of the Income Tax Act, 1961.   

Conclusion  

Section 32 of the Income Tax Act, 1961 allows compulsory deduction on account of depreciation. However for claiming the deduction under section 32 of the Income Tax Act, 1961 an assessee has to fulfill some conditions. The written down method is one of the best ways of calculating depreciation under the Income Tax Act. As per Section 32(1)(iia) of the Income Tax Act, 1961, an assessee can claim the additional depreciation. Depreciation helps the assessee in many ways, sometimes it helps in financial management and sometimes this serves as a tax saving option.

References

1. Income Tax Act, 1961.
2. Tax law book by Taxman.
3. https://cleartax.in/s/depreciation-income-tax-act

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Calculation of Depreciation under the Income Tax Act, 1961 appeared first on iPleaders.

This article is written by Millia Dasgupta, a second-year student studying at Jindal Global Law School. This article covers provisions and laws which protect citizens from breach of their right to privacy by Facial Recognition Softwares. 

Our unbridled love affair with all things technological has an evil twin: a seemingly unstoppable encroachment on our personal privacy- Brock N.Meeks

Introduction

I was on Instagram the other day, scrolling through my feed when I came across the most peculiar post. It was an infographic that instructed you about how to hide your face when you go out protesting. The post said that the government uses facial recognition software to scan the faces of people participating in rallies. People attending should take great caution.

Surprised by such allegations, I searched the news to find some sort of confirmation to the allegation. I was shocked to find that well-regarded news outlets such as Reuters and The Wire affirmed the rumors. Not only that, I saw numerous viral videos of the Delhi Police with cameras, recording the crowds in protests and rallies. It makes you ask, whether we live in one of the biggest democracies in the world or in the novel “1984”. 

We are living in a surveillance state. And it is not only the government that is misusing our information. Many other big firms and corporations have also leaked our biometric data due to mishandling, negligence or because they are selling our information to other companies. It is during these times that we must remind ourselves that there are mechanisms set in place to protect us. Thus in this article, we will discuss the various Acts and laws one can receive protection under. 

Parties Who Might Have Interests In Your Facial Recognition Data

There are two parties that are interested in your information. These parties are :

(i) Governments and law enforcement agencies

(ii) Manufacturers and service providers.

Governments and Law Enforcement Agencies

The Government in the name of protecting ‘national interest’ and the ‘safety of greater public’ have encroached our rights multiple times. This is especially true for surveillance and their disregard to the ‘Right to Privacy’. 

The government has taken active steps, especially through facial recognition software to establish 24/7 surveillance. For example, the world’s biggest surveillance software for facial recognition has already arrived in India and shall be used to monitor citizens.  Another example is when the Madurai Police were exposed for taking pictures of citizens who they suspected were criminals. They uploaded it to a database through an app. In these instances, technology gave the government unprecedented power to change our nation into a surveillance state where every citizen is a potential suspect. 

The rights that protect citizens from such unprecedented surveillance is mentioned later in the article.

Manufacturers and Service Providers

Manufacturers and service providers like Google and Amazon exploit the data they extract while you avail their services. An example is when you search for ‘cheapest headphones in the market’ on Google, you are suddenly bombarded with ads about headphones. Even your Amazon recommendation is filled with cheap headphones. Another example is when you search for cheap flights and suddenly you get emails from various online portals about the prices of flights. How does a confidential information of this nature reach these other service providers?

Now, what would happen if you were to provide your picture to these services providers and they store your picture in a database or even worse, sell it to another entity? Then, how would you avail relief against their behavior? We will now talk about the various Indian legislations such as The Indian Information Technology Act, 2000 and The Consumer Protection Act, 2019 that provide relief later on in the article. 

Can Facial Recognition Data be Identified as ‘Sensitive Personal Data’?

In order to seek protection under the various legislations and provisions stated throughout the article, we must first establish that facial recognition data is ‘sensitive personal data’ under The Indian Information Technology Act, 2000.

Under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, personal data is any information about a natural person that can be used directly or indirectly to identify such a person. Thus, according to the definition, facial recognition data can be classified as sensitive personal data.  

Right to Privacy

India has no laws when it comes to the collection, processing, and storage of facial recognition data. But one can use certain principles and laws established on data privacy to receive relief from excessive government surveillance. 

Fundamental Rights 

In the landmark case of Justice KS Puttaswamy Vs Union of India (2018), the nine-judge bench ruled that the ‘Right to Privacy’ is protected under Article 21, (read alongside Article 14 and Article 19). 

It was held that the ‘Right to Privacy’ is not only an intrinsic part of the right to life and personal liberty under Article 21 but it is also a part of the freedoms guaranteed by Part III of the Constitution”. They stated that “informational privacy is a facet of the Right to Privacy” and suggested that the government should establish laws that would help to strike a balance between the interests of a citizen’s privacy and the interests of the state with regards to security. 

Article 21

Article 21 not only protects citizens against deprivation of life and personal liberty, but it also grants the ‘Right to Privacy’. 

Article 21 should be read with Article 14 when such laws are arbitrary and unreasonable and it should be read with Article 19(1) when the law relates to subjects mentioned in Article 19(2). 

It was K.S Puttasawmy who stated that this ‘Right to Privacy’ consists of- 

(i) Intrusion with an individual’s physical body

(ii) Informational privacy

(iii) Privacy of choice.

Exception to The Right To Privacy

This ‘Right to Privacy’ can only be encroached by the procedure established by law. Even these laws are subject to scrutiny. These laws must fulfil the duty of the State. The procedure set down by it must be proportionate to the goal it wishes to attain. In simpler terms, the procedure should not encroach upon a right in order to accomplish an aim which does not require such draconian procedure.  

Additionally, such laws should be approved by the principles of Article 14. They assure equality before the law and prevent the state from discriminating on the basis of caste, race, gender, etc. 

Regardless of these exceptions, there are no laws in place which facilitate the collection and processing of facial recognition data. There aren’t any laws that mention the use of facial recognition software by the government and government-controlled entities. Thus, using facial recognition software especially for the use of identifying protestors in rallies, cannot be an exception to Article 21. 

Indian Case Laws

There are no case laws that discuss the implications of the usage of technology for surveillance by the government and law enforcement. But we can refer to the following case laws on surveillance to get a general idea on the stance of India’s judiciary on this matter.  

In Govind vs State of Madhya Pradesh (1975), the petitioner filed a plea against MP Police Regulations 855 and 856. These regulations allowed police surveillance to the extent of visiting a suspect’s home. While the government dismissed the plea, they interestingly said provisions that were ‘borderline unconstitutional’ should be reviewed.

In People’s Union for Civil Liberties vs. Union of India, (1997), the petitioners questioned the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885. The section of this Act allowed the government to tap phones. The Supreme Court held that privacy is essential to the right to life and liberty enshrined under Article 21 and it can not be curtailed except by procedure established by law. Thus, we can infer from this decision, that the police or any other government institution cannot take your facial recognition data due to lack of procedure established by law. 

In District Registrar and Collector, Hyderabad, and Anr. v. Canara Bank (2004), it was held that excessive police surveillance is against the right to liberty. 

Foreign Case Laws

Katz v. the United States (1967) is a landmark case. Kats was a gambler who was suspected of using telephone booths to transmit illegal wagers. While he was proven to be guilty, the evidence used against him was obtained by eavesdropping on his private conversation. It was ruled by the US Supreme Court that the methods used to incarcerate him violated his right to privacy. 

In R v. The Commissioner of Police of the Metropolis (2011), it was held that if the police retained DNA and other biometric data of a suspect after his name is cleared, it would violate Article 8 of the European Convention on Human Rights. If we were to apply this case to facial recognition data collection, then we can infer that the police must delete your biometric data once your name is cleared. 

Legislations in India

Data leaks are becoming increasingly common nowadays. Corporations such as Facebook, Linkedin or Whatsapp are some examples of companies who have either succumbed to either a security breach or have been accused of selling that information themselves. 

On August 16th, 2019, a security firm called Suprema was a victim of a data leak. It resulted in 27.8 million records of biometric data such as fingerprints and facial recognition information being released into the open. 

Leaks like this are scary, especially with the increasing importance of biometric data. Nowadays, one can open their phone by just having their face scanned. If one has their facial recognition data leaked, it can be a serious compromise to not only their privacy but their security as well.  

How can we get recourse when another Suprema breach happens? The various legislations of India which provide protection are stated below. 

The Indian Information Technology Act, 2000

 Section 43A – Compensation

This section makes commercial bodies liable for the negligent collection and handling of sensitive data. It is by this Act that if these bodies do not follow reasonable practices and procedures they are liable to pay compensation.

By this section, bodies are defined as firms or corporations dealing with professional work. For example, such sections would apply to service providers like Quora and Google who collect information.

“Reasonable security practices and procedures” means practices that safeguard sensitive information from such attacks. These practices may be specified in an agreement, law, or  procedures prescribed by the government.

Thus, if a company does not follow procedures and your facial recognition data is leaked, then they are liable to pay compensation. The amount would be fixed by the tribunal courts. 

Section 72A – Imprisonment or/and Fine 

It makes disclosure of ‘personal information’ without the consent of the person. This information should have been obtained under a contract.

Punishment

If this section is violated, it may lead to imprisonment( which may extend to three years), a fine (which may extend to five lakh rupees) or both.

Thus, if the company leaks your facial recognition data without your consent not only can they be imprisoned, but they can also be fined. 

How To File a Complaint

Matters under the IT Act 2002 are looked after by The Ministry of Electronics and Information Technology. The authority under the IT Act is the Cyber Regulations Appellate Tribunal. The adjudicating officers will be responsible for inquiring about the nature of the offense. Appeals to the verdict given by such tribunals shall be transferred to the High Court and then the Supreme Court.

One can file a complaint through their website.

One can also mail or email their public grievances to a nodal officer. Here is a list of their contacts and the issues they deal with.

Consumer Protection Act, 2019

The Consumer Protection Act, 2019 provides relief for individuals who have come across any sort of harm while using a product. These laws can also be used to assure relief when certain service providers leak sensitive or personal information given by the users to avail the services. 

Section 47 (ix) of the Consumer Protection Act, 2019 (explanation) provides for relief to individuals who have had their personal information misused. If such personal information is released, then the producer shall be held for product liability. They shall then be  required to pay compensation fixed by the tribunal. The 2019 Act also defines “mental agony and emotional distress” as types of harm that can be caused through the use of products. 

Thus, if a certain service provider leaks private information (like you facial recognition data) and such leak causes physical, mental or emotional distress, then the consumers can avail protection under this Act and receive compensation.

How To File A Complaint

Under the Consumer Protection Act, 2019, the authority established is The National Consumer Disputes Redressal Commission (NCDRC). 

The complaint should be made within 2 years from the breach. It should  

• Be a written complaint that should be supported by a “Notarised attested affidavit” (a sworn statement which states that all the contents in the complaint are true. Such a document should be sealed by a notary public i.e a public officer),
• Contain 2 sets of the document (with File cover) 
• Contain the number of opposite parties. 
• The pages should be numbered and be organized according to the following index-

1. Index
2. List of Dates
3. Memo of Parties (with fresh complete addresses & telephone no.)
4. Complaint with Notarised  attested affidavit
5. Supporting documents in favor of complaint e.g. receipts, vouchers, etc. [All the Annexures (documents)  must be attested (verified) as a true Copy on the last page with name & signature]
6. Application for condonation of delay (a request for an extension of time)  with Notarised attested affidavit, if beyond limitation. (2 years from the cause of action)
7. Fee of Rs.5,000/-  for making Consumer Complaint (Demand Draft in favor of  “The Registrar, NCDRC, New Delhi”)

The complaint can be filled on all working days (Monday to Friday) between 10:00 A.M. to 4:30 P.M and should be mailed to – 

Ground Floor 

‘Upbhokta Nyay Bhawan’, 

‘F’ Block, General Pool Office Complex,

INA, New Delhi-110 023.

The Personal Data Protection Bill, 2019

In the judgment of Justice KS Puttaswamy Vs Union of India (2019), the bench set up a committee headed by Justice BN Srikrishna that would set up proper legislation that would protect an individual’s data privacy. The result of a year’s long work was The Personal Data Protection Bill, 2019 and is still yet to be approved by Parliament.

The Bill seeks to regulate the processing of personal data by not only the government but by personal entities as well (for example, companies, corporations, and firms). It takes inspiration from the European Union General Data Protection Regulations.

The Bill not only ensures certain rights of the data providing parties such as the right to correction and the right to erasure but it also establishes certain duties the data controller has towards the data principal.

The Bill allows certain data processing for reasons such as national security and legal proceedings. It also seeks to establish a national level Data Protection Authority (DPA). This authority would ensure that the guidelines would be avoided.

Position in other Countries

California

The state of California has passed a temporary three-year ban on the use of facial recognition software by law enforcement agencies.

The bench states that through these softwares, police forces not only gain access to our every move, but they also gain access to other private records like our finances, hospital records and our education. Finding information of this depth would previously require a search warrant and 6 months’ of investigation. Now such information can be gleaned over with the use of a software. 

It enables the police to consider every citizen as a perpetual suspect. Thus the government of California took the following steps in order to make sure the rights of these citizens are safeguarded. 

European Union General Data Protection Regulation

The EUGDPR is an extensive and exhaustive legal framework that aims to protect an individual’s personal data. It applies to corporations, regardless of their location, dealing with information of citizens of the EU.  It was enacted on May 25th, 2018 and it replaced the Protection Directive of 1995.

Principles 

It enumerates the following principles with regards to data collection, processing, storage, and use-

1. Personal data shall be processed keeping in mind the principles of transparency, lawfulness, and fairness. 
2. Personal data can only be collected for specified and legitimate reasons and purposes.
3. The processing of such data must be limited and proportionate to the reason for which it is collected and must be kept up to date.
4. The data must be stored in such a manner where the data can be only used for the reason it was processed, and nothing more  
5. The processing of such data must be secure.
6. The data controller shall be held responsible for any breach or misuse of information. 

Article 9

This Article prohibits the collection of biometric data e.g- fingerprints, retinal scans, and facial recognition data.

It also assures that citizens have the right to know about the process of collection and the details of the data controller. They also have the right to rectification of the data, the right to restrict the processing of data, the right to data portability, the right to restrict illegitimate collection of data and the right to erasure and to be forgotten.

It is stated that one does not have the right to collect biometric data except if collected under the following circumstances-

1. Explicit consent from the part it is being collected from.
2. The collection of such data is necessary to ensure the rights from whom the data is being collected. E.g- In the fields of employment and protection of society.
3. The processing relates to data that is manifestly made public by the data subject.
4. The processing is necessary to secure the substantial interests of the public. This is subjected to the fact that processing shall be proportionate to the purpose of collection and is in compliance with the principles of data collection.  

It must be kept in mind that prohibitions to biometric data collection are not limited to this list.  

Biometric Privacy Act in the United States of America

Many states of the US have laws regarding the collection of biometric data. For example, The Biometric Information Privacy Act is an Act passed in 2008 by the state of Illinois. It is a set of laws that make the collection, use, and storage of biometric data without the consent of the user by private entities illegal. Another example is the state of Texas, which has established and codified laws that handle the collection of biometric data. The state of Washington has also signed into law House Bill 1493 which sets requirements for businesses that collect and process data for commercial purposes.  

Cases on Facial Recognition Software 

Through Biometric Information Privacy Act (BIPA) litigations, people have already brought various suits against companies for collecting and using biometric data without the consent of the users. The following cases are with regards to photo scanners and facial recognition software. 

In Alejandro Monroy v. Shutterfly Inc. (2017), the court expanded the definition of biometric data to everything else which has not been expressly excluded from the ambit of the legislation. This includes facial mapping which is done by using images and fingerprints, and retina capture using images. This widens the scope for citizens who wish to protect their ‘Right to Privacy’ against facial recognition software. 

In In re Facebook Biometric Information Privacy Litigation (2019), it was held that Facebook’s use of facial recognition software to suggest tags on photos was violative of the guidelines under BIPA. Thus, it was a violation of the user’s privacy as they did not ask the consent of the user before scanning their face.

However, In Rivera v. Google Inc. (2019) It was held that Google Photos did not violate the BIPA guidelines when they scanned pictures to make face edits and templates. The court held that this is because the plaintiffs did not suffer any “financial, physical, or emotional harm apart from feeling offended”, so the court would not grant them relief. They also stated that there was no violation to the users right to privacy as the only parties that has access to the data was Google and the user. 

But while reading about this case one must keep in mind that Article III challenges may be raised at any time and the case is still going on. There are also cases that state ‘who is an aggrieved plaintiff’ that are still pending before the court. The court also failed to address many other litigation issues that may affect companies who collect biometric data. 

Conclusion

Facial Recognition Software- A Boon Or A Curse?

It would be naive for us to ignore the benefits of facial recognition software, despite the danger it poses to the ‘Right to Privacy’. It can ensure better security by identifying criminals and missing citizens and provide greater security to companies as it is a fast and secure tool to identify individuals who are allowed access to their information. It also provides a quick and secure source of identification for normal day to day use. It will also be naive of us to ignore that facial scanners and software have already made an impact on our day to day life. While its convenience may seem enticing at first, but it can lead to greater problems. Thus the question we should ask ourselves is how can we use such technology to our best advantage without causing a problem? The only solution is a better legal framework. 

Need For Legal Framework

When we talk about government surveillance and cooperation surveillance in general, we must talk about the great National Security Agency scandal which brought the discussion against protection against surveillance into the limelight. Edward Snowden, a previous employer of a company Booz Allen Hamilton who had a contract with NSA exposed that 2 powerful governments of the world were snooping into the phone records and user records of millions of users, including important stakeholders of other countries. It was also stated that major tech giants such as Apple and Google were unaware of this snooping. 

The reason I talk about this case is that it signifies how easy it is to be betrayed by corporations whom you trust with our information. Giant tech companies are investing more in the facial recognition software market. For example, Apple enables us to open our phones and our Paytm accounts with our faces. Companies like Amazon are also coming up with facial recognition software that can help law enforcers to identify suspects and missing people. Thus, it has become even more essential that the Parliament enacts laws that establish a solid legal framework when it comes to collecting and processing of facial recognition data. Without proper law and legislation in place, we can fall victim to extreme encroachments of our rights without any recourse. Experts on India’s cyber laws have warned us that it should not be the case that India wakes up after 5 years and then realizes that facial recognition software has seeped into common social concerns and placed its roots in it.

While facial recognition software has improved the quality of life in general. From small everyday chores such as monetary transaction by PayTm to matters of national security, such as aiding the Delhi Police to identify more than 3000 missing children in the span of a 4-day trial. We must remind ourselves that it is essential to strike a balance between technological advancement and privacy of our citizens.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Know Your Rights- Protection against Facial Recognition Software appeared first on iPleaders.

This article is written by Gulrukh Kaur Sidhu, pursuing a Certificate Course in Advanced Corporate Taxation from LawSikho.com. Here she discusses “Powers and Procedure for Income Tax Raids (Search and Investigation)”.

Introduction

Movies like Raid and Special 26 are fun to watch because the good guys are set to catch the bad guys. But the scenes so shown are nothing, but the last of the steps of the procedure laid down for the search and Seizure (aka Raid). This article will highlight the procedure to carry out a raid and also, the people (aka the Good Guys) who have the power to do the same.

‘Income Tax Raid’ basically means a search operation conducted by Income Tax officials if they have any or both of the 2 reasons, first, any strong evidence of any Undisclosed Asset in your possession; second anything suspicious about the asset that you own and that, they also have the power to seize any undisclosed asset. Section 132 of The Income Tax Act (IT Act) lays down the procedure and the authorities who can conduct Search and Seizure and, if the raid takes place, then the last 6 years unaccounted money will be calculated and tax @ 30% along with penalty of equal amount of 30% i.e. 60% or more with interest is collected forcefully.

People

Typically, in a raid, the following people are involved:

1. Principal Director General
2. Director General
3. Principal Director
4. Director
5. Principal Chief Commissioner
6. Chief Commissioner
7. Principal Commissioner or Commissioner and their subordinates

That is, these people have the power to carry out a raid in accordance with the provisions of the IT Act. Usually, it is the abovementioned 7 people who authorise a raid after summons are received under section 131 or 142 of the IT Act and if the authorities believe that an individual possesses undisclosed income. The best way to understand the situation is via the scenes in the movie Raid. The raid on the house of (Member of Parliament) Rameshwar Singh (Saurabh Shukla), better known as the Don of Sitagarh, is carried on the anonymous tip which is received by Ajay Devgn. This tip helps in fulfilling the 2nd condition i.e. reason to believe that there is undisclosed income.

The raid is usually conducted after it is verified that there is Credible information of tax evasion; for instance, any evasion coming out of reports prepared from the Intelligence Wing of the Income tax department, Information procured from assessment records of taxpayers, Information coming from government departments, Manipulation of books of accounts, vouchers, invoices, Information received with regard to spending being disproportionate to income of the taxpayer i.e. an instance of lavish spending without corresponding income to match the same, Unexplained cash credits, share transactions, Illegal investment in real estate, etc. During this time, the officer authorized to carry out the raid can Enter and search any building, place, etc. where he has a reason to suspect that the books of account, other documents, money, bullion, jewellery or other valuable article or thing representing undisclosed income are kept; and where the keys are unavailable, Break open the locks; Carry out personal search of a person who is suspected to have secreted some item; Seize the items, Placemarks of identification and take extracts or copies of the books of account and other documents; Make a note or inventory of the valuables found during the search. The items/assets that can be seized, if they are not accounted/disclosed in books are:

1. Jewellery 
2. Undeclared cash 
3. Bullion i.e Gold, Silver
4. Books of accounts, challan, diaries, etc.
5. Documents relating to a property, deed of conveyances 
6. Computer chips and other data storage devices 
7. Fixed deposits etc.
8. Locker keys

The items/assets that cannot be seized are:

1. Stock-in-trade (except cash) of a business
2. Jewellery provided in the wealth tax return
3. Assets or cash which is disclosed before the Income Tax and Wealth Tax Department
4. Cash which is duly explained
5. Assets declared in books of account
6. Gold up to 500 gm for each married lady and 250 gm for each unmarried woman and 100gm per male member

Procedure

The procedure for search and seizure aka Raid begins by issuing of notices under section 153A by the Deputy or Joint Commissioner of Income Tax for the last 6 assessment years from the date of search thereby requesting to file under section 153A within 15 to 45 days. The last 6 years are taken and the subsequent 7th year will become time barred u/s 147. The assessment of the same can be taken up separately u/s 147. For instance, a search takes place in the year December 2017. The years for the purpose of Sec 153A will be taken as AY 2012-17 i.e 6 years. The time barred year will be April 2018 as per AY 2011- 12. The notice issued requests for the following documents which can also be submitted along with the suo motto reply under section 153A:

• Financial statements like
  • The balance sheet as on Year end, (audited in case of Company),
  • Auditor report (in case of Company),
  • Profit and Loss Account for the year (audited in case of Company),
  • Notes of Account (in case of Company),
  • Director report is generally not required
  • Cash Flow can be given if applicable and if specifically asked,
• Computation of Income and Tax as per latest return u/s 153A. They may also ask for any changes made in Income in an Income tax return filed u/s 153A and/or its justification or supporting of it. 
• Income Tax Return (ITR) and its acknowledgement. Most of the time, it is also seen that both previous ITR and ITR u/s 153A are required. It is basically required by them so that they have printed hard copy though they have a soft copy with them.

During this time, the Assessing Officer (AO) may also ask information after issuing a notice under section 142(1). The notice is generally issued by the Central circle. The AO can also ask for:

Click Above

1. list of Assets

• List of Bank A/c; Bank Statements, Book and its reconciliation, Summary of opening, total debt, total credit and closing of the year;
• Ageing of debtors with opening, closing and transaction during the year;
• Reconciliation of Stock;
• Detail of Fixed asset, addition with source, Depreciation calculation as per IT and companies act.

2. Details of Liabilities

• Unsecured Loan – Loan Confirmation along with TDS Certificate
• Detail of Share capital along with an addition to Capital
• Detail of any advance received
• Creditors details with opening, closing and transaction during the year (Invoice wise breakup may be required)
• Detail of any other liability

3. Income details

• Detail of Sale with quantity/unit and value
• Rental Income agreement, a chart showing rent, TDS etc
• Detail of Miscellaneous income
• Sale of Shares/Fixed asset if any
• Copies of 26 AS and its reconciliation showing that all Income for which TDS is claimed 

4. Expenditure

• Details of major expenses claimed
• Detail of Purchase with quantity/unit and value

5. Any other information that he may deem fit, including

• CIB – Information from AO (Central) & its explanation

The explanation for the content of Hard Disk/ Pendrive (Mazerernama to be operated in presence of Director/ authorised representative i.e permitting Assessing officer to copy data of seized Pen Drive/ Hard disk to another Hard Disk. No one is authorised to use seized pen drive/ hard disk. Assessing officer can only work on copied data)

• Copies of any Assessment Order u/s 143(3)/147 [143(1) may be required]
• Business Activity of the entity and Individuals

While conducting the search, the jurisdiction of it, is not restricted to the companies mentioned in the panchnama only, and the AO can choose to add more companies, if evidence of other related companies’ involvement exists, after taking approval from higher authority i.e. the raid sanctioning authority. Under section 153A, even though a conjoined investigation is done, but the paperwork for the same is done separately for each company, whilst remembering that closing figure should match with the opening of next year. Even in the movie Raid, after the initial search and finding nothing, Ajay Devgn takes permission from the senior official to conduct a more thorough search because he comes in possession of the map of the house which reveals the location of the money in the house.

Residual Provisions

After discharging all liabilities if any assets or proceeds thereof left, then they are returned to the persons from whose custody such assets were seized; where the aggregate amount of money (either seized or realized through sale of seized assets) exceeds the aggregate of the amount required to meet the liabilities, the Government shall pay simple interest at the rate of ½% p.m. The interest becomes payable from the date immediately following the expiry of the period of 120 days from the date on which the last of the authorisations for the search was executed. In the case of wealth tax assessee, items found in excess of gross weight disclosed in the wealth tax return only can be seized. For other persons, exemptions to the tune of, gold jewellery to the extent of 500gms per married lady, 250 gms per unmarried lady and 100 gms per male member of the family are allowed and need not be seized.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Powers and Procedure for Income Tax Raids (Search and Investigation) appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

Most of the time we are balancing priorities. It seems like there are two ways to go and we must choose one. 

Should we take risk and aim for growth? Or should we play safe so we at least survive? 

Should we work hard and give up comfort or should we take it easy and enjoy life? 

Should we stay back in our current job and build on what credibility we have already earned so far or should we explore new jobs where we can get new opportunities and a fresh start?

Should I spend my time on business development, finding new clients, or should we spend that time with our existing clients deepening our relationship with them?

These are some of the harder questions about life and career. The way we answer them determines our destiny.

I have seen my mother struggle with this. At times, she imagined owning and running a side business, although she had a job as a school teacher. 

Her salary was small, and she wondered how would it be to do some business and make some more money. Maybe offer tuition classes. Or set up a yoga studio (she is a trained yoga teacher). She had the time, but when it came to the grind, she could not really jump into it. 

She did not have to quit her job to start a business. All she had to do was start small. Take baby steps.

Click Above

Rent a small place, start a part-time business. Find someone in the locality who would share some of the burdens. Maybe offer some classes on the terrace.

However, she never did. She said she didn’t have enough time. Or that she could not trust other people to delegate any tasks to them.

I saw that she spends more time arguing with the housemaids, and finding replacements when they left. She spent so much time inspecting how the utensils are clean enough or not or arguing with my father about how he drank too much tea. 

And I learned a lesson early in life – it is all about priorities. 

It is all about what I do with my time. I can spend it on things of little consequence, like whether the housemaid is ‘stealing’ some food from the kitchen, or whether someone else is parking a car on my backyard, or fighting petty battles on social media. 

Or I can spend my time on things that take me forward towards what I want, as long as I am playing a bigger game.

Priorities.

And baby steps in the directions we want to go when we can’t take big strides.

I get calls from friends who are fed up with their jobs in law firms and in-house legal departments, although earning 1 Cr or close every year, saying I can’t do this anymore, I want to start a business like you.

All I ask them is: can you start what you want to start without leaving your job? Just spend 1 hour a day? Hire some people from your considerable salary? See where it goes in the next 3 months?

Start your own practice? Great. Start by attending events, giving lectures, writing articles, building your network? Can you give one hour a day towards it? 

There is no point daydreaming. Take the steps you can take today. It is not all in or go home. If you can’t give 1 hr a day to a new side business for a year, and make the sacrifice to grow it, I refuse to believe that you will suddenly quit your well paying job someday and start the next big startup. 

Start where you are, start small, experiment. Do not wait for the day the world will be perfect and you will have sign for the universe to start something big. 

Want to become an extraordinary lawyer? No lighting is going to strike you and turn you into the Flash. Begin working on yourself, one hour per day, and learn new skills. 

We could help, at Lawsikho. Check out the courses in which we are taking enrollments:

DIPLOMA

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Intellectual Property, Media and Entertainment Laws

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Criminal Litigation & Trial Advocacy

Certificate Course in Real Estate Laws

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Certificate Course in Legal Practice Development and Management

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post From Daydreaming to Starting Small appeared first on iPleaders.

This article has been written by Vartika Jain and Shalini Mishra.

Introduction

There have been several inter-state river water disputes in India. Most of these disputes arise because of lack of adequate water resources for farmers in the states. The researcher looks into the constitutional and statutory provisions in India for dealing with such disputes. What makes such disputes complicated is the fact that water resources are under the State List, while the Parliament has the power to make laws regarding inter-state rivers under the Union List. The researcher also looks into the causes and proceedings of ongoing and resolved river water disputes in India. 

The Cauvery and Godavari water dispute have been considered for analyzing the ongoing and resolved water disputes respectively. The paper also looks at the various suggestions which have been provided:

a) for ensuring such inter-state river water disputes don’t arise in the first place, and

b) for effectively resolving such disputes.

The researcher studies the implications that such disputes have for Inter-State and Centre-State relations in India. Lastly, the researcher looks into how such disputes affect relations between the disputant states.

Constitutional and statutory provisions

The Constitution contains some provisions on water and related issues. Parliament has also adopted Legislation to settle transboundary river water disputes. Some of these provisions and legislation have been developed below.

A] Article 262 of the Indian Constitution

Article 262(1) provides that Parliament may adopt legislation for the settlement of disputes or complaints concerning the use, distribution or control of transboundary waters in a river or river valley. According to Article 262(2), Parliament may adopt a law which may impede the jurisdiction of the Supreme Court or of any other court in relation to the dispute/appeal referred to in Article 262 (1).

According to Rule 262(1), Parliament may “enact” a specific law. This shows that it is up to Parliament to pass such a law. Article 262(2) also states that ‘Parliament may legislate …’. For the purposes of Article 13(3) of the Constitution, the term “law” may therefore include law, order, law, regulation, regulation, notification or legal force in India. The topic of such a right could be a transnational river or river valley.

Article 262(2) begins with the phrase “despite this constitution …”. This means that other provisions of the Constitution that violate Article 262(2) are not applicable. For example, when examining Article 262(2), Article 131 does not apply, which provides for the primary jurisdiction of the Supreme Court in disputes between two or more States. If Parliament loses jurisdiction of the Supreme Court for cross-border river water disputes, it must do so through the mechanism referred to in Article 13(3), as the term “legal” is used.

If the Parliament has not enacted any legislation under Article 262(2), it may refer to the Supreme Court or higher court. The term “may” is used here, which means that the introduction of such a law depends on Parliament’s discretion. 

B] Entry 17 of Schedule II (List of Countries) of Schedule 7

Entry 17 of Schedule II (List of Countries) of Schedule 7 includes water sources, irrigation and canals, drainage and oak, reservoir and hydropower. The provisions for water supply, irrigation or hydropower apply to transnational rivers. Most cross-border disputes over rivers are related to these issues. Therefore, the government would have the right to adopt laws on these issues. However, this competence of the national government depends on the provisions of Article 56 of Schedule I.

List I (Union List), read in conjunction with Article 246(1) of the Constitution, entry 56 gives Parliament the right to adopt laws on the regulation and development of the river and valleys. Countries to the extent that these regulations and Parliament confirm that development is in the public interest. Entry 17 explicitly states that the provisions of point 56 of Annex I apply to such government power. 

Entry 17, which is contrary to the law adopted by Parliament under point 56 of Schedule I, would not prevail. Article 246 of the Constitution is also important in this debate. ” 246(1) uses the words “Regardless of what is in paragraphs 2 and 3”. This means that, notwithstanding the provisions of Article 246(2) and (3), Parliament has the exclusive right to authorize the subjects listed in List I in legislation. the words “points 1 and 2” and state that the government has the exclusive right to legislate on the subjects listed in List II, taking into account paragraphs 1 and 2).

Thus, while water resources are a national responsibility, Parliament has considerable legislative powers in this area. These powers of Parliament are important enough to be able to prevent any legislation adopted by those countries that is in conflict with their parliamentary provisions.

C] Articles 131 and 136 of the Indian Constitution

There have been cases where countries have used Articles 131 and 136 of the Constitution in cross-border river basin disputes. For example, Tamil Nadu filed a preliminary complaint in 2001 of Article 131, in which it stated that interim measures were not effectively regulated. The States of Karnataka, Tamil Nadu and Kerala, disturbed by the decision of the Cauvery Water Dispute Tribunal in 2007, have applied for a special permit pursuant to Article 136. The Supreme Court accepts them.

D] Inter-State River Water Disputes Act, 1956

The 1956 Law on Water Disputes was adopted pursuant to Article 262 of the Constitution. The center plays a very important role in the law. Article 4(1) of the Act, which is empowered to establish a water court to challenge water law on the basis of a county government. 

Pursuant to Article 5(2) of the Act, the Civil Service Tribunal shall, within three years, send a report to the central government containing the facts and the decision thereon. The decision of the court is published by the central government in the official gazette. After publication in the Official Journal of the European Union, the decision has the same value as the order or order of the Supreme Court.

Thus, the central government can deal with the Commission, which is obliged to execute court orders. The government can make judgments. The Center can dissolve the tribunal. Sec. 11 excludes the jurisdiction of the Supreme Court and other courts pursuant to law.

This law does not exclude the central government, but interferes with various aspects of the court. The arbitral tribunal shall submit its report to the central government and shall therefore have jurisdiction. In the resolution of disputes concerning river water, the central government is in the hierarchy of the respective state governments and their dependent court.

E] River Boards Act, 1956

Although the Rivers Act was passed in 1956, no river basin was formed under this Act. However, it is important to study this law in order to analyze the role of the Center in the dispute between rivers between states, as set out in this Act.

According to Section 2 of the Act, the Center should control the development and development of transnational rivers and river valleys. At the request of a regional government, the Center may establish a river council. The term used herein is “may”, which means that the flow rate depends on the discretion of the central government. The Agency may prepare, amend or reject river or river development projects between countries.

By law, the central government gives the Council the power to perform its tasks. The term used here is “as deemed necessary by the central government”, which means that the amount paid to the Board of Directors clearly depends on the discretion of the central government, which is an annual report to the central government and the governments of the countries concerned.

This shows that the Council is responsible for its actions towards the central government. The central government has the opportunity to develop rules for achieving the goals of the law. It therefore appears that the termination of the Board of Directors seems necessary “if the central government agrees”.

While the main actors in the dispute are the respective national governments, how the conflict with the central government takes place is up. The mechanisms established for the adjudication of such disputes are accountable to the Central government and owe their very existence to the Central government. Thus, to say that water and Inter-State water disputes falls within the domain of State governments due to its presence in the State List is a fallacy. The Central government plays an equally, if not more important role in inter-state river water disputes.

Ongoing and resolved water disputes in India

According to the Ministry of Water Resources, River Development and Territorial Rejuvenation, eight courts have been established under the ISRWD Act for the management of river waters. In addition, 114 intergovernmental agreements have been concluded to resolve water disputes. Some permanent and resolved river basin conflicts are discussed below.

Cauvery Dispute

The Cauvery is an indigenous Karnataka. It passes through Tamil Nadu and Pondicherry before the Bengal Gulf flows. In both countries, food production and livelihoods depend on the water in the Cauvery River. Tamil Nadu believes he is in need in the years of mercy in Karnataka, while he cannot release Tamil Nadu while water is not available to his peasants.

An agreement was reached between the Madras Presidency and the Principality of Mysore which ended in 1974. Between 1968 and 1990, 21 trilateral meetings were held with the ministers of Karnataka and Tamil Nadu and with the Union Ministers for Irrigation. Between 1972 and 1976, the Indian government played a mediating role, but no agreement was reached.

At the request of Tamil Nadu, the central government established the Cauvery Water Dispute Tribunal in June 1990. In 1991, the court issued a preliminary injunction ordering Karnataka to provide Tamil Nadu with one ton of cubic feet of water. Karnataka, who was dissatisfied with the temporary prize, received in 1991, in this scenario, the central government sent the case to the Supreme Court.

The Supreme Court in Re Cauvery Water Disputes Tribunal v. Respondent, declared the order of Karnataka must be ultra vires. There were protests in Karnataka where five people died. In 1998, the central government set up a monitoring committee under the Cauvery River Authority (CRA) and the ISRWD. The rating agency has ordered Karnataka to release 9,000 aquatic animals in Tamil Nadu. Karnataka and Tamil Nadu were satisfied with this order and Karnataka refused to implement this arrangement.

In 2007, CWDT received its final prize. The two agreements between Madrid and Mysore on water supply in Tamil Nadu between 1892 and 1924 were valid.

The main problems of Tamil Nadu were as follows:

(i) It wanted this final arrangement to be published in the Official Journal.

(ii) It wanted to create a Cauvery Management Board. This was finally done in 2013.

The case reached its peak in September 2016, when the Supreme Court asked the Karnataka government to release 15,000 water bodies in Tamil Nadu over the next 10 days. Karnataka applied court rulings on state protests. One person died and four were injured against the police. Tamil companies were attacked by the masses. Traffic on the Bengaluru-Mysore highway was paralyzed by violence. 

At the same time, at the request of the Attorney General, the Supreme Court set up a technical team to visit the Cauvery Basin to assess the site’s reality. The team reported to the Supreme Court in October 2016. The government of Karnataka was directed to release 2000 cu-secs of water. Hearings in this matter are still going on.

The Cauvery conflict has led to tense relations between Tamil Nadu and Karnataka. This was exacerbated by the violence and disorder that accompanied the conflict. The central government played a mediating role in the negotiations between the two countries. He established an arbitration panel and the technical team was also formed on the basis of the central government’s opinion. In addition, the Cauvery River Authority (CRA) oversaw the prime minister’s activities. Thus, the central government played the role of negotiator in a dispute between the two countries.

Conclusion

Transnational disputes over rivers have always been a source of political imbalance. These disputes include elements of national pride and prestige. National conflicts with water are also an important issue for politicians in elections. Politicians and governments have always promised to get the best possible offer for their country and people. This shows the important role that such disputes play in the political and federal system of India. Water and water supplies were mentioned in the Constitution as a national issue. List 56 of List I empowers the Center to regulate and develop rivers and valleys between countries.

Article 262 also gives Parliament the right to regulate intergovernmental dispute resolution in river waters, as well as the right to prohibit the Supreme Court and other courts from deciding on such matters. At first glance, however, national governments seem to be able to resolve cross-border disputes with water. A closer overview shows that the central government has actually invested in powers. The central government issued the 1956 ISRWD Act under Article 262. This means that states cannot set their own water dispute resolution laws and rely on ISRWD to resolve such disputes. The ISRWD Act gives the central government the right to resolve such disputes through the formation of courts, while states are only litigation. Thus, the central government has the real power to resolve cross-border disputes over water. Article 11 of the ISRWD Act excludes the jurisdiction of the Supreme Court.

The project also dealt with the disputes in Cauvery and Godavari. Cauvery dispute is pending when Godavari dispute is resolved. The Center has played a mediating role in these conflicts. These included the establishment of courts at the request of states, the convening of the same meeting, and the search for an agreement between them. In such disputes, the center is a negotiator with the countries at the top of the hierarchy.

Of course, such disputes have further deepened relations between countries. Transnational disputes have often shown the pride and prestige of the States Parties. Politicians, on the other hand, have brought the fire to political advantage. The Cauvery conflict has even become violent, with physical attacks on members of another. This development is not good for India.

In its report, the Sarkaria Commission has dealt with disputes between rivers. Some of its recommendations are included in the ISRWD Act. Proposals for creating a database, establishing a court within a year at the request of a state, and a recommendation for a court judgment is the same as that of the Supreme Court. Other proposals, such as the establishment of a court of its own motion and the enforcement of a court conviction over five years, although desirable, were not investigated. The law amending the 2017 ISRWD Act provides for the establishment of one permanent court.

The project also looked at the feasibility of connecting rivers, a proposal to eliminate water scarcity and thus avoid water conflicts between countries. However, such a project would bring huge capital and energy needs and would have disastrous consequences for the environment. It is therefore best to stay away from this practice.

The dispute over Godavari Falls has shown that negotiating between countries is often the best way to resolve water disputes. In both cases, intergovernmental agreements came into force decades ago. Nonetheless, the Contracting States follow this and there is no new dispute in this respect. On the other hand, cross-border disputes between courts on water have been solved for centuries without real development. When the Civil Service Tribunal announces its sentence, States Parties often refuse to enforce the sentence. This was observed in the Cauvery dispute. For example, negotiations between States Parties are the best way to bring about a quick and sustainable end to river basin disputes.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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The article has been written by Ayush Verma, a 2nd-year student at RMLNLU, Lucknow. The article discusses the essentials of a lock-out agreement, its advantages and disadvantages and how to make such agreements work.

Introduction

A lock-out agreement (sometimes called an exclusivity agreement) is a fundamentally negative agreement wherein the seller is required not to negotiate with the third parties during the lockout period. A seller can only deal with the buyer during such period. The dealings can be in terms of supply of goods, services, etc. However, such an agreement doesn’t guarantee that a sale contract will be entered into.

The agreement provides the buyer with a fixed period of exclusivity which gives the buyer an opportunity to carry out searches, surveys, and investigations before purchasing the property. A property which is the subject of the sale shall also be removed from the market, for the period specified in the agreement. It ensures that the seller does not enter into an agreement with any other person which may cause loss to the buyer.

Essentials

Seller’s Obligations

A sale is not completed when a seller enters into a lock-out agreement with the buyer. After entering into a lock-out agreement, neither the seller is committed to the sale nor the buyer is committed to the purchase. The seller just promises the buyer:

1. To not enter into any agreement or negotiations with the third party;
2. Restricting the third party from viewing the property (by taking off the property from the market);
3. Not to enter into any contractual obligations with the other parties in regards to that property.

The agreement is entered into for a shorter period of time. Otherwise, it may be disadvantageous to the seller; for example, where a third party is offering a higher amount for a property to the seller, the seller might want to accept that offer but he cannot, as he has already made an agreement with the buyer regarding that property. So, the restrictions should be for a shorter period of time.

The purpose of a lock-out agreement is to provide the buyer time to carry out its initial due diligence regarding the property while the parties are agreeing to more detailed terms or the relevant legal documents. Therefore, the seller needs to think about certain specific arrangements that he wants to be put in the lock-out agreement and which needs to be omitted from the arrangements.

The seller may also ask for a non-returnable deposit to the buyer as the consideration for the lock-out agreement. This would help the seller to get some returns for taking his property off the market as per the terms of the agreement. And, it might also incentivize the buyer to proceed with the sale.

Definite Time-period

The time period for which the obligations of the lock-out agreement shall apply must be clearly defined and the period must be fixed, like – two months. The agreement shall specify:

1. When does it start?
2. When does it finish?

A seller would want the time period to be as short as possible so that he can deal with the third party after the agreement ends. However, a buyer would want the opposite as he wants more time to carry out the due diligence.

Confidentiality

A term of confidentiality is important for lock-out agreements which may include termination. When a party enters into a business relationship, it may obtain and have access to highly confidential information and other sensitive information that may be helpful to the competitors. Therefore, there should be a well-drafted agreement incorporating both the immediate and future needs of all the parties involved, in order to maximize business synergy.  A confidentiality provision is required because, if the sale is not completed, the seller does not want the market to get a wrong impression as to the value of the property.

Change of heart

If a party loses its interest in the transaction, the other party would never want to be locked into a pre-contract agreement in order to save time and cost. So, lock-out agreements often include a clause asking both parties to notify each other if, during the lock-out period, they choose not to proceed.

Good faith Agreement

A lock-out agreement may include a clause where both parties agree to act in utmost good faith towards each other, in relation to the agreement and the transaction. An act of good faith means that:

• The parties will be observing reasonable commercial standards of fair dealing;
• Being faithful to each other for the purposes of the agreement; and
• Acting consistently with the reasonable expectations of the other party.

A clause is more likely to be enforceable if it is more detailed and clear, so both parties need to specify what they expect from the other party to progress the transaction.

Buyer’s Obligations

There are certain obligations that buyers have to abide by. These obligations may be imposed by the seller. The buyer needs to carry out its due diligence (for example, submit searches, carry out environmental investigations and measured surveys) within the time specified in the agreement. It may be suitable to specify in the agreement that if the specified time limits are not met, the seller shall have the right to determine the conditions of the agreement.

The buyer or its solicitors need to comment quickly on the draft documents submitted and raise 

preliminary queries regarding the information supplied to them, and carry out the due diligence properly.

If the seller is carrying out environmental or survey tests, the seller can ask the buyer to produce copies at the completion of the lock-out period, if the buyer decides not to continue with the transaction, although these will not be particularly directed to the seller. The copies may include useful background information (in specific circumstances, a seller might insist that the reports must be directed to the seller as well as the proposed buyer).

Other types of Seller’s obligations

The seller may agree that his solicitors will dispatch the draft documents within a specified time period, to quickly deal with the proposed amendments in the documentation by the buyer and to make reasonable efforts to answer the preliminary queries raised by the buyer. If the seller has committed to allow the buyer to carry out surveys, the seller needs to ensure that the consent of the occupational tenant is obtained, if necessary, and also allow the proposed investigations (for e.g. – the seller might want to be informed about where the boreholes may be sunk; allow the proposed reinstatement works and look over buyer’s public liability insurance).

Liability of Breach

There is a possibility that a buyer may not proceed with the sale. If the seller gets convinced during the lock-out period about such happening, he may want to proceed with another offer immediately, in order to complete his sale. This would lead to the seller breaching the lock-out agreement. So, let’s discuss the potential liabilities that may arise from such breach:

• Firstly, a buyer may obtain an injunction to restrict the seller from contracting with another interested party. However, the courts have emphasised on various occasions that an injunction should be granted for a short period (reflecting the nature of the lock-out agreement itself). An injunction would stop the seller from negotiating with another party during the lock-out period but would still not commit the seller to any succeeding transaction with the original buyer.
• Secondly, a buyer shall be entitled to get damages for the breach. Typically, the Courts have always emphasised on the buyer’s wasted costs while deciding the damages. However, there is an argument that the damages should be further restricted. A transaction may not have completed even if the lock-out agreement is not breached and the buyer would have suffered losses. Therefore, it can be said that the damages should be limited to the additional wasted costs which were caused to the buyer by the seller’s breach.

A buyer may also ask the seller to pay a non-refundable deposit if the transaction is not completed. It can also be used to pay off buyer’s wasted expenditure and would also act as a warning to the seller to not sell the site elsewhere. Nevertheless, it will depend on the negotiating position of both the parties but it will be difficult to foresee that other sellers will also want themselves to be put in such a situation.

Withdrawal

A seller cannot be said to be bound by the terms of the sale, therefore, it is plausible to use a mechanism whereby the seller can end any positive obligations, if the negotiations have broken down or where the seller decides not to proceed.

Such a mechanism would involve serving the ‘withdrawal notice’ to the buyer upon receipt of which such obligations would directly terminate. However, negative obligations on the part of the seller (not negotiating with other parties etc.) would remain alive until the exclusivity period lasts.

Contrastly, in many cases, a withdrawal notice from the buyer will logically operate to bring the exclusivity period to an end instantly upon receipt by the seller.

Recovery of the buyer’s costs

In the lock-out agreement, the seller is liable to pay the costs to the buyer, if the buyer serves a written notice (during the lock-out period) confirming that he is ready, willing and able to exchange contracts. It the seller then fails or refuses to do the exchange, he shall pay to the buyer, an amount which may be equal to the total costs, fees and expenses incurred by the buyer during the lock-out period. This may or may not be subject to a cap. Since an exclusivity or a lock-out agreement is intended to protect the buyer from having incurred substantial costs while getting ready for the completion of the sale, and at the last moment if he losses property because the seller decides to proceed with someone else, payment of damages by the seller is to be regarded as a suitable alternative.

Advantages of a lock-out agreement

• A lock-out agreement can help in achieving financial security as it provides a stable stream of revenue. This revenue stream can further help in expanding the company once the exclusivity period expires.
• It provides a better business focus. It can help a company focus on the long-term goals as the distributive issues and other logistical issues are dealt with, by the provider.
• It also helps in networking as such agreements give you access to the provider’s network of business owners. It also helps in establishing a stronger business and personal bond with the parties involved that could persist beyond the term of the contract itself.

Disadvantages of a lock-out agreement

• A lock-out agreement may hamper the creativity and flexibility in the business.
• Violating a lock-out agreement can bring fines and penalties, as a result of which parties might miss more advantageous business opportunities.

How to make such agreements work?

• The most important thing for the parties is to agree to both the principles and the terms of an agreement before agreeing to the sale of the property i.e. it should be included as one of the terms of the sale and preferably, a draft of the agreement should have been viewed and accepted by the parties beforehand.
• It is also important to distinguish those cases where using an exclusivity agreement may be inappropriate. This will be where one or other party is not committing to exchange within the definite time period.
• Lawyers of both parties should be familiar and passionate about the use of an exclusivity agreement. Some lawyers think that such agreements are not a good thing and the time spent on putting such agreement in place should be utilized in trying to achieve unconditional exchange of contracts.
• The agreement should be promptly exchanged and a date by which exchange must be completed should be fixed as a term of the property’s sale.
• It is also recommended that, in every case, the seller’s title to the property be provided to the buyer’s lawyer before the exclusivity agreement is exchanged. Now, that title to 90% of the properties being registered, it is easy to identify the major defects in the title. It also helps to check that the owners of the property and the seller are the same.
• It is also recommended that, if possible, the buyer should get the survey done before exchanging of the agreement. It is beneficial for both parties because it indicates that the other important reason why a buyer may wish to withdraw from an exclusivity agreement will have been dealt with. However, it is not easy to achieve because surveys can take time to arrange which will delay the timeframe for getting the agreement in place.

Conclusion

A lock-out agreement aims to secure a pre-contract ‘lock-out’ period for a buyer to enable him to carry out searches, surveys and investigations before proceeding with the sale. However, the agreement doesn’t bind the parties to proceed with the sale. A lock-out agreement should be entered into for a shorter period of time so that the ‘lock-out’ period doesn’t harm the seller. Its terms should be definite and straight-forward in order to avoid any confusion.

References

• https://www.traverssmith.com/knowledge/knowledge-container/lock-out-agreements-a-users-guide/
• https://shepwedd.com/knowledge/price-exclusivity-lock-out-agreements-examined
• https://www.upcounsel.com/exclusivity-clause
• https://www.lexisnexis.co.uk/blog/built-environment/lock-out-agreements-exclusivity-6-key-drafting-points

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Essentials of a Lock-Out Agreement appeared first on iPleaders.

This article is written by Aniket Tiwari, a first-year student pursuing B.A. LL.B. from Law School, BHU. In this, there is a detailed explanation of Section 304A of the Indian Penal Code which talks about “Death by Negligence”. 

Introduction

Whenever, I go through any newspaper they majorly cover the news on various topics. One of them is related to the murder of any person. In this article, we will cover the death of a person due to someone’s negligence.

Whenever, I heard some sophisticated terms like murder, death, homicide, culpable homicide, etc I am often confused about the difference between these terms. Recently I got a chance to clear all my doubts related to this by meeting my Uncle. He told me that under IPC all these terms are defined and all of them are somehow different from each other.

The term culpable homicide is discussed in Section 299 of the Indian Penal Code. According to this section, a person commits the offense of culpable homicide if he/she does an act with the intent of causing the death of another person, or with the intent to cause such bodily injury that it is likely to cause death, or with the knowledge that he/she is likely to cause death by doing such acts.

Section 300 of IPC has discussed the term murder and the different aspects related to murder are also mentioned here. According to this, every culpable homicide is murder but the same does not apply vice- versa. The main difference between culpable homicide and murder is the difference in the degree of the offense not the form of offense. Basically they differ in gravity or intensity. The intensity of murder is quite higher than the intensity of culpable homicide.

The difference between murder and culpable homicide can be further explained through certain examples. Let’s take a situation where a person’s head was struck by a baseball bat then there is very little possibility that he/she may survive after that head injury. Here there are still some chances for the survival of that person. In this case, if the persons die than the other person who had hit him/her would be liable for culpable homicide.

Let’s take another example where a person is shot by a gun in his forehead. Here there are no chances that this person will survive from this blow on his head. It is an example of murder. From both of these examples, we can clearly distinguish the terms culpable homicide and murder.   

Culpable homicide is further divided into two categories:

• Culpable homicide amounting to murder: It can be simply called as murder.
• Culpable homicide not amounting to murder: There is knowledge or criminal intention in both cases. The only difference which amounts to causing the culpable homicide amounting to murder is the degree of the criminality of the act. In IPC it has been termed as culpable homicide.

This concept of culpable homicide not amounting to murder is further discussed in Section 304 of the Indian Penal Code. Here in this article, we will discuss the concept of one part of culpable homicide. Section 304A of the Indian Penal Code talks about the death caused by the negligence. This Section was not there in the Indian Penal Code in 1860 but was inserted later in the year 1870. It does not make any new offense but covers the offense which falls outside the Sections 299 and Sections 300. Here there is no intention or knowledge to cause death. 

Let us understand the difference between culpable homicide and death by negligence (Section 304A of IPC) through examples. For instance where a person drives a car in a street that is crowded with a speed of 90 km/hr. Here he has the knowledge/ intention that if he hit any person with that car then that person would die. It is a case of culpable homicide as there intention/ knowledge of the crime is involved. Let’s take another instance where a mother of a child leaves the child in a street in such a way that the child was visible to the audience coming in the street. Here the motive of the woman is that her child could be taken by someone by seeing it. But if the child kept there dies due to starvation then its mother would be liable for causing death by negligence. It is because in the second case there is no intention to kill someone.

Rash or Negligent act

Section 304A of the Indian Penal Code talks about causing death by negligence or rash act. This Section mentions that if a person causes the death of another person by doing a negligent or rash act which does not amount to culpable homicide shall be punished with imprisonment for a term of a maximum of two years, or with fine, or with both. For understanding the whole concept given in Section 304A we need to understand the term negligent act. It became important to have proper knowledge regarding this term. In the legal field ‘ negligence’ can be defined as an act or omission that causes damages to the property of another person. Here in this Section of the Indian Penal Code the term rash or negligent act can be defined as an act that is the immediate cause of death. There is a difference between these terms( rash and negligent) also. By ‘rash act’ we mean any act which is done restlessly. By the term ‘negligent act’ we mean a breach of duty due to omission to do something, which a reasonable man will do.

There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:

• Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.  
• Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff. 
• The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her. 
• Damages:  At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant’s act.

 To apply Section 304A it becomes very important to show that there is no intention on the part of the defendant to commit a crime. For understanding the ‘rash act’ one should understand that it is an act which is done hastily and is opposed to any intentional act. A rash act is done without any deliberation or with caution. It depends on the level/degree of recklessness.

Cherubin Gregory v. State of Bihar, 1964

The definition of the rash or negligent act can be understood by the famous case of Cherubin Gregory v. State of Bihar. In this case, the Supreme Court stated the difference between the rash or negligent act. Here, in this case, the appellant was charged under Section 304A of IPC for causing the death of a woman who stayed near the house of the appellant. Here the deceased was using the latrine/ toilet of the accused for about a week. The accused gave the oral warnings related to it to the deceased but the deceased continue to use the latrine of the accused.  As he (accused) finds his oral warnings to be insufficient so he put a naked copper wire carrying electricity on the passage leading to the latrine. On the day of the occurrence of the incident, the woman went to the latrine of the appellant and there she touched the fixed wire and she died because of this. There were several issues raised in this case. Here the Court held that the mere fact that the person entering is a trespasser does not entitle the owner of the land to inflict personal injury upon the trespasser. The same principle also applies to the fact that the owner inflicted the injury by indirect ways of doing something. The owner should know that it may cause a serious injury to the trespasser.

Here the Apex Court also held that in this case, the appellant would be liable for his rash act (as the act was considered to be reckless) and the accused was held liable under Section 304A of the Indian Penal Code.

Absence of Intentional Violence

As mentioned earlier that the Section 304A of the Indian Penal Code applies in cases where there is nothing to do with the intention of a person to cause the death of another person. Here there is no role of knowledge of the person that if the act is committed it will lead to the death of a person. The elements under Section 304A makes death by negligence outside the range of Sections 299 and Sections 300 of IPC. It can be clearly understand that the two basic elements of Section 304A are negligence and rashness. This Section allows the criminality of a matter in spite of the absence of mens rea. It is important to remember that in such cases there can be no motive or intention of a person still due to his/ her negligence or rashness the person may cause the death of another person.

Let’s take another example to understand the concept that the intention of a person does not matter under Section 304A of the IPC. For instance, if a building is built by a corporation that is busy in the business of construction. After all the inspection this building gets the Building Use certificate and all the safety measures related to electricity and fire were taken by the Corporation. Here if any fire breaks out due to an electrical short circuit. And due to this, the people living in that building starts to jump outside the building in order to save their lives and there is negligence on the part of the corporation. Here if any person dies after falling from the building then the corporation would be liable for its negligent act under Section 304A of IPC although there is no intention or knowledge on the part of the corporation about the same.        

Sarabjeet Singh And Ors. v. State of Uttar Pradesh, 1983

In the very famous case of Sarabjeet Singh And Ors. v. State of Uttar Pradesh, the intention of a person during the commission of a crime was questioned. Here the major question raised by the counsel of the accused was related to the intention of the person during committing a death of a person. In this case, the Appellant Sarabjeet Singh and 17 other peoples were put on a trial for having committed the crime of murder of infant Radhey Shyam. Here the accused (Sarabjeet Singh) lifted the child and thrown him on the ground and later it was founded that this resulted in the death of the child. It was found that there was no intention on the part of the accused towards the infant. It was also found that Sarabjeet has no grievances towards Radhey Shyam and therefore it was held that there is a lack of intention in this case. Now the next question which was put forward was about the knowledge of the wrong. Here, in this case, the accused may not have intended to kill the infant but he had all the knowledge that if the child is thrown from such height then the child will die ultimately. So the Court held the accused liable under Section 299 as all the conditions under this section get fulfilled. Now the counsel from the appellant side argued that this is the case of death by negligence and must come under Section 304A of the IPC. He argued that this is because this case includes the rash act of the appellant but as there is knowledge about the crime on the part of the accused so the court held that this case can’t come under Section 304A of IPC rather it will be covered by the second part of Section 304( it talks about knowledge of the person during committing any crime).

Death must be the Direct Result

Section 304A talks about a situation where the death of a person must be the direct result/ consequence of the act of the defendant. Here it is important to remember one point that whether the alleged act of the defendant is the direct result of the rashness or the negligence of the defendant. Here the act of the defendant must become the ultimate reason for the death without any intervention from another person. For instance take an example where the School Administration failed to take care of the safety of the students as they (administrators) allowed the use of a defective bus to take the students to their houses. Here if any accident will happen then the liability of the School Administration will depend on the fact that whether the accident was the direct result of the negligent act of the administration or not.

Here the principle of causa causans will apply. This principle talks about the immediate cause of any act. It may be defined as the last link in the chain of the action of causing something. It talks about the action of the person must bring immediate cause and no remote causes of such action would be relevant in the context where this principle applied. Here it is difficult to determine what is the immediate cause and what is the remote cause of action. It can be determined on the basis of reasonability of the prudent person. The immediate cause of action includes the act which a prudent man can see.

To impose the liability under Section 304A of the Indian Penal Code it is necessary to apply the principle of causa causans and see whether the death of a person is caused by the negligent act or rash act of the defendant.

Suleman Rehiman Mulani & Anr v. the State of Maharashtra, 1968

In the case of Suleman Rehiman Mulani & Anr v. the State of Maharashtra, the Supreme also applied the same concept which is already discussed above. In this the appellant was driving a jeep and he has learners license to drive the same and no one was sitting with him who has a proper driving license. Here the appellant on his way struck a person named Bapu Babaji Bhiwarkar by his jeep. In order to protect the injured person he put him inside the jeep and went to a doctor who refused to give medical aid to an injured person and the doctor directed them to go Medical Dispensary and the appellant instead of going their went somewhere else as a result injured person died. Here appellant was found negligent as he doesn’t have proper documents related to driving a jeep. But the major question which was put before the court was whether the death of the person was caused due to the direct consequence of the appellant negligent act. The Supreme Court held that the death of the person does not the amount due to the direct consequence of the appellant therefore he can not be liable under Section 304A of the IPC. The Apex Court does not find any evidence which shows that the negligent or rash act of the appellant was the proximate cause of damage.  

However, in this case, the appellant was held liable according to the provisions of the Motor Vehicles Act,1988.

Ambalal D. Bhatt v. State of Gujarat, 1972

In the very famous case of Ambalal D. Bhatt v. State of Gujarat the Supreme Court again explained the concept that a person is liable under Section 304A of the Indian Penal Code only if the principle of causa causans is fulfilled. Here this case is about medical negligence. Here the appellant who was Chemist Incharge in a chemical industry along with five other members were charged under Section 304A of the IPC. They were found to be negligent in manufacturing the solution of glucose which was later consumed by the patients of different hospitals and 13 patients died by the injection of the solution. It was found that the solution contains more lead nitrate than what was permitted. Here the Prabhakaran was the Chief Analyst of the Testing Laboratory. He was found negligent in his part as he did not prepare the solution according to the Drug Control Act. Here the Supreme Court held that the appellant ( Prabhakaran) can not be liable alone. The court further stated that the appellant was not only negligent, here it was also the duty of several other persons to maintain the quality of the solution. Under the principle of the causa causans there is the causal chain that consists of many links(acts), it talks about the act which ultimately contributes to the consequence. Here the action of the appellant was found to be the only one of the causes of all causes. In other words, it can be explained that the appellant action was one of the causes of death and it was found to be insufficient to be the ultimate cause of the death of the 13 persons.

Difference between Rashness and Negligence

The two most frequently used terms while applying Section 304A of the Indian Penal Code are rashness and negligence. There are several judgements of the Supreme Court which talk about the difference between these two terms. For a  layman, these two terms may appear to be the same but there is a huge difference between the meanings of both these terms. Coming to the technicalities, by negligence we understand a state of mind of no foresees of the consequence of the act of a person. However, by term rash act we understand a state of mind that can foresee the consequence of the act but still ignored it. Both can not be present in a person simultaneously. Let’s take an example to illustrate the difference between these two terms. When a person throws a stone from the third floor without thinking whether there may be someone on the ground. Here the person is negligent in his act. Let’s take another instance where a person throws the stone by thinking about the fact that his act can cause injury to someone. Here the person will be liable for his rash act.

Bhalachandra Waman Pathe v. State of Maharashtra, 1968

In the case of Bhalachandra Waman Pathe v. State of Maharashtra, the appellant was charged under Section 304A of the Indian Penal Code for causing the death of a 21-year woman by driving his car rashly and negligently in the road. In this case, the appellant questioned his conviction which was brought out by the High Court through the suo moto proceedings. Here the Court tried to establish the difference between rash and negligent act. According to this case, there were two sisters who were crossing the road through the pedestrian crossings (in order to go to a beach) knocked down by a car of the appellant. As a result, the elder sister died due to a development of hemorrhage. The question that was asked by the Court was regarding the rash and negligent driving of the car by the appellant. Here, the High Court found that there was definitely negligence on the part of the appellant as his conduct was not as reasonable or prudent man would have. It was found that the appellant failed to discharge the duty imposed by law on him. Here the duty was imposed to take care of the pedestrian in pedestrian crossings. However, the appellant was not found to drive his car rashly. It is because of the fact that the prescribed limit of the speed of that in the street was found to be 35 km/hr and here, in this case, the car was found to be driven within the speed prescribed by law. Also, the time at which accident took place was in the morning and as a result, the driver does not need to take extra care regarding the speed of the car.

Rash and Negligent Act in Driving Along a Public Highway

Section 304A of the Indian Penal Code is applicable in the cases related to the rash and negligent act in driving any vehicle along a public highway. Due to this negligent and rash act of one person the other person suffers. Here the death of a person will result in the legal proceedings against the defendant. Here all the elements of Section 304A need to be checked. According to this Section, the person who is driving the vehicle must be either negligent or does the act rashly. The person must not have any intention or knowledge related to the fact that this act of his/ her will lead to the death of any person. And at last, there must be the death of a person due to this rash/ negligent act of the defendant. In these cases the principle of Res Ipsa Loquitur is also applied.

Duli Chand v. Delhi Administration, 1975

The famous case of Duli Chand v. Delhi Administration is a classic example of doing a negligent act in driving along a public highway. In this case, the appellant (driving a bus) struck the deceased person who was coming/riding a bicycle. Here it was questioned that the speed of the bus was excessive which resulted in the death of the other person because of the negligent and rash act of the appellant. However, the Supreme Court found that there was negligence on the part of appellant because the appellant did not look at his right even though he was approaching a crossroad and failed to notice the deceased who was coming from his right was crossing the road. The Supreme Court thus held that the driver of the bus is grossly negligent but the act of the driver was not found to be rash. It was because during the time of the accident, the speed of the bus was found to be 20 miles per hour which can not be considered as an excessive speed in any of the Public Highway and thus the act of driver was not rash. Therefore the Supreme Court held the appellant liable for his breach of duty.

Mohammed Aynuddin@Miyam v. State of Andhra Pradesh, 2000

The case of Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh is another example where driving in a rashly or negligently manner was questioned. In this case, the appellant appealed against previous decision to the Supreme Court of India. The major question, in this case, was whether the driver of the bus was really negligent in driving? Here the driver was driving a bus of the Andhra Pradesh Road Corporation. A passenger named Agamma boarded the bus and she fell down from the bus as the bus moved forward. And as the rear wheel of the bus ran over her the women suffered from many injuries and due to these injuries, she died ultimately. According to a witness as the woman fell down the bus stopped after traveling some distance as the appellant heard the voice to stop the bus.

Here, in this case, the various elements of Section 304A of the Indian Penal Code were again cross-checked. Here the Supreme Court held that it is wrong to presume the negligence on the part of the driver in any motor accident negligence. It was further held that in an accident like this, it becomes important for the driver to prove that he/she is not negligent. The Supreme Court also talked about the principle of Res Ipsa Loquitur. The Apex Court said that this principle can not be applied everywhere and its application depends on the situation.

In the present case, the Supreme Court found that there can be negligence on the part of the passenger, there can be negligence on the part of the driver as well as there is the possibility that it is an accident. In this case, the Supreme Court found that the driver was unaware of the fact that there is even a possibility of an accident. The evidence, in this case, was found to be too scanty to fasten the driver with criminal negligence.          

Doctrine of Res Ipsa Loquitur

The term Res Ipsa Loquitur comes from the Latin language and it means that ‘the things itself speaks’. In common language, it can be understood by the phrase “ the things speaks for itself”. It is applied where it is difficult to find who is negligent in the case. But it is well established (prima facie) that someone must be negligent in the case. When any train crashes, a bridge collapses or when any automobile is found inside the hotel lobby then it is very certain that it must be due to someone’s negligence. But when we do not have any conclusive evidence regarding who was actually negligent then the doctrine of Res Ipsa Loquitur is applied. Here in the above cases, the crash of the train must be due to the conductor who fell asleep during the journey of the train. It is decided by the fact that who is the person/ authority etc. in control at the time of the accident. 

The principle of res ipsa loquitur is a rule of evidence to determine the responsibility/onus of proof in actions related to negligence. This principle is applicable only when the nature of the accident and the circumstances related to the case would lead to the belief that in the absence of negligence the accident would not have occurred and the thing which caused the injury must be under the management and control of the wrongdoer. 

Ravi Kapur v. State of Rajasthan, 2012

In the very famous case of Ravi Kapur v. State of Rajasthan the principle/doctrine of res ipsa loquitur was discussed in detail. This is the case of an appeal against the judgment of the High Court of Jaipur Bench. The facts of the case were as follows:

“Sukhdeep Singh was going to attend the marriage of his brother along with his family. They were going in two jeeps and a Maruti car. On their way, they met with an accident with a bus that was coming from the opposite direction at a very high speed. Due to this eight-person died on the spot. According to one of the witnesses, the bus was driven by the accused Ravi Kapur and after the accident, he ran away from the spot. The trial court held that the prosecution was not able to prove the liability of Ram Kapur and hence he was acquitted by the trial court. However, the decision of the High Court comes against the trial court and its decision was backed by the reasoning which includes the principle of res ipsa loquitur, negligence, reasonable care.” 

The principle of res ipsa loquitur serves two purposes – it establishes the negligence on the part of the accused party and secondly, it is applied in the cases where the claimant is able to prove that there is an accident but is not able to prove how the accident occurred. The High Court by applying the principle of res ipsa loquitur found Ram Kapur liable under Section 304A of the IPC. The same case when went to the Supreme Court the court held that the decision of the High Court was right and the appellant was held liable ultimately.          

Rash or Negligent Act in Medical Treatment

In our country doctors are said to be the second God as they give second life to people by treating them or by giving medical aid to the ill people. Nowadays it has become very common to hear the cases where due to the negligence of these doctors or the medical staff their patients suffer. There are even some cases where due to negligence in medical treatment person died. Here it becomes very important to look after the negligence which is done by the medical team. To cope with this issue there are certain laws and regulations made by our country.

Medical negligence is covered under Consumer Law, Criminal Law and also under Tort Law. It attracts civil liability under Consumer Law and Torts while under Criminal Law it attracts punishment (imprisonment, as well as fine, can be imposed). We have to understand that in Criminal Law it is determined by the state of mind of the person. However, there are some exceptions to it like in offence of Strict Liability and in offence of negligence the state of mind of the person does not matter.  

In the Indian Penal Code, there is a provision that covers the rash or negligent act in medical treatment. Section 304A of IPC also talks about the same and the negligent or rash act of the medical staff is covered in this Section only. The terms like a rash and negligence also create a doubt in the minds of people in the cases related to medical treatment. Here, in my opinion, Section 304A of the Indian Penal Code that deals with rash or negligent act cannot be applied for charging doctors for medical negligence, but they can be charged for negligence only. It is because by the meaning of the rash act as discussed earlier we understand that an act which is performed by the person even if they can foresee the consequence and yet they go-ahead to perform the same act and due to this act someone dies. So we can not apply this meaning to the rash act for the doctors also. Let us understand this whole concept through an example if this concept of “rash act” is applied in the case of doctors, it will mean that if a doctor can ever foresee the death of the patient would happen if he/ she operates and then also doctor proceeds to operate the patient and if a patient dies as a result, then here, in this case, the doctor should be held liable for his/ her rash act. But as these types of uncertainties about the result are very common in the treatment of a person and due to this only the hospital authorities get the consent of the patients or their relatives before the treatment of the patients or before performing any operations.

Also, I think there are several reasons for which this Section can not be applied in the cases related to medical treatment. This Section can not be applied at all to the doctors who have opted for a particular method of treatment. The “reasonable man concept” will also create a problem in the case of the doctor. What a reasonable doctor will do in a particular situation is a big question. For example, if a person having a heart problem approaches a general physician and if he/she treats that person then his method of treatment would be totally different from the methods of treatment of cardio specialist. How can a general physician be held liable if the patient dies due to the treatment of the doctor as here, in this case, the doctor cannot foresee the consequences of his lack of expertise?

But we can not neglect a situation where a doctor forgets a scissor inside the body of the patients during the operating the patient. We can also not neglect a situation where a doctor operates the lift limb of the patient instead of the right limb. Are these are not examples of medical negligence? The answer to this question is very easy it is not about the medical negligence these are clear cases of negligence. There is a difference between medical negligence and negligence. Because even an ordinary can say that there is negligence and it does not require any special medical knowledge. By medical negligence we mean a situation where only a medical practitioner can say that whether there was negligence or not.

But, as said before such negligence or rashness can not be covered by Section 304A of the IPC on the basis of the special nature of the profession or occupation. If any professional driver drives a car rashly or negligently and as a result of this any person dies then he should be liable as it is a case of negligence. The case of the medical profession is different because it involves the life of patients very often. Patients often come to the doctor when they are on the verge of death. Operations or injection can work differently on different persons, despite the due care taken by the doctor. The doctors can be foreseeing the death of the patient but then also he chooses the best option. So here the mental state of the doctor as a negligent or rash is out of the question. So, Section 304A of IPC cannot be used for dealing with cases of medical negligence.

Punishment

After proving the person liability under Section 304A of the Indian Penal Code it becomes very important to punish those offenders. The punishment for death which is caused due to the negligent or rash act of the accused is prescriber under Section 304 A of the IPC itself. According to this Section, a person who is held liable for causing the death by negligence can be punished for the two-year jail or can be fined for the same or can be punished by both. The term of imprisonment depends on the gravity of the crime and imprisonment can be rigorous in nature or can be simple in nature. Its nature is also defined by the gravity of the crime and it varies from situation to situation as it depends on the situation. It is a cognizable offense and has been put in the category of a heinous crime. Here the police officer can arrest the accused without a warrant. It is a bailable offense and a bail can be granted by the police and the court.

Conclusion

Now, I would like to conclude this article by giving the opinions/recommendations which can be implemented for more effective use of Section 304A of Indian Penal Code. There are certain loopholes related to Section 304A which need to be covered by bringing certain changes. Here through our article, we can easily find that Section 304A can not be effectively applied in cases related to medical negligence. There it needs certain reforms for its effective usage. Also, the punishment prescribed under Section 304A is also found to be insufficient. On several occasions there has been a demand for increasing the imprisonment period from two years to five years. The same was found by the Supreme Court judges.

Talking about the positive side of Section 304A of IPC is it helps to distinguish a crime where the defendant/ accused has no intention or has no knowledge about the crime.

References

• https://blog.ipleaders.in/death-by-negligence/
• https://indiankanoon.org/doc/114294154/?type=print

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This article is written by Ramanuj Mukherjee, CEO, LawSikho.

Consider that is a very important indicator of what your destiny is.

If you are a working adult, for the rest of the week, you probably have to wake up and do a bunch of routine stuff before you commute to work. For the rest of the week, you have to dance to the tune of what is necessary.

Sunday is different. It is probably a holiday for you, and you have a choice.

Do you wake up late? Are you nursing a hangover when you wake up?

Do you hit the gym?

Do you spend time with family?

Do you read a book?

Do you work on your passion project?

Do you use your Sunday to rejuvenate and plan your rest of the week?

Your Sunday morning shows where you are headed in life because this is the consequence of the choices you are making in life.

I look forward to Sundays because I get so much done on a Sunday! Things that require thinking, reflection, strategizing, are perfect for Sundays as far as I am concerned.

The first thought in my head when I woke up this morning was about LawSikho – how can I grow it to its full potential? What do I have to do to make the visions come to fruition?

I also take care of myself a little better on Sundays. I started my morning with a massage and some music. Then I caught up on old messages and replied to emails I had missed. Then I am writing this mail. I am looking forward to meeting an old friend over lunch. And then I will get together with 2 colleagues over a 2-hour long business call about how we will build LawSikho in the future and how we can grow 20x in next 3 years. 

After that, I have a major curriculum to work on. Some business mails to send.

And then, I will take a webinar today on how to make great service proposals that clients find hard to say no to, for my Legal Practice Management class. I have to put together a class plan and some material for the same as well. 

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In between, if I can spare any time, I will go through some online courses I have got my hands on. I have a lot of things to learn about building online businesses, even though I have been running some for 10 years now. 

And I like to spend my Sundays this way. Productive, spent thinking about the future and how to take things to the next level. 

Also, I like to check on some of our students on how they are doing. Like I did this morning and got instantly rewarded.

We are on the right track. Your positive messages and feedback energizes me and my team to do even better.

What does your Sunday look like?

You could make your Sunday special by enrolling in a course from LawSikho and investing in your career and future. Here are the options for you:

DIPLOMA

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Intellectual Property, Media and Entertainment Laws

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Criminal Litigation & Trial Advocacy

Certificate Course in Real Estate Laws

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Certificate Course in Legal Practice Development and Management

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Tanmaya Purohit, pursuing a Diploma in Companies Act, Corporate Governance and SEBI Regulations from LawSikho.com. Here he discusses “Can a disqualification incurred by a director for Non-Filing of Financial Statements be removed? How?”.

Introduction

As per the provisions of the Companies Act, 2013 (hereinafter ‘Act”), an existing director in a company can be disqualified on two criteria – a) if he/she has not filed the annual returns or the financial statements for a period of three years without break, or b) if the director in question has been unable to repay the deposits accepted by it, or the interest thereon over such deposits, or any other payment in the likewise. Further, the office of a director is declared as vacant under the Act, once such disqualification as mentioned under Section 164 is incurred. This article explores the disqualification of such directors, in particular when such disqualification is incurred due to the concerned director has not filed the requisite financial statements for a period of three years continuously, the relevant provisions for the execution of such disqualification, as well as the ideal procedure to render such disqualification null and restore the Director Identification Number (DIN) of the concerned director. 

Disqualification under Section 164 of the Act

Section 164 of the Companies Act, 2013 lays down the criteria on the basis of which the director of a company can be disqualified from his post. The criteria as mentioned herein under the Section can be broadly included under two categories – a) when the director is being appointed, and b) when the director has been appointed and fails to comply with certain requirements subsequent to such appointments. The disqualification clause under Section 164 under the sub-section 2 is generally read alongside the Section 167 of the Companies Act, which lays down the grounds due to which the office of a director may be declared vacant under the Companies Act. Under the section, once a director has incurred the disqualification underSection 164, the office may be declared vacant.

This article shall explore the grounds that have been mentioned under the Section 164(2)(a) of the Act, i.e. when the director in question has failed to file the annual returns or the financial statements for a continuous period of three years. The said section also lays down the consequences of such default on the part of the director, such that once such disqualification has been incurred under Section 164(2), the concerned director shall become ineligible for reappointment as a director in the given company, or any other company for that matter, for a period of five years from the date of failure of the director to file the returns.

The Act also stipulates the situation where a director, even though after being aware of the disqualification under Section 164, if he continues to hold the office after it has become vacant, the penalty under the Act includes imprisonment for a period of up to one year, or a fine which is not less than 1 lakh rupees, and which may extend up to five lakh rupees, or with both. The implementation of the provisions under the Section 164 was seen prominently when in 2017, the Ministry of Corporate Affairs (MCA) vide its notification dated September 12, 2017, listed as many as over 3 lakh directors as disqualified by virtue of Section 164(2) of the Act. 

At the same time, there was an ongoing debate over the retrospective applicability of the provision of disqualification under Section 164(2), and the NCLT laid down its decision in the case Vikram Ahuja v. Greenstone Investments Pvt. Ltd., stating that the applicability of the provision shall be counted from the period when such instance of non-filing began. The NCLT stated in the case that the question of retrospective or prospective application of the provision did not arise, rather Section 164(2)(a) shall apply from the time when such non-filing began in the past. Several decisions at later stages built upon this rationale and established that the operation of provisions under Sections 164(2) and 167(1) shall not be retrospective. 

Condonation of Delay Scheme, 2018 (CODS-2018)

Subsequent to this disqualification, the COD Scheme (Condonation of Delay) was introduced by the MCA vide its notification dated 29.12.2017. The scheme was designed by the MCA as a means to allow the aforementioned defaulter directors with a means to submit the financial statements or other relevant documents within a given period. This scheme came as a successor to the Company Law Settlement Scheme, 2014. Although the predecessor was intended to serve a similar purpose, it was not able to do so. CODS allowed the disqualified directors with a window of three months, within which they could file the documents. During this window, the notification provided that the DIN of the disqualified directors would be reinstated so that they may be enabled to file the documents till the said scheme would be valid. The scheme within it laid down a procedural framework which could be followed by the disqualified directors to file the documents which were overdue. 

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The companies whose directors had been disqualified under Section 164 were expected to file the overdue forms as per the COD Scheme and were expected to file the e-CODS form on the MCA21 Portal, the fee for the filing of which was Rs. 30,000/- only. Additionally, the defaulting companies under this scheme were also supposed to pay the statutory fee as provided under the Companies Act, 2013 for the delayed filing of these documents. However, although the scheme did allow for the filing of overdue documents, there were still certain documents which were not allowed to be filed on a later date as a virtue of this scheme, each of which documents were specified in the General Circular No. 16/2017.

However, of all the directors which were disqualified by the MCA vide its notification in 2017, there were many directors which were unable to make use of the window which the COD Scheme provided to them to file the requisite overdue documents. Subsequent to the time-limit under COD scheme having elapsed, the remaining disqualified directors of the companies which had been struck off from the Register of Companies, were left with only two forms of further remedies – 

1. Application for the revival of company i.e. for the restoration of the name of the company which has been struck off from the ROC, or
2. Apply for removal of the disqualification without the revival of the company i.e. by filing a writ petition before the High Court appeal against the disqualification by the MCA. 

These two remedies have been explored with respective case laws as follows – 

1. Application for Revival of Company – The defaulting director may file an application before the National Company Law Tribunal under Section 252 of the Act in order to seek revival of the name of the company. The said appeal can be filed within three years of the name of the company being struck off from the ROC. Upon the decision of the NCLT, the name of the company may be restored subject to the satisfaction of the Tribunal and the Registrar, following which the disqualified directors may then file for removal of their disqualification in Form DIR-10. For the directors to file for removal of their disqualification, it is essential that the company should be in operation, and if the company has been struck off, while the directors still intend to keep it operational, filing this appeal before the NCLT is one way to approach. 
   However, the filing of an appeal is not the surest way, since there is a lesser chance of the appeal being allowed by the NCLT, as there have been cases where the NCLT has imposed penalties on the applicants in addition to the rejection of their appeals.
2. Writ Petition before the High Court – Based on the variety of the decisions laid down by the various High Courts around the nation, the recourse by filing a writ petition before the High Courts under Article 226 seeking judicial relief has proven to be an effective method for the directors to have their disqualification removed. The concerned petitions observed claims being made by the disqualified directors regarding infringement of Article 19(1)(g) of the Constitution of India. There have been several landmark judgements by the High Courts of several states wherein the notification declaring the directors as disqualified was set aside and the disqualification was removed. The landmark case in this regard was the case of M/s. Dr. Reddy’s Research Foundation & Ors. vs. The Ministry of Corporate Affairs & Anr. The High Court of Hyderabad directed the respondents i.e. the Registrar of Companies to restore the DIN numbers of the disqualified directors. 

The Delhi High Court further clarified the position for the companies which had been unable to take the advantage of the window provided under the COD Scheme because the companies were unwilling to revive themselves, stating that given that the companies have not been active at all for the preceding three years, the same shall be considered as the voluntary striking off, and after that, the e-CODS form shall be considered by the Registrar with sympathy. The situation as was laid down in 2017 was later reaffirmed and reiterated in the November 2019 judgement of Mukut Pathak & Ors. v. Union of India & Anr.18, wherein the court considered the amendments of 2018 and decided that Sections 164(2) and 167 shall not operate retrospectively. 

Conclusion

Needless to say, once a disqualification has been incurred by a director on account of not having filed the financial returns, more recently, the latter of the two alternatives mentioned above is a relatively safer way for the removal of such disqualification. The alternative seeking revival of the company can be a failed method, whereas the claim of rights by approaching the judiciary under Article 226 has proven to be a far more fruitful approach for removal of the disqualification of a concerned director who has been disqualified under the Section 164(2) of the Companies Act, 2013. 

Endnotes

1. Section 164(2)(b), Companies Act, 2013. 
2. Section 167(1), Companies Act, 2013. 
3. Section 167(1)(a), Companies Act, 2013. 
4. Proviso to Section 164(2), Companies Act, 2013. 
5. Section 167(2), Companies Act, 2013. 
6. [2017] 136 CLA 131 (NCLT). 
7. Condonation of Delay Scheme 2018, General Circular No. 16/2017 (Available at – https://www.mca.gov.in/Ministry/pdf/Generalcircular16_29122017.pdf)
8. Section 403, Companies Act, 2013.
9. The names of the companies whose directors did not file the requisite documents within the window of three months as per the COD Scheme, were struck off from the Register of Companies (ROC) as per the Section 248 of the Companies Act, 2013. 
10. Section 252(1), Companies Act, 2013. 
11. Rule 14(5), The Companies (Appointment and Qualification of Directors) Rules, 2014. 
12. M/s. Rainbow Real Estate Pvt. Ltd. v. Registrar of Companies, C.P. No. 421/2014. 
13. W.P. No. 32575 of 2017. 
14. Trilokchand M. Kothari & Ors. v. Union of India & Ors., P. (C.) No. 11381 of 2017. 
15. W.P. (C.) 9088/2018.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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This Article is written by Abhishek Dubey, a second-year BBA.LLB student from Chanderprabhu Jain College of Higher Studies and School of Law. This article discusses the details about the Top Law Firms of India in Merger and Acquisition, their structure, composition, as well as their awards and achievements in merger and acquisition.

Introduction 

India is one of the growing markets for mergers and acquisitions. The challenges and opportunities of mergers and acquisitions in India have brought a great change in the skills of the lawyer. The increase in competition and legal fees has encouraged new law firms to enter the market. In India, Mergers and Acquisitions have always been dealt with by top law firms; but recently certain changes have been observed in the legal market by the emergence of Platinum Partners and S&R associates. These mid-sized law firms are doing great in mergers and acquisitions. Platinum Partners is a law firm consisting of 50 lawyers and they have given advice in the deal in which UPL corporation acquired Arysta life science which amounts to 4.8 billion dollars. According to a research conducted by the Indian Business Law review, AZB and Partners were ranked second in merger and acquisition in 2018. It advised 99 deals with a value of 48 million USD. In 2019 it has advised more than 100 deals and has a high volume of work relating to merger and acquisition. This was based on research conducted by Indian Business Law Review 2019. They uploaded a form on their website and the rank was decided on the basis of the votes received.

AZB and Partners

About

AZB and Partners were founded in the year 2004 with an objective to provide full-time practical services to clients in all sectors. It consists of more than 400 lawyers and has more than 100 partners with 6 branches across India; two situated in Mumbai and Delhi along with one in Bangalore and Pune, each. The practice areas of AZB and Partners are mergers and acquisitions, insurance, real estate, banking, and finance, etc. They have been recognized as a country leader in the volume of work they undertake. Some of the key clients of AZB and Partners include the Tata group, HDFC, Bharti Airtel, Reliance, various investment banks, and more than 100 multinational companies.

Awards

• Ranked as a Tier 1 law firm for the practice in banking, capital markets, merger and acquisition, insolvency, private equity, and restructuring, by International Financial Law Review 2020.
• Outstanding for the following practice areas such as banking and finance, capital markets, corporate merger and acquisition, private equity according to “Asian law Profile” in the year 2020.
• Awarded as merger and acquisition law firm of the year in India by the “Corporate Intl Global Awards Winner” 2020.
• Ranked as a Tier 1 firm for merger and acquisition by “Asian Legal Business”.
• Ranked as a Band 1 Firm for corporate merger and acquisition, private equity, real estate by “Chamber Asia Pacific”.

TOP advises by AZB and Partners

• They advised Sterlite to acquire a 12.8 percent stake in 5G Virtual Radio Access Innovator.
• They advised Amazon’s acquisition of a 0.51 percent stake in Queues Corp and it was approved by the Competition Commission of India.
• They advised Verena to acquire a 40 percent Stake in Dixcy crop and it was approved by the Competition Commission of India.
• They advised in Tata steel acquisition of Nat steel. The deal size was $468 million.  
• They advised the mergers of 6 small banks with the State Bank Of India for a deal value of US $ 120 million.

Cyril Amarchand and Mangladas

About

Cyril Amarchand and Mangladas is a full-service Indian law firm. It came into existence on 11th May 2015 from its predecessor Amarchand and Mangaldas Suresh and shroff. It has its headquarters in Mumbai. The firm is located across India at 6 different places i.e., in Mumbai, Hyderabad, Banglore, Chennai, Delhi, Ahmedabad. It has more than 700 lawyers and more than 130 partners. The practice areas of Cyril Amarchand and Mangaldas include merger and acquisition, financing, capital markets, litigation and dispute resolution, etc. Some of the key clients of Cyril Amarchand and Mangaldas include the BlackRock group, Tatas capital, ICCI, Kotak Mahindra, Axis Bank, etc.

Awards and Achievements

• Awarded as India law firm of the year 2019 by Business Worlds Global Legal.
• Awarded as the best law firm for women in India by Legal Media Group Euromoney Business Law Awards.
• Won 10 awards by “Indian Business Law Journal” Indian Law Firm in the year 2019 in fields of merger and acquisition, banking and finance, capital market, etc”.
• Awarded merger and acquisition deal of the year by “Asian Law Business India law awards” for the deal of Walmart’s acquisition of Flipkart. 

Top Advice

• They advised Standard life for the acquisition of a 95 percent stake in HDFC Life Insurance Company.
• They advised Walmart’s acquisition of Flipkart.
• They advised Aion Capital partners and Jsw steel for the acquisition of Monnet Ispat.
• Acquisition by for Essar steel acquisition by ArcelorMittal.

Khaitan and Co.

About

Khaitan and Co. is one of India’s oldest law firms established in the year 1911, founded by Devi Prasad Khaitan. It consists of more than 500 lawyers and 115 partners. It has its four branches across in Delhi, Bengaluru, Mumbai, and Kolkata. The key practice areas of  Khaitan and Co are banking and finance, merger and acquisition, antitrust, dispute resolution, etc. Some of the key clients of Khaitan and Co are Harley Davidson India, LN Bangur Group, I Gate, Nippon Life, Blackstone, Vedanta resources, etc. 

Awards and Achievement

• Awarded as a top tier firm by the “International Financial Law Review” in 2020 for Merger and Acquisition, capital markets, restructuring, and insolvency.
• Ranked as a Tier 1 Law Firm by the Asian Legal Business.
• Largest merger and acquisition law firm of the year by IDEX Legal Awards 2019.

Top Advice by Khaitan and company

• They advised in the buy out the stake of Crompton greaves electricals for 0.81 percent in Advent International and Temasek. The deal size was 315 million dollars. 
• They advise in the acquisition of free charge by the snap deal, the deal size was for 400 million dollars. 

Platinum Partner

About 

Platinum Partner is an Indian Corporate law firm. It was established in the year 2008. It has its branches in Delhi, Bangalore, and Mumbai. Its headquarters are in Delhi and Mumbai. The firm specializes in merger and acquisition, infrastructure and securities law, employment law, etc. They advise many domestic and international clients. The reputation of partners of the Platinum law firm is excellent and they have more than 30 years of experience working in International Law Firm and Multinational companies. The major practice areas of Platinum Partners are merger and acquisition.

 Awards and Achievement

• Band 2 in corporate and merger & acquisition by Chambers and Partners.
• Band 2 in corporate and commercial by chamber practice.
• Karam Daulat Singh and Ankit Majumdar recognized as band 1 lawyer in general corporate and mergers and acquisitions.
• Gautam Bhatt recognized as the rising star by RSG consultancy. 

Top Advice by Platinum Partners

• Danone’s acquisition of the Wockhardt group, a nutritional business, the deal size was 250 million dollars.
• They advised Diageo on its acquisition of United Spirit Limited.
• Acquisition of Arysta life science by UPLl Corporation for a deal value of 4.2 billion dollars. 

S&R Associates

About

S&R Associates is a very successful law firm, founded in the year 2005. It practices most of its work on an international level whose work includes 20 percent of work on a domestic level and 80 percent on an international level. The lawyers of S&R associates have experience of practicing in India as well as other jurisdictions such as the United Kingdom, the United States of America, Singapore, etc. It consists of 7 partners and 38 associates; 3 of the partners are women and 4 are men. It has practice areas in merger and acquisition, litigation and arbitration, capital markets, private equity, competition, etc. 

Awards and Achievement

• Ranked 2 in private equity rights and offering by Bloomberg Indian Capital Markets.
• Ranked 5 for announced deals in terms of volume by Bloomberg Indian Capital Markets.
• Ranked 6th by the Market merger and acquisition report 2019.
• Sanjeev Adlaka lawyer of merger and acquisition is recognized as the most mature and sensible lawyer by Chamber Asia Pacific 2020.
• Rajat Sethi was recognized as a high quality and good knowledgeable lawyer by Chamber Asia Pacific 2020.

Top Advice by S&R associates

• It has advised on merger and acquisition transactions for the deal value of 400 million dollars.
• They advised the Qatar Foundation to acquire a 5 percent stake in Bharti Airtel Telecom.
• They advised Dana’s group to have a joint venture in India with Rayant Group. 

Shradul Amarchand and Mangladas 

About

Shradul Amarchand and Manglads is one of the largest law firms in India. It is a full-service law firm in India. The firm came into existence from its predecessor Shradul and Shroff Amarchand and Mangladas on 11 May 2015. It consists of 119 partners and 550 lawyers having its headquarters in New Delhi and Mumbai. The firm has 7 branches across India in New Delhi, Mumbai, Gurugram, Kolkata, Chennai, and Bengaluru. The firm practice areas include general corporate, banking and finance, competition law, etc. the key clients of Shradul Amarchand and Mangladas are Microsoft, State Bank of India, standard chartered bank, Vodafone, Facebook, etc.

Awards and Achievements 

• Won legal expertise award by the Asia Pacific awards 2019.
• Ranked 1 in deal count and deal value in the merger market by India league tables.
• Awarded India law firm of the year by Asian law business.
• Awarded 3 times the country’s law firm of the year 3 times.
• The best law firm of the year for 9 years by business law journal. 
• Band 1 practice in merger and acquisition by Asia pacific.
• Tier 1 law firm in merger and acquisition by Asian Legal Business.

Top Advice by Shradul Amarchand and Mangladas

• They advised the Life Insurance Company to take Industrial Development Bank via open offer for a deal value of 4.4 dollar billion.
• They advised the merger of Gruh Bandhan finance bank with Argus for a deal value of 3 billion dollars.
• They advised the Merger of Baroda, Vijaya and Dena bank the deal which amounted to 1.37 billion dollars.

7. Trilegal

Trilegal is an Indian based law firm founded in the year 2000. It consists of 300 lawyers and 50 partners. It is located at four places across India in Bangalore, Mumbai, New Delhi, and Gurgaon. The practice areas of tri legal include corporate, merger and acquisition, capital markets, etc. The lawyers are focused on providing commercial solutions to legal problems. The key clients of Trillegal include tata power, standard chartered and Mumbai international airport.

Awards

• Ranked 7th in top 10 law firms by RSG Report in merger and acquisition and competition law.
• Ranked as tier 1 law firm by Asian law business.
• Harsh Pais and Nisha Kaur and Neeraj Menon recognized as growing leaders of the year 2019 by RSG report.
• International financial law review awarded as top 10 law firms of India in Merger and acquisition, capital markets, banking, and finance, etc.

Top advice by Trilegal

• They advised the Sriram group for the indirect acquisition of Sanlam Ltd for paid-up equity share capital.
• They advised Telenor for a joint venture with Dwellings for investment in communication services private limited.
• They advised standard chartered for acquisition for Morgan Stanley’s wealth non-institutional wealth business of India.    
• They advised Rewa electrical company for the sale of a 52 percent stake to Mahindra and Mahindra.
• They advised Godrej ltd. for sale of its sake to Hersere company.
• They advised Exide Industries Ltd. on the acquisition of stake ING Vysya Life Insurance Company Ltd.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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The post What are the top Mergers and Acquisition Law Firm in India? appeared first on iPleaders.

So today is the day! We are finally announcing the winner of our Blog Writing Competition of 2nd week of January 2020 (From 6th January 2020 to 12th January 2020) 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and has been crowned the winners!

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Click here to see all of the contest entries. Click here to see our previous week’s winners.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, choose the winning entry based on how well it exemplified the entry requirements.

The contestants have to claim their prize money by sending their account details at uzair@ipleaders.in within 1 month (30 days) of the date of declaration of results and not afterwards. Certificates will be sent on the email address given by the contestant while submitting the article. For any other queries feel free to contact Uzair at 8439572315 LawSikho credits can be claimed within three months from the date of declaration of the results (after which credits will expire).

Congratulations all the participants!

Regards,

Team LawSikho

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Blog Competition Winner Announcement (Week 2 January 2020) appeared first on iPleaders.

This article is written by Iqra Khan, a second year law student of Jamia Millia Islamia..

Currently, the newspapers are all filled with the news of changing climate, global warming, forest fires, droughts, floods etc. We have studied about climate and global warming in our grade 8 science textbooks but now we can all witness it. This climate change is real and obviously the most important global issue of the era!

This is not all, India will be facing lot more damages due to climate change in the coming years. It is the time to declare climate emergency as called by the UN. The UK, Ireland, Canada and France have all declared climate emergencies. The Indian government should declare a climate emergency immediately. Immediate policy changes should include reducing the usage of fossil fuels by half by 2030, encouraging the use of public transport, increasing forest area, promoting non-conventional energy, devising good water management policies, implementing the plastic ban stringently, banning the burning of waste, promoting innovative urban planning policies and reducing mass rearing of cattle for human consumption.

There hasn’t been any formal study made by Indian committees regarding the effects of climate change. N.H. Ravindranath, a climate scientist will lead the first national assessment of the impact of climate change in India. It is crucial to have scientific data so that the impact of climate change can be seen on various sectors of the country such as agriculture (which is assumed to be the most affected sector due to climate change), human health and productivity, tourism, economy, loss due to sea-level rise. According to a report by the UN, India has already incurred losses of USD 79.5 billion in the last 20 years.

Climate activist Greta Thunberg, in the UN’s Climate Action Summit in New York City on 23 September 2019, said that the popular idea of cutting our emissions in half in 10 years only gives us a 50% chance of staying below 1.5 degrees [Celsius], and the risk of setting off irreversible chain reactions beyond human control.

The environmental crisis that needs the most attention is “#ClimateChange”. I use the hashtag, due to the reason that, we the “millennials” are very fond of topics trending with this hashtag. So, let’s make this crisis trending too! Climate Change does not affect single or multiple nations but the whole human race. This international problem needs immediate addressal and solutions. Nations need to amend their laws so that there’s no more contribution of human activities in climate change. There’s a lot of evidence regarding the climate change which will be discussed in the blog. Regardless of numerous International laws and treaties, climate change does not seem to be in control. As a developing country, India needs to amend its law or make new laws for this crisis. 

What is Climate change?

Climate is the change in the atmosphere over a long period of time or in other words climate is the average weather condition of a particular place. The reason why studying climate and a changing climate is important, is that it will affect people around the world. Rising global temperatures are expected to raise sea levels, and change precipitation and other local climate conditions. Changing regional climate could alter forests, crop yields, and water supplies. It could also affect human health, animals, and many types of ecosystems. Deserts may expand into existing rangelands, and features of some of our National Parks and National Forests may be permanently altered. Climate change is a long-term change in the average weather patterns that have come to define Earth’s local, regional and global climates. These changes have a broad range of observed effects that are synonymous with the term.

Changes observed in Earth’s climate since the early 20th century are primarily driven by human activities, particularly fossil fuel burning, which increases heat-trapping greenhouse gas levels in Earth’s atmosphere, raising Earth’s average surface temperature. These human-produced temperature increases are commonly referred to as global warming.

When the greenhouse gases prevent the heat released from the earth to go into the space, the temperature of the planets rises. This rising of the temperature of the earth is what is known as green house effect. Human activities are considered the main factor for the rapid increase in climate change. According to the report of the Intergovernmental Panel on Climate Change (IPCC), Global warming has led to shifts of climate zones in many world regions, including expansion of arid climate zones and contraction of polar climate zones. As a consequence, many plant and animal species have experienced changes in their ranges, abundances, and shifts in their seasonal activities.All this because of a common threat of Climate change. Burning of oil, coal, fossil fuels, stubble burning (as in the northern parts of India which has increased the air pollution in the city of New Delhi, where the Air Quality Index has reached to a level of hazardous quality), burning of waste, smoke from the industries and vehicles, CFCs from air conditioners etc contributes to the climate change.

Is climate change for real? What is the cause?

While the US is busy denying the climate change and calling it a hoax, the scientists all over the world are confirming it. According to National Aeronautics and Space Administration (NASA), there are some compelling evidences that force us to believe that climate change is real such as Global Temperature Rise by about 1.62 degrees Fahrenheit since the 19th century, Warming of Oceans, rise in the sea level, shrinking of ice sheets, extreme rainfalls, droughts, forest fires, bleaching of coral reefs.

What’s the main cause for this climate change? It is evidently the human activities. According to the 5th Assessment Report of IPCC, which gives evidence that ocean have warmed, amount of snow and ice have diminished, sea level have risen and the concentration of greenhouse gases have increased. It concludes that human influence on climate change is clear.

Recent Issues

Forest fires in Amazon and Australia. Almost 30,000 sq. km of forest area had burnt in the forest fires of Amazon last year. The fire was extremely devastating on the other hand the forest fire in Australia was far more devastating than the Amazon. The land burned is almost twice the area that got destroyed in 2019’s Amazon Fires. More forest fires increases the global warming and the earth is getting warmer. Millions of animals, along with a few people have died in the fire of Australia, the photographs on social media are heart breaking. Temperatures in Australia have seen a new high due to these natural calamities. Forest fires is becoming a massive climate issue. 

A quick history of the development on the International Climate Laws

1988 

The World Meteorological Organization (WMO) and the UN Environment Programme (UNEP) formed the IPCC, and the assessments made by IPCC are the basis for the international negotiations. IPCC is a global organization, with self contributions of hundreds of scientists all over the globe these scientists then analyze the conditions and changes that takes place in the environment, climate or weather. They create analysis reports which in fact become the structure of policies or platform of negotiations in IPCC.

1990

IPCC released its first assessment report and called for the second World Climate Conference. The report said that GHGs concentrations were increasing due to human activities.

1994

United Nations Framework Convention on Climate Change (UNFCC) that was adopted in the year 1992 at UN came into force in 1994 after being open to countries for signature in Rio De Janeiro.

1995

Presided by Angela Merkel, environment minister of Germany, First Conference of Parties (COP1) was held in Berlin. It is also known as Berlin mandate. 

1997

Kyoto Protocol, first GHGs emission reduction treaty was adopted.

2001 

The seventh meeting of Conference of Parties held in 2001 and resulted in Marrakesh Accords.

2005 

Finally, Kyoto Protocol came into force in this year.

2007 

The thirteenth Conference of the Parties, in Bali adopted the Bali Road Map, which was a new plan for addressing climate change..

2009

World leaders gathered for the fifteenth Conference of the Parties in Copenhagen, which resulted in Copenhagen Accords.

2010

The sixteenth Conference of the Parties results in the Agreements. The Green Climate Fund, the Technology Mechanism and the Cancun Adaptation Framework were established in this year.

2011

At the seventeenth Conference of the Parties in Durban, governments committed to a new universal climate change agreement by 2015.

2012

At the eighteenth Conference of the Parties, governments agreed to work toward a universal climate change agreement by 2015 and adopted the Doha agreement.

2014

UN Secretary-General Ban Ki-moon hosted a summit in New York, inviting Heads of State and Governments to initiate action for climate change.

2015

Twenty-first Conference of Parties (COP 21) was held and the historical Paris Agreement was adopted. The Paris agreement brought the entire nation (195) for a common cause to fight climate change and move towards a low carbon future. Later US has had taken a step back from Paris Agreement.

2018

IPCC had confirmed a global warming of 1.5C. 

2018

Governments adopted Katowice Climate Package. This is a pack of guidelines to implement the Paris agreement, it was held in Poland.

2019

The COP25 UN Climate Change summit was held in Chile, Madrid. 

Assessment of India’s contribution to Climate Change

India’s climate can be classified as a hot tropical country, except the northern states of Himachal Pradesh and Jammu & Kashmir in the north and Sikkim in the northeastern hills, which have a cooler, more continental influenced climate.

India’s contribution to climate change is relatively low as compared to US and China.India saw emissions rise by 4.8%, or 105 Mt, with the growth split evenly between power and other sectors such as transport and industry. 

In the most polluted cities across the world, India shares the maximum number of cities. Air pollution is one of the major issues faced by India currently. Either the reason may be air pollution by stubble burning or the fireworks, or be it by petrol or diesel cars, we have air pollution which is interlinked to climate change.

India’s Response to Climate Change 

India is a signatory to both UNFCC and Kyoto Protocol, but they both do not make India meet specific targets in reducing emissions. But still India has been taking voluntary actions to suppress the GHGs emissions.

Ministry of Environment, Forest and Climate Change (MoEFCC) is the primary body at the central level that governs the work of planning, promoting and implementing policies relating to the environment, forests and climate change in the country. The ministry works with principle of sustainable development and well being of human.

The most significant plan is the National Action Plan on Climate Change, which came in 2008. Within which eight missions were described. To decentralize the NAPCC, the government issued an order for all states to submit their respective State Action Plans on Climate Change (SAPCC), which have now been prepared for almost all states and Union Territories across India, namely:

• National Solar Mission
• National Mission for Enhanced Energy Efficiency
• National Mission for Sustainable Habitat
• National Water Mission
• National Mission for Strategic Knowledge on Climate Change
• National Mission for Sustainable Agriculture
• National Mission for Green India
• National Mission for Sustaining the Himalayan Ecosystem

Many new initiatives were launched as part of these missions, during the year 2018- 19. These include; Centre of Excellence, at Divecha Centre for Climate Change, IISc, Bangalore and National Knowledge Network programmes one each on Urban Climate and Himalayan cryosphere; One Human Capacity Building Programme at National Institute of Disaster Management (NIDM), New Delhi; Three State Climate Change Cells one each in Gujarat, Bihar and Assam; 6 State Knowledge Network programmes in the Himalayan States of J&K, Himachal Pradesh, Assam, Arunachal Pradesh, Meghalaya and Manipur.

The steps that are taken by the government of our county are not too effective.When we look at the manifesto of our government for the year 2019. We hardly find the issue in the 15 topics mentioned by the government. Governments all over the world are treating this as a secondary issue. NAPCC, which has completed about ten year have set many goals to achieve, but not the appropriate method to handle the crisis in India. India as a low income country cannot combat the problem of climate change alone, even though policies are made but there is need of financial support, technological development and human resource for the proper implementation of the made policies. Also, the visions should be realistic, which are easy to accomplish.

But what can I do?

Any big change starts with individual efforts, we can create awareness among people, adopting activities and lifestyles that reduce the harm to the environment. Use more of public transport, switching to clean energy. Sensitize your local community about the issue. Ask the government or the authorities to take steps regarding this issue. Create pressure on the industries to reduce their emissions. While the heads of certain countries (you know who) are asking young “climate activists” to “chill”and not acting on it, we ‘the young climate advocates’ can attract the attention of the leaders towards this issue. And yes, never think that the change won’t take place because of only you.

Conclusion

When we see kids like Greta Thunberg we are filled with enthusiasm to do something about climate change because it is not for someone’s personal benefit but for the good and survival of all. How can we leave a planet that’s on the verge of dying for the future generation? It is our duty to make the wronged done, right. There have been negotiations going on, internationally and it is important for the countries to abide by those conventions and implement them domestically. Individually, we should try to reduce the consumption of non-renewable resources and move on to clean energy. Cutting of trees and then trying to sow millions of new seeds is not the solution, since mature trees that are cut, would take years to grow in place of the trees that have been cut down. There should be awareness programs at schools and colleges about the issue. At government offices, there should be sensitization programmes. But that too should not turn into a formal activity for everyone, therefore the real hazards need to be discussed.

Climate Issue has only become a political issue for many governments all over the world, a topic for vote bank. But governments do not realize this that this is the main issue for human kind. They should realize that there are billions of people who are prone to climate change and the under developed countries will face extreme difficulties in fighting such change.

This is only possible through united efforts of all governments of the world, all the people of the world. Awareness has to be made to people regarding the effects of climate change. But all these assessments, policies and conventions are useless until and unless we realize that it is our duty to do it. It is our duty to save the environment and the planet.

In the end, I would say that Greta Thunberg was correct in asking everyone, “How could you?”

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post #ClimateCrisis- What are you doing about it? appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho.

“This is your life and it’s ending one minute at a time.”

~ Tyler Durden, Fight Club

I have a fear that drives me every day. There is so much, so much opportunity before me. Would I make something of it? 

The vision of what is possible, the heights we can achieve, the beauty we can pursue, the marvels we can invent and things we can make happen – it’s stupendous. 

Once you realise what is possible, there is no resting. 

You go to sleep thinking about how you are going to achieve those sublime results. You dream of it in your restless sleep. You wake up with ideas you want to execute impatiently.

Obstacles appear small and naysayers come and go. 

You look back and realise the things that are holding you back. You are now ready to leave them behind, because you refuse to carry this baggage all the way. 

You notice changes in your personality and the energy with which you attack the next problem.

You attract and galvanize people around you who are driven by the same dream. All of you discuss what is possible and how to get there rather than discussing how the rest of the world is not even trying. 

That’s the beginning of a powerful community driven by a common purpose, the beginning of a subculture, the genesis of an unstoppable force that aims to change the course of history itself.

Click Above

The spark becomes a fire that consumes anything in its path. 

What’s the hurry?

It’s your life and it’s ending one minute at a time. 

Once you are up to something grand, when your life is dedicated to a mission and a pursuit of something greater than just yourself, life finds a new kind of meaning.

Death seems like an inconvenient movie break and you know you don’t want to miss the climax so you want the inevitable break to not come earlier.

But you know that it’s not even a comma in the scheme of things. The vision is so much bigger than your life and it belongs to the world.

You are now unstoppable.

Where did I find this?

I have been lucky to come across people who opened my eyes, who forced me to imagine the greatest version of my vision. 

I resisted at the beginning. It seemed unreasonable, unnecessary and scary.

But then at some point I took out the time to fully imagine it and even wrote it down. I shared it with others, who were equally incredulous to start with.

But with every conversation, every iteration, I came to see how utterly possible and obvious it was.

It was not reasonable, it was not realistic, but it was possible and that is enough. It is a vision.

The adventures of a lifetime, the call to arms, the path to victory – it’s dangerous and fraught with difficulties. There is no guarantee of success. And still, it is the frontier of civilization itself. Our vision goes beyond the boundaries of the known universe and we want to push those boundaries.

Why did countless men try to climb Mount Everest and lost their lives trying? Why did Edmund Hillary and Tenzing Norgay still made the arduous journey to the highest peak knowing the risk?

Climbing Everest is not anything astounding today. We have to find higher peaks. That’s why we aim for space exploration maybe?

Closer to home, we have some impossible peaks to scale too. Making justice available to people, creating extraordinary lawyers who transform the legal system, and revolutionizing legal education in the world is the peak we are trying to scale at LawSikho.

Resources are meager, number of detractors and disbelievers are far larger than those who back us, and the path gets harder than ever as we make progress.

But we have never been more excited, more determined, stronger in our resolve than we are today. What we have achieved is minuscule before what we have ahead of us. The rest of the world may congratulate us for what’s behind, but new possibilities beckon us.

That’s our peak that we are going to put a flag on.

What is yours? Let us know by replying to this email.

You can also reply to this email to schedule a free career counselling phone call with our experts!

If your goal is to push the boundaries of what is possible to accomplish with legal knowledge, I invite you to experience one of these courses from LawSikho:

DIPLOMA

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Intellectual Property, Media and Entertainment Laws

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Criminal Litigation & Trial Advocacy

Certificate Course in Real Estate Laws

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Certificate Course in Legal Practice Development and Management

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post What is the peak you will scale? appeared first on iPleaders.

This article is written by Srishti Kaushal, a first-year student of Rajiv Gandhi National University of Law, Patiala, Punjab. In this article, she discusses Uber’s acquisition of its Middle East competitor Careem and its impact upon various stakeholders.

Introduction

For any business to be successful, it is essential to manage the competition. In fact, If the competition cannot be managed, it is better to just leave the market. But, there is one other thing you can do- acquire your competitor. Sudhanu Barik once said either buy or bury your competition. In 2019, Uber decided to do just that by acquiring its biggest competitor in the Middle East, Careem.

In a letter addressed to its employees, Uber’s CEO Dara Khosrowshahi said that Uber has acquired Careem for $3.1 billion, thereby aligning the common vision of the companies. He also said that Careem would work as an independent brand which has, time and time again, proven its ability to develop innovative local solutions. It has also played a key role in shaping the future of urban mobility across the Middle East, becoming one of the most successful startups.

In this article, we will understand what the deal was all about, the reasons behind Uber’s decision, how it affected Careem and what was the impact of the acquisition on the various stakeholders of the companies.

Uber

Uber Technologies Inc. or Uber is a San Francisco based American ride-hailing company offering many services like peer to peer ridesharing, ride service hailing, food delivery etc. As of 2019, it is estimated that Uber has more than 100 million users worldwide and is operating in approximately 63 countries and 785 cities worldwide.

Since its inception in 2009, Uber has come a long way and won over the public’s heart throughout the world. It has a market valuation of $49 billion. It’s innovative ways and techniques have bought remarkable changes in the industry, so much that it has been referred to as Uberisation, and many companies have gone on to call their products as “uber for” their products. 

In 2019, Uber finally went public with an initial public offering of $45.

Careem

Careem is one of the few ride-hailing and vehicle for hire companies which has managed to make a name for themselves and win over a market with its unique propositions. Based in Dubai, It is operating in over 120 cities in 14 countries in the Middle East, Africa and South Asia. It was started in 2012 by Mudassir Sheikha and Magnus Olsson. It has created employment for more than 1 million people in the regions of its operation and has 30 million registered users. In 2018, the company got valued at $2 billion. Presently, Careem works as a subsidiary under Uber but has separate operations.

Details about the acquisition

In March of 2019, Uber-Careem Deal was finalized. Let’s look into the details of the deal to understand the acquisition better.

After 9 months of continuous negotiations, Uber and Careem finalized their deal on March 2019. On 23rd March 2019, Uber announced that it will be acquiring Careem for $3.1 billion, paying $1.4 billion in cash and 1.7 billion in convertible notes. These notes were convertible into Uber’s share at the price of $55 per piece. This horizontal acquisition (acquisition by which 2 companies providing similar services come together) created a record for the highest price paid for acquiring a middle east tech startup.

Through this deal, Uber acquired Careem’s mobility, delivery (Careem NOW) and payment (Careem PAY) business across the greater middle eastern region, including Egypt, Jordan, Pakistan, Saudi Arabia and the United Arab Emirates. The acquisition made Careem a wholly-owned subsidiary of Uber. But Careem’s app, brand and operations were left intact, and it was decided that both the apps would work separately.

Through this deal, Uber also bought all of Careem’s external investors. It also acquired Careem’s equity.

As far as the board of directors is concerned, Careem’s co-founder Mudassir Sheikha, Magnus Olsson and Abdula Elyas stayed on Careem’s board after the acquisition. However, Careem’s board was overhauled to some extent. While two seats were retained by Careem, three went to Uber. These 2 seats were taken by Mudassir Sheikha, Magnus Olsson, and it was decided that Mudassir Sheikha would continue as Careem’s CEO.

Finally, in December 2019, Egypt’s government gave consent to the acquisition. However, the Egyptian Competition Authority (ECA) placed some restrictions upon the deal and laid down some provisions for the combined business to follow. These are:

• The merged firm would have to share its mapping and trip data with any emergent rivals.
• Companies shall share consenting riders details with any competing companies.

These controls would be applicable for:

• Five years, or 
• Till at least one alternative ride-hailing provider achieve a weekly market share of 20%, or
• Alternative ride-hailing providers achieve a 30% market share collectively across various cities.

How does the acquisition affect the companies?

Now that we know what the deal exactly was, let’s understand the reasons why the companies agreed to the deal. Why did Uber pay the whopping amount of $3.1 billion? What benefits did Careem get through this deal?

There are many reasons why Uber decided to go with this deal. Let’s discuss them in detail.

• Uber decided to become a public company in 2019. However, the deal with an initial public offering (IPOs) is that the company is required to show continuous growth. Uber had faced legal bans in various countries, which affected its growth. Careem, on the other hand, had shown tremendous growth of nearly 30% on a monthly basis and thus acquiring Careem helped Uber to increase its consistency and growth.
• Uber has been involved in many controversies. It has been alleged for many heinous crimes like rape and murders. As a result, Uber faced full and partial bans in many countries. Uber understood that laws in the Middle East region are very strict and Uber realized that these controversies might become a hindrance in maintaining a license in the Middle East. Careem, however, is known for its fair working and women empowerment. Thus, through acquisition, Uber avoided a ban in the area.
• Middle East region is very traditionally routed. People have a great affinity towards the homegrown brands. Because of this, international players like Uber can face a lot of difficulty in establishing itself. Uber, through this acquisition, carved out an easy way of expanding its geographic footprint and winning over the Middle East market.
• Previously, Uber has faced many defeats in markets away from home. For instance, in 2016, Uber sold its services to Didi Chuxing, the local taxi-hailing business in China, because of which it lost around $1 billion every year. Similarly, it also withdrew its services from Singapore because of the local taxi-hailing company, GRAB. Uber clearly learned a lesson and avoided the same from happening in the Middle East by acquiring Careem.
• Compared to Uber, Careem had a larger presence in the Middle East, North Africa, Pakistan and Turkey, with operations in 98 cities (Compared to Uber’s 23). With this acquisition, Uber capitalized on the popularity and brand value which Careem had created over the past nine years. The merger helped Uber to get better revenues and greater market share. 

For Careem as well, this deal was quite beneficial. To understand this let’s look at what the CEO of Careem has said.

Muddassir Sheikha said that “by joining forces with Uber, Careem would be able to achieve its ambitions of improving and simplifying people’s lives and building an organization which inspires all. The advanced Western technology would not only help Careem in gaining a greater market share, but it would also go a long way in helping Careem in becoming a super-app (a do-everything mobile app), which it has always wanted to be.”

Moreover, this deal brought a lot of benefits for Careem’s employees and investors. To understand these benefits, let’s look at the impact of the deal in detail.

Impact of the acquisition

Both Uber and Careem have multiple stakeholders. Of course, a deal of this magnitude affects them. Let’s see how different stakeholders would be impacted by this acquisition in detail.

Customers

Uber and Careem, individually were two of the biggest taxi-hailing companies. Their combined operation created a void in the industry. This happened because as a result of the deal Uber has achieved more than 60% of the market share in the Middle East and North African region, where Careem had dominated. 

This has essentially created a monopoly for Uber. For customers, this might be a problem as consumers would face a lack of options. This would also give power to Uber to raise the fares as they would have no real competition. In fact, this is what happened in China after Didi (Chinese local taxi-hailing services provider) won the battle with Uber and bought it out.

However, there is an upside as well, Uber and Careem have both proved to have impeccable service and features. Thus, it cannot be denied that customers may gain the advantage of more advanced service as a result of this deal.

Careem’s Employes

Before we discuss the deal’s effect on Careem’s employes, it needs to be clarified that the drivers or “captains” do not qualify as Careem’s employees, and are actually independent contractors.

Now, when two companies merge together, the effect on employees is usually negative. This is because as two companies streamline their workforce and expenses, continuing with all employees becomes quite uneconomical. Moreover, when two companies from different areas merge, new cultures are introduced and a change is observed.

Since Careem is a local company from the Middle East and North African region, where culture and traditional practices are given high importance, the introduction of western culture by Uber could cause a plethora of options and make it difficult for the workforce to adapt to the new practices.

But there is also a positive side to the acquisition for the employees which can not be overlooked. All 4000 employees of Careem had stock options and as part of the deal, their shares have been bought by Uber. As a result, all these employees have made a good sum of money. In fact, at least two hundred employees have become dirham millionaires and at least 75 employees have become dollar millionaires.

Investors

The Uber-Careem deal was a huge bargain for Careem’s investors. This can be clarified by going back to the term of the deal. As per the terms agreed upon, on listing in the New York Stock Exchange, if the share price of Uber is $55 or lower, the investors would get the minimum guaranteed price of $3.1 billion. And, if Uber got a higher valuation than $55 per share, they, of course, stand chances of even higher profits.

The advantage of this deal was clearly visible to the investors who welcomed it open-heartedly. Let’s look at the testimonials of some investors. 

• Al Taylor said it would receive $1.34 billion riyals profit as a result of this deal.
• Saudi Telecom, which had invested in Careem indirectly through its venture funds, said that it will receive $275 million as a result of this deal.

Now, Uber’s share prices opened at $42 because of which though the investors did not make over and above profits, it can’t be denied that it was a good deal for them. Moreover, with the shares of Uber that they continue to hold, these investors can still look for profits in the future.

Other startups 

Uber-Careem deal is actually a golden opportunity for new taxi-hailing players in the Middle East to enter the arena and monetize their startups. As discussed before, because of the lack of competition, the acquisition has led to a huge void in the industry. New, lesser-known players have an advantage of entering into this industry by offering cost-efficient, reliable and local alternatives, making localities favour them. Moreover, the high local sentiments in the people in the Middle East and North America region further strengthen their position in this regard. 

Also, this deal has brought in a lot of attention to this area, which has the potential to encourage more investments in the area, as more international players will want to merge with or acquire the local startups.

Conclusion

Concerns like the development of a monopoly leading to increased prices for the customers, loss of a homegrown business and loss of profit money for the regional markets because of Uber-Careem merger cannot be overlooked. But, there is a massive upside to this deal as well. 

Not only does this deal bring in handsome rewards for the founders, investors and employees of Careem, but it also has an amazing effect on the Middle East startup ecosystem. As a result of this deal, it is the region which wins through the vast sum of money which gets reinvested locally. This deal has successfully sent out a message to the international investors that entrepreneurs in Dubai can successfully nurture innovative projects and has also created hope for further acquisitions which can bring in more money.

Moreover, as far as Uber is concerned, this acquisition would enable it to take advantage of Careem’s local knowledge and brand value and thus, will definitely help it in strengthening its global transportation network and becoming a global leader. 

References

• https://newsskill.com/uber-acquisition-careem-change-middle-east-ride-hailing-sector/
• https://digitalrightsfoundation.pk/wp-content/uploads/2019/01/Careem-Uber-Research.pdf
• https://www.thenational.ae/business/technology/hundreds-of-careem-millionaires-after-staff-share-in-3-1-billion-uber-payout-1.841866
• https://www.bloomberg.com/news/articles/2019-03-26/uber-announces-3-1-billion-deal-to-buy-mideast-rival-careem

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post The deal between Uber and Careem: Details you must know  appeared first on iPleaders.

This article is written by Jessica Kaur, a first-year student currently pursuing B.A. LL.B. (Hons.) at Rajiv Gandhi National University of Law, Punjab. Here, she discusses the meaning and importance of a Deemed University and the procedure for an institution to acquire this status.

Introduction

If you’re reading this, you’re either in a university right now, or will be in the future, or perhaps you studied in a university in the past. Either way, you might agree that universities play a big part in education, by imparting professional knowledge and helping their students develop skills. They also undertake research and innovation projects and act as centres of cultural and social growth. 

Universities are not all the same. There are four main types of universities in India, based on who establishes and runs them: central, state, deemed and private universities. In this article, we shall be looking at one of them in detail, i.e. “Deemed University”. We’ll find out what a deemed university is, how it works, and how an institution can go about acquiring the status of a deemed university.

What is a Deemed University?

Before defining a deemed University, you must know about the University Grants Commission (UGC). UGC is a statutory body set up by the Union Government in 1956, and managed by the Ministry of Human Resource Development. This body coordinates and supervises higher education in India. One of its most important tasks, however, is to give recognition to universities. This means that higher education institutions classified as universities only if they are established under some Central or State Act and are recognised by the UGC.

The UGC works according to the provisions mentioned in the University Grants Commission Act, 1956. This Act applies to all universities in India. Section 3 of this Act says that the UCG can advise the Government to declare any other higher education institute (which is not a university), to be a Deemed University. And this brings us to the definition of the term.

A Deemed University is, quite simply, an institution which provides high standards in a specific area of study and, because of this, is deemed to be a university by the Central Government upon the advice of the UGC. This status helps such institutions to enjoy the same benefits and privileges that are available to any other university in the country.

Why were deemed universities set up in India?

After Independence, there was an urgent need to increase people’s access to proper higher education facilities and inculcate skills and knowledge in them to work and earn a living. Our country had been consistently exploited and conflict-wrought under the British, and developing our human resources was the only way to improve the nation’s condition. Thus, the government established many universities for higher education, and over time the funds and efforts put into them helped them touch international standards. However, the demand was huge and ever-increasing, while the supply of universities by the government lagged behind. Meanwhile, private entities had also begun setting up their own educational institutions (especially after privatisation measures were adopted) and some of them also began reaching the set standards of higher education. To encourage more such universities and to provide them with government recognition and benefits, the provision for the status of Deemed to be University was made.

If a university fulfilled certain criteria fixed by the UGC and acquired the status of deemed university, it would indicate that it reached such standards of education as prescribed by the UGC. Thus, people could rely on and trust such an institution if they were looking to enroll in it, even though it was not a government-established institution. The UGC guidelines which determine everything related to the deemed universities, from the procedure to acquire this status to the details of its governance body, are given in the UGC (Institutions deemed to be universities) Regulations, 2019.

Role of deemed universities in the Indian Education System

The UGC (Institutions Deemed to be Universities) Regulations, 2019 mention some of the main objectives of the Deemed Universities. Thus, according to these regulations, the main role of a deemed university is to- 

1. Provide excellence and innovation in higher education at the undergraduate, postgraduate and research degree levels.
2. Engage in the areas which they specialize in, and contribute to higher education in diverse disciplines. 
3. Provide high-quality teaching to their students and organise internationally-recognised research projects. 

How do deemed universities differ from private universities?

Deemed Universities and Private Universities may seem similar, since both of them are not established directly by the government and do not fall under its immediate control. However, they do differ in certain important aspects.

The main points of difference between deemed universities and private universities are summarised below:

Eligibility criteria for an institution to be declared as a deemed university

The UGC doesn’t just go ahead and grant deemed university status to any higher education institute out there; there is a strict and comprehensive eligibility criteria that must be met by the institute for it to get into the exclusive club. Take a look at the eligibility criteria, as given Clause 4.01 of the UGC (Institutions deemed to be universities) Regulations, 2019: 

1. The institution should be at least 20 years old.
2. It should have valid accreditation by National Assessment and Accreditation Council (NAAC) with at least 3.26 CGPA for three consecutive cycles. If it is a technical institution, then it should have at least two-thirds of the technical programmes accredited by the National Board of Accreditation (NBA).
3. It should be among the top 50 institutions in any specific category or among the top 100 overall in the National Institute Ranking Framework (NIRF) rankings.
4. It should offer multi-disciplinary courses, like other universities.
5. It should have at least 2 annual publications by each faculty member in SCOPUS, Web of Science or peer-reviewed journals recognised by the UGC.
6. The teacher student ratio should not be less than 1:20. The number of faculty members should not be less than 100 and the students, not less than 2000. Out of these students, at least one-third should be postgraduate/research students. 
7. There should be at least 5 Post Graduate Departments which have been in existence for at least 3 years and have research programmes.
8. It should have academic and physical infrastructure as prescribed by the Commission and/or the relevant statutory bodies.
9. It should have a built up area of at least 30 sq.mts. per student, which includes academic, administrative, common and recreational facilities.

Procedure for Declaration of an institution as an institution deemed to be a university

Our discussion on deemed universities will not be complete without understanding the process by which an institution can apply for and acquire this status. Let’s take a quick look at this procedure.

1. After an institution has gone through the eligibility criteria and is certain that it is fulfilled, it may apply online to the UGC on its web portal.
2. While applying online, certain important documents need to be attached by the institution. We will come to those later.
3. After the application has been submitted, the UGC will verify the documents with the concerned public authorities to make sure they are accurate.
4. The UGC will then examine the whole application with the help of a nominated Expert Committee. At this stage, it will assess the academic and physical standards of the institution and submit its advice to the Government within 60 days from the date of online application. 
5. The Government, keeping in mind UGC’s advice, will give its final decision within 30 days of receipt of advice. Here, it will either declare the institution as a deemed university under Section 3 of the UGC Act, 1956 for an initial period of 5 years, or reject the application and convey this to the sponsoring body of the institution along with the reasons for rejection.
6. In case of an institution which is declared as a Deemed university at the previous stage, the University/ies which earlier had affiliation to the institution will transfer the credits and the transcripts of students within 30 days of such declaration. 
7. Hereafter, the existing students of the deemed university may get the degree from the affiliating University or Deemed to be University (as per their preference), while the newly admitted students will get a degree of the Deemed to be University. 

How to file an Online Application 

In today’s digital world, it is no surprise that the UGC provides for online application for a deemed university status. The process of applying is very simple; you just need to fill a form and then submit the documents mentioned by the UGC Regulations, in the manner prescribed. 

Documents required for filing the Online Application

Granting deemed university status to an institution is a serious business, and it requires a lot of supporting documents to be submitted by the institution. These have been mentioned in Clause 5.02 of the UGC (Institutions deemed to be universities) Regulations, 2019 as follows:

1. Documents proving that the institution owns the land which it occupies.
2. Certificates showing the accreditation given to them by NAAC/NBA.
3. Approval of the relevant statutory bodies for the professional courses which the institution is currently providing.
4. Information along with evidence regarding the existing academic and physical infrastructure. 
5. Institution Development Plan showing the institution’s vision and plan for the next 5-years.
6. Details of financial sustainability of the institution. 
7. A letter of commitment from the respective Government to continue to financially support the institution even after it receives deemed university status (only if the institution is funded by the Government).

Copies of these documents should be publicly disclosed on the website of the institution, after due certification by its Head. 

If the institution fails to submit any of these documents while applying, the online systems will reject their application. Also, if any information stated in the documents is found to be false after the verification process, the institution would be liable for criminal prosecution under the Indian Penal Code, 1860.

Procedure for declaration of an institution as deemed to be university under De-Novo Category

Any sponsoring body, with an existing track record in education, can apply to the UGC for setting up a new Institution Deemed to be University which will undertake study and research in unique and emerging areas of knowledge that are not offered by any existing institution. This is called a De-Novo Deemed University. The procedure for this, given under Clause 6.04 of the UGC (Institutions deemed to be universities) Regulations, 2019, is as follows:

1. An online application should be filed by the sponsoring body, for which a form needs to be filled. The application needs to include the following documents:

• A Detailed Project Report (DPR) showing its vision and plan for the next fifteen years, with clear outcomes.
• Details of the land on which the proposed deemed university will be established, along with proof that the body owns that land.
• Details of the financial sustainability of the institution.
• Details of the sponsoring body, along with the details of the key academic and administrative personnel.
• An undertaking that the body will comply with all provisions of the UGC Regulations.
• A letter of commitment from the respective government to continue to financially support the institution even after it acquires the Deemed University status (only if it is a Central/State/UT Government institution).

2. The application will then be examined by an Expert Committee. The Committee may direct the applicant to make a presentation to show whether the institution falls under de-novo category or not, and whether the Detailed Project Report complies with the UGC Regulations. The Committee may also visit the applicant institution, if necessary.

3. The Expert Committee will submit its report to the UGC within 30 days. It will either recommend the the issue of Letter of Intent or not.

4. The UGC shall forward its advice to the Government within 30 days of receiving the Expert Committee’s report.

5. The Government will give its decision in 30 days, keeping in mind the advice of the UGC. It will either issue a Letter of Intent for three years to the institution or reject the proposal by giving the reasons for the same.

Procedure for an institution deemed to be a university to start an off-campus centre

Institutions Deemed to be Universities which are placed in Category-I & Category-II or are ranked in the top 50 universities in the current NIRF rankings can start new Off-Campus Centres too. This refers to another centre of education run by the management of the deemed university, but separate from its original campus.

The Institutions applying for Off-Campus Centre(s), must meet these criteria:

• The teacher-student ratio should not be less than 1:20. The number of faculty members should be at least 25 and the students, at least 500. Out of these students, at least one-third should be postgraduate/research students.
• There should be at least 3 Post Graduate Departments with research programmes.
• The deemed university should have academic and physical infrastructure as prescribed by the Commission and/or the relevant statutory bodies. 
• It should have a built up area of at least 30 sq. mts. per student which includes academic, administrative, common and recreational facilities.

The procedure to be followed to get permission to start an off-campus centre is given in Clause 7.01 of the UGC (Institutions deemed to be universities) Regulations, 2019. You can have a look at it below: 

1. The Deemed University has to submit their application to the Government in the form of an Affidavit to get approval to start an Off-Campus Centre.
2. The application should contain details of existing or proposed infrastructure facilities, courses/programmes of study, student intake, financing arrangements, etc.
3. The Government will examine the application and then forward it to the UGC for its advice. 
4. In case the Institution Deemed to be University belongs to Category-I or is ranked in the top 50 universities in the current NIRF ranking.

• The Deemed University need not be physically inspected. 
• The Chairman of the UGC may set up a Standing Committee to examine the information given by the Institution. 
• The Chairman shall forward the advice to the Government within 30 days after he receives the observations of the Standing Committee. 
• Such an institution can establish only 3 off-campuses in a period of 5 years, with at max 1 campus being established in 1 academic year. 

5. In case the Institution Deemed to be University belongs to Category-II.

• The information given by the applicant may be assessed and verified by an Expert Committee.
• The Chairman, on behalf of the UGC, shall forward the advice to the Government within 60 days after receiving the observations of Expert Committee. 
• Such an institution can establish only 2 off-campuses in a period of 5 years, with at max 1 campus being established in 1 academic year. 

6. The Government will give its decision in 15 days, keeping in mind the advice of the UGC. It will either issue a notification for starting of the off-campus centre(s) or reject the proposal stating the reasons for the same.

Procedure for an institution deemed to be a university to start an off-shore campus

A university may want to expand its operations to new territories after a few years of successful running. This helps it earn more revenue and establish itself in more and more areas. For this, universities set up off-shore campuses, i.e. campuses beyond the shores of the university’s home country.

Institutions Deemed to be Universities are allowed to start new Off-Shore Campuses. However, before setting one up, there are 2 broad steps to be followed:

1. They need to get a No-Objection Certificate from the Ministry of External Affairs and the Ministry of Home Affairs. 
2. Then, they must get permission from the Ministry of Human Resource Development.

After this, they can start an off-shore campus.

Institutions Deemed to be Universities have to follow similar admission criteria, curriculum, examination system and evaluation system in their off-shore campus as in their main campus. Also, all the information about off-shore campuses should be put up on their website.

How to start new courses/departments in the campus or approved off-campus of the deemed university

In today’s fast-paced and ever-growing world, new areas of study are coming up frequently and a need is felt for standardised education in every field. To keep up with this, existing universities may want to introduce new courses/departments etc. in their existing campuses.

Institutions Deemed to be universities which belong in Category-I or Category-II or rank in the top 50 universities in the NIRF ranking may start new courses/departments/programmes etc. in their existing campus and approved off-Campus centre(s). To do so, a simple procedure needs to be followed, which is explained below:

1. The Institution shall first take the approval of its Board of Management and the relevant Statutory bodies. 
2. Then, it shall inform the UGC about starting a new course/ programme/ department/ school/ centre within one month of the grant of approval mentioned in the previous step. For this, a form needs to be filled.
3. If the Institution Deemed to be University receives funds from the Central or the State Government, it needs to take their approval too.

Responsibilities of the deemed universities in connection with UGC’s performance inspection

To make sure that the deemed university is upholding its standards of education and performing its functions properly, the UGC monitors and checks it annually. To score well in this inspection, the deemed university has to fulfill some responsibilities. Some of them are:

1. Ensuring that its graduate students get employment/self-employment opportunities or go ahead for higher education.
2. Promoting social activities among the students while they are studying in the institution
3. Training the students in professional skills. 
4. Inculcating the spirit of entrepreneurship and critical thinking among the students.
5. Ensuring that the teacher student ratio is not less than 1:20. 
6. Using technology in its classrooms for more effective learning. 
7. Ensuring that examinations promote and measure students’ understanding and application of concepts.
8. Making all its teachers take an annual refresher training for acquiring better and newer teaching methods.

Institutional governance required for a deemed university

A Deemed University, like any other organisation, needs a mechanism for its daily operations and management of affairs. For this, a system of institutional governance for the deemed university has been devised.

First and foremost, the deemed university needs to be officially registered. Clause 10.01 of the UGC (Institutions deemed to be universities) Regulations, 2019 says that such an institution must be registered as a not-for-profit organisation under either the Societies Registration Act, 1860 or the Public Trust Act, or under Section 8 of the Companies Act, 2013. 

The primary governing body of the deemed university is the Board of Management. Let’s discuss its composition, powers and duties, and then also look at other authorities and officers who play a role in the governance of the deemed university.

Board of Management

The Board of Management is headed by the Vice-Chancellor, and its other members include the Registrar, two Deans, two teachers, etc. It should have at least 10 members and at max 15 members. All members, other than the ex-officio ones and the teachers, remain in the body for 3 years. The term of the teachers, meanwhile, is 2 years.

The Board is the body which makes the rules of the deemed university and takes decisions in academic, administrative, financial and developmental matters. To perform these functions, it must conduct its meetings at least 4 times in one academic year.

Authorities of the Institution Deemed to be University

Apart from the Board of Management, there are a lot of other bodies and authorities in a deemed university that look after certain specific functions in the institution. They have been explained briefly below.

Academic Council

This is the main academic body of the Deemed University and is responsible for maintaining the standards of teaching, research and training. It also approves the syllabus and coordinates the research activities, examinations and tests.

The members of the Academic Council include the Vice-Chancellor, the Pro Vice-Chancellor, Dean(s) of Faculties, Heads of the Departments, the Registrar, ten professors, etc.

This important body takes care of a lot of matters. Some of its powers and duties include supervising all academic work in the deemed university, promoting research, prescribing the courses/programmes necessary for the degree and diploma, appointing examiners and moderators, suggesting measures for departmental coordination, etc. To perform all these functions, the Academic Council must meet at least thrice during one academic year.

Planning & Monitoring Board

The Planning & Monitoring Board monitors the development programmes of the Institution Deemed to be a University. It advises the Board of Management and the Academic Council on matters which are necessary for the fulfillment of the objectives of the Deemed University.

Finance Committee

All members of the Finance Committee, other than ex-officio members, hold office for 3 years. The main job of the Finance Committee includes tasks like preparing the annual accounts and financial estimates of the Institution Deemed to be University, and fixing limits on the total recurring expenditure and the total non-recurring expenditure of each year. The Finance Committee has to meet at least twice a year.

Board of Studies

One Board of Studies is set up for each Department. It comprises the Dean of faculty/ Head of the Department, all the professors of the faculty/department, two Associate Professors, two Assistant Professors, and 2 experts in that field.

Selection Committee

One or more Selection Committees are set up for making recommendations of persons to be appointed as Professors, Associate Professors, Assistant Professors, etc. in the deemed university.

Officers of the Institution Deemed to be University

Clause 10.12 of the UGC (Institutions deemed to be universities) Regulations, 2019 talks about the various officers who will head an Institution deemed to be a university. Let’s take a look at them in brief.

Chancellor & Pro Chancellor

• The Chancellor is appointed by the sponsoring body of the institution for a period of 5 years, and can be re-elected only once. He presides over the convocations of the deemed university. He also nominates other persons in authority to further the interests of the institution, whenever he is empowered to do so.
• The Pro-Chancellor is also appointed by the sponsoring body, to carry out the tasks assigned to him by the Chancellor. He acts in place of the Chancellor when the latter is not available. However, this is not a mandatory post in a deemed university.

Vice-Chancellor

The Vice-Chancellor is appointed by the Chancellor. The qualifications a person must fulfill in order to become a Vice-Chancellor are prescribed by the UGC. He is appointed for a period of 5 years, and can be re-elected only once. However, a person cannot remain in the office of a Vice-Chancellor after he has become 70 years old.

If the office of the Vice-Chancellor becomes vacant due to his death, resignation, etc. then the Pro Vice-Chancellor would perform his duties and if he, too, is absent, this role will be performed by the senior-most professor. 

The Vice-Chancellor is the Principal Executive Officer of the Deemed University. He supervises and controls the university’s affairs and implements the decisions of the authorities. Moreover, he is the Ex-officio Chairperson of the Board of Management, the Academic Council, the Finance Committee, the Planning & Monitoring Board and Selection Committees. The Vice-Chancellor has the authority to delegate some of his powers to his subordinates, after the approval of the Board of Management.

If any person is aggrieved by any decision of the Vice-Chancellor, he/she can appeal before the Board of Management within 30 days.

Pro Vice-Chancellor

The Board of Management may create the post of the Pro Vice-Chancellor in the Deemed University if needed. He shall be appointed by the Board on the recommendation of the Vice-Chancellor. 

Registrar

The Registrar is appointed by the Board of Management on the recommendations of the Selection Committee. When the office of the Registrar is vacant or when he is on leave, the duties and functions of the Registrar are performed by any person appointed by the Vice-Chancellor.

The Registrar is the ex-officio Secretary of the Board of Management, the Academic Council and the Planning and Monitoring Board. He is directly responsible to the Vice-Chancellor and works under his direction. 

The duties of the Registrar include managing the records and funds of the deemed university, conducting its official correspondence, making arrangements for examinations, to enter into agreements on behalf of the deemed university, to maintain the buildings, gardens, vehicles and other infrastructure of the deemed university, etc.

Finance Officer

The Finance Officer is appointed by the Board of Management. He works under the direction of the Vice-Chancellor. His work is to prepare the annual budget estimates and statements of account of the deemed university for submission to the Finance Committee and the Board of Management. He also manages its funds and investments.

Controller of Examinations

To no one’s surprise, the Controller of Examinations is also appointed by the Board of Management. He makes sure that all the directions given by the Board of Management, Academic Council and Vice-Chancellor regarding the examination and evaluation are followed.

Dean 

In a university, there usually exist different departments dealing with different subjects and courses. The departments dealing with similar subjects can be grouped under one faculty, who is headed by a Dean. 

Head of the Department

Each department also has its own separate head, who is appointed by the Vice-Chancellor from amongst the professors of that department. He is usually appointed for 3 years and can be re-elected once more, but not in a consecutive term.

Benefits available to a deemed university

Deemed to be universities are not established by the Government, and hence they have much more autonomy than the Central or State universities. Here are some of the benefits that are available exclusively to deemed universities:

• They have the authority to conduct their own examinations, set guidelines for admission, design their own curriculum/syllabus, etc.
• Moreover, deemed universities are authorized to give their own degree/diploma.
• Deemed universities can also decide their own fees structure for their courses instead of following the structure or approach given by the Government.

Is studying in a deemed university a good idea?

We’ve discussed almost everything we could about a deemed university- what it means, what the procedure is for an institution to acquire this status, who governs and manages this institution and what the benefits are of becoming a deemed university. However, a very important question still remains unanswered, especially from a student’s point of view: is studying in a deemed university a good idea?

Today, there are over 130 deemed universities in India, and of course, all of them are churning out graduates every year. These graduates are sometimes more trained and skilled than those who’ve studied in government colleges, because let’s be real, government institutions aren’t always the most tech-savvy, high-end or contemporary. Deemed universities, on the other hand, place high emphasis on up to date education, practical knowledge and making their students global citizens. They have autonomy in their courses, fee structure, etc., which saves them from all the red-tapism and unnecessary rules and formalities that plague many government institutions.

At the same time, though, the situation is not all rosy for deemed universities. Government institutions have been around for a very long time, and many of them have established a mark for themselves in the higher education sphere. Their alumni include famous names from scientists to actors to politicians, and the good ones receive hefty funds from the government to make themselves better. And one thing is undeniable: people prefer to study in government colleges. They are considered to be more serious about their academics and research activities, and their degree holds more value in the minds of people. This could also be because deemed universities often charge more than many people’s pockets hold, because of which only those who can afford them join them. This gives the impression that deemed universities only care about money, and the ones who can pay for it.

The truth of the matter is, we can’t make generalisations. There are plenty of deemed universities that have established their names in the country, like Christ Deemed-to-be-University, VIT, BITS, and others. These rank even better in their fields than many State or the Central Universities. On the other hand, there are scores more deemed universities that show disappointing performance, and at the same time tons of Government Universities like IITs, IIMs, and NLUs which continue to raise the bar of education consistently higher. At the end, it all boils down to which university you are considering, and what its performance has been like.

References

• https://www.ugc.ac.in/pdfnews/1295001_DEB-Regulation-2019.pdf
• https://mhrd.gov.in/sites/upload_files/mhrd/files/upload_document/ugc_act.pdf

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Dhruv Vatsyayan of Law School, Banaras Hindu University who is pursuing his 1st year of B.A.LL.B and is a sports enthusiast by passion. In this article, he deals with the Match Fixing and Betting Laws in India.

Introduction

In November 2019, the Sri Lankan Parliament passed the Prevention of Offences related to Sports bill, which had a strong backing of Arjun Ranatunga, former World Cup-winning captain and currently a minister in the government.

This brought light to the fact that India, which is the global hub for the sport, doesn’t have stringent legislation to punish match-fixing and corruption in sport especially in cricket.

According to a report by FICCI, the illegal sports betting industry in India holds for more than 3,00,000 crores market, which is almost 90% of the worldwide market share.

While there are various recommendations laid out by various reports regarding match-fixing and betting laws, there are loopholes and voids which exist due to the absence of any kind of legislation for the same. This void continues to haunt sports enthusiasts and administrators.

So, let’s discuss the legality and legal consequences of match-fixing and betting in India.

What is Betting and Match-Fixing?

Betting and match-fixing are two terms that we come across very frequently but we often confuse by using them synonymously.

Betting is essentially a form of gambling and sports betting is done on the outcome of sporting events. Such bets do possess only two possible outcomes, either you win the bet or you lose it. 

While match-fixing means pre-determining the result of a game through corrupt means by violating the rules of the game and often the law of the land.

Now, one must wonder, what is the relation between these two terms?

So, it must be understood this way, that when a bettor bets for a game, he does it for gaining profit by winning it. Some bettors, in order to win the bet, do get into contact with the players and officials. They either try to convince the player to underperform or they extract some pieces of information from the officials in order to make a bet on the safe side.

Convincing is done by offering a hefty amount of money to the players or the officials. The person who offers the money to underperform is known as a bookie or a bookmaker.

Nowhere in Indian laws, betting or match-fixing is defined. However, Section (d) of Part 1 of the CBI Report on the match-fixing classifies following acts under the ambit of match-fixing:

• Such instances, where a player or a group of players get monetary offerings to underperform in a game.
• Such instances, where a player himself/herself bets in such a way that would naturally make them underperform than their abilities.
• Such instances, when a player gives certain information, like team composition, team formation, pitch conditions, etc to a booker or any booker syndicate that would affect the result of a game.
• Such instances, where the curators and groundsmen are bribed to prepare the pitch in a way which suits the bettors.
• Such instances, where current or former players are contacted by the bookies and they try to influence other players to get involved in fixing.

However, there may be various different reasons too. For example, suppose there is a tennis player H.Dekisugi from China. He is participating in a multilateral series. But, from next month, he has to participate in a world super series, which is way more important than this ongoing series. He intentionally plays loosely to be eliminated in the early rounds, so that he may train properly for the world super series. 

This particular instance can also be treated as match-fixing as the player underperformed intentionally.

Thus, any such instance, where a particular player underperforms intentionally, should be treated as a case of match-fixing.

Current legal framework for dealing with Match-Fixing

The Law Commission, in its report in the year 2018 advocated for criminalizing of sports fraud and match-fixing.

Chairman of the commission, Justice B.S.Chauhan, also hinted that this would be dealt with severe punishments and may include jail terms also. The need for such stricter laws has always been felt, and especially since the Azharuddin match-fixing scandal came to light.

The year 2001 was a year of turmoil in the Indian Cricket which changed the sport in India forever. By fall of April 2001, the news of Indian skipper, Mohammad Azharuddin being involved in match-fixing, spread across the cricketing fraternity and sensationalized the cricketing world.

The Hyderabad stalwart, along with Ajay Jadeja, Nayan Mongia, and Nikhil Chopra was accused by the South African skipper, Hansie Cronje for having contacts with bookies and bettors. 

Lastly, by the fall of November 2001, it was pretty much established that Azhar was involved with bookmakers and was sentenced to a life ban by the BCCI.

During this fiasco, the CBI was entrusted with preparing a report on match-Fixing in which CBI defined match-fixing, but the definition was restricted only to the players and not the supporting staff.

However, to deal with such cases of match-fixing there is no such specific legislation or any section in IPC which deals with such cases.

In most cases, such situations are dealt with under Section 415 of the Indian Penal Code which is about cheating. It is dealt in this way because the players are supposed to be responsible towards the public and a large mass of fans as they share a relationship of trust. When a player involved in match-fixing and intentionally underplays, the breach of trust happens. Thus, they can be charged under this section, but the problem arises during proving the offense and collecting the evidence.

Normally, the standard of proof is much higher in criminal cases, which cannot be achieved in the cases of match-fixing. Thus, it becomes difficult to deal with the match-fixing cases under this section. 

Thus, there are no such specific laws in India regarding match-fixing which restricts the authorities to take stringent actions against the offenders.

Need For Legalizing Sports Betting 

In India, the legal status of betting is not yet dealt with by the judicial courts. To legalize it, the courts must first determine whether it is a game of skill or game of chance. However, when asked by the Supreme Court of India, the Law Commission, in the year 2018 recommended that sports betting should be legalized.

According to the report of the law commission, betting should be legalized so that this underground industry can be regularised and could be kept an eye upon.

By regularising this industry, the menace of match-fixing could be stopped and restricted. Let us see how.

Once the regulations regarding this industry are laid down, it would be easy to identify the legal and illegal bettors and betting agencies. It would help to recognize match-fixers and bookies because most probably, it will be the illegal bettors who would be involved in match-fixing. Thus, in this way, a concrete framework would be functioning and would help to identify people and agencies involved in match-fixing.

Prevention of Sporting Fraud Bill, 2013

Several attempts were made by the government to tackle these issues of match-fixing and sporting fraud previously. But, the most remarkable attempt till now came in the year 2013.

In the year 2013, the Prevention of Sporting Fraud Bill was introduced in the Parliament.

It was drafted with the goal of preventing and combating sports fraud, which affects the integrity of sports and fair play in relation to national and international sporting events and matters connected with them.

This draft bill defines the act of sporting fraud in the following way:

• If a person tries to influence the result of the game for monetary gain, irrelevant of the fact whether the result actually is affected or not,
• If a person tries to alter the playing arrangements or intentionally misapplies the rules of the sport for monetary gain,
• If a person intentionally underplays his true potential for monetary or any other benefits unless such performance is in the interest of the team.
• If a person discloses any such information to any other person which is likely to affect the result of the match,
• If a person omits to perform the duty of informing of any such activities in his/her knowledge.

This draft bill proposed for stringent punishments and imprisonments. It suggested with maximum imprisonment term for 5 years and with a fine of five times the economic benefit derived from the act or 10 lakhs, whichever is greater.

Even any attempt made to commit the offense is punishable with the same punishments as for committing the offense.

The salient feature of this bill is that this bill includes not only players but also the coaches, supporting staff, managers, and administrators.

Now let’s see, what authorities can take cognizance of the offenses defined under this bill.

No court other than following can take cognizance of such cases:

• Appropriate sporting/disciplinary authorities;
• A person assigned by the National Sporting Federation to look after such anti-corruption cases;
• Any person with an intention to make a complaint to the court and having notified about the same to the concerned sporting authority 60 days prior to complaining;
• Courts superior to the judicial magistrate of the first class.

However, due to legislative ignorance of the issue concerned, the bill is yet to be tabled in the parliament, even 7 years after the preparation of the draft.

And throughout these years, the need has been felt along, be it during IPL spot-fixing episode or other cases.

Now, let’s discuss these cases and their implications on the sport and law per se.

IPL Spot-Fixing Fiasco

The biggest franchise-based cricket league in the world, the Indian Premier League went into the news for bad reasons in the year 2013. A handful of players and several other team officials were accused of being involved in match-fixing. 

On the night of 15th May 2013, three players, S.Sreesanth, A.Chavan and A.Chandila were arrested by a special cell of the Delhi Police on the apprehension of being in contact with bookies. All these players represented Rajasthan Royals in the current version of the league. For probing this case, BCCI constituted a committee to inquire into the same and submit a report within 30 days. Later on, when the report was submitted, all these players were found guilty and thus were recommended to the Disciplinary Committee of BCCI for taking actions against them.

On the other hand, the crime branch of the Mumbai Police arrested some bookies and the links were revealed of involvement of Gurunath Meiyappan, CEO of franchise Chennai Super Kings and Raj Kundra, business tycoon, and owner of Rajasthan Royals.

Later on, all the involvements were proved to be true and as a consequence, both the franchise, Chennai Super Kings and Rajasthan Royals were suspended for the next two years, in the year 2015 when the probe concluded.

During this case, Justice Mukul Mudgal committee was formed by the Hon’ble Supreme Court. This committee in its report dealt with the underworld connections of match-fixing and bookies.

The probe committee also came up with several recommendations with respect to restrictions on players. 

This included restriction of access to the players, disclosure of information by the players, supervision, training, and education of the players as well as of the support staff.

Another more high powered committee, RM Lodha committee was also formed. In its report, Lodha Committee recommended a number of directives including that there should be no conflict of interest in the board and the working would be carried on by a committee of administrators.

These steps sent a strong message to all the players, staff, bookies and others to refrain from indulging in match-fixing. However, the void created in the absence of strong legislation still exists and needs to be tackled soon.

Challenges in dealing with Match-Fixing 

Lack of a concrete law dealing with match-fixing and other sports fraud is still the biggest challenge that lies ahead. The task would become much easier if the draft of the Prevention of Sports Fraud Bill 2013 was passed in the parliament. A strong mechanism to punish the people involved in sports fraud is the need of the hour.

The other thing that needs to be followed necessarily is the adoption of the Code of Conduct and ethics by all the sporting associations and federations of the country.

Every federation and association should provide strict punishments and sanctions to their respective members if found involved in any kind of sports fraud.

Taking inspiration from NADA, a dedicated national body dealing with such acts should be formed and a separate wing within police should also be created to investigate such cases.

Again, legalizing the business of betting would prove to be helpful in curbing such cases as the bookies could be easily identified and thus can be stopped from contacting players and other officials.

Conclusion

The menace of match-fixing and illegal betting is a phenomenon that has been haunting Indian sports fans and administrators for a considerable time now. Money laundering and other forms of financial crimes are affecting the sports at different levels.

The players and officials involved should be made aware and should be taught about the repercussions of such involvement. Without moral awareness of players and until concrete legislation into play, this problem can’t be curbed. 

References

1. http://www.legalserviceindia.com/articles/social.htm
2. https://www.news18.com/blogs/india/desh-gaurav-sekhri/a-guide-to-how-and-under-which-laws-players-bookies-and-others-guilty-of-fixing-can-be-punished-11476-747857.html
3. http://prsindia.org/report-summaries/legal-framework-gambling-and-sports-betting-including-cricket-india
4. https://www.dnaindia.com/sports/report-a-timeline-of-mohammad-azharuddin-s-match-fixing-saga-2211910
5. http://prsindia.org/uploads/media/draft/Draft%20Prevention%20of%20Sporting%20Fraud%20Bill%202013.pdf

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This article is written by Kashish Kundlani, a third-year student of (BBA.LL.B) Ramaiah Institute of Legal Studies, Bangalore. In this article, we’ll discuss the offences relating to dowry death and presumptions as to dowry death.

Introduction

Since time immemorial we have seen so many offences against women, where they are tortured and one such offence is dowry death. We all must have heard many cases related to the death caused to a woman for the demand for dowry. It’s very disgraceful for a society where a woman dies for not being able to give dowry and also very shameful where dowry is still being practised. 

Dowry death is defined in Section 304B of the Indian Penal Code,1860. Also Section 113B of the Indian Evidence Act,1872 states the presumption as to dowry death.

Dowry Death

Section 304B of the Indian Penal Code states that if a woman dies within seven years of marriage by any burns or bodily injury or it was revealed that before her marriage she was exposed to cruelty or harassment by her husband or any other relative of the husband in connection to demand dowry then the death of the woman will be considered as a dowry death.

Punishment for dowry death is a minimum sentence of imprisonment for seven years or a maximum sentence of imprisonment for life.

Essential Ingredients

• Death should be caused by burns or bodily injury or by any other circumstances
• Death must occur within the seven years of marriage
• It must be revealed that soon before her marriage she was exposed to cruelty or harassment by her husband or any other relative.
• The cruelty or harassment on her should be in connection with the demand for dowry.

Demand for Dowry

As per Section 2 of the Dowry Prohibition Act,1961 which says that dowry is any property or valuable security directly or indirectly agreed to be given by-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties.

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Various Causes to demand dowry

From the ages, we have seen the demand for dowry but to stop dowry the demand for it should be understood properly by society so that it can prevent its practice. 

The various causes are-

In the name of tradition

We must have seen people calling it a tradition or a custom to be followed in marriages taking place. In the name of tradition which has to be followed by the bride’s family give valuables to the groom’s family.

The groom’s family ask for dowry

The groom’s family voluntarily ask for dowry by giving reasons that their son is placed in a good job and they have a lot of reputation etc. 

Thinking that it will build a reputation in society

Earlier people had a preconceived notion that giving dowry will build up a good reputation in the society. With time it became a show-off concept in society and people started comparing it with others.

Illiteracy

In underdeveloped areas, the literacy rate is very less and people are unaware of the laws relating to dowry, which led to the increased demand for dowry by the others.

Though dowry is also practised by the literates in an underdeveloped area, it becomes a bit more difficult to make them understand the laws.

Is Dowry death a bailable and a cognizable offence?

Bailable Offences- Offences in which the permission from the court to release the arrested person is not required. The arrested person by fulfilling the necessary requirements can be released and the police cannot refuse the person.

Cognizable Offences- Offence in which the police have the authority to arrest any person without any warrant and also has the authority to start an investigation with or without any permission of the magistrate by filing FIR.

Dowry death is a non-bailable and cognizable offence. 

As per Section 41 of The Code Of Criminal Procedure, 1973  the police officer while arresting any person without a warrant, be satisfied with the complaint registered against a person and fulfil all the provision of Section 41 of CrPC.

Case law

State Of Himachal Pradesh vs Nikku Ram And Ors on 30 August 1995

In this case, the couple was married and after 5-6 months of their marriage husband, sister-in-law and mother-in-law started taunting the wife of the husband for bringing less dowry. They started demanding several things from her which was not fulfilled by her. The prosecutor filed a case for torturing the deceased and subjected her to cruelty in order to make her bring more dowry.

Gradually the torture on her increased so much that the mother-in-law hit her with a sharp blade on her forehead causing a deep cut over there.

She was unable to tolerate the ill-treatment by her husband and by her in-laws on her, as a result, she committed suicide by consuming naphthalene balls and died.

During the investigation, the sharp-edged blade was recovered and after the completion of the investigation husband, sister-in-law and mother-in-law were charged under the Section of 304-B, 306 and 498-A of the Indian Penal Code. And the case against them was registered.

The Court after examining all the evidences, it was held that persons who are charged under Section 304-B, 306 and 498-A will be free from these criminal charges as the prosecution failed to produce the evidence against them and only mother-in-law will be held guilty under Section 324 of the Indian Penal Code as voluntarily causing hurt to her daughter-in-law. And imposed a fine of Rs. 3,000, failing to pay the fine will attract simple imprisonment for 1 month.

Pawan Kumar & Ors vs State Of Haryana on 9 February 1998

Facts

Appellant No. 1 is the husband and his deceased wife Urmil. They after some time Shifted to Sonepat (Harayana).

Urmil returned back to her parent’s house within a few days of her marriage and complained about the demands of dowry for refrigerator, scooter etc. She did not fulfil the demands and was subjected to face torture and harassment by the appellants like commenting on her that she looks ugly etc. As a result of such comments and taunts by the appellants, she committed suicide and died due to the burn injuries.

The case was registered against the accused namely her husband, father-in-law and mother-in-law. In court, it was argued by the learned counsel of the appellant that there is no offence committed here as it does not fulfil the essential ingredients of Section 304B of Indian Penal Code and also no evidence was found out that soon before her death the deceased in any way was subjected to cruelty or harassment in connection with the demand for dowry.

Issue 

Whether she was subjected to any cruelty or harassment soon before her death and the same was in connection with the demand for dowry. 

Whether the demand asked for a refrigerator, scooter etc is a desire to acquire or a dowry demand.

Judgement

The learned counsel of the appellant argued that the mere desire to acquire a refrigerator, scooter etc. should not come within the ambit of demanding dowry and cannot be held as an offence as this would not come under the definition of dowry under Section 2 of Dowry Prohibition Act, 1961 with Section 304B and Section 498A of Indian Penal Code.

It was held by the Court that Demand for dowry itself is an offence under Section 304B and to be an offence under this it does not requires that an agreement for it should be necessarily present.

The court also held him guilty under Section 498A subjecting her to cruelty or harassment by passing comments on her looks and also taunting her to bring more dowry. 

Pawan Kumar appellant No.1 under Section 304B was sentenced to 7 years of rigorous imprisonment and liable to pay fine of Rs 500 and in default of paying fine 6 months will be added to his imprisonment. 

And under 306 IPC was sentenced to 4 years of rigorous imprisonment and a fine of Rs 200 and in default of the payment 3 months will be added to his imprisonment and also held him guilty under Section 498A sentenced him for 2 years rigorous imprisonment and Rs 200 fine in default more 3 months to his imprisonment will be added.

All the sentences should run simultaneously.

Appellant No.2 and appellant No. 3 the court here gave them the benefit of doubt and acquitted them.

Cruelty

Section 498A of the Indian Penal Code defines cruelty.

If a husband or any relative of him causes mental or physical harm to a woman then they will be held punishable under this section.

Punishment will be imprisonment for three years and also will be liable to pay fine.

Essentials 

• Any willful conduct on a woman to cause her injury or to instigate her to commit suicide.
• Harassing a woman or any of her relative in order to make them fulfil their unlawful demands.

Case law

The State Of Punjab vs Gurmit Singh on 2 July 2014

In this case, the term ‘relative’ was analysed. 

The respondent Gurmit Singh was charged under Section 304B of IPC that he is the reason for the death caused to Gurujit Kaur wife of Paramjit Singh. The respondent argued that he could not be charged with the offence of Section 304B as he is not the relative of the deceased. 

The respondent was the brother of Paramjit’s aunt and cannot be said that he is the relative of the deceased’s husband.

It was held by the court that he cannot be charged under Section 304B as he is not the relative either by blood, adoption or by marriage of the deceased’s husband. But the court said that he can be tried under other Section for the offence.

Section 498A in its definition talks about relative and by this case, it has analysed the word ‘relative’ and it means a person who is a relative by blood, adoption or by marriage others will not fall under the category of relatives and cannot be held guilty under Section 304B but can be held guilty under other section if they have committed any other offence.

Misuse of the provision and its Constitutionality

Many fake cases have been filed in misusing of the provision for its own motive or in order to give torture to the husband’s family. The women should not misuse the very own Section which is made to protect her. However, a mere possibility to misuse the provision should not invalidate the provision. Hence Section 498A is Constitutional.

Sushil Kumar Sharma vs Union Of India And Ors on 19 July 2005

In this case, the petitioner under Article 32 of the Constitution challenged the validity of Section 498A of the Indian Penal Code to be Unconstitutional. The petitioner says that the offence is made to protect women against dowry and not for misusing it against the innocent family members as a weapon.

The issue, in this case, is what preventive measures should be taken if a woman misuses this provision. The petitioner says the investigating agencies and courts should analyse the case properly and should not start with a presumption that the accused persons are guilty. They should not use a restrictive approach in the matter relating to dowry.

He also says that the investigating agencies and courts should guard the laws made and should not allow an innocent person to suffer on baseless and evil allegations made by anyone. The court did not find any material in his appeal and dismissed the writ petition and said if he wants to prove his innocence for which he is accused of he may do it in a trial.

Presumption as to Dowry Death

Section 113B of the Indian Evidence Act, 1872 states about the Presumption as to Dowry Death. If a woman dies in relation with any demand for dowry and it was shown that soon before her death she was subjected to harassment or cruelty by any person. Then the court will assume such a person responsible for her death.

Conclusion

practising in the name of a so-called tradition that is dowry is seen existing in every place in India whether rural or urban. The menace of dowry custom has reached far down in society. Despite making so many provisions practising of demand for dowry still not stopped. No matter how many laws the government makes it still can’t eradicate it fully from the society. To fully eliminate it the people of the society has to understand that it is wrong. 

By enacting strict laws in society it can be controlled but can’t put an end to it because of the unawareness of the laws in the society and also no support from the families. Even if the girl complains to her parents about the torture she faces by the husband’s family the parents of the girl opt to compromise instead of bringing it to the light. The laws and support from society together can solve the issue.

References

• http://www.aaptaxlaw.com/IPC/section-304b-ipc-dowry-death-punishment-for-dowry-death-sec-304b-of-indian-penal-code-1860.html
• http://www.legalserviceindia.com/legal/article-1245-dowry-and-dowry-death.html
• http://lighttheminds.com/causes-of-dowry-system-social-effects-and-how-to-stop/
• https://devgan.in/ipc/section/304B/
• https://indiankanoon.org/doc/981147/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Ramanuj Mukherjee, CEO, LawSikho.

If you take too much pressure, it may be overwhelming, leading to stress, depression, anxiety, physical ailments. Ans giving up, which is the worst.

If you take it too easy, there is no growth. I am assuming here that you are interested in growth in life.

So what’s optimum for growth? Just a little beyond what you can already handle. A little bit of stretching things, till just outside your comfort zone. 

Imagine that you have gone to the river to fetch water. How much will you bring back? 

It really depends on the size of the vessel you are carrying. You cannot bring more water back than you have the capacity to carry – in a bottle, in a jar, in a mug, or in a truck/ tanker. 

It is also about how much energy or strength, or systems you have to carry the water back. If there is not enough petrol in the truck you can’t succeed in your mission. If you take a big vessel to fill water but you do not have the strength to carry it back, that’s no good.

But the point is that the first few visits hardly count. 

Whatever may be the water you bring back the first time, you can learn from your mistakes as well as success, and then next day you can improve on your current systems to bring back even more water. And repeat.

Every time you go back, you can figure out ways to do it even better than you did the last time.

You can engage a team. You can rent a fleet of tankers. You can set up a pump and a pipeline. You can keep building a better water supply system as your resources and imagination grow.

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This is how businesses are built, careers are grown and this is how practices can become incredibly successful.

Law is like the river, you can learn to carry an endless supply of water if you keep going back. But you have to stretch.

Growth is a certainty if you want to grow, and if you keep going back for more, and keep trying to grow the system. 

But the way you grow is by stretching your existing capacity, by inventing ways to make things more efficient and learning to bring in and manage more resources. 

Knowing the importance of stretching, how do we incorporate this in legal training? How do we implement this in the LawSikho courses we offer?

Every week we give you two client matters. Not real but fictitious matters, often modeled around real matters. 

It could be that you have to draft or review a contract, or prepare a plaint, or reply to a legal notice, or prepare a memo for an imaginary board of directors which has sought your advice. 

We give you 90% of the material you need – templates, how-to guides, precedents, basic study material to fully grasp the concepts involved. But 10%, we leave it up in the air, for you to research, figure out or struggle with.

It’s ok if you fail. We only want to stretch your imagination, to make you struggle intellectually so your legal muscles get stronger. We would later give you what you need to close the loop if you did not already figure out.

It is scary for some students. 

It is out of the syllabus! 

You did not teach us, how can we do this?

Just try, see what you can do, we have to patiently say.

A few weeks later, when that same level of intellectual challenge becomes plain for the students, they look back and realize how fast and how far they have progressed!

It is a beautiful feeling. For them, I am sure, and most definitely for us.

10% stretch. Where can you apply it in your life otherwise? Share it with me. I would love to hear.

Here are some courses that will stretch you 10% every week:

DIPLOMA

Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)

Diploma in Intellectual Property, Media and Entertainment Laws

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Criminal Litigation & Trial Advocacy

Certificate Course in Real Estate Laws

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations

Certificate Course in Legal Practice Development and Management

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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