This article is written by Shweta Rath, Team LawSikho.
We know for a fact that most legal professionals and students pursuing higher education abroad are extremely inclined towards research.
If we were to speak about competition law enthusiasts, in particular, all the best universities in the UK, EU and the US have excellent departments to pursue research in competition law.
Law colleges in India today create a certain hype towards working only for law firms. Students are mostly encouraged towards interning in tier-1 law firms of the countries.
But to be honest, the role of a lawyer can be multi-faceted. Not everybody wants to pursue a career working for law firms. There is a significant size of population which has an academic mindset and has pursued research as a career option. We, at LawSikho have explored this particular sector and reached out to competition lawyers who have worked in various think tanks in the country in their competition law verticals to get a deeper dive into this field.
Here are our findings:
#1 Which are the think tanks currently operating in India that have a competition law vertical?
India is no longer far behind in terms of research as government and non-government organisations have started conducting hard core research in competition law. Professionals can apply to the following organisations to work as a Research Associate (RA) in competition law:
CUTS International- Competition vertical
Vidhi Centre for Legal Policy
Indian Institute of Corporate Affairs (IICA)
Niti Ayog
Institute for Commercial Policy & Legal Research (ICPR)
Jindal Global Law School (JGLS)
#2 Is there any specific application procedure for them?
General graduates are eligible for these positions and having a law degree is not a hard and fast rule. CUTS, Vidhi, JGLS and IICA are places where professionals can apply as a fresher. RAs in such think tanks come from all walks of life and diversity is of value in such think tanks. You will be required to provide a writing sample to justify your aptitude and inclination towards the law. Sometimes, depending upon the organisation, an interview will also be held to understand the policy changes that professionals wish to make to the current legislation.
Candidates are expected to produce a published research paper in this particular domain to improve their chances of getting selected. Please note, the level of base and functional knowledge required for this position is significantly high because the primary assessment should reflect extremely sound research skills
#3 Is having an LLM a necessary criterion?
It is not mandatory to have an LLM in order to get selected for these positions. Be that as it may, it will definitely score brownie points. And if you have published papers on competition law in universities outside, then it will definitely help shortlist your application. However, it has been observed that professionals who have completed their LLM most often apply for such research based positions and may not always be inclined towards working for law firms.
#4 What is the work environment like?
Most of our sources have stated that the work environment is not as stressful as law firms. You certainly do not spend late nights and the working hours are very standard which will be between 10 AM to 6 PM. However, if an important research or policy paper is up for submission, you may have to stretch some hours but that is not a regular phenomenon. So, people who seek a work-life balance should definitely give this line of career a serious thought.
You get to choose your hours as long as deadlines are met. After a topic of report has been allocated, RAs are given the freedom to choose their hours as long as the deadlines decided by the team are met.
There would be a regular update taking place with the team members/in charge but working in think tanks definitely gives you a greater autonomy compared to law firms. However, if a particular project is being funded by an organisation, then there may be tough deadlines as the organisation has to be kept in loop the whole time.
#6 Work description
As an RA, you will be expected to work on the following areas:
Research project circulated by private parties
Policy reports on propositions forwarded by the government departments
Create course modules on competition law for various organisations
Develop compliance programmes on competition law
Market surveys and reports
Comments for the white papers circulated by the Government
#7 Team Strength and Work Structure
The team strength is anywhere between 4-5 people. Generally, an RA is allocated a project and is responsible for the early stages of the project all on his own. The scope of the project is pre-planned which needs to be adhered to. The seniors of the team then review the research and suggest restructuring of the work piece. Comments of key stakeholders (eminent people in the sectors of research and sponsors if any) are sought. Thereafter the final structure of the project has to be again put in by the RA to freeze the final version. The junior RAs are constantly supervised and guided. Professionals have stated that it is quite a healthy work environment.
#8 What is the Pay Scale?
The pay scale can vary between INR 40,000 – INR 90,000 per month depending on the organization and experience of the candidate.
Are you the one for this job?
You need a completely different mindset to pursue a career as a research associate!
Most professionals have stated that legal professionals who want to pursue a career in research need to have an aptitude of thinking outside the box and should be open to exploring various schools of theories and even create them.
The whole point of delving into research is to produce different interpretations of the legislation and derive legal principles. The job description unlike law firms or an RA at the CCI is extremely abstract. So RAs working in think tanks should be expected to dive into and explore the laws of various other jurisdiction in order to incorporate the principles in India.
Professionals have stated that such think tanks do not necessarily have a contractual agreement and if the RAs are found to be beneficial to the organisation, they are retained for higher positions. The best part about working for think tanks is that you do not need to necessarily limit yourself to competition law. Most of these think tanks are interdisciplinary and so quite often, after having worked for a few years in the competition vertical, RAs migrate to other areas of policy and gain holistic knowledge in areas like corporate, banking, etc.
RAs obtain excellent experience to pursue a career in academics by joining universities as professors. Needless to say, they will also be valuable assets to legal teams in law firms. Lawyers do not get as much time to work on areas such as policy and research. In such a scenario, adding a policy lawyer to the team could fill the gaps of research in such teams.
To learn more about how you can perform real work for clients, you can explore the Certificate Course In Competition Law, Practice And Enforcement. You will have an opportunity to attend 1 online live class per week (after work hours – you can watch a recording if you cannot attend the live session and ask your doubts later), perform 2 simulation exercises and receive in-line feedback on your drafts, access online study materials (along with hard copies despatched to your address), doubt clearance within 24 hours and a lot of other benefits that you can find on the course page with details.
The course is aimed at bringing you at par with at least 1 year of post-qualification experience in a top law firm, in as little as 3 months’ time. Independent lawyers and professionals who specialize in a different area will be adequately empowered to spot competition concerns and deal with them. If you are a student, securing internships becomes a super-streamlined process, as you would have acquired the relevant skills.
Comment below if you wish to speak to one of our experts for a free career counseling session.
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This article has been written byIshaan Banerjee from Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article explores the basics of the Transfer of Property Act 1882, along with the concept of alienation. We will also examine the conditions and exceptions relating to the restriction of alienation under this Act.
Introduction
The Transfer of Property Act, 1882is an Act laying down the rules and regulations regarding the transfer of property among persons in India. It explains how a transfer of property is completed and the conditions under which transfer may be carried out. An understanding of the basic terms of this Act along with exploring alienation and its history would be important in understanding the conditions and exceptions involved in the restraint of alienation.
What is the transfer of property according to law?
Section 5 of the Transfer of Property Act, 1882 has several conditions for an act to be defined as a ‘transfer of property’-
A ‘living person’ must convey property. Conveying essentially means giving a title of ownership on the property to the transferee. A living person has been defined in the same section to include company, association or a body of individuals whether it has been incorporated or not.
The conveyance of the property can be carried out in both the present and the future.
This conveyance may happen towards one or more other living persons, including himself.
What can be transferred?
It is not explicitly stated in the Act regarding what is ‘property’ or what can be transferred. Rather, the Act states that property of any kind may be transferred subject to exceptions given under Section 6. The property that can be transferred includes both movable and immovable property, as well as intangible property like tenancy, copyrights etc.
Who is competent to transfer?
Section 7 of the Transfer of Property Act categorizes persons competent to transfer as-
Every person is competent to contract under the Indian Contract Act, 1872 and entitled to the transferable property.
A person who is authorised to dispose of transferable property that he does not have the ownership to.
This property can be transferred wholly or partly, absolutely or conditionally, with regard to the extent of the law and circumstances. The property, as stated above may be conveyed to any living person including a company, association or a body of individuals whether incorporated or not. Under Section 13, even an unborn child can be the transferee of the property.
What is alienation?
Alienation means transferring of property. This transfer of property can be through gifts, sales and mortgages. Under Hindu Law, no person of the Joint Hindu family, not even the Karta, has the full power to alienate the joint family property or his own interest in the joint family property without the consent of all coparceners. In the case of separate property, a Hindu can alienate that property whether it comes under Dayabhaga or Mitakshara school. This power is absolute.
Earlier, under the classical law, the father or the Karta had the power to alienate the whole joint family property without the consent of the other coparceners, and that is why there have been certain conditions added for the situation where a Karta or father can do so.
Can alienation of property be restrained?
Section 10 to 18 of the Transfer of Property Act, 1882 state the rules for alienation of property-
Section 10 lays down that where the transferee is absolutely restrained from transferring his interest in his property to another person because of a condition which came along when the property was transferred to the transferee, then this condition will be made void. The transfer, from the transferor to the transferee would remain valid.
For example, A transfers some property to B as a gift but with the condition that while A is alive, B must not transfer the property to any other person. This condition will be held void as it absolutely restrains B from transferring his interest in the property to another person.
This is commonly known as the ‘rule against alienability’. The Transfer of Property Act is based on the principle that there can be a free transfer of property and has been specifically made with regard to free transfer. If conditions restraining transfer are imposed, then the free transfer would be restricted and there would be no use for the Transfer of Property Act.
However, only conditions mandating ‘absolute restriction’ are void. There are conditions which call for partial restraint to be observed with regard to the transfer of property. If we are to determine whether a condition is absolute or partial, then one must look at the substance of the condition, and not merely the words. Therefore, restraints can be classified into two categories.
An absolute restraint is such a restraint which completely takes away the right of the transferee to alienate or dispose of the property. The transferee can now no longer transfer his interest in the property to another person and he has no freedom to do what he wants with the property in his capacity as the owner of the property.
Section 10 stipulates that any condition imposed on the transferee which would amount to an absolute restraint on the right of the transferee to dispose of his interest in the property shall be void. The property must be transferred to the transferee subject to the condition.
In Rosher v. Rosher (1884) 26 Ch D 801, A made a gift of a house to B, and gave a condition that if B decides to sell the house during the lifetime of A’s wife, she should have the option of purchasing it for Rs 10000, while the market value of the house was set at Rs 10,00,000. This condition was held to be an absolute restraint and was declared void.
In Kannamal v. Rajeshwari, AIR 2004 NOC 8 (Mad), a life estate was to be created in favour of ‘M’, but the transferor gave an absolute restriction along with the property transfer to M, whilst divesting himself of all his interests in the property. This restraint was held to be void as there was an absolute transfer.
A partial restraint is a condition which partially takes away the right of the transferee to dispose of his interest in the property. Here, the right is not taken away substantially. Section 10 does not explicitly talk about partial restraints. A condition imposing partial restriction is valid.
In Mata Prasad v. Nageshwar Sahai (1927) 47 All 484, there was a dispute regarding succession between nephew and widow. A compromise was formed that the widow had possession of the property while the title for the same was given to the nephew with the condition that he was restricted from alienating the property during the widow’s lifetime. It was held that the compromise and the condition were valid and prudent in the present case.
Exceptions to the restraints
Lease
A lease is a transfer of property wherein the lessee only has the right of enjoyment of the property, while the ownership right is still with the lessor. Conditions imposing restrictions are valid in the case of a lease, where the condition is for the benefit of the lessor or those claiming under him. In Raja JagatRanvir v. Bagriden, AIR 1973 All 1, a condition in the lease that the lessee shall not sublet or assign was held to be valid.
Married Woman
When the property is to be transferred to a married woman, who is not a Hindu, Mohammedan or Buddhist, then the condition restricting alienation can be valid.
Repugnant conditions
Section 11 of the Transfer of Property Act contains conditions which are inconsistent with the nature of the interest transferred are repugnant conditions. These conditions come with the transfer when the transfer confers to the transferee, absolute interests in the property. Any condition with a transfer of absolute interests in the property will be void.
When a property is transferred absolutely, it must be transferred along with all its legal incidents. In Manjusha Devi v. Sunil Chandra, AIR 1972 Cal 310, the parties entered into a sale for a piece of land. In the sale deed, it was mentioned that the buyer could only use the land for setting up a factory for jute textile manufacturing. It was held that this condition was invalid as the absolute interests in the land had been transferred to the buyer and he could use it as he pleased.
An exception to Section 11
If the transferor has another piece of immovable property, he may, for the benefit of that property, impose conditions of restrictions on the transferee’s right of enjoyment. For example, A has two properties: X and Y. A sells them to B with the condition that a portion of X, adjoined to Y, shall be kept open for the benefit of Y. This condition will be valid.
Positive and negative conditions
Positive conditions: These are those conditions imposed on the transfer where the transferor imposes a condition on the transferee to do some act. For example, A transfers land to B, on the condition that he shall maintain and keep filling up the well on that plot of land. This condition is positive.
Negative conditions: These are those conditions imposed on the transfer when the transferor imposes a condition on the transferee to not do some act. For example, A transfers land to B, on the condition that he shall leave open a four feet wide space on the land, and would not build anything on it.
Difference between Section 10 and Section 11
Section 10 specifies that in a transfer with condition that absolutely restrains the alienation of the property by the transferee, the condition will be deemed to be void.
Section 11 specifies that in a transfer where absolute rights in the property have also been alienated to the transferee, and where a condition is imposed that the transferee cannot, in spite of having the absolute right in the property, do an act for his enjoyment of the property, such condition will be deemed to be void.
Thus, the differences in these sections are that in Section 10 the condition is deemed void due to absolute restrainment and in Section 11, the condition is deemed void due to the transfer being of absolute nature.
Condition of insolvency
Section 12 provides that when the transferee becomes insolvent, and if he has some interest in the property that was transferred to him by the transferor, the transferee still would not lose his interest in the property. Hence, any condition stating that transferee shall lose the interest in the transferred property on insolvency and this interest shall be reverted back to the transferor shall be void.
However, this section does not apply to a condition on a lease for the benefit of the lessor or those claiming benefit under him. However, in Smith v. Gronow (1891) 2 QB 394,if lessee assigns the lease and then is rendered insolvent, then this condition will not apply.
Conclusion
The Transfer of Property Act, 1882 has been made for the regulation of the free transfer of property in India. This transfer can be in the present or the future and must be between living persons. This article also explores what can be transferred under this Act, and who are the ones competent to transfer. The concept of alienation was also explored. Earlier, under the classical law, the father or the Karta had the right to alienate the joint family property without the consent of the coparceners, but now conditions have been introduced to regulate this.
Section 10, 11 and 12 contain certain conditions under which restraining of alienation of the property by the transferee is void. It also has exceptions where these conditions may be valid. Primarily, under Section 10, conditions of restraint can be classified into two categories: absolute and partial. Whether a condition is absolute or partial is determined by the substance of that condition, not merely the words. This article explored other conditions such as positive and negative and insolvency, along with their exceptions.
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Economic torts, also referred to as business torts, are common law principles relating to unfair business practices, which result in an intentional and improper interference with the economic interests of another, thereby causing losses. Economic torts are an exception to the general rule that there is no duty in tort to avoid causing a purely economic loss, unless it is parasitic upon some injury to person or property. The reason for the general rule is that, contract apart, common law duties to avoid causing pure economic loss tend to cut across the ordinary incidents of competitive business, one of which is that one man’s gain may be another man’s loss. The successful pursuit of commercial self-interest necessarily entails the risk of damaging the commercial interests of others. Identifying the point at which it transgresses legitimate bounds is therefore a task of exceptional delicacy.P0F[1]P
The tort of conspiracy is still in the nascent stages of development in India. While we are yet to see a successful claim for damages instituted for committing the tort of conspiracy, the principle is being explored and entities may be able to protect their business interests, provided the immensely high standard of proof required is discharged.
Conspiracy in tort law occurs when two or more persons agree to do something lawful but with the pre-dominant purpose to injure the interests of another, or to do something unlawful. The tort of conspiracy thus takes two forms: (i) conspiracy to injure by lawful means or lawful means conspiracy; and (ii) conspiracy to injure by unlawful means or unlawful means conspiracy. It is only prudent that these two facets of the tort of conspiracy be analysed separately.
Lawful means conspiracy
Conspiracy to injure by lawful means or lawful means conspiracy may be established where the overt acts done pursuant to the conspiracy may be lawful, but the predominant purpose is to injure the claimantP1F[2]P. Incidental losses pursuant to actions taken to promote trade are not actionable. It was firmly established in Crofter Hand-Woven Harris Tweed Co. Ltd. V. VeitchP2F[3]P, that if there is a combination of persons whose purpose is to cause damage to the plaintiff, that purpose may render acts unlawful, which would otherwise be lawful.
It may be said that lawful means conspiracy exists only in theory and bringing a successful action for this tort may be a stretch of imagination. Lawful means conspiracy has little relevance in the commercial context. The apparent reason for this was observed by the Supreme Court of India in Rohtas Industries Limited and Ors. v. Rohtas Industries Staff Union and Ors.P3F[4]P It was stated that “It may well be that even where there is an offending object, it may be difficult for a court to hold that there is a tort if one may read into the facts an equal anxiety for the defendants to promote their success which produces the plaintiff’s extinction.”
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Similarly, in Mogul Steamship Co. v. McGregor, Gow & Co.17TP4F[5],P17T where ship-owners in order to secure exclusive trade for themselves, formed an association and threatened to dismiss agents if they loaded the plaintiff’s ships with cargoes along with circulating notices for non-grant of rebate, should the plaintiff’s vessels be loaded, the House of Lords, affirming the decision of the Court of Appeal held that since the acts of the defendants were done with the lawful object of protecting and extending their trade, the plaintiff had no cause of action.
In a rare case however, the High Court of the Republic of Singapore has remarkably affirmed an allegation of lawful means conspiracy. In SH Cogent Logistics Pte Ltd v. Singapore Agro Agricultural Pte Ltd.P5F[6]P, the Court found that the defendants had deliberately and with the predominant purpose to injure, evicted the existing tenants. The Court derived the predominant intent to injure from the defendant’s disruptive conduct at its own expense.
Lawful means conspiracy is also somewhat anomalous. The anomaly lies in the fact that the tort imposes liability on two or more persons acting in concert to pursue a course of conduct that is otherwise lawful, when committed by an individual.P6F[7]
Unlawful means conspiracy
As opposed to lawful means conspiracy, unlawful means conspiracy does not require the intention to injure to be predominant. This was clarified by the House of Lords, after a period of uncertainty, in Lonrho plc v. FayedP7F[8]P. The elements of unlawful means conspiracy were crystallized in OBG v. AllenP8F[9]P as
Unlawful means conspiracy is a tort of primary liability;
It involves the use of unlawful means;
Liability for unlawful means does not depend upon the existence of contractual relations and
Economic damages caused.
Conspiracy being a tort of primary liability, the question what constitute unlawful means cannot depend on whether their use would give rise to a different cause of action independent of conspiracy. The real test is whether there is a just cause or excuse for combining to use unlawful means. That depends on (i) the nature of the unlawfulness, and (ii) its relationship with the resultant damage to the claimant. This was the position reached by the House of Lords in Revenue and Customs Comrs v. Total Network SLP9F[10]P.The Court held that a criminal offence could be a sufficient unlawful means for the purpose of the law of conspiracy, provided that it was objectively directed against the claimant, even if the predominant purpose was not to injure him.
In JSC BTA Bank v. KhrapunovP10F[11]P, where the UK Supreme Court examined the jurisprudence of tort of conspiracy and observed that the reasoning in Total NetworkP11F[12]P left open the question of how far the same considerations apply to non-criminal acts, such as breach of civil statutory duties, or breach of contract or fiduciary duty. The Court held that the act of assisting Mr. Ablyazov in concealing and dissipating assets, against whom the bank had a freezing order, rendered his son-in law Mr. Khrapunov liable for conspiracy to injure by unlawful means.
An attempt to secure an injunction for the tort of conspiracy was made in 1999 in Pepsi Foods Limited v. Bharat Coca-Cola Holdings Private LimitedP12F[13]P. The plaintiff, however, failed to establish a prima facie case. Yet another attempt has been made to procure a decree for damages for the tort of conspiracy. In Lindsay International Private Limited and Ors. v. Laxmi Niwas Mittal and Ors.P13F[14]P, the plaintiff initiated an action alleging, inter alia, unlawful means conspiracy. The Defendant No. 1 attempted to resist the action by filing an application for rejection of plaint, which was dismissed by a Single Judge of the High Court of Calcutta, affirmed by the Division Bench, and finally by the Supreme Court of India. Whether the plaintiff will succeed in getting a decree for damages basis the tort of conspiracy, is yet to be seen.
Conclusion
The tort of conspiracy is a modern invention altogether, and the search for clarity continues. While unlawful means conspiracy necessitates proving use of unlawful means to injure, lawful means conspiracy is widely regarded as discordant. The central issue is why should plurality make something unlawful if it is not unlawful when done by an individual. The law of economic torts, being a developing law, its frontiers are incapable of being strictly barricaded. The ambit of tortious law keeps on widening on the touchstone of fairness and practicality of the situation.P14F[15]P This tort however, will always be faced with the demon of fair competition. Competition is the life of trade. Every act done by a trader for the purpose of diverting trade from a rival and attracting it to himself, is an act intentionally done, and, insofar as it is successful, it will necessarily result in injury to the rival in his business. P15F[16]P To hold such an act wrongful would be to stifle competition.
This article has been written by Chandan Kumar Pradhan from KIIT School of Law, Odisha. This article talks about the overview of The Wealth Tax Act, 1957, how the tax imposed on an individual, HUF or Company.
Introduction
The Wealth Tax Act, 1957 was provided by the Parliament of India for collecting the Wealth Tax from an individual, Hindu Undivided Family or Company. Wealth Tax is also called the Capital Tax or Equity Tax. It is collected on a person’s present financial position. The assets which are included in the collection are cash, bank deposits, shares, fixed assets, personal cars, pensions and owner-occupied house etc. The valuation date of the wealth tax is 31 March of every year.
GDP(Gross Domestic Product)- It is the most common way to find out the wealth of the country. In this way, we can determine the wealth of the individual through their net worth.
What are Assets and deemed assets?
Assets
According to Section 2(a) of the Wealth Tax Act, 1957 there are only six assets. The assessee must be the owner of the assets on the last day of the financial year(1st April to 31 March). In other words, it can also be possible that, if the assessee holds the assets upto 364 days in the financial year and if he holds the assets on the last day of the financial year, then it can be called as assets. The type of assets which are explained in Section 5.
The types of assets are given below:
Urban land
Motor cars
Cash in hand
Yachts, boats and aircrafts
Jewellery
Building
Deemed assets
According to Section 4 of the Wealth Tax Act, it is defined that the assessee of the assets should not be the owner of such assets on the valuation date(31 March), he should transfer that assets to others.
There are 10 such deemed assets in this Act and these 10 deemed assets are classified into two categories in the following:
Assessee wise deemed assets
Interest infirm
Transfer to spouse
Conversion by a member of HUF
Assets transferred under a revocable transfer
Gift by book
Impartible Estate
Minor’s wealth
Asset wise deemed assets
Building allotted by Housing;
Rights assume in the building by way of any agreement or settlement;
Possession of building by a contract under Section 53A of Transfer of Property Act, 1882.
The assets which are exempted from Wealth Tax
Section 5 of The Wealth Tax Act, 1957 contributes some immunity in respect of some specific assets. The valuation date of the wealth tax is 31 March of every year. Wealth tax shall not be payable by an assessee in these types of following assets and these assets shall not be included in the net wealth of the assessee:
Property controlled under any trust or charity
Residential building of the previous ruler
Previous ruler’s jewellery
A house of an individual or HUF
A person in a joint-heirship
Assets belonging to the Indian repatriates
Exemption for debt
Property controlled under any trust or charity
When the trust or the charity works on a business with reference to Section 10 and occupies any property, they will get the immunity under the Wealth Tax Act, 1957.
Condition is that the business which they work for the trust should be for charitable and religious purposes.
The work may be notified by the central government or publication of books or printing of books etc.
Residential building of the previous ruler
If the building was made by the previous ruler and now, it is the residential house of the present ruler then he will get the immunity for that one house only.
And if the present ruler made any building then he has to pay the tax for that second house.
Previous ruler’s jewellery
Jewellery owned by the previous ruler which has been recognized by the central government can get the immunity and no need of paying the wealth tax.
A house of an individual or HUF
The exemption is available for one house and for the area not above 500 sq. meters owned by an individual or HUF.
A person in a joint-heirship
If a person has an interest in HUF and he is also a member then he will get immunity from The Wealth Tax Act, 1957.
Assets belonging to the Indian repatriates
When an Indian origin person returns to India after many years, the assets which he brought from outside, to India are exempted from the Wealth Tax and the exemption is only available for 7 assessment years.
Exemption for debt
A person who has one house and has taken it from a bank loan and the loan instalments are also pending. He is actually the owning part of the house. Thus, the person can claim the immunity for debt owned by him for a particular asset and for the valuation date.
Earlier the Wealth Tax was only for the collection of six non-productive assets instead of taxing all the assets with some exemptions. The concept of charging Wealth Tax on assets had a change in the year 1992. By these changes, it was expected that the assessee would be forced to either make the assets productive or dispose of the assets. The Wealth Tax is calculated on the market value of the assets.
Some of the basics rules in the following:
Wealth Tax is collected from an individual, HUFs and Companies.
If the net wealth is up to 30 lacs then no tax is payable. Where the net wealth exceeds 30 lacs, the wealth tax collection will be 1%.
There are no surcharges and an education cess in Wealth Tax.
Any charitable or religious trusts would be exempt from collecting the Wealth Tax.
For a member of HUF, the ancestor’s property of the HUF is also exempt under Section 5 of The Wealth Tax Act, 1957.
Under Section 45 of the Wealth Tax Act, 1957, it is mentioned specifically that the following individuals would get immunity from collecting the tax namely:
Mutual fund
Political party
Social club
A company having a licence under Section 25 of The Companies Act,1956
Reserve Bank of India
Under Section 64 of the Income Tax Act,1961 and as per Section 4 of the Wealth Tax Act, 1957, the clubbing provisions would not be operated in case of a minor married daughter.
Wealth tax authorities
The jurisdiction and authorities are defined under Section 8 of the Wealth Tax Act, 1957 that, Section 16 of the Income Tax Act, 1961 provides the jurisdiction to the authorities of the Wealth Tax for the exercise of the powers and execute the functions towards any individual, HUF, or company and the jurisdiction will be the same as per the Income Tax Act by the directions released under Section 120 of The Income Tax Act and also by any other provision of that Act.
For the execution of Section 8 of The Wealth Tax Act, 1957, the authority having jurisdiction in relation to a person who is not an assessee according to the Income Tax Act. Income Tax Act will be the Wealth Tax authority having jurisdiction in regard to the area in which the person lives.
Offence and penalties
Penalty for late payment of Wealth Tax
If a person gets late for the payment of Wealth Tax, then the penalty of 1% interest for every month of delay will be charged.
Non-payment of Wealth Tax
It will lead to a tax recovery process that the due which was the actual amount is pending, that will be increased up to five times and in extreme cases, the defaulter may also be imprisoned.
Apollo Tyres limited Vs. The Assistant Commissioner of Kochi WTA.No.197 of 2009
Here, the High Court of Kerala held that the assessee constantly completed the construction of the four-storey building with basement and started adopting within 2 years from the valuation date. The assessee never thought that the construction of a four-storied building will complete within 2 years, which is given in the explanation under the Wealth Tax Act. Keeping in mind the immunity available to productive assets we feel, there is no particular scope for collecting the tax during the period of construction of the productive asset, namely, commercial buildings, by utilising the urban land.
In other words, once the non-productive assets like urban land are converted to a productive asset like a building, which will qualify for the exemption, then the assessee can start getting immunity even during the period of changing the non-productive asset to productive asset.
Hon’ble Punjab and Haryana High Court in the case of Siddhartha Enterprises 322 ITR 82 referred to the judgement of the Supreme Court’s case in the following
Union of India Vs. Dharmendra Textile Processors & Ors. (2008) 219 CTR (SC) 617 : (2008) 306 ITR 277 (SC)
SC cannot be read as lying down that in every case when a detail of income is wrong, the penalty must follow. What has been laid down is that the main difference between criminal liability under Section 276C of the Income Tax Act and the penalty under Section 271(1)(C) of the Income Tax Act had to be kept in sense and arrive at the trial of a criminal case but need not be adopted while going for the case of levying of penalty.
Even so, the concept of penalty has not undergone change by the quality of the said judgement. The penalty is imposed only when there is some element of intentional default and not a small mistake. This being the position, the conclusion having been recorded on facts that the provision of wrong particulars was simply a mistake and not a deliberate attempt to evade the tax, the view taken by the Tribunal cannot be held to be difficult.
Difference between Income Tax and Wealth Tax
These are some important difference key points in the following:
Income Tax
Wealth Tax
1. The amount of money which is received on a periodic basis like month-wise or any periodic system and by any capital investment from where the person can get some money.
1. Wealth is defined as the assets or property which are controlled by a person during his course of life.
2. It is the flow of money, obtained from any type of production.
2. Wealth is the market price of the stock of assets controlled by a household.
3. Income is earned or received during a limited time period.
3. Wealth is collected over time, i.e. the creation of wealth takes some time.
4. It is charged on the income of an individual from various sources.
E.g- salary, capital gains etc.
4. It is levied on an individual or household’s wealth.
Conclusion
Many people are confused with the Income-tax and the Wealth Tax. Some are thinking that both the laws are the same and many of them think that they have to pay one of them by their own choice. Because of this situation in our country, the development is very slow in progress compared to the other countries.
Basically, income is something that a person gets it to return for the work he has done or money invested by him somewhere. On the other hand, the wealth of a person is something that helps him to survive for some days without working. And income is the only source that can help to improve the status of wealth.
Therefore, if a person wants good wealth then he must be sure that he has to make his income better.
The Union Corporate Affairs Ministry recently released data that over one lakh companies get registered in India every year, and the industrial body FICCI also indicated that this figure is surely to increase astronomically if not already a giant number seeing that India is a developing country with close to two-thirds of its population earning below the average per capita income mark of the IMF. These figures show that India as a market and as a host to corporate culture is still to show its true might and its muscles are not yet fully flexed. In this age of Startup India and Make in India where every two out of three Indian is under 35 and is roaring to become an entrepreneur and become their own boss the charm of starting a business has never before seemed so enthralling. With over 700 higher education institutions and 200 million enrolled students being churned out by the education system a massive inflow of ventures is sure to come. But a vital step of making a company is to be able to judge its profitability and its earning potential, be it for entering into a sector or buying an existing enterprise, valuation is the first step undertaken be it for a minority stake or for a massive merger and acquisition operation. The earlier viewpoint of sales or revenue earned by the company as its sole valuation index is a rather simplistic look of the entire valuation process. A real life valuation of a company is a complex and detailed exercise requiring many factors and considerations to be made. But first, let us see what purposes does valuation serve in financial decision making.
What is the need of Valuation?
Business valuation is the general process where we determine the economic value of a whole business or company unit. Valuation can be used for determining the fair value of a business for a variety of purposes, like determining the sale value for the company or even an individual investor, provide data for establishing partner ownership, taxation calculation, and even insolvency proceedings. Owners will often turn to professional business evaluators for an objective estimate of the value of the business. Business valuation usually includes an analysis of the company’s management, its capital structure, its future financial prospects or the market value of its assets. The approaches used for valuation can vary among evaluators, businesses, and industries. Common techniques for business valuation include a review of financial statements, discounting cash flow models and similar company comparisons. Some of these business valuation techniques are highlighted as below
Approaches to Valuation
Valuation of a company in the most rudimentary form is the summation of equity owned by it and debt borrowed by it. However, if a more detailed analysis or specific decision is required then evaluators use a mix of approaches and techniques relating and depending on sector suitability or scale of operations of a company. Some of those techniques are elaborated as follows: –
Valuation Multiples
Net Asset Value (NAV)
Discounted Cash Flow (DCF)
Economic Value Added
Market Value Added
Average Fair Value
A. Valuation Multiples
The most common method to determine valuation of a service firm is by using a Valuation Multiple, it is a factor used to multiply an economic profit for deriving a figure meant to represent the business value of the firm.Valuation multiples are financial measurement tools which evaluate one financial metric as a ratio of another, for making different companies more comparable. Multiples are the proportion of one financial metric (i.e. Share) to another financial metric (i.e. Earnings per Share). It is an easy way to compute a company’s value and compare it with other businesses. Let’s examine the various types of multiples used in business valuation.
There are two main types of valuation multiples:
Equity Multiples
Enterprise Value Multiples
Similarly, there are two main methods of performing analysis using multiples:
Comparable Company Analysis (“Comps”)
Precedent Transaction Analysis (“Precedents”)
Elaborating on the types of valuation multiples
1. Equity multiples
Investors make use of equity multiples in determining valuation especially when they aspire for minority positions in companies. The list below shows some common equity multiples used in valuation analyses.The equity value (or net asset value) is the value for the shareholders after any debts have been paid off. We can determine the company’s equity value when we value a company using levered free cash flow in a DCF model. If we know the enterprise value and have the total amount of debt and cash at the firm, you can calculate the equity value as shown below.
Equity value formula
Equity value = Enterprise Value – total debt + cash
Or
Equity value = Number of shares x share price
Various Equity Multiples are listed below: –
P/E Ratio – Also called Price to Earnings Ratio. This is the most commonly used equity multiple as the needed data for this ratio is easily accessible and mostly found in public documents. It is computed as the proportion of Share Price to Earnings Per Share (EPS)
Price/Book Ratio – This Multiple is not used in service firms as tangible assets are not that much of the final value this is useful in case where assets of the company are the prime drivers of its earnings; it is computed as the proportion of Share Price to Book Value Per Share.
Dividend Yield – used for comparisons between cash returns and investment types; computed as the proportion of Dividend Per Share to Share Price
Earning Yield– It shows percentage of a company’s earning per share, and to determine if share of the company is overpriced or underpriced, it is the inverse of P/E ratio the formula is Earning per Share/ Market price per share.
Price/Sales – used for firms that are currently making losses. It is used for quick estimates; computed as the proportion of Share Price to Sales (Revenue) Per Share
However, a financial analyst must take into account that companies have varying levels of debt also and that is an important factor which ultimately influences equity multiples valuation outputs.
2. Enterprise Value (EV) multiples
The second type of valuation multiples are Enterprise Multiples, these are used when decisions are about mergers and acquisitions. As these instead of giving the value of equity share give an idea of the value of the entire enterprise. This is also appropriate in startups where the venture is not big that it has gone public. Enterprise value removes the complications to valuation caused by the capital structure. But equity funds do not use this method as this also does not give a clear picture of future returns for equity investors. The information required in this method is not public and instead is requisitioned by the company planning to do the merger or acquisition. The enterprise value (which can also be called firm value or asset value) is the total value of the assets of the business (excluding cash).
When you value a business using unlevered free cash flow in a DCF model you are calculating the firm’s enterprise value.
If you already know the firm’s equity value, as well their total debt and cash balances, you can use them to calculate enterprise value, using the below formula
Enterprise Value = [ Number of shares x share price] + Total Debt – Cash
The list below shows some common enterprise value multiples used in valuation analyses.
EV/Revenue – This is a rather rudimentary form of deriving enterprise value as it shows the Enterprise value as a proportion of revenue. The definition of revenue can differ in respect of accountancy methods and taxation so this metric is slightly affected by differences in accounting and other considerations having its impact on the final ratio.
EV/EBITDAR – This is slightly refined view compared to EV/Revenue as it is mostly used in industries in the hotel and transport sectors; computed as the proportion of Enterprise Value to Earnings before Interest, Tax, Depreciation & Amortization, and Rental Costs
EV/EBITDA – EBITDA can be used as a substitute of free cash flows; most used enterprise value multiple; Enterprise Value / Earnings before Interest, Tax, Depreciation & Amortization
EV/Invested Capital – used for capital-intensive industries; computed as the proportion of Enterprise Value to Invested Capital
There are more equity and enterprise value multiples used in company valuation, this article only presented the most common ones. More readings and a thorough understanding of each multiple and related concepts can help analysts better apply multiples in making financial analyses.
The above metrics of Equity and Enterprise Valuation can be analyzed with two common approaches to valuation multiples Approaches are macro techniques which dictate the viewpoint and the entire methodology for using these valuation tools These approaches are
1. Comparable Company Analysis – This method gives an analysis of public companies that are similar to the company being valued. A valuation expert will gather share prices, market capitalization, capital structure, revenue, EBITDA, and earnings for each similar company. Comps is a relative form of valuation which requires other similar companies for evaluation, unlike a discounted cash flow (DCF) analysis, which is an intrinsic form of valuation and can be done as the basis of the company’s strength on its own.
Steps required for a Comparable Company Analysis
Finding the right comparable companies- An analyst needs to find the detailed description and industry classification of the company, then a search for databases of similar companies in either the same industry or the same locality is considered.
The criteria for including a company in the comparable list are usually Industry classification, Geography, Size (revenue, assets, employees), Growth rate, margins and profitability.
Gathering Financial Information- After the list of comparable companies is compiled then the financial information of these companies needs to be gathered. This information can vary depending on industry and company’s stage in the business cycle, for mature business metrics like EBITDA are used while for early stage companies Gross Revenue or Sales also suffice for this part either soft wares for financial gathering can be used or it can be done from quarterly financials though the second option can be really tasking.
Setup Comp tables – After all the information has been gathered then a table for comp analysis needs to be framed the heading of this table will be composed of following heads
Company name
Share priceShare price
Market capitalization
Net debt
Enterprise value
Revenue
EBITDA
EPS
Analyst estimates
Calculate comparable ratios- After the financial information and analyst estimates have been calculated then ratios for valuation need to be derived some of the common ratios are as follows
EV/Revenue
EV/Gross Profit
EV/EBITDA
P/E
P/NAV
P/B
2. Precedent M&A Transactions – This method analyzes past mergers and acquisitions (M&A) for companies in the same industry, which can be used as a reference point for the company that is being valued. Learn all about performing precedent transaction analysis. Precedent transaction analysis is a method used in company valuation where past M&A transactions are used for valuing a comparable business today. Commonly referred as “precedents”, this method of valuation is common when valuing an entire business as part of a merger/acquisition and is commonly prepared by those involved in investment banking, private equity, and corporate development.
Steps used in Precedent Transactional Analysis are elaborated as under
Search for comparable transactions- The analyst will need to find historical transactions in recent history (ideally) and in the same sector or industry. The transaction should be matched with various indexes like
Industry classification
Type of company
Financial metrics
Geography
Company size
Product mix
Type of buyer
Analysis of transactions- After sorting the transactions and collecting the data analyst needs to filter those transactions which have the required information matching the criteria and similarity to the desired company, and remove those transactions where some information will be missing or may not be public or may be incomplete.
Apply Valuation Multiples- When a list of companies and the transactional details have been finalized then Valuation Multiples can be applied. The most common multiples are EV/EBITDA and EV/Revenue. These valuation multiples could range from 5X to 1X.
Usage of multiples in valuation analysis helps in making rational judgments for analysts and companies, particularly true when multiples are used for providing valuable information about a company’s financial status. Furthermore, multiples are also relevant as they involve key statistics which are pivotal to investment decisions. Additionally, the simplicity of multiples makes them an easy tool for most analysts.
But, this simplicity is also considered a disadvantage because of the fact that it simplifies complex information into just a single value. This simplification is prone to misinterpretation and makes it a challenge to break down the effects of various factors.
Next, multiples represent a single instance of a company’s status rather than a period of tim.they do not easily show how a company grows or progresses. Additionally, multiples reflect short-term data instead of long-term ones. Thus, the resulting values are only applicable in the short-term and not in the longer future.
B. Net Asset Valuation Method (NAV)
NAV is usually calculated on the basis of market value but in case market value is not available then book value can be used.
It is calculated
NAV per equity share = (Total Assets – Total external Liabilities)/ Total number of equity shares This method is usually used for entities which own assets having prominent value.
C. Discounted Cash Flow
Discounted cash flow (DCF) is a valuation method used for estimating the value of an investment based on its future cash flows. DCF analysis calculates the present value of expected future cash flows using a discount rate. A present value estimate is then used to evaluate a potential investment. If the value calculated through DCF is higher than the current cost of the investment, then the company is considered valuable to be invested.
DCF is calculated with following components CF = Cash Flow, r = Discount rate (WACC)
The Equation for calculation of Discounted Cash Flow (DCF) is as follows
DCF = Cash Flow / (1+r)^n
where n is the time period
r = is the discount rate used for estimating future cash flows If a firm is evaluating a potential project, they may use the weighted average cost of capital (WACC) as this discount rate. The WACC is the average cost which a company pays for capital through borrowing or selling equity.
Sum of cost of capital of equity (Ke), Cost of capital of retained earning (Kr), Cost of preference shares (Kp) Cost of capital of debt (Kd) multiplied by their respective weights. Weights are usually determined on the basis of book value or market value of securities.
DCF analysis can be done
Estimate the future cash flows according to the process given below
Particulars
Amount (Rs.)
Earnings before depreciation, interest, tax & amortization (EBDTIA)
xxx
Less:
Interest
(xx)
Depreciation
(xx)
Amortization
(xx)
EBT
xxx
Less:
Tax
(xx)
EAT
xxx
Add:
Depreciation
Xx
Amortization
Xx
Decrease in working capital
Xx
Less:
Increase in working capital
Xx
Capital expenditure
Xx
Redemption of debentures/preference shares
Xx
FREE CASH FLOW
2. After that determine the Weighted Average Cost of Capital (WACC) i.e. cost of securities which are to be adjusted with appropriate weights suited to the security of the company as given in the formula above
3. Then apply the Free Cash Flow and WACC to the formula of DCF = Cash Flow / (1+r)^n.
D. Economic Value Added
Excess return earned by company over and above the minimum desired return. It is the difference of after tax EBIT and Multiple of capital employed and overall cost of capital. For example, let’s assume Capital employed in Rs. 100 crore and overall cost of capital is 10% so the company will have to at least earn Rs. 10 crores to cover its cost, now suppose the said company is earning Rs. 12 crores so the economic value added is Rs. 2 crores. If the EVA is positive, then the investment should be pursued.
E. Market Value Added
This is a very basic method of valuation which does not go into details of the financial metrics. The basic objective of using this method far reaching applicability of the valuation method for as many companies as possible even enabling cross sector comparisons. But this method does not take into account geographical or market based subjective conditions so it is not to be relied upon for its accuracy in turbulent market conditions.
The method for calculation of Market Value Added approach is as follows: –
Market Value Added = Value as per market – Value as per books
Value as per market is calculated as the multiple of market share price x number of shares of the company
F. Average Fair Value
This method comes to play after almost all avenues have been exhausted and as such it is not very detailed. When a reliable estimate cannot be derived from one method alone due to absence of data or no comparable companies being available, then more than one method valuation is averaged and this valuation is called Average Fair Valuation
Conclusion
While there are some industry wide accepted methods for valuation, it isn’t an exact science it is an art. The entire process is filled with a series of assumptions and estimations. Additionally, the valuation methods are easily manipulated based on the time period of which the analysis is being done. No single valuation method can give a foolproof method for future performance of the company, as that has various other macro factors involved too all of which are impossible to account for. Although the availability of detailed data in case of public companies makes the analysis more realistic still there are chances of it being biased as well. Hence no single Valuation method can serve as a panacea and the only help that these methods can do is in analyzing complex data to provide certain trends for more informative decision making. The rest, as they say, is subject to market risks.
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This assignment will specifically deal with the concept of Fair Use Law and how this concept derived its significance in Indian cases. It will also focus on the legislation that deals with this law and to what extent this law can be applicable based on the analysis of certain landmarks judgments of U.K., U.S as well as Indian cases.
Doctrine of Fair Dealing
Doctrine of Fair Dealing is an exception to the law that would usually protect any material that would be considered to be copyrighted as under the Indian Copyright Act, 1957 (hereinafter known as the “Act”). It is a legal doctrine which permits a person to use any work which is protected under the Act with limited usage of such work so as to maintain the sanctity and originality of such work as well as the registered proprietor of the work.
The meaning of “Fair Dealing” depends on different facts and circumstances. In India, the Court applies basic common sense so that they can determine as to what can be constituted as Fair Dealing on the case- to- case basis. Fair dealing is a significant limitation on the exclusive right of the copyright owner. It has been interpreted by the courts on a number of occasions by judging the economic impact it has on the copyright owner. Where the economic impact is not significant, the use may constitute fair dealing. The fair nature of the dealing depends on the following four factors:
the purpose of use;
the nature of the work;
the amount of the work used, and
the effect of use of the work on the original.
In consonance with the UK Copyright laws, India has adopted the concept of Fair Dealing for the past years. On the other hand, the same concept is known as “Fair Use” under U.S. Copyright laws. Cases such as Gyles vs Wilcox which had established the concept of “Fair Abridgment” and Folsom vs Marsh have established the concept of what Fair Dealing is. These cases acted as precedents to the Indian cases which will be discussed in brief later in this assignment.
In the recent amendment that has been made in the Act known as the Copyright (Amendment) Act, 2012, the concept of Fair Dealing has also included works in the line of musical or cinematographic in nature. The reason for this is that since both personal and private works have been amended in the recent Act except work done in the line of computer programming, the scope has become much wider to consider what can be considered to be Fair Dealing under the Indian Regime. Also, Fair Dealing has been considered to benefit disabled persons who can now access works including sharing with any person with a disability for private or personal use, research or for any other educational purposes.
What do you mean by Fair Use under the Indian Copyright Act?
Under Indian regime legal framework being the Copyright Act, 1957,section 52 lays down certain acts or works that cannot be considered as an infringement of copyright namely fair dealing with a literary, dramatic, musical or artistic work not being a computer program for the purposes of-
“private use, including research;
criticism or review;
reporting current events in any print media; or
by broadcast or in a cinematographic film or by means of photographs;
reproduction for the purpose of a judicial proceeding or of a report of a judicial proceeding;
reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;
the reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force;
the reading or recitation in public of any reasonable extract from a published literary or dramatic work;
the publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions,
the making of sound if made by or with the license or consent of the owner of the right in the work.”
The Court along with the above mentioned provision, also relies upon classic cases which has been dealt in brief in the next chapter as to what and up to how much extent any work which is abridged as under the Act can be considered to be “Fair Use” of the copyrighted work which in fact, is an extremely technical based issue that is seen by the Court mainly looking into the fact of the case.
Hubbard vs Vosper- In the line of dealing with the concept of Fair Dealing, Lord Dennings has stated that “It is impossible to define what is “Fair Dealing”. It must be a question of degree. You must first consider the number and extent of the quotations and extracts…. then you must consider the use made of them…Next, you must consider the proportions…other considerations may come into mind also. But, after all, is said and done, it is a matter of impression”.
Gyles vs Wilcox– This case had initially established the doctrine of “Fair Abridgment”which eventually came to be known as “Fair Dealing” which was the first case based on the concept of Fair Use law as was adjudicated by the Court of Chancery of England. In this case, the Court adjudicated the issue of whether work which comes within the purview of copyright can be abridged or such abridged are to be considered as new work, separate to that of abridged work. In that regard, Lord Hartwicke established two categories under which such abridged work would be classified into firstly, “True Abridgments” which in itself explains that the work was created at its truest form without violating the copyright. While the other being “Coloured Shortenings” which is the colouring or certain adjustments made to the original copyrighted work.
Folsom vs Marsh– This case was the first-ever case of “Fair Use” in U.S. wherein, Justice Story has set forth the following four factors to determine a work to be of Fair Use, which later went to be codified under the Copyright Act, 1976:
“The nature and objects of the selections made;
The nature of the original work;
The amount is taken; and
The degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”
Indian Cases
India TV Independent News Services Pvt. Ltd. vs Yashraj Films Pvt. Ltd.8- In this case, the defendant alleged that the plaintiff had been infringing their work under the Act, wherein, certain movie clips which were of the defendant were used in the plaintiff’s broadcasting channel. The plaintiff took the defence of Fair Use stating that such clips used were very well in accordance with the meaning of section 52 of the Act. The Court in this case, however, directed the plaintiff to not use the copyrighted works of the defendants since it considered to be in direct violation under the Act.
Civic Chandran vs Ammini Amma- In this case, the Court considered that a parody did not constitute an infringement of copyright as long as it has not been misused or misappropriated. In consonance with this case, the Court established the following three tests which is to be taken into consideration to determine work to be an infringement of copyright:
“the quantum and value of the matter taken in relation to the comments or criticism;
the purpose for which it is taken; and
the likelihood of competition between the two works.”
Conclusion
It can be safely concluded that the test to determine a copyrighted work as a Fair Use of such work indeed differs from case to case since such facts are to be given high priority more than the law itself. Though the legislature has attempted to make law on this concept more flexible but precise, in the Indian scenario, section 52 of the Copyright Act, 1957 makes a legitimate stand for the public to rely upon this provision for now. As mentioned under Article 13 of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) which reads as follows:
“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder”.
India has been able to establish a proper ground as for now since the whole idea having an exception as against the protection of copyright is to give rise to creativity and growth which can be transformed and expressed in many other new ways so as to encourage people to attain such degree of creativity with careful consideration to the original copyrighted work.
Endnotes
Lexology, Exceptions to copyright infringement – fair dealing,
(1740) 26 ER 489
9. F.Cas. 342 (C.C.D. Mass. 1841)
Supra note 1
Supra note 1
1972) 1 All ER 1023 p. 1027
Supra note 3
FAO(OS) 583/2011
1996 PTR 142
Mondaq, India: “Fair Dealing” In Copyrights: Is The Indian Law Competent Enough To Meet The Current Challenges?
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This Assignment will specifically deal as to what constitutes infringement of copyright in design while keeping in mind the provisions as laid down in the Designs Act, 2000. Also, the remedies shall also be discussed in this assignment available as against the person who has infringed the right of the proprietor of the design along with citing different landmark case laws to support and analyze the purpose of this assignment.
Meaning of Infringement, Copyright and Design
In general terms, infringement with respect to intellectual property rights is the breach of any of the Intellectual Property Rights including trademark, patent, copyright, design etc wherein the work of the owner of such intellectual property rights. In other words, Intellectual Property Rights are infringed when a work protected by Intellectual Property laws is used, copied or otherwise exploited without having the proper permission from a person who owns those rights.
Copyright is said to be infringed when works in form of literary, dramatic, musical or artistic which is original in nature are infringed without the permission of the owner of the work that has been registered under the Copyright Act, 1957.
Design as per the Designs Act, 2000 has a very restrictive and limited definition which shall only include “features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye”.
Infringement of Copyright in a Design
In order to understand the infringement of copyright in a design, we need to know what constitutes a design to be qualified as statutorily registered design under the Designs Act, 2000 (hereinafter referred to as the “Act”). To that extent, section 4 of the Act lays down the following three criteria which are to be considered while a person or proprietor intends to get their work registered:
It has to be new or original. For further clarification, the landmark case of Gammeter vs Controller of Patents explained that the design does not necessarily have to be created newly, but can also be used in a unique way on an old design as long as the usage of the new design on an existing product has not been already discovered earlier otherwise.
It is not existing in the public domain or has been published in any tangible form within India or outside India as the case may be. This can be explained by citing the case of Steelbird Hi-tech India Ltd vs SPS Gambhir in which the Court clearly explained that the design needs to be new or original which is a product of the intellectual outcome of a person and has never been in existence before such person has expressed such design in a tangible form.
It is significantly distinguishable from other designs or a combination of designs already existing in the public domain.
Should not have any scandalous or obscene matter present in its content.
A design which is registered as per Chapter II of the Act, section 11 of the Act gives an advantage to the registered user to not only protect their work under the Act itself but also can acquire copyright protection for a period of ten years from the same day the work was registered under the Act. On the registration of a design under the Act the proprietor of the design acquires the following rights:
The exclusive right to apply the design to any article in any class in which the design is registered;
the exclusive right to publish or expose, or cause to be published or exposed, any article in any class of goods in which the design is registered to which such design is applied; and
the exclusive right to import for the purposes of sale any article belonging to the class in which the design is registered and having applied to it that design.
For explaining further as to what constitutes as an act of “Piracy of Design”, section 22 (1) of the Act lays down the following checks that will help determine whether the Design created or developed is pirated or not:
The design which is proposed to be registered or used otherwise for the purpose of sale should not have “fraudulent or obvious limitation” as to that with a registered design, until and unless written permission has been acquired from the registered owner of the registered design. This was clarified in the case of Veerplast Houseware vs Bonjour International in which the Court considered this particular check to be confirmed from the point of view of the “customer with average knowledge and imperfect recollection”.
“Substantial differences” should be there between the design which is proposed to be registered and the design which has been already registered. This was discussed in a landmark case of Britannia Industries Ltd vs Sara Lee Bakery wherein, the infringement of the design was judged by matching the old design with the newly registered design and in the instance of substantial similarities. It was an important case since the designs of both the parties were to be considered from the perspective of a child which was found out by the Court to having substantial differences as against the contentions which were made by the plaintiff.
Contravention of any of the following checks mentioned above shall be discussed in the next chapter of this article which provides remedy as against the wrongdoer or the person who has infringed upon the rights of the person who has already registered their design as under the Act.
Remedies against Infringement of Copyright in a Design
In pursuant to the previous chapter, we have established as to what constitutes an infringement of copyright in design and the different case laws which had further helped in developing the understanding of the concept. In this chapter, the different remedial mechanisms shall be explained below with reference to the relevant provisions:
Section 22(2) of the Act- Subsection 2 of section 22 provides that if any person has been found in contravention of section 22(1) of the Act which has been discussed in the previous chapters, the person who has infringed the rights of the registered proprietor of the design shall be liable to pay not more than INR 25,000 which will be recoverable towards contract debt. The registered proprietor also has the right to file a suit for injunction, not lower than that of the Court of a District Judge, as against the person wherein, if injunction is passed against the person, he/ she shall be liable to pay such damages awarded by the Court other than stopping the wrongdoer to use the infringed design.
Section 55 of the Copyright Act, 1957 provides for civil remedies that can be availed by the registered proprietor wherein, if any person who is intentionally infringing such work as covered in the Copyright Act, 1957 are entitled to seek remedy in the form of either claiming damages, accounts or by filing a suit for injunction against the person who has infringed the right of the registered proprietor.
The registered proprietor is also entitled to receive such profit which was gained by the wrongdoer during the time of using the infringed design of the registered proprietor.
The registered proprietor may also seek an interlocutory injunction as under Order 39, Rules 1 and 2 of The Code of Civil Procedure, 1908 wherein, the registered proprietor has to establish a prima facie case showing “balance of convenience” in its favour. This can be further explained by citing the case of Novartis AG vs Mehar Pharma9 wherein, the Court held that an “interlocutory injunction will not be granted where damages will provide an adequate remedy should the claim succeed”.
As under Administrative Remedies, the registered proprietor of the design can file an application under section 53 of the Copyright Act, 1957 before the Registrar of Copyright for stopping the import of products which are subjected to infringement of his/ her right under the Copyright Act, 1957 wherein, after necessary examination, may confiscate such products which are likely to infringe the rights of the registered proprietor.
Section 63 of the Copyright Act, 1957 provides for criminal remedies that can be availed by the registered proprietor wherein, if any person who is intentionally infringing or abets such infringement of such work as covered in the Copyright Act, 1957 or otherwise (meaning work connected to designs as under the Act), such person shall be punished by way of imprisonment for a minimum of 6 (six) months which may extend up to 3 (three) years along with fines amounting to a minimum of INR 50,000 which may extend to INR 2,00,000.
Section 63A of the Copyright Act, 1957 provides for punishment on second and subsequent crime wherein criminal remedies can be availed by the registered proprietor. Such punishment shall consist of imprisoning the wrongdoer for a minimum 1 (one) year which may extend up to 3 (three) years along with fines amounting to a minimum of INR 1,00,000 which may extend to INR 2,00,000.
Conclusion
It can be safely concluded that though there has been effective provisions and precedents that have taken care of the loopholes and issues that have popped up from time to time in this subject- matter, India still needs to clearly lay down a more lucid, coherent and clear cut laws based on such type of infringement. The reason for such need is because more and more people are entering into the line of business wherein, the trend of startups have boosted the need and importance of intellectual property rights. Such requirement will automatically give rise to more complicated issues that may or may not be foreseen today but a well- structured and articulated law will make people realize as to what are the rights as well as the duties that come with acquiring such rights on a more coherent level.
Endnotes
Section 2(d) of the Designs Act, 2000
AIR 1919 Cal 887
2014 (58) PTC 428 (Del)
Eastern Book Company, Design Protection in India: A Critique by Virendra Kumar Ahuja,
2011 (46) PTC 479
AIR 2000 Mad 497
Indranath Gupta reviewing the work of N.S. Gopalakrishnan and T.G. Agitha, Principles of Intellectual Property, Journal of the Indian Law Institute, Vol. 56, No. 2 (April-June 2014), pp. 268
M/s. Micolube India Limited vs Rakesh Kumar , (2013) 55 PTC 61 (Del)
(2005) 30 PTC 160 (Bom)
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This article is written by Asgar Ali, pursuing a Diploma in Industrial and Labour Laws from LawSikho.com. Here he discusses “Occupational Health and Safety Requirements for Foundry and Construction Workers in India”.
“Nothing in this world is more precious than a Human life, Please work safely”
“All accidents are preventable”
“Safety Ever – Accidents Never”
“Work safely all the while – Go home with a joyful Smile”
Introduction
These are some of the very famous quotes prevalent in the industrial sectors all over the world which you can see displayed at the entrance of any Construction Site, manufacturing unit or nearby the office of any RCM i.e. Resident Construction Manager / Safety Officer in any factory.
The Purpose of displaying such a motivational slogan is to make every person aware that Safety is most important for them in their routine as well as non-routine work.
At present, both construction work, as well as foundry related work activities, are the second-largest activities, next to agriculture work in India which give a tremendous boost to our country’s economy. Construction, as well as Foundry segments, are labour – intensive which employs around 60 million people of unorganised and organised sectors in India.
The OH&S (Occupational Health and Safety) management in Foundry divisions and Construction sites is quite a herculean task due to its nature of work, ever-changing locations of construction sites and adverse work environments.
Foundry Work and Major OH&S Risks to its workers
The history of the foundry is thousands of years old and it is evident in ancient metallic objects like coins, arrows, swords and household articles found from the excavations of Harappa and Mohanjodaro. In the history of mankind, there are many proofs of foundry practices like melting ore and pouring it into suitable moulds are observed in many Egyptian, Roman and Indian historical scriptures.
Some major Occupational Health and Safety hazards and environmental risks in the foundry industry are as follow :
Emission of heat rays, toxic fumes, dust, noise, vibration and gases during foundry operation and its exposure to working people and causing ill- health.
Exposure to hazardous chemicals which also incorporate some hazardous substances and dangerous goods which are sometimes ozone depleting substances(ODS) and globally banned chemicals which result in the significant environmental impact
Risk of burn injury due to hot liquid splash from molten metal during melting, handling and pouring operations
Risk of flying objects during knock-out operations of moulds, grinding and chipping work etc.
Risk of Physical injuries due to Manual tasks like material handling.
Mechanical and electrical risk while using plant equipment and machinery
Radioactive rays hazards during Radiographic Test of Metal using X-ray Machines and isotopes
Explosion and Fire Hazards during poured metal casting, heating and hot works.
Generation of hazardous sludge, effluent water during hot metal quenching activities
Slip, trip and fall due to poor housekeeping etc.
Heat stress due to High temperatures and its direct infrared radiation to foundry workers
Required Safety Compliances for Foundry workers
Following are some key Safety statutes (with latest amendments) which are applicable to a factory running foundry and casting operations:
The Factories Act, 1948 with applicable state factory rules
Petroleum Act, 1934 with applicable State Petroleum Rules.
Explosives Act, 1884 with applicable state Explosives Rules.
Gas Cylinder Rules, 1981
Static & Mobile Pressure Vessels (Unfired) Rules, 1981
Electricity Act, 2003/ Indian Electricity Rules, 1956
Motor Vehicles Act, 1988 /Central Motor Vehicles Rules, 1989
Acts and rules of related to social security, i.e. the Employees’ Provident Fund and Miscellaneous Provisions Act, the Employees’ State Insurance Corporation Act, the Employees’ Compensation Act and the Maternity Benefits Act etc.
Any other rules, i.e. local laws and rules, Safety expectations applicable to them
Note: Several industrial safety and welfare laws i.e. The Factories Act, 1948, The Dock Workers (Safety, Health and Welfare) Act, 1986, The Mines Act, 1952, The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, The Contract Labour (Regulation and Abolition) Act, 1970 etc. shall be amalgamated by The Labour Code on Occupational Safety, Health and Working Conditionswhich is enrolled as Bill No. 186 of 2019 and has been INTRODUCED IN LOK SABHA by Minister of State for Labour and Employment in July 2019.
Though there are many other acts, International Standards and regulations which are applicable over foundry related industries and emphasis over health and safety compliances of foundry workers but in this article, the specific provisions of the Factories Act, 1948 as laid down in its Section 11 to 49 are being mentioned on macro-level which is mentioned as follow:
Required Health Measures
Required Safety Measures
Required Welfare Measures
Cleanliness
Disposal of waste and effluents
Adequate Ventilation of Heat, dust and fumes
Adequate lighting
Drinking water
No overcrowding
Artificial humidification
Fencing of Machinery
Safety during Work on near machinery in motion – Only trained person with tight clothing shall be allowed
Detailed Health and Safety Policy to be established
Pre-employment Health and Medical examination by a certified Medical surgeon including
pulmonary function tests and chest X-ray
Employment of Safety Officer 1000 or more workers
Young person ( Apprentice ) should be forbidden to work on dangerous machines
Screens and suitable goggles to be provided for protection of eyes.
First-Aid facilities to be provided. First Aid box to be maintained (contents of the box shall be provided as per the prescribed State Factories Rules)
Adequate number of fire extinguishers to be provided
Maintenance of machines to be done periodically along with examination report i.e. Hoist and lifts (Yearly) / Pressure plants (Half Yearly)/ Lifting machines, Wire Ropes, Chain Pulley blocks (Yearly) / Plant and Machinery (Yearly) etc.
Protection against dangerous fumes, gases etc
Safety of building and machinery
Maintenance of building
Safety Measures related to Hazardous Processes
Constitution of Site Appraisal Committee
Compulsory disclosure of information by occupier
Specific responsibility of occupier related to hazardous process operations
Emergency Preparedness Standards
Permissible limits of exposure of chemical and toxic substances
Workers participation in safety management
Right of workers to warn about imminent danger
Adequate drinking water facility, Washing and lightening facilities, adequate ventilation etc. to be provided
Re-examined by a Certifying Medical Surgeon at the frequency of at least once in every twelve months and to keep a record in the form of the medical history of every worker engaged in hazardous operations
Rest Room to be provided – more than 150 workers
Employment of Welfare Officer – 500 or more workers
Notice of appointment/change of occupier should be filed in prescribed Form number -Within 15 days of appointment/change
Notice of appointment/change of manager should be filed in a prescribed form within 07 days of appointment/change
Facility of Crèche, If more than 30 women are employed
Canteen – On employment of more than 250 workers
Section 7 A of the Factories Act, 1948 imposes a specific duty on the Occupier to ensure health, safety and welfare of all workers while they are at work in the factory
History of Construction Work
The History of Construction work is far older than foundry. In fact, it is as old as civilization itself.
Construction Industry has developed through the ages and created the fine monuments such as the exquisite ancient temples, the massive Pyramids of Egypt, the Taj Mahal and the modern wonders of complex and tall structures like Unity of Statue, beautiful dams and robust bridges which are shining marvels of Civil engineering and glory of Construction industries.
But all this glory of Construction and shining marvels of Civil engineering based upon the hard toil of our all those civil workers who have contributed their days and nights in construction activities facing its associated safety risks and hazards.
Why the accident rates at any construction site are always high?
The accident rate in construction Site is high due to one major factual reason and that reason is – the Migrant labourers especially the labour workers coming from rural areas with no educational background or a very low education level, their NIL or very less experience to forecast the unknown construction related dangers and very important – No safety awareness to use PPEs(Personal Protective Equipment like Hard hat helmet), Full Body Safety Belt, Use of Safety net, Safety Goggles, Hand gloves, safety shoes etc.). No use of PPEs makes them prone to risks. At present, the construction labour is readily available at every corner of cities and most construction companies hire them through middleman (contractor) without measuring their competency to perform specific construction work activities. Such construction workers usually join construction site with their family including women workers and children which further aggravate the safety risks.
Common Major OH&S Hazards and Risks to Construction workers
Following are some major occupational health and safety hazards and environmental risks in the construction industries and their causes:
Risk of falling from height/weak scaffolding structures, falling of objects, cave-ins and Mechanical Hazards
Falling from height, fall from ground to ground or ground to deep pits are most common Safety risks at construction sites. Any person may fall into the manually dug out pits/ deep foundations or into excavated pit due to its weak shoring. In such cases, most of the workers have risk of entanglement or engulfment due to nearby soil of earth may fall on the workers working in the construction pits.
Maximum mishaps occur during working at height by construction workers with no use of Safety belts. While working on height, maximum chances of accidents are due to broken ladders, incorrect scaffolding, improper use of ladders etc.
A site where poor housekeeping is there and work area is not clean or tidy, there some unwanted material objects like sharp objects, tools, construction waste are lying around which further create safety risk or aggravate the safety, health and environmental hazards.
Risks of electrostatic discharges and Electrical Shock
Such accidents may be occurring if electrical equipment are used in wet/waterlogged or any moist /damp areas. Risks of electrical shocks are also increased if electrical connections are overloaded or left free on the ground.
Burns, shocks, fire and electrocution can be resulted due to Short circuit, electrical flash and loose electrical connections /electrical bare wire etc at any construction site.
OH&S Hazards and Risks during Lifting or Rigging
When Heavy loads are to be lifted and to shift this load by means of Lifting Equipment i.e. Mobile cranes and sometimes the cranes get overturned due to unsafe lift plan. At Construction sites, Overturning of Mobile Cranes can result in a big financial loss and most dangerous loss i.e. loss to human life.
OH&S Hazards and Risks in Confined Space
Whereas working into the confined spaces especially those spaces which are having a very limited ingress or exit can become dangerous to life due to deficiency of oxygen, availability of any toxic and flammable gas /substances inside confined space.
Other OH& S Hazards and Risks at construction Sites
Thermal Hazards (Immense heat, fire or Use of Cryogenic substances etc.)
Chemical hazards (toxic dust of sand or cement etc / chemical particle’s fumes, gases and vapours etc.)
Radiation Hazards (i.e. ultraviolet radiation, ionizing hazards due to use of Radioactive test Equipment)
High Noise
Biological hazards (Bacterial development, Insect (Snake/ mongoose /wasp etc) Bite, storage of pathogenic material, Development of fungus and further skin diseases, etc.)
Low or High humidity, low visibility, ergonomic hazards like back / neck/ body pain due to awkward work positions, etc.)
Most Common Reasons of High trends in Construction related Accidents
No Fulfilment of associates Statutory and Safety Compliance at Construction Sites
Negligence of Contractors and Site In charges
Unskilled Construction Labour and no Safety awareness to them
Defected Construction Machinery
No periodical examination of equipment. Use of Jugad (temporary provision)
Psychological stress in speedy Project Execution which generate safety gaps
No barricading
No warning signs
Unsafe behaviour to work
Drug addiction
Required Safety Compliances for Construction workers
In India, The construction labour workers establish a major portion of unorganized sector and are categorized by their temporary, short/prolonged/uncertain working hours, casual nature of employment, a temporary relationship with their contractor or employer, inadequacy of basic welfare facilities and amenities and lack of safety and health measures etc.
There are many legislature sections and provisions providing safeguards for contract workers in India. In addition to the other safety related acts applicable over industrial workers except provisions of the Factories Act, 1948 and the Mines Act, 1952 in major construction areas and where there is a construction of residential houses for private purposes with a cost not exceeding INR 10 lakhs, there are two major pieces of legislation governing health and safety laws. These areas:
The Building and Other Construction Workers (Regulation of Employment and Condition of Services) Act, 1996.
The Building and Other Construction Workers (Regulation of Employment and Condition of Services) Central Rules, 1998
Who is responsible to ensure safety of the construction workers?
Likewise, Factories Act, an Employer shall be responsible for Safety, health and Welfare provisions for Construction workers. Every employer of an establishment to which the BOCW Act applies is required to register the establishment with the registering officer.
Who is an Employer as per The BOCW Act 1996?
The Head of Department or the authority specified (in case of construction work is carried out directly by any department of the Government)
The Chief Executive Officer (in case of construction work is carried out directly by local authorities or other establishments), or
The Contractor ( in case of construction work is carried by or through contractors)
Some Key Compliance Requirements as per the BOCW Act and Rules are as following:
Rule 34 : Protection against harmful effects of excessive noise level
Rule 35: Provision of Fire Extinguishing Equipment
Rule 36: Emergency Action Plan
Rule 37: Fencing of Motors etc
Rule 38: Lifting and carrying of excessive weight
Rule 39: Health and Safety Policy
Rule 45: Eye Protection
Rule 46: Head Protection and other protective apparel
Rule 47: Electrical Hazards
Rule 54: Use of Safety Helmets and Shoes
Rule 56(1): Test of Lifting Appliances
Rule 56(2): Periodical Examination of lifting appliances
Rule 61: Identification and marking of safe working load
Rule 64: Operation of lifting appliances
Rule 208: Safety Committee
Rule 209: Safety Officer over every 500 workers
Rule 213: Precautions during handling of explosives
Rule 223: Medical examination of building workers
At Every Construction Site, there shall be the mandatory Display of:
a) Registration Certificate – A copy of the certificate of registration shall be displayed at the conspicuous places at the work premises
b) Abstract of the BOCW Act- In English/ Hindi ( language understood by the majority of workers) at prominent place of construction Site wherever workers get assemble in routine work ( i.e. Security Gate / Nearby Attendance Punching machine/canteen etc)
c) Health and safety policy- In English/ Hindi ( language understood by the majority of workers)
d) Awareness About Electrical hazards- In English/Hindi ( language understood by the majority of workers)
e) Display of Danger/Warning signs, barricades/Marking of Safe Working Load (SWL)/signals etc
f) Marking at outside of Toilets as “Men Only“/“Women Only in a language understood by the majority of people.
Register of Periodical Test, Examination and Certificates thereof: Register in Form number XXVI, Form number V, Form number VI, Form number VI, Form number VII, Form number VIII, Form number IX, Form number XXVI to be maintained by Employer at Construction Site.
Conclusion
All over the world, we, the Indians are famous for our mega construction project and high skill set. We are the maker of 597 feet high Statue of Unity – the tallest statue in the world.
We over selves have to be vigilant over fulfilling Safety compliances at our workplace by making our hard-working and dedicated workers aware of Safety norms.
Safety means “No harm to anyone” and it is the responsibility of all, all means every person engaged in that work activity from top to bottom level. Safety Culture demands involvement and participation of all.
Everyone must shoulder the responsibilities to identify the potential hazards and hidden risks before start work whether it is any foundry, any workshop, any construction site, a playground or even we work at home. Everyone must apply his best efforts to eliminate these Safety hazards in order to develop a Total Safety Culture at the workplace and then only we can MAKE EVERY DAY A SAFE DAY.
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It is a pleasure to work with some people. While it is just terrible to work with others.
Some people seem really good to work with in the short term, but in medium to long term, they turn out to be horrible.
Who are these people? What is different about them?
Is it possible to succeed in today’s environment unless you are good to work with? I doubt that. You may have to find a government job or something like that where performance is not important to survive if you are terrible to work with, or you will be changing jobs every six months, blame the whole world about how it’s unfair and remain stuck in low paid positions.
And chalk it all up to bad luck.
Almost all people who are blaming the whole world about their failures in life are terrible to work with for various reasons.
Having hard skills or raw talent is not enough to succeed. You need to be someone who is good to work with if you want to taste real success.
Read this quickly and check if you fall into any of these categories by chance.
#1 Manipulators
Many bosses rely on manipulations to make their employees work or just have control on them, and many employees rely on manipulation to avoid work or project themselves as better, more loyal, or hard-working.
Manipulations can produce results in the short term, but they get discovered sooner or later, no matter how smart the manipulator is.
Their bluffs get called and people quickly lose respect for them.
When I was young, I used to be highly manipulative. I thought it is smart to be manipulative. Over time I realised the real price I was paying for manipulating others.
Gaining trust of others is hard, but worth it. Manipulation leads loss of respect, morale and overall toxic environment,
If you see manipulators, calling them out is not enough, quit on them quickly.
#2 Angry bosses
Some bosses are so weak that they rely on anger and bluster to get their subordinates to work. It shows lack of leadership. It is one thing to get angry in a rare situation, but if you have to rely on anger to get work done frequently, then you are walking on thin ice.
It would be very hard for you to grow beyond a point. Most importantly, you will never have competent people working with you, they will quit very soon.
I have had to fire good managers who produced results because they only relied on screaming at their subordinates to produce results. My only regret is that I did not fire them faster.
If you are an employee with anger issues, you are going nowhere anyway.
Again, this does not mean its a bad thing to be angry in some rare situations that really deserve the anger.
#3 Minimum performers
There are some professionals who want to do only the minimum work they can get away with. They refuse to take responsibility for situations they find themselves in. They do only what they are asked to do, and nothing else.
It is hard to survive in today’s work environment if you belong to this category unless you are doing some minimum wage job. This is a recipe for getting fired from high paying jobs and staying stuck in jobs that don’t pay well and have no opportunity for growth.
If you are not ready to go the extra mile to get the jobs done whenever required, you are a minimum performer.
These people are harder to get noticed, except for the fact that they do not grow much in their careers. Sometimes they manage to hide in big teams where others pull most of the weight.
#4 Damsels-in-distress personalities
You will find some people in most organizations who do not get work done and rely on colleagues to help them to survive. They always complain about their bad luck, difficult situation and helplessness.
It is a personality that some people take on to get through life.
It works for some time until people get fed up of carrying their burden. Then they move to another organization and reenact the same drama.
Do not think it is women who do this most of the time because I used the word damsel. It is pretty much common to find men who do this exact same thing.
#5 I-am-too-good-for-this employees
Many see their job as a mere stopgap on their way to do something much bigger. Which is fine, except that it is no excuse to not give their life and soul while they are doing their current job.
However, they are so caught up in their fantasy that they are meant for something better, that they do not do justice to their present work.
No work is too small. High performers do not leave any opportunity to make a mark in their present work. They know the high performance in their present job is the way to move on to something better when the opportunity will arise. They do not laze around thinking that a job is a mere stopgap.
I was part of a training program once, where they used to make me stand at the gate welcoming people with a smile and usher them inside.
It was hard to adjust to it initially, from being the CEO of my own company to being a mere usherer/door keeper in an event. But the challenge was to do it with the mindset that I have to be the best at the world at it. I soon realized that I can make people feel welcome, raise their spirits and teach myself to be humble doing it. I realized that I can learn to do it with all the intensity and focus that is needed to do my job of a CEO.
And therein lies a major power and secret of success. You are not too good for any job. You can take any work and elevate it to the level of world-class art. While you are at it, do not leave any opportunity to learn from it, and do not leave any opportunity of making a mark at it.
#6 Defensive personalities
These people are often high performers. However, no matter how good you are, you are likely to make mistakes, having blind spots and there would always be opportunities to improve. These people can’t take criticism or anyone pointing out how things could be better.
I-am-already-doing-everything-I-can defensive personalities hate anyone telling them what could be improved and always respond with counter allegations and denials.
The slow down the growth of the organisation and are despised by leaders who are responsible for growth.
#7 Over competitive personalities
It is one thing to compete and grow. It is another to not understand that collaboration is very very important.
In a workspace, it is cardinal crime to even try to stop or prevent other people from growing because you are afraid they will outgrow you. Any good organization will spot you and try to reform you, failing which they will throw you out.
Being competitive is very good and encouraged, being a jerk is not.
#8 Superstar bullies
There are superstars who bully their colleagues and even get away with it due to their star status. This is absolutely toxic for the culture of a company and needs to be checked.
Your performance is not an excuse for your poor behavior or mistreating colleagues.
It is hard to fire superstar bullies because they often tend to be the best performer in a team or occupy senior positions. However, long term success requires such people be put in their place.
Did I miss any?
Please let me know in comments/responses.
Be the kind of colleague who is competent, respectful and a delight to work with. That’s hard to beat.
If you are the sort of professional always trying to become better at your work, and understand that learning new skills is key to continuous success, look into these courses we are offering from LawSikho:
This article has been written by Neha Mallik, studying at Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article gives an insight into The Era of Designer Babies through genetic engineering and the law and ethics behind it. It also explores the question, are we really ready for designer babies?
Overview
Over time, the study of genes has acquired significant growth. Many developments are going on in this area. One such development is genetic engineering, also known as genetic modification or gene manipulation. Ironically, with the development of science, we can now design even a human baby. With persistent endeavours, scientists have come across a technique that has the capacity to alter, modify, and remove defects or add a particular trait in the gene of a human embryo to produce the desired child. The poised growth in Genetic Engineering has led to numerous legal and ethical issues as it affects human lives and society at large.
In a society like India, the development of genetic engineering is expected to make a severe impact. There is still a lot of research going on in both, National as well as International Law to regulate the matters concerning gene editing. As we are witnessing rapid development in this technology, you might be curious to know what a Designer Baby is, and challenges that are likely to be faced in the near future if this technology gets to a country like India.
In this article, we have tried to throw some light on the current developments and legal positions of different countries like the USA, China, India, and the reactions of different countries with respect to gene editing and designer babies. We have also emphasized on the legal and ethical impact that this technology may have on society. A thorough reading of this article would help you understand whether we are ready for the designer baby?
What is a Designer Baby?
The term designer baby refers to a baby who has been genetically modified through germline gene editing. Germline editing is the technique used for modifying the DNA of an organism. Particular traits set by parents or scientists are given to a human embryo or egg or sperm to produce a child of the desired trait. Have you ever thought about designing a human being? Science has made another far-fetched dream possible where we can alter or modify the egg, sperm, or embryo to get specific quality in terms of appearance, eye colour, intelligence, obedience or even gender and a lot more.
Through germline modification, a designer baby can be free from hereditary diseases like leukaemia, haemophilia, HIV, and other such disorders. Adam Nash is the first baby to have been born with this technology. Recently, Chinese scientists were in the news for modifying the germline of live fetuses of two babies. The surgery was successful and the twin babies have already taken birth and are healthy.
Important concepts
Before we dive into the legal and ethical issues behind germline gene editing for the creation of designer babies it is essential to have an understanding of some scientific terms that are frequently used in this article
Germline Gene Editing
Germline Gene Editing, also called Genome editing is a technology that scientists have invented for modifying an organism’s DNA. In Human Germline modification, the DNA of the organism is altered in the desired way by altering its genes. Germline gene editing has already been prohibited in more than 40 countries for safety and social reasons, but the technology has brought forward a revolutionary change in the science world.
In vitro
In vitro are the studies or experiments conducted with regards to the changes made in the human gene or egg or sperm in a test tube, culture dish, or elsewhere outside a living organism. Whereas In-vitro Fertilization is a technique where eggs and sperm are fertilized outside the human body and then inserted in the woman’s womb.
CRISPR
CRISPR: It has been indicated as the biggest biotech discovery of the century. CRISPR stands for Clustered Regularly Interspaced Short Palindromic Repeat. It is the most powerful tool for modifying genes. The technology allows scientists and doctors to alter DNA and correct genetic defects.
CRISPR-Cas9
CRISPR-Cas9 is a revolutionary technique for germline gene editing. CAS9 stands for CRISPR-associated protein 9. This enzyme generally works like scissors. It cuts the specific part of the DNA strand out, and then the doctors replace that section with the new segment to obtain the desired trait. This procedure is more or less like the surgery of a human embryo. This editing technique is the most versatile and simplest method compared to other gene-editing tools already out there.
Pros and Cons of Germline Gene Editing
Pros
Reduces the risk of genetic diseases as we can now cure incurable diseases.
It helps in reducing the probability of inherited medical conditions.
The child is more likely to succeed in life as the child may be born with higher intellect or obedience.
New characteristics can be added to new generations which may lead to the development of society at large.
Cons
It may lead to the termination of the embryo in case of failure of the procedure.
It has the capacity to create humans with perfect or desired traits that are likely to create a gap in society.
It limits the choice of the child as an individual.
It can damage the gene pool as the modified traits are inherent.
It is expensive hence, not affordable by everyone.
Legal And Regulatory Framework In Different Countries With Respect To Gene Editing
Position In India
India is witnessing technological growth of late, but still, there is no specific law that regulates genetic modification or germline editing. According to the Guidelines released by the Indian Council of Medical Research (ICMR), genetic editing to create designer babies is unethical, which should be prohibited. It is also stated in the report that currently, the scientists do not have sufficient knowledge and understanding about the germline editing, which is why it should be strictly prohibited.
Nonetheless, the In-vitro studies can be carried out on spare embryos that do not have the possibility to be inserted into the womb. In March 2018, an MoU identifying possible areas of research focusing on gene editing had been signed between ICMR And the National Institute of Health and Medical Research(INSERM), France. It is the time when India needs a clear-cut law to encourage safe use of the latest technology for gene editing.
Position in the USA
The United States has more or less accepted the practice of germline editing, but still, there are no specific laws relating to genetic engineering till now. In 2016, the National Institute of Health(NIH) part of the U.S. Department of Health and Human Services, came up with some guidelines which are not in favour of gene alterations.
Later on, a report was published advising the US Government about the benefits and need for germline editing. The report highlighted the conditions wherein the technique could be practised. Also, the US Food and Drug Administration allowed the use of embryos to solve the problems of infertility. Therefore, cautious research has been performed by scientists in accordance with the NIH Guidelines to ensure safety.
The UK, unlike other leading countries, is more open to germline modifications. The authority granted a licence to scientists to modify the gene of live human embryos. It is evident through the practices that the UK is heading towards accepting the age of designer babies.
Position in Japan
At present, Japan is not having any legal framework relating to genome editing. In response to the experiment conducted in China in 2015, The Japanese Cabinet Office’s Life Ethics Study Group introduced a report accepting gene-editing research. However, the report was strictly against the reproductive manipulation of embryos and the insertion of modified embryos in the woman’s womb. Japan is also moving ahead to enact a law regulating gene editing. Japan has a neutral approach towards the research of germline gene editing but strictly prohibits the re-insertion of the embryo into the womb of a woman.
Position in China
In the recent past, a Chinese scientist has claimed to conduct experiments on a live human embryo. Consequently, twin girls have taken birth and are less prone to HIV. This experiment was a cornerstone in the history of genetic engineering. Now China is going to introduce ‘Gene Editing Regulation’ which governs all the related concerns of genetic engineering. Recently, China while revising its civil code, added the provisions relating to gene editing in the latest draft.
Recent Technological Advancements
The use of the CRISPR-Cas9 technique by Chinese scientists created a revolution in the field of genetic modification. This paved the way for some notable technological advances:
The use of molecular scissors to cure diseases like leukaemia and to create designer immune cells is apparent in the practice of leading countries.
CRISPR was injected into the eggs to create a genetically modified human embryo and subsequently, it got fertilized avoiding the “off-target” issue as it is easier to target the particular section of the DNA in genes.
CRISPR technology has the potential to offer many therapeutic opportunities so that we can even treat rare and incurable diseases.
Gene doping is again a popular procedure of gene therapy that modulates the gene expression in a particular gene. This procedure is mainly used to improve the ability of an athlete.
There is another significant technology called “Pre Implantation Genetic Diagnosis” wherein genetic profiling is done prior to implantation and even fertilization so that the fetus can be made free from diseases. Lately, we are witnessing progress in genetics and gradually we are heading towards the age of designer babies.
Issues In Light Of Intellectual Property Rights
With the advancement of technology in the field of genetic engineering, there is a rise in the issues relating to intellectual property rights. It has been disputed whether the human gene is patentable or not. If the gene can be patented, all the rights such as the commercial and non-commercial use of genes would go to the patentee.
On the other hand, the European Union provides that if an element of the gene is produced scientifically to be inserted in the gene strand, it may be patentable although the structure of the technically produced gene is the same as a natural gene.
Moving towards India, Indian Patent Act, 1970 under section 3 (c) and (j) clearly specify that anything to be patentable must involve an inventive step and should be fit for industrial application. Therefore, the mere discovery of genes for the purpose of a modification is not patentable.
Further, it can be said that gene modification has the potential to severely affect mankind and the environment. Therefore it should not be patentable on ethical grounds.
Ethical And Moral Debate
There are a lot of altercations between the scientific community and the global community regarding whether human germline engineering should be practised or not. Globally, the practice has been banned in many countries for ethical reasons. This topic is hotly debated because the people who oppose the use of the technique believe that the technique will create humans having perfect traits and qualities which leads to the social gap.
On the contrary, those in favour of human germline modification see it as a potential medical tool or a medical cure for certain diseases that lie in the genetic code. There is also a dilemma if it can be morally acceptable as well or not.
One of the main arguments against human germline editing lies in the ethical concern that it will dehumanize children. At an extreme, parents may be able to completely design their own child and there is a sense of fear that this will transform children into objects rather than human beings. Other concerns include the fear of the scientists that genome editing can have unpredictable effects on the coming generations like genetic mutation and some irreversible changes which can be dangerous for mankind.
Challenges And Limitations In India
According to the ICMR Guidelines, research on human germline is strictly prohibited. Now the question arises about the validity and enforceability of the Guidelines. The guidelines have still neither been ratified by the legislature nor issued as a valid law. In India, medical practitioners are being governed by a specific code of conduct. Violation of the code of conduct and ICMR Guidelines will result in professional misconduct and even cancellation of license.
Furthermore, in Roche Products India Pvt v. Drugs Controller General of India, it has been observed by the Delhi High Court that as the Guiding principles are basically issued by the government, they have legal validity until it becomes inconsistent with existing laws. They are ethically required to be adhered to till the time any specific law for that matter is enacted. It must be noted that though the ICMR Guidelines have no direct force of law still it is not ethical to breach such guidelines.
The creation of designer babies in India through germline editing is considered to be unethical but there is no such law that absolutely prohibits such research or practice. Considering the current scenario in India, India might not accept the creation of designer babies but considering the potential opportunities and the idea of the development of a disease-free society, soon India will have a law regulating the research and creation of designer babies.
Recommendations
The process of germline gene editing is a process that needs to be regulated as it not only affects the legal field but also the world at large. All the experiments and practices should be carried out under the supervision of a central authority and the rules and regulations must be complied with. As it has been known for long that “science is a boon as well as a bane to mankind”, the development in this technology may result in a threat to mankind if misused. The following recommendations must be considered while enacting legislation regulating germline gene editing:
Firstly, the procedure is applied to the human embryo which is desired to be grown as a healthy baby, so it must be authorized by the central government or any other authority concerned with the gene-editing.
Licenses must be taken by the government to conduct research and practice of gene editing on human embryos, eggs or sperm.
The laboratories where the research would take place must be controlled and regulated by government authorities.
Any act is done which is not in conformity with the legislation must be made cognizable and treated as an offence as it involves human life.
Conclusion
The improvement in the technology of CRISPR Cas9 is a cornerstone in the history of genetic engineering. This technology paved the way for further research and experiments. This technology is not bad if used properly. Now moving to a society like India, where pre-natal sex determination is banned only because of a strong preference for the male child, the era of designer babies may cause further deterioration of sex ratio. It is apparent that technology has the potential in improving the human race but at the same time, it is a very sensitive subject and can raise various disputes if not approached with caution.
This article has been written by Amit Kuri and Sonali Khatri. The authors are practicing before the Rajasthan High Court. They appear in matters relating to planned development, land acquisition, constructions raised in violation of Building By-Laws, illegal occupation of Public Land etc. The author can be reached at sonaliandkhatri@gmail.com.
In the State of Rajasthan the ownership of land is with the State Government and the State Government grants rights to individuals to use and occupy land by way of Khatedari (for Agricultural land) and Lease Hold Rights (for residential, commercial, institutional etc.). Before inflowing further, it is relevant to say here that it is “Land”, the most expensive commodity, which you are planning to buy and most of the litigation, be it criminal or civil, originates from land disputes. SO BE AWARE.
Property due diligence is must before purchase of a property and it is done to know if the property, which you are planning to buy can be purchased and the house can be erected over it. In other words, the purpose of this due diligence is to verify the right, interest, title and possession of the seller over the property/land. Before getting into how you can verify the title of the seller, it’s important to look at the kinds/types of seller from whom you can purchase the land in question.
1. From whom are you likely to purchase the property?
There are four possible types of seller:
Local Body (JDA [Jaipur Development Authority] or JMC [Jaipur Municipal Corporation]) itself, which directly allot/auction: Acquired or Government Land. A person who has been issued with a lease deed by the local body (JDA or JMC) for the Plot allotted either by Local Body or by Housing Society (as per his/her claims) and selling the same further or The Housing Society which is allotting Plots to its members in the Housing Scheme formulated by it or A person who has been allotted Plot by the Housing Society and is selling the same further.
Now, depending upon who is the seller, the steps required for verification of title and ownership of the land in question would vary.
2. What are you supposed to do to check the verification of the title of the seller?
a. If you are buying a property which is allotted or auctioned by a Local Body itself
It is safe and is the best mode of purchase, as in this case it is the lawful duty of the Local Body to give you peaceful possession of Land and a clear title.
b. If you are buying property from the person who has a lease deed of the property from Local Body
In order to verify whether the lease deed shown by the seller is actually valid, you should visit the office of the Local Body. Please note that JDA, for better functioning, has divided Jaipur into 18 zones. Therefore, you need to locate the zone in which the property in question falls.
Suppose it falls in Zone 6. In that case, you should specifically meet the JDA employees who are working in Zone 6. (All the officers working, except Prithvi Raj Nagar, for different zones can be found at JDA Office). You are required to check the authenticity of the lease deed (held by the seller) from the concerned officers, to find out if JDA actually has executed such a lease deed. In case you find that the JDA never executed any lease deed to the concerned seller for the property in question, then it’s a RED SIGNAL. It is possible that the seller is trying to fool you by using a forged lease deed. In this situation, a simple piece of advice would be not to proceed with the deal and not to buy that property. However, if you find, after your visit to the JDA Office, that the JDA indeed had issued the lease deed (which your seller has shown to you) for the property in question, then you are good to go.
c. If you are buying property from the Housing Society
In this case, you can verify about the credentials of Housing Society and the title of the Housing Society over the land, about the Scheme to be formulated legally etc. with the help of the following steps.
You need to check the authenticity of the Housing Cooperative Society with the Cooperative Department, Government of Rajasthan [hereinafter, “the Department”]. You need to visit the office of the Department and ask there for the audit reports of the Housing Society [viz., the Housing Society from whom you are purchasing the property in question]. In case, the employees of the Department do not allow you to look into the audit reports, then you can also file RTI to get hold of these audit reports. The audit reports are very crucial to find out if the seller is a genuine housing society. In case there are no audit reports, then you should reconsider the decision to buy the property in question from the concerned Housing Society. After you have received/gotten hold of the audit reports, you need to check for the following in the same:
Check the registration of the Society
Whether the Society has been registered under the Rajasthan Societies Registration Act?
Know about the Scheme
Examine everything related to the scheme which has been floated by the Housing Society, in the audit reports to be sure that the society is not conveying any false information about the scheme to you.
Check the title of the Society
Apart from all of this, the most important thing is to find out whether the society itself is having a valid title and possession over the property in question. It cannot transfer what it does not have. There have been ample cases where the innocent members/buyers had paid money to the housing society hoping that they would be getting property/land in return. However, later on, it emerges that the housing society, itself, did not have the valid title of land over which the so called Scheme is said to be formulated. On account of this, the members do not have any legal right from the allotment by the Society and cannot get any relief from the Courts despite having paid huge sums of money for buying the property. Therefore, the most important piece of advice, at the cost of repetition, we would say is checking whether the Housing Society itself has a valid title over the property in question.
Procedure to check the title
The next legitimate question is how you find out if the Society has title over the land in question. For example, if the Society claims that it has purchased the property in question from the Khatedars/previous owners of the land via a sale deed, then you need to check the document via which this transaction occurred. There are various types of documents which the Society may rely upon to represent to you that it has validly received the legal title of the property in question from the previous owners. However, what you need to look at is if the transfer has happened through a REGISTERED Sale Deed. Please note that if the Society is suggesting that it has bought the property from Khatedars (or erstwhile owners) through an unregistered document or an agreement to sale or through an unregistered Power of Attorney, then you should not buy the property from the Housing Society. As per law, a Khatedar of a Land cannot transfer his title over the property through unregistered sale deed or an agreement to sale.
A Registered Sale deed is must for the transfer of title of the land to the subsequent owners. The sale deed has to be properly registered and stamped. There have been cases where the housing society purchased the Land from the Khatedars through an agreement to sale which was not registered and stamped. The same was in contravention of the provisions of the Registration Act and the Transfer of Property Act. On account of this, the subsequent transfer of the property by the Housing Society to the buyers was not held to be legally valid.
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Resultantly, the buyers could not get the property in question despite having made the requisite payments to the Housing Society. To conclude, the buyers are required to check both the documents, the one through which the housing society is selling the property in question to them, and the one through which the housing society received the property in question from the erstwhile/former owners of the property. Those documents have to be registered, stamped and properly executed.
Check the status of the land
You also need to check out what is the status of land in the records. Has it been registered as an agricultural land or an abadi land? You can find answer to this question by looking at the Jamabandi. You can get the Jamabandi from the office of Tehsil. If you find that the land is being shown as agricultural land in Jamabandi, then it’s a RED SIGNAL. The society is trying to sell an agricultural land for housing purposes which is not permissible under law and on account of same the land at the time of conversion sought or even before it, on the report of purported non agricultural use can be resumed in State. The society is required to get the status of the land changed from agricultural to residential. Then only buy the land for residential purposes. In case, the Housing Society has failed to get the status of the land converted from agricultural to residential, then, the allotment/sale of land is illegal and invites consequences, including Penalties and even permanent resumption in State, as the same is hit by the provisions of Rajasthan Tenancy Act, 1955 and Rajasthan Land Revenue Act, 1956.
In one line, buy the property from the Housing Society only if the land, after its purchase has been put before the Authorised Officer for its conversion (I am assuming that you are not buying the property for agricultural purposes). It doesn’t really matter before the court of law that a house was already constructed on the land when you bought it from the Housing Society and there is no valid conversion Order. It does not really matter that the word ‘housing’ appears in the name of the society. What really matters is that the land is or can be got converted from Agricultural to Residential user.
Check the applicability of Section 42 of the Rajasthan Tenancy Act, 1955
Even assuming that the land has been purchased by the Housing Society by a Registered Deed, the next thing to look into is whether the transaction between the Khatedars and the housing society and you as an allottee of the Housing Society is not hit by Section 42 of the Rajasthan Tenancy Act, 1955.
Please note that this section would apply only if the land is/was recorded as an agricultural land in the name of a Person belonging to SC/ST. You can find this out by looking at the revenue records (for example: Jamabandi, mutation records, etc.). If you find that the land, although presently recorded in name of Housing Society but was once an agricultural land and was recorded in name of a Person belonging to SC/ST, then you now need to be cautious, as the transaction between the Housing Society and Khatedars is Void. Why we are saying so is for the reason that Section 42 of the Rajasthan Tenancy Act, 1955 can make life difficult for you. As per this Section, if an agricultural land is under the Khatedari of a person of SC/ST Community, then the buyer of that land has to be a person who is from the SC/ST Community, only.
So, if in your case, the land was once an agricultural land, then please check the status of the Khatedar of the land before you came into the picture. That would help you find out whether a violation of Section 42 of the Act of 1955 was ever committed in the history of the land in question. If you find that the violation, indeed, has been committed, then it’s a RED SIGNAL. You should reconsider your decision to buy the property. This issue, at present, may not seem to be big enough. However, later on, it can create problems against you if the litigation arises over the land in question.
Check if the property has been re-sold
When you are buying the property from the Housing Society, we would advise you to check if the Society has not have already allotted/sold the property to someone else. In such a situation, the Society, under the law, cannot transfer the title of the property to you.
Check the scheme map of the society
You are also required to go to the office of the local body under whose jurisdiction the scheme of the Housing Society falls. There, you are required to find out whether the plot alloted by the Housing Society is not part of an Approved and notified road in approved Plans Viz. Master Development Plan (MDP), Sector Plan, Zonal Plan because if the plot alloted by the housing society falls in the area of road, then the same cannot be regularized. You would not be able to use that area of plot which falls in the area of road despite having paid for it.
Here, it would be correct to advise that you should also check the map of the property in question as given by the Housing Society and compare the same with the approved and notified maps of the area prepared by the local authority (JDA in this case). In case you find that a discrepancy exists between the two, then it’s a RED SIGNAL. The Society might be trying to misrepresent you regarding the proposed user of the land in question. It might be possible that the map prepared by the Society, as shown to you, may not have been approved by the concerned local authority. And, if you buy such a property then you are likely to face legal action from the local authority if at the relevant point of time you are in the possession of the property in question.
d. If you are buying property from a person who was originally allotted the property in question by the Housing Society
In such a situation, you should check the name of that allottee in the audit reports of that housing society available with the Co-operative Department. It is also important for you to find out if the original allottee has already sold the property in question to someone else. If you find out that the property has already been resold by the original allottee to someone else, then, legally, you will not be the owner of the property in question, even if you pay the money for buying it.
When the property in question was allotted to the original allottee, the same was done on certain conditions [the same under the law is known as Conditions of Allotment]. Among many, it includes that the allottee should not raise construction over the property without taking permission from the local authority. As the buyer of the property, you are required to check if there is breach of any such condition by the original allottee. In case you find that there is a breach, then you should reconsider your decision of buying the property in question from the original allottee.
We hope that this information will come handy to you while you are in the process of buying property for your residence.
Disclaimer
This article is based on the limited knowledge and experience of the authors. It does not cover all the information which might be relevant for a person before buying property in Jaipur region. The readers of this article are advised to verify the information contained in this article before proceeding to act on the basis of the information in this article. The authors shall not be responsible for any act or omission taken by the reader/s on the basis of information in this article.
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There is no doubt that technology is transforming society at an unprecedented rate. Majorly every corporate sector from business to banking to insurance, etc. are slowly getting dependent on the technology in their day to day activities. These new technologies might be considered as a beneficiary to the corporates or their customers, but with these innovations, newer risks are developed in the economy. Therefore, different regulators such as RBI, SEBI or IRDAI require a new approach to regulate the use of these new technologies and balancing out the benefits of innovation and development with the stability of the economy and safety of the consumers. One of the methods, proposed by the regulators to tackle these complexities, is to establish a regulatory sandbox, which would help in promoting the innovation while at the same time ensuring the stability of the economy and safety of consumers.
What is Regulatory Sandbox?
Almost all of us had come across “sandboxes” in our childhood, these were the areas filled with the sand where we used to play and build structures of sand by using our creativity. But lately, with the advancement in technology, this term “sandbox” has acquired one new meaning. Now, this term is used in a technological world for providing a closed environment used for live testing the benefits, safety, and viability of new technologies/products before they are released in the market. Typically, the participating companies in the regulatory sandbox, release their innovation in the protected environment to the limited customers for a short period of time without having to worry about certain constraints and liabilities.
Benefits of Regulatory Sandbox
The sandbox mechanism helps these market players to conduct live testing of their innovations, in a regulated environment, where regulation is absent or may be too stringent for the entity.
This mechanism also helps the market players to test the viability of their products without spending on larger and expensive rollouts.
The regulatory sandbox helps the market player to launch their innovation, business models, and products at a lower cost and in less time.
This mechanism further helps the market regulators, in examining the need for changing existing regulation to accommodate the innovations.
Draft Guidelines for Regulators in India
Relying on the benefits of the regulatory sandbox, and on the report published by the NITI Aayog, in which it was they stated, that “India is one of the fastest developing fintech markets throughout the world and Niti Aayog has further projected that around $1 trillion or 60% of retail and small and medium-sized enterprises credit will be digitally disbursed by 2029.” The Reserve Bank of India (RBI) on 18th April 2019, issued a “Draft enabling framework for Regulatory Sandbox” for public comments. The RBI regulatory sandbox aims at providing a protected environment to fintech corporations to promote their innovations for testing the viability of their products without the need for expensive roll-out.
Just after the announcement of RBI regulatory sandbox, The Insurance Regulatory and Development Authority of India (IRDAI) issued their notification “Insurance Regulatory and Development Authority of India (Regulatory Sandbox) Regulations, 2019” with the objective to facilitate innovation in the insurance sector by way of relaxing the prevailing regulations for limited scope and limited time, while at the same time protecting the interest of policyholders.
Eligibility Criteria
Draft Enabling Framework for Regulatory Sandbox – RBI
According to RBI guidelines, the target applicants to its Regulatory sandbox would be the FinTech firms, which essentially meets the conditions of start-ups prescribed by the government. Adding to it these fintech firms should be working in the area, which currently does not have any government regulations, or where there is a need to ease some regulations or in cases where such fintech corporations promise the ease/effectiveness of delivery of financial services.
Further, the RBI framework also includes a list of indicative innovative products, services, and technologies that could be considered for testing under its regulatory sandbox scheme.
List of Innovative Products and Services are as follows:
Retail Payment Mechanism
Money transfer services
Lending services at marketplace
Digital KYC
Services related to financial advisory
Services which helps in managing the wealth of the individual
Digital identification services
Smart Contracts
Products related to cybersecurity
List of innovative technologies are as follows:
Mobile applications related to Payments, Digital identity, etc.
Data Analytics
API’s related to finance
Applications built on a blockchain mechanism
AI and machine learning applications
At the same time, RBI framework also prohibits certain products, services, and technologies which might not be accepted for testing under its Regulatory Sandbox Scheme, this is as follows:
Credit Registries
Any kind of Credit information’s
Services related to Crypto Currency/Assets
Any kind of Trading, Investing or settlement in Crypto
Initial Coin Offering
Chain Marketing Services
Any Product or Service, which is specifically banned by the Regulators or Government
RBI framework further imposes a condition on the participants that their companies should be registered and incorporated in India and meet the criteria of start-ups as per the Government of India. Also, such an entity shall have a minimum net worth of Rs. 50 lakhs as per its latest balance sheet.
This shows that the RBI guideline provides a long list of eligibility requirements which is necessarily required to become a part of RBI Regulatory Sandbox. However, I believe that some of the conditions required by this framework are very difficult to satisfy for small and new start-ups.
Insurance Regulatory and Development Authority of India (Regulatory Sandbox) Regulations, 2019
On 26th July 2019, IRDAI has notified its Regulatory Sandbox regulation. Under the IRDAI regulation, the eligible applicant shall be an insurer or an intermediary or any other person (except individual) having a minimum net worth of 10 lakh Rupees in the previous financial year or any other person recognized by the IRDAI Authority. An eligible applicant may apply for one or more categories namely “(1) Insurance Solicitation or Distribution (2) Insurance products (3) Underwriting (4) Policy and Claims Servicing (5) or any other category recognized by the IRDAI authority, for promoting or implementing their innovation. Although the permission to become part of regulatory would only be granted, if the chairmen is satisfied that the applicant (a) promotes the innovation which is beneficial to insurance in India (b) Innovation is in the interest of policyholders (c) innovation is necessary for the orderly growth of the industry (d) innovation, would in certain way promote the insurance penetration in the country (e) or innovation meets the necessary criteria as specified by the IRDAI Authority.
Testing Process
Draft Enabling Framework for Regulatory Sandbox – RBI
As per the framework set up by the RBI, the Regulatory Sandbox would work by selecting the limited number of entities (10-12 entities), which are selected through a comprehensive selection process, who pass the eligibility criteria set up by the framework. The estimated time to complete the testing under Regulatory Sandbox is 6 months, by this, all the testing must be completed. Although, an entity could ask for the extension of the sandbox period. However, such an entity shall place an application for an extension to the RBI at least one month before the expiration of the sandbox with the reasons for the extension.
Further, the framework includes 5 mandatory phases/stages of testing, which every Sandbox entity is required to complete. These stages of testing are as follows:
The Regulatory Sandbox framework allows the RBI to relax certain prevailing regulatory requirements for Sandbox Entities during the testing period on case to case basis. However, draft mandatorily requires certain regulations that must be necessarily be complied such as Privacy of customers, secure storage and access to payment information of stakeholders, protection of transactions and KYC/AML/CMT requirements and any other statutory restrictions.
Insurance Regulatory and Development Authority of India (Regulatory Sandbox) Regulations, 2019
Although, IRDAI is silent on the testing procedure in its regulation. However, it necessarily states the timeline for testing under its Regulatory Sandbox. The timeline prescribed in the IRDAI regulation is similar to those set in the RBI framework. Therefore, permission for testing in the IRDAI regulation is also set for 6 months. However, unlike the RBI framework, the IRDAI has prescribed that an entity could be granted an extension for a maximum period of 6 months to complete the test. This means that all the testing procedures shall be necessarily be completed within a period of 12 months.
Regulatory Sandbox in Abroad – Australia, Singapore & U.K
Globally Regulatory Sandbox mechanism is seemed like a safe platform for innovators to test their products and services, under a relaxed environment wherein certain regulation relaxation might be granted by the regulators for a specified period of time. The Australian Securities and Investments Commission (ASIC) released its detailed Regulatory Sandbox framework in May 2016 allowing eligible Fintech entities to test their innovations in Regulatory Sandbox, without holding an Australian Finance Service license (AFS). This allows the eligible entities to test their innovation, without spending any time on the licensing process.
The Financial Conduct Authority (FCA) of the U.K. introduced its Regulatory Sandbox framework in June 2016, which includes various kinds of regulatory co-operation with certain conditions such as restricted authorization, individual guidance, individual steers, and waivers, etc. The Monetary Authority of Singapore (MAS) also issued its Regulatory Sandbox guideline in November 2016. MAS in its Regulatory Sandbox regulation stated that they would be providing regulatory support to eligible entities by relaxing certain regulations during the testing process.
The Regulatory Sandbox framework set by the RBI and IRDAI borrowed many essential features from the U.K. and Singapore regulations. However, the regulatory framework set by the RBI and IRDAI missed one very essential feature, which Singapore and U.K. permit in their regulation. Singapore and U.K. permit the regulated financial institution to participate in its Regulatory Sandbox, whereas the framework of RBI and IRDAI only allows start-ups registered in India, to apply for Regulatory Sandbox.
Further, Australia, Singapore, and the U.K. have innovation hub agreement/ fintech bridge agreement with each other, which facilitates the entry of innovative Fintech corporations from one jurisdiction to their respective Regulatory Sandbox. However, India also lacks this essential feature in its regulatory framework.
Conclusion
I believe that Indian Regulators have taken an essential pro-innovative step by adapting the Regulatory Sandbox mechanism. This Regulatory Sandbox would essentially allow India to take an empirical step towards Technological/ Fintech innovation. This Regulatory Sandbox would provide a win-win situation for Regulators, innovators as well as customers. While the Regulators and Innovators could learn from the sandbox testing to improve the prevailing regulation and technological solution. Whereas the customers would get an increased range of technological services at a lower price, due to increased competition of the entities.
However, I believe that the proposed Draft of RBI regulation, would also impose some challenges on the innovators, because of its high net worth/cibil score requirement, vast eligibility conditions and by imposing certain unnecessary prohibition such as the prohibition on Crypto- Assets, which is essential for evolving block-chain technology.
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This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the essential clause of Endorsement Agreement with its contents and purpose.
Introduction
Endorsement Agreement is a contract that allows an organization to use a celebrity’s name and reputation to promote a product or such services by his consent. Such a celebrity must be a well-known personality within a given field. To promote the company’s product or services, the endorser (celebrity) gets a compensation or fee. A celebrity Endorsement Agreement explains the terms and conditions of the endorsement, including how to advertise or use of the product or service. It also mentions other duties of the endorser, like wearing clothes while promoting the product or acting in an advertisement, etc or promoting the products or services in a perfect way.
Who takes the Endorsement Agreement ?
Parties involved in an Endorsement Agreement include the company that owns the product and the celebrity who promotes the product. The warranty period and guarantee period of companies and the endorser are mentioned in the agreement so that any trouble shouldn’t arise in the future. During the duration of this contract, the company agrees to provide the product to the endorser as per the request by him which will be free and also be a part of compensation.
The most important purpose of the Endorsement Agreement is to promote the product or service using the famous figures in the industry or in any field.
Endorsement Agreement comes with a moral clause to control the harmful activity of the endorser, which will reflect the bad effects on the brand or product. Such moral provision will strictly prohibit some of the negative behaviours in the personal life of the endorser, such as sexual acts, drug use and scandals. This moral clause is used when the endorser is an actor, actress or celebrity figure. So, basically the endorsement deals with the sports Endorsement Agreements or celebrity Endorsement Agreements.
Contents of the Endorsement Agreement
When we look into an Endorsement Agreement sample, it is either a Sports Endorsement Agreement or Celebrity Endorsement Agreement. When we come to sports endorsement, the agreement includes the various clauses such as public appearance clause, exclusivity clause and compensation clause.
When the company is related to Sports products, they will use one of the famous sportspersons to promote such products. For this, the company provides compensation to that person like base compensation, bonus compensation etc. Sometimes the company will also select a sports team, who has a chance of winning and provide them the sponsorships, for which the organization signs the sports sponsorship agreement.
The next point is the celebrity endorsement. One of the successful ways to promote the goods and services is celebrity endorsement because companies choose a celebrity figure who has a massive fan or fan club etc., While contracting with the celebrities to endorse a company’s brand, celebrities should consult a lawyer to get some assistance about the restrictions reflected in the agreement.
What points should be considered before signing the Endorsement Agreement?
In the case of Sports Endorsement Agreement-
When an endorser agrees to sign the agreement then he or she should understand the terms and conditions of the contract,
Endorsers should know the compensation plan of the company. (i.e, royalties, fees, additional incentives, etc.)
Endorsers should go through the moral clause to know about the restrictions,
If any dispute arose from the contract then they resolve the disputes by themselves or they can take assistance of an attorney.
In the case of Celebrity Endorsement-
When it comes to celebrity endorsement, the celebrity should understand the obligations of the contract. (i.e, what to wear, how to promote or use the products and services),
Celebrities can terminate the agreement if they think their image is damaging due to the promotion of products and services.
Benefits and Drawbacks of the Endorsement Agreement
Benefits
In a product endorsement, using famous figures helps the brand to show that they are better from the others,
Product Endorsement helps in building brand credibility.
Drawbacks
Endorsers are very expensive to promote a product of a company,
Products which are bad would never get support for the endorsement.
Important Clauses of an Endorsement Agreement
The most important clauses of an Endorsement Agreement, without these clauses it is not possible to complete a contract. The Endorsement Agreement contains certain clauses :
Parties
Term
Indemnity
Dispute Resolution
Termination
Duties of celebrity
Consideration
Exclusivity
Fore Majeure
Moral clause
Insurance
Obligation of the company
Intellectual Property
Confidentiality
Definitions and Interpretations
Territory
Parties
This is the first clause where the agreement starts. Because, without the parties there can’t be any contract. In the beginning of an Endorsement Agreement, the contract identifies the parties to the agreement along with their individual status or any other identification proof.
Term
This clause describes the duration of the agreement, i.e the length of time that both the parties agreed to be in this contract. The duration is usually for the specified number of months or a year. It can be possible that the agreement can be renewed through one or more mechanisms, which are, by giving notification from one of the parties or both parties mutually agreed etc. If in the case of an extension, the extended period will be considered as the term of the agreement.
Indemnity
The party will generally recover the other party for any loss occured due to their negligence or due to any false representation. The scope and procedure of indemnification must be carefully presented.
Dispute Resolution
This clause states that, if any dispute arises out from the agreement then the parties will mutually resolve that dispute. Some common dispute resolutions through which the disputes can be resolved are arbitration (to resolve the dispute through an appointed third party), mediation (a person who settles the dispute by intervening both the parties) and conciliation (which helps the party to compromise between themselves).
Illustration: If there are two parties ‘A’ and ‘B’, where ‘A’ is a company and ‘B’ is a famous personality. They both had an Endorsement Agreement and after some days certain disputes arose between both parties. Then they will resolve it by themselves or bring a third party to resolve the dispute which has arose between the both parties.
Termination
There are certain circumstances under which an agreement can be terminated, i.e: it can be terminated when it will be considered as fully performed or it can be terminated when agreement comes to the end of its term.
However, if the party violates the Endorsement Agreement, then the other party can terminate the contract. This usually happens when companies do not make payment timely or the celebrity does not deliver properly or as to the satisfaction of the company.
Duty of the celebrity
It is the duty of the celebrity to agree not to take or engage in any action or conduct in the territory which would lose their character, reputation and work culture. The celebrity should confirm that the product and the services shall be original and should not infringe Intellectual Property of any third party. The celebrity has to agree not to participate in any other activities which would hamper the goodwill and reputation of the company during the term of the agreement and 12 months after the date of the termination. It is the duty of the celebrity to agree that the company shall be entitled to use. They should also permit the company to use his name, biography, photograph etc. for the purpose of advertising or promoting the product during the term of the agreement.
Consideration
This clause must indicate the methods and schedule of payments (i.e licensing fees, royalties, profits, cash, instalment payments, etc). The quantum of payment must be mutually agreed by the two parties. It should clearly indicate what interest will be charged for late payment. Companies make certain conditions for the reduction of payment, if the celebrity fails to perform at a certain level or fails to generate positive publicity.
Example- Serena Williams endorsement consideration for Nike is based on her ranking and performance at Grand Slam.
Exclusivity
This clause gives importance to the company that an agreement contains an exclusivity clause, which restricts the celebrity to offer the same service to the competitor. This agreement also prevents the celebrity from using competitors’ products for a specified period. Exclusivity in an Endorsement Agreement should be considered through negotiations.
Force Majeure
This clause states that if there is any external pressure by which the parties are free from their rights and liabilities. Such external pressure includes the Act of God, war, terrorist attacks etc. If the Force Majeure extends for a certain period, then both the parties have the right to terminate their agreement.
Moral clause
This clause protects the risk taken by the celebrity, where his value might be damaged by any misconduct. This clause also permits the company to end the Endorsement Agreement if the celebrity loses his or her image or the image of the company or its product or service.
Insurance
If due to the celebrities death or any permanent injury which causes damage to the company’s marketing program, then consider a suitable “key person” life insurance policy to cover this risk with the celebrities consent. UK and US have been following this to protect their investments, their brands when the celebrity endorsers suffer public embarrassment.
Obligation of the company
The company agrees that the celebrity is the principal authority to endorse, present and advertise the product throughout the territory during the term.
Companies should not disclose any statement concerning celebrities personal life and personal views to the media (newspaper, radio, television etc,) without the prior written consent of the celebrity.
Company agrees to provide the celebrity with notice of the meetings where the celebrity is going to attend under this agreement.
Intellectual Property
This clause grants company a limited rights to use the endorsers name, image, signature, etc. and also states that both the parties should respect each other’s Intellectual Property. The agreement should be properly drafted and avoid confusion. There must be the consent of the celebrity before using his or her name, identity, signature etc..
Illustration- There are two parties ‘A’ and ‘B’. ‘A’ is the company and ‘B’ is the celebrity. ‘A’ uses the name and identity or signature of ‘B’ without the prior consent of ‘B’ then ‘A’ has infringed the Intellectual Property of ‘B’ or ‘B’ uses the trademark of the company ‘A’ without the consent of ‘A’ then ‘B’ has infringed the Intellectual Property of ‘A’.
Confidentiality
Neither of the party shall disclose any confidential information during the term of the agreement or after its termination.
Definitions and Interpretations
The agreement should clearly mention a list of definitions to clarify the meaning of the important terms of the contract.
Territory
This describes the eographical area in which the parties perform their obligations as well as their rights under the agreement. This can be a particular country, state, city or the entire world.
What happens in the case of Violation?
In case of violation of Endorsement Agreement, both parties have the right to terminate the contract. When a company fails to meet the terms given in the contract, the endorser can terminate the agreement or file a case against the company. Similarly, if the endorser does not meet the terms of the contract, then the company can terminate the contract.
When any party is dealing with the Endorsement Agreement, then they should hire an attorney to avoid any disputes which arose from the contract. The endorser should understand the terms and conditions before signing the agreement. A party must take the assistance of an attorney to decide whether to enter into the contract or not.
Conclusion
Endorsement Agreement is usually done between the celebrities and the companies or with the sports idols. Endorsement Agreement helps to promote the product and services of the company. The celebrity or the sports idol must be a well-known personality. The parties are legally bound by this agreement. If any of the parties suffer loss then it can be compensated.
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This article has been written by Chandan Kumar Pradhan from KIIT School of Law, Odisha. This article talks about the detailed analysis of the CENVAT(Central Value Added Tax) Credit Rules, 2017 and how it is imposed on the manufactures and service providers.
Introduction
CENVAT or Central Value Added Tax is modified from the MODVAT(Modified Value Added Tax) and is a part of the central excise framework of the country. While referring to CENVAT Credit Rules, 2004, the central government made CENVAT Credit Rules, 2017. This rule is targeting to reduce the tax burden faced by the customers while purchasing the goods. The rule notifies , the credit is available for both manufacturers and service providers ensuring that all parties are aware of their own duties. This rule ensures that there is a smooth flow of duties with no additional waste of money, whether it is a manufacturer or a customer, and reducing the double taxation system and keeping the whole chain clean and simple.
An example of how the CENVAT works
Pradhan Fans Private limited, is a manufacturing company which is an expert for producing different types of fans. This company requires the raw material to make the fans, those are steel blades, copper wires, plastic blades, motors etc. The owner purchases the blades from Mishra Blades Private limited, copper wires from Khamari Private limited and motors from Mukherjee Private limited, by paying them a certain price. Here, each time the company purchases the materials, it includes certain excise duties which have been paid by the main manufacturer. Therefore, the tax liability of Pradhan fans is increasing.
Then, CENVAT allows Pradhan fans Private Ltd to use the credit when they purchased the materials for the manufacturing process, thereby reducing the overall tax liability.
The reducing liability is not just for them but also for the final customer. Now, if we calculate the total CENVAT of all the raw materials, it is Rs 50,000/- and the CENVAT on the final product is Rs 60,000. Then, the tax liability of Pradhan Fans is (Rs 60,000-Rs 50,000=Rs 10,000).
Here, CENVAT reduces the cascading of tax paid by the main manufacturer. And the rule ensuring that no party is unnecessarily paid any additional amount of tax.
Rule 6 of the CENVAT Credit Rules gives the conditions for allowing the credits as mentioned below:
The credit should be taken instantly on receipt of inputs in the premises of the manufacturer or in the premises of the job worker. In this case, the goods are sent directly to the job worker on the command of the manufacturer,
It is given that the manufacturer shall not claim CENVAT Credit after one year of the date of the issue of the documents provided under Rule 11(1) CENVAT Credit Rules,
The credit on the inputs shall be allowed, even if the inputs are processed partially from a job worker and go like a chain from one job worker to another for the next process to create the manufacturer of the final product. But the products worked under the job workers that should be back within 180 days when it is sent from the factory,
The credit shall be allowed even if the inputs are directly sent to the job worker without taking to the control area of the manufacturer. In this case also, the 180 days rule will be applied and count to be returned with the given period from the date of receipt of the input signed by the Job worker,
If the inputs are not received by the manufacturer within 180 days then the credit will be reversed. Then, the manufacturer has to give the credit once again,
If the inputs are sent to the job worker by the direction of the commissioner or assistant commissioner of the central excise who has the jurisdiction, then the period will be valid for 3 financial years to return the inputs and it should be in a condition as he may impose in the interest of revenue.
Note: If the manufacturer of the product does not pay the amount due under this rule, it will be recovered under Rule 16 of the CENVAT Credit Rules.
Refund of the CENVAT Credit Rules
Under Rule 7 of the CENVAT Credit Rules, a manufacturer who transports the final product or a moderate product for transport without taking payment of duty under a letter of undertaking, he shall be allowed for the refund of credit by the following formula:
Refund amount= (Export turnover of goods × Net CENVAT Credit)
Total turnover
Where:
“Refund amount” means the maximum refund allowable.
“Net CENVAT Credit” means the total Credit which is inputted by the manufacturer to decrease by the amount recovered from the provided period.
“Export turnover of goods” means the final products and moderate products which were transported during the given period and without the payment of central excise duty under any letter of undertaking.
“Total turnover” means the overall sum of the price of:
All excisable goods approved during the provided period including exempted goods, dutiable goods and excisable goods exported.
All inputs removed under Rule 4(1) of the CENVAT Credit Rules against a statement, during the period for which the claim is filed.
“Export goods” means any goods which were carried out from India to another country.
“Relevant period” means the time period for which the application is filed.
Obligations of the Manufacturer or Service Providers of final products
The exempted goods can not be manufactured as per the CENVAT Credit Rule, even if a huge quantity of input is used then also those goods will be cleared from the factory and credit will not be allowed and paid by the manufacturer in terms of the provisions of sub-rule (2) or sub-rule (3) of the CENVAT Credit Rules.
A manufacturer who completely manufactures the exempted goods for their space up to the place of removal will pay the total amount of credit of input. It is not only for getting the credited inputs.
A manufacturer who makes only 2 types of goods, namely-
Non exempted goods removed
Exempted goods removed, if any of the following satisfied:
In relation to the payment and credit of the amount invested during the period, he has to pay an amount which is equal to 6% of the value of the exempted goods, which depends on the total initial loan balance available at the starting of the period.
Pay an amount as set under sub-rule(4) of the CENVAT Credit Rules.
As long as, if any duty of excise is paid on the exempted goods, that payment will be decreased from the amount payable.
For the settlement of the amount, it is compulsory to be paid under clause(2) of sub-rule (3) of the CENVAT Credit Rules. The manufacturer of goods have to follow the essential procedure given under:
A manufacturer will send in writing to the Superintendent of central excise giving the following particulars:
Address, name, and registration number of the manufacturer of the goods.
Date from which the option under this provision is exercised.
Description of inputs used completely in relation to the manufacture of exempted goods removed.
Description of inputs used completely in relation to the manufacture of non-exempted goods removed.
CENVAT Credit of inputs in the balance as on the date of exercising the option under this condition.
The manufacturer of the final goods should control the credit to be paid, out of the overall credit of inputs taken during the month.
The manufacturer will resolve the amount of CENVAT credit by identifying the exempted goods and removed for the whole financial year.
Where a manufacturer has failed to apply the option under sub-rule (3) of the CENVAT Credit Rules and observed the process supplied under sub-rule (4) of the CENVAT Credit Rules, the central excise officer should decide the case based on the amount of CENVAT Credit involved and pay the amount with interest calculated at a rate of 15%.
The payment of a product under sub-rule (3) of the CENVAT Credit Rules will be redeemed under CENVAT credit. And for exempted goods, there is no CENVAT Credit applied.
The provisions under sub-rules(1), (2), (3) of the CENVAT Credit Rules will not apply if the manufactured goods removed without payment of duty are either-
Approved an entity in a special economic zone or a developer of a special economic zone for their authorized operations,
100% clean up export-oriented enterprises,
Supplied to the United Nations or an International organization for their official use or to projects funded by them, upon which exemption of duty is available under the government of India notification in the Ministry of Finance(Department of Revenue) is 108/95-Central Excise, dated August 28, 1995,
Notification No. 12/2012, in terms of the provisions of CE, supplied for the use of foreign diplomatic missions or consular missions or career consular offices or diplomatic agents, dated March 17, 2012,
Approved for export under bonds under the provisions of the Central Excise Rules, 2017.
Powers of the Central Government
The central government has the power to solve the problems under CENVAT Credit Rules if it finds any type of misuse and any other problems where such use is irrelevant. The central government will put restrictions on the registered manufacturer and may also notify him from any official gazettes about the nature of restrictions on utilization of CENVAT Credit Rules and seize the registration certificate of an importer or of any dealer and procedure for issues of order given by the principal chief commissioner of central excise.
Additional Provisions
Under CENVAT Credit Rules, 2004 if the central government gives any notification, instruction, standing order, trade notice or issues any other order, then the Central Board of Excise and Customs, the principal chief commissioner of the central excise or chief commissioner of central excise, have to obey the rules under this Act as earlier it was stable and they have to issue the rules the which were instructed.
References in the rule, any notifications, standing order, trade notice or any other order to the CENVAT Credit Rules, 2004 and any clauses away from the start of these rules, be created as references to the CENVAT Credit Rules, 2017.
Confiscation(Seizing of goods) and Penalties under CENVAT Credit Rules, 2017
In any case, where the CENVAT Credit Rules in respect of input is taken wrongly by reason of fraud or any wilful misstatement or dispute of any of the provisions of the Excise Act, then the manufacturer shall also be liable to pay the penalty under the provisions of clause (c), (d) or (e) of sub-section(1) of section 11AC of the Excise Act,
Any provisions given under sub-Section(1) or sub-Section (2) will be issued by central excise officers following the principles of natural justice.
Whoever breaks the provisions of these rules, there is no penalty provided in the rules, he will be liable to pay 5000/- rupees.
Conclusion
In this article, we got to know that the exempted goods can not be manufactured and if anyone made the products after knowing this, he will be liable under CENVAT Credit Rules. The product which is made by the manufacturer should be useful for final customers. And the central government has a lot of power to decide any wrongful act happened during the manufacturing process.
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This article is written by Srishti Kaushal,a student of Rajiv Gandhi National University of Law, Patiala, Punjab. In this article, she discusses the provisions, important definitions and procedure followed in the Protection of women from Domestic Violence Act, 2005.
Introduction
In Indian society, domestic violence against women is not an uncommon siting. A plethora of women face it in their lives, and most of them are so accustomed to it that they don’t even end up reporting it. Yet, it can not be denied that many people continue to face domestic violence. In fact, the upcoming movie ‘Thappad’ is all about a woman standing up against her husband who slapped her. It is a prime example of what is to be done in case you become a victim of this horrendous activity.
The National Family Health Survey (NHFS-4), released by the Union Health Ministry, reported that every third woman in India, since the age of fifteen faces domestic violence of some form. It also reported that 31% of married women have faced physical, sexual, or emotional violence by their spouses. The major issue is that out of these hardly 10% actually reported this violence.
Clearly, it is a major issue that needs to be dealt with and women need to realise their rights and how can they protect them. The Protection of Women from Domestic Violence Act, 2005 was introduced to deal with such cases. In this article, we will understand this Act in detail.
Who can file a case under this Act and against who?
The complaint of domestic violence can be filed by the ‘aggrieved person’. Section 2 of the Act defines this term. It means a woman who has been in a domestic relationship with the respondent (a man in a domestic relationship with such women) and alleges that he has inflicted domestic violence upon her. Domestic Relationship refers to a relationship between two people who live or have lived together in a shared household, and are related by:
Marriage,
A relationship in the nature of marriage (like live-in relationships),
Adoption,
Are family members,
Are related through blood relations.
Shared household as mentioned in this clause is the house belonging to or taken on rent by the man, the house in which the man and woman lived together with shared rent, or the house in which the man and woman lived along with his joint family.
However, it must be mentioned here that not all live-in relationships are covered under the Act. There are certain requirements that must be fulfilled. D. Velusamy v. D. Patchiammal. These are:
Both parties must behave like husband and wife;
They must have attained the legal age of marriage;
They should qualify to enter into marriage;
They must voluntarily live together in the same place for a significant amount of time;
They must have lived together in a significant household.
It was also explained that if a man ‘keeps’ a woman for the purpose of using her for sexual purposes and/or as a servant, it won’t qualify as a relationship like that of marriage.
Also, though Section 2 defines respondent as a man, the Supreme Court in the case of Sandhya Wankhede vs. Manoj Bhimrao Wankhede held that the term ‘relative’ as used in the Act has a very wide ambit and a complaint against the female relatives of the husband or the male partner can be made within its purview.
Section 3 of the Act explains the term ‘domestic violence’ in detail. It states that an act or omission will qualify as domestic violence if it:
Harms or injures health, safety, limbs ( body organs), life or/and mental and physical well being of a woman. Such abuse can be physical, sexual, economic, verbal and emotional.
Harms, harasses, injures or endangers the aggrieved person to coerce her or any of her family members to meet unlawful demands like dowry.
Causes any other physical and mental injury to the aggrieved person.
Types of Abuse covered by the Act
We have already discussed the 4 types of abuse covered by the Act, as mentioned in it. However, these types were further explained in Bhartiben Bipinbhai Tamboli v. state of Gujrat. It was held that:
Physical abuse: Use of physical force against a woman such that she suffers from bodily injury or hurt. Physical assault, criminal intimidation (threaten to cause hurt) and criminal force (use force upon a person to cause him/her injury) in the form of beating, kicking, punching, abandoning the aggrieved person in a dangerous place, making use of weapons to threaten her, forcing her to leave her matrimonial home, hurting her children, using physical force in sexual situations, etc.
Sexual abuse: This is a form of physical force and includes any act in which a woman is forced to perform any unwanted, unsafe or degrading sexual activity. It includes calling her sexual names, hurting her with objects and weapons during sex and includes forced sex even by a spouse or intimate partner with whom she has consensual sex.
Emotional Abuse: Not all abusive relations involve violence and physical hurt. Many women face emotional abuse which is equally destructive. It includes verbal abuse such as yelling name calling, blaming, isolating, intimidating, showcasing controlling behaviour, insulting or continually criticising her.
Economic Abuse: Economic abuse mainly includes a woman not being provided with enough money by her partner to maintain herself and her children, through buying clothes, food, medicines, etc. It also includes not allowing women to take up employment. Apart from this, forcing her out of the house where she lives by not providing her rent, depriving her of financial resources she is entitled to under any custom or law, restricting her access to shared household also falls in this category. It also includes disposing or alienating her movable or immovable assets, valuables, shares, securities and other properties in which she has an interest.
Scope of the Act
The scope of the Act was discussed in the case of Bhartiben Bipinbhai Tamboli v. state of Gujrat. In this case, the court said that domestic violence in India is rampant. As a daughter, mother, wife, sister, partner or a single woman, several women face it in their lives, in some form or the other every day. Yet, it is the least reported form of cruelty, mainly because of social stigma and the attitude of women themselves.
Till the year 2005, the remedies available to a victim of domestic violence were quite limited. They could either go to civil court and initiate a divorce proceeding or go to the criminal court for the offence under Section 498-A of the Indian Penal Code (cruelty by the husband or his relative). Moreover, relationships outside of marriage were also not recognised. Such aspects forced a woman to stay silent. In regards to all this, the parliament enacted the Protection of Women from Domestic Violence Act, 2005. This Act provides a very wide purview to the definition of an aggrieved person (includes women in live-in relationships) and aims to protect a woman from violence inflicted by a man and/or a woman.
Hence, the Act has a wide scope and covers a large number of women who earlier had very limited remedies.
The Procedure involved under the Act
Step 1: Informing the protection officer
Any person who has reason to believe that domestic violence has been or is likely to be inflicted upon her can inform about the same to a protection officer appointed under Section 8(1) of the Act. It would be better if such a protection officer is a woman herself.
Such women would be informed of her rights by the protection officer, a police officer, service providers (any voluntary association registered under law working with the objective of protecting the rights and interests of women), or a magistrate who has received the complaint or was present when the offence occurred. These rights are:
Such women have a right to make an application obtaining relief in the form of protection order, monetary relief, custody order, residence order, compensation order.
They also have a right to make use of the service provided by the available service providers.
They also have a right to make use of the services provided by the protection officers.
They also have a right to file a criminal case under Section 498-A of the Indian Penal Code.
It must also be mentioned here that if the appointed protection officer does not perform her/his duties she/he can be liable to imprisonment upto 1 year and fine upto Rs. 20,000.
Step 2: Making a domestic incident report by the protection officer
Upon receipt of domestic violence complaints, the protection officer must make a domestic incident report to the Magistrate. This report should also claim relief for a protection order if the aggrieved person desires. Such magistrate ( to whom the report is made) would be Magistrate of 1st class or the metropolitan magistrate who is exercising jurisdiction in the area where:
The aggrieved person resides temporarily,
Respondent resides, or
The place where domestic violence allegedly took place.
The copies of the report should also be forwarded to the police officer in charge of the police station within local limits of which the domestic violence allegedly took place. Apart from this, it is the duty of the protection officers to ensure that the aggrieved person gets all benefits as mentioned as her rights and maintains a list of the service providers, shelter homes and medical facilities in an area.
Step 3: Application with the magistrate
Once an application is filed to the magistrate on by the aggrieved person, someone on the behalf of the aggrieved person or a protection officer, the magistrate will fix the date of the first hearing. Such a date is usually not beyond three days from the date of receipt of an application by the magistrate. Also, the magistrate will endeavor to dispose of the application made within 60 days from the first hearing.
Step 4: Notice to the respondent
Once the date of the first hearing has been set by the magistrate, a notice shall be given to the protection officer who shall inform the informant and any other person, prescribed by the magistrate. This shall be done by the protection officer within 2 days from the date of receipt unless an extension is given by the magistrate.
Step 5: Other options that the magistrate can make use of
Under Section 14 of the Act, the magistrate may ask the respondent or the aggrieved party (singly or jointly) to undergo counselling with a member of the service provider. Such a person must have experience in counselling.
Under Section 15 of the Act, the magistrate can take the help of a person, preferably a woman, for discharging his functions. Such a person should preferably be working in the promotion of family welfare.
Step 6: Giving Orders
Protection Order
If after hearing both the parties, the magistrate is satisfied that domestic violence took place, the magistrate can pass a protection order in favour of the aggrieved party. Such protection order restricts the respondent from:
Committing the act of domestic violence.
Abetting in the commission of domestic violence.
Entering the place of employment, school, etc. of the aggrieved person.
Attempting to communicate with the aggrieved person.
Alienate any assets, bank accounts or lockers enjoyed by either both the parties or the respondent singly, including her Sridharan.
Causing violence to any person who helped the aggrieved person and provided protection from domestic violence.
Committing any other act which is specified in the order given.
Residence Order
The magistrate may also pass the Residence Order. Such order may:
Restrain the respondent from dispossessing or distributing the possessions of the aggrieved person.
Direct the respondent to remove himself from the shared household.
Restrain the respondent or any of his relatives from entering the shared household of the parties where the aggrieved person resides.
Restrain the respondent from renouncing his rights in the shared household.
Restrain the respondent from disposing off the shared household.
Click Above
Monetary Relief
The magistrate may also direct the respondent to pay monetary relief to the aggrieved person for expenses incurred and losses suffered by her. Such relief may include (but is not limited to):
Loss of earnings;
Medical expenses;
Loss caused due to destruction and damage of any property;
Maintenance for the aggrieved person and her children.
Custody Order
The magistrate may also grant the custody of a child or children to the aggrieved person or person making an application on her behalf. He may also specify the visitation arrangements as well. In case he feels that visitation by the respondent would be harmful to the child, the magistrate may even refuse to allow such a visit.
Compensation Orders
The magistrate may also pass an order directing the respondent to pay compensation to the aggrieved person for the injuries, mental torture and emotional distress caused to her because of the domestic violence.
In case the magistrate feels it is necessary and is satisfied that the respondent has caused domestic violence and may continue to do so in the future, he may also pass interim and ex-parte orders.
Step 7: Steps to take in case of breach of the order given
In case the respondent breaches the protection order given by the magistrate, he shall be liable under this Act. He shall be liable with:
Punishment upto a term extending to one year, or
Fine ( at maximum 20,000 Rupees)
Duty of the court while dealing with cases under the Act
The court must give the decision keeping in mind that the helpless aggrieved person has approached the court in compelling circumstances.
It should also be ensured that the court scrutinizes the facts from all angles. It must take efforts to ensure whether the plea advanced by the respondent to nullify the grievances of the aggrieved person is legally and factually correct.
The court of law must uphold the truth and aim at delivering proper justice
Before throwing a petition at the threshold on the grounds of maintainability, the court must see that the aggrieved person is not faced with a situation of non-adjudication.
Criticism of the Act
The law is not free of criticism. People have criticised it on some of the following grounds:
Some people have criticised the law on the basis of it being only civil, instead of both civil and criminal as it was meant to be. The criminal part of the law only gets triggered when the act of domestic violence is accompanied by some other offence, like not following the protection order given by the court.
As per the Act, the authority responsible for effective implementation of the Act is a Protection Officer, who is identified by the State Government. Such an officer is assigned the major role of assisting the court, initiating action on behalf of the aggrieved and looking after the services required by the victim like medical help, counseling, legal aid, etc. However, the people appointed under the Act are people who are in practice not working full time. Most of the time, in fact, this duty is given as an additional charge to those who are already in Government services. These people are mostly not qualified to fit into this role.
Many people have said that this law assumes men to be the sole perpetrators of domestic violence. Thus, by allowing only women to file a complaint about domestic violence, this law violates Article 14 and 15 of the Indian Constitution and discriminates against men.
Some people have also said that the definition of Domestic violence is too wide and allows cunning women to cause trouble to men for no reason whatsoever.
Conclusion
The Protection of Women from Domestic Violence Act, 2005 which was implemented in October 2006 is very promising legislation that combines civil remedies and criminal procedures to provide effective remedies to the women who become victims of domestic violence. The act provides for protection officers, medical facilities, free of cost orders, etc. which helps the aggrieved women in protecting themselves and their loved ones.
However, the Act is not free of certain problems. Clearly, the implementation of the Act needs to be made more concrete. The Human Rights Watch has found that police often do not file a First Information Report (FIR), i.e, the first step to initiating a police investigation, especially if the aggrieved person is from an economically or socially backward community. Most of the domestic violence, sexual violence, and marital rape cases in India never go reported. Lack of trained counsellors who can help domestic abuse victims and little access to legal aid also adds to the misery of these victims. Issues like these need to be solved so as to ensure that women get the justice they truly deserve.
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LTV stands for Lifetime Value. It is a very important measure for a business. Especially startups. If you ever get to overhear the discussion in the boardroom of a SaaS company, or a startup trying to get funded, or investment banker having a discussion with the CEO and CFO of a company wanting to get listed on a stock exchange, you are likely to come across this term.
Every customer of every business has an LTV. How much profit does a single customer/ user generate over the years for a business? That determines its valuation, and how much investors are willing to pour in.
Have you ever wondered why small startups got massive valuations and were allowed to spend like crazy, giving lots of discounts to customers for years?
The answer hides in LTV of a single customer for those businesses.
Take Uber for example. For the first two years they entered India, they spent billions of dollars acquiring drivers and customers. It looked illogical and insane to most people. Why is this American company spending like this in India, making no profit for years, and just keep giving away money to its driver-partners and give so much discount to users?
It is because they knew even if it costs a few thousand rupees to acquire a customer, they will later make it up because LTV of a single customer is lakhs of rupees!
For instance, if I spend 100 rupees a day on Uber, I am basically going to spend 36,000 per year on it. In reality, I tend to spend much more on Uber.
I am using Uber for the last 5 years. That means I have spent at least 1.6 lakhs on Uber or not more. In the next 10 years, I am likely to spend 3-5 lakhs on Uber if not more. What is the problem for them to acquire a customer like me by giving me discounts over 50,000 in the first two years, and get me hooked to the service?
Totally makes great sense, right? Once you understand the LTV, then the initial discounts look totally justified.
This is the same logic as to why VCs and PE investors give billions of dollars to startups to acquire customers aggressively, seemingly ignoring economic realities.
Well, I am sure you are wondering at this point about how we as lawyers, and individuals can use this same tactic. Calculate the LTV of a user or a project, and then make investments upfront so that you make lots of money over the long term.
Let me tell you how we use it in LawSikho.
First, we give away tons of content for free. We want every lawyer in the country to read our books, blog posts for free. Now we are heavily investing in our YouTube channel. You would soon see that LawSikho has become the biggest legal youtube channel on the planet.
We will also become the biggest TikTok channel, LinkedIn page, Instagram page, and any other major social media that would exist, in the subdomain of the law, legal industry, and legal career. It’s inevitable given the strategy we take.
Why spend so much time and effort on this kind of thing?
Let me give you an example. We get 2400 leads for various courses on an average from one of our blogs every month. I would leave you to wonder how many lakhs of revenue this generates.
Similarly, when someone buys a course from us, it is not the final sale. We know that it is just a beginning. If someone buys only one course from us, we must have failed in delivering sufficient value to that person.
We succeed when they buy one course after another. We succeed when they refer their colleges, organizations, colleagues, and friends to buy courses from us.
We are successful when after buying a certificate course and benefitting, someone buys a diploma course and eventually buys a whole Master Access Library or a Corporate Law Library. That can only happen if we can continuously delight them and benefit them tremendously over the years.
Currently, 10% of the people who buy an entry-level lawsikho course, go on to buy a library eventually. We are trying to take it up to 20% in the coming 6 months. For this, we are heavily investing in products and services. We are increasing our team size rapidly, adding new divisions so that we can make more and more people delighted, excited and so happy that they keep buying more courses from us.
The target LTV of a LawSikho student is 1.5 lakh at present over the next 5 years. We hope it will go up as we add new courses, new services, and new benefits.
What is the LTV of a new client for you? Can you invest more in acquiring a client if you knew the maths better?
What is the LTV of a course you will do from us? Let’s say you learn contract drafting from us, and then begin to draft one contract per month, and charge 10k per contract. Over 10 years, how much will you make?
What is the LTV of a junior you may hire? It may make sense to pay them more in the beginning, spend more time training them, if they can be retained over many years, generating a large LTV for you as they become more skilled and more profitable over the years.
Working hard in the beginning, spending more in the beginning, investing more, in the beginning, makes sense because LTV justifies the short term high cost.
If you understand LTV well and begin calculating LTV of every project you are pursuing now, which ones will you abandon and which ones will you focus more on?
Here are some courses we are offering currently, do look at their LTV as far as you are concerned apart from looking at their price tags:
This article is written by Abhishek Dubey, a law student. This article discusses the top labour and employment law firms in India along with the top advice.
Introduction
Employment law is a broad area of law that covers the relationship between employees and employer; and union and employees etc. Labour lawyers work mainly on behalf of the union and members. In doing so, they are working under the National Labour Laws in India which encourages collective bargaining and govern worker organisation and interaction with the employer. Compliance with labour and employment law has become one of the most important issues that many companies in India have to deal with. Many of the employment disputes result in litigation.
The labour and employment law firms provide mainly the following services:
Trade unions and employment-related litigation.
Disciplinary and departmental proceedings.
Employment rights and related benefits.
Constitutional rights and remedies.
Employment and service contracts.
Strikes and layouts, etc.
According to legal 500.com and other sources, some of the top labour and employment law firms in India are:
1. Induslaw
Indus lawis an Indian law firm advising clients worldwide on an Indian Law in relation to their business goals, business strategies and resolving disputes. It was founded in the year 2000, having its office at different places across India: Bangalore, Delhi, Mumbai, Hyderabad. It provides advice to corporates, investors, funds, financial institutions, borrowers and contractors etc. The lawyers and law firms are ranked by various guides and publications of National and International repute. Indus law employment law team advises the clients across all matters including litigation, transactional, etc. Indus law assists the management of employment risk across all levels and they advise the client on employment-related and compliance issues, as well as day to day support for the human resource department and in-house counsels. They also advise employment agreements and policies, structuring of compensation and benefits, employment aspects of merger and takeover, etc. The Indus law labour and employment team consists of 6 partners, principal associate, 3 senior associates and 4 associates. The Indus law’ key clients are Uber India, Honey well, Flipkart, metro cash and carry, Baxter pharmaceuticals etc. Avik Biswascrucial people here.
Top advice by the Indus Law
They Advise Heinz Craft India including mediation proceedings before deputy labour commissioner, providing a solution for temporary workers.
Represented the CFO of Infosys, Rajiv Bansal in arbitration proceedings for suspended payment.
Advised Shell India for “employees’ provident fund”.
Advised Shell India recommending that Uber Technologies procedure should be followed for giving compensation to senior management after they are terminated.
Publications by Indus law in Labour and Employment law
The latest direction is given by Employees’ provident fund for inspection, establishment and proceedings.
Approval ofcode on wagesby the Union Cabinet in 2019.
Prohibition of sexual harassment by Maharastra Government and Telangana government for the establishment of Internal Committees.
Publication on Gujarat shops and Establishment Act and also the Regulation of Employment and Service Act.
Special allowance to befall within the meaning of basic wages.
2. Khaitan and company
Khaitan and company are one of the oldest and full-service provider law firms in India founded by Debi Prasad Khaitan in the year 1911. Khaitan and company have its four branches across India in New Delhi, Mumbai and Bangalore, Kolkata. For more than 100 years, it has been providing services to domestic and foreign clients. Khaitan and company provide help in employee restructuring, labour law compliances, crisis responses and equity-based restructuring. Abhimanyu Pal is a team stand out senior associate in Khaitan and company and Anshul Prakash is head of a team of labour and employment law. The clients of Khaitan and company are Apax Partners, Conduent, Match Group, Innogy, Gates corporation and Aditya Birla and retail corporation.
Top advice by Khaitan and company
Provides assistance to Housing Development Finance Corporation for their employment issues such as code and conduct of employment issues.
Review and drafting of employment policies and employment and consultancy agreements.
Transfer of its employees from HR services to the new entity.
Advised Aditya Birla corporation on the structuring of employees and employee provident funds across the various states including West Bengal, New Delhi etc.
Defended Merks in a case filed by ex-employees for recovery of terminal dues.
Publications of Khaitan and company in labour and employment law
Publication by Khaitan and company in the general labour market and litigation trends.
Publication on general practice and restrictive covenants.
Discrimination protection.
Protection against dismissal.
Employees policy and statutory employment protection.
3. Kochar and company
Kochar and companyare one of India’s leading and the largest law firms with more than 200 lawyers, present in 6 locations of India namely New Delhi, Mumbai, Bangalore, Chennai, Gurgaon and Hyderabad. The firm offers its services in the area of corporate and commercial law, dispute resolution and intellectual property etc. Kochar and company offer various services to the clients advising clients on various employment law and regulations, preparing of labour law compliances, individual and collective bargaining, employee handbook and policies of human resources. The firm also advises multinational corporations for their branches in India with the most suitable human resources policies. Debjani aich advises in compliance with the prevention of sexual harassment laws, internal policy reforms and Vijay Raviadvises clients regularly on misconduct allegations, internal allegations and wrongful restraint. The clients of Kochar and company include Standards and Poor Global, One Plus, DS Smith, Ely Lilly, Parexel etc.
Top advice by Kochar and company
Prefered employment counsel to S & P global.
Provides assistance with the various employment contracts including daycare service agreements, settlement agreements and employment services.
Handling of consultation and sensitive employment terminations, separation as a result of the police investigation.
Retained by OnePlus China to conduct comprehensive pan India due diligence to ensure employment law compliance.
Publication by Kochar and company
Special allowance under the Employment Provident Fund Act, 1952 needs to be special.
The doctrine of a single economic entity and corporate separateness.
The fear of the unknown.
Requirement of continuous services under Industrial Dispute Act, 1947.
The legal issue of termination of employment of probationary employees.
Applicability of anti-sexual harassment policies.
Harassment of women at the workplace.
4. Nishith Desai and associates
Nishith Desai and associates earned a huge reputation by having Asia’s most innovative law firm award. It gives advice to Indian companies for expanding their business. Nishith Desai and associates have established its offices in India and beyond India such as Singapore, Munich and New york. The firm has been recognised as the most innovative law firm of the year 4 times in a row from the year 2014 to 2017. Nishith Desai and associates specialise in employment and labour practice. In India, employment law is based on the law made by the federal state, administrative as well as judicial decisions. The key fields of labour and employment law are headed by Vikram Schroff for large scale downsizing clients, regulatory compliances and employee stock option plan structuring. The clients of Nishith Desai and associates are Aditya Birla groups, Advent International, Agami System and ITP publishing etc.
Top deals by Nishith Desai and associates
It made labour law compliances easier in Bangalore.
The injunction of the High Court against its sector employees.
Increment of wage ceiling.
Publications by Nishith Desai and Associates
Construction workers benefit from social security.
The state government has the best safety for women in the technology sector.
India’s law on child labour law needs to be addressed properly.
Labour law compliance to be made easily in Bangalore.
Pension and retirement benefit 2013 publication.
Business transfer and employees rights.
India’s new law on the prohibition of sexual harassment at the workplace.
Social security agreements in international taxation.
5. Trilegal
Trilegalis India’s most leading law firm across four cities of India: Bengaluru, Delhi, Mumbai and Gurgaon. It has represented the clients invaluable and high profile transactions. Trilegal areas of expertise include merger and acquisition, private equity and venture capital and energy and projects etc. In the practice of Trilegal labour and employment law, Atul Gupta brings huge expertise to a large scale retrenchment. The team handles tribunal dispute and internal investigation, concerning confidentiality breaches, breach of restrictive covenants. Swarna is a leading voice in me too campaign and provides training to employers across the country. Negotiation with the non-unionized workers in the manufacturing sector are also practised by Trilegal. The clients of Trilegal include Google, Vice Media, Intercontinental exchange, PayPal, Spotify etc.
Top advice by Trilegal
Provided assistance to Bytedance in establishing its operation in India from HR and employment point of view.
Advised Bank of Baroda for employment and human resource policy with the triplicate merger with Dena Bank and Vijaya bank.
Advised Accenture for notification issued by the Karnataka government on minimum wage notifications.
Provided assistance to Pfizer in its proposal to frame organisational HR policies.
Publications by Trilegal
Publication on the government to bring into force the payment of gratuity.
Publication on the effective benefit of maternity benefit.
Recent changes in employment laws.
Maternity benefits closer to reality and in force publications.
6. ALMT Legal
ALMT Legalis a highly recognised law firm in India having great expertise in advising the clients in India as well as outside India. It consists of 70 lawyers and 20 partners. ALMT has been recognised as India’s top bracket firm. The employment team of ALMT legal help in advising clients with all practical and legal issues occurring due to engagement of employees, directors and independent directors contract. ALMT legal also solves the problem arising out of employee and employer relationship. The lawyers of the ALMT legal offers services to international employers and senior executive services across different sectors of industry. Due to a change in Labour and employment practice with the foreign employer and employees issues, more consideration is required with the contractual workforce with employer and employee relationship.
Nowadays it is important for the employer to give employee stock option plans and other benefits and incentives to employees, the ALMT legal provides the solution to organisations with such issues. The firm advises the client to adopt internationally accepted policies and procedures for all these systems. The employment law and practice include employment and service contracts, employment litigation, non-competition, tax laws etc.Aliff Fazelboyleads the labour and employment law,Ehtesham Tavernis recognised for providing legal advice to clients India as well as across the world. Recent advise by ALMT legal includes working hours for working employees in the organisation, prevention of sexual harassment, conciliation proceedings etc.
Top advice by ALMT legal
Advised the global tax structure and employee stock option plan.
Advised on various aspects of Indian employment law generally, termination of employment, termination and service contract, drafting terms and tax structuring laws.
Advised a large number of global banks with their human resource policy.
Advised a US financial product to set up a call centre services across 6 locations of India and issue regarding the employment of women in the workplace.
Advised software multinational corporations with respect to their termination, appointment and disciplinary proceedings.
7. AZB and partners
AZB and partnerswork in the entire sector of employment law. The firm tries to work with unique solutions to the client applicable according to laws. The AZB and partners are involved in drafting and reviewing contracts including non compete and non-solicitation clause. The firm also provides training to managers and other employees for recent regulations. The firm also reviews and provides a handbook for employees with important regulations. One of the common things of business is the termination of employees just either for any reason or either the scheme of business. The firm also offers services to the employees in case of termination which has been given to the employees who are offered protection under central laws. It also advises on employment issues in case of merger or acquisition by way of share sale or business transfer, specialised labour council for voluntary and retirement scheme provides assistance in an investigation relating to sexual harassment at the workplace, handling allegations for senior employees. AZB and partners handle the issue of multinational companies clients arising because of culture, language etc.Nohit Noorezadan andSunilla Awasthiregularly advise clients regarding the internal investigation as well as an internal investigation, sexual misconduct etc.. The firm also advises protection data privacy that is related to cybercrime happening due to employees misconduct. The clients of AZB and partners include Amazon Seller Services, Thomson Reuters etc.
Top advice by AZB and partners
Advised large e-commerce companies on various employment issues including compensation restructuring, maternity benefits and proceeding for defence etc.
Advised multinational banks in regulation of banking industry, unit closure and unique banking industry policy.
Provided assistance to European Technology with company manufacturing operation in India with the investigation into the unethical practice and investigation and proper procedure for investigation as well as termination.
Provides assistance regarding the child sexual abuse and women sexual harassment policy, the provision benefits, maternity benefits etc.
Provides mass media companies in relation to the compliance laws including remuneration, exit strategy and termination etc.
Publications by AZB and Partners
Publication on Employees Compensation Act, 1923.
Publication on Code on Security Rule 2019.
Drafting code on wage rules.
Drafting code on social security.
Publication on diversity and equality law.
8. Jyoti Sagar and Associates
Jyoti Sagar and associateshave a team of experienced employment law specialists who work with clients from a wide range of sectors to tackle the problem of employment issues across India. Lawyers of the Jyoti Sagar and associates have wide experience of handling the case in the practically sensible employment-related problem. The lawyers have an extensive and practically related sensitive problem. JSA also offers employer training that they are meeting with compliance obligations, policy matters and employer and employee relationship, policy matters, employee disputes etc.
They advise on conducting background and checks that the client work in compliance with workplace laws, the issue with directors from executive and non-executive, assuring employment, and labour aspect deal to minimise associated risks and ensure legal compliance, advising compliance and investigation, programme and policy, obtaining license and registration under contract law labour statue, advising on procedure for disciplinary inquiry, hiring, remuneration, taxes and termination of employees, conducting employee audits to evaluate legal compliances, designing documentation, reviewing and operating all types of benefits and plans, advising on international employment issues with subject to remuneration, social security benefits, taxation issue also the Indian law applicable. Jyoti Sagar and associates have a strong regulatory aspect related to employment and labour practices, regularly designing and making compliance-related to the problem related to handling the investigation of employee misconduct. The clients of Jyoti Sagar and Associates include Sistema Shyam and Technologies, Mercer India consulting.
Top advice by Jyoti Sagar and Associates
Advised Mercer India consulting on its acquisition of Induslynk training services.
Advised Semiconductor and Software solutions for the transfer of employees due to acquisition.
Advised research and advisory company for an internal investigation of employees misconduct.
Assisted an online marketplace and hospitality provider services with formulating and advising in anti-discriminatory laws.
Provided assistance with sexual misconduct by a senior director in a weighing equipment company.
Publication by Jyoti Sagar and associates
The impact of #MeToo in corporate companies.
The legal implication of #MeToo.
Dealing with employment laws in the modern workplace.
9. Majumdar and Partners
Majumdar and partners employment law practice are good. It has been recognised by various legal research directories. The work of employment law practice includes advising and drafting employee agreements, designing of Human resource policies, giving advice on retrenchment and termination of employees, contract labour laws and establishment of shops under Shops and Establishment Act, 1953 structuring stock option and employee benefit agreements and counselling of Indian companies under employment law. The head of labour and employment law isN Raja Sujitand Neerav Merchantand their practice include reviewing and implementing internal maternity benefits, people and disability act, drafting of non compete and non-solicitation agreements advising on minimum pay requirements. The clients of Majumdar and partners include International financial institutions, manufacturer and technologies companies. The key clients of Majumdar and partners include MBB labs, CRU group, 1 FB support services, Gallagher service centre, Gallup, viagra etc.
Top advice given by Majumdar and Partners
Advised MBB labs, the subsidiary of May Bank, on the review and finalisation of the employee handbook, offer letter and employee agreements and also advised in issue relating to the transfer and termination of employees.
Advising 1 FB support services on termination of employees resulting from an information leak.
Advised Tyco fire and security India for the transfer of employees on the corporate merger.
Advised Gallup India on employment issues as well as a retrenchment of the transfer.
Advised Gallager service centre on mandatory compliance centre for disabled employees under Indian employment laws.
Advised united retirement plan consultant in compliance with Indian employees laws to be incorporated in India.
Advised Solmax international corporation pacific for termination of employees of senior-level employees.
Advised Chep South Africa employees on its transfer to the Chep India pacific employees.
Advised Rofu ltd in connection with Indian employees and their impact on foreign exchange and Income Tax Laws.
Advised H and R block on its Income and Tax laws issue in relation to the grant of Employee Stock option Plan.
Publication of Majumdar and Partners
Publication on inequality in India, Part 1 and Part 2.
On account of India’s employment and labour and market problems.
Publication on dissecting India’s organised sector.
Publication on the growth of employment and earnings in the tertiary sector.
Publication on the labour market, trade patterns and workers living standard.
Reforms and employment elasticity in the organised sector.
Click Above
10. Shardul Amarchand and Mangaldas
The labour and employment team of Shardul Amarchand and Mangaldas works closely with the firm’s tax professionals to assist multinational clients with employment structure, merger and acquisition transaction and employee benefits. The instruction head seems to be Pooja Ramchandani, assisting with regulatory compliances pertaining to minimum wage, age of retirement and working age, internal investigation, retrenchment and employees transfer. The practice also includes wrongful termination and wrongful allegations, the transition of employees, integration of benefits and compensation, employee stock option plans and other incentive benefit schemes, contract labour analysis, breach of secrecy, non compete and non-solicitation obligations, HR policies and key employment contracts.
Top advice by Shardul Amarchand and Mangaldas
The advice is given by Pooja Ramchandani in Shardul Amarchand and Mangaldas in employment law are:
Advised KL gates on a general overview of applicable labour laws in India, the employment contract with senior personnel and consultants and requirements of human resources manual.
Advised DSP Inc on retrenchment of employees after closing in the Indian subsidiary.
Advised space software technology private limited to check the issue of employment from employment.
She advised Ge group in the transfer of employees, retrenchment of employees and social security and other benefits.
Advised Park Ohio Industries on termination of service of director.
Gave advice to a united technology corporation for the issue of transfer of employees.
Gave advice to Clayton UTZ in relation to employee contract.
Advised American Corporation Bank on the transfer of employees.
Advised Intel in relation to the issue of principles of natural justice.
Publication By Pooja Ramchandi for the labour and employment law
Publication on regulating India’s gig economy.
Publication on the rule of provident fund as directed by employee provident fund organisation.
About the administration of employee provident fund organisation on an issue related to employee provident fund.
Publication on to compete or non compete clause under employee agreements.
Obligation regarding outbound employees for social security benefits.
11. Cyril Amarchand and Mangaldas
The dedicated team practice of Cyril Amarchand and Mangaldashelps multinational companies as well as local clients for their workforce. Employment practice group gives advice to employer organisations in India as well as foreign countries. The employment law advice given by clients include employee benefits, non-competent arrangement, data protection and sexual harassment etc. The employment law practice includes employment aspects related business and commercial transaction such as merger and acquisition, restructuring, joint venture etc. Rashmi Pradeep, Ankita Roy andKaushalay Madhavan, are the key people in the labour and employment team of Cyril Amarchand and Mangaldas. Rashmi Pradeep is recognised as a chamber practitioner in labour and employment practice. The key clients of Cyril Amarchand and Mangaldas include Air India, the Boston consulting group, People Interactive, Sky Power group, Thomson Reuters India etc.
Top advice by Cyril Amarchand and Mangaldas
Advised ExxonMobil services and technology in relation to compliance with the latest maternity benefit amendment act.
Advised Air India as per the instruction of Air India to conduct a review of the regulatory framework governing more than 6000 employees for strategic disinvestment.
Represented People Interactive in a matter concerning the misappropriation of employees of confidentiality of information by employees.
Advised Bank of America Merrill Lynch for LGBT community programme for its LGBT Employees.
Advised Boston Consulting Group on employment matters such as maternity benefit, compliance with sexual harassment laws and terminations.
Publication of Cyril Amarchand and Mangaldas in labour and employment practice
The hiring structure of employees in India and their applicability to the law.
Publication on rights of a person with disabilities acts in 2016.
Publication on non disclosure agreement in employment contract.
Publication on the scope of sexual harassment by Indian Courts.
Model bill of shops and establishment 2016.
Publication on the legal regime for employees stock option plan.
Analysis of amendments to the bonus act.
12. HSA Advocates
HSA advises several of its clients, including multinational clients on labour and employment law-related matters in India. The service and advice include advice and assistance in settlements, negotiating an employment contract, advising labour issues in merger and acquisition, structuring etc. HSA also advises clients on employment, labour and industrial issues. The advice includes terms of appointment and condition of services, transfer, layoff, retrenchment, discharge or disposal of employees, minimum wages, gender equality and other developing regulations. The key people in labour and employment include Bhara Sharma, Gaurav Sahay, Jivesh Chandrayan and Soumya Kanti de Mallik. The key clients of HSA advocates include Terms A/S, HH global, procurement and creative production solutions, SREI infrastructure finance, Acme solar Holding India etc.
Top advice by HSA advocates
Provides assistance to Avantor Performance materials India with reviewing employment contract, ESOP policy, senior employees remuneration terms and various human resource policy.
Advised Acme solar Holding for its modification in Employee stock option plan.
Advised Walson services in compliance with the Minimum wages act.
Helps in the establishment of HR policies for aerospace company Terma.
Advised for the issue regarding the transfer from Info Biz India to the new entity as part of an asset transfer.
Top publication by HSA advocates
Publication on code on wages bill 2019.
HSA advocates provide legal updates in labour and employment law.
13. Phoenix legal
Labour and employment are one of the key practice areas of Phoenix Legal. Apart from advising on labour and employment issues, firm advice on merger and acquisition, business transfer, reorganisation transaction. It advises clients in the preparation of legal issues, structuring of compensation wages, drafting of employment contracts, non compete and confidentiality agreements, termination notices to negotiating collective bargaining contracts, advising on termination, retrenchment, layoffs and strikes and seeking various and registration under various labour employment-related laws and regulation. The firm provides assistance to manufacturing companies employing a large number of factory workers covered by various labour/ employment-related statues as well as companies in the service sector including software and BPO companies. The labour and employment practice at Phoenix legal offers advising services related to the policy audits, restructuring, internal investigation, regulatory compliance and drafting and reviewing of employment Contract. The firm’s corporate lawyer includesManjula Chawla and Sawant Singh, Saket Shukla, Abhishek Saxena, etc.They advise on retrenchment issues and other employment issues arising out of merger and acquisition.
Top Advice by Phoenix Legal in Labour and employment law firm of India
They advised Paypal India on conditions of employment for night employment shifts for women working in an office.
They advised Deutsche Bank on the employment and labour issues resulting from the client selling to global sale apex group for 170 billion dollars.
They advised the Volaris group in the issue of transfer of employees when acquired by Nokia.
Assisted Penumbra with the structuring of employees and consultancy agreements.
Retained by Groupon to provide a range of employment advice such as overtime policy, immigration issues, POSH compliance etc.
Top publication by phoenix legal
A code wage in the right direction.
14. Samvad and Partners
Samvad and Partnersis concerned with the statutory compliance advice, structuring agreements including employment, termination, exit settlements agreements and appearing before courts and tribunals. The Samvad and Partners specialise in case of employees misconduct including harassment and differential treatment. The practice of employment and labour law firms is co-headed byPoornimawith instruction involving stock option plan disputes, legislative developments, internal investigation and prevention of sexual harassment policy. Commercial partner Ashwini Vtallachargives transactional advice. The key clients of Samvad and Partners are AnI technologies, GRNRM networks, JP Morgan, Dell global consumer products etc.
Top advice by Samvad and Partners
Advised terra blue corporation with the dispute between senior management and founder.
The issue regarding non competes for clause and other types of a clause in the employment contract.
Top publication by Samvad and Partners
Publication on Anti sexual harassment policy.
Sexual harassment policy and lunch of online complaint portal.
Publication on Is sexual harassment at workplace preventing the growth of women.
Publication on the recent amendment in employment provident scheme.
15. Singhania and Partners LLP
Singhania and Partner have a strong employment advisory which advice on workforce retrenchment and restructuring, C- suite level termination, internal investigation, HR policy review, corporate transactional suite, designing and implementing sexual harassment policy. The labour and employment team also advises on the issues facing the overseas and Indian company regarding employment contracts. The employment lawyer team of Singhania and Partners represent the dispute between management and employment issues. They also advised on an issue related to sexual harassment policy laws, constitution and management of internal complaint committee in an internal investigation. The clients of Singhania and partners include Standard and Poor Global, Pixel India, Semtech Advance India etc.
Top advice by Singhania and Partners
Advised Standard and Poor Global with a full suite of employment mandates such as retrenchment, Human Resource policy, training for sexual harassment policy.
Assisted the American Bureau of shipping with the preparation of their human resource policy, prevention of sexual harassment policy and employee handbook.
Advised Value Momentum Software Services on termination, setting up and many more issues etc.
Conducted training session of Thyme Software Services in compliance with the sexual harassment policy.
Top publication by Singhania and Partners LLP
Contributions made by employees for social security schemes are not taxable.
The supreme court forges to decide employee and employer relationship in Balwant rai vs Air India ltd case.
Publication on acquisition transaction and labour laws in India.
16. Lex Counsel
LexCounsel believes that India has the largest workforce available at salaries, the availability of talent in India gives encouragement to foreign investors to invest in India and gives employment to Indian educated at a lower cost. There has been a debate for harmonising and rationalising to improve foreign investment and business climate. For the benefit of cost, the advantage one has to be careful with the compliance laws in India. The lex counsel advises on employment retainer and consultancy contracts, settlement of employment dues, collective bargaining and trade unions etc. Dimpy Mohanti is the practice head for the labour and employment law team.
Top advice by Lex Counsel
Provides full scope labour policy to CPA global India.
Advised publisher Flaggates on large scale redundancy services.
Advised Flesimmin hard with senior separation agreements.
Advised Macmillan for various state laws specific.
17. Link legal
Link legaladvice includes a full range of employment services across all sectors including aviation, manufacturing, infrastructure, real estate, oil and gas etc. With depth knowledge about employment law, Link Legal gives advice to multinational corporations to different types of business across employment litigation, industrial settlement and industrial problem etc. Atul Sharma and Milanka Chaudhary are the key people here.
18. Singh and associates
Manoj Kumar associates advised the number of clients with their matter for foreign employees entering into Indian Workforce. The team also advises clients with the domestic Human Resource policy and employment contract. The key clients of Singh and associates include DWF, Microsoft, Clinic pace worldwide etc.
Top advice by Singh and Associates
Advised Russula automation and engineering for their Human Resource Policy.
Advised ZTE telecom sector for the Indian employee’s workforce.
19. Ahlawat and Associates
Compliance with labour and employment issues has become one of the important issues that any country has to deal with. The lawyer ofAhlawat and Associates advises that business needs to be compiled with the employment law in India. The team of Ahalwat and associates advises companies that they are in compliance with laws. The work of Ahlawat and Associates includes the drafting of related documents, compliance with labour laws and drafting of Human Resource policies etc.
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This article has been written by Ishaan Banerjee, studying in Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article gives a brief introduction to technology law and its practice. This article also examines the top 20 technology law firms in the country which are exploring new spaces of law like data protection, cryptocurrencies etc.
Introduction
Technology law is a fast emerging area of law. It is bound to be one of the most lucrative areas of law in the years to come. With the continuous evolution of technology, many new avenues for practising law have begun to come up. Be it artificial intelligence (AI), intellectual property or data protection, all these areas will be lucrative in the coming years. In this article, we will explore the wide ambit and applicability of technology law, along with exploring the top 20 law firms already engaged in the technology law practice in India.
What exactly is technology law?
As the term suggests, technology law is the law relating to the use of technology. It helps to regulate the use and advancement of technology. Technology surrounds us and is present in almost every aspect of our lives. Therefore, technology law is something which is not confined to a particular area. Has an unknown person on social media has obtained your pictures to which he did not have access? Has the patent for your new product been infringed by a competitor? Are your phone lines being tapped? Say hello to technology law. Thus, technology lawyers need to have a wide area of expertise which may include many other different types of law like intellectual property rights, cyber law, information technology, artificial intelligence and even environmental law. This is exactly why technology law will be a very lucrative area of practice, because as technology evolves, the scope of technology law also expands.
What career opportunities does one have under technology law?
Technology law is a fast emerging area but it also demands a lot of skills from a lawyer. A technology lawyer must be having skills like drafting software and hardware related contracts, policy making, strategising, risk assessment etc. A technology lawyer would also need to stay updated with the latest technology developments. A technology lawyer can work in:
Technology contract drafting and negotiation: A technology lawyer must know how to draft contracts like Software licensing agreement, Outsourcing agreement, Standard distributor licensing agreement, which are commonly used in technology companies. Not only this, he must know how to incorporate clauses and draft special contracts specific to the technology industry, along with negotiating deals.
Managing IP portfolio: Technology lawyers must learn to manage their IP portfolio, as they would have to see that the patented or patentable technology does not leak to competitors.Thus, they have to work fast to procure patents for the new technologies or softwares used in companies.They have to know how to mitigate the damage and defend clients from competitors’ suits regarding patents. They would also have to introduce policies to prevent unauthorised usage.
Assessing and managing risks: A lawyer must be smart enough to have an idea of the present and the potential risks to the company. He must have an idea about the future of the technology sector and must be cautious to defend the company from potential risks. He must keep up with the developments in technology law; and be updated regarding governmental regulations, judicial pronouncements and the policies of competitors, and must know how to manage the risks arising from there.
Policy making and implementation: Technology lawyers need to understand the policy making process in an organisation like government bodies, companies, etc. In order to know about potential risks and avert them, policy making is important as it would provide certain guidelines for what the organisation would do in a particular situation. Is your company being sued for infringement of data privacy? How would a technology lawyer deal with this? The next step of action will be dictated by the policy.
Litigation and dispute resolution: It is obvious that with evolving technology, the number of laws and disputes relating to it would increase with time. The top challenge with litigating in technology related disputes would be explaining to the judge what exactly is the technology and how it works. This would enable the judge to understand the facts, circumstances and reasons under which the dispute has occurred.
Now that you must have an idea of the practise of technology law in India, let us now proceed to the list of the top 20 technology law firms in India. Please note that this list is only suggestive and not a firm statement.
Highly rated as one of the best law firms in the country, Trilegal has established its dominance in a short period of time. It has a wide range of practice areas ,including the areas of corporate, competition law, international capital markets, real estate etc.
It was ranked as one of the top 10 most innovative law firms in APAC by FT- Asia-Pacific Innovative Lawyers and among the top 5 law firms in India by RSG India.
It has one of the oldest technology law practices in the country, and has deep experience in working with companies across different sectors. They have also worked on policy formulation which includes the data protection law. It has helped the Aeronautical Development Agency with commercialising the technology software used for creating materials for aircraft fabrication and Hewlett Packard to structure their telecom system integration service.
The technology team of this firm is highly reputed, which helps clients to formulate strategies to get full use out of their intellectual property rights and also helps in value assessments. They have good experience in drafting technology and intellectual property rights related contracts. They have also worked on data protection as well.
The firm has an impressive clientele, boasting the likes of eBay, Flipkart, Amazon, Visa etc.
It regularly finds its name among the Tier 1 law firms of India, including in the technology, Media and Telecom sector. The firm has frequently instructed clients on regulatory and transactional projects, often across the world.
They have clients like Saavn, Wal-Mart, Whatsapp, Uber and Facebook Ireland etc.
An example of a famed member of the team is Tejas Karia, who has been involved in Supreme Court cases regarding the provision of online content, which also included Facebook and Whatsapp as parties.
L&L Partners practises in both conventional and non conventional areas of law with focus on building lasting client relationships and offering exceptional legal advice. The firm has advised many national and international clients like Goldman Sachs, ICICI Bank, Yahoo, the Tata Group and others.
The firm has a wide practice area including but not limited to TMT(Technology, Media, Telecom), dispute resolution, pro bono work, mining, oil and gas etc.
The technology practice is known for joint venture work. The firm recently assisted ANI Technologies with its licensing agreements of the ‘OLA Play’ feature.
The firm specialises in structuring transactions in the technology sector in India. They also advise on regulatory and commercial contracting matters, along with representing clients before the relevant authorities.
It has a diverse clientele across diverse service sectors such as online and offline gambling, IT, mobile and fixed line telecom operators, outsourcing etc.
Kochhar & Co. has both national and international offices in Dubai, Atlanta and Jeddah. The firm has hardcore expertise in cloud computing, data privacy, e- commerce. They have also helped the telecom sector in bandwidth structuring and VoIP implementation.
The TMT team has had some amazing victories over the past years. It assisted the Alibaba Group in setting up a cloud computing system and advised Akamai on cloud computing and data privacy.
Mr. Stephen Mathias, the head of the TMT department, is specially known for his specialisation in technology related matters such as IT outsourcing, data privacy and cloud computing.
The firm has a well reputed technology law practice. They advised Bharti Airtel on transactions and also helped Google to set up its mobile payment service in India.
This is one of the big law firms in India,and it has expertise in issues such as net neutrality, IoT (Internet of Things) etc and advises clients across a wide range of sectors such as healthcare, food technology, gaming, education, AI etc.
It has been often involved in the Telecom sector, drafting commercial contracts and advising them on compliance and regulatory issues.
The firm offers outstanding practice in a range of areas including the technology sector. It has an impressive clientele among blue chip IT and telecom corporations.
The firm is respected for its quality of service and has frequently received great feedback from its clients.
Some legal stalwarts include: Asim Abbas, who is a specialist in TRAI (Telecom Regulatory Authority of India) policy with astounding industry knowledge and Sajai Singh, a highly experienced member of the firm with complex technology related matters.
It is a full service law firm based in Mumbai. The technology industry boom has helped the firm to build its capacity in recent years. It has advised on matters such as gaming, music and entertainment, sports, advertising etc.
The firm especially has great experience in the film and entertainment industry as it has got to deal with clients that include major production houses including Hollywood studios, Indian Broadcasting Federation, Producers Guild, IFTPC (Indian Film and TV Producers Council) on relevant issues.
The multi disciplinary team is recognised for their work in various industries like biotechnology, e-commerce, m-commerce. The firm has a speciality in identifying new material for patents and copyrights that will play a huge role in the generations to come.
The firm’s clients include startups, technology developers, consultants; all of them are using technology to develop their business and need some help to fully utilise their technologies.
The firm frequently advises investors and technology companies on transactional and regulatory matters.
The technology practice advises on commerce and electronic data interchange advice, cloud based delivery of software, drafting and negotiating contracts, privacy and data protection etc.
This firm advises a lot on telecom related matters, having clients which include major software and media companies. The firm has become adept at advising data and connection services.
Media companies have also approached this firm for drafting and negotiating broadcasting and endorsement contracts, along with arranging joint ventures between these companies.
This firm is fast emerging as one of the major competitors in technology law. It specialises in technology startups and investors, IT outsourcing, data protection, software licensing etc.
Clients have praised the firm as being very ‘solution driven’ and an in depth understanding of business needs and interests.
The firm recently advised Punjab and Maharashtra Co-operative Bank on the licensing and service contracts of its technology suite.
This firm is relatively newer, having been set up in 2016, but it has since then, built up a reputable practice.This firm is led by Salman Waris and has some very impressive clients.
The firm has dealt with clients like Voxbone, a Belgian company which provides IP communication services, American health company Quintiles IMS Holdings and ZTE.
This will be one of the topmost and sought after law firms in the technology sector in the coming years. This firm has already been sought out by clients who seek advice on unexplored areas like drones and aerospace. The firm also has experience in cryptocurrencies and digital assets, among many others.
The firm advised four digital assets exchanges before the Supreme Court, challenging the Indian Central Bank directive to cancel the digital assets access to banking services.
The firm also advised a leading social media company on its policies for dealing with fake news. It also assisted Dvara Research in drafting and submitting a draft of the Data Protection Bill to the Justice B.N Srikrishna Committee.
Founded in 2006, and having offices in New Delhi, Mumbai, Bengaluru and Kochi. This firm has been working with eight banks on matters like AI, data protection,blockchain and regulation.
International clients include leading international law firms such as Dentons and Sheppard Mullin. The clients have given great feedback, with some emphasising on their expertise on cyber law and their keenness on being updated on technology.
Advaita Legal
The firm practices on areas like telecom, data protection and privacy, e-commerce and IoT, advising on law, due diligence, investment structuring etc.
The firm attracts clients from technology sectors such as Shell India Markets Private Limited, Wipro, World Wide Technology etc.
The firm is involved with the industries of aerospace and defense, media, telecommunications, banks, financial services etc.
Recognised for undertaking transactional work for technology companies like outsourcing, acquisition of IP aspects and M&A. Also advises on cloud computing matters and data protection and AI.
The firm is famed for giving practical advice and is known to be very reliable.
The firm recently advised on Kwench Global Technologies on data protection, reviewing privacy policies, in compliance with GDPR and data protection compliances.
Highly acknowledged as an IP specialist firm, it is bursting onto the technology front as well. It offers expertise in litigation, counterfeiting, mergers and acquisitions.
Client following include media companies and major publishing houses.
This article is written by Aryan Kashyap from Lloyd Law College, Greater Noida. This is an exhaustive article enlightening the reader about all they need to know before buying a second-hand car in India.
Introduction
Indians are probably the most opportunistic people in the world. We love making the most out of anything or any opportunity. The same is the case with us when it comes to used cars. The second-hand car selling industry in India is booming. We have people here looking for opportunities in this as well, the fraudsters. A lot can go on in the simple process of buying a second-hand car. Let us look at the various dimensions of it.
Where can you purchase second-hand cars?
Used cars might not be as good as new ones, but when you are running short on your budget, it can be the best option for a while. If you look patiently, you can find a plethora of options around you. You can explore these options:
Online from classified websites
In this age of advancement, everything is just a finger tap away from our reach, we have shattered the ease of enjoying utilities. We have online services that are very convenient and reliable. There are companies which send the seller directly at our doorstep, to show us any used car we might want to purchase. We have tons of reliable websites for doing so:
OLX, probably the most famous website of all for buying and selling second-hand cars.
Mahindra First Choice, one of the most famous websites for buying second-hand vehicles from a reputed company as Mahindra.
Maruti True Value, coming from one of the most reputed cars company of India, considered to be a very trusted source by many.
Quikr, one of the most famous advertisements based websites.
Cartrade allows users to trade their cars in just one visit.
Eazyseller comes with a variety of car options to purchase from.
On a Go-to basis
This is another option available to our more sceptic friends, who might not believe a lot in an online transaction. We have options for you as well:
Purchasing a car from a Broker.
Purchasing directly from the previous owner.
You can use conventional methods like calling your ‘know it all uncle’, or else you can just google and bookmark the physical shops nearby which might be selling second-hand cars and schedule your visit as per your ease.
This option may not be very convenient but surely might be more reliable than the online methods, as you are looking in your locality.
What are the Pros and Cons of Buying a Second-hand Car?
We love being in our comfort zones, don’t we? Well purchasing a used vehicle might put you in an uncomfortable situation. You need to have a gist of what’s coming.
The Pros of having a Used Car
The fact that they are cheaper: You might have the opportunity to bring home your dream car. New cars come with a big price tag, but automobiles lose their value faster than the flick of an eye. In just a year a car loses almost 10% of its original value. This is probably the biggest pro of having a used vehicle, you get it for a lesser price.
The warranty is transferable: This won’t be applicable if somebody is purchasing an ancient vehicle, but as far as it goes, most modern cars come with at least five years of manufacturer’s warranty, which is easily transferred to your name.
Half-waivered Loans: Vehicles bought on a financial basis, when being sold, has some or all of the burdens already lifted off it.
Cheaper insurance: After the main price of the vehicle is reduced, the new insurance costs a lot less than usual. This, in turn, saves a lot of money for the user.
Worry less live more: Not that people don’t love their cars, but a dent or a scratch on an old car won’t hurt as bad as it would have if it were new.
The Cons of having a Used Car
It is unreliable:People generally fear using their lemon (a term for a defective car) to its max potential, fearing a breakdown. It is very generic, you don’t know why the previous owner wanted to get rid of the car.
The Purchase might come without a warranty: The manufacturer’s warranty might have expired and the seller might not be ready to cover the warranty on anything. This certainly is very suspicious, it might take a while for you to realize that you were defrauded.
The repairs:The repairs might burn a hole in your pocket, getting those worn-out tires changed, the head-lights replaced, and a servicing check might cost a heck. The possible frequent breakdown just doubles the repair costs.
Higher Interest Rates:The interest rates of older car models are usually more than that of the newer car models. This is because car manufacturers try to decrease the interest rate efficiently in their favour to increase their sales.
Lack of Choice:You might have to settle for a certain undesired feature or even lack of features, or a colour which you don’t even like.
Must-see Documents when buying a Used Car
The process of transferring ownership of the vehicle is a tedious one. Many documents are required in the due process and it is full of red-tapism. Speaking from my personal experience, you might have to make multiple visits and even give ‘kharcha-paani’ to the ‘Babuus’ sitting in the offices to get your job done. The documents you need to compulsorily check are:
Registration Certificate (RC)
The RC contains crucial information about the vehicle such as:
The engine number.
The chassis number or the Vehicle Identification Number (VIN).
The buyer must get his vehicle registered in the place where he will be using his vehicle. The buyer must make sure to obtain the original RC from the seller. As per the law, the RC must be transferred within 30 days of the sale of the vehicle. Both the buyer’s and seller’s sign is required to ratify the process.
Receipt of Car Purchase
The buyer must be provided with an invoice of the purchase of the vehicle. He must make sure to get it from either the company, from the broker or the person himself.
Insurance Papers
The buyer needs to get the insurance papers and check whether the premiums were paid on time and also the expiration date of the policy. The buyer should be lucid about the terms and conditions agreed in the policy and then get the policy transferred to their name.
If the buyer wants to buy a new insurance policy then it is recommended that it is done during the selling process in order to avoid any break on the insurance. It is difficult getting insurance on vehicles older than 15 years.
Service Book
This is the log of when and where the vehicle was serviced and repaired. The possession of this with the buyer is very important so that he/she has an idea of the vehicle’s life expectancy and when to get it serviced.
Forms 28, 29, 30, 32, and 35
These are the mandatory legal documents for buying a used car in India. These are:
Form 29:It is the notice of the transfer of the car’s ownership.
Form 28: is the No Objection Certificate (NOC) in case the transfer is to happen between two states.
Form 30: It is the document for the application of disclosing the transfer of car ownership,
Forms 32 and 35: These documents have to be signed if the seller had taken a loan to purchase the car. If the car was purchased by taking a loan then the seller has to provide a NOC from the respective financial institution to ensure that the loan was completely paid by the seller.
Road tax Receipts
The road tax is paid once during the time of registration and it varied somewhere between 2% and 18%. If this remains unpaid then this can add up and become a big number over time. The seller must provide the buyer with the road tax receipt ensuring it was paid on time.
Bi-fuel Certification
If the vehicle being sold was customised to run on two types of fuel then the seller must ideally provide the bi-fuel certificate to the buyer in addition with a NOC from the Regional Transport Office. The bi-fuel kit generally carries a guarantee of 5 years so the buyer must get the sale receipt for the same as well.
Pollution Under Control (PUC) Certificate
It is mandatory under the law for a vehicle to have a PUC certificate. The buyer must procure the same from the seller.
The Owner’s Manual
The buyer must get the owners manual from the seller as it contains important instructions and information about the vehicle.
Other Documents
Other documents required for the process are both buyer’s and seller’s ID proof containing their addresses, PAN card, Clearance Certificate (CC) from the RTO where the vehicle was registered.
Most Common Scams while purchasing Second-hand cars
The sellers are professionals. Not saying all of them might be committing frauds, but most of them do. They know who they can fool and who not. My dear readers, I know that you don’t want to be scammed and that’s why you are here. The most common frauds and how you can evade them:
Odometer wind-back
The previous owners would obviously like to make the most from their old investments before completely shunning it. If they can show that the car was used less than they can achieve the same. This can be done by a simple process called Odometer wind-back. The modern digital odometers, as experts say are a bit difficult to tamper, but then where there is a will, there’s a way.
How to be safe from this?
You can bring in an experienced driver with you and have him checked that if the odometer readings match with the wear and tear of the car.
An experienced mechanic can easily tell that if the readings have been tampered.
Odometer wind-backs can be very dangerous because it alters the life of a car as you won’t be servicing your car on the time it needs to be.
Stolen vehicles
This is another common scam. Most people fall prey to this. You might not be able to tell if something is fishy because, in this practice of vehicle rebirthing, fake documents are produced. These documents look very legit. The car might be customised exactly to be as it is on the papers.
How to foresee this?
If your seller is insisting on selling the car and the documents read anything like, terms which might be bringing all the responsibilities relating to the car on the buyer, then this might possibly be a scam.
The people involved in such kinds of activities are usually involved in black markets and the cars might have a criminal history, which if pulled over by the police, you will be held liable and not the previous owner.
Such fraudulent sellers might be purchasing the rejected models of cars illegally and might be selling it after refurbishing it. This can be life-threatening as the safety features like airbags of the car might not be working properly.
How to be safe from this?
The Indian Government provides an online service where you can easily check for such frauds. You can visit the Indian Parivahan service’s official website and fill the required information like the vehicle number, registration details, the chassis number, The owner’s name, taxes paid, Insurance details etc.
Ask a mechanic to check that the engine number and the vehicle number match with the ones on the paper.
Ask your lawyer to see the paperwork, he will legally advise you against any possible potholes in the paperwork which might become a liability on you in the future.
Verifying it with the official Government data might be a good thing to do. You can see the list of stolen vehicles in PDF file format on the Vahan Samanvay Service. You can look up the same on the local traffic police’s websites.
You can contact the previous insurance company and find relevant information about the vehicle and cross-check.
Undisclosed Financing
It is possible that at the time you are purchasing the vehicle, there might be an outstanding loan upon it. Generally, the company or the bank providing the loan use the car itself as mortgage to the loan. Thus here you stand at the risk of losing your vehicle and further legal actions might be taken against you.
How to be safe from this?
The best way you can verify if all the previous loans have been paid off or not is by getting all the receipts from the owner and then approach the car outlet or the financial institution and make sure no amount is due.
You can also follow the police’s website for pending E-challans or any other dues.
Escrow Scams
This is another very common scam nowadays. Sellers asking for money just to see the cars or guiding the buyer to transact the money into a fake escrow account and then flee from the sight.
How to be safe from this?
The best way to not fall for such tricks is to make the monetary transactions in person.
Have the transactions in a public place, having some crowd, because you don’t know the other person and what their intentions might be.
It is advisable having someone with you when you are exchanging, there have been life-threatening scenarios of looting the buyer/seller.
Broker pretending to be the Real Owners
In order to maximise their profits, many a time the brokers will be pretending to be the real owners. They will be selling you the vehicle as first owners, whereas in reality, they would have purchased the vehicle from somebody else and are selling it at a higher price. This is known as Curbstoning. This effectively makes you the third owner of the vehicle without your knowledge and your resale value is decreased drastically.
How to be safe from this?
By checking the vehicle’s Registration Certificate. It contains the Owner Serial Number. This is indicative of the number of times a vehicle has been sold.
The buyer should check the seller’s driving licence number and cross-verify it with the vehicle’s title.
Warranty Scams
A vehicle still having the manufacturer’s warranty increases the sale price. Certain activities such as modifying the vehicle, accidents, commercial usage, deems the warranty void. The buyer might be purchasing the car on the security of having an active warranty and would pay a higher price than usual.
How to be safe from this?
The buyer should contact the vehicle company and confirm if the vehicle is still under its warranty period or not and then act accordingly.
Punishment for Auto Dealer Frauds
Auto deal frauds fall under the ambit of Consumer Redressal Commissions of the Consumer Protection Act, 1986. The Act defines a Consumer as:
Any person who purchases any good for consideration.
The price of the goods must be paid/promised/party paid or promised.
This must be done under any system of deferred payments.
The mode of deferred payment must be approved by the same person.
This, however, does not include a person who obtains the good for any commercial purpose or for selling it again.
In layman’s terms, a Consumer is anybody who purchases a good or opts for service for his personal use and not any commercial gain or for resale.
The Consumer Protection Act of 1986 has set certain jurisdiction regarding various forums.
The consumers can file their complaints in any of these on the basis of these jurisdictions
Level
Amount
District Consumer Forum
Cases up to ₹20 Lakhs
State Consumer Redressal Commissions
Cases between ₹20 Lakhs and ₹1 Crore
National Consumer Redressal Commission
Cases above ₹1 Crore
Duty of the Manufacturers and Retailers
This Act imposes an obligation upon the manufacturers and the retailers that their products must have a standard of proper representation.
Failing to abide by this rule, they shall be held liable for Unfair Trade Practices.
If the consumer feels the absence of quality, then they earn the right to raise a complaint in the Consumer Redressal Commission to avail remedy.
A Consumer Case of Auto Dealer Frauds
In 2017 Sijo K Philip, an IT professional from Bangalore made a purchase of a second-hand from SLV car World on the Outer Ring Road. The seller showed Sijo a Honda Civic model claiming that it was used for a mere 50,947 Kms (This was the reading as per the odometer).
Philip Purchased the car for ₹6.2 Lakhs. After driving it for 15 days, he visited an authorised Honda store for servicing. He was stunned after the technicians told him that his car was last serviced in 2015 (2 years ago).
They said that the car’s engine and other internal parts were severely damaged, after further checking it the technicians concluded that the odometer was tampered with.
After realising that he was served a substandard product, he raised his grievance to Keshavalu Reddy, the owner of SLV Car World, however, Reddy never replied.
Philip then filed a complaint in Bangalore’s second additional district Consumer Redressal forum. After the end of the litigation period, the Forum ruled in favour of Philip as he produced all the documents firmly establishing the fraud committed by Keshavalu Reddy. The forum ordered Reddy to pay a compensation sum of ₹1.50 Lakh within a timeline of 60 days.
Conclusion
There is no better feeling than buying that first car, no matter if it is a used one. But it is a risky business. Long gone are the days when business was a qualitative enterprise, now it is mostly a quantitative thing. With the second-hand car business being on fire, it invites all sorts of people and here, in India, we don’t lack in variety. There is always some degree of risk involved, but we should be as careful as we can. Following the measures stated in the article shall protect you. Rest assured, savdhan rahe! satark rahe!
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This article is written by Sangeet Kumar Khamari, from KIIT School Of Law, Odisha. This Article talks about cloud computing and the different clauses which make the people more comfortable while using it and also tells about the mistakes that are committed by people.
Introduction
In today’s world, technology has grown up to such a position that people are very much happy to utilise it. We use cell phones, laptops, tablets and many more electronic gadgets and by using those gadgets we feel free from the workload. Then we use social media like Facebook, Instagram, LinkedIn and many more to connect with people who live in various parts of the world.
Technology has also developed a software called cloud computing from which we can share anything like photos, files, etc. and also store data without any help of any hard disk or hard drive. Now we shall discuss cloud computing in this article.
Examples of cloud computing are such as Google’s Gmail, Google’s drive, Google’s photos, etc.
What is Cloud Computing?
Through the internet, transferring of different services is known as cloud computing. Cloud computing services include tools and applications like email, backup, data storage, servers, database, networking and software. Other than keeping files on a hard drive or local storage device, storing in the “ cloud-based storage” makes it possible to save the files to a secure database. Cloud computing makes an easy way for the people and businesses to certain advantages like cost savings, gain in productivity and it is also speedy and secure. For example, If anyone stores data in google drive in his or her computer, then he or she can access the data from anywhere using mobile phone or tablets by signing it to their user ID.
As we know, cloud computing is already an evolved technology, It is useful in reducing capital expenditure and operational cost. Before this technological improvement, there was the best utilisation of hardware in data centres. If someone has to use the hardware for once then he/she has to invest in it.
Why is it called cloud computing?
It is called cloud computing because, just like the cloud is formed by the mixture of an infinite number of water droplets and not a fixed structure, but it moves from one position to another, so cloud computing is also formed by many users and networks. Many times cloud computing gains some users and also loses some users, so it doesn’t have any fixed structure like clouds.
Companies use cloud computing for their employees to store data and files on servers and access them through the internet. This means there is no need for the users to access it in a particular place, they can access it from anywhere using their mobile, tablets etc.
Who are the major providers and users of Cloud Computing Services?
Companies like Google, Amazon, Microsoft, etc., majorly use cloud computing services in a significant way. However, to use this technology, businesses are required to enter into a proper agreement, so that it can either be regulated or tailored to customers especially when they are using it on a large scale. Cloud computing contracts tend to be standard form contracts with pre-decided terms. Section 10A of the Information Technology Act approved them valid and made them legal. There are certain essential clauses in a Cloud Computing Agreement which businessmen are required to check before entering into the agreement. Clauses like liability, indemnity, termination of contract and many more which we will discuss in the next headings.
Essential Clauses of Cloud Computing Agreements
Commonly, Cloud Computing Agreement is supplied in a closed restricted radius. Therefore, the cloud providers can say that in modifying their service agreement, some users negatively affects their capability in using advantages of cloud computing. Now we shall discuss some essential clauses of Cloud Computing Agreement:
Indemnity
Indemnity is very important depending upon the limitation of liability provision in the agreement. Cloud Service Agreement puts limitations on providers while indemnification to the third party from claiming Intellectual property infringement. Indemnification can be claimed to the type which is arising out on relating to the violation of law, theft, fraud, death etc.
Limits of liability
In the Cloud Service Agreement, the cloud supplier’s risk or liability is mostly limited to coordinated harms and is covered with an aggregate sum for all the claims made under the agreement. Cloud providers generally characterize the obligations as numerous of the month to month charges, by and large running from three to a half years of expenses. While this technique of arriving at the point of confinement is generally acknowledged, the genuine dollar sum ought to be approved by each party in light of the potential harms. What’s more, in spite of the fact that these arrangements tend not to be equal, clients ought to consider whether their risk to the supplier ought to be likewise restricted.
Use of customer data
Cloud Service Agreements commonly put forward specific purposes for which the cloud supplier may utilize client information. For example, the cloud supplier may express that it screens or uses client information “as important to work this administration or some other provider administration” or on the other hand “to secure provider’s privileges” or “so as to improve provider’s items.” Customers ought to cautiously survey and assess whether they are alright with the utilizations, thought about by their planned cloud supplier’s understanding, and consider whether to look for explicit impediments on such uses.
Implementation
In the present, important implementation services are being provided,therefore,the definition of “services” in a Cloud Computing Agreement should be broadly expressed as to capture all of the services being provided. The users should understand the requirements and facilities of the services which are being provided to check if any extra functions or features are needed. Any work which is required to support such features and functions should be discussed and identified. Usually, a cloud computing offering can have limited configuration and modification option, for e.g., multi-tenant application, and in that order the providers can easily manage the services and can also provide a scalable solution.
Termination
A consumer or a customer’s right to terminate normally isn’t thought about in a cloud supplier’s structure understanding, under certain conditions, such assistance might be basic for the client to guarantee business congruity. A termination arrangement would require the cloud supplier to keep playing out its administrations for a predefined time frame and also help with the systematic progress either to the same client or for another business transaction. Customers secure the right to terminate, however, the providers also require a reasonable notice period or an additional payment as a termination charge in exchange for the customer’s termination right. Such arrangements additionally ought to indicate the methods by which the client will recover information, it has put away in the cloud,the time span for the recovery or conveyance, furthermore, the design in which the information will be returned.
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Secure destruction of customer data at Termination
Cloud Service Agreement ordinarily accommodates the return or destruction of the client’s information upon lapse or termination of the services which are provided, as a rule after a predefined time frame and at the appointment of the client. These arrangements are practical concerns associated with recovering data to facilitate the transition to the other cloud service or on restricting the cloud supplier’s commitment to keeping up information for the client after termination. From a data security point of view, and to certain data protection laws with respect to the safe removal of individual data, these terms additionally ought to indicate the safe removal techniques by which information will be demolished.
Fees
Generally, a Cloud Computing Service fee is charged by as per the data storage used, for virtual machines per hour and per active user per month. So accordingly, the users have to pay for this. The user must know the price before signing the agreement, therefore, they should fix an amount in the agreement for the time period they would use it. And also, the users should identify all potential revenue streams and also be sure about the fees they will pay are of the same revenue stream for e.g. the user wants additional storage after using some amount of data, they have to pay for it.
Common Cloud Computing Mistakes & How to Avoid Them
The appearance of cloud computing has changed the view and possibilities of the business world. Instead of storing and maintaining a computer in the house, we can access and also can store everything online with the help of cloud computing. But while cloud computing is cost-effective and exhibits a number of benefits for both business and individuals, without taking risk it can’t happen. Admitting these risks is the first step to avoid the potential hazards of cloud-based computing. Four most common cloud computing mistakes are as follows:
Giving too much access
The cloud consists of many applications which can be useful in future. A lot of sensitive information( for e.g. any confidential information of a company) is or may be hosted by it. It is very important that the companies identify their weakness while storing data in the cloud, and also take necessary steps for its protection.
High-level securities are implemented to control access to any sensitive data. With this security, the staff members should only know the secret of the cloud to perform their function which is very necessary.
Unencrypted data
Generally, companies make mistakes by believing that cloud computing is enough to secure the data. But, they are wrong, they must continue to make code of data to secure while using the cloud-based services.
Poor connectivity
We can’t ignore the network connectivity because this can be a highly devastating oversight as cloud access and its usage depends upon internet access. Always be sure that the company is using a good network connection and good provider so that there won’t be loss of productivity or compromise of data.
Choosing the wrong provider
Lastly, when considering cloud providers, be sure to go with one that offers transparency and visibility into the cost of use. Many companies fail to consider the value of complete cloud implementation until it is too late.
Conclusion
Cloud computing is very essential in the modern era as well as in the field of information and communication technology, as it has brought a change in the way of working and made an easy way to someone who was using the objects to store data or files and faced many problems because of the quantity of space where the files or data were stored were very large, and it was not possible to travel with that object.
Now science has developed its technology through which people can use the object and access it freely. Like earlier a floppy disk which is a large object consisted of only 10 to 12 Mb, but now we have memory cards which have a capacity up to 256 GB and are also very small.
Due to the cloud computing technology, the developer with many ideas about the internet services will not have to expend huge amounts of money for developing software and hardware infrastructure abilities and they could focus on the effective provisioning of utility services. The provisions discussed above are by no means exhaustive, but it offers a starting point for evaluating cloud providers agreements.
Cloud services have reached the maturity phase of growth to the developing economies in the world. Thus, cloud service providers are focusing on developing economies like India for future growth. Many large companies like Microsoft, Google, etc. see a significant increase in the potential of India for cloud services.
