This article has been written by Sushant Biswakarma from Symbiosis Law School, Noida. It talks about the relevance of Customary International Law in today’s world and how it impacts inter-state relations around the world.

Introduction

Customary International Law refers to the international obligations that may not be formally written in conventions and treaties but still exist as a part of usual international practices.

Multiple states have a sense of legal obligation and hence, follow a general and consistent practice, which resulted in Customary International Laws.

For example, granting diplomatic immunity was an unwritten international custom until the Vienna Convention on Diplomatic Relations came into force in 1961, which made granting such immunity legally binding.

Recognition of Customary International Law

Customary International Law has been defined under Article 38(1)(b) of the International Court of Justice Statute as a “usual and general practice that is accepted as a law”. 

The ICJ (International Court of Justice) is an international judicial body and settles disputes arising between United Nations (UN) member states. Article 38 of the statute provides that the international customs and general practices of nations will be one of the sources of Customary International Law, and such Customary Law is one of the sources of International Law.

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Sources

There are two sources of Customary International Law, those are:

• General state practice – There must be a widespread and consistent state practice. Such practices are unwritten and mostly based on humanitarian principles and inter-state diplomatic relations.

For example- States granting refuge to refugees and asylum seekers because they feel a threat of life and liberty in their home state.

• Opinio Juris – It means ‘opinion of the law’. In simplest terms, it refers to what has been accepted as law by the States.

It is one of the elements that are necessary to set up a legally binding Customary Law. In order to establish unanimous customary practices in inter-state relations, the states codify some customary practices and accept them as laws. The states by way of ratification are bound to follow such law according to the doctrine of opinio juris.

However, with Customary International Law, the concept of opinio juris is highly unsettled and disputed because customary practices vary from state to state, making it difficult for the states to settle on a uniform practice that they are bound to follow.

Jus cogens

In human rights conventions, some rights are considered to be so important that they are non-derogable in nature. Such as- the right to life and liberty, etc. These rights are referred to as jus cogens norms.

The norms in International Law formed by the principle of Jus cogens can not be set aside. The Latin term jus cogens literally translate to ‘compelling law’. There is no need for any codification of such laws as these exist anyway. 

These are Customary Laws that are rooted in the principle of Natural Law. Any law in contradiction to it must be set aside. For example, laws that permit slavery, torture, genocide, crimes against humanity, etc., are contradictory of jus cogens and must be set aside.

However, it is to be noted that all jus cogens are der Customary International Law, but not all Customary International Laws can rise to the status of jus cogens. These are the basic and most important norms around which other laws must be made.

Codified and Uncodified Customary International Law

Not all Customary International Laws are codified, some are done so through various treaties and domestic laws. Whether codified or not, all Customary International Laws are recognized. 

Jus in bello, which is Latin for ‘law of war,’ flows from Customary International Laws and were uncodified until the Hague Conventions and Geneva Conventions. 

It is not practically possible for these conventions to codify each and every legal issue that could arise during the course of a war. Therefore, there is a Protocol Additional to the Geneva Conventions (Protocol I) that states that all legal issues regarding the armed conflict that are not covered by such conventions, will be governed by Customary International Laws, be it codified or uncodified.

Do Customary International Laws require ratification?

Any International Laws arising out of international conventions are not binding upon nation-states unless the countries consent to be bound by such laws by way of ratification.

But, Customary International Laws are norms that deal with Natural Laws and Humanitarian Laws and are so prevalent internationally that they need not be ratified in order to be binding. These laws do not require any state to expressly do something by using their resources, they are just required to not make any laws contradicting such laws.

However, sometimes a state may object to Customary International Laws, such states are not bound by them unless the laws are considered jus cogens. 

Laws are binding as long as expressed objection is not made, which gives rise to the principle of “silence implies consent”. This means that as long as no objection is made, consent to follow such laws is said to exist impliedly.

Ratification when Required?

There are various International Laws governing several nation-states, but there is no higher government that has the power to govern such states as citizens. Therefore, the common saying “international community is ‘anarchical’”.  

Unlike human beings, some nation-states are self-sufficient and need no one else for survival. They are in a position to turn down the benefits of cooperation with other states and the responsibilities of participating in the community under law.

This is a harsh reality and we are aware of it. Therefore, it has been a principle of International Law that the consent of states must be expressly given by ratifying a treaty or any other means in order to be bound by a rule. Customary International Law is an exception to this principle and is binding even without consent.

Bilateral vs Multilateral Customary International Laws

Customary International Laws can be either bilateral (practices between two countries) or multilateral (practices between more than two countries). This means that there may be only two countries recognizing a certain custom as Customary International Law, or there could be worldwide recognition of customs as Customary Law.

In the case of Portugal v. India, the existence of bilateral Customary Law was recognized for the first time by the International Court of Justice. In the instant case, the court held that the practice between two countries accepted by both of them as regulating their relations can be a basis of forming mutual rights and obligations between them.

In simple terms, it means that customary practice between two nation-states can later be recognized into bilateral Customary International Law.

Customary International Humanitarian Law

Customary international Humanitarian Law is a part of Customary Law, it refers to uncodified norms of public International Law, that governs the conduct and legality of armed conflicts which is why it is also known as the law of war.

Humanitarian law also flows from humanitarian principles and is aimed to cut the ill effects of war. It extends its protection to people who are not participating in or have ceased to participate in war and is trying to curb the methods of warfare.

War has existed among mankind as long as mankind itself has existed, so naturally, there has existed some principles and customs that one must follow during a war. Some of these customs and principles have been codified in the Hague Conventions and Geneva Conventions.

Even after the codification of such norms, it is impossible to codify each and every aspect of legal issues that might arise during a war, and hence, customary rules remain very much relevant in today’s armed conflicts.

Relevance of Customary International Humanitarian Law

There are multiple treaties on international Humanitarian Laws such as Geneva Conventions that have been universally ratified and are binding upon all, but not all such treaties have been ratified by every nation-state, and such laws are binding only upon the member states that choose to follow such law.

Customary international Humanitarian Law bridges this gap and even those states that have not ratified any humanitarian treaty are bound to follow certain customs during an event or armed conflict.

We are living in an era where we have more civil wars and wars for freedom than any inter-state wars. The treaties and conventions have recognized and codified laws regarding international conflicts, but the laws regarding armed conflict within a nation are not very developed.

Customary practices act as guiding lights in the absence of any proper, codified norms in treaties and conventions.

The University of Cambridge in 2005 published a study in Customary International Humanitarian Law, conducted by the International Committee of the Red Cross (ICRC) that identified 161 customary rules applicable in both international and national armed conflicts.

These rules were already in existence even though they were unwritten, various nations followed these uncodified rules. This shows that there is a mutual understanding between states and also within a state.

After looking at the study we can notice that, even without the introduction of Geneva Conventions of Hague Conventions, the states themselves have decided to draw a line on humanitarian grounds, and they tend to restrain from crossing such lines even during an armed conflict.

We can also conclude from the study that such un-codified customary rules become a general practice even without any express consent, which can later be recognized as Customary International Law.

However, this study has faced serious criticisms on the grounds that the methods of identifying Customary Humanitarian Laws were controversial. But, if we believe that the ‘ends justify means’ and the results of this study have helped us in a better understanding of the formation and importance of Customary International Laws.

Is Customary International Law crucial today?

The world had 74 independent countries in the year 1946, the number raised to 89 by the year 1950, and today there are 195 independent countries having their own sovereignty. Now, with the growing number of independent countries, it is getting harder and harder to follow a unanimous pattern of Customary International Law.

Codification and express ratification is required for every single norm to be binding these days. Diplomatic immunities were once an essential of Customary International Law and no codification of such was required, but, these days they are reinforced by bilateral agreements, investment insurance, and other ways.

We can observe that the pattern of states behaviour is changing drastically from a custom driven state to a rule of law. This introduces a new feature that tends to make the pattern more stable and reliable.

It is not that customary norms are getting obsolete, all International Laws are based on customary practices. Codification of such practices ensures a unanimous and uniform International Law.

However, most of the International Laws are based upon customary norms, the intent behind these norms are the same, they have just been codified for efficiency.

Uncodified Customary Laws are also important because the ambit of such laws are much wider, the codified laws are binding upon only those who expressly consent to follow them, but the Customary Laws based on humanitarian grounds are binding upon everyone, and all laws must be made in keeping Customary Laws in mind.

Conclusion

Customary International Laws have existed as long as mankind has existed, they are the basic norms that are mostly based on humanitarian grounds and principle of natural justice, no laws can be drafted in contravention with them.

With the change in time and technology, warfare among nation-states have decreased significantly, and on the other hand, trade and diplomatic relations between states have seen a drastic rise.

With the rise in trade and cooperation, no state is completely self-sufficient and even the most developed of the states depend on others for one thing or another.

Customary International Laws have played a huge role in establishing diplomatic relations between nation-states, but it is the codification of such norms and voluntary ratification by the states that changed the way they function and dramatically changed the international scenario.

Also, with the increase in the number of States, it is near impossible to keep up with un-codified norms and establish a uniform practice all over. Codification of such norms was very essential.

However, this does not in any way mean that Customary Laws have lost their importance. Customary International Laws have a much wider scope of applicability and are binding upon everyone. They are the basis of every international prevalent today and every new norm must still abide by such customs.

References

• https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1638&context=mjil
• https://www.icj-cij.org/en/case/32
• https://ihl-databases.icrc.org/customary-ihl/eng/docs/home
• https://heinonline.org/HOL/LandingPage?handle=hein.journals/sljinl21&div=18&id=&page=
• https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1560&context=ilsajournal/
• https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1385&context=gjicl

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

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This article has been written by Rajveer Gurdatta.

Introduction

Forests are one of the essential natural resources available in the country and cover around 1/3rd of the earth’s total area. The word forest is derived from a Latin word “Foris” meaning outside. The forests act as the guardians and protectors of the wildlife of the country. Its uses are many in terms of fertility, shelter to animals as well as tribal population to mention a few which in turn helps to maintain the ecological balance all over the country. Forests are a means of generating revenue for the state by supplying various raw materials in its most natural form to the industries globally. They are a reason behind climate change and in controlling the quality of air and water.

The forests are in use in the hands of the majority population due to which the resources available are being consumed at an alarming rate resulting in depletion. The users of the forests have recklessly utilized the forests for cultivation and destroyed them in the name of agriculture and other personal consumption of wood, timber, fuel and fodder. The need for a legislation protecting and regulating the forests was required, which was met by the Indian Forest Act, 1927 imposing Governmental control over forests by classifying them into reserved, protected and village forests. The Act of 1927 is a comprehensive legislation incorporating all the pre-existing laws enacted to protect the forests as well as the rights of the people residing in the forests. The first legislation was enacted in 1865 during the British rule which was an attempt to protect the forests the Act had its fallouts with relation to the rights of the people, that were not protected. The amendment of 1878 was aimed at improving the deficiencies of the Indian Forest Act of 1865. 

The Indian Forest Act, 1927 

In 1927, a revised legislation of the Indian Forest Act was enacted based on previous Indian Forest Acts implemented under the British. Just like the preamble to the Constitution that lays down the objectives, every legislation has its preamble wherein the objectives and guidelines of the particular Act are listed. The preamble of the Indian Forest Act seeks:

• to consolidate the law relating to forests,
• regulation of and the transit of forest produce, and
• to levy duty on timber and other forest produce.

It also consists of the procedure followed in cases of declaring the area to be a reserved, protected or a village forest. The Act is divided into 13 chapters with a total of 86 sections ranging from the definition of various forests to the penalties that are to be levied on the violation of the provisions of the Act. The term ‘forest’ has a wider ambit when it comes to its definition as it includes private lands, lands for pasture, cultivable lands etc. and so the Supreme Court is yet to assign a particular interpretation and thus the Act is silent on the definition of a forest or a forest land.

The section 2 of the Act that is the interpretation clause defines various terms that are essential in the domain of forests; starting from cattle inclusive of all the animals, the forest officer who is made in-charge by the State Government, the forest produce which includes timber, charcoal, wood-oil etc. It also has a separate interpretation of the river including any stream, canal or other channels. Further, the Act is classified into 3 types of forests that are; reserved forests, protected forests and the village forests.

Reserved Forests

The reserved forests are dealt with in Chapter II of the Act ranging from section 3 to 27. In simple words, any forest land or waste land to which the government has the ownership is a reserved forest. These forests are restricted as the Government has proprietary rights over the land. The use of the reserved forests is prohibited to the local people unless they have a permission by the government. The area of land is declared to be a reserved forest when the Government issues a preliminary notification under section 4 of the Act declaring that such a land is to be constituted as a reserved forest and the Forest Settlement Officer settles all the rights either by admitting or rejecting them.

Section 26 of the IFA, 1927 deals with the prohibition of a number of activities including grazing, tree felling, burning, quarrying, hunting etc. in the forest. The penalty for the violation of the provisions of section 26 is imprisonment for a term which may extend to two years or with fine which may extend to Rs. 20,000 but which shall not be less than Rs. 5000.

Village forests

Following the order of the sections under the Act, the village forests are dealt with next in Chapter III of the Act under section 28. When the Government assigns any reserved forest or any other land to the village community for their use that piece of land is classified under village forest lands. As according to the Act, the State Government makes rules for regulating the management of these forests. 

The term village forest and forest village are interchangeably used in certain cases, but are eventually different in their meaning. While village forest is a legal category under the Indian Forest Act, forest village is merely an administrative category. Although the latter is recognised by the Forest Department, the revenue benefits cannot accrue to such villages as they are not technically under the revenue departments. Generally, the lands given to village forests are constituted into Village Grazing Reserve (VGR).

Protected forests

The state government is empowered to constitute any land other than reserved forests as protected forests over which the Government has proprietary rights. The provisions for the protected forests are dealt in Chapter IV under section 29 of the Act. In the case of these forests the Government retains the power to issue rules regarding the use of forests and if in cases where there are no rules, the practices are allowed. Along-with the rights, the Government also has the power to reserve the specific tree species in the protected forests. The sole reason behind this being that those particular trees have the revenue raising potential and are thus required to be protected for their benefits in the economy.

Chapter V of the Act deals with another type of forests named Non-government forests or rather Private forests. Considering the other forests to be owned and regulated by the government, these forest lands are not in control of the government. Though, the State Government can by notification prohibit and regulate the clearing of land for various purposes which comes under the Government’s power only in special circumstances like to preserve public health and wellness.

One of the objectives of the Act regarding the levying of duty on timber and other forest produce is dealt with in chapter VI which extends to the produce that takes place in the territories and is under Government control. The Act covers the rights of the Government over the forest produce that is floating or sn transit in rivers or at the banks of rivers.

Procedure for Settlement of Rights

The Act was mainly incorporated to differentiate the types of forests while protecting their use as well as regulating the forest produce. The classification of forests involves the rights of the Government and determines how a forest or a waste land becomes a reserved or protected forest.

The procedure requires the Forest Settlement Officer to consider the claims made by the local inhabitants regarding the usage of the land, later make decisions based on his discretion either to accept or relocate or to discontinue the practice. The Government is first required to notify as per section 4 of the Act that the particular piece of land is going to be labelled as a reserved or protected forest.

As per section 6 of the Act, the FSO may call for an examination of any person who, he may think, has the knowledge of the facts, including the evidence of any person likely to be acquainted with the same. No new rights in the notified land may arise after such a notification has been issued, and those claiming any pre-existing right have a period of at least three months to appear and assert such a right, and to make a case for compensation. 

However, there still exists an assertion period in extraordinary cases until the final reservation order gets published.

The Act is inclusive of the provisions that are necessary considering the protection of the forests and their regulation. Further, the Act deals with the seizure of property by the Forest or Police officer where if he has a reason to believe that there is any commission of offence with respect to the forest produce. The phrase ‘reason to believe’ is subject to the suspicion and material evidence in custody of the offender. The officers are required to put a mark on the property being seized and have to prepare a report which is then given to the Magistrate having jurisdiction of the matter.

The Act ensures that powers are granted to the Forest officers by the State Government with relation to entering upon the lands to conduct a survey, issuing search warrants, conducting inquiry and recording evidence for the same. These evidence are then admissible in trials before a Magistrate for the offences committed.

Drawbacks of the Act

The Act lacks with respect to depicting the forests as a means of ecological catchment and the importance of forests in an individual’s life. The loopholes in the legislation are in consideration with the economic value that is being given utmost importance and the essence of conservation and biodiversity is not elaborated in the Act. This enactment throws light over the vicious acts of the Government to gain power over the forest produce rather than its conservation and protection of vegetation. 

The Act mainly focuses on the forest land, its produce and the officers whereas there are no detailed provisions for the fauna under the Act. The reason behind this is that the Act was incorporated during the British times, keeping in mind their interests of hunting and so it did not constitute separate laws for the wildlife which forms the part of the forest. However, in 1972 a separate legislation altogether i.e. the Wildlife Protection Act was enacted. This formed one of the major lacunae of the Indian Forest Act of 1927. The needs for timber were also catered during this course as this Act fostered the British demands of timber from the Indian forest lands. The Act though wanted to protect the rights of the forest dwellers, it failed to meet the expectations of the local inhabitants as they were denied the occupancy and property rights even after residing in the forests for years. 

Conclusion

The Indian Forest Act, 1927 is a revised comprehensive legislation enacted with the intention to deal with the lacunae in the previous acts and formulate the laws of the forest. Though the Act has attempted to classify the forests and protect their extensive use it has eventually failed by providing sole decision-making authority in the hands of the Government, making the legislation arbitrary and unreasonable in its use. The central idea of the Act claims to be different from what was eventually practiced in matters of separate lands for separate uses at the peril of the Forest officers’ discretion. While dealing with the intricacies of the Act the laws for wildlife and river water conservation were lacking, considering the importance of flora and fauna being an essential part of the forests there were no provisions dealing in detail for the same.

Although the Act aimed towards the forest conservation and its forest produce duties, it failed miserably in meeting its objective. The essence of the Act was lost when the Government regained the control of these forests so that the revenue can be generated from the forest produce. Eventually, the Act could not serve its purpose, that is to avoid the exploitation as earlier the people were exploiting the forests and now it was the government in power to regulate and prohibit the usage of the lands.

The Forest Act, requires amends in matters where the focus should be shifted towards conservation and enrichment of sustainable use of the forest resources to safeguard the ecological stability as was proposed in the amendment bill of 2019 for bringing changes in the Act of 1927. The forest dwellers in this matter deserve their rights to be fulfilled by the government in terms of their use of these lands as they have been the lawful inhabitants of the land which are being restricted for their rights over the land.

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This article is written by Shubhang Gupta, pursuing a Diploma in Cyber Law, Fintech Regulations and Technology Contracts from Lawsikho.com. Here he discusses “Importance of Data Protection and Privacy policies in Cyber Law”.

Introduction

These days a term data protection has become synonymous with other rights of the citizens which are guaranteed by the state. With the beginning of the 21^st century, there has been a sharp increase in the development of technology, which subsequently has become an integral part of human life. Today, these technologies have connected to the day to day life of a human being in such a way that, these technologies holds important data related to a user. That’s why data protection has become so relevant in safeguarding the interest of an individual.

This data related to an individual can also be collected by the websites. We will look into these concepts in detail.

Importance of data protection in cyber law

With steady development in the Artificial Intelligence (AI) many software applications like Facebook, Google etc. have developed which not only collect and store the personal data of the user but can also further process the data for any other purpose. In the year 2018, the case of Cambridge Analytica has raised the eyes of many states over the protection of personal data of their citizens. There are about 80 countries around the world who had implemented various privacy policies like GDPR (General Data Protection Regulation) in European Council, Brazil internet Act, 2014 in Brazil, Personal Information Protection and Electronic Data Act (PIPEDA) in Canada, etc. to protect their citizen’s personal data.

This huge number of countries apparently reflects the concerns of many states over the security of their citizen’s personal data. The implementation of various legislations around the world, therefore, includes data protection as one of the branches in cyber law.

Data Protection under General Data Protection Regulations (GDPR)

In recent time, GDPR was implemented by the European Council (EU) in 2018 and comes as one of the stringent legislation to protect the personal data of the people of the European Union. This regulation has proved as a major development in the field of privacy law. With the implementation of this regulation, there has been a major impact on the big tech companies like Google, Facebook etc, and also on many e-commerce sites. This regulation has certainly set new jurisprudence in the space of cyber law. With the implementation of GDPR, the whole domain of privacy rights has gone to the next level. Let’s discuss some of its features briefly which has put this regulation far way more ahead with the other regulations around the world.

• Right to erasure^[1]– under GDPR, the data subjects have the right to erase their data, having stored with any data controller or processor.
• Right to data portability^[2]– under GDPR, the data subjects have the right to port their personal data concerning himself/themselves to one data controller or processor to another.

Data Protection under Indian law

In India, till now there is no exclusive law pertaining to the rights of an individual’s privacy. Only there is Information Technology act, 2000, which deals with cyber crimes and provides remedies against the violation of the act. The act contains few provisions related to the individual’s privacy but they are not exhaustive in nature.

Under section 43A of the Information Technology Act, 2000^[3], a body corporate who is possessing, dealing or handling any sensitive personal data or information of an individual, and is negligent in implementing and maintaining reasonable security practices in protecting the data and results in wrongful loss or wrongful gain to any person, then such body corporate may be held liable to pay damages to the person so affected. It is important to note that there is no maximum limit specified in the act for the compensation that can be claimed by the affected party in such circumstances.

Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 deals with the protection of “Sensitive personal data or information of a person”, which includes the personal information relating to:

• Passwords;
• Financial information such as bank account or credit or debit card or other payment instrument details;
• Sexual orientation;
• Medical records and history; and
• Biometric information.

Under section 72A of the Information Technology Act, 2000^[4], disclosure of information, knowingly and intentionally, without the consent of the person concerned and in breach of the lawful contract has been also made punishable with imprisonment for a term extending to three years and fine extending to Rs 5,00,000.

Under Section 69 of the Act^[5], which is an exception to the general rule of maintenance of privacy and secrecy of the information, provides that where the Government is satisfied that it is necessary for the interest of:

• the sovereignty or integrity of India,
• defence of India,
• security of the State,
• friendly relations with foreign States,
• public order,
• for preventing incitement to the commission of any cognizable offence relating to above, or
• for the investigation of any offence.

Penalty for the Breach of Confidentiality and Privacy under the act

Section 72 of the Information Technology act, 2000 doesn’t specify the provision relating to the breach of privacy by the data processor but talks about a circumstance under which any person who, in pursuance of any of the powers conferred under the IT Act Rules or Regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned, discloses such material to any other person, such person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to Rs 1,00,000 or with both.

Future legislation related to data protection in India

In the near future, it might be possible that India will have exclusive legislation related to Protection of personal data of an individual in India. In 2017, the central government had appointed Justice BN Srikrishna Committee and this committee had released a white paper on Data Protection law in India. In 2018, the central government had presented the personal data protection bill in the parliament but subsequently, this bill was replaced by the personal data protection bill, 2019.

It is evident from the draft of the abovementioned bill that, the bill has been formulated on the basic principles, which were incorporated by the EU General Data Protection Regulations (GDPR). As it becomes necessary to create a balance between the rights of the citizens and the right to practice a trade and economic activities by an entity.

What is a privacy policy?

A privacy policy is a legal document that discloses the way a party gathers, uses, discloses, and manages a customer or client’s data. It fulfils a legal requirement to protect a customer or client’s privacy^[6].

Such privacy policy must provide the following^[7]:

1. clearly and easily accessible statements of its practices and policies;
2. clearly state the type of personal and sensitive personal data or information collected by the business;
3. purpose of collection and usage of such information;
4. about disclosure of information including sensitive personal data or information collected; and
5. Reasonable security practices and procedures adopted by it.

Elements of a privacy policy

The following are the main elements which shall be consisted of a privacy policy, are as follows:

1. Consent: The most crucial component of a privacy policy is ‘consent’. In this regard, the Supreme Court in K.S. Puttuswamy^[8] has made important observations.
2. Purpose of information collected.
3. Disclosure of information.
4. Security practices.

Conclusion

With the skyrocketing development in the field of technology, interference of it in the life of human beings has been increasing. It is well known that data is becoming the “New Oil” and Data protection is becoming the “New Pollution Control”. The implementation of the GDPR has provided, in a real sense, many rights to the Europeans pertaining to protect their personal data from any unlawful processing by the data controller. With the increase in the digital population of a country like India, data protection and data privacy are key issues at the moment. Every internet user intentionally or unintentionally leaves her/ his digital footprint in the form of personal data when browsing the internet. In such a scenario it becomes utmost important to have exclusive legislation like GDPR to regulate data protection and data privacy.

It is also important for the business to craft such a privacy policy, which not only protects the rights or interests of a user/ client but also fulfils the requirement of a business. The business should consider the formation of terms of use and privacy policy as an art rather than just a long-form.

References

[1] Article 17 of the GDPR.

[2] Article 20 of the GDPR.

[3] Section 43A of the Information Technology Act, 2000.

[4] Section 72A of the Information Technology Act, 2000.

[5] Section 69 of the Information Technology Act, 2000.

[6] https://en.wikipedia.org/wiki/Privacy_policy.

[7] See Rule 4 of the Sensitive Information Rules.

[8]  See Justice Puttuswamy v. UOI, Writ Petition (Civil) No. 494 of 2012 decided on August 24, 2017.

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This article is written by Shubhang Gupta, pursuing a Diploma in Cyber Law, Fintech Regulations and Technology Contracts from Lawsikho.com. Here he discusses “Penalties under the General Data Protection Regulations (GDPR)”.

What is General Data Protection Regulations?

General Data Protection Regulations are guidelines, which are enacted to protect the personal data of persons (whether natural or artificial) located in the European countries. These regulations are implemented by the European Union, which came effect from 25^th May 2018. These regulations consist of different components like: duties of controller and processors, the establishment of superior authority, fines and Penalties etc. This Regulation is enforced to curb the hands of big corporations, who were putting on the private rights of the people. These regulations had put a strong impact on the collection of personal data been collected by these big Corporations. This data are put to use by this corporation to manipulate the people’s decision and psychological thinking. This resulted in grave destruction to mankind, so it becomes most important to come up with a strict law regulating the functioning of such big Corporations. These regulations also include penalty and fines as its core element. This allows the EU to impose a heavy fine upon any party violating the terms of the regulations. This is the first and major step taken against the protection of personal data. This law had a long way to go in terms of its acceptability and practicality by the big market forces.

Provisions relating to the penalty under the GDPR

It is one of the most important and required provisions to achieve the aim laid down under the regulations. There can be a no real implementation of any law without having strong sanctity by the law in terms of penalty and fine. Heavy penalty and fine under this regulation could be the prime factor of its acceptability by the companies, enterprises etc., whether small or big. No company could ignore its responsibility and liability mentioned under the provisions of this regulation. Article 83 and 84 of the regulation deals in a comprehensive way with all fines and penalties stated under the regulations. Any person or establishment who has infringed any provision of regulation, is liable under these articles for penalties and fines etc. Since the applicability of the regulations, the union had imposed heavy fines on various enterprises and big corporations which show the strict compliance of these regulations by the union. These regulations had become a major barrier to big corporations like Google, Facebook etc. after implementation of these regulations, the revenue of these big companies had significantly reduced. Now data subjects enjoy more rights than ever before.    

Penalties for infringements under GDPR

Infringement of the European Union‘s GDPR can result in administrative fines of up to 4% of annual global turnover or €20 million – whichever is greater.

Not all General Data Protection Regulations infringements lead to fines. Supervisory authorities established under the regulation such as the ICO (Information Commissioner’s Office) have the scope to take a range of other following actions, such as:

• Issuing warnings and reprimands to the enterprises and companies, as the case may be;
• Imposing a temporary or permanent ban on data processing by any doubtful enterprise or company, as the case may be;
• Ordering the rectification, restriction or erasure of data; and
• Suspending data transfers to third countries, not in compliance with the regulations.

What is the maximum administrative fine under the GDPR?

There are two categories of administrative fines that can be levied as penalties for the General Data Protection Regulation’s non-compliance:

1. Up to €10 million, or 2% annual global turnover – whichever is greater; or
2. Up to €20 million, or 4% annual global turnover – whichever is greater.

Fines are discretionary in nature rather than mandatory. They must be imposed upon the case-by-case basis and every material fact should be taken into consideration. The whole process should be “effective, proportionate and dissuasive”.

The fines are based on the specific articles of the Regulation that the organisation has breached. Data controllers and processors face administrative fines of:

• Up to €10 million or 2% of annual global turnover for infringements of below-mentioned articles as follows:

1. Article 8 (conditions for children’s consent) under this Article, it is necessary to take consent of the data subjects in case he/she is above 16 years old whereas if he/she is minor, then from his/her guardian who had authority to do so;
2. Article 11 (processing that doesn’t require identification) this Article states that, if there is no need or purpose to collect, acquire etc or which do not require identification of the data subjects for the purpose of the controller, the controller shall not be obliged to retain such data under the regulation;
3. Articles 25–39 (general obligations of processors and controllers) these Articles deals with the obligations which must be performed by the data controller and processor under the regulations;
4. Article 42 (certification) this article deals with the certification of a system used by the data Processor and data Collector for processing of data. Under this Article, some bodies like the supervisory authorities, the board and the commission encourage the establishment of data protection certification mechanism to demonstrate that the system been used by the Data Controller and processor are in compliance with the regulation; and
5. Article 43 (certification bodies) this article deals with the characteristics required in the certification bodies established under Article 42 of the regulation.

• Up to €20 million or 4% of annual global turnover for infringements of below mentioned articles which are as follows:

1. Article 5 (data processing principles) this article deals with the basic principles required during the data processing by the data controller or data processor. This is one of the most important articles, in accordance with these principles mentioned under the article, the superior authorities or other bodies can judge the reasonability of processing of data carried out by the data processor and controller;
2. Article 6 (lawful bases for processing) this article states the conditions which are required to declare data processing lawful. This article contains 6 conditions, at least one of the conditions must be applied by the data processor or data collector;
3. Article 7 (conditions for consent) this article state the conditions required to be followed, when the data collector will be taking the consent from the data subjects. If there is no fair means used while taking consent from the data subject such collection of data will be unlawful data;
4. Article 9 (processing of special categories of data) this article mentions the special type of data, whose processing is prohibited under the regulations;
5. Articles 12–22 (data subjects’ rights) these articles deal with the data subject’s rights such as the right of access, right to data portability, right to erasure, right to restriction of processing, right to object etc; and
6. Articles 44–49 (data transfers to third countries) this article deals with the transfer of data to third world countries. Regulation prohibits the transfer of data to any country, which is not included in the list of the third country and which could not ensure data protection on their territory. These articles also mention some preventive safeguards which have to be adopted while transferring data to the third world countries.

General Data Protection Regulations fines imposed till date

According to the European Data Protection Board, 206,326 cases were reported by Supervisory authorities in the first nine months of the General Data Protection Regulation’s enforcement. Out of these cases, 94,622 were related to complaints and 64,684 were related to data breach notifications by data controllers in the union. In the same period, supervisory authorities in 11 EEA countries issued administrative fines totalling to €55,955,871. The vast majority of that total is the €50 million fine France’s CNIL issued to Google in January 2019.

Other notable GDPR enforcement action:

• The ICO took its first action under the GDPR on 6 July 2018, when it issued an enforcement notice to Aggregate IQ Data Services Ltd as part of its investigation into the Cambridge Analytical/ Facebook /Vote Leave scandal.
• In March 2019, the UODO, the Polish Personal Data Protection Office, announced its first fine under the GDPR. An unnamed organisation was fined more than PLN 943,000 (approximately £193,500) for failing to inform more than 6 million data subjects that their personal data was being processed, thereby preventing them from exercising their rights.

How are GDPR fines applied?

While deciding whether to impose an administrative fine and to what level, supervisory authorities under the regulations should consider a range of factors which are as follows:

• The nature, severity and duration of the infringement.
• Whether the infringement was caused intentionally or by negligence.
• Any action was taken by the organisation to mitigate the damage suffered by individuals.
• Technical and organisational measures that have been implemented by the organisation.
• Any previous infringements by the organisation or data processor.
• The degree of cooperation with the regulator to remedy the infringement.
• The types of personal data involved.
• Adherence to approved codes of conduct or certification schemes.

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

The post Penalties under the General Data Protection Regulations (GDPR) appeared first on iPleaders.

This article has been written by Parth Thummar, a student pursuing LLB(hons.)  from RGSOIPL, IIT Kharagpur.

Abstract

The mens rea or mental element of the crime is one of the integral elements of the definition of any crime. But the doctrine of Strict liability is a departure from this requirement of mens rea. It has given rise to many strict liability offences with the changing time. With this in mind, this article examines the doctrine of strict liability and its rise in two common law countries i.e. UK and USA. Arguments of scholars and reasoning put forward by judges in favour and against the strict liability offences are also discussed. Certain offences where courts are likely to tilt towards strict liability doctrine i.e. absence of mens rea are also listed. Lastly the development of strict liability offences, an examination of offences in the Indian Penal Code, 1860 and enactment of certain special statutes by Parliament to implicitly recognise the strict liability offences are discussed. 

Introduction

The fundamental principle of criminal liability is that there must be a wrongful act- actus reus combined with a wrongful intention. In criminal law, mens rea is a technical term, generally taken to mean some blameworthy mental condition, the absence of which on any particular occasion negates the condition of crime. It is one of the essential ingredients of criminal liability. Actus non facit reum nisi mens sit rea, “the act itself does not make a man guilty unless his intentions were so” is a doctrine as old as criminal itself. But there are certain offences where a defendant can be convicted notwithstanding that he did not have any mens rea. These offences are generally referred to as offences of strict liability. J. Herring gives a very simple definition of strict liability offence as follows:

“A defendant is guilty of a strict liability offence if by a voluntary act he causes the prohibited result or state of affairs and in this case, there is no need to prove that the defendant had a particular state of mind.”

A strict-liability doctrine is a rule of criminal responsibility that authorizes the conviction of a morally innocent person for violation of an offence, even though the crime, by definition, requires proof of a mens rea. An example is the rule that a person who is ignorant of, or who misunderstands the meaning of a criminal law may be punished for violating it, even if her ignorance or mistake of law was reasonable.

One must not confuse strict liability doctrine in criminal law with tort strict liability. Difference between both is given below. 

Difference between strict liability in Tort Law and Criminal Law

Rule of strict liability in tort was first laid down by the House of Lords in Rylands v. Fletcher, where also it held that a person may be liable for harm even though he was not negligent, or he had no intention to cause harm or he may have done some positive efforts to avert the same. While remedy in tort is damages, in criminal law the defendant is punished. Tort damages are understood as a form of taxation on dangerous enterprise or imposed as a “cost of doing business”. This view of sanction is compatible with the notion of liability without wrongdoing; one need not do anything wrong to incur a tax or a business cost. But strict liability in criminals cannot be imposed by analogous meaning. Being sentenced to jail or even being censured by the court- cannot be thought of as a tax or doing business. For convenience, the phrase “strict liability” used henceforth is to be understood in a criminal sense. 

To better understand the evolution of strict liability offence, we will consider its position in two common law countries the United Kingdom and the United States of America.

Strict liability offences in the United Kingdom (UK)

In Sweet vs. Parsley a teacher had rented her house. The tenants were caught smoking cannabis within the premises, which was not permitted by law. The teacher was found guilty by the trial court for the violation of the provisions of the Dangerous Drugs Act, 1965 for mismanagement of the premises. The teacher appealed on the ground for lack of knowledge about the activities of tenants and argued that it was not foreseeable for her to anticipate such activities. The court attempted to differentiate true crime with regulatory offence without any proper categorization and acknowledged that strict liability was appropriate for regulatory offence. The court added that generally, mens rea is essential for the offence to which real stigma is attached. The court considered the instant case as ‘true crime’ and the accused was not held liable by the appellate court for lack of mens rea on the ground that the stigma would cause her to lose her job. 

In Harrow London BC v. Shah the defendant was convicted for selling a lottery ticket to a person under the age of 16, even though he was not aware that the purchaser was under 16 nor was it obvious that the person was underage. 

Recent decisions in R v. K and B (a Minor) v. Director of Public Prosecutions (DPP), the House of Lords have strengthened their position in favour of mens rea and all the pre-decided cases have to be read in light of them. Hence courts are required to read mens rea into a statute unless either: 

1. There is a clear wording in the statute indicating that the offence is to be one of the strict liability. 
2. There is a ‘compellingly clear’ inference that the offence is to be one of the strict liability.

Strict liability offences in the United States of America (USA) 

In the USA creation of strict liability crimes began in 1920s and 1930s. Strict liability crimes are mostly seen in the motor vehicle codes, hunting regulations, and food and liquor laws of most of the states. This nullifies the defence taken by the bartender that the person to whom he sold his liquor looked 22 when in fact the person was only 17 or the driver of an overweight truck can’t argue that the company for which he works had faulty scales.

In cases of federal criminal statutes, the U.S. supreme court has consistently maintained a position that strict liability crimes are not preferred and that Congress must make it clear if it wishes to eliminate the mens rea requirement from a criminal statute.

In Staples v. United States the court held that in a prosecution under the National Firearms Act, which requires registration of automatic weapons that meet the definition of “firearms” under the act, the prosecution must prove that the accused knew the weapons he possessed constituted a firearm under the act. As a matter of fact, the defendant had owned an automatic rifle, which qualified as a firearm that must be registered under the act. The main argument of the prosecution was that the statute stated simply that it was a crime to possess or receive a firearm that was not registered, the prosecution was not required to prove that the defendant knew the weapon in his possession qualified as a firearm under the Act. The Court reasoned that the act – possession of rifle was not clearly dangerous, the statute should be construed as a requiring that the defendant knew the weapon in his possession was the one that must be registered, which is different from the case involving firearms like grenades, as any person would know that a grenade is inherently dangerous. 

In United States v. Zhou, A had accessed celebrities health records after he had been terminated from employment, hence he was not authorised to access those records. He was convicted under the statute which made it a crime for a person “who knowingly and in violation of statute accesses patient health information”. He was convicted and he appealed contending that neither there was evidence that he intended to use or sell the records in any manner, nor prosecution had proved that he knew that his actions violated the statute. But the court rejected his arguments holding that the only knowledge required under the statute was knowledge that the defendant was obtaining an individual record. 

Major application of strict liability crimes in the UPA is in the laws that seek to protect the children. Age of the minor is an essential element in the crimes such as sexual intercourse with a child, violation of liquor law or child pornography laws and giving or selling a minor a pistol, drugs, cigarettes, and so on. As these laws seek to protect children, many states have taken away the defence of “mistake of age”. Here defendants can’t argue that they made an honest mistake about the age of the child. Hence the State is only required to prove that defendants committed the forbidden act. In State v. Jabowski defence of honest but mistaken belief as to the age of the victim in statutory rape charge (even though the victim misrepresented her age) was not available and in State v. Fan, employing minors for nude dancing was enough for conviction and mistaken belief as to the age of the child was not available. 

In certain cases, the mistake of fact can serve as a defence to criminal liability, but in strict liability crimes, this defence of mistake is not allowed as liability depends on the doing of a forbidden act without any requirement for the state or government to prove any mental fault. In United States v. Feola, in assaulting a federal officer, the defendant was not allowed to use the honest but mistaken belief that he did not know the victim was a federal officer.

When will a court not presume mens rea

In the following circumstances, the court is likely to thwart the requirement of mens rea and apply the doctrine of strict liability. 

1. If some sections of a statute refer explicitly to a mens rea requirement and others do not, that may indicate that those sections which do not are meant to be taken to be strict liability. However, this will not be a conclusive factor.
2. The court will not only examine the statute in question, but also other statutes which cover analogues offences, in an attempt to ascertain the will of parliament. Sometimes the court may also examine the legislative history of the statute, statements of members of legislatures while debating the law (before it became law and was a bill) and reports of the committees to ascertain the mens rea requirement.
3. The court will consider the social context of the offence. If it is not intended to be ‘truly criminal’ and more in the nature of a regulatory offence then that may be a factor indicating that the offence is to be one of strict liability. Court will consider the following factors in deciding a ‘truly criminal’ offence. 
4. The severity of punishment and the level of stigma attached to conviction for that offence. 
5. Whether the offence is aimed at preventing a very serious danger. When an activity involves a potentially grave social harm, it is more likely to be an offence of strict liability.
6. Whether rendering the offence one of strict liability will assist in discouraging the activity. In Barnfather v. Islington London court held that just because strict liability will make it easier to prove and enforce will not itself be sufficient argument, but if it persuades potential defendants to change their behaviours then that would be an argument in favour of strict liability. 
7. Whether offence applies generally to members of the public at large or to those who engage in a particular kind of activity. It is less likely to be one of strict liability if the offence is addressed to members of the public at large. 

Arguments in favour strict liability offences

1. Special governmental purpose- Protection of the public:

2. It is based on protectionism or ‘social defence’ as one of the primary aims of the criminal law is the protection of fundamental social interests. Certain areas like sale of food, medical drugs and alcohol pose a risk to others, hence companies or a person which is about to engage in a potentially dangerous activity, through strict liability, we cannot just make it to take reasonable steps to prevent harm, but to do everything that it possibly can do. Imposition of strict liability and not negligence, may courage the company to pull out every step to prevent pollution. 
3. The offence is civil in nature and no proof of culpability is needed:

Here, the offence is merely a civil offence, and fine is imposed regardless of culpability, proven or presumed, in order to stimulate more careful behaviour in the future. It would follow that the matter should altogether be taken out of the criminal court and treated as an administrative matter, analogous to the imposition of penalties for the late submission of income tax returns.

4. The offence is criminal but the occurrence of result generates a convincing presumption of culpability:

Here, the element of liability need not be proven at all at trial. The occurrence of the objective event, namely marketing of impure drugs or food, raises a presumption of culpable neglect by the supervisory personnel.

5. Wrongdoer runs the risk of their conduct turning out worse than they expected. 

This can be understood from one example, if a man makes a malicious assault on another, and the victim turns out to be a public officer, the wrongdoer should be held accountable for the aggravated offence of assaulting a police officer. 

Arguments against strict liability offences

Some scholars argue that there is no evidence that the strict liability crimes are more effective than negligence-based offences in preventing harmful activities and it will be unjust to convict defendants who have acted in an entirely reasonable way but unpredictably caused harm. To convict such defendants will weaken the stigma that attaches to a criminal conviction and endangers the distinction between criminal and civil law. This will also have the effect of discouraging people from engaging in socially beneficial commercial activities. But after considering both the arguments, arguments in favour of imposing strict liability in certain offences is more stronger. 

Position of strict liability offences in India

One of the reasons why strict liability doctrine is not as developed in India as it is in the UK is, in Britain, criminal law is not contained in single code promulgated by the legislative body, but it is a conglomerate mass of rules based upon the ancient common law of England modified and extended by the authoritative decisions of the judges in the long passage of history, and vastly enlarged by the addition of statutory enactments made by parliament from time to time. On the contrary penal laws in India are exhaustively codified leaving no scope for the judiciary to go beyond statutes. 

If we examine the Indian Penal Code, 1860 (hereinafter IPC) then, chapter IV (general exception) mainly deals with matters of the existence of which negate the existence of such an intent. The definition of offences generally contains reference to evil intent so as to exclude all acts where such an intent is not present. Even where the definition is silent regarding intent, it has been held that on general principles an evil intent must be imported into the definitions of all strictly criminal offences. 

The general doctrine of mens rea is not of very great importance where, as in India, the law is codified and offences are carefully defined so as to include the mens rea in the definition itself. The definitions in the Indian penal code along with the chapter of general exceptions are perhaps sufficient to exclude all cases to which a mens rea cannot be attributed. IPC defies offences with great care and precision and the chapter in general exceptions is very comprehensive. 

If definitions of offences are analysed in IPC, they generally comprise the following principal elements: 

1. A human being, 
2. An intention on the part of such a human being to cause a certain consequence considered injurious to individuals or to society, which for the sake of brevity can be called an evil intent,
3. The act willed, 
4. The resultant evil consequence. 

As to (b)-the evil intent- it is indicted generally by the use of such words as intentionally, voluntarily, fraudulently, dishonestly, malignantly, wantonly, maliciously etc. 

But there are a few cases where the words indicating intention are not used in defining an offence. But these are either cases where the acts with their consequence are so harmful to the state or society that it has been deemed just and expedient to punish them irrespective of any intention to cause those consequences, or cases where the acts themselves are of such a character that they raise a violent presumption that whoever willed the act must have intended the consequences. Section 121 (Waging, or attempting to wage war, or abetting waging of war, against the Government of India), 124A (Sedition), 359-363 (Kidnapping and Abduction) are examples of former. While Section 232 (Counterfeiting Indian coin) is an example of later. 

Analysis of IPC crimes suggest that these crimes are traditional common law offences that deal with offences against the person, property, state and public morals. All these offences consist of specific acts of aggression that have been recognised as crimes per se or mala in se as opposed to mala prohibita. The distinction between an act that is malum in se and act that is malum in prohibitum has been fully recognised in America where crimes have been defined according to their nature into crimes mala in se and crimes mala prohibita. 

Analysis of Indian Judgements 

In J. K. Industries Ltd. vs. Chief Inspector of Factories and Boilers, the Supreme Court observed, 

“The offences under the Act (the Factory Act 1948) are not a part of general penal law but arise from the breach of a duty provided in a special beneficial social defence legislation, which creates absolute or strict liability without proof of any mens rea. The offences are strict statutory offences for which establishment of mens rea is not an essential ingredient. The omission or commission of the statutory breach is itself the offence. Similar type of offences based on the principle of strict liability, which means liability without fault or mens rea, exist[s] in many statutes relating to economic crimes as well as in laws concerning the industry, food adulteration, prevention of pollution etc…”

The finding of this case was approved in the recent decision of Hemant Madhusudan Nerurkar vs. State of Jharkhand. 

In Union of India vs. M/s Ganesh the court recognized three exceptions of mens rea liability i.e. all cases of public nuisance; acts not criminal in the real sense but prohibited in the public interest; and civil rights enforced through criminal law. The very strong public interest clubbed with a comparatively moderate penalty justifies extending criminal responsibility to cases where there is no mens rea.

Indian Courts have held that mens rea is an integral part of the definition of crime, hence whenever there is no specific mention of it, courts presume its requirement unless a statute expressly or by necessary implication exclude mens rea. 

Indian courts have justified the non-requirement of mens rea on the grounds that many of the Acts impose only payment of fines as punishment or even if imprisonment is provided, very rarely do courts award it and conviction under public welfare offences does not attach to itself the same kind of social stigma and damage to reputation that conviction under IPC would attract. 

General trend is seen that modern legislative bodies often choose not to create “true” crimes, especially in the areas of traffic, liquor, purity of food, hunting, and narcotic offences, but rather to enact statutes that do not require any proof of mens rea, as it is legislature’s interest in promoting public safety that justifies strict regulation of acts that threaten that public safety. India also seems to follow that path. Professor Jerome Hall has rightly preferred to call strict liability offences as offences relating to ‘economic law’ or ‘administrative regulations’, instead of penal offences.

Conclusion

It has always been prerogative of the legislature to make laws, which includes the power to define what constitutes a crime and what are the elements of a particular crime. In defining crime, the legislature is competent to legislate in respect of a particular crime to omit the essential requirement of mens rea. But many of the enacted legislation neither mention that the mens rea is not an essential element of the offence concerned nor does it state that mens rea is an essential ingredient of the crime. This silence makes the role of judicial interpretation more crucial and this has led to the creation of judge-made law resulting in confusion and contradiction when offences are interpreted by various High Court in India differently. The fact that the defendant can be convicted without proof of his mens rea does not infringe the right to a fair trial. As strict liability has the potential to create injustice and operate harshly, it is rightly said that the doctrine of strict liability is a dangerous instrumentality that should be handled with utmost care. 

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This article is written by Shubhang Gupta, pursuing a Diploma in Cyber Law, Fintech Regulations and Technology Contracts from Lawsikho.com. Here he discusses “How should privacy policy and terms & conditions be amended post-GDPR?”.

What is General Data Protection Regulations?

General Data Protection Regulations are guidelines, which are enacted to protect the personal data of persons (whether natural or artificial) located in the European countries. These regulations are implemented by the European Union, which have effect from 23^rd May 2018. These regulations consist of different components like- duties of controller and processors, the establishment of superior authority, fines and Penalties etc. this Regulation is enforced to curb the hands of big corporations, who were putting on the private rights of the people. These regulations had put a strong impact on the collection of personal data been collected by these big Corporations. This data are put to use by this corporation to manipulate the people’s decision and psychological thinking. This resulted in grave destruction to mankind, so it becomes most important to come up with a strict law regulating the functioning of such big Corporations. These regulations also include penalty and fines as its core element. This allows the EU to impose a heavy fine upon any party violating the terms of the regulations. This is the first and major step taken against the protection of personal data. This law had a long way to go in terms of its acceptability and practicality by the big market forces.

Certain principles related to the processing to be followed by an organisation

An organisation should follow certain principles during the processing of personal data of the data subject. This includes, the processing of personal data should be processed lawfully, fairly and with transparency. The data should be processed which is adequate, relevant and limited to what is necessary for relation to the purpose for which such data are processed. The processing shall be lawful only if at least one condition mentioned under the regulations is followed, which as follows:

• The data subject has given consent to the processing of his/her personal data;
• Processing is necessary for the compliance with a legal obligation to which the controller is subject to;
• Processing is necessary in order to protect the vital interests of the data subject & so on.

There are some conditions mentioned under the regulations which are related with the consent of the data subjects. There is a responsibility of the data controller to demonstrate that the data subject has consented to the processing of his/her personal data. If the data subject had given written consent for the processing of personal data concerning other matters, then the matter shall be presented in a manner which distinguishes from the other matters.

Some principles of the regulations are related to the conditions applicable to the child’s consent in relation to his/her personal data been processed. In this, the age of such child shall be at least 16 years old. In case he/she is below 16 years old the consent shall be given by a holder of parental responsibility for the child.

Under the regulation, there are restrictions on the processing of personal data on several grounds like: data relating to racial or ethnic origin, political opinion, religious or philosophical beliefs, or trade membership etc. the concerned provision also states provisos relating to prohibition on the processing of personal data.     

Rights of the Data Subjects

The regulation also defines the certain rights of the data subjects. This empowers the data subjects to control and could practice appropriate right to defend against the improper use of his/her personal data. These rights include: Right of access by the data subject, this empowers a data subject to obtain the information from the controller. This right includes the purpose of the processing, the categories of personal data concerned etc.

The other right is right to rectification. This deals with the right of the data subject to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. This also provides a right to have completed personal data completed.

The other right under the regulation is right to erasure. This right can be practised under the following situations:

• When the personal data is no longer necessary against the purpose for which it had been collected.
• When the personal data have been unlawfully processed & so on.

The regulation also mentions the right to restriction of the processing. This deals with the restrictions that could be imposed on the processing of personal data of the data subjects. This provision includes such grounds like the accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data.

It is also mandatory for the data controller to notify all recipients about the rectification or erasure of personal data or restriction of processing of data has been disclosed. If it is impossible or disproportionate to the data controller to notify such recipient of the above-mentioned process, then the controller could not be liable for any infringement of the regulations.

The data subjects now have a right to port their personal data, which had been given to the data controller with his/ her consent, to other data controller without facing any hindrance in the process. The former data controller could not bar the data subject from porting their data to the other data controller where it is technically feasible.

This right could not be used in cases where A) processing is necessary for the performance of a task carried out in the public interest, or B) in the exercise of official authority vested in the controller.

Responsibility of the data controller

Under Article 24 of the GDPR, the data controller has the crucial responsibility to implement appropriate technical and organisational measures to ensure and to be able to show that processing is performed in accordance with this regulation. This Article shifts the onus on the Data controller to apply such a technical mechanism to secure the processing of the personal data. Article 25 of the regulation is the extended part of the Article 24 of the regulation. This article states the required steps to be taken for the compliance of the regulations by the data controller. The provision clearly states that the controller shall implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data- protection principles in an effective manner and to integrate the necessary safeguards into the processing of personal data in order to meet the requirements of the GDPR and to protect the rights of data subjects.

Appoint the representatives of controllers or processors in the union

Under the regulations, it is mandatory for the enterprises or corporations to designate the representatives of data controller or processors if not established in the European Union. This means that there should be a representative in one of the member states where the data subjects whose personal data are processed in co-relation to the offering of goods or services to them, or whose behaviour is monitored by such Corporations. The representative shall authorize by the controller or processor to be addressed in addition to or instead of the controller and processor in front of supervisory authorities and data subjects, on all issues related to processing, for the purpose of ensuring compliance with the GDPR. 

Maintenance of Records relating to the processing of data 

Under the regulations, it is mandatory for the data controller or controller’s representative or processor or processor’s representative to maintain a record of processing of personal data of the data subject. This provision includes the complete information regarding the processing of data like name and contact details of the controller, purpose of the data processing the description of the categories of data subjects, etc. These conditions are also applicable, where the data processor is involved in data processing.

Designation of Data Protection officer

Under the regulation, it is mandatory for all the organisations involved in data processing of the mentioned organisation such as processing carried out by a public authority or body, except for courts acting in their judicial capacity and so on. The articles 37 to 39 deals with the designation, power, and task shall be carried out by the data protection officer. The designation of data protection officer is mandatory and this plays an important role in securing the safety of the data during the processing carried by the data controller or processor. The data protection officer shall be supported and provided with all required things by the data controller or processor, which is necessary to carry out its duty. The task of such officer includes: to inform and advise the controller or the processor and the other employees who carry out the processing of their obligation pursuant to the GDPR and also to cooperate with the supervisory authority.

Regulate the transferring of personal data to third countries or International organisation

The GDPR regulates transferring the personal data of any data subject of the European Union to third countries. This provision is stretched from Article 44 to 50 under the regulation. This provision has mentioned articles which deal with: general principle for transfers, transfers on the basis of an adequacy decision, transfer subject to appropriate safeguards etc. The main rationale behind the implementation of this provision is to secure the personal data of the data subjects to be used by any organisation or institution outside the union in any manner which could be against the security and integrity of the union.

Penalties for the infringement of the regulation

Any person or organisation who has infringed the conditions mentioned under the regulation shall be subjected to the penalties stated under the regulation. The penalty imposed under the regulation is heavy, which makes its strict implementation and acceptability by the organisation and institutions. The administrative fines are stated under Article 83 whereas penalty is stated under Article 84 of the regulations.

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

The post How should privacy policy and terms & conditions be amended post-GDPR? appeared first on iPleaders.

This article is written by Ramanuj Mukherjee, CEO, LawSikho With inputs from Suman Chatterjee, Team LawSikho.

At LawSikho, we have developed a TWO pronged strategy that can help us not only survive this COVID-19 lockdown crisis but also help us, and of course, you, to come out stronger. 

Your career and finance do not have to go for a toss, provided you work on things that are still in your control, if you keep your eyes on the prize, and definitely, work your ass off to beat the odds.

We have taken our marketing, sales, community activities and product launches to an altogether different level, despite all the obvious challenges. 

We are putting in more hours at work, and focusing our energy in an ever sharper way on a crystal clear strategy.

And we know we will come out stronger and more resilient out of this crisis. 

We have to survive now, but that’s not all we are aiming at. We know this is an opportunity to do things that ensure that we thrive, now and afterwards.  

I am going to give you that strategy too.

And I believe, this unique strategy will definitely help you tackle this crisis powerfully, as a solo legal practitioner or a legal business owner, working in a law firm or a company as in-house counsel or a legal professional looking for excellence in your career. 

But before I share it with you, is there anyone out there who still thinks that this will get over soon and you will come out of it without any scratches and bruises? 

You are wrong, very WRONG, I am afraid! 

I am mostly a positive person. But being positive does not mean burying your head in the sand. 

You need to be realistic about what is going on right now. Your optimism is required to register and comprehend the risks and survive contact with reality.

Otherwise, optimism alone is of little use.

Things have gotten out of hand now. Even as we continue to work from home and try to adapt to this new situation that we are in, let’s first accept the fact that… 

COVID-19 is reshaping the world as we know!

I know you are already thinking about it: will there be a recession now, at the heels of the Corona crisis?

As per the UN Trade Agency, COVID-19 is likely to cost the global economy $1 trillion in 2020, if not more. 

Major countries that are being hit by the coronavirus outbreak are already facing another crisis: Recession. 

With businesses shutting down, production stoppage, trade dropping to nil, rampant job losses and sudden inflation, the economic situation is not looking that favourable anymore.

IMF Chief Kristalina Georgieva recently said that the outlook for 2020 “is negative — a recession at least as bad as during the global financial crisis or worse.” 

She pointed out that while the world economy growth rate fell as low as 0.6 per cent in 2009, India and China were still growing at a rapid rate which made numbers look better. 

Moody’s Analytics said, “A global recession is likely if COVID-19 becomes a pandemic.”  And now Covid is such a big pandemic that we have run out of vocabulary to describe it.

However, the COVID-19 crisis is different and is all set to cause global economic and human carnage. 

This will affect our economy as well. The lockdown is wreaking havoc on the Indian market already.

It is not just a recession, a lockdown means the economy is totally shut down! When it is restarted, how long will things take to even become functional?

That’s a different question. Let’s not get into that at the moment. Let’s talk about the legal industry.

What is happening with the legal industry? What can we expect in days to come?

Lawyers are in a weird place!

LawSikho’s COO and Co-founder Abyuday has already shared his early views on this. 

We will tell you more today.

The good thing about the legal industry is that it is not actually shut down. 

Lawyers can continue to do some of their work from home.

While going to court is mostly out of the question unless you have some truly super urgent matter, you can still do advisory work, you can do online arbitration if the arbitrators are willing to continue in a video-conferencing mode,  and you can continue to draft or negotiate contracts.

One may argue that it is possible even to do legal due diligence through a virtual data room in such situations. 

However, most deals are stuck or have been falling through as the uncertainty in the air makes businesses and investors take a pause.

Even the police are trying to refuse complaints saying that courts are closed! And that means people have to approach lawyers to get complaints lodged in urgent and serious matters.

While all such work can be done, where is a lot of opportunities being created?

As usual, every crisis creates work for lawyers. In the short term, medium term as well as long term. 

What are the areas where work will be created in the coming months?

Contract review and advisory

In-house counsels are super busy right now going through major contracts and trying to understand the impact of the current situation. Many of these contracts may cause future liability and disputes. 

They are trying to assess how to salvage the situation, and in some cases renegotiating contracts.

This is a great time to renegotiate contracts and even terminate some. If nothing else, they may need to give notice of anticipatory breach, or just advice to board on the future course of action.

They are also instructing law firms in some complicated high-value cases. 

Most SMEs and startups do not have in-house counsels. They are going to rely on their outside lawyers to figure this out. Many of them may not even realise that they need such services.

It is high time you should start educating and counselling them about their legal options if these people are your potential clients. Do not try to make a quick buck here though, it is time to build deep and meaningful relationships, so if you have to go pro-bono or low-bono, a great time to do so. 

It would help you a great deal later on. Relationships make or break law practices. 

Approach your local trade associations or startups you know. Offer to help them in these difficult times. 

Urgent arbitration

There are many urgent arbitration matters that may be pursued, even if for the sake of an urgent relief. Some arbitrators are willing to hear these matters over video-conferencing. 

There are others who are holding regular hearings. Most arbitration institutions have taken a pause and are not operating. Some of them could be expected to open up in a virtual mode in weeks ahead. 

Negotiation and Mediation

There are a lot of breached contracts that need to be renegotiated and disputes that need to be mediated. Everyone wants to avoid going to court because litigation is lengthy and costly. Some lawyers can help to sort out these matters out of court. 

In these uncertain times, businesses are ready to make some compromises for a quick resolution.  

There are businesses that have cash flow issues and are not able to pay their dues. But they may be able to satisfy the creditors through some mechanisms about future payment, or just be able to pay up if terms are altered. 

Lawyers will have a lot of work to do on such matters. 

Arbitration and Litigation

Finally, and inevitably, there would be plenty of disputes in the long run that will have to go to court. Declaration of Covid as a natural calamity is not going to mean that nobody will take counterparties to court for various kinds of breaches and non-performance or deficiency in performance. 

A lot of litigation may happen through virtual courts in the near future, making it even better for the younger and tech-savvy lawyers. 

Filing, registry etc are definitely going to see a digital overhaul, and we can’t wait for it. Really overdue!

Insolvency and bankruptcy

Of course, some businesses will become insolvent temporarily, despite having a solid business model, while some others with weaker business models will go bankrupt. There would be plenty of work at NCLT for lawyers who specialise in insolvency and bankruptcy laws. 

Fundraising

Dealmaking is not going away at all. Many companies with great balance sheets will now need a cash infusion, either in the form of debt or equity.

There are plenty of companies supplying to the healthcare industry or working for healthcare or other essential services that are making a killing in this situation. They will raise money, as debt most probably, to expand capacity. 

There are tech and online media companies that are doing extremely well as well. Same for e-commerce companies. We may see many of these raising equity or debt funding in a matter of weeks or months. 

This is good news for both investment lawyers as well as banking and finance lawyers who negotiate loan agreements and prepare securitization documents. You will be doing deals working from home. 

M&A and consolidation

Lots of companies will become unviable or unprofitable and will be scooped up. We are already hearing about how Chinese investors have been buying Italian companies available in a fire sale in the stock market. 

It may be good for these companies because deep-pocketed new investors will be able to make investments that are needed to tide over the current debacle. 

But yeah, we are likely to see a lot of distress selling and consolidation in the market, again making the M&A lawyers very busy.

Employment law and data privacy

One obvious thing is that many people are getting fired, while others are being put under stringent pay cuts. What are they going to do? 

Companies are seeking advice from their lawyers, so are the employees.

Some employers are employing devious methods to deprive employees of their benefits. 

Others are simply falling short because they do not have the resources to comply with employment law mandates.

Some companies are asking employees to use screen recording and productivity tracking software that takes a screenshot of their laptop every 5 minutes to check if they are working and track the activity on their phone to ensure that they are not wasting their time while on their employer’s clock. 

We can expect some moderate legal activity around these issues in the upcoming months. 

Also, how can I forget? 

Working from home, aren’t we? That makes our data privacy policies require a fresh look. Are we remaining compliant with stringent data protection requirements?

Also, some other policies like customer contact, social media usage, allowances etc policies may merit a relook in these unprecedented circumstances. 

Greenfield projects and brownfield projects

This is a bit more long term. 

After Covid is over, if government policies favour, many global MNCs would want to set up manufacturing bases in India in order to deleverage and diversify away from China, as, after Covid, it will be a top priority for them to develop alternative supply chains outside China.

If India can provide a stable economic environment and investor-friendly policies, India is likely to become a destination of choice for such MNCs because of the large local market. 

Apart from new greenfield projects to set up factories, there will be investments made to beef up local existing production capacity (brownfield projects)  by public and private investors as relying too much on China has become a very big strategic risk.

Recovery matters

Lots of people will fall behind in payments. Some loans and dues will be negotiated, restructured and others will be in litigation. Money recovery lawyers will have lots of work in months to come, ranging from Debt Recovery Tribunal, SARFAESI, forensic investigation for debt recovery, civil and criminal litigation, check bounce cases, and a lot more. Eventually, insolvency and bankruptcy as well, if the claim is above 1 crore. 

Four industries about to get reinvented

SaaS businesses, since they are digital in nature, would continue to grow over the next few years. The lower the need of face-to-face interaction, the better the future prospects of digital businesses. Digital transformation will get a fresh new push. Tech lawyers, gear up because tech business is going to scale new heights in short to medium term. If you don’t want to miss out on the action, start with this one month very short course: https://lawsikho.com/course/certificate-course-in-technology-contracts

If you want to jump in with both feet, then see this one: https://lawsikho.com/course/diploma-cyber-law-fintech-technology-contracts

Supply chain industry will gradually become more matured and primed to face any future threat, global or not. In India, logistics companies are struggling to operate in present COVID-19 conditions. Once this crisis period is over, they would go through a complete overhaul.

The post-coronavirus healthcare industry is going to be radically different from the pre-coronavirus industry. 

Compliance process will get stricter, huge investments will start flowing in and new businesses will start popping up as well. So, with the rise in corporate activity, you can say that there will be a lot of demand for corporate lawyers in this sector. 

Finally, the media and entertainment industry will have to reinvent itself too. Businesses that relied more on in-location entertainment and events will venture more into digital media and entertainment space to deleverage risk. Digital media and entertainment are likely to see a massive boom, new entrants and a huge demand for fresh content. All of this would keep media and entertainment lawyers busier than ever. 

So does that mean all will be hunky-dory for lawyers?

Not at all. The short term and medium term looks increasingly bleak for a lot of lawyers. 

During the 2008-9 recession, we saw well-established pricing norms of top law firms giving way, as clients invented new ways to cut costs. 

Things never returned to the heydays of pre-2008 hourly billing and charging for the interns coffee ever again. 

Several things happened. Corporate India and even foreign clients found out that they can push law firms on the price a lot and that there are lots of good firms that will compete with each other for the same piece of work. 

They also realised that they can cut costs to a great extent by hiring the law firm associates and partners on their own payroll rather than paying the law firm and that it makes great economic sense.

And they also became willing to work with relatively new firms with lack of pedigree but a lot of willingness to push the envelope hard in order to win a client. 

Big law firms did find other ways to survive and thrive, but they have never grown at the same breakneck speed ever again. From a time when law firms doubled partner count every year, we came to a time when the partnership size doesn’t grow by even 10% a year.

There was a time when law firms used to talk about building 1000+ lawyer giant firms in pre-2008 recession days. Haven’t heard anyone talk about that in the last decade.

However, that recession made it easier for new law firms in the transaction space and fresh faces in litigation. Because clients became more willing to take a risk, looked for a bang on their buck. 

A crisis like COVID-19, or a recession, essentially accelerates the future. The incumbents on a rent-seeking mode suffer, while the upstarts with ambition, hard work, and preparedness get an opportunity for a coup d’etat. 

What will happen this time around?

History would repeat itself.

Those who have invested already in networking, knowledge in the upcoming areas highlighted above, built a brand and worked the field, will now stand to gain immensely while incumbency will find it hard to keep things the way they used to be.

They would have to reimagine and reinvent themselves too if they are to survive. And given that many of them are run by smart, agile leaders with great foresight, some of them will even adjust their sails and thrive. 

Hubris, of course, and change-blindness caused by ego will cause massive losses in an environment like this because the moats the incumbents thought they have built around their business models is shrinking fast. 

If you are a young lawyer or independent practitioner, how can you survive and thrive?

I hope you have been investing in your own intellectual growth, branding and professional network, engaged with potential clients with a sound business development strategy, and developed skills that would now become the talk of the law town.

If you didn’t then today may be a good day to start. 

You must have heard the popular Chinese proverb: 

“The best time to plant a tree was 20 years ago. The second best time is now.”

You are probably sitting at home watching Netflix and scrolling through Instagram and LinkedIn anyway. What about making it productive? 

Please check out some of our lawsikho.com courses where we train hundreds of lawyers every month to deal with this environment and skills that would carry you through these hard times. 

All that’s fine but how can I get more clients in this lockdown?

For one, getting new clients the old, traditional way is already out of question. You can’t go for meetings, you can’t meet them at conferences, you can’t call them to your parties. You can’t even meet them over golf if that was your thing. You can’t even do ambulance-chasing anymore, or stalk people in the court compound to see if they will give you a matter.

Then again, existing clients will try to squeeze as much work for as little money as possible. 

Many clients are so cash strapped that they may want you to do work now and get paid later, with indefinite delay.

In fact, even that is something many lawyers are ready to put up with because they are sitting at home, with no ongoing work at all. 

Getting internships and jobs will get trickier where employers would want experienced and skilled lawyers in their team — because now more than ever they have no resources, patience or time to train juniors especially when they may have to work from home for the next few months.

To rise out of this as a phoenix, you need to get creative. Need help with ideas? Read below.

How to get out of this crisis stronger than ever?

First things first, the only way to take care of such black swan events is to prepare your battle strategy beforehand. 

How can you strengthen the immune system of your legal practice or your legal career?

We know there are three vitamins that help to boost your immunity in this context – upskilling, networking, building a brand.

You must have extraordinary skills. That can be developed.

And then people need to know that you have great skills and you have a track record of producing results. That can be developed too.

Finally, you need to have relationships – people who want to see you succeed. Those can be developed too.

If you work on these things, you will find that you are beating your own expectations, and the market by a huge margin. 

To let you sail smoothly through the rough times ahead.

This is the strategy we followed too. Since last August, we have been preparing for a recession. We didn’t know when and how it would hit, but we started preparing.

Can’t believe me? Here is what I wrote in May 2019: https://blog.ipleaders.in/how-to-prepare-for-a-recession-proof-life-and-career/

Then we saw the economy slowing down further and wrote this in August: https://blog.ipleaders.in/impact-of-economic-slowdown-on-legal-market-what-are-the-areas-of-law-practice-that-will-get-hot-as-the-economy-is-slowing-down/

And finally, in September, I told our LawSikho community how to use the chaos of the economic slowdown as a ladder: https://blog.ipleaders.in/impact-of-economic-slowdown-on-legal-market-what-are-the-areas-of-law-practice-that-will-get-hot-as-the-economy-is-slowing-down/

And I was not only preaching, but I was also steadying the ship and bracing for an economic shock. So what did I do?

Firstly, we launched lots of courses that are recession-proof. For this, we focused a great deal in litigation. Especially courses like NCLT litigation, IBC, SAT litigation, civil litigation, trademark litigation were launched because we knew these will prepare our students for a changed economic environment. 

We also launched courses and beefed up content for industries like media and tech which are least likely to be affected by a recession.

We even realised that when such a recession happens, many lawyers would decide that they want the security of a government job, so we hired a top-notch team to launch courses like judiciary training and courses that will help our students to crack other exams too.

Click Above

So you can trust us that we were not shocked or caught unprepared when the COVID-19 shock happened. We are not only going to survive but thrive.

Yes, we take the same medicine that we prescribe to you.

It is important to see where the market is headed and prepare.

There are lots of things that are uncertain, don’t focus on them. There are lots of things outside your control, stop thinking about them.

There are some things that are certain. Such as, COVID-19 will disappear at some point and we will have to rebuild the world. Will you be leading the charge, or will you be in the last row, struggling to keep up?

There are some things in your control, starting with how you see this challenge.

It is a test. If you rise to the occasion, you move up a few levels. 

Focus on what is in your control. 

Prepare. Prepare. Prepare.

Focus on developing new skills. What new skills should you learn? Want our help? Call us. Here is the number: 011 4084 5203.

Focus on networking and relationship building. Help people and clients to tide over their difficulties using your skill. Do lots of pro bono and low bono work now, this opportunity won’t come back. If you help clients in their distress, they will remember you forever. 

Develop your brand. Heavily rely on online content for that. Make videos, post on youtube and Facebook. Livestream on Twitter and Instagram. Write articles and publish in Livelaw, iPleaders blog and LinkedIn. 

Once again, the tide will turn in some time, and we don’t know when, but it will. You can change the direction of your career with how you use this time. Take decisive action now. 

NOTE: All of these are necessary for you to survive during this COVID-19 period and essential for you to build a long-term brand and customer loyalty.

Say yes to the work-from-home culture. 

If you think you would shift to the old arrangement of ‘get your ass inside the office by 10 am’ once COVID-19 shutdown is lifted, think again. 

In a 2-year Stanford study, work-from-home culture resulted in shorter breaks, lower sick days, higher productivity and improvement in attrition rate by 50 per cent. Even an Airtasker survey states that remote workers worked 1.4 more days per month than office goers. 

This COVID-19 crisis has shown that work-from-home culture is possible and it might even result in higher productivity in most cases. Perhaps, it would be wise to integrate it permanently in your workplace. 

Most importantly, the fear of spreading of the virus will remain even after lockdown is lifted, as the virus will take a long time to disappear. 

Be prepared to work from home, run your business from home, and get clients working from home.

You have to run your teams from home too. It is possible. Find the software that can help you to do it. Find how you and your team can be more productive from home. 

Build your digital presence for good. 

The concept of building a digital presence is alien to most legal professionals and lawyers. Most of them do NOT have a website and for those who do, it seems like that website was created way back in the 1990s. Please make a sleek, professional website that helps you to convert more clients!

Not only that, but you must also work on optimizing your website for the search engines, prepare a full-fledged social media marketing plan and utilize video marketing to its fullest potential. 

Too busy? Too bad. 

We teach you how to grow your legal practice ethically in the digital age in our legal practice development and management course. Check it out. 

NEED HELP? Talk to our experts by calling at 011 4084 5203 or replying with “Hi, need help with digital marketing strategy.” to this email. 

Ready your virtual avatar. 

The world is going digital, no doubt about that. If you want to survive and thrive in this new world, you have to visualize your business in a new, virtual light. 

You are wont to working in a physical environment, interacting face-to-face with counsels, juniors, clients or members of other departments. But what are you going to do now?

Adopt a knowledge management system (KMS) to better align your business processes, whether you are a one-man army or you manage a team. You can use Slack for team interaction and collaboration, any Kanban Board for project management, and Time Doctor for remote monitoring. 

Digitalize those services like contract drafting and management that can be turned into a digital format whereby you can cater to clients online.

You can run webinars and do your client meetings on video conferencing software like Zoom or GotoMeeting. 

Instead of diaries or notepads, why not Evernote on your phone? 

What I am trying to say is that the more virtually ready you are, the better you will be able to cater to your clients, both offline and online.

Embrace online education. 

Universities are built for the benefit of faculties, not students. 

Let that sink in.

I read that somewhere and it’s so true. 

With massive fees that put people under debt for life just to get a degree, outdated curriculum, out-of-touch faculty and almost zero practical training, I would go as far as to say that traditional education is useless to meet today’s market requirements. 

In India, for example, only two law schools made it to QS rankings – one was Jindal Global Law School, in the 100-150 bracket, and NLS Bangalore, in the 150-200 bracket. And you can see why!

NLUs are rent-seeking institutions which have engaged in no innovation for decades. They just lived in the reflected glory while the brand was diluted to death by opening dozens of new NLUs in every state. 

It took a JGLS only a decade to convincingly trump all these hallowed NLUs that gloated too much and did too little work. 

Needless to say, online initiatives like LawSikho (for lawyers and legal professionals), Simplilearn, Upgrad, Toppr and Imarticus are doing a much better job to help students and professionals upskill themselves continuously and even beat industry expectations which have been set very low by the terrible performance of bloated traditional educational institutions. 

I can challenge you today that you will find it very hard to find a law school with the depth and breadth of courses that we offer, and the success we deliver to our learners while charging a fraction of what law schools charge, and taking up far less of their time.

And we can proudly say that we offer the most advanced legal courses I have seen offered anywhere in the world. It may sound like a crazy claim today, but we are at it, and we will be recognized for it in the years to come. It is only a matter of time!

If you want to keep pace with the latest industry developments and increase your employability in the next few months, online learning is the way to go. 

If you are running a team and finding it hard to find the time and resources to train your juniors or trainees, give online education a shot. We have worked with fantastic law firms and leading corporations and delivered amazing results. 

Why not just sponsor their subscription to such online education programs that will take over the huge responsibility of regularly updating course materials, keeping track of a student’s progress, conducting tests, providing practical insights by industry experts, and so on? Many of our corporate clients do the same for their own staff. 

It helps them a lot.

And you still have time to book expenses before the financial year ends.

If you want a quick discussion about this, do not hesitate to talk to our career counselling experts by calling at 011 4084 5203 or comment below with “Hi, I am thinking of investing in my team’s training” to this email.

Adopt a value-oriented marketing approach. 

Now, I am going to share a little secret right from the boiler room of LawSikho. I will first tell you what we normally believe in and practise, and how it perfectly ties in with the current economic situation. 

We, at LawSikho, make it a point to never, never and NEVER start any interaction with anyone by selling our courses to them. 

Our focus has always been on helping lawyers and legal professionals (like you) achieve their dream goal. So we start by adding value to them, giving away stuff for free, engaging in a conversation that helps them to visualize their future, find ways when they are struggling to find a direction, give them new ideas, critical information and action for opening. 

At some point, they realise that our courses can help them on their journey. And they buy.

There is a point where we have added enough value to them, and they feel so. This is the sweet spot, where we need to hesitate to ask them to try out a course from us and explain how such a course can align with their ultimate goal.

If our course helps them to get what they want, we are very happy. 

If they don’t want it yet, we will still root for your success. 

For us, there are only two kinds of people: those who have done a LawSikho course yet, and those who will do it in future. We are not anxious to sell to someone right now.

The fundamental ideology behind LawSikho is “provide value first and as much as possible, and everything else comes later.”

Starting from the founders to our admin executive, every one of us follows this motto. 

So what?

You see, this has become a must-have quality for every professional and business owner in current economic conditions. 

We interact with hundreds of law students and professionals every day, and I can tell you personally that many are worried like hell right now. 

How long will this drastic lockdown last? What will happen once this crisis period is over? What should they do next? 

Why should they trust you in these uncertain times?

I will tell you that this occurs all the more when people are interacting from behind their computer screens or their phones. They would find it hard to trust you. They would find it hard to understand your point of view, howsoever right it might be. 

If you are operating in a digital world, this is going to be the norm. The only solution to deal with this is to stop “selling” altogether and instead focus on providing value and building trust, and preferably a relationship first. 

Chat with your prospective clients, share valuable content with them, help them in their journey, participate in online discussions and always try to help them. Business will roll in. 

Invest in your career or your business. 

At the cost of repetition, keep working on yourself relentlessly. 

While you would probably have been doing it even in the pre-coronavirus times, but this has become extremely important now. Time to double down and put what you have into this. 

Be scared where everyone is greedy, and be greedy when everyone is scared. 

This is the time to buy stocks. This is also a great time to invest in yourself.

Flexibility. Efficiency. Competitiveness.

These three words matter a lot now. 

While the rest of the world is panicking or chilling out on their sofas, you can use this free time to upskill yourself for what’s going to come next.

Turn this crisis into your turning point. You would come out stronger and more resilient than ever. 

To survive and thrive, you would have to grow out of your self-pity and survivor mindset. You have to look for opportunities in this whole ordeal. 

Talk to you soon.

To your success.

P. S. LawSikho is running hour-long webinars every day. Want to learn how to improve your learning skills? Prepare an LLM application to a foreign university? Career opportunities in new, upcoming areas of law? Don’t miss these high-quality webinars with industry and academic experts. Join our WhatsApp group to get instant updates on your phone.

P. P. S. Till 31st March 2020, you can enrol in your favourite course at its current pricing. From 1st April, the fees of all LawSikho courses are due to increase without further delay. Do note that we have enrolment for ALL courses available on our portal for the next few days, so that anyone who wants to enrol at the current pricing may do so. Even if you want to pursue the course, later on, it makes sense to book your slot today. 

Following are the courses for which enrolment closes in 2 days:

DIPLOMA

Diploma in Companies Act, Corporate Governance and SEBI Regulations

Diploma in Business Laws for In-House Counsels

EXECUTIVE CERTIFICATE COURSES

Certificate Course In Technology Contracts

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

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Arbitration: Strategy, Procedure and Drafting

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Trademark Licensing, Prosecution and Litigation

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

P. P. P. S. All our premium courses are covered by a 30-days full money-back guarantee. Don’t hesitate and try our courses 100% risk-free.

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

The post How to ‘Survive + Thrive’ in this Lockdown appeared first on iPleaders.

This article has been written by Abhinav Anand, a student pursuing B.A. LL.B(H) from DSNLU, Vishakhapatnam.

Introduction

Bank Slip is used by the customers to deposit money to their bank account with the help of cheques and cash. The Bank slip is provided by the bank to the customers as acknowledgement in pursuance of their deposit. The customer can enquire about their previous deposit with the bank by showing their bank slips. The banking system of our country has grown immensely in the digital era, so now the old method of written bank slip is replaced with electronic bank slips. The customer can avail the opportunity of depositing the money with the help of the electronic depositing machine. The bank slip envisages every minute detail so that the particular transaction can be traced by the banks or customer any time, if any conflict arises regarding that transaction.

Different types of Bank slip’s

• DEPOSIT SLIP- The Deposit Slip is a form issued by the bank to the customer for depositing money in their bank account. The deposit slip categorically provides minute detail regarding the deposition of money with the bank. The deposit slip is provided a number after being filled and that number is recorded in the bank registers. The deposit slip provides for the categorical mention of notes of various denominations and the time and date of deposition and also the contact details of the depositor.
• WITHDRAWAL SLIP- The Withdrawal Slip is issued by the bank to the customer for withdrawal of money from their bank account. The withdrawal slip varies from bank to bank. The common rule associated with withdrawal slip is that the customer is allowed to withdraw money from their home branch or the branch where they opened their account. The bank has made stern regulation regarding withdrawal of money from customers’ bank accounts. The bank wants the account holders to be present in person for the withdrawal in order to ensure that the amount is withdrawn by the original person. The bank is meticulous while matching the signature of the customer from the previous signature in order to satisfy themselves as the account holder is one who has withdrawn the amount.
• CHEQUE- The Cheque is a negotiable instrument asking the bank to provide the money from the drawer’s account, written on a printed form. The Cheque is signed by the drawee as per the direction of the respective bank. The cross check of the signature is done by the bank officials then only the money is given to the payee. The withdrawal from the cheque involves three parties: i) cheque drawer ii) drawee iii) payee.
• Demand Draft- The Demand Draft is a pre- paid instrument. The bank which issues the demand draft undertakes the responsibility to pay the amount mentioned in it. The demand has lost its prominence because of the innovative methods of transfer like real Time Gross Settlement (RTGS) and National Electronic Fund Transfer (NEFT). But, still the demand draft is in practice for purposes like examination fees, admission in different institutions etc. The bank levies a certain amount of charge to the customer for making the demand draft. The validity of the demand draft is for 6 months. The property that makes the demand draft different from cheques is that it cannot be dishonoured.

Relevant provisions of Negotiable Instrument Act for Bank Slips

Section 146 of Negotiable Instrument Act, 1881 provides for the following:

Bank’s slip prima facie evidence of certain facts.—”The Court shall, in respect of every proceeding under this Chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.”

The abovementioned section means that whenever the bank produces any slip or memo with the official mark regarding the dishonour of the cheque the fact becomes a proof unless it is disproved.

Cases

Baban Motiramji Mohod vs. State of Maharashtra & Ors. 

The Court in its judgment held that the perusal of section 146 of negotiable instrument act, 1881 says that the bank slip or memo having an official mark indicates that the cheque is dishonoured and it is proved by the production of the bank slip or memo in the court. The Bank Slip produced becomes an admissible evidence unless and until, the contrary is proved. In this case, the court has favoured the accused by transferring the case to Nagpur as it will favour every party incidental to this case. 

India Cements Investments Services Limited vs T. P. Nallusamy 

The case deals with the derivative contract entered by the parties for the purchase of shares. The cheques were issued to the appellant to cushion the deficit which may arise due to the fall in the prices of the shares. The court looked into the issue of whether the cheque was given as security and it has legal enforceability. The lower court has emphasised on the section 146 of negotiable instrument act and held the respondent liable as the ingredient of liability was decided. The appellate court in this decision held that the lower court has hastily concluded the case without looking into the matter meticulously, so the appellate court set aside the matter and sent the case for reconsideration to the lower court.

Smt. Sudha M. K vs Sri. Lokesh Dayananda 

The Court has led emphasis on section 146 of the negotiable instrument act while deciding the issue raised in the favour of the accused. The court envisaged that the pertinent contention was not satisfied by the accused with relation to section 146 of negotiable instrument act. The accused has miserably failed to disprove the presumption factor inherent to the section 146 of the negotiable instrument act, 1881. The court held the accused liable under section 138 of the negotiable instrument act. 

P. Srinivas vs M. Mani Ratnam 

The court finds it relevant for meticulous study of the section 146 in the case so as to find the liability, if any, arises or shifts by doing the same. The section 146 of negotiable instrument act says that Bank’s slip prima facie evidence of certain facts: The Court shall, in respect of every proceeding under this Chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour or such cheque, unless and until such fact is disproved. The court after perusal noted that the accused has failed to disprove the inherent presumption factor inherent to this section. Hence, the court noted that the complainant has convincingly proved that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. 

Banker Book Evidence Act, 1891

The act was enacted to regulate the provision that must be adhered with while producing evidence in the court from the bank. The act has manifestly included different provisions which define the method of submission of the document.

Section 4 of the act provides for the mode of producing the evidence in the court. The document produced before the court must be certified according to the procedure in section 2(8) and 2(A) of the acts. The certified nature is required because it establishes the reliability and credibility of the document. The document after getting signed by the branch manager or general manager of the bank becomes a “certified copy”. The certified copy is produced in the court and admissible as a prima facie evidence.

Admissibility of the bank records as evidence 

The RBI with a notification dated 24th April 2009 ordered the state and central cooperative bank to comply with the provision of the banker’s book evidence act, when they submit any of the documents to the court. The notification came in the backdrop of a different incident that happened wherein the bank has arbitrarily submitted the evidence to the court. 

Objection for uncertified Banking Records

The objections can be divided of two types:

1. An objection that the document which is sought to be proved is itself inadmissible in Evidence. 
2. Where the objection does not dispute the admissibility of the document in Evidence but is directed towards the mode of proof alleging. 

Cases 

Bank of India vs Alibhoy Mohammed And Ors. 

The Court in this judgment explicitly refused to accept the affidavit filed by the plaintiff’s bank to admit as evidence. The affidavit filed by the plaintiff has neither been subjected to comply with the existing provision of the banker’s book evidence act nor has been legally authorised by any concerned authority of the bank. The bank has also not produced the original power of attorney entrusted to them by the respondent during the encashment of loan amount as collateral. The bank has merely produced photocopies of those powers of attorney. The power of attorney was not notarised or authenticated. The court observed that the bank has not followed the minimum standard required while producing any of the bank documents as evidence in the court. the bank has flouted the regulation of the Bankers Book Evidence Act. The court dismissed the suit with no cost based on the above mentioned reasons.

M/S ICICI Bank Limited vs Sunil Sharma

The respondent approached the bank for loan under hypothecation scheme for the purpose of the purchase of vehicle. The same was granted by the bank and the stipulation envisaged under the loan agreement was that the loan will be returned by the defendant by 60 instalments. The loan was issued by giving the processing fee and completing the formalities with the bank. Then, after the payment the intended vehicle was purchased. The defendant failed to deposit the instalment on time. The cheques issued by the defendants in the name of instalment dishonoured several times. Finally, the bank has filed a suit for the recovery of the rest amount. The Court while deciding the matter demanded for the loan recall notice which was not produced in original by the bank so, the court observed:

“The loan recall notice in this case could not have been produced in original by the Plaintiff bank. All the other original documents, namely loan documents etc., have been ignored by the Trial Court. No reason exists to disbelieve the statement of accounts filed by the Plaintiff bank which is duly certified under the BBE, Act which is as per the provisions of Section 34 of the Evidence Act and Section 4 of the BBE Act. The insertion of Section 2A to the BBE Act deals with printouts of bank statements and the copies that are certified are deemed to be certified copies under the said Act”. The Court held the loan recall notice as inadmissible evidence and refused to consider it.

Om Prakash v. Central Bureau of Investigation 

The court held that when the conjoint reading of section 34 of Indian evidence act, section 2(8), 2A, and 4 of the Banker Book Evidence Act, and considering various judicial pronouncement of the supreme court the first negation they have was that the prosecution is required to lead admissible evidence to prove the entries in the books of accounts and after having led admissible evidence link the same with other evidence on record to prove the guilt beyond the reasonable doubt. Thus, the certified copy of the evidence must be produced before the court as per the section 2A of the Bankers Book Evidence Act. 

Conclusion

The admissibility of bank slip as evidence in the court has been unchanged in Negotiable Instrument Act ever since the act came into force. The privilege provided to the banking professionals is unchecked and arbitrary. The banking professionals need to appear before the court as witnesses. The testimony given by the banking professional should be considered as primary evidence. The evidence by the banking professional should be recognised as substantive evidence. Furthermore, the regulatory framework of banks needs to be revamped to reduce the workload on the employees. The digitisation of banking services expedited the banking work in the last few years. The government should establish special courts to look into the matters pertaining to dishonour of cheques and bank frauds. 

References

1. https://www.mondaq.com/india/Finance-and-Banking/823596/Evidentiary-Value-Of-Bank-Records
2. https://indiankanoon.org/doc/165771088/
3. https://www.casemine.com/
4. https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=4954&Mode=0

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The article is written by P A Alexy Vaidhian from School of Law, Christ University, Bangalore.

“The law: It has honoured us; may we honour it” – Daniel Webster

The Kerala Judicial Services- No more a Dream

It is vital for every single law graduate to honour the law once they pursue their degrees and start their career. The day when legal professionalism starts to grow, one must be sure in what direction he must go with his legal knowledge. Other than focusing on the ulterior motive of money-making, the sense of self-esteem, intellectual development and personal satisfaction must never be neglected. Thus a suitable career is one where the working platform welcomes all the above-mentioned qualities of a professionalist and gives him a sense of security and respect. 

For a young, vibrant and courageous law graduate, the judicial services is the best career option with all these standards.  

Becoming a Judge in the State of Kerala

The selection process for the Kerala judicial services is carried out in two different schemes.

• The lower judiciary examination is conducted for graduates who have acquired a bachelor degree in law from a recognized institute or university within the age group of 21 – 35 on the year of appearance for the examination. 
• The higher judiciary examination is conducted by the High Court of Kerala for the recruitment of Civil Judges or District Judges. Candidates who have a standing of 7 years or more and within the age group of 35- 45 on the year of appearance for the examination are eligible. 

This article focuses on the lower judiciary examination conducted in the state of Kerala.

Occurrence of Examination

The exam is conducted on a yearly basis by the High Court of Kerala. The notification for the exam is usually released in the month of February. The preliminary for the same is conducted in the month of March every year.

Number of Vacancies

Even though the number of seats is less in judiciary exams, nowadays it has started to increase. There is no fixed number of seats every year and keeps changing. The seats can be less or more compared to the previous year. In the year 2019, there was a vacancy of 45 seats altogether. 

Application Process

Eligible candidates from the day of notification for the exams can apply for the same through the official recruitment portal of the Kerala High Court. Candidates who hold a valid and active mobile phone and an e-mail id can register for the exam in a few clicks.

The first part of registration is where the candidates fill their complete details in the given form. After completing it the candidate generates a key number which he/she must keep for further reference during registration.

The above step becomes complete when the candidate receives an application number of registration on his registered e-mail or mobile number as an SMS. 

The application fee is paid by the candidate after successfully completing the details and receiving the application number. The fee is paid through net banking or Debit/Credit Cards or directly at SBI branches and then then the candidate needs to upload a scanned copy of his/her photograph and signature in the prescribed size. (For SC/ ST/ Unemployed Persons with disability, there is no registration fees for both lower and higher judiciary exams, but for ‘Others’ it is Rs. 1000 and 1500 for lower and higher judiciary exams respectively). 

The registered candidates then receive an admit card for the exam three weeks before the commencement of examination. The selected candidates for the interview get a confirmation on their registered email or mobile number as an SMS and the call letter two weeks before the commencement of interview. 

Examination Scheme

Scheme- Preliminary Examination

The preliminary examination consists of an objective paper. The preliminary examination is for two hours and contains 100 multiple choice questions altogether. Each question carries a weightage of 4 marks each and a negative of 1 for each wrong answer. The examination is conducted only for shortlisting the candidates for the next round and the marks scored here are not considered to determine the final merit of the selected candidates. 

The cut-off marks is 40% for general candidates and 35% for candidates from SC/ST category. The final list of shortlisted candidates for the written main examination is then declared by the HC of Kerala. 

Syllabi – Preliminary Examination

Part A

• Code of Civil Procedure
• Indian Contract Act 
• Negotiable Instruments Act 
• Transfer of Property Act 
• Specific Relief Act 
• Kerala Building (Lease and Rent Control) Act

Part B

• Code of Criminal Procedure 
• Indian Penal Code 
• Indian Evidence Act

Part C

• Constitution of India 
• Legal G.K

Reasoning

Verbal Reasoning

• Analogy, Series Completion, Verification of truth of the Statement, Situation Reaction Test, Direction Sense Test, Classification, Data Sufficiency, Alpha- Numeric Sequence, Puzzle, Puzzle Test, Blood Relations, Coding-Decoding, Assertion and Reasoning, Arithmetical Reasoning, Operations of Mathematics, Venn Diagrams, Word Sequence, Missing Characters, Sequential Output training, Directions, Test on Alphabets, Eligibility Test

Non-Verbal Reasoning

• Dot Situation, Identical figure groupings, Forming figures and analysis, Construction of Squares and Triangles, Series, Analytical Reasoning, Paper Folding, Cubes and Dice, Water Images, Mirror Images, Figure Matrix, Completion Incomplete Pattern, Spotting embedded figures, Paper Cutting, Classification, Rules Detection

Mental Ability

• Number Series, Directions, Alphabet Series, Coding-Decoding, Blood Relations, Statements & Conclusions, Syllogism, Mirror Images, Cubes and Dice, Embedded Figures, Statements & Arguments, Arithmetical Reasoning, Clocks & Calendars, Analogy, Decision Making, Number Ranking, Non-Verbal Series, Data Interpretation

Scheme – Mains Examination

The mains examination for 900 marks consists of a total of 5 papers. The paper-1 carries 100 marks and the subsequent 4 papers carries 200 marks each. The duration of each paper will be three hours. The cut-off marks for candidates belonging to general category is 40% for each paper and an average of 45% in all the five papers. Candidates belonging to SC/ST category must attain 35% and 40% respectively. (Fraction of half or more shall be considered as full marks and anything less than that shall be ignored)

Syllabi – Mains Examination

Paper-I

• English Grammar, General Essays, Translation of Malayalam Depositional, Documents to English and vice-versa, Precise writing

Paper-II

Part A

• Indian Contract Act, Transfer of Property Act,  Limitation Act, Specific Relief Act, Easements Act, Kerala Building (Lease and Rent Control) Act, Hindu Succession Act, Indian Succession Act – Parts Y VI &X, Dissolution of Muslim Marriage Act

Part B

• Kerala Court Fees and Suits Valuation Act, Stamp Act Kerala, Kerala State Legal Services Authorities Act, The Kerala Panchayath Raj Act -Ch. X, XI, XXIA & XXIII, Kerala Municipality Act -Ch. IX, X, XXIV & XXV, Negotiable Instruments Act (except Ch. XVII), Registration Act

Paper-III

Part A

• Indian Penal Code, Indian Evidence Act, Abkari Act, Negotiable Instruments Act -Ch. XVII, Protection of Women from Domestic Violence Act

Part B

• Juvenile Justice (Care and Protection of Children) Act, Kerala Police Act, Probation of Offenders Act, Forest Act, N.D.P.S. Act (provisions relating to bail and trial by Magistrates)

Paper IV

Part A

• Code of Civil Procedure, Civil Rules of Practice, Kerala Civil Courts Act, Order in Interlocutory Application/ Framing of issues/Judgment writing (Civil)

Part B

• Code of Criminal Procedure, Criminal Rules of Practice, The framing of charges/ Order in Criminal Miscellaneous Petitions

Golden Tips

• Perspiration – Inspiration theory

Upon the decision of taking the long way to be successful one must never forget this theory. Success is always 99% perspiration and 1% inspiration. After being inspired with the aim to deliver justice, the only go is to work hard until the exam is cracked. Working hard does not mean spending time, it means spending time wisely and achieving the best result or in simple terms, working smart.

• Bare Acts- the best friends

One can never pass the prelims without being thorough with the bare acts of the related subjects. The statutory provisions and the procedural laws are to be learnt from the bare acts. Important section numbers are usually asked from CrPC, IPC, Evidence Act and the Indian Contract Act. 

• Stay updated

The GK part is always easy to score marks and builds the all over merit. Nowadays there are many paid law journals and websites that provide with day to day updates on the field of law. Recent amendments and landmark judgments are asked even during the interview of candidates to ensure that they stay updated. The habit of reading newspapers also enhances the general knowledge of a candidate.

• Preparing short notes

There is no other activity like writing that increases the efficiency of a person. Even though it won’t seem be worth to write in today’s cyberspace, judicial service aspirants must find time to prepare notes on their won and on their convenience and must go through the same whenever there is time. 

• Art of Time Management

Every state follows a different syllabus and pattern in their examination process. Thus an aspirant must always find time to find previous year question papers and try to solve the same in the said time. Similarly one must practise writing judgments and draft plaint, written statements etc. so that the time is not wasted during the examination. 

Level of Competition

Even though among law students the number of judicial aspirants is less, the trend has started to change. Considering the respectable position as a judge, the job security, salary and allowance, nowadays students have started to develop an ardent desire to crack the exam.

Considering the number of seats in an average to be less than 50, the competition for this exam is high. It is not the level of competition that decides the final result, but the commitment and hard work one had during his preparation day’s matters.

Preparation Process

There is no ideal time to start and end the preparation for a judiciary exam. When the aim of becoming a judge strikes one’s mind, there must not be a step back. One must remember the words of Mark Antony that “Ambition should be made of sterner stuff” and must work hard until the dream becomes true. Always ensure that adequate time is given for all topics before the examination and nothing is left out. 

Preparation Guide

• • Have a copy of the entire syllabus for quick reference whenever needed.
  • One must dedicate time every day for preparation.
  • Procedural laws must be studied in depth.
  • Start grouping the topic on one’s convenience. 
  • Never forget to revise previous year question papers.
  • One must develop the skill of reading and writing.
  • Start to learn 5 new words in English and Malayalam.
  • Prepare own questions from bare acts and learn.
  • Always develop the habit of reading Malayalam and English newspapers.
  • Learn the art of attending an interview and answering questions.
• Work hard, Success will follow.

Keep these away

• Aspirants must never be overconfident on their skills, abilities and on the examination.
• Use time wisely, never spent too much time on cyber space.
• Never feel shy to approach anyone and clear the doubts.
• Never procrastinate lengthy topics and essays.
• Never collect materials that are lengthy and ambiguous, remember to be smart while selecting guides and reference materials.

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

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This article is written by Uday Bhatia, a third-year student currently pursuing BBA LLB Hons from Vivekananda Institute of Professional Studies (affiliated to Guru Gobind Singh Indraprastha University, New Delhi) This article covers the types, legal validity (International & under Indian law), penal provisions & its dynamic & evolutionary nature in context to landmark precedents & contemporary issues sub judice.

Inroduction

The concepts of E-signatures and digital signatures are results of gaining eminence of revolution of information technology which embarked its journey from the late 18th century. Many states with evolving times have given due recognition to its applicability & operationality in their jurisdictions.

In the US, before the proclamation of the “American Civil War” in 1861, the usage of the Morse Code had been primarily for espionage purposes but was also intended for the enforceability of contracts. The first landmark judgment accepting the enforceability of telegraphic messages as electronic signatures was observed by the New Hampshire Supreme Court.

Thereafter there has been a flurry of modern legislation in western states such as in Canada, US, Russia, China, Australia, New Zealand, Japan, Singapore, UK & gradually all across the globe.

In 1996 the United Nations with a majority passing resolution enacted UNCITRAL Model Law on Electronic Commerce. In 2001, UNCITRAL Model Law on Electronic Signatures was passed which has been adopted by 30 states in their jurisdictions. The most recent step towards the international recognition of E-signature is the United Nations Convention on the Use of Electronic Communications in International Contracts, 2005, which gives the option to the contracting parties to give effect to the agreement by E-signature subject to the condition that a reliable method is used to identify & indicate the intention of the parties.

The first agreement signed electronically by two sovereign nations was a Joint Communiqué recognizing the growing importance of the promotion of electronic commerce, signed by the United States and Ireland in 1998.

What is an Electronic Signature?

It is evident that the cognizance of the concept of E-signature has sprouted in different modern state legislations, giving meaning & moulding its definition to be accustomed to its socio-political structural norms. Below are a few definitions devised by foreign legislative assemblies.

• Article 25, Electronic Identification, Authentication and Trust Services, states:

1. An electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures.
2. A qualified electronic signature shall have the equivalent legal effect of a handwritten signature.
3. A qualified electronic signature based on a qualified certificate issued in one Member State shall be recognised as a qualified electronic signature in all other Member States.

• Section 106,  Electronic Signatures in Global and National Commerce Act defines an electronic signature for the purpose of US law as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
• Section 7, Part II, Electronic Communications Act, 2000 defines an electronic signature is so much of anything in electronic form as —

(a) is incorporated into or otherwise logically associated with any electronic communication or    electronic data; and

(b) purports to be used by the individual creating it to sign.

• In simple words E-signature can be defined as symbols or other data or jointly combined in a digital form, affixed or attached to an electronically transmitted document so as to authenticate & verify the sender’s identity & his intent on the signed document.
• Albeit, the definition under Section 2(1)(ta), Information Technology Act, 2000 as follows:

“Electronic signature” means authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes digital signature.

Click Here

Digital Signature v/s Electronic Signature

Digital signature means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provision of Section 3, IT Act, 2000.

• Whereas E-signature is affixing or attachment of symbols or other data or combined together, although in digital form, without any encryption, in any electronic document.
• The subscriber can authenticate an electronic record by affixing his digital signature, which shall be effected by the use of the asymmetric crypto system and hash function, enveloping & transforming the initial electronic record into another.

Hash Function

• An algorithm mapping or translation of one sequence of bits into another, generally smaller such that the electronic record yields the same result with the execution of the algorithm with the same electronic record which is known as hash result. Therefore, in order to cure the computational infeasibility:

1. An Original electronic record is derived from the hash result produced by the algorithm.
2. Producing the same hash result using the algorithm, using the two electronic records.

• Digital signatures fulfil the same purpose as that of electronic signature, to authenticate the identity & further his/her intention to acknowledging the consent & awareness of contents of the impugned document.  It is basically concealed, to be precise encrypted, in cryptographic content for simplifying its usage, as it becomes more convenient by ensuring a secured, user-friendly process & end-to-end privacy.

E-Signature Provisions under the Indian Evidence Act, 1872

The recognition of applicability & legal enforceability of E-signature is governed elaborately under varied provisions.

1. Section 85B: Presumption as to the authenticity, integrity & secureness of the electronic records & E-signature, unless contrary is proved.

ii. Section 22A: Oral admissions as to the contents of the electronic record are relevant only if its genuineness is not in question.

iii. Section 65B: Admissibility of the electronic record & its contents as original & direct evidence subject to the conditions:

1. The computer output (electronic record) containing the information was produced by the computer during the period where it was used to store or process the information for the activities it was regularly carried on by the person having lawful authorization over the use & control over the computer.
2. During the impugned period, the information so contained in the electronic record being derived was such that it was regularly fed into the computer in the ordinary course of the said activities.
3. During the substantial part of the impugned period, such computer should be operating properly & if not operating properly during the said period then it shall not affect the accuracy of the electronic record or its contents.
4. The information or contents derived from the electronic record from such information which was originally fed into the computer in the ordinary course of the said activities.
5. Section 85A: The court recognizes the validity of the electronic record on the same footing of physical documentary agreements, containing the E-signature of the parties affixed on it.

Provisions Recognizing the E-Signature or Digital Signature under the Information Technology Act, 2000

• A subscriber (means a person in whose name an electronic signature certificate is issued) may authenticate any electronic record either using an electronic signature or an electronic authentication technique under Section 3A, IT Act, 2000 which is:

1. Reliable
2. In accordance with the Second Schedule

The electronic signature or electronic authentication technique shall be considered reliable if

1. The signature creation data or authentication data is linked “only” to the signatory or to  the authenticator, as the case may be, in reference to their intended use;
2. The signature creation data or authentication data were “only” at the control of the signatory or the authenticator, at the time of signing or authentication, as the case may be & not in any other person.
3. Any alteration to the electronic signature made after affixing such signature should be detectable;
4. Any alteration to the information made after its authentication by electronic signature should be detectable; &
5. Fulfils any other conditions as specified.

• The legal recognition of electronic signatures has been bestowed to the E-signature, by bringing the status at par with a physical mode of authentication.
• The validity of the contents & information of any documentary evidence shall be authenticated bearing or affixed with the signature(his / her handwritten signature or any mark) of the person related or with the electronic signature affixed of the party or parties related, in accordance to the manner as prescribed by the central government.

Procedure of making E-Signature

1. Public Key Infrastructure: 

• It is an arrangement of a set of rules or a policy formulated to regulate the hardware & software & their procedures for the administration (creation,  management, distribution, storage & revocation) of a public key, private key & certifying authority issuing digital certificates.

1. Public Key 

It involves a key, (which acts as a substitute for password) shared with the public (generally with identities of entities of an organization or specific group) in order to verify the signer’s electronic signature. According to Section 2(zd), IT Act, 2000 it means the key of a key pair used to verify a digital signature and listed in the Digital Signature Certificate.

2. Private Key

• Here the key is only for the use & access of the signer of E-documents. According to Section 2(zc), IT Act, 2000 means the key of a key pair used to create a digital signature.

• Every subscriber shall practice reasonable care to retain control of the private key corresponding to the public key listed in his digital signature certificate and take all steps to prevent its disclosure.
• If the private key corresponding to the public key listed in the Digital Signature Certificate has been compromised then, the subscriber shall communicate the same without any delay to the Certifying Authority in such manner as may be specified by the regulations.
• It is to be noted that the subscriber shall be liable till the point where he has informed the Certifying Authority that the private key has been compromised.

3. Certifying Authority

• It is the regulatory body that administers the registration, issuance, renewal, suspension, & revocation of the digital certificates.

• Under Section 2(1)(g), IT Act, 2000, it refers to a person who has been granted a license to issue electronic certificates. It is implied here that the process of certification is permitted to be outsourced & executed by third party Validation Authorities.
• The process of obtaining the license involves an application to be made to the Controller which is subject to the requirements such qualification, expertise, manpower, financial resources and other infrastructure facilities under Section 21, IT Act, 2000. The license granted shall be

1. a)  Valid to such period as prescribed by the central government
2. b)  Not transferable or heritable
3. c)  Subject to such other terms & conditions by regulations.

• After submission of the application the documents accompanying the application shall be considered and on such other factors, grant the licence or reject the application, as it deems fit. Provided, the applicant shall be given an opportunity of being heard to present its case, on the rejection of the application, under Section 24, IT Act, 2000.
• The process for obtaining digital certificates involves making an application (containing certification practice statement or not then such particulars to that effect by regulations) to certifying authorities in such form, manner & fees not exceeding Rs. 25000/- as prescribed by the Central Government under Section 35, IT Act, 2000.
• On the receipt of the application, considering the certification practice statement or not then such particulars & making necessary enquiries shall either grant the electronic signature (digital) certificate or reject the application, as it deems it fit.
• Provided the applicant shall be given an opportunity of being heard to present its case, on the rejection of the application.
•  A Certifying Authority while issuing a Digital Signature Certificate shall certify that-

1. Ensuring complying of the provisions of the IT Act, 2000 & the rules & regulations made thereunder;
2. Publication of the digital signature certificate or otherwise making it available to the person relying on it;
3. Subscriber should hold the private key corresponding to the public key, listed in the digital signature certificate, capable of creating a digital signature & verifying the digital signature affixed by the private key, which is held by the subscriber;
4. Subscriber’s public key and private key should constitute a functioning key pair;
5. Accuracy of the information contained in the digital signature certificate.
6. That there is no knowledge of any material fact, which would adversely affect the reliability of the representations if it had been included in the digital signature certificate.

• The purpose of the technique is to succour & smoothen the electronic transfer of information which is prevalent & constitutes the core of network-based activities such as E-Commerce, internet banking and confidential email.
• Secondly, it is most suitable & apposite for such activities wherein, simple passwords turn out to be inadequate authentication tools & thereby a more rigorous proof is necessitated in order to prove the identity & further their free consent & validate the information so transferred electronically.

II.  Symmetric encryption

It is one of the oldest & common types of encryption methodology used. It consists of 5 main pillars, integrated into a process, from encryption to decryption of the message:

i.  Plaintext: it refers to the original, simple text, comprehendible to a reasonable man.

ii. Encryption Algorithm: it operates on the plaintext & converts it into an unreadable    format.

iii. Secret key: it converts the scrambled & ciphered text into the Plaintext, as the key holds the information of all the switches and substitutions made to the original plain text

iv. Ciphertext: it refers to the scrambled, jumbled text which is unreadable. It may be in the form of a stream of data, numerals, alphabets, alpha-numerals, characters or a combination of them

v. Decryption Algorithm: it refers to the environment only in which the secret key could perform the decoding function i.e. the substitutions & switches necessary to be done on the Ciphertext in order to convert it into simplified, original Plaintext.

        Figure 1: Symmetric Encryption Method

• Symmetric encryption or cryptography is typically used for bulk encryption or encrypting large amounts of data, such as database encryption.
• In the case of a database, the secret key might only be available to the database itself to encrypt or decrypt, which is the foremost & major drawback of this encryption method.
• Symmetric cryptography is widely used in:

Payment applications, such as card transactions where personal, sensitive information needs to be protected to prevent identity theft, phishing, cheating.

Validating the original identity of the sender.

III.  Asymmetric Crypto Method

• It is a system of a secure key pair consisting of a private key for creating a digital signature and a public key to verify the digital signature;
• This encryption method is a result of complex activities that require a higher degree of caution & security, due to the transmission of sensitive information. This method uses pair keys, unlike the symmetric method, where the public key shared with certain entities (designated receivers) & the other key being the private one is kept secret. Either of the keys can be used for encrypting or decrypting. Only the user or computer that generates the key pair has access to the private key.
• Generally, the process entails that the sender of the Plaintext procures the public key of the receiver, who then encrypts it by employing an asymmetric encryption algorithm to create the Ciphertext. The receiver then receives the Ciphertext & decrypts it by employing an asymmetric decryption algorithm & converting the same into Plaintext.
• The process could be other way around as well, where the receiver holds the private key for decrypting the Ciphertext & the sender in fact holds the public key for encrypting the Plaintext.
• This method, in contrast to the Symmetric method, is highly complex & technical but ensures the confidentiality of especially sensitive data, integrity as to the user’s identity & its free & valid consent, authenticity relating to the originality of the message delivered and non-repudiability in context with the bearing of an electronic or digital signature of the signer acts like estoppel, who later can’t deny it for claiming any defence.

Offences relating to e-signature

A. Section 463: Making a false document:

• Where there are reasons to believe that any person who has either fraudulently or dishonestly made, signed, sealed, executed, transmitted a document or electronic record or its part thereof affixed with electronic signature.

• Secondly, who without lawful authority, alters any document or an electronic record or materially its part thereof, executed or affixed with electronic signature either by himself or by any other person, whether such person is alive or dead at the time of such alteration.

• Thirdly, who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his or her electronic signature on any electronic record knowing that such person:

1. being unsoundness mind or intoxicated cannot; or
2. that by means of deception;

by virtue of it he or she being unaware of the contents of the document or electronic record or the nature of such alteration.

The punishment for making a false document (forgery) under Section 465, IPC, 1860 is imprisonment of a term which may extend to two years, or with fine, or with both.

B. Section 66C: Punishment for identity theft

It states that any person who, fraudulently or dishonestly makes use of

1.  The electronic signature;
2.  Password; or
3.  Any other unique identification feature of any other person;

shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine which may extend to Rupees one lakh.

C. Section 71: Penalty for misrepresentation

It states that any person who misrepresents or suppresses any material fact from the Controller or the Certifying Authority so as to obtain any licence or electronic signature certificate, as the case may be, shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to Rupees one lakh, or with both.

D. Section 73: Penalty for publishing electronic signature certificate false in certain particulars

• It states that no person shall publish any electronic signature certificate or make it available to any other person having the knowledge that–

(a) The Certifying Authority listed in the certificate has not issued it; or

(b) The subscriber listed in the certificate has not accepted it; or

(c) The certificate has either been revoked or suspended, until & unless such publication is for the purpose of verifying an electronic signature created prior to such revocation or suspension.

• Any person who contravenes the above provisions shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to Rupees one lakh, or with both.

E. Section 74: Publication for Fraudulent purpose

It states that any person who knowingly creates, publishes or makes available any electronic signature certificate for any

1. Fraudulent; or
2. Unlawful purpose;

shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to Rupees one lakh, or with both.

Landmark Cases

Berkson v. Gogo LLC

Facts

The facts of the case are that the defendant (Gogo LLC) provides in-flight Wi-Fi to travellers in a variety of airports and airlines. The plaintiff Adam Berkson and Kerry Welsh sued the defendant claiming that the defendant unjustly benefited itself, by misleading the customers into purchasing a service that used to charge the customer’s credit card, on an automatically-renewing monthly basis, without adequate notice. The defendant charged the plaintiffs, Berkson & Welsh between $35 to $40 each month for 3 & 16 month respectively. The defendant initiated arbitration proceeding online “terms and conditions” agreement against the plaintiff.

Issue

1. Whether the plaintiffs were bound by the online “terms & conditions” of the agreement on the website?
2. Whether the plaintiffs together lawfully institute a class-action suit?

Judgment

The US district court observed & explained the concept of the click-wrap agreements. These agreements basically require the click the “accept” button to the “terms & conditions” before entering into a transaction. These sorts of agreements are enforceable because it would then become tedious for the company to engage in litigation with each end-user.

Thus, these types of contracts are generally referred to as “contract of adhesion”, which is based on the complete discretion of the user to enter. The assent that an end-user gives to such agreements is “manifested”, as it involves the user to read through the elaborate scroll of “terms & condition”.

In the context of this case, the court held the contention of the defendant in negative, noting that the “terms & conditions” mentioned on the website was not displayed in desirable -manner, i.e. in large font, all caps, or in bold letters, inconspicuous place, to be easily noticeable. It was merely projected through a hyperlink & doesn’t amount as such of complete disclosure & thereby can’t make the plaintiff bound by it.

Moreover, the defendant didn’t email the or courier the copy of “terms & conditions” to the users, thus further bolstering the argument of insufficient notice to the plaintiffs 

Answering the second issue the court held that even though one of the plaintiffs received the reimbursement of “full amount of claim”, it doesn’t qualify as “full refund”, even considering the fact that the credit card company has reimbursed the unauthorized bank charges upon such use to the one of the plaintiffs.

The court has observed the rule for plaintiffs purporting to represent a class, establishes the claims of the case or dispute, none of the plaintiffs can seek relief for himself or on behalf of any other member. Albeit, it may be possible in a punitive class action, if the plaintiff alleges:

1. a)  That he himself has personally suffered some actual injury as a result of the putatively illegal conduct of the defendant; &
2. b)  That such putatively illegal conduct has raised the same set of concerns & have allegedly caused the injury to the other members of the same class, by the same class of defendants.

Zakuski v General American

Facts

This is a landmark case in the field of E-signature, as it helps to resolve a major conundrum.

The plaintiff’s son (Doctor Z) has purchased an insurance policy in the name of the plaintiff (his mother), but as soon as remarried, he changed the beneficiary’s name to his second wife, to other policies as well & soon after which the doctor Z, expired.

The procedure of changing the name of the designated beneficiary can be performed & instructed to the company, General American (defendant) along with the requisite details such as policy number, Social Security number, and mother’s maiden name, upon which the company sends an email confirmation of the change.

It was alleged that someone enrolled in the defendant’s company provided all the necessary information & detailed & maliciously changed the beneficiary’s name to the second wife, thus sending the alert email of confirmation. Be aggrieved by this action, the plaintiff sued for the claim of insurance proceeds, claiming that the company’s security policies were compromised & the defendant can’t make sure that it was the plaintiff’s son who actually signed to validify the change.

The second wife, on the other hand, claimed in the affidavit that she hadn’t made any change.

Issue

How to make sure that it was the original signer ‘s signature only affixed on the document?

Judgment

In the summary judgement & in the court of appeals, upheld the contention of the defendant, laying emphasis to Michigan’s UETA (Uniform Electronic Transactions Act) implementation, observing that an E-signature could be attributed by employing “reasonable means.” They ruled in the favour of defendant on the basis of evidence bundle, that only required service personnel of the company knew about the requisite information for change of beneficiary’s name, an alert email, acknowledgement confirming the change of beneficiary’s name was duly sent, the affidavit of second wife’s denial of any foul-play, overshadowed the claim of the plaintiff, which was not supported by any major evidence. 

Moreover, the court observed that in the process of electronic signature reasonably involves sufficiently more security measures & that the process physical signature & E-signature doesn’t differ much. 

Law around E-Aadhaar

• E-Aadhaar is basically a password protected electronic copy of Aadhaar, which is digitally signed by the competent authority of the Unique Identification Authority of India (UIDAI), it substitutes the execution of documents by physical signature by E-signature (E-Aadhaar). 

• The Aadhar project was initiated by the government of India in 2009, to address the issue of leakages of the benefits of various governments welfare benefits & schemes such as subsidies and services, such as a ration card, driving license or voter id, sapped by the bureaucratic corruption & red-tapeism & thus diluted the purported results to be yielded.  
• It was envisaged as a biometric-based unique identity number, to identify the real & eligible beneficiary. It is considered to be more secure & reliable as it uses a person’s unique biometrics such as iris scans, fingerprints to authenticate the true identity of the beneficiary.
• The process of obtaining the Aadhaar number involves grossly two categories of information & details:

(i)  Biometric information (photograph, 10 fingerprints, scans of both irises); &

(ii) Demographic information (name, date of birth, gender, residential address) to the      

      UIDAI, which is stored by the Central Identities Data Repository.

• There has been a lot of clamour, uncertainty building a controversy regarding the secureness of electronic mechanism of Aadhaar. This is because there is a significant exposure of personal, sensitive information of the persons. Approximately 27 organizations which are termed as “Authentication Service Agents” (ASA’s) which have direct access to the Aadhaar database & in totality 254 such organizations have permission to use databases for identity verification. These include such organizations as well who don’t have direct permission to access the database., thus have to seek assistance from ASA’s.
• Nevertheless, there are several provisions to ensure the protection of such sensitive data from any misuse by any third party.
• It prohibits UIDAI & its officers from sharing a person’s identity information and authentication records with anyone. 
• It also forbids a person authenticating another person’s identity from collecting or using their information without their consent. 
• Miscellaneous protections: include prohibitions against publicly displaying a person’s Aadhaar number and sharing of a person’s fingerprints and iris scans with any third person, with stringent civil & criminal penalties on violation of the provisions of the act.
• However, the Act permits information to be disclosed in cases involving interest of national security or on the order of a court not inferior to the High Court.
• In 2016, Parliament enacted the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. to emboss the legislative sanction to this project. The act allowed both the central & state government, as well as the private entities to use Aadhaar for authentication purposes.

• In 2017, the Parliament passed the Finance Act, 2017, amending the Section 139AA, Income Tax Act 1961 & making Aadhaar mandatory for filing income tax returns & applying for PAN.

• Under the Aadhaar Act, it entitles the government & permitted private entities to obtain biometric & demographic information to verify the identity of the person. Such information collected, is stored in a central database & is argued that it leads to the creation of a “surveillance state.”

Issue 

Whether the various mandatory provisions of the Aadhaar Act, 2016 intended for a better governance mechanism to offer varied welfare benefits to the citizens is constitutional on the touchstone of right to privacy?

Judgment

The Hon’ble Supreme Court with a majority (3:2) ruled most of the provisions of the Aadhaar Act, 2016 serves legitimate aim & thus constitutional not to be violating the reasonable exception of right to privacy which is envisaged as one of the vital rights under Article 21 of the Constitution of India

It formulated a proportionality test to examine as to what constitutes violation of right to privacy, which is any law that is just, fair & reasonable, rather than adopting a strict scrutiny approach. The proportionality test proposes that the laws. The test includes 4 aspects of consideration:

1. Legitimate goal: measuring that the right inhibiting, must have a legitimate goal.
2. Rational nexus: aim should be such that it should meet the object sought to be  achieved
3. Necessity: there must not be any less but equally effective alternative.
4. Balancing: the measure must not have a disproportionate impact on the right holder, weighing the personal autonomy of an individual with the community interest.

The following provisions were held to be valid:

1. The provision intended to provide government welfare schemes & beneficial services such as subsidies, etc from the Consolidated Funds of India under Section 7 of the Act, were to be held valid on the basis of proportionality test.
2. The provision under Section 57 of the Act, allowing the government entities, body corporates and private entities to use the Aadhaar number for publishing the identity of an individual for any purpose, pursuant to any law or contract were held to be invalid. The terms “any purpose” bestows an unreasonably wide ambit which is not limited by any criteria, susceptible to abuse of power.

Secondly, the citizens may be compelled to give consent for using their Aadhaar numbers under “any contract”, in high probabilities exposing it for unjustified purposes. Thirdly, such compulsion to give their ‘free consent’ is likely to be commercially exploited, especially with the mandatory directions of the government of “Know-Your-Customer” (e-KYC) authentication requirements.

iii. The mandatory requirement of linking the PAN with Aadhaar number for filing of IT returns was held to be valid as to sought to achieve legitimate objective of eliminating tax fraud, tax evasion causing loss to the exchequer eliminating multiple identities used for this purpose.

1. The mandatory requirement of linking the bank accounts & phone numbers with the Aadhaar numbers was held to be unconstitutional, as it failed the proportionality test, lacking any real, legitimate objective that it sought to achieve constraining the privacy of individuals.
2. It directed the central government to amend the Section 33 of the Act, which being a ‘sensitive & dicey’ exception vulnerable to unwarranted & unmerited use, to the disclosure of identity information or authentication records,  for the purpose of national interest by the government officer being a Secretary or by order of the judge of a district court. The 2019 amendment in the Act, thus made required changes, that the information for the purpose of disclosure for national interest shall be performed by a person not below the rank of Joint Secretary & by the order not below the judge of a High Court.
3. Under Section 47, the cognizance of offences can only be done on a complaint made by the authority or any officer or person authorised by it is concerned. Thus, directed an insertion by amending the procedure.

Contemporary Issues: Sub Judice

• The Hon’ble Supreme Court of India in a landmark case, which is described as “watershed movement of online speech” determined the constitutional validity of the controversial provisions of the IT Act. 
• It struck down Section 66A which proscribes for disseminating offensive messages using computer resources or a communication device on the ground that it fails the constitutional test under Article 19, not fitting under the “reasonable restriction” of public order, to limit the freedom of speech & expression. This provision is associated with Section 79, which obliges the intermediaries to “remove the offensive or objectionable content” & duly notifying the appropriate governmental agency only upon “actual knowledge”.
• The failure in the form of any connivance or abetment or neglect to perform such duty would ensue incrimination. Albeit, the court upheld the constitutional validity of Section 69A, acting as an armour for the government, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence, observing that it ambit is reasonably narrow, on the basis of limited & genuine grounds of exigency.
• Recently, a petition is questioning the constitutional validity of linking the social media accounts with Aadhaar numbers on various grounds such as to eliminate the spread of fake news, especially when it plays a crucial role in elections.
• Then there is a petition in the Hon’ble Supreme Court demanding the court to define the role of the intermediaries under Section 69, IT Act, 2000. Two questions are presented to confront the government’s stand, whether intermediaries are obliged to decrypt the information in their possession? & Whether the government can set up its own decryption agencies? Section 69 of IT Act, 2000 provides ‘all facilities & technical assistance’. 

• The conundrum which provokes here is that whether assistance amounts to obligation to decrypt & even if it does, are the companies such as WhatsApp & Facebook have the competency & wherewithal to conduct the decryption. 
• According to Rule 2(g) Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 defines decryption as allowing access to the encrypted information to the extent possible or facilitation of encrypted information into intelligible one. Rule 13 states that the information requisitioned for decryption shall be limited to the extent the information is encrypted or over which intermediary has control over the decryption key. Rule 17 provides for decryption key or decryption assistance under the decryption direction.
• Hence, it is becoming a bone of contention to argue upon, as by employing the golden rule of interpretation, the intermediaries are only required to provide mere decryption assistance & in fact not providing the “decrypted information.”
•  Getting onto the second issue, rule 4, authorises any competent government agency to intercept, monitor or decrypt information, in lieu of it the government has by the order of Ministry of Home Affairs authorised 10 security & intelligence agencies including Research & Analysis Wing, Intelligence Bureau, National Intelligence Agency, Commissioner of Police, Delhi, etc. However, such power is under control & restrictions. Rule 11 prescribes for only 60 days period for interception or monitoring or decryption which is extendable to a total period not exceeding 180 days.

Conclusion

• The electronic medium of authentication is fairly a new & dynamic mechanism providing ease of convenience, utility & secureness from intervention of third parties & originality of the identity of the user. Its birth is a result of development in the technology era from late 90’s & with major propulsion in the last 2 decades. 
• The evolving times & in the constant search of finding new solutions to the contemporary issue with new inventions & innovations, has surely given a boost to the creation & advancement of sophisticated apparatuses, but poses a difficult challenge to the ‘personal freedom & autonomy’ of individuals, creation of surveillance states, banking frauds, etc. These issues can’t be taken for granted & thus requires a robust redressal framework.
• With the degree of volatility & evolving nature of the society, technological advancement has turned out to be a “necessary evil” at the risk of infringing privacy of individuals. The government has proactively taken a step to ensure these rights by introducing the Personal Data Protection Bill, 2018 passed by the Lok Sabha governing the government, companies incorporated in India, and foreign companies to specific & vital purposes only.
• Nevertheless, there is a constant tussle of balancing the national interests vis-à-vis individual interests. While on the other hand, the argument for conducting the act of surveillance subject to judicial review for weeding out cyber-crimes, anti-national activities, incitement of war & other illegal acts, the role of daring judiciary becomes quintessential to adjudicate this catch-22 situation.

References

• https://en.wikipedia.org/wiki/Electronic_signature
• https://indiacode.nic.in/bitstream/123456789/1999/3/A2000-21.pdf
• https://www.eid.as/home/#article25
• https://en.wikipedia.org/wiki/Public_key_infrastructure
• https://study.com/academy/lesson/symmetric-encryption-definition-example.html
• https://en.wikipedia.org/wiki/Symmetric-key_algorithm
• https://www.cryptomathic.com/news-events/blog/symmetric-key-encryption-why-where-and-how-its-used-in-banking
• https://www.lexisnexis.com/community/casebrief/p/casebrief-berkson-v-gogo-llc
• https://www.americanbar.org/groups/litigation/committees/alternative-dispute-resolution/practice/2015/wi-fi-company-cannot-enforce-clickwrap-agreement-arbitrate-against-consumer/
• https://esignrecords.org/2018/01/28/7-landmark-electronic-signature-legal-cases/
• https://sflc.in/key-highlights-aadhaar-judgment
• https://www.mondaq.com/india/Privacy/744522/The-Supreme-Court39s-Aadhaar-Judgement-And-The-Right-To-Privacy
• https://www.prsindia.org/theprsblog/recent-rise-lpg-prices
• https://cis-india.org/internet-governance/resources/it-procedure-and-safeguards-for-interception-monitoring-and-decryption-of-information-rules-2009
• https://en.wikipedia.org/wiki/Shreya_Singhal_v._Union_of_India
• https://www.firstpost.com/india/facebook-whatsapp-case-in-sc-mass-surveillance-possibilities-can-increase-with-creation-of-national-decryption-agency-7544101.html

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

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This article is written by Khushi Sharma, currently pursuing B.A.LLB (Hons) from IIMT and School of Law, IP University. This is an exhaustive article which deals with the oral evidence under the Indian Evidence Act,1872. 

Introduction

All of us know what importance evidence holds under any court proceedings. Evidence is a certain reliable and relevant set of facts which proves or abstains from proving any matter; there is a prescribed manner on which the cycle of evidence works which has been divided into two main heads- Oral and Documentary evidence by the Evidence Act 1872. In this article we will be dealing with oral evidence, how is it made and everything which will make us understand Oral Evidence.

Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act, 1872. Oral evidence is defined under section 3 (under evidence head) which explains that “All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called as oral evidence.” The word ‘Oral’ itself describes its meaning as something spoken or expressed by mouth; so anything which is accepted in the court in relation to the inquiry and expressed by any witnesses who are called in the trial is termed as oral evidence. Oral Evidence also includes the statements made by people in signs and writing forms (inclusive of people who cannot speak).     

Importance of Oral Evidence

Every evidence plays an important role in the trials, oral evidence has been growing in regards to usage; as earlier it was not considered to be as precise and blunt as documentary but its need and importance has been constantly subjected to rapid growth. Oral evidence is also equally important as it stimulates a person and extracts what a person has seen or what he wants to say in regards to the trial. Oral evidence is comparatively easier to refer. The importance has been explained by the Bombay High Court in one of the cases that if the oral evidence is proved beyond reasonable doubt it can also be enough for passing conviction.  

Section 59 – Proof of facts by Oral Evidence 

All the facts and circumstances may be proved by oral evidence by expressing or speaking except the contents of documents and electronic records. The contents of documents and electronic records cannot be proved by oral evidence. It is held that if any person has to be called for proving their documents then that document becomes oral and documentary evidence loses its significance.

It was held in Bhima Tima Dhotre v. The pioneer chemical co. that “Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”

Section 60 – Oral Evidence must be Direct

This is the cardinal principle of any evidence to be admissible in the court. If any oral evidence needs to be admissible, all the conditions under Section 60 of the Indian Evidence Act must be fulfilled. If anyone of the following conditions is not fulfilled, then the evidence will fail to be pictured as an Oral Evidence. Oral evidence and section 60 is a proportional equation. For acting out one, the other needs to be fulfilled.

The base principle on which section 60 is placed is that the evidence which is taken into regards must be direct. The word direct does not include any category of hearsay as its main element is vested in the word “must”. Every statement under oral evidence must be direct. Now let’s focus on some conditions which need to be fulfilled to make oral evidence admissible;

• Direct oral evidence

Oral Evidence must be direct in all cases. Indirect ways or hearsay is not considered a part of direct oral evidence. The word “Direct” in all matters must mean that it is administered by any person on their own i.e through their personal knowledge and is not passed by any other person (hearsay) which on the other hand will be inadmissible. This involves certain cases in which the word “direct” is involved :-

1. It refers to a fact which could be seen, it must be the evidence of a witness who says he saw it –

It refers to evidence which has been given by the person who has actually seen or observed the matter by their own eyes, This will be actuated as direct evidence.For example: if A saw that B is hitting C. A will be an eyewitness to the crime scene and his testimony will be that of direct evidence.

2. It refers to a fact which could be heard, it must be the evidence of a witness who says he heard it – 

It refers to evidence which has been given by the person who was present and has actually heard the matter by themselves, this will come under direct evidence.For example: if A overheard B’s conversation that stated; that he is going to kill C tomorrow under the bridge, A’s testimony will be that of direct evidence.

3. It refers to a fact which could be perceived by any other senses or any other manner, it must be the evidence of person who says he perceived it by that sense or manner –

Meaning such evidence that has been given by the person who has perceived it in any other manner or by any other senses but it has been perceived by that person itself. For example: through sense of smell or taste. 

4. If it refers to an opinion or to grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds – 

It means when a person holds any opinion on any matter or incident, only his testimony on the ground of which his opinion is formed will be admissible in the court.For example A thinks that B is not a good guy, so his testimony of that opinion will be termed under direct evidence.  

• Meaning of Hearsay Evidence 

All of us are aware  of what hearsay is; hearsay is any information which is received by any person from any other source. Hearsay means when a person does not have a personal knowledge about a particular matter or incident and he has been informed about that particular matter by any other person. 

As oral evidence includes first-hand knowledge thus, Hearsay evidence is excluded under the ambit of oral evidence because hearsay is not directly obtained evidence.

• Rationale behind the exclusion of Hearsay Evidence

From the above head now we know that Hearsay Evidence is second-hand knowledge. But why is it excluded from oral evidence?

For oral evidence to be admissible it only accepts the rule of first-hand knowledge. It only includes what is directly seen, heard and perceived by a person. There is no room for second-hand knowledge. A conviction passed on hearsay may be truly unjustified as there is no reliability as to whether the person who has passed on the following information is credible enough or not. For example: if A has received information through B that he saw C hitting D. This will be hearsay because A himself has not administered the incident. For this reason, Hearsay has been excluded from Oral Evidence. 

• Statement to witnesses by persons not called

There may be some cases in which witnesses may not be called but their testimony is accepted and not treated as hearsay. In certain cases, such statements may be admissible. Opinions of experts which are embedded in things which are maintained for sale like books of authors can be accepted as oral evidence when the author of the book is dead, cannot be found, cannot come to the court for some reason or the court thinks that calling such person may be a delay of proceeding, so any such statements shall be admissible. 

• Child Complainant’s Evidence by video-recording and television link

Oral Evidence also includes the child’s complainant evidence by video recording and television link, so if there is any evidence which is presented through video recording they are admissible under oral evidence as long as they are not tampered with. 

• Witnessing offence on visual display of video-recording

If there is a video which displays an offence being committed it may be admissible if it ensures that it is not tampered by any means. This may also be included under oral evidence. 

Section 33 as an Exception to Section 60

Section 33 of Indian Evidence Act, 1872 basically gives us a structure of exception to section 60, it has certain exceptions against rule of hearsay which we will see below: 

1. Res-gestae( derived from a Latin word meaning something deliberately undertaken or done)– For example, if A sees B passing by him on a bike and after that he sees that B has been injured but A has not administered the accident on his own, when A goes to B;  B says that C has hit him by truck, such statement though hearsay may be admissible.  
2. Admission or confession- For example, A coming out of the court tells B his guilt of committing murder of C, though hearsay but statement shall be accepted as evidence. 
3. By any reason the person cannot come to the court if he is dead, cannot be found, is incapable of coming to court; every such information which has been passed to the other person and that person giving the testimony in the court shall be held admissible.  

Difference Between Oral and Documentary Evidence

Case Laws on Oral Evidence

• State v. Rajal Anand 

It was held under this case that section 60 of the Indian Evidence Act only includes the word “direct” and excludes hearsay. Any evidence given must be direct and the hearsay evidence does not hold any area under oral evidence as it is not direct. But the doctrine of Res-gestae has been observed as an exception to the rule of hearsay which explained that any person who has experienced any series of relevant facts, his testimony after the incident even if he has not seen the crime being committed will be accepted. 

• Amar Singh v. Chhaju Singh And Anr.

A relationship between section 50 and 60 of Indian Evidence Act has been established which says that for proving an evidence completely, two things shall be fulfilled firstly, there shall be a presence of relevant facts and those facts have been presented directly by the person who has either seen them, heard them or etc. 

• Bhima Tima Dhotre v. The Pioneer Chemical Co.

In this case, it was held that any fact can be proved by oral evidence instead of the content of documents or electronic records. It is seen that if the person who has presented the documentary record is called to prove the records, documentary evidence loses all its significance and it will become oral evidence which will be meaningless.  

Conclusion

On concluding the article, oral evidence, with its increasing approach can be appropriate for passing judgement if proved beyond a reasonable doubt. Earlier it was seen to be weak evidence but its need has been growing in modern times. In my opinion incidents and facts can be better understood through oral ways as the person who has administered the incident itself can explain it in a more clear way rather than documentary form of evidence.

References

• www.indiankanoon.org

• www.legalcrystal.com

• www.youtube.com

• www.lawteacher.net

• www.lawyerservices.in

• www.the-laws.com

• www.Advocatekhoj.com

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

The post Oral Evidence Under the Indian Evidence Act,1872 appeared first on iPleaders.

This article is written by Shalu Gothi, B.A.LLB (Hons.) from FIMT, School of Law, New Delhi. This article gives you a general idea about the provisions related to copyright in India.

Introduction

Copyright law as its name suggests is the simple law that suggests if you create something you own it and only you get to decide what happens next with it. In India, law related to copyright is governed by the Copyright Act, 1957. The objective of this copyright law is mainly twofold: first to assure authors, composers, artists, designers and other creative people, who risk their capital in putting their works before the public, the right of their original expression, and second to encourage others to build freely upon the ideas and information conveyed by a work. 

Historical development in India

In India, the earliest law of copyright was enacted by the British during the realm of East India Company that is the Indian Copyright Act, 1847 which was passed for the enforcement of rules of English copyright in India. After it, by Copyright Act 1911,  this law was repealed, replaced and applied to all British colonies including India. Further, it was again modified in 1914 by the Indian Copyright Act, 1914, which remained applicable in India until replaced by the Copyright Act, 1957 by the parliament of sovereign India.

Subject matter of copyright

All subject matters protected by copyright are called ‘works’. Thus according to Section 13 of The Copyright Act 1957, it may be subjected for the following works:

• Original Literary Work, 
• Original Dramatic work,
• Original Musical work,  
• Original Artistic Work,
• Cinematography films, and
• Sound recordings.

Original Literary Work

It is the product of the human mind which may consist of a series of verbal or numerical statements, not necessarily possessing aesthetic merit, capable of being expressed in writing, and which has been arrived at by the exercise of substantial independent skill, creative labor, or judgment. The Copyright Act,1957 provides an inclusive definition of literary work, according to which the literary work includes computer programming, tablets, and compilations including computer database.

Original Dramatic Work

According to the Copyright Act,1957, the dramatic work includes any piece for recitation, choreographic work or entertainment in dumb shows, the scenic arrangement or acting form which is fixed in writing or otherwise but does not include a cinematographic film. Since the definition is an inclusive one, the other things fall within the general meaning of dramatic work, and may also be covered by the definition.

Original Musical Work

According to the Copyright Act, 1957, the musical work means any work consisting of music and includes any graphical notion of such work, but does not include any words or any action intended to be sung, spoken or performed with the music. In order to qualify for copyright protection, a musical work must be original. 

Original Artistic Work

According to the Copyright Act, 1957, the artistic work includes any painting, sculpture, drawing, engraving photograph of any work possessing artistic qualities. However, it also includes the architecture and artistic craftsmanship of such works. 

Cinematographic Films

According to the Copyright Act,1957 cinematographic films includes any work of visual recording and a sound recording accompanying such visual recording and the expression cinematograph shall be construed as including any work produced by any process analogous to cinematographic including video films. 

Sound Recording

According to The Copyright Act, 1957, sound recording suggests that a recording of sounds from which that sound may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.

Clause (a) of this Section 13 provides the definition of original work whereas clause (b) and (c) protect by-product works. This Section stipulates that copyright is subject to the provisions of the aforesaid Section and therefore the different provisions of the Act don’t exist de-hora and outside the ambit of the Act, it’s a right created under the statute and no right outside the aforesaid Act is claimed.

Rights of the copyright holder 

In the Copyright Act, 1957, the owner possesses the negative rights which are to prevent others from using his works in certain ways and to claim compensation for the usurpation of that right. In this Act, there are two types of rights given to the owner:

• Economical rights; 
• Moral rights.

Economic rights

This right is also known as the Exclusive Rights of the copyright holder provided under Section 14. In this Act different types of work come with different types of rights. Such as:

In the case of original literary, musical, and dramatic work:

• Right to reproduce;
• Right to issue copies;
• Right to perform at public;
• Right to make cinematography and  sound recording;
• Right to make any translation;
• Right to adaptation; and
• Right to do any other activities related to the translation or adaptation.

In the case, of computer program work:

• Right to do any act aforesaid mentioned; and
• Right to sell, rent, offer for sale of the copyrighted work.

In the  case of artistic work:

• Right to reproduce;
• Right to communicate;
• Right to issue copies;
• Right to make any cinematography and sound recording;
• Right to make an adaptation; and
• Right to do any other activities related to the translation or adaptation. 

In case of a cinematograph film work:

• Right to sell, rent, offer for sale of the copyrighted work; and
• Right to communicate.

In the case of  a sound recording work:

• Right to communicate;
• Right to issue copies; and
• Right to sell, rent, offer for sale of the copyrighted work.

Moral rights

In addition to the protection of economic rights, the Copyright Act, 1957 conjointly protects the ethical rights, that is due to the actual fact that a literary or inventive work reflects the temperament of the creator, just as much as the economic rights reflects the author’s need to keep the body and the soul of his work out from commercial exploitation and infringement. These rights are supported by Article 6 of the Berne Convention of 1886, formally referred to as a world convention for the protection of literary and inventive works, whose core provision relies on the principle of national treatment, i.e. treats the opposite good as one’s own.

Section 57 of The Copyright Act,1957 recognize two types of moral rights which are:

• Right to paternity– which incorporates the right to assert the authorship of the work, and right to forestall others from claiming authorship of his work; and
• Right to integrity-  which incorporates right to restrain, or claim of damages in respect of any distortion, modification, mutilation, or any other act relates to the said work if such distortion, multiplication or alternative act would be prejudiced to claimant honor or name.

Authorship and Ownership in copyright 

Section 17 of this Act recognizes the author as the first owner, which states that subject to the provision of this Act, the author of a work shall be the first owner of the copyright therein:

• In the case of literary or dramatic composition, the author,
• In the case of musical work, the musician,
• In the case of creative work apart from photography, the artist,
• In the case of photographic work, the artist,
• In the case of cinematographic or recording work, the producer,
• In case of any work generated by any computer virus, the one who created.

However, this provision provided to bound exception:

• In case of creation is made by the author underemployment of the proprietor of any newspaper, magazine or any periodic, the said proprietor,
• In the case where a photograph is taken, painting or portrait is drawn, cinematograph is made for the valuable consideration of any person, such person,
• In case of a work done in the course of the author’s employment under the contract of service, such employer,
• In case of  address or speech delivered on behalf of another person in public, such person,
• In the case of government works, the government,
• In the case of work done under direction and control of public undertaking such public undertaking, and
• In the case of work done in which provision of Section 41 apply, concerned international organizations. 

Assignment of copyright

The owner of the copyright can generate wealth not only by exploiting it but also by sharing it with others for mutual benefit. This can be done by the way of assignment and licensing of copyright.

Only the owner of the copyright has the right to assign his existing or future copyrighted work either wholly or partly and as a result of such assignment the assignee becomes entitled to all the rights related to copyright to the assigned work, and he shall be treated as the owner of the copyright in respect of those rights.

Mode of the assignment agreement 

As per Section 19, these conditions are necessary for a valid assignment: 

• It should be in writing and signed;
• It should specify the kinds of rights assigned and the duration or territorial extent; and 
• It should specify the amount of royalty payable if required in any case.

It is also provided that, if the period is not mentioned in the agreement it will be considered as five years and if the territorial extent is not stipulated in the agreement, it will be considered as applicable to the whole of India. 

Disputes related to the assignment of copyright 

According to the Copyright Act, 1957, the appellant board where the receipt of the complaint by the assignor and after holding necessary inquiry finds that the assignee has failed to make the exercise of the rights assigned to him, and such failure is attributed to any act or omission of the assignor, may by suitable order, revoke such assignment. However, if the dispute arises with respect to the assignment of any copyright then that appellate board may also order the recovery of any royalty payable.

Operation of law in assignment

According to The Copyright Act, 1957, where under a bequest a person is entitled to the manuscript of any literary, dramatic or any other kind of work and such work has not been published before the death of the testator, unless the contrary is proved such person shall be treated as the owner for such work.

Infringement and remedies

Where a person intentionally or unintentionally infringes the rights of the copyright holder, the holder may be subject to the following remedies available under this Act.

Civil remedies

These remedies are given under Section 55 of the Copyright Act,1957 which are:

Interlocutory injunction

This is the most important remedy against the copyright infringement, it means a judicial process by which one who is threatening to invade or has invaded the legal or equitable rights of another is restrained from commencing or continuing such act, or is commanded to restore matters to the position in which they stood previous to the relation. Thus for granting the interlocutory injunction, the following three factors are considered as necessary:

• Prima facie case, an assumption of the court that the plaintiff can succeed in the case and became eligible for relief.
• Balance of convenience, in it the court will determine which parties suffer the greater harm, this determination can vary with the facts of each case.
• Irreparable injury, it is difficult to decide and determine on a case by case basis. Some examples of it include- loss of goodwill or irrevocable damages to reputation, loss of market share.

Mareva injunction

This is a particular form of the interlocutory injunction which restrains the defendant from disposing of assets that may be required to satisfy the plaintiff’s claim or for removing them from the jurisdiction of the Court.

Anton Piller order 

This order is passed to take into possession the infringed documents, copies and other relevant material of the defendant, by the solicitor of the plaintiff. This order is named after the famous case of Anton Piller KG v/s Manufacturing Process Ltd, 1976. In this case, the plaintiff Antone Piller, the German manufacturer is successful in passing ex-parte awards of restraining the use of his copyrighted products against the defendant.

John Deo’s order

In this order, the Court has the power to injunct rather than those impeded in the suit, who may be found violating the rights in the field of copyright. Thus this order is issued against the unknown person, who has allegedly committed some wrong, but whose identities cannot entertain the plaintiff.

Pecuniary remedies

There are three types of pecuniary remedies provided:

1. An account of profit, which lets the owner seek the sum of money made, equal to the profit made through unlawful conduct.
2. Compensatory damages, which let the copyright owner seek the damages he suffered.
3. Conversational damages, which are assessed to the value of the article.

Criminal remedies

For infringement of copyright, the criminal remedies provided under Section 63:

• Imprisonment, not less than 6 months which may extend up to 3 years;
• Fine may not be less than 50,000 which may extend up to 2,00,000;
• Search and seizure of copyrighted goods; and
• Delivery of copyrighted goods to the copyrighted owner. 

In the case of repeat offenders, minimum punishment terms of 1 year and fine of 1 lakh however, the highest punishment will be the same as the first time offender.

Exceptions

This act shall not constitute copyright infringement in cases of:

Fair Dealing

Fair dealing is the statutory limitation on the exclusive right of the copyright owner which permits reproduction or use of copyrighted work in a manner that otherwise would have constituted infringement. This law is given under Section 52 of the Copyright Act,1957 according to which the free uses can be made for any work except computer program for the purposes:

• For private and personal use including research,
• For criticism and review,
• For reporting of current events or issues including lectures in public,
• For broadcasting in cinematographic films or by posting photographs,
• For reproduction and reporting of any judicial proceeding,
• For reproduction, or publication of any kind of work prepared by the secretariat of a legislature,
• For reproduction of any kind of work in a certified copy made or supplied accordance with any law,
• For reading and recitation of any literary or dramatic work in the public domain,
• For publication of any non-copyright matter bonafide intended for the use of educational institutes, and
• For recording any sound by the owner of the right in the work. 

Conclusion

The copyright law is considered as an essential law of protection for a country because it enriches the national cultural heritage of it. However, higher the level of protection given to literary, dramatic, musical or artistic work in any country, automatically higher is the number of intelligent creation, i.e. higher its renown. Thus, in the final analysis, we can say for economic, cultural and social development, it is the basic perquisites.

References

• Law relating to Intellectual Property Rights, LexisNexis student Edition, V.K. AHUJA.
• http://copyright.gov.in/Documents/CopyrightRules1957.pdf.
• https://r.search.yahoo.com/_ylt=AwrxiDaqaXNeGFEAhbq7HAx.;_ylu=X3oDMTByYmpmZjA4BGNvbG8Dc2czBHBvcwMzBHZ0aWQDBHNlYwNzcg–/RV=2/RE=1584650795/R O=1 0/RU=https%3a%2f%2flegalvision.com.au%2fwhat-are-a-copyright-holders-economic-ri ghts%2f/RK=2/RS=t_C4kCI6ABeyzi7JbsFMpLxYctg-.
• http://www.legalserviceindia.com/articles/copy_owner.htm.
• https://www.mondaq.com/india/Intellectual-Property/854828/Assignment-And-Licensing-Of-Copyright.

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The post All you need to know about the Copyright Act, 1957 appeared first on iPleaders.

This article has been written by  Kartik H. Shah pursuing a Diploma in contract drafting with LS. from Lawsikho.com. 

What is a contract?

Section 2(h) of the Indian Contract Act, 1872 simply defines a contract as:

An agreement which is enforceable by law.

In other words, a contract is an agreement, the object of which is to create an obligation. So, when an agreement enables a person to compel another to do something or abstain from doing something, it is called a contract.

What is a breach of contract?

A contract can be said to be breached or broken when either of the parties fails or refuses to perform his obligations, or his promise under the contract. Therefore, it can be said that when a binding agreement is not honoured by one or more parties by non-performance of his promise, the agreement can be said to be breached.

Introduction

Parties to a contract are legally expected to perform their respective obligations, so naturally, the law frowns upon a breach by either party. Therefore, as soon as one party commits a breach of the contract, the law grants to the other party three remedies. He may seek to obtain:

1. Damages for the loss sustained, or 
2. A decree for specific performance, or 
3. An injunction.

The laws relating to damages are governed by the Contract Act, whereas the laws relating to injunctions and specific performance are governed by the Specific Relief Act, 1963.

Damages for the loss sustained

Section 73 of the Indian Contract Act 1872 lays down four important rules governing the measure of damages.

First Rule: Section 73(1)

When a contract has been broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him:

• Which naturally arose in the usual course of things from such breach, or
• Which the parties knew, when they made the contract, to be likely to result from the breach of the contract.

An uncommonly known fact is that Section 73 is based on a case law, i.e. Hadley v. Baxendale (1854) 9 Ex. 354

The well-known rule in this case was stated by the Court as follows:

“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be either such as may reasonably and fairly be considered as arising naturally, i.e. according to usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.”

Second Rule: Section 73(3)

The second rule of measuring damages deals with remoteness of damage. It states,

“Such compensation is not to be given for any remote and indirect loss or damage sustained by the reason of the breach.”

Damages are measured by the loss actually suffered by the party. The loss must naturally arise in the usual course of things from the breach; or it must be such as the parties knew, when they made the contract, to be likely to result from the breach of it. Therefore, it follows that a party is not liable for a loss too remote, i.e. which is not the natural or probable consequence of the breach of the contract.

In Madras Railway Company v. Govinda (1898) 21 Mad. 172, the Plaintiff, who was a tailor, delivered a sewing machine and some clothes to the defendant railway company, to be sent to a place where he expected to carry on his business in an upcoming festival. Due to mistakes made by the company’s employees, the goods were delayed and were not delivered until some days after the festival was over. The plaintiff had not given any notice to the railway company that the goods were required to be delivered within a fixed time for any special purpose. On a suit by the plaintiff to recover a sum of his estimated profits, the Court held that the damages claimed were too remote.

Third rule: Explanation to Section 73

The third rule is to be found in the Explanation to Section 73, which provides as follows:

“In estimating the loss or damage arising from a breach or contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.”

Therefore, if a railway company, having contracted with a passenger to take him to a particular station fails to do so, the passenger is entitled to damages for the inconvenience of having to walk and any reasonable expense which he incurs, like staying at a motel, and he may get some other conveyance, and charge the railways with that expense if it is a reasonable thing to do so in that particular circumstance. What is not reasonable is for him to charter a special train to save himself for waiting and charge the railway company with the expenses.

Fourth Rule: Section 73

It is to be noted finally, that damages payable for the breach of a quasi-contract are exactly the same as those payable for any other contract. To rephrase, all the above rules apply to quasi-contracts in the same manner.

It should be noted that when no loss arises from the breach of contract, only nominal damages are awarded. Damages are given by way of restitution and compensation only, and not by way of punishment. The aggrieved party can therefore recover the actual loss caused to him as compensation.

A decree for Specific Performance 

According to Section 10 of the Specific Relief Act, 1963, there are seven cases when specific performance of a contract may be allowed by the Court. They are: 

When there is no standard for ascertaining actual damage

When it is impossible to quantify the actual damage caused by the non-performance of the act agreed to be done, the Court may, in its discretion, grant a decree of Specific Performance of that act.

Duke of Somerset v. Cookson, 1935, 3 P Wins. 390

Art, paintings, old furniture, antiques, etc. have a special value to the contracting party, although such articles may not have much monetary value. For example, an idol which has been passed down from generation to generation of a family has immense value to that family, even if it means nothing to someone else. No amount of damages can compensate for the loss to the members of the family, even if the Court makes an attempt to assess the damages payable instead of the idol. Therefore, an order will be passed for specific delivery of that idol, not for damages.

In Vijaya Minerals v. Bikash AIR 1996 Cal. 67, the Hon’ble Calcutta High Court has observed that since manganese and iron ore are not ordinary items of commerce, if a contract for sale of iron and manganese ore from a mine has been made, specific performance of such an act would be allowed.

When monetary compensation would not afford adequate relief

When the act agreed to be done is such that compensation offered in money for its non-performance would not afford adequate relief. However, until the contrary is proved, it is to be presumed that:

• The breach of a contract to transfer immovable property cannot be adequately compensated by payment of money.
• The breach of a contract to transfer movable property can be so compensated, except in the following cases:
  1. Where the property is not an ordinary article of commerce or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
  2. Where the property is held by the defendant as the agent or trustee of the plaintiff.

Usually, the Courts are entitled to presume that in case of breach of contract to transfer of immovable property, mere compensation is not adequate relief, whereas specific performance is adequate relief, whereas in the case of movable property, compensation is the ordinary relief and specific performance is exceptional. However, it must be noted that these presumptions are rebuttable.

In Bank of India v. Chinoy, AIR 1949 PC 90, it was held that if shares are freely available in the market, then specific performance would not be granted. If shares of a particular company, for instance a private company are not readily available in the market, specific performance would be granted.

Suits for enforcement of a contract to execute a mortgage

In a suit for the enforcement of a contract to execute a mortgage or furnish any other security for the repayment of any loan which the borrower is not willing to pay at once, specific performance may be allowed. However, where only part of the loan has been advanced by the lender, he must be willing to advance the full amount of the loan.

1. Contracts for the purchase of any debentures of a company.
2. Suits for the execution of a formal deed of partnership.
3. Suits for the purchase of partner’s share.
4. Suits for the enforcement of a building construction contract or any other work on land, provided the following 3 conditions are fulfilled:
   • The building or other work has been described in the contract in a reasonably precise manner, so as to enable to Court to decide the exact nature of building or work;
   • The plaintiff has substantial interest in the performance of the contract, and the interest is such that financial compensation for non-performance of the contract would not be adequate relief; and
   • After the contract, the defendant has obtained possession of the whole or any part of the land in question.

It is important to remember that specific performance is an equitable remedy, and is therefore left to the discretion of the Court, rather than to the right of a person by law.

An injunction

Under Section 36 of Specific Relief Act 1963, an injunction is defined as an order of a competent court, which: 

1. Forbids the commission of a threatened wrong,
2. Forbids the continuation of a wrong already begun, or
3. Commands the restoration of status quo (the former course of things).

Clauses i and ii deal with preventive relief, whereas clause iii deals with an injunction called mandatory injunction, which aims at rectifying, rather than preventing the defendant’s misconduct.

Under Sections 36 & 37 of the Specific Relief Act 1963, there are two types of injunctions – temporary and perpetual, whereas Section 39 governs mandatory injunctions.

Temporary or interim injunctions are governed by Order 39 of Civil Procedure Code 1908 and are those injunctions that remain in force until a specified period of time, e.g. 15 days, or till the date of the next hearing. Such injunctions can be granted at any stage of the suit. 

Permanent or perpetual injunctions, as under Sections 38 to 42 of the Specific Relief Act, 1963 are contained in the decree passed by the Court after fully hearing the merits of the case. Such an injunction permanently prohibits the defendant from committing an act which would be contrary to the plaintiff’s rights. 

Q: When are perpetual injunctions granted?

A: Under Section 38 of the Specific Relief Act 1963, whenever the defendant invades, or even threatens to invade the plaintiff’s right to enjoyment of property or right to property itself, the Court may grant to the plaintiff a perpetual or permanent injunction in the four cases as follows:

1. Where there is no standard for quantifying the actual damages caused, or likely to be caused, to the plaintiff, by the invasion of his rights;
2. Where invasion of the plaintiff’s rights is such that any compensation in money would be inadequate relief; 
3. Where the defendant is a trustee of the property for the plaintiff;
4. Where the injunction is necessary to prevent multiplicity of judicial proceedings.

Mandatory injunctions are granted in cases where in order to prevent the non-performance of an obligation, it is necessary to compel the performance of certain acts which the Courts are capable of enforcing. Thus, the Court may at its discretion grant an injunction to prevent such non-performance and also to compel performance of the required acts. This injunction is applicable to the breach of any obligation. It may be permanent or temporary, although temporary-mandatory injunctions are rare.

Damages instead of, or in addition to injunction:

Section 40 of the Specific Relief Act 1963 states that a plaintiff may claim damages either in addition to or in substitution for suing for perpetual or mandatory injunction, and if the Court deems fit, it may even grant such damages.

It is worth emphasizing that damages and injunction are not alternate remedies. Both may be allowed at the discretion of the Court.

However, damages cannot be granted unless the plaintiff has claimed damages in the plaint. In the event that the plaintiff has not claimed damages in the plaintiff itself, he should be allowed to amend the plaintiff, at any stage of the proceedings, on such terms as may be just in the circumstances of the case. 

To conclude, it is thus evident that there are several remedies available in case of breach of a contract, none of which are very simple. One would have to overcome an abundance of challenges and rebuttals to prove a case of breach of contract.

The post Remedies for Breach of Contract appeared first on iPleaders.

This article is written by Mohd Sarim Khan, from Lloyd Law College.

Career in Judiciary

The importance of the judiciary does not come up suddenly in a few years, it is one of the most prominent and respectful professions from the ancient periods. Producing justice is a very challenging and powerful profession that comes with a responsibility to decide right or wrong. This Profession not only Provides Challenges in one’s life but also brings financial and social gains to attach with it. Judiciary is the only position that has the power and respect to decide the issues which are of national importance.

If you are passionate to become a judge and want to deliver justice, then appearing for the Chattisgarh Judicial Services Competitive Examination is a very bright opportunity. 

How to become a Judge in the state of Chattisgarh

The State government allows you to become a judge by the following two ways:

• Firstly, by appearing and getting selected for the lower judiciary competitive exam conducted by the Chhattisgarh public service commission conducted on a regular basis.
• Secondly, by appearing for an entry-level competitive exam for the higher judicial services after litigating for a minimum of 7 years in any High Court/District Court. 

In this article, we will confine our research upon the lower judiciary service of Chhattisgarh to make the candidates, who wish to appear, get complete clarity about the exam.

Frequency of Exam

Chhattisgarh Public Service Commission conducts an exam yearly or twice a year depending upon the number of vacancies estimated by the High Court of Chhattisgarh. More probable tentative dates for the preliminary exam fall between the month of April-May.

Number of Seats

Chattisgarh is the ninth largest state in India with a population of 25.5 million. It is a developing state in India. The development of the state can’t be done without proper and smooth governance of law and order. The adequate judicial officer is required to finish the pendency of cases in the judiciary, there is an urgent need to recruit more and more judicial officers by Chhattisgarh High Court to fulfil the need of the Judicial officer for the smooth functioning. The High court offers the numbers of seats depending upon the vacancy, the numbers of seats vary between 35-45 for the general, where aggregate seats for the reserved category have so far varied between 10-15.   

Eligibility

The following essential qualifications must  be qualified at the time of application:

1. The candidate must be a citizen of India.
2. The candidates must be a holder of a degree in law which is recognized by the bar council of India.
3. The minimum age prescribed is 18 years, while a candidate above 40 years shall be ineligible, the upper age limit is relaxable by 3 years for S.C category candidates of Chhattisgarh.

**Enrollment with the Bar Council of India/State as an advocate is not a requirement for appearing in the Judicial Exam.

Mode of Applying

Applications are received online. A candidate is required to register himself or herself as a “new user” on the Chhattisgarh Public Service Commission website(http://psc.cg.gov.in/ ). If you have already registered with the Chattisgarh Public Service Commission website. Then click on the “registered users link” available on the website.

The mode of fees payment is through e-payment i.e. through debit card, credit card and net banking (Rs 400 for general category, and Rs. 300 for other reserved categories).

Centres of Examinations

Preliminary Examination  

• Bilaspur
• Raipur
• Durg- Bhilai

Mains Examination

• Bilaspur
• Raipur

Language of the Paper

The language of questions paper of online preliminary examinations and mains written examinations will be English and Hindi.

Scheme of the Exam

The Judicial examination shall be conducted by the CGPSC in three parts.

1. Firstly, the preliminary examination shall be conducted to restrict the number of candidates to the reasonable limits for the mains examination.
2. Questions for online preliminary examination shall be of 100 marks and will consist of 100 objective types questions. Each question will have four options for an answer, out of which one option will be the correct answer.
3. Candidates shall have to tick the correct options.
4. Online preliminary examinations papers (objectives type) shall be evaluated as per entries made on online exams to be assessed on the computer.
5. All the merit holder students who have appeared in the online preliminary examinations. Will be selected in the ratio of 1:10 having regard to the number of vacancies shall be declared qualified for appearing in the mains.
6. Candidates obtaining equal marks as obtained by the last qualified candidates shall also be declared as qualified.
7. Though in consequence, the number of candidates declared as qualified may exceed the parameter of 10 times the number of notified vacancies.
8. The same procedure will be adopted for viva voce in the mains examination while declaring the candidates qualified on the basis of merit possibly three times against the number of vacancies.
9. The final selection will be on merit on the basis of the total obtained in the written (Mains) examination and viva voce. The calling of the candidates for viva-voce will be the final.
10. Maximum 15 marks are fixed for viva voce.
11. A candidate belonging to the unreserved category has to secure a minimum of 33% marks in the viva -voce and those belonging to scheduled classes/schedule tribes other backward classes shall be required to secure a minimum of 25% marks in the viva voce.

Key Notes

• The screening test will be conducted in the online preliminary examination to shortlist candidates for the main examination. 
• The mark sheet for online preliminary examination will not be issued.
• The candidates remaining absent in the viva-voce shall be disqualified for the selection.

Syllabus

Preliminary Exam

Questions: 100

Time: 2:00 Hours                                                                                                         Marks:100

Mains Exam

Time: 3:00 Hours                                                                                                         Marks: 100

Interview

Relatively more meritorious candidates from among those who appeared in the mains examination in the ratio 1:3 having regard to the number of vacancies shall be called for viva-voce. The maximum marks for viva-voce would be 15.

A candidate belonging to the unreserved category has to secure a minimum of 33% marks in the viva -voce and those belonging to scheduled castes/scheduled tribes/other backward classes shall be required to secure a minimum of 25% marks in the viva-voce.   

Weightage of each Subject

Preliminary Exam

The weightage of each subject differs from year to year. However, each year maximum questions have been asked from:

• Code of Civil Procedure Code
• Code of Criminal Procedure Code
• Indian Evidence Act
• Transfer of Property Act

Syllabus of preliminary exam of the Chhattisgarh consists of all the important subject of law, however, ignoring the local law of Chattisgarh is not a wise option as each mark counts and often questions from these laws decide the marks for the candidate’s such law are:

• The Chhattisgarh Rent Control Act, 2011
• Chhattisgarh Land Revenue Code
• The Chhattisgarh Excise Act, 1915     

Another thing which we have to be mentally prepared for is that the preliminary exam will be online and Multiple Choice Question-based will consist of both procedural and substantive law. Thus, if a candidate is specifically focusing on the exam, he/she must keep a tab of the latest as well as old landmark judgment cases from all subjects.

Language Exam

The mains exam paper is subjective which is divided into three parts:

• Framing of Issues and writing of Judgment of Criminal Cases of 40 Marks
• Framing of Charges and writing of Judgment of Criminal Cases of 40 Marks
• Translation 
• Hindi to English – 10 Marks
• English to Hindi – 10 Marks

Level of Competition

In the past, mostly students who belong to Chhattisgarh were appearing for the exam, but with increasing awareness and quality of exam paper and legal education, the number of students from adjoining states is rapidly increasing.

Thus, it increases the level of competition for the students as there are limited numbers of seats. But one person shall be conscious that the real competition is always between a few serious candidates who form the cream of the competition, more than half of the students just appear to check the level of the paper.

Mantra on how to Prepare

The key mantra to crack the CGPSC exam is to follow three simple rules: “divide and learn the syllabus, back it up with extensive revision.” It is suggested to create a daily schedule and cover the entire syllabus in the limited time that one has.

Ladder of Preparation

• First, try to cover up the lengthy and complex laws such as C.P.C and CrPC.
• Try to frame your time of 4-5 months for extensive study.
• Cover the following laws together for a better understanding such as:

• C.P.C and Limitation Act
• Cr.Pc and Negotiable Instruments Act
• Contract Law and Specific Relief Act
• Transfer of Property Act 

• The Chhattisgarh Rent Control Act, 2011, Chhattisgarh Land Revenue Code and The Chhattisgarh Excise Act, 1915
• Pick and go through the past year papers of both prelims and mains to have an idea about the types of questions that have been asked earlier.
• The maximum question of the prelims exam is memory-based, regular revision is extremely important.
• With each revision try to make notes more concise so that the last day of revision is an easy task.
• Write a good essay in English, read the editorial section of a standard English newspaper such as the Hindu, the Times of India etc.

Reference

Website of CGPSC: http://psc.cg.gov.in/

ALL THE BEST

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The article is written by Anubhav Janghu.

Introduction

The person in whose favor the judgment has been passed is known as the decree-holder while the other one is the judgment debtor. The Code of Civil Procedure (hereinafter referred as CPC) lays down various ways for execution of the decree, among those, one is arrest and detention that will be dealt in this article. There have been certain exemptions and immunity given to judgement debtor and it is made sure by the court that no willful defaulter is exempted. It also protects judgement debtor in case he is not in the position to pay.

Decree under CPC

Decree is defined under Section 2(2) of CPC, it has the following essential elements:

1. There should be an adjudication;
2. The adjudication should determine the rights of parties regarding the matter in controversy; and
3. The adjudication should be in a suit and the adjudication should be formal and conclusive so far as that the court is concerned.

Decree can be preliminary if the court adjudicates certain essential elements before deciding on the rest. Final decree is when the suit is disposed and all the controversies in the matter have been adjudicated. Decree deals with the substantive legal rights of the parties, and order which is defined under Section 2(14) of CPC deals with procedural legal rights of the parties and order is always final.

Nature and scope

The nature of these provisions is not punitive but is remedial. The whole purpose to detain a person in civil prison is to compel a person to obey the mandate of the court when he denies to comply without any sufficient cause. Detention in prison does not wipe out a person’s liability to comply.

Provisions dealing with Arrest and Detention

The provision under CPC dealing with arrest and detention for executing a decree are substantive from Sec. 51 to Sec. 59, read with procedural provisions Order 21 Rule 30 to Order 21 Rule 40.

Procedure for arrest

A judgement debtor may be arrested in execution of any decree on any day at any hour with certain conditions to it provided in Section 55 of CPC. The conditions are:

• Must be bought before the court as soon as possible, and his detention may be in the civil prison of the district.
• No dwelling house to be entered after the sunset or before sunrise.
• No outer door of the dwelling house must be broken to enter the house unless the house is in possession of judgement debtor and he refuses to open it.
• If the room is in actual possession of women who is barred by customs to be in public, the officer must give reasonable time to her to withdraw and may enter the room for the purpose of making arrest.
• If the arrest is made where the decree in execution is a decree of money and the judgement debtor pays the amount of decree and cost of arrest to the officer arresting him, the officer must release him at once.

The court before issuing a warrant of arrest must ensure that a notice has been issued to the judgement debtor providing him with an opportunity to explain the reasons for not complying with the court orders. If the court is satisfied by any means, that the judgement debtor may abscond the jurisdiction of the court and any other reasons which would cause in delay of execution of decree, then the court may order for arrest of judgement debtor.

Power and Duty of courts

When the court issues a warrant of arrest of judgement debtor, it shall direct the officer entrusted with its execution to bring the judgement debtor with convenient speed. If the decrial amount along with the interest and cost if any of which judgement debtor is liable to pay is paid earlier then the person should not be arrested. Every person should be given a reasonable opportunity to explain why he should not be arrested. The court must ensure that arrest and detention should only be made if the judgement debtor is willfully defaulting and if the reason to not comply with the court order is not willful then the court may give a reasonable opportunity of showing cause why he should not be committed to the civil prison. Under Rule 40, the court has discretion to refuse the arrest and detention of a debtor who is unable to pay, if the court is satisfied that no useful purpose is served by sending the judgement debtor to civil prison.

It is the duty of the court to conduct the inquiry before order of arrest is passed; if the conclusion of the inquiry is pending then the judgement debtor be detained in the custody of an officer of the court. The judgement debtor can only be detained by the officer of the court for a period not exceeding fifteen days. If at any point the judgement debtor furnishes security to the satisfaction of the court, then the court may release him. The judgement debtor can only be arrested by the order of the court and not by mere presumptions of officer. The court can also order release of judgement debtor if the arrest is not based on a court order.  Warrant without conducting an inquiry is not without jurisdiction if the court had sufficient reasons to believe that judgement debtor is willfully defaulting.

Where the judgement debtor denies that they have any means to repay the decretal amount and the decree-holder failed to bring on record any material regarding the source of income or cash in hand of the judgement debtor, then the order of arrest is not justified and the order of arrest cannot be issued. In ordering the arrest of a judgement debtor to the civil prison, the execution court should exhibit care and caution to ensure each step is contemplated under Section 51 and Order 21 of CPC is followed. When the judgement debtor gives sufficient reasons to court along with the bank statements and default made by him is neither mala fide nor can be called as deliberate refusal, at such point of time the order of arrest is not justified.

Subsistence Allowance under Section 57 of CPC

A judgement debtor shall not be arrested in execution of decree unless and until the decree-holder pays into court such sum as the judge may think fit in accordance with scales fixed under section 57 if no scale has been fixed. The monthly allowance fixed by the court shall be supplied by the party on whose application the judgement debtor has been arrested by monthly payments in advance before the first day of each month. The monthly allowance supplied by the decree-holder must be included in the cost.

Period of detention under Section 58 of CPC

The period of detention in civil prison for execution may be:

• If the amount to be recovered is five thousand or more, the period shall not exceed than the three months.
• If the amount to be recovered is exceeding the two thousand but below five thousand, then the period shall not exceed six weeks.
• If the amount to be recovered is less than two thousand, then no order of arrest to be made.          

Exemptions

There are certain exemptions provided form arrest and detention in the execution of a decree:

• When the decree is of an amount less than two thousand.
• No women shall be arrested in execution of the decree for money.
• Judicial officers.
• Members of Legislative bodies.

Exemption to judicial officers and member of legislative bodies is not exhaustive and at any stage, the court can order for re-arrest. The immunity given to women is absolute and no women can be arrested in execution of money decree at any stage and other remedies for execution can be opted for.

Insolvency

If no act of bad faith is proved against a judgement debtor then he must be given an opportunity to declare himself insolvent. It is the duty of the court to inform the judgement debtor before he may be committed to civil prison that he has an opportunity to be declared insolvent. The court must ensure that the judgement debtor should furnish a surety as to make sure that whenever called upon in any proceedings either insolvency or execution of decree he may be present. The judgement debtor must be given a month period to declare himself insolvent, if he fails to do so then no extension will be granted by the court; if an extension is given, that would be ultravires. On failure to declare insolvency during the prescribed period, the judgement debtor may be arrested at liberty of court.

Release of the judgement debtor under Section 58 of CPC

The judgement debtor may be released any time when the decretal amount along with interest and cost is supplied to either to the court or the officer authorized to arrest. There has been no bar as to when and where the payment is to be made, if the payment is made at the time of arrest then also judgement debtor cannot be arrested.  When the decretal amount mentioned in the arrest warrant differs with the actual amount to be paid, then also it does not provide the immunity to the judgement debtor from arrest.

Re-arrest of the judgement debtor

The immunity has been given to judgement debtor from re-arrest depending upon his earlier period of arrest being already served, he may not be arrested. If the judgement debtor pleads to the court that he is exempted from arrest under section 135 then he is liable of re-arrest at a later stage, whenever the court may deem fit to arrest him. Additionally, if the judgement debtor was arrested but was later released by the court then he can be re-arrested.

Conclusion

The remedy of execution by arrest and execution is an extraordinary remedy, it is not punitive and neither the arrest waves off the right to comply with the court decree. It gives a realization to the decree-holder of the value of decree passed in his favour. It also protects the judgement debtor if he is not in the condition of complying with the court order. Willful defaulters are liable to be arrested. This remedy is twofold as it protects the decree-holder as well as a judgement debtor. This remedy is not exhaustive, and it also prevents unusual harassment of judgement debtor, it also protects judgement debtor by giving subsistence allowance during his period of arrest. There has been ample opportunity given to judgement debtor to prove his intention for not complying with the decree. If the judgement debtor is not a willful defaulter then he may not be arrested and given an opportunity to rectify his mistake. Therefore, these provisions are not stringent.

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This article is written by Jasmine Madaan, from Vivekananda Institute of Professional Studies (VIPS). This is an exhaustive article that lists the “Top 10 Indian Law Firms in the year 2019”.

Introduction

This is an article that almost every person in the legal profession wants to read. A list which interests almost all the law students. In fact, it even should because being aware of the top-ranking law firms can help one to decide internships, explore various new fields in the legal profession and even decide their future career path. Having the ability to do good law firm research can be very fruitful for one’s career. The article provides the list of Top 10 law firms in India in 2019.

Criteria for selecting the Top law firms

Criteria for selecting the top law firms is a blend of certain factors- deal value, deal count, career Achievements, the feedback given by clients and foreign law firms, perception within the market, prestige, work environment. Every website, journal, consulting agency has its list and this current article has been formed after analysing all of them.

The Top Law Firms

1. AZB Partners

• Founders and Partners

The firm has three founding partners- Zia Mody, Ajay Bahl and Bahram N. Vakil. Miss Zia Mody and Mr Ajay Bahl are the managing partners. The firm has more than 400 lawyers and 105 partners operating at 4 different locations-Delhi, Mumbai, Bangalore and Pune. It was established in 2011.

• Practice Areas

• Aviation;

• Banking & Finance; 

• Bankruptcy & Insolvency; 

• Capital Markets; 

• Competition/Antitrust; 

• Compliance & Investigation/ White-Collar Crime; 

• Defence; 

• Dispute Resolution; 

• E-commerce & Retail; 

• Employment; Energy & Natural Resources; 

• Financial Services & FinTech; 

• Funds; 

• Healthcare and Life Services; 

• Information Technology & Business Process Outsourcing; 

• Infrastructure & Project Finance;

• Insurance; 

• Intellectual Property; 

• International Trade/ WTO; 

• Media & Entertainment; 

• Mergers & Acquisitions, Joint Ventures, General Corporate; 

• Microfinance; 

• Private Client Practice; 

• Private Equity;

• Real Estate; 

• Regulatory Practice & Securities Laws; 

• Taxation; 

• Technology, media and Telecommunications.

• Achievements

• Highest deal count as per Mergermarket H1 2019.

• Ranked No.1 in the RSG Top 50 Indian Law Firms Ranking 2019.

• Advised the largest M&A transaction by deal value in India i.e. US$23.3 billion mergers of Vodafone with Idea Cellular.

• Ranked a ‘Tier 1 Firm’ in the following Practice areas: M&A, Capital Markets, Private Equity and Banking and ranked a ‘Tier 2 Firm’ in the following practice areas: Project Finance and Telecommunications networks by IFLR1000 in the year 2019 and 2020.

• Ranked as a ‘Band 1 Firm’ in the following practice areas: 

  • Corporate/M&A, 

  • Private Equity and Real Estate; 

• Ranked as ‘Band 2 Firm’ in: 

  • Banking & Finance, 

  • Capital Markets, 

  • Competition/Antitrust, 

  • Dispute Resolution, 

  • Tax and 

  • TMT; 

• Ranked as ‘Band 3 Firm’ for Projects/ Infrastructure & Energy and White-Collar Crime by Chambers Asia-Pacific in 2019.

• Named a ‘Recognized Practitioner’ for Insurance by Chambers Asia-Pacific in 2019.

• Recognized by High Net Worth Guide for Private Wealth Law.

• Named ‘Corporate Law Firm of the Year’ in 2019 by Chambers India Law Awards.

• Named as India’s ‘Competition & Antitrust Law Firm of the Year’ in 2019 by Lawyers Worldwide Awards.

• Awarded as ‘Top Indian law firm 2019’ by RSG India.

• Ranked ‘Outstanding’ in the following Practice areas: 

  • Banking & Finance, 

  • Capital Markets, 

  • Corporate/ M&A and 

  • Private Equity; 

and in the following Industry sectors: Banking & Financial Services and Real Estate by Lawyers Worldwide Awards and Asialaw Profiles in 2019.

• Named as a ‘Band 1 Firm’ for Corporate/M&A; ‘Band 2 Firm’ for Banking & Finance, Capital Markets, Competition/Antitrust and Dispute Resolution; and ‘Band 3 Firm’ for Projects, Infrastructure & Energy by Chambers Global in 2019.

• Named ‘Private Equity Law Firm of the Year’ at Legal Era Awards 2018-19.

• For a detailed list of awards, kindly refer to https://www.azbpartners.com/awards/.

• Their unique features for which they are considered as the best

The firm is well renowned for M&A(Mergers & Acquisitions), international business and quick turnaround time on client queries. It has a better balance of the number of lawyers and equity partners. It has a well-debated decision-making process and believes in the fact that quality focus comes first. Their greatest strength is an in-depth understanding of legal, regulatory and commercial environments in India and outside India.

AZB partners have been ranked as the number 1 law firm of India in 2019 because it had the highest deal count in 2019, the third-highest deal value in 2019. The growth rate of the firm has been tremendous over the years. RSG Consulting India Report, India Business Law Journal and various other websites have also placed it in the top category.

Rating- 10/10 

2. Shardul Amarchand Mangaldas

• Founders and Partners

Founder of the firm Shardul Amarchand Mangaldas is Mr Shardul S. Shroff, who is also the current Executive Chairman of the firm. Ms Pallavi S. Shroff and Mr Akshay Chudasama is the Managing Partner. It was the third Indian law firm to have more than 100 partners. The firm at present has over 110 partners and more than 600 lawyers operating at 7 different locations in India- Delhi, Gurugram, Mumbai, Kolkata, Ahmedabad, Chennai and Bengaluru. 

• Practice Areas

  • Banking & Finance, 
  • Capital Markets, 
  • Competition Law, 
  • Dispute Resolution, 
  • General Corporate (includes M&A & PE), 
  • Intellectual Property, 
  • Insolvency & Bankruptcy, 
  • Projects & Project Finance,  
  • Tax, and 
  • Venture Capital.

• Achievements

• Highest deal value as per Mergermarket H1 2019.
• Awarded ‘India Law Firm of the Year’ at the Asian Legal Business (ALB) India Law Awards 2019
• Awarded ‘Law Firm of the Year, 2019’ by India Business Law Journal
• Awarded the ‘Most Innovative National Law Firm of the Year’ at the annual IFLR Asia-Pacific Awards 2019
• Recognised as one of the ‘Best Overall Law Firms’ by India Business Law Journal, 2010-19
• Ranked #1 in deal count and #1 in deal value in the annual Mergermarket India League Tables 2018
• The Highest number of Band 1 practices, Band 1 lawyers and Ranked lawyers in Chambers & Partners 2018
• Awarded ‘Country Firm of the Year, India’ for 2017-2019 by Who’s Who Legal

• Their unique features for which they are considered as the best

The firm has won the title of ‘Innovation in Legal Expertise’, recently. It is well-known for providing innovative solutions to its clients. The firm provides experts in various areas.

Shardul Amarchand Mangaldas has been ranked as the number 2 law firm of India in 2019 because it had the highest deal value in 2019 and third-highest deal count in 2019. As per the India Business Law Journal it is the Law firm of the year. It has been ranked at the third number by the RSG Consulting India Report. 

Rating- 9.5/10

3. Khaitan and Co

• Founders and Partners

The firm was founded in 1911 by Late Debi Prasad Khaitan and J.N. Mazumdar. His brothers, 

Lakshmi Prasad Khaitan and Bhagwati Prasad Khaitan assisted him in establishing and 

managing the firm. It was the first Indian Law firm to have more than 100 Partners. At present, 

It has more than 650 lawyers including partners. Khaitan’s total partnership headcount had increased to 152 and it has 91 equity partners. Operating in 4 different locations- Delhi (since 1970), Kolkata (since 1911), Bangalore (since 1994) and Mumbai (since 2001).

• Practice Areas

  • Banking and Finance;
  •  Capital Markets;  
  • Competition / Antitrust; 
  • Corporate and Commercial; 
  • Corporate Governance; 
  • Corporate Restructuring; 
  • Data Privacy & Protection; 
  • Debt Capital Markets; 
  • Direct Tax; 
  • Dispute Resolution; 
  • Employment, Labour and Benefits; 
  • Energy, Infrastructure and Resources; 
  • Environment; 
  • Estate Planning, Trusts and Private Client; 
  • Indirect Tax; 
  • Intellectual Property; 
  • Investment Funds; 
  • Mergers and Acquisitions; 
  • Private Equity; 
  • Public Mergers & Acquisitions; 
  • Real Estate; 
  • Regulatory Practice; 
  • Restructuring and Insolvency; 
  • Securities Litigation and Enforcement; 
  • Technology, Media and Telecommunications; and 
  • White Collar Crime.

Their focus sectors are Defence and Homeland Security; E-Commerce; Education; Hospitality; Insurance; and Pharmaceuticals.

• Achievements

• 2nd Highest deal count as per Mergermarket H1 2019.
• Revenues of the firm in the financial year 2018-19 increased by 20-25% and crossed Rs 600 Crores in April 2019.
• Ranked as ‘IFLR Top Tier Team 2020’ in Mergers and Acquisitions, Capital Markets and Restructuring and insolvency by IFLR 1000.
• Awarded as ‘SE Asia Practice Firm of the year’ at Asian Legal Business South East Asia Law Awards 2019.
• Awarded as ‘Large M&A Law Firm of the Year’, ‘Large IBC Law Firm of the Year’ and ‘Large Employment Law Firm of the Year’ at IDEX Legal Awards 2019.
• Ranked as Tier I Indian Law Firm in the following practice areas: Competition / Antitrust, Banking and Finance, Capital Markets and Dispute Resolution by Legal 500 in the year 2019.
• Awarded ‘TMT Deal of the Year’- Walmart’s acquisition of Flipkart at Asia Legal Awards 2019
• Ranked as ‘Outstanding’ Firm in the areas of Banking and Finance, Competition / Antitrust, Capital Markets, Dispute Resolution and Private Equity by Asialaw Profiles 2019.
• Awarded as ‘Deal Firm of the Year’ at Business India Law Awards 2019 
• For a detailed list of Awards, kindly refer to https://www.khaitanco.com/awards.

• Their unique features for which they are considered as the best

More than 100 years of practice has always been an asset. It is often known for its highest average packages to freshers. The depth and breadth of expertise make it a continuous part of top-ranking firms.

Khaitan & Co has been ranked as the number 3 law firm of India in 2019 because it had the second-highest deal count in 2019. The number of awards, Consistent Growth over the years and work environment contribute to its ranking. It is one of the main parts of India’s Magic Circle. It has been ranked as number 2 by the RSG Consulting.

Rating- 9.5/10

4. Cyril Amarchand Mangaldas

• Founders and Partners

After the split of the Shroff brothers, the firm was founded by Mr Cyril Shroff on May 25, 2015. Mr Cyril Shroff is also the Managing Partner of the firm. It was the second Indian Law firm to cross the 100 partner benchmark. It has about 750 lawyers and 130 partners at present. They operate in 6 different locations: Delhi, Mumbai, Bengaluru, Hyderabad, Ahmedabad, and Chennai.

• Practice Areas

  • Banking and Finance; 

  • Capital Markets; 

  • Competition law; 

  • Corporate; Disputes; 

  • Employment; 

  • Intellectual Property; 

  • Investment Funds; 

  • Financial Services Regulatory; 

  • Pharmaceuticals/ Life Sciences; 

  • Private Client; 

  • Projects; 

  • Real Estate; 

  • Tax; 

  • Investigations; and 

  • TMT.

• Achievements

• It had the second-highest deal value as per Mergermarket H1 2019.

• At the ALB India Law Awards 2020, Cyril Amarchand Mangaldas Bagged the Most Number of Awards: Law Firm of the Year; India Deal Firm of the Year; Debt Markets Deal for the Year – Network i2i’s Issuance of Securities; Equity Market Deal of the Year – Embassy Office Park’s IPO; M&A Deal of the Year(Premium) –  ArcelorMittal and Nippon Steel’s Acquisition of Essar; Deal Maker of the Year – Cyril Shroff

• Awarded ‘India Law Firm of the Year 2019’ at BusinessWorld’s Global Legal Leaders Awards 2019

• Awarded ‘Best Firm for Women in Law in India’ at Legal Media Group Euromoney Business Law Awards 2019.

• Association of Wealth Management of India (AIWMI) ranked CAM as the ‘Best Private Client Law Firm’ at India Wealth Awards 2019

• At IBLJ Deals of the Year 2019, 13 deals/matters of CAM were amongst the winning deals.

• At Asialaw Regional Awards 2019, CAM won the following awards: Law Firm of the Year (India); Energy Law Firm of the Year; Impact Deal of the Year (Walmart acquisition); and Impact Deal of the Year for (Equis acquisition)

• At IBLJ Indian Law Firm Awards 2019, CAM won 10 awards.

• At Chambers India Award 2019, CAM was awarded as the ‘Finance Law Firm of the Year’

• At ALB India Law Awards 2019, CAM won the following awards: Banking and Finance Services Law Firm of the Year; Debt Markets Deal for the Year – Allianz Capital Partners GmbH’s Investment in IndInfravit Trust; M&A Deal of the Year (Midsize) – AION Capital Partners and JSW Steel’s Acquisition of Monnet Ispat; M&A Deal of the Year(Premium)-  Walmart’s Acquisition of Flipkart; and Managing Partner of the Year – Cyril Shroff

• For the detailed list of Awards, kindly refer to https://www.cyrilshroff.com/awards-rankings/.

• Their unique features for which they are considered as the best

It is the first Indian law firm to embrace Artificial Intelligence(AI) Technology. It has the largest number of lawyers. It is well known for its functioning in Indian and International matters.

Cyril Amarchand Mangaldas has been ranked as the number 4 law firm of India in 2019. The firm has always managed to fix a spot in the top-ranking firms of India. It is the largest law firm in India based on size. It had the second-highest deal value and fourth-highest deal count in 2019. It has been placed at the fourth number by the RSG Consulting India Report. The firm has won an exceptional number of awards.

Rating- 9.5/10

5. Trilegal

• Founders and Partners

The Merger of three start-ups in 2000 led to the formation of this firm. The Mumbai-based Trilegal was founded by Karan Sigh and Sridhar Gorthi, Bangalore-based by Rahul Mattan and Prem Ayappa, Delhi-based by Akshay Jaitly and Prasad. It has 55 partners and about 400 lawyers. At present, it is operating at 4 different locations: Delhi, Gurgaon, Mumbai, and Bangalore. 

• Practice Areas

  • Asset Management and Funds; 

  • Banking & Finance; 

  • Competition Law; 

  • Corporate; 

  • Disputes; 

  • Employment; 

  • Energy & Infrastructure; 

  • International Capital Markets; 

  • M&A; 

  • PE & VC; 

  • Real Estate; 

  • Restructuring; 

  • Tax; and

  • TMT.

• Achievements

• Nominated for various categories at Chambers India Awards 2019

• It was among the top 5 Indian law firms in Deal count as per Mergermarket H1 2019.

• It was among the top 10 Indian law firms in deal value as per Mergermarket H1 2019.

• Two lawyers of the firm- Nisha Kaur and Harsh Pais were recognized as ‘Growing leaders of the year 2019’ by RSG report.

• Among the Top Ranked Firms in the Asia Pacific 2018 Chambers & Partners

• Awarded as ‘Top Tier Financial and Corporate Law Firm 2018’ by IFLR1000

• Awarded as ‘Top Tier Law Firm Asia Pacific 2018’ by The Legal 500

• Their unique features for which they are considered as the best

The firm is known for its culture, the depth of its transactional experience, the wide range of our expertise and the quality and energy of our lawyers. It is more cost-effective and delivers quality-work. It has an extensive approach in India and the International world. The firm is also known for its action against climate change. The full equity lockstep partner compensation model in which Profit is shared is a unique feature which usually International law firms have. 

Trilegal has been ranked as the number 5 law firm of India in 2019 because it had the fifth-highest deal count in 2019. The number of awards, Consistent Growth over the years contribute to its ranking. It has been placed at the fifth position by the RSG Consulting India Report and it has been named in the Big 7 by the India Business Law Journal.

Rating- 9/10

6. J. Sagar and Associates(JSA)

• Founders and Partners

JSA was founded by Jyoti Sagar in 1991 and later in April 2003, Berjis Desai started the Mumbai office. The current Joint Managing Partners are Vivek K. Chandy and Amit Kapur. At present, the firm has more than 320 lawyers operating at 7 different locations: Ahmedabad, Bangalore, Chennai, Gurgaon, Hyderabad, Mumbai and New Delhi.

• Practice Areas

  • Corporate; Disputes; 
  • Finance Sectors: Agriculture and Forestry; 
  • Capital Markets; 
  • Construction & Engineering; 
  • Defence & Internal Security; 
  • Education; 
  • Energy: Power & Hydrocarbons; 
  • Environment; 
  • Financial Services & Insolvency; 
  • Hospitality, Tourism & Retail; 
  • Insurance & Pension; 
  • Knowledge based Industries; 
  • Manufacturing; 
  • Media and Sports; 
  • Mines & Minerals; 
  • Non-Governmental Sector; 
  • Pharma; Real Estate; 
  • Services; 
  • Smart Cities; 
  • Startups; 
  • Telecommunications, Media & Technology; 
  • Transportation & logistics; 
  • White Collar Crimes and Compliance Practice.

• Achievements

• Winner (2019) of Technology, Media, Telecoms (TMT) Firm of the Year, Ranked Band 1 (2019) in Banking & Finance, Ranked Band 1 (2019) in Technology, Media, Telecoms (TMT) by Chambers Asia Pacific 2019.
• Ranked ‘Tier 1 (2019)’ in the following Practice Areas: Banking & Finance, Capital Markets, Dispute Resolution and Projects & Energy by Legal 500.
• Ranked ‘Best Overall Law Firm (2019)’ in the following sectors: Aviation, Capital Markets, Energy, Projects & Infrastructure, Policy & regulation, Structured finance & Securitisation and Technology, Media & Telecoms (TMT) by India Business Law Journal.
• Ranked 1 (Manager – By Volume): Bloomberg – Global Legal Advisers, Capital Markets – Annual 2018 by Bloomberg.

• Awarded ‘M&A Law Firm of the Year’ at BW Businessworld Legal Leaders Awards 2019.

• For a detailed list of Awards, kindly refer to https://www.jsalaw.com/firm-profile.

• Their unique features for which they are considered as the best

The firm’s community service, pro bono work and Firm retreat make it stand out. The firm tries to maintain the work-life balance. Core values of the firm provide that they combine ‘the expertise and diversity of experience of a large firm with the personalized attention and responsiveness of a boutique firm’. They believe in exceeding client expectations and “people matter”. 

Sagar and Associates has been ranked as the number 6 law firm of India in 2019 because it had the sixth-highest deal count and seventh-highest deal value in 2019. The number of awards, Consistent Growth over the years and the work environment contribute to its ranking. It has been placed at the sixth position by the RSG Consulting India Report and it has been named in the Big 7 by the India Business Law Journal. Various websites have also included the firm in their top ranking like Abhyaas, Top 10 Companies in India, etc.

Rating- 9/10

7. L&L Partners

• Founders and Partners

L&L Partners(earlier known as Luthra & Luthra Law Offices) was founded in 1990 by Mr Rajiv K Luthra. He is the current Managing Director of the firm. The firm has over 70 partners and over 300 lawyers. The firm is operative in 4 different locations: New Delhi, Mumbai, Bengaluru and Hyderabad.

• Practice Areas

  • Anti-Corruption & Compliance; 

  • Banking & Finance; 

  • Capital Markets; 

  • Competition and Antitrust law; 

  • Corporate & Commercial; 

  • Dispute Resolution- Litigation & Arbitration; 

  • Restructuring & Insolvency; 

  • Intellectual Property; 

  • International Trade; 

  • Management Labour & Employment; 

  • Mergers & Acquisitions; 

  • Private Equity & Venture Capital; 

  • Projects; Energy & Infrastructure; 

  • Real Estate; 

  • Tax(Direct & Indirect); and

  • Pro-Bono. 

• Achievements

• Awarded as ‘M&A Law Firm of the Year’ by Legal Era Indian Legal Awards 2019-20.

• The firm was awarded ‘Best Overall Law Firms’ and four other awards by India Business Law Journal 2019 

• It was among the top 4 Indian law firms based on deal value by Mergermarket H1 2019

• It was among the top 7 Indian law firms based on deal count by Mergermarket H1 2019
• Awarded ‘M&A Law firm of the year’ by the International Financial Law Review in 2019.
• Awarded ‘M&A Deal of the year’ in 2019 by the International Financial Law Review.
• Awarded ‘Private Equity law firm of the Year’ by BW Business World in 2019.
• It was the legal counsel on four of India Business Law Journal’s 2018 Deals of the Year and received four practice area awards at Indian Law Firm Awards.
• One of the most famous acquisition of 2019 i.e. JSW Steel Limited’s acquisition of Bhushan Steel was advised by L&L partners.

• Their unique features for which they are considered as the best

A deep understanding and handling. It has a good outreach globally. The lawyers ensure that clients receive innovative, practical and cost-effective advice while holding the ethical standards.

L&L Partners has been ranked as the number 7 law firm of India in 2019 because it had the seventh-highest deal count and fourth-highest deal value in 2019. The number of awards, International outreach, Consistent Growth over the years and the diverse expertise contributes to its ranking. It has been placed at the seventh position by the RSG Consulting India Report and it has been named in the Big 7 by the India Business Law Journal. Various websites have also included the firm in their top ranking like Abhyaas, Top 10 Companies in India, etc.

Rating- 9/10

8. S&R Associates

• Founders and Partners

The boutique firm was founded by Mr Rajat Sethi and Mr Sandip Bhagat in 2005.  It has 80 lawyers and 14 partners. It has 2 offices in India: Delhi and Mumbai. 

• Practice Areas

  • Banking and Finance; 
  • Capital Markets; 
  • Competition/Antitrust; 
  • Corporate Governance; 
  • General Corporate; 
  • Litigation and Arbitration; 
  • Mergers and Acquisitions; 
  • Private Equity; 
  • Regulatory; 
  • Restructuring and Insolvency; and 
  • Technology Media and Telecommunications

Sectors: 

• • Aviation; 
  • Banking and NBFCs; 
  • Consumer and hospitality; 
  • E-Commerce; 
  • Education; 
  • Energy and natural resources; 
  • Engineering and construction; 
  • Healthcare; 
  • pharmaceuticals; 
  • Infrastructure; 
  • Manufacturing; 
  • Chemicals; 
  • Automotive; 
  • Real estate; 
  • Technology; 
  • Media; 
  • Telecommunications; 
  • Travel and logistics; and 
  • Insurance.

• Achievements

• Awarded as ‘Boutique Law Firm of the Year’ by Legal Era Indian Legal Awards 2019-20.

• Ranked 6th in M&A by India League Tables in 2019
• Ranked as top tier law firm in the following areas: Corporate M&A; Dispute Resolution; and Investment funds by Asia Pacific 2020.
• Bloomberg Indian Capital Markets ranked 2nd the firm in Private Equity rights and offering in 2019
• It was among the top 5 Indian law firms based on deal value by Mergermarket H1 2019
• It was among the top 9 Indian law firms based on deal count by Mergermarket H1 2019
• It was awarded in the category of M&A by India Business Law Journal in 2019.
• Mr Rajat Sethi and Mr Sanjeev Adkala bagged the awards of ‘High quality and good Knowledgeable lawyer’ and ‘Most mature and sensible lawyer’ by Chamber Asia Pacific 2020.

• Their unique features for which they are considered as the best

The experience of lawyers working in different jurisdictions- USA, UK, Singapore helps them in providing a unique combination of Indian and International legal services. It is a boutique law firm with expertise in Dispute Resolution and Litigation.

S&R Associates has been ranked as the number 8 law firm of India in 2019 because it had the fifth-highest deal value and ninth-highest deal count in 2019. The number of awards, Consistent Growth over the years and the capacity to handle all the client’s requirements contribute to its ranking. It has been placed at the eight positions by the RSG Consulting India Report. Various websites have also included the firm in their top ranking like Abhyaas, Top 10 Companies in India, etc.

Rating- 9/10

9. Anand & Anand

• Founders and Partners

Mr N. K. Anand is the Founding Partner. Managing partner of the firm is Mr Pravin Anand. The firm has 23 partners and more than 100 lawyers and engineers. It is operative at 4 different locations: New Delhi, Noida, Chennai and Mumbai.

• Practice Areas

The key practice area of the firm is Intellectual Property(IP) which includes 

• Copyright, 
• Design, 
• Litigation, 
• Patient, and 
• Trademark.

Other practice areas are: 

• • Advertising and Product Liability; 
  • Alternate Dispute Resolution; 
  • Plant Variety; 
  • Fashion law; 
  • Biodiversity; 
  • Brand Strategy; 
  • Competition Law; 
  • IT and E-Commerce laws; 
  • Trade Secret; 
  • Licensing; 
  • White Collar and IP crime; 
  • Packaging and Labelling; 
  • Essentiality Evaluation; 
  • Art law; 
  • Franchising; 
  • Sports law; 
  • Geographical Indications; 
  • Start-up law; 
  • Contractual and Commercial IP; 
  • Enforcement; 
  • Customs; and 
  • Media and Entertainment Laws.

• Achievements

• Awarded ‘Firm of the Year’ by the Managing Intellectual Property – Asia Awards 2019
• Awarded ‘Special Awards: Impact Case of the Year 2019’ for ‘Koninklijke Philips Electronics vs. Rajesh Bansal’ and ‘Monsanto vs. Nuziveedu’ by the Managing Intellectual Property
• Managing Intellectual Property IP Stars 2019, recognized it as a Tier 1 firm in the following areas: Copyright & Related Rights, Patent Contentious, Patent Prosecution, Trademark Contentious, Trademark Prosecution.
• Awarded ‘Firm of the Year – Intellectual Property Enforcement’, ‘Firm of the Year – Intellectual Property Protection’ and ‘Firm of the Year –  Media and Entertainment – Anand and Anand & Khimani’ by the IBLJ – Indian Law Firm Awards 2019
• Recognized as a Tier 1 firm(Mumbai and Delhi) by the Media Law International.
• It was Awarded ‘Leading IP Lawyer of the Decade’, Intellectual Property Law Firm of the Year’, and ‘Outstanding Case of the Year’ by the Legal Era Awards 2019-20
• Asia Law Profiles 2019 awarded the following awards: ‘Asia Law Profiles Rankings- Outstanding- Intellectual Property’, ‘Asia Law Profiles Rankings- Recommended Firm- Pharmaceuticals and Life Sciences’, and ‘Asia Law Profiles Rankings- Notable Firm- Dispute resolution’.
• WTR 1000 Rankings 2019 awarded ‘WTR 1000 – Firm of the Year- Prosecution and Strategy’, and ‘WTR 1000- Firm of the Year- Enforcement and Litigation’
• It was recognized as ‘IAM 1000- Firm of the Year- Prosecution and Strategy’ and ‘IAM 1000- Firm of the Year- Enforcement and Litigation’ by the IAM 1000 Rankings 2019.
• Mr Pravin Anand was recognized as WTR Global Leaders 2019.
• For a detailed list of Awards, kindly refer to https://www.anandandanand.com/awards/

• Their unique features for which they are considered as the best

The firm provides 365-degree services related to Intellectual Property. The firm has an in-house anti-piracy and anti-counterfeiting team to provide clients with legal protection to safeguard their brand identities in commercial space.

Anand & Anand has been ranked as the number 9 law firm of India in 2019. The number of awards, Consistent Growth over the years and the work environment contribute to its ranking. Moreover, along with the key practice area i.e. Intellectual Property, the firm has performed exceptionally well in other fields also like ADR, etc. It has been placed at the ninth position by the RSG Consulting India Report. Various websites have also included the firm in their top ranking like Abhyaas, Shiksha, Top 10 Companies in India, etc.

Rating- 8.5/10

10. Economic Laws Practice

• Founders and Partners

Mr Sujjain Talwar is the Co-founder of the firm.  Mr Suhail Nathani is the Managing Partner of the firm. It has 25 partners and more than 200 lawyers. It has 6 offices in India: Mumbai, New Delhi, Pune, Ahmedabad, Bangalore and Chennai.

• Practice Areas

  • Banking & Finance; 
  • Competition Law & Policy; 
  • Corporate & Commercial; 
  • Data protection; 
  • Defence & Aerospace; 
  • Hospitality; 
  • International Trade & Customs Practice; 
  • Litigation, Arbitration & Dispute Resolution; 
  • Policy & Regulation; 
  • Private Equity & Venture Capital; 
  • Projects, Infrastructure & Energy; 
  • Real Estate; 
  • Securities Laws & Capital Markets; 
  • Tax; and 
  • Technology, Media & Telecommunications.

• Achievements

• Ranked as Tier 1 Firm in ALB’s Asia M&A Rankings
• Termed as ‘Highly recommended firm for Banking & Finance Services, Energy and Infrastructure by Asia Law Profiles 2019.
• Termed as ‘Highly Recommended’ for Infrastructure, Technology & Telecommunications, Transport, Banking, Capital Markets, M&A, Private Equity, and Project Finance by IFLR 1000 in 2019.
• Recognized as ‘Top Tier Firm in India’ for tax, WTO/ International Trade and Ranked for Competition & Antitrust, Projects, Infrastructure & Energy, Banking & Finance, Private Equity, Corporate and M&A, Dispute Resolution, Real Estate, TMT by Chambers Asia Pacific 2019.
• Recognized as ‘Law firm of the year for Taxation and Competition/ Antitrust by India Business Law Journal 2019.
• Termed as ‘Outstanding Firm’ for tax; ‘Highly Recommended’ for Competition/ Antitrust, Energy & Natural Resources, Projects & Infrastructure, Banking and Finance, Dispute Resolution, Financial Services Regulatory by Asia Profiles 2019.
• Recognized as ‘Top Tier Firm in India’ for WTO/ International Trade, Dispute Resolution, Tax, Corporate and M&A, Projects and Energy, and Antitrust & Competition by Legal 500 Asia Pacific 2018.
• For a detailed list of Awards, kindly refer to http://elplaw.in/about-us/#two.

• Their unique features for which they are considered as the best

The global outreach of the firm has been an asset of the firm. The firm believes in regularly sharing the knowledge to keep clients updated on issues which impact their business. The firm has a consistent focus on quality and provides outcome-oriented solutions.

Economic Laws Practice has been ranked as the number 10 law firm of India in 2019. The extensive Global Outreach of the firm, number of awards, Consistent Growth over the years and high client satisfaction contribute to its ranking. It has been placed at the tenth position by the RSG Consulting India Report. Various websites have also included the firm in their top ranking like Abhyaas, Shiksha, Top 10 Companies in India, etc. As per RSG consulting the firm has been able to secure a position in the top 10 law firms in the previous years. 

Rating- 8/10

Conclusion

The article provides the list of top 10 law firms in India based on a survey-analysis of various sources based on various factors. NOTE: The ranking can vary at different sources.

References

• https://www.vantageasia.com/india-top-law-firms-2019/
• https://www.rsgindiareport.com/the-rsg-top-50-2019
• https://www.legallyindia.com/lawfirms/revealed-law-firm-khaitan-co-revenues-top-rs-600-crores-in-2018-19-20190513-10115
• https://www.lexmundi.com/assnfe/cv.asp?ID=42396
• https://top10companiesinindia.com/top-law-firms-in-india/
• https://www.barandbench.com/news/mergermarket-h1-2019-ma-tables-shardul-amarchand-records-highest-deal-value-azb-with-most-deals
• https://lawprep.in/top-10-law-firms-in-india/
• https://blog.ipleaders.in/best-law-firms-in-india/
• https://www.legal500.com/firms/34518-shardul-amarchand-mangaldas-co/35125-new-delhi-india/
• https://www.cyrilshroff.com/
• https://www.amsshardul.com/
• https://www.khaitanco.com/
• https://www.anandandanand.com/
• https://www.trilegal.com/
• https://www.llpartners.com/
• https://www.jsalaw.com/
• http://elplaw.in/
• https://www.azbpartners.com/
• https://www.snrlaw.in/

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

The post Top 10 law firms in India in the year 2019 appeared first on iPleaders.

This article has been written by Deyasini Chakrabarti from KIIT School of law, Bhubaneswar, Odisha. This article mainly focuses on the collective investment schemes, its rules, regulations, procedure of registration and legal framework.

Introduction

We have heard about the collective efforts of an individual in a group for the betterment of the entire group. Thus, the collective investment scheme is a plan of action that comprises a pool of assets that are managed by the collective scheme manager and is governed by the Collective Investment Schemes Regulations given by the Securities & Exchange Board of India. Thus these are the methods that are being provided by the Securities & Exchange Board of India for the Investors Protection. Thus it is a group work in which several people come together and pool their money for investing in a particular asset and sharing the returns arising out of it.

The Objective of the Collective Investment Scheme

The rationale behind every investment is to undertake risk in order to earn profit or returns. Thus Collective Investment Scheme (CIS) is such a kind of policy. Therefore this paper mainly focuses on the Collective Investment Scheme. Collective investment scheme if briefly defined it means an investment scheme where investors come together and pool their money in order to invest their whole collection in a particular asset. Therefore, it is the scheme in which the returns and profits would be shared and used by the investors as per their agreements which are finalized by themselves. However, the Securities Exchange Board of India regulates it under the SEBI (Collective Investment) Scheme, 1999. This scheme also provides an exemption from Collective Investment Scheme registration.

Various collective Investment management companies are also being provided by the Security Exchange Board of India, the main objective of such a regulation is to organize, operate and manage the Collective Investment Scheme.  This paper also focuses on various rules and regulations which are required to be followed for the registration in the Collective Investment Scheme. The primary focus also rests on the participants who play a major role in such schemes. Thus the entire idea of collective investment is investing together in the same scheme collectively with an objective of earning returns.

Definition

Security and Exchange Board of India (SEBI) Act, 1992 defines collective investment scheme:  

• Collective Investment Scheme implies any plan or course of action which fulfills the conditions determined in Section 11AA.
• Section 11AA gives that any plan or arrangement which fulfills the conditions alluded to in sub-section(2) or sub-section (2A) shall be a collective investment scheme.

Be that as it may, pooling of assets under any plan or course of action plan or arrangement, which isn’t enrolled with SEBI or isn’t secured under sub-section(3), including a corpus measure of one hundred crore rupees or more will be regarded to be a collective Investment Scheme.

Important Statutory Provisions Relating to Collective Investment Scheme

Section 11 AA(2) of the Security and Exchange Board of India states that any scheme or arrangement made or offered by any person under which-

• The commitments, or payment made by the investors, by whatever name called, are pooled or used for achieving the objective or purpose of the plan or course of action.
• The commitment or payment or contribution is made to such a plan or course of action by the investors so as to get benefits, salary or income, produce or property no matter whether they are movable or immovable from such a plan or scheme.
• The property, contribution or venture framing some portion of the plan or arrangement, regardless of whether recognizable or not, is managed over investors.
• Investors don’t have everyday power over the administration and activity of the plan or course of action.

Section 11AA (2A) states that ;

• Any scheme or arrangement made or offered by any person satisfying the conditions as may be specified in accordance with the regulations made under this Act.

Section 11AA (3) states;

• Sub-segment (2) or sub-segment (2A) will not be relevant if any plan or course of action or arrangement

• Made or offered by the co-operative society enlisted under the Co-operative Societies Act, 1912 or a society being a society enrolled or esteemed to be enlisted under any law identifying with the co-operative social orders until further notice in power in any state.
• Under which deposits are acknowledged by non-banking financial companies as characterized in clause (f) of section 45-I of the Reserve Bank of India Act, 1934.
• Being an agreement or contract of insurance to which the Insurance Act 1938, applies.
• Accommodating any Scheme, Pension Scheme or the Insurance Scheme confined under the Employees Provident Fund and Miscellaneous Provisions Act, 1952.
• Under which deposits are acknowledged under section 74 of the Companies Act, 2013.
• Under which the deposits are acknowledged by the company pronounced as a Nidhi or a mutual benefit society under section 406 of the Companies Act, 2013.
• Falling inside the significance of Chit business as characterized in clause (d) of section 2 of the Chit Fund Act, 1982.
• Under which contributions are made in the idea of membership to a mutual fund.
• Such one plan or course of action which the Central Government may, in meeting with SEBI, notify, will not be a collective investment scheme.

SEBI (Collective Investment Schemes) Regulation, 1999 – An Overview

Security Exchange Board of India (Collective Investment Schemes) Regulations, 1999 characterizes Collective Investment Management Company to mean a company consolidated under the Companies Act 2013 and is enrolled with the Security Exchange Board of India under these guidelines, whose object is to arrange, work, deal and manage a collective investment scheme.

It’s likewise of the diagram that no individual other than a Collective Investment Management Company which has a certificate under the guidelines should continue or support or dispatch a collective investment scheme. We would likewise go over the term “Close Ended Collective Investment Scheme” signifies an investment made by the Collective Investment Management Company. In which the maturity time of the collective Investment scheme is indicated and there is no advancement for repurchase before the expiry of the collective investment Scheme.

In this manner, the Collective Investment Scheme property likewise incorporates:

1. Membership of money or money’s worth which also includes the band deposits  to the collective investment scheme;
2. Property procured, directly or indirectly, with, or with the returns of, membership of cash retired to in item (i),
3. Income emerging, directly or indirectly from, membership cash or property retired to in item (i) or (ii).

Participants in the Collective Investment Scheme

• The collective Investment Management company

A Collective Investment Management Company is characterized as an organization that is incorporated under the arrangements of the Companies Act, 1956 and which is additionally enlisted with SEBI under the SEBI (Collective Investment Schemes) Regulations, 1999, which works with the main goal is to compose, work and deal with a Collective Investment Scheme.

•  Fund Manager

A fund manager or an investment manager a certified and qualified person who deals with the collective investment scheme management choices and decisions. This individual likewise offers to trade reconciliation, valuation, and unit evaluating of the plan or the course of action or the scheme.

• Trustee

An individual who holds the property of the collective investment scheme in trust to support the unitholders is known as a Trustee. A trustee works as per the applicable guidelines and shields the benefits just as guarantees consistency with the principles and guidelines. It is basic that a collective investment scheme is established as a Trust according to the CIS Regulations of 1999. Here, the instrument of trust would be as a properly enlisted deed according to the arrangements gave under the Indian Registration Act of 1908. A Collective Investment Management Company starts this for the trustees named in the instrument. Besides, such an organization or company may choose a trustee who could hold the advantages of the collective investment scheme to serve its financial specialists.

• Shareholder

The unitholder, or normally known as the shareholder, are the people who contribute assets in the collective investment scheme. These shareholders need to rights to the advantages engaged with the plans and to the related salary or income produced by the plan or the scheme.

Obligations of Collective Investment Management Company

Every Collective Investment Management Company should:

(i) be liable for dealing with the assets or properties of the plan or the scheme for the benefit of the unitholders and make every single sensible walk and exercise due to ingenuity to guarantee that the plan is managed and maintained as per the rules and regulations of these guidelines, the offer document, and the trust deed;

(ii) practice due determination and care in overseeing resources and assets of the plan and furthermore answerable for the acts of commissions and omission by its representatives or the employees whose administrations have been availed or profited by it;

(iii) stay liable to the unitholders for its acts of commission or exclusions, despite anything opposite contained in any agreement or understanding and be incompetent to go into any transaction with or through its partners, or their family members associated with the scheme.

(iv) be incompetent to go into any transaction with or through its partners, or their family members associated with the scheme. In any case, on the off chance that the CIMC goes into any exchanges or transactions identifying with the scheme with any of its partners, a report to that impact will quickly be sent to the trustee and also to SEBI.

Eligibility of CIS Regulation

• The applicant must be set up and enlisted as a company under the Companies Act of 1956.
• The applicant has indicated the administration of a collective investment scheme as one of the principle objective in its Memorandum of Association.
• The applicant should be fit and legitimate as a person for the grant of such authentication of registration.
• The applicant should have a total asset of INR 5 Crores or more. Notwithstanding, this is under the condition that, at the hour of making the application, the candidate will have a minimum net worth of INR 3 Crores which will increment to INR 5 Crores within 3 years from the date of grant of registration.
• The applicant has sufficient foundation so as to empower it to work a collective investment scheme as per the provisions of the applicable guidelines.
• At least 50% of the directors of such Collective Investment Management Companies will comprise people who are independent and are not directly or indirectly connected with the people who have authority over the concerned Collective Investment Management Company.
• The directors/key faculty of the applicant will comprise people of genuineness and respectability with satisfactory expertise knowledge and involvement with the related field. They should not have been indicted for an offence including moral turpitude, any monetary offence or for the infringement or violation of any securities law.
• No people, directly or indirectly associated with the applicant, has been rejected registration by the Board under the Act before.

Rules and Regulations

It is obligatory for each and every collective investment schemes to be enrolled according to the CIS guideline and regulation. It has been commanded that no individual other than a Collective Investment Management Company which has got registration certificate under the CIS Regulation will continue, support or launch a collective investment scheme. The collective investment management company must start it through an enlisted trust by completely expressing that a collective investment scheme will be composed as a trust.

SEBI has additionally endorsed different conditions to impart trust in the contributor and to keep up more transparency in the tasks of the plan. It commits a Collective Investment Management Company to uncover basic information to its investors as it is imperative to keep them educated on each issue which may negatively affect their ventures or investments. The guidelines further extend the control of the trust by commanding that no appointment of a director of such a company will be made without the earlier endorsement or approval of the company’s trustee. Moreover, to control these organizations from getting involved in fraudulent activities, it has been carefully precluded to give ensured or guaranteed returns. The limitations on business exercises of a Collective Investment Management Company endorses that such an organization will not attempt any action other than managing collective investment schemes or to act as a trustee for some other collective investment schemes.

Legal Framework and the importance of Corporate Governance in the Collective Investment Scheme

While the potential advantages of a CIS area are obvious, experience unmistakably shows that collective investment should only happen through a formal legitimate and administrative system including a vigorous administration system for CIS. At the point when advertisers of investment plans are permitted to request assets from the wide contributing open for collective investment without an all-around characterized legitimate and administrative structure, the dangers are high of rupture of the commitments of administrators toward speculators and of destabilization of the money related framework. The hazard is especially high since CIS normally oversees resources in the interest of scattered gatherings of speculators who must rely upon the administration framework for basic parts of observing of the CIS. A portion of the financial specialists might be high net worth individuals and institutions. In any case, CIS additionally attracts the investment funds of smaller savers huge numbers of whom do not have the time, financial support or sophistication and assets to investigate information in extraordinary profundity or to make a move against advertisers.

1. Governance is one of the major aspects of any small or big company. Thus a failure in CIS can create a wide range of problems.
2. Chronicled mishandles have included straightforward theft or misappropriation of assets, deals or recoveries at wrong valuations, tricky advancement methods, muddled title to resources, careless or self-intrigued venture determination or the board, inability to indicate fundamental insights concerning the endeavour, outlandish expenses, unenforceability of the commitments of the advertisers and absence of a responsible gathering from whom change can be looked for. A few plans have gotten ruined, prompting enormous misfortunes for certain speculators. A few plans may keep away the outright abuse but they still would work fundamentally to the advantage of the advertisers and different insiders as opposed to investors.
3. Dependence on the market forces alone to compel disclosure or on the legitimate framework to give change after abuses occurred is not sufficient. Moreover, the toleration of collective investment exercises working outside the perceived lawful structure for CIS undermines trust in the whole financial framework and may present dangers for financial stability and dependability.
4. Mirroring these contemplations, most nations, including all nations with developed financial markets, have authorized a body of legislation determining the terms under which CIS might be advertised. Such a structure is a piece of the more extensive arrangement of capital market organization and oversight.
5. Numerous nations make exemptions for bigger, proficient and modern investors, who under deliberately determined conditions might be approved to frame private investors partnership focused to increasingly specific financial specialists. Such courses of action may involve lower costs and more flexibility for the financial specialist however, for the most part, are portrayed by higher hazard, less liquidity and comparatively lesser safeguards for the investors.
6. In about all Organisation for economic cooperation and development (OECD) nations, essential laws indicate the legal forms in which CIS might be offered to people in general and furthermore determine that an inside administration framework must be set up for every CIS. Various legal forms for CIS are found in major OECD nations. These legal frameworks or legal structures mirror every nation’s legitimate framework and its own history. A few jurisdictions grant just a single legal form of association for CIS while others permit more than one structure. In investigating the legitimate structures of CIS, an examination of the OECD Secretariat distinguished three significant structures that were available in OECD nations, corporate, trust and legally binding forms. Other investigators may arrange structures in an unexpected way.
7. No authoritative document or administration system for CIS has been acknowledged as innately better than other systems or frameworks. Therefore, every nation must pick its own methods for actualizing international standards. In executing global standards for CIS administration in their own purviews, nations will wish to utilize the experience of nations that are recognized to have excellent CIS segments and sectors.
8. While the lawful structure and administrative system are proposed for the protection of the investors, it is critical to make totally obvious to investors that the goal of the lawful and administrative framework isn’t to forestall or limit losses to the investors where such misfortunes happen through improvements in capital markets. CIS is advertise based venture vehicles and they are not dependent upon indistinguishable prudential controls and shields from banks and insurance agencies, for instance. The rule that the investors must bear every natural hazard in their venture choices, which describes every capital market ventures, is substantial in the CIS segment also. The objective of the investment protection regime is to secure speculators against extortion, carelessness, and irreconcilable circumstance, to guarantee that every CIS watches the principles of reasonable and transparent activity and that the investors are enough educated regarding the dangers engaged with their venture. The CIS executes investment techniques in the interest of financial specialists or the investors while the investors choose the ideal level of hazard.
9. It is prudent for the legislative framework and administrative practice to be adjusted to the degree of improvement of the CIS sector and of the capital market for the most part. As business sectors develop progressively advanced and investors acquire understanding and access to data, the specialists or the authorities will in general permit more prominent extensions to enhance and to present new items.

Conclusion

The Collective Investment Scheme is a process of working together to pool their money and invest it in a particular asset so that each and every member of the group could be benefited out of the return or the profits from it. It is associated with a lot of obligations and regulatory procedures guided by the Securities Exchange Board Of India. Proper corporate governance is also mandatory in this sector as well.

All Collective Investment Scheme (CIS) that are elevated to the investing public ought to be required to work through a perceived legitimate and administrative framework. A sound lawful and administrative system is one that energizes the advancement of a domain helpful for informed hazard taking. However, there is no all-around universally accepted legal system or a legal form that establishes the collective investment scheme.

References

https://www.sebi.gov.in/sebi_data/faqfiles/jan-2017/1485846814724.pdf

http://www.arthapedia.in/index.php%3Ftitle%3DCollective_Investment_Scheme_(CIS)

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

The post All About Collective Investment Scheme appeared first on iPleaders.

This article has been written by Samiksha Singh, a student of National University of Study and Research in Law, Ranchi.

The only stable state is the one in which all men are equal before the law.

-Aristotle

Introduction

From religion to castes, from dressing style to cuisines, from language to art India has been heralded as one of the most complex amalgamation of versatile cultural identities. The country has faced a major setback because of high rates of violence due to its diverse culture. The incidents of racial violence, hate crime, mob lynching, discrimination is on upsurge which is the outcome of identity stemming from race, religion, caste and gender amongst others. Not only the citizen, but also those who have been given the duty to impart law and order play a complicit role in promotion of racial violence and cover-up of hate crimes. 

The custodian of law, our police, who have been assigned the duty to uphold and enforce the law impartially and protect life, liberty, property, human rights, and dignity of the members of the public fails to discharge their duties and differentiate individuals on the basis of their religion and ethnicity. The act of branding someone as criminal, law-breaker or terrorist mainly because of their ethnicity, race or skin color is a yearlong practice followed across the world. The subjugation of blacks, differential treatment of Muslim minorities at airport check posts, denying of visa to some ethnic groups, suspecting few ethnic groups or nationals etc. is very common in various countries across the globe. Such branding of citizens based on their ethnicity or race prevails even in India.

The process of looking at certain characteristic as the reason of criminal behavior by the police is defined as profiling. Racial Profiling comes into picture where police arrests, investigates or question some group or individual on mere suspicion due to their ethnicity or race. Such mistrust, resentment and suspicion between the minority ethnic or racial groups and police leads to over-penalisation and criminalization of racialized subjects.

The duty of the police is to maintain law and order and this makes them one of the important stake holders in criminal justice system. By following incisive policing techniques and by discriminating people on the basis of race and ethnicity they defeat the criminal justice system. If the act of the agents of law is racist overtone then it defeats the fundamental rights guaranteed in the constitution. Such profiling by police gives a wrong message in the society and even people of the other community starts such discrimination and take law in their hand. This leads to incidents of hate crimes, racial violence, mob-lynching where the majority meddles with the law and goes to the extent of killing the minority involved in any unlawful act merely on the basis of suspicion. There are instances which suggest that police turns deaf ear to such incidence.

This article will highlight that those who are more prone to biasness, the factors which leads to such profiling and police bias, the effect of racial profiling and how it violates the Constitutional Provision as well as Human Rights Law. At the end the author has given the recommendation and suggestion that would help in minimizing and eradicating such wrong practice.

Root cause for Racial Profiling

Racial profiling is the result of unconscious beliefs, biases and prejudices of one group of society for the other groups. Those who are in majority in a given place at some particular time exercise their dominion of power over those less in number. The disproportionate surveillance and fining practices against minority group is frequently due to social and demographic factor which includes age, employment and leisure activity. Moreover due to absence of any law against anti-racism, the one committing it has no fear of any sanction. Also, there are various other factors which lead to formation of biased opinion against the vulnerable group by police officials.

Reasons for Police Bias

The Indian police trace its origin back to 1843 but are struggling to come to terms with India’s class, caste, gender, and religious diversities. As a result of this, the vulnerable group becomes subject of Racial Profiling. The reasons for this may be due to a lack of proper training, adequate sensitization, and/or inherent personnel biases, according to the Status of Policing in India Report 2018.

The major reasons for such bias includes:

• Lack of representation from minority community

Equity, diversity, and inclusion of members from different ethnic groups are important for effectiveness of law enforcement organizations. Police forces in countries like Australia and United States have enacted measures like Diversity and Inclusion Strategy 2016–2026 and the United States Capitol Police’s Office of Inclusion, Diversity, Equity and Action (IDEA) respectively to embrace diversity in organisational structures, in decision-making processes and in the way they work and communicate. In India scheduled castes, scheduled tribes and other backward classes defined as specific ethnic groups in the Constitution of India comprise 66.2% of the total population, but representation of these groups in the police force stands at 36.21%. As these group don’t get enough representation in law enforcement organizations, their rights are often overlooked at. Moreover, they also become the subject to oppression, violence and profiling at the hands of police.

• Lack of training and sensitization

The Supreme Court in TehseenPoonawalav. Union of India gave certain guidelines to the police and the Central Government. These guidelines also included official sensitization. But the reality is that the police official in India doesn’t receive proper training pertaining to human rights issues, caste sensitization and crime control mechanisms. The report highlights that over the last five years only 6.4 percent of the police force have been provided in-service training. Senior police may at times get in-service training but those at constabulary-level personnel are not provided with any such training. 

• Paucity of Technology

At times police turns deaf ear to the incidents of mob-lynching or racial discrimination which is committed by the majority on vulnerable group because they don’t have access to technological devices. So they fail to inform the incident to the police station and they don’t get man power to control the acts of agitation. The report formulated over 22 states highlights 70 police stations do not have access to wireless devices, 224 police stations do not have access to telephones, and 24 police stations have access to neither wireless nor telephones.Out of those 22 states, 240 police stations have no access to vehicles.

• Pressure from Political Parties

The hindrance caused by the political parties in the investigation makes the police only a silent spectator of crime commission. Although in some incidents of oppression of religious and ethnic minorities group police are not directly involved but their non-interference makes them the reason behind violent racial profiling by people who take law in their hand. The report also puts forth that twenty-eight percent police personnel believe that pressure from politicians is the biggest hindrance in crime investigation. Seventy two percent police personnel have experienced political pressure during investigation of cases involving influential persons. In Prakash Singh v. Union of India it was asserted that those having clout can get away from the clutches of the justice system even with blatant violation of law which results in direct violations of the rights of citizens belonging to miniority ethnic groups and those who are economically inferior in the form of unauthorised detentions, torture, harassment, fabrication of evidence, malicious prosecutions, etc.

The Impact of Racial Profiling

There exists paucity of data on the consequence of racial profiling. But several studies put forth that it may have negative effects on the attitudes and well-being of the people and communities it targets.

• Creation of Mistrust in the Institution– The citizens of any democratic nation rely on its institutions and systems such as the criminal justice system, law enforcement and the education system and this trust is a foundation of democracy, order and a harmonious society. All of these institutions require citizens to work positively and cooperatively with them to maximize their success in fulfilling their mandate. But if a group of individual is subjected to treatment as a criminal merely on the basis of suspicion then that creates mistrust in their mind against the institutions and the criminal justice system, because police are the most visible force in the legal system.This also defeats their trust in the government and makes them think that government works for some people and not all people. Such mistrust is created not only due personal experience of racial profiling but also due to widespread perception that such profiling exists. The nonchalant behavior of the government to address this issue and eradicate it adds fuel to the fire.
• Alienation– When a minority group is subjected to racial profiling then the sense of belongingness they have for their country fades away. Due to humiliation and inhumane treatment they forgo their sense of citizenship. Once rejected by the mainstream society they either migrate or subside to the problem.
• Blockage of opportunities– The false categorization of any group or individual as suspect blocks the opportunities for them. A stigma gets attached to them in spite of their innocence. This makes it difficult for them to return to the main stream of the society and sustain their livelihood.
• Physical effect on Victims– Racial Profiling not only affects the victim mentally but it effects them physically too. The upsurge in mob-lynching is the effect of such racial profiling. Mob lynching involves a group of violent people attacking and lynching a person or a group of persons, amounting to hate crime, on the lines of religious sentiments. The mass takes law in their hand because police don’t take actions against them. Moreover, police themselves are involved in racial profiling and harassing the minorities. So this sets a wrong example in the society. Thus, the racial and ethnic minorities are subjected to physical violence not only at the hands of police but also at the hands of society.

Subjects of Racial Profiling in India

Stop and Search has been the most contentious aspect of the relationship between the police and minority, ethnic community. Police uses their power extensively and arbitrarily against few group. The groups in India that mostly becomes the target are:

• Dalits

Cast-violence and subjugation of minorities is not something new in India. An incident of came into picture in 2000 whereby police turned their backs and left a Dalit untouchable village in India’s Bihar state as an upper caste mob entered it and slaughtered thirty-four lower-caste men, women and children.Although, police were not the one committing violence but with due diligence and intervention they could have avoided it.

• Muslim

A report which was formulated by interviewing the police personnel highlights that half of the police have significant bias against the Muslims. Many Indian Muslims languish in Indian Jails due to unfair targeting and fake terror charges. The police alone are not responsible for making such arrests and sending Muslims behind bars. Their action is also backed those sitting above police personnel i.e. the government. Moreover, at times the government even exerts pressure on police to effectuate such arrests and detention.

• Christian

An upsurge in incidents of mob-lynching is the result of such discrimination which brings suspicion against the minorities Muslim or Christian which ultimately leads to hate crime. Although police are not involved in this but if they encounter this they turn deaf ear. This can be said by referring into the matter of mob-lynching of a Christian in Jharkhand. A police investigation has shown that the death might have been as much a result of police complicity as it was of the violent mob. The investigation revealed how victims were ignored by the police for over an hour and a half, as they lay on the street, writhing in pain, after having been attacked for over four hours.

• Migrants

At times crossing their own state boundary in search of better life and seek livelihood makes the citizen fall in the trap of racial profiling. They found themselves cast as threat to security, and their faith and hope had been made with hostility, prejudice and even violence.Migrants become the target of hatred. The case of the beating and death of a university student from the northeast and the insouciant approach of police in investigation made the news a national issue.

Violation of Human Rights Law and Constitutional Provisions

Racial Profiling violates Human Rights Law and is against the constitutional Provision of India. Such policies adopted by police violate rights to equality enshrined in the Constitution. This method is highly discriminatory and targets minority. Moreover, Article 2 of Universal Declaration of Human Rights Prohibit any discrimination on the basis of race, religion, sex, language, national or social origin, birth-pace etc. The same protection has been accorded in Article 2 of the International Covenant on Civil and Political Rights, Articles 1, 2 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination and article 2 of the Convention on the Rights of the Child. Racial Profiling defeats these laws and it is egregious form of discrimination. 

All people are equal before law and every person must be given justice by treating them as equal. There should not be any discrimination based on any grounds. The same principle is entailed in Article 7 of the Universal Declaration of Human Rights and Article 26 of the International Covenant on Civil and Political Rights. Racial Profiling violates such rules and the custodian of laws i.e. the police violates it. The officers at times treat the innocent group of people as criminal based on mere suspicion solely on the basis of their race or ethnic group.

The Right to Privacy is protected under Article 14, 19 and 21 of the Constitution. This right is often violated due to arbitrary exercise of power by police in effectuating search and detentions of suspects. As pointed out in Maneka Gandhi v. Union of India the right to life embodied in Article 21 of the Indian Constitution, is not merely a physical right but it also includes within its ambit, the right to live with human dignity. Those who suffer from such practice see this practice as humiliating, embarrassing and even traumatizing. Racial profiling has adverse effect on various other rights such as rights to life, liberty and security; to freedom of movement; protection against arbitrary arrest and other interventions; to effective remedy; to protection of the best interests of the child.

The Constitution or any other law in force in India does not specifically mentions about racial profiling. Nevertheless by plain reading of constitutional provisions it can be construed that such practice is barred by the Constitution. Also, international human rights treaties though do not directly refer to racial or ethnic profiling; several international human rights mechanisms have discussed racial profiling as a violation of international human rights law. For instance, Human Rights Council held debate on racial profiling and incitement to hatred, including in the context of migration. Such measures show that there is no place for racial profiling even in International Regime.

Suggestions

Roscoe Pound, an eminent American jurist postulated that when conflict arises in the society then law becomes the tool of social engineering which balances the competing interests in the society. He also postulated that in a civilized society men must be assured that other members of the society won’t commit any harmful aggression upon them. Although the Constitution of India entails various provisions to safeguard the citizens from any act of aggression and construes that racial profiling is against the rule of law. But the menace still continues. To curb the same, the government must bring an anti-racism law and a law against racial profiling by police. States must not shrug off their responsibility to protect victims of racism and racial discrimination, including migrants. 

S.166 of Indian Penal Code, 1860 entails penalty to public servant who knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person. The police organization must be sensitized about existing laws, their duties and role is to aim towards rebuilding trust in the communities. Police must check proper compliance of the existing provisions which safeguards rights of all the citizens. Moreover, the citizens from minority ethnic and religious groups who often become the subjects of racial discrimination must be given representation in the police services. This would help them to raise their grievances and check that members of their communities are not subjugated.

Media is considered to be the fourth pillar of democracy. So media should not telecast fake news and hate speech which contributes to hatred and create havoc in the society. The problem could be dealt with through encouraging media literacy, and through encouraging the development of a code of conduct. Human rights, including the right to development, were endangered by the rise in racial discrimination.

It is the need of hour to bring the progressive agents of change in the police force and progressive agents of change in the community on one platform to develop a common understanding of the problem people face in the society and suggest the solution of those problems. A community monitoring group can be established who would scrutinize the acts of police. Such groups have been established in countries like UK and Brazil. 

Lastly, if we want to strengthen our democracy we should question ourselves about our bias and preconceptions and understand by putting us in other people’s shoes how they experience life in our society. It must be seen that law operates equally for all the citizens. This would create a trust in the institution and the government. 

Conclusion

Although legal status of minority ethnic or religious group has burgeoned and legion laws have been enacted for safeguarding their rights but the incidents of racial profiling grind the dignity of the minorities into dirt. Such profiling is illegal and it has negative effect on the minds of vulnerable subject. This creates mistrust in the institution coupled with feeling of alienation. Not only this, such act also meddles with the mental, emotional and physical well-being of people. When police resort to racial profiling then the majority group also engage themselves in hate crime against minorities because then they have no fear of law. Racial profiling also hampers national security and undermines human dignity. Moreover, such practice meddles with the Human Rights regime. People subjected to it are denied their dignity, privacy and equal protection of law. The arbitrary exercise of power coupled of malpractices leads to discrimination on the basis of race, caste, sex, creed or color. All such violation defeats the Constitutional Provision as well as Human Rights Principle. 

Religiously motivated hate crimes have spiked in the recent years. The different religious and ethnic communities are pitted against each other in the name of religion. In such circumstance, racial profiling by police exacerbates a climate of fear for the victims and those associated to them. Police have the duty for discharging law and order and seeing that the provisions of law are adhered to. Police must discharge their duty impartially and they must not discriminate the individuals based on their race and ethnicity. They should not act under the pressure of political parties; they must not perform such acts which defeats the trust of people in this institution. Police must be committed to observance of law. They must understand that commitment to rule of law is their obligation and not merely a formality.

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This article is written by Rajat Chawda from the Institute of Law, Nirma University. This article explains the various ways through which a law firm can increase its revenue.

Introduction

Money is considered as one of the best incentives to engage in work. With capital, a person or an organization has the ability to expand any business further and reach new avenues. Therefore, money is an important asset which any person would not risk to lose at all. The same can be said for the various law firms, whose main agenda is to earn money by providing different services and client satisfaction.

Therefore it becomes important to understand how law firms generate revenue, what are the various practices which are more profitable? What are the new avenues of law which are yet to be explored and potentially profitable?

Law firms

A law firm is generally a partnership where two or more lawyers agree to work together and share profit, loss, and liability accordingly. It is important to understand the type or kind of law firm because it ascertains the amount of risk in a law firm and the revenue it can generate to partners and keep running the business.

Types of law firms

Law firms can be categorized on the basis of strength & arrangements or the practice of law that the firm deals with.

On the basis of arrangement 

This is based on the agreement between the partners for the kind of law firm they need to establish. The arrangement determines the overall sharing of all the profits, losses and liabilities:

• Sole Proprietorship 

In this, a single lawyer is wholly and solely responsible for profit, loss, and liability of the firm.

• General Partnership 

Where two or more lawyers of the firm work together sharing profit, loss, and liability altogether. 

• Professional Corporation

In this type of firm, stocks are provided to the lawyers. 

• Limited Liability Company 

In this, the lawyers-owners are members of the firm but are not directly liable to the third party creditors.

• Limited Liability Partnership

In this lawyers-owners are partners but no one is liable for any act of negligence of any other partner.

On the basis of the strength/size of Law Firm 

The size of a law firm determines the revenue a law firm will be able to generate. It is the principle of efficiency, more is the workforce, more is the amount of output produced in a given duration of time. The same can be inferred from the size of the law firm, the more the number of associates a law firm comprises, the more billable hours it charges and increases the output provided and therefore the strength of the firm increases the total revenue of the firm.

In terms of strength the law firm can be classified into the following:

Boutique Law Firm 

These firms are limited to small cities and towns and are limited to conventional practice. Lawyers are specialized and practicing in only one kind of law. 

Virtual Law Firms 

Use of modern communication technologies to conduct business with no physical presence. This is yet to be developed in India.

Big Law Firms 

The law firms hire a large number of associates and charge more. These full-service law firms.

Full-Service firms 

These firms consist of lawyers specialized in different areas of law. 

Worldwide Firms 

The global presence of a law firm to represent a client at an international level.

It should be kept in mind that the strength and arrangement of a law firm is only an initial plan of how a firm will function. A firm will always generate revenue with the quality of service it provides and the value it adds to a client’s interests. Therefore, it is better to diversify the portfolio of practice areas and specialize in every aspect to reach on top of the competition. 

Working of law firms 

A conventional law firm diversifies the area of practice with time to increase its revenue, provide services in various fields of law and provide legal solutions. But recently, this practice has been changed. A law firm now in order to make credibility and generate leads which last long and create more impact, have started to engage in the areas of researching, legal products, and legal training too. These are explained below:

Legal Solutions 

What can be a better USP of a law firm which can resolve the problems of a client efficiently, effectively and as per the interests of its client? This involves client counseling, dispute resolution, legal arrangements, contracting drafting, compliance due diligence, etc. 

Researching 

Research involves policy-making, analyzing legislation, and in-depth study of law to contribute to the academia of legal. Research enables a law firm to create a lasting impact as their research can be referred to as a citation and thereby generating leads and prospective clients.

Legal Products

With the rapid change in technology, law firms are also indulging in research to improve and modernize the legal fraternity so that it can dispense justice efficiently and effectively. In 2017, CAM setup the CAM Innovation Lab to embrace the opportunities technology and use it to provide the best in class services to the clients.

Legal Training 

The major setback effectiveness and efficiency in the legal industry is the gap between the theoretical knowledge given in the institution and the lack of practical knowledge on the ground. To cover this up, a lot of law firms and lawyers engage in legal training by conducting lectures, seminars, workshops or internships. To improve the practical skill of lawyers and aspiring lawyers, the law firm improves its potential efficiency by improving the quality of the workforce and thereby increasing the revenue of the firm.

Apart from this, there are also new areas of law that a law firm should not ignore and indulge and specialize in them because there lie the potential business and revenue which a law firm will lose if it does not regard these areas of law.

New areas of law which are developing and profitable

Law is a dynamic subject if one needs to remain in the competition he needs to update and familiarize himself with various growing fields of law. With the advent of globalization and rapid development in technologies, the conventional fields are not the only place to increase revenue. In the competitive laissez-faire market, there are various organizations coming to a consensus to work together, or seeking efficient means to resolve their disputes, worried whether their online data is secure and what can be controlled, protection of the company’s brand and various other things. 

If a lawyer can resolve such difficulties, he will be earning a considerable more money than others in the market. A law firm earns a significant clientele by specializing in such fields and establishing its credentials. Some of the areas of law which are developing and profitable are mentioned below:

• Mergers & Acquisitions

Every business aims to increase profits, increase clientele, generate more leads and reach the top of the competition. Therefore, every business looks for the opportunity to work with others, acquire other businesses and expand itself more in the market. 

Look at the deal feed of Legally India, daily millions of dollars of deals are made to expand the avenues of business. A law firm has to also deal with the Competition Commission and Security Exchange Board of India. A transaction of such type requires a lot of speculation, must adhere to compliance rules and it is not a simple and easy task. A lot of revenue can be earned if a law firm commands expertise and credibility in this field.

• Intellectual Property Rights 

R&D is an important part of the development of new technologies. Billions of dollars are invested to develop new technology. The vast amount of time is invested by authors to produce novel intellectual creations. When these creations are introduced to the public it encourages others to further develop the innovation but at the same time, it is possible that their ideas might get stolen. Therefore, to protect their novel innovations and works, there exists trademark, patents, and copyright under the field of intellectual property rights which provides protection to business marks, novel innovations, and artistic works. 

The different areas in intellectual property include trademarks, patents, copyrights, and related rights, Industrial Designs, Layout Designs of Integrated Circuits, Plant Varieties, Information Technology and Cybercrimes, and Data Protection.

The work in IP ranges from drafting contracts, litigation, filing and registering the trademark, copyright or patent, detecting and prosecuting IPR infringement, managing an IP portfolio, etc. A dedicated IP Law firm can earn enormous revenue if specialized in each and every branch of IP. 

• Arbitration 

It is said that it is good if a person does not get to visit three places in his life: Police Station, Hospital and Court. In India, the condition of the judiciary, in terms of faster dispute redressal is not good, the Supreme Court of India alone has 59,272 cases pending before it. It takes years through the court to resolve a dispute. There are a lot of business companies that need binding speedy dispute resolutions and do not want to waste their capital on lawyers dealing with a single dispute for years. In this scenario, arbitration provides an alternate dispute resolution to contending parties to sit together and come to a conclusion. In this way the outcome reached would be favorable to both the parties and therefore will be obliged by both of them. Earlier, people used to hesitate to go for arbitration and preferred to litigate but with the changing scenarios, a law firm that specializes in dispute resolution will have an ace against the other competitors.

• Technology Law 

This field is emerging rapidly with the pace of development in technology. There are various legal issues in this area from disputes in online trades and transactions to a simple click on the ‘I Agree’ button on terms and conditions of a website. To specialize in this area, a person should learn about the technical aspects of a business, its vulnerabilities, and various legal aspects involving the same. 

A law firm, which can provide specialized services like Software Licencing, Dispute Resolution in tech, agreements for cloud service, IT services, etc will definitely give more revenue as this field generates a value to support a global population of over 7 billion people and growing.

• Media & Entertainment Law

As per a report by IBEF, this sector is expected to grow up to $37.55 billion by 2021 in India. A media company has to comply with broadcasting rules, advertising procedures, enter into a contract with various persons and logistics, resolve disputes, comply with cyber laws and many other areas. 

A law firm providing services in such a field can chunk out some revenue from this $37.77 billion.

New firms which are successful

There are various law firms that specialize in these developing fields of law and are earning revenue by showcasing their skills and credibility to prospective clients. 

• Algo Legal

The firm has been specialized to serve the needs of investors and startups. The firm focuses on delivering the best in class service with the aid of technology for improved efficiency and effectiveness.

• Krida Legal  

Sports Law is also one of the emerging areas of law and this firm provides services of law with specialization in sports law. 

• Economics Law Practice 

This firm has been recognized as one of the leading Litigation, Arbitration, and Dispute Resolution firms in the country. 

Advantages of working in law firms

The advantages of working in a law firm are as follows:

• Early growth

If a lawyer starts his solo practice or sets up his own law firm, it takes a lot of time, money and investment to grow. On the other hand, if a lawyer commands appropriate skill sets he can work at a law firm and earn a decent amount of money during the starting phase of his career. 

• Vast exposure in terms of clientele

A lawyer practicing solo will at least take 2.3 years to establish his name and credibility in the market. While at a law firm, already diverse clientele exists and there is no dearth of work. So, a lawyer does not need to worry about a lack of work while working at a law firm.

• Working with experts 

A solo practitioner is the boss of his own, he has to manage all the things which include improving and updating himself with the different areas of law and affairs surrounding it. While at a law firm, a lawyer gets to interact with various experts of the legal fraternity and even work with them. This opportunity provides enormous value to a lawyer and helps him to build his network even further.

• Steady Job 

In a solo practice, every day is a new day whereby a lawyer searches for work to earn money. While on the other hand, there is no dearth of work at a law firm. The lawyer needs to keep working and the money keeps coming every month. 

• Interest driven choice 

Working in a law firm is thrilling and adventures. It is the interest and passion of an individual law to choose to work in a law firm. When the choice is interest-driven, a person cannot be unsatisfied with his work and he is expected to grow immensely by the tremendous opportunities provided by firms to increase one’s potential.

Conclusion

Therefore, in this way a law firm makes money and by specializing in these developing areas of law, a law firm can grow further. It is important to diversify the practice areas and increase portfolios to earn more revenue. But, at the same time, the quality of service should not be compromised at any cost.

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The article is written by Ramya Thoti.

Career in Judiciary

Judiciary is the most important branch of Democracy. It is designed to deal with the problems of society. Judge is the most important position in the Judicial System of India. Judges are responsible for administrating, interpreting and applying laws and to see that justice is done. It requires a lot of hard work, dedication and determination towards the Judicial System.

There are many career opportunities for a Law student however,  the judiciary would be the most desired and respectable profession in the society.

However, there are many positions in Judicial services we are focusing mainly on the Post of Junior civil judge.

How to become a Junior Civil Judge in Andhra Pradesh?

Subordinate judiciary of a state is controlled by the state’s High Court. In Andhra Pradesh, High Court, Amaravati releases notification for the recruitment of the civil judge (Junior) every year. (Before the bifurcation of Andhra Pradesh the high court of AP was in Hyderabad)

The recruitment is of two types: Direct Recruitment and Recruitment by transfer. One must qualify the screening test and interview for getting the position of Judge.

Number of seats

In Junior Civil Judge, the recruitment is limited and very competitive.  The number of seats varies from year to year depending on the necessity. Generally, they recruit between 20-32 candidates.

Eligibility Criteria

• Candidate must be a citizen of India;
• Candidate must have completed 3 years as a practising advocate (direct recruitment) with a maximum age limit of 35 years;
• Candidate must possess a law degree from recognized university or institution, and must be a confirmed member or approved probationer in section officers, Grade II officers etc. with maximum age limit not exceeding 48 years of age (in case of Recruitment by transfer); and
• A 5 years of age relaxation is given to the persons belonging to scheduled castes, scheduled tribes and other backward classes. And 10 years for the physically handicapped.

Mode of application

The applications are invited by the official website of AP High Court (www.hc.ap.nic.in ) and the candidate has to fill the form online and pay the prescribed fee amount through online only i.e. Debit card, Net banking etc.

The prescribed fee may vary from time to time. Well, at present, the fee is Rs. 800 but for the scheduled castes and Schedule tribes, the fee is Rs. 400 only.

Centres of Examination

In Andhra Pradesh, there are six examination centres for the judiciary examination. They are:

1. Visakhapatnam
2. Vijayawada
3. Tirupati
4. Guntur
5. Rajahmundry (Rajamahendra Varam)
6. Kurnool

Scheme of the examination

Preliminary exam

Mains exam

Viva Voice – 50 Marks

Syllabus

Civil laws

• Code of Civil Procedure, 1908
• Indian Contract Act, 1872
• Hindu Marriage Act, 1955
• Hindu Succession Act, 1956
• Indian Easements Act, 1882
• Specific Relief Act, 1963
• Limitation Act, 1963
• Transfer of Property Act, 1882
• Civil Rules of Practice
• Registration Act 1908, and Indian Stamp Act 1899
• P. Land Encroachment Act, 1905
• Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960
• Indian Evidence Act, 1872

Criminal Laws

• Code of Criminal Procedure, 1973
• Indian Penal Code, 1860
• Indian Evidence Act, 1872
• Negotiable Instruments Act, 1881
• Protection of Women from Domestic Violence Act, 2005
• Criminal Rules of Practice
• P. Excise Act, 1968
• P. Gaming Act, 1974
• Juvenile Justice (Care and Protection of Children) Act

How to prepare?

Being one of the prestigious and most respected positions in the society, and limited positions, the competition for the judicial examination is very high. But with a planned study schedule and focused study one can achieve the desired results.

Unlike judicial services of other states, Andhra Pradesh judicial services made the 3-year practical experience mandatory for the position of junior civil judge. So, it gives a lot of time to prepare and may also increase the level of competition.

• First things first, be thorough with the syllabus of the exam.
• You should be thorough with all the bare acts. The main function of the judiciary is to interpret laws, so how much you are prepared with the acts decides that you are ready for the screening exam.
• Study recent supreme court and high court judgements, it enhances the level of comprehending and also helps in drafting the articles.
• Be prepared with your own notes covering all the legal topics, judicial pronouncements etc. to avoid confusion in the later stages.
• For language read standard newspapers, magazines, law journals, etc. Improve your vocabulary. Try to improve regional language i.e. Telugu.
• Discuss topics with your colleagues or peers and seniors without any hesitation.
• Practice previous year question papers which are available online, and also try to attempt the mock tests.
• For current affairs and general knowledge read the newspapers, journals etc.
• And finally, revise all the portions you’ve done, It really helps a lot at the time of examination.

Mistakes to avoid while preparing

• Do not follow someone else’s study routine. Create your own comfortable study routine and try to follow it in a consistent manner.
• Do not postpone your study routine.
• Remember, that there are no shortcuts to achieve a goal. “You reap what you’ve sown”, so study smart, be consistent with your study routine, concentrate on what you are studying.

All the best

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