Limits of sovereign immunity

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January 30, 2024

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This article is authored by Adv. Ishani Samajpati. It discusses the concept of the doctrine of sovereign immunity, including its categories and development. It also gives a detailed view of sovereign immunity under Indian legal provisions and briefly discusses situations where sovereign immunity has no effect and sovereign immunity during the enforcement of awards in legal proceedings.

Table of Contents

Introduction

The king can do no wrong, so there is no question of suing him, even in a distant dream. Sounds impossible? In the age of thriving democracy and human rights, it may be unthinkable, but once upon a time, it was considered as true as the gospel. While most of the countries in the world do not have monarchies anymore, the idea that a king can do no wrong has left its mark in modern democracies. Yes, it gave rise to the doctrine of legal immunity – the doctrine of sovereign immunity.

The concept of sovereign immunity has its roots in the British common law doctrine. It was incorporated into the Indian legal scenario with the British Raj in India. In modern times, with the Indian courts emphasising the guarantee of fundamental rights, it has rendered the doctrine of sovereign immunity almost ineffective.

Origin of sovereign immunity in India

The doctrine of sovereign immunity is a centuries-old concept prevalent in Roman law which can be traced back to the time of the Justinian Code of Corpus Juris (6th century BC.) The concept of sovereign immunity can be attributed to the fact that monarchs have absolute and unlimited power. The doctrine became an integral concept of the British Crown, which enjoyed absolute power. A scholarly article published in the Louisiana Law Review suggests that from the 13th century on, there is some historical evidence that Edward I the King might have been sued. As England slowly proceeded towards democracy in the coming centuries, the legality of the doctrine changed thoroughly.

Unfortunately, not much information is available on the existence or non-existence of the doctrine of sovereign immunity in India during the times of ancient dynasties and Islamic rules. Some researchers suggest that the Indian tribal courts might have used the doctrine. Commonly, it is said that the doctrine came into force with the establishment of the British Raj in India.

In modern times, however, the doctrine has been left almost in fructuous by the enforcement of constitutional values and fundamental rights guaranteed by the Constitution, since both are contradictory to each other. The existence of foreign state immunity is still there and is governed by Section 86 of the Civil Procedure Code, 1908, discussed later in this article.

Features of sovereign immunity

The essential features of sovereign immunity are as follows:

Inviolability

The doctrine of sovereign immunity is an inviolable doctrine, which means sovereign immunity cannot be infringed, dishonoured or violated. It is a legal doctrine which states that a sovereign state has immunity from being sued. Moreover, it also states that the states can commit no wrong and therefore, they are immune from civil or criminal suits and paying damages. The states often use the doctrine of sovereign immunity to safeguard them from a foreign court exercising its jurisdiction or to pay damages. It sometimes works as a “procedural shield” for the states. States also have immunity from execution under sovereign immunity, and Dautaj notes metaphorically, “Sovereign immunity from execution is said to be “the last fortress, the last bastion of sovereign immunity”.” There is also an almost similar immunity available to states that is only applicable to foreign courts, known as state immunity. The difference between both has been discussed later.

However, there are exceptions to sovereign immunity. There are situations where sovereign immunity is not applicable. There are also criticisms of sovereign immunity. Some term this as a justification of legal wrongs done by a state. The article is just a humble attempt to delve into the doctrine of sovereign immunity, including its definition, forms, origin, historical development, sovereign immunity under international law and in various countries including India, its exceptions and criticisms.

A form of immunity

In simple words, sovereign immunity is a legal doctrine which states that a sovereign or state can do no legal wrong and therefore is immune from civil suits. By this doctrine, states are also protected from being prosecuted criminally. It is also known as crown immunity because the doctrine originated from British common law. The British common law doctrine states that kings can do no wrong. In a modern context, sovereign immunity states that a government cannot be sued without its consent, or even if the government has been sued, the foreign courts cannot exercise their jurisdiction to rule or make them liable for damages.

According to the doctrine of sovereign immunity, a state is legally immune to judicial rulings in foreign countries. Sovereign immunity is treated as an important concept in customary international law (unwritten laws, principles, and practices accepted as parts of public international law), and it is also present in the legal provisions of certain countries, including India.

Sovereign immunity in international law

There is no exact or uniform definition of sovereign immunity. In customary international law, it is commonly termed as an important principle by which a sovereign state is protected from being sued without its consent in the courts of another sovereign state. It can also be defined as an “exemption” of a sovereign state from the jurisdictional authorities of courts in another sovereign state. This doctrine is based on the principle of equality of all sovereign states, as mentioned in the Charter of the United Nations of 1945.

Related legal maxims

The concept of sovereign immunity is also expressed in the popular legal maxim Par in parem non habet imperium, a Latin maxim which literally means that equal power has no sovereignty over each other. It means that a sovereign state, including its legal bodies, cannot exercise its jurisdiction over another.

Another important legal maxim relating to sovereign immunity is rex non potest peccare, which states that a king can do no wrong and has its roots in the British common law.

Sovereign and non-sovereign functions of states

The doctrine of sovereign immunity protects a state from lawsuits. It also provides immunity against challenging wrong decisions by the government on grounds of public policy. This doctrine advocates that the state cannot be prosecuted due to its sovereign nature.

However, in India, particularly post-independence, the concept slowly changed, and the courts started accepting legitimate claims against the state so the victim could get remedies. Hence, the scope and applicability of sovereign immunity in the Indian context kept shrinking. In such a way, the sovereign functions of the state also started getting reduced. Now, the application of the doctrine depends on the functions performed by a state, which are divided in terms of sovereign and non-sovereign categories. Let us discuss both under different headings.

Sovereign functions performed by the state

Sovereign functions of a state can be defined as those functions for which the state cannot be sued in a court of law. Sovereign functions of a state include:

defence-related matters of the state,
matters and activities pertaining to the armed forces,
declaring peace or war,
foreign affairs,
retaining or acquiring territories etc.

The state can perform these functions without being accountable to ordinary civil courts. However, there are some sovereign functions that are not completely inalienable from the jurisdictions of courts. These functions include:

revenue and taxation,
maintenance of law and order,
police forces,
various legislative functions, including administration of law and implementation of policies, grant of pardon, arrest and detention, etc.

Non-sovereign functions performed by the state

In simple words, a state can be sued in a court of law for its non-sovereign functions. Non-sovereign functions are those functions that a private individual may perform without any specific government authority. The state has tortious liability for any “acts of commission or omission’, which may be either voluntary or involuntary.

It must be noted that the fine line of differences between the sovereign and non-sovereign functions of a state is extremely difficult to distinguish. Some cases dating from British-ruled India have elaborated on this fact very well. The absolute immunity of the Crown was never well accepted in India, and hence it was challenged multiple times, even during the rule of the East India Company. The John Stuart’s case, 1775 is the first example where the judiciary interpreted state liability during the rule of the East India Company. In another similar case, namely, Moodaly v. The East India Company (1785), the Privy Council held that the common law doctrine of sovereign immunity has no applicability in India.

The most landmark case in this regard is the case of Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India (1861). In addition to confirming that sovereign immunity has no applicability in India, it also differentiated between the sovereign and non-sovereign functions performed by a state.

The case is clearly a pre-Constitution case and is under Section 65 of the Government of India Act, 1858. An employee of the plaintiff company was travelling in a horse-drawn coach belonging to the plaintiff company in Calcutta. While it was passing through the Kidderpore dockyard, an accident occurred due to the negligence of government employees. The plaintiff company sued the government, claiming compensation and holding the government liable since the government was responsible for maintaining the dockyard.

Peacock, CJ, in this case, gave a landmark judgment in contrast to the doctrine of sovereign immunity. The government was found to be liable since the maintenance of the dockyard was held to be a non-sovereign function of the state.

Types of sovereign immunity

In most national infrastructural projects, the awarding authority is a government authority that may benefit from it. There may be some legislation in some sovereign states which waives the sovereign immunity of the said state for a specific infrastructural project.

However, this is not universal, and private operators should check for it. The state can waive both types of immunities through the presence of a sovereign immunity waiver clause present in the contract between state and private individuals.

In cases of dispute, states generally get the benefit of the two types of immunity as follows:

Immunity to jurisdiction

Immunity to jurisdiction protects a state from being sued in the courts of another foreign state. Hence, the courts in the foreign state have no jurisdiction over the said state. Hence, the state entities have jurisdictional immunity. Only the state in question can waive its immunity.

Referring the disputes to international arbitration may be a form of waiving jurisdictional immunity by states. According to the World Bank, some states may hesitate to go for international arbitration due to the apparent dominance of western principles, which may not give them a chance of a fair hearing. In such cases, they can opt for arbitration under the UNCITRAL Rules, which are comparatively culturally neutral.

Immunity from execution

When a state has immunity from execution, the courts of another country cannot seize their properties and assets. The state can also waive this immunity, though it is comparatively complex compared to waiving state immunity. Therefore, the general proposition for immunity from execution is that certain assets of the state are not made available to satisfy the arbitration award, such as the foreign embassies or consular possessions of the said state.

Categories of sovereign immunity

The issue of sovereign immunity is itself complex. It gets more complex because there is no uniform jurisdictional approach to this. These issues have also been acknowledged by the Organization for Economic Cooperation and Development (OECD). In a research paper published by the OECD titled “Foreign Government-Controlled Investors and Recipient Country Investment Policies: A Scoping Paper”, it was noted that the diversity of different national laws and their jurisprudence makes it harder for foreign government investors to predict “the extent of foreign sovereign immunity.” According to the OECD, the doctrine of sovereign immunity is not only available to the sovereign state; it can also be used to protect the various organs of a state, such as the executive, legislature, and judiciary.

Clearly, the doctrine of sovereign immunity protects a sovereign state from the legal and judicial proceedings taking place in the national courts of another sovereign state.

Sovereign immunity can be categorised jurisdictionally into local and foreign sovereign immunity. Based on the extent of sovereign immunity, it can also be categorised into absolute sovereign immunity and restrictive sovereign immunity.

Sovereign immunity based on jurisdiction

Sovereign immunity is available both locally and internationally, i.e., it is available within the territories of a state and outside the territories of a state. Based on jurisdiction, sovereign immunity is of two types.

Local sovereign immunity

The concept of local sovereign immunity is more common in the US. It is a form of sovereign immunity that protects local governments from federal lawsuits. It is also known as state sovereign immunity. Even when the government or its agents violate federal constitutional rights, a very stringent causation is required to file a suit against the government. This requirement often prevents or prohibits recoveries from local governments. The requirement of stringent causation is rooted in state sovereignty jurisprudence. Additionally, local state actors also have qualified and absolute immunities, which originated from the doctrine of sovereign immunity.

Under the doctrine of state sovereign immunity, a person cannot bring a federal lawsuit for damages against a state without its consent. In the case of Alden v. Maine, 527 U.S. 706 (1999), it was held that a plaintiff cannot bring a federal lawsuit in a state court when sovereign immunity would prevent him from filing a lawsuit in federal court. The Eleventh Amendment of the US Constitution mentions state sovereign immunity. State sovereign immunity also contains “anti-commandeering,” which means that the federal government cannot “commandeer” state resources or personnel for federal purposes. The Tenth Amendment of the US Constitution affirms this.

The US has the Federal Tort Claims Act (FTCA) of 1946. The FTCA allows private individuals to file suits against the US for torts committed by officials acting on behalf of the US government. It waives the sovereign immunity of the US government by allowing its citizens to pursue tort claims against the government.

Foreign sovereign immunity

Foreign sovereign immunity is the immunity available to a foreign sovereign state. States often claim this defence to prevent a court of another foreign state from using its jurisdictions or from attaching or executing against its property. Thus, the factor of foreign sovereign immunity is one of the important factors a state considers before dealing with commercial activities with foreign states or any of its entities. Otherwise, if any commercial dispute arises with the foreign state, the state may suffer serious harm. Another point the states must note before entering into a commercial agreement is that there are different jurisdictional approaches by different states to sovereign immunity. So the factor of jurisdiction regarding sovereign immunity should be considered.

Foreign sovereign immunity may act as a bar to executing international arbitral awards. In such a case, it acts as a jurisdictional doctrine which prevents the national courts of a sovereign state from exercising their jurisdiction over another state.

Sovereign immunity based on extent

As already mentioned, sovereign immunity based on extent is mainly of two types. They are absolute immunity and restrictive sovereign immunity. Absolute sovereign immunity provides immunity to the acts done by a sovereign state or its organs from any type of judicial or arbitral proceedings against the state, hence making the sovereign immunity absolute. On the other hand, restrictive immunity does not provide immunity to the state from all judicial or arbitral proceedings. It only guarantees that the commercial activities and related agreements of a sovereign state are immune from judicial or arbitral proceedings.

Absolute sovereign immunity

It is a form of sovereign immunity in which all actions of a state or its agencies, irrespective of the nature of dispute, transaction, or purpose, are protected by immunity. Under the principle of absolute sovereign immunity, a sovereign state cannot be sued for its own actions or those of its agencies. Consequently, a sovereign state seeks this defence when it defaults on a commercial agreement made with a foreign private person or with a state. The only exceptional situation where one can bring a suit against the state is when the state waives its immunity. The state may consent to waive its immunity. Otherwise, it cannot be sued in a foreign court.

The principle of absolute sovereign immunity can be traced back to the 18th and 19th centuries. It was logical at that time since the role of sovereign states was purely administrative and political, and they engaged in little interstate commercial activity, particularly agreements with warranties to enforce commercial contracts. So, it was considered that irrespective of the circumstances, a sovereign state is not answerable for its actions in foreign courts, and the courts have no jurisdictional authority.

Two landmark cases where judicial pronouncements were made in favour of this principle are Schooner Exchange v. McFaddon, 11 U.S. 116 (1812), a US case, and the English case of Parlement Belge (1878). Both cases are related to a vessel of war and a Belgian ship, respectively. In the first case, it was held that a vessel of war of a foreign state is exempted from the jurisdiction of US courts. Similarly, in the English case, the Belgian ship was protected by the principles of absolute immunity, and English courts had no jurisdiction over it. Thus, both commercial and non-commercial activities of a state were held to be protected by the doctrine of absolute immunity.

In modern times, instead of absolute sovereign immunity, the concept of restrictive sovereign immunity is used, which offers immunity to particular activities of a state, and most developed states have adopted this doctrine. However, jurisdictions like China still use the doctrine of absolute immunity, even though there has been a recent change in its policy.

Restrictive sovereign immunity

Socialist states and state-owned entities began emerging at the end of World War II. Till then, the doctrine of absolute sovereign immunity was in use. However, as the sovereign states started taking part in global trade and became parties to several commercial activities, absolute immunity posed a problem in cases of disputes arising between them. So, the principles of absolute sovereign immunity were considered impractical. Thus, there was a dire need for a new theory which would benefit the commercial activities of the sovereign states. It resulted in the doctrine of restrictive sovereign immunity to emerge.

The theory of restrictive sovereign immunity states that the sovereign immunity of a state will not be applicable to commercial agreements made with private individuals or with another sovereign state. So, if a state enters into a commercial agreement with such entities, the state can be sued if there is a breach of the commercial agreement on the part of the state.

Sovereign states may enact certain statutes regarding their stance on restrictive immunity. For example, in the US, the Foreign Sovereign Immunities Act of 1976 (FSIA) mentions the conditions under which a foreign state should be immune from lawsuits. On the other hand, 28 U.S. Code § 1605 of the Act also mentions the exceptions where the foreign state will be immune from being sued in the US courts, particularly in situations regarding commercial transactions in the US or transactions which have a direct effect on the US. The State Immunity Act of 1978 (SIA) of the UK is another example of such an Act.

Even though many countries have separate statutes regarding restrictive immunity, India does not have any comprehensive statutes, though it has been briefly mentioned in some of the legal provisions discussed in this article.

Qualified immunity

Another type of immunity which is available in the US is qualified immunity. It has roots in the doctrine of sovereign immunity. It provides government officials (particularly law enforcement officials such as police) with optional or discretionary immunity from lawsuits for damages unless the plaintiff can prove that the official violated “clearly established statutory or constitutional rights of which a reasonable person would have known”, as held in the case of Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a right was clearly established, the courts analyse the situation hypothetically. It is examined whether the official could have known that his action violated the plaintiff’s rights.

In a lawsuit for qualified immunity, first, the plaintiff files an action against the official under the Civil Rights Act of 1871 (commonly known as Section 1983). The government official, in this case, raises the defence of qualified immunity, which protects him. It is not immunity to pay monetary damages only, but immunity from going through trial at all.

It is only applicable to government officials as individuals; the defence is not available if the plaintiff files a suit for damages against the government for the wrongdoing of its officials.

The doctrine of qualified immunity was first introduced by the US Supreme Court in the case of Pierson v. Ray, 386 U.S. 547 (1967). According to some legal scholars, the doctrine was introduced to protect law enforcement officials from frivolous cases, particularly in a situation where they acted in good faith or because of larger public interests. In recent times, with many incidents of alleged unjustified acts by law enforcement officials, the doctrine of qualified immunity has become a source of controversy.

Sovereign immunity from legal proceedings

In legal proceedings, particularly those related to international commercial transactions between state parties, they may opt to resolve future disputes in the courts of either party. In such a case, the commercial agreement made between them clearly mentions the law of which country should be applicable. If a sovereign state has laws regarding restrictive immunity, such a state cannot plead the defence of sovereign immunity to stop the courts of another party from exercising their jurisdiction if any dispute arises in the commercial transaction. Countries like the US and UK have addressed the challenge of suing sovereign states in their national courts, and for this, they have specific Acts such as the Foreign Sovereign Immunities Act of 1976 (FSIA) and State Immunity Act of 1978 (SIA), respectively.

In countries like India, where there is no statute which expressly mentions restrictive immunity, India can easily raise the defence of sovereign immunity in foreign courts to prevent it from being sued in the national courts of other sovereign states or from paying damages. One of such noteworthy examples is the case of Cairn Energy PLC and Cairn UK Holdings Limited v. The Republic of India (2015), also known as the case of Cairn v. India. In this case, the international arbitral tribunal held that India had breached its contract under the India – United Kingdom Bilateral Investment Treaty (1994), and the tribunal ordered India to pay Cairn damages of USD 1.2 billion for the losses it suffered. India, even though it refunded the entire amount, raised the defence of sovereign immunity to prevent it from paying the damages.

Since many countries in the world do not have any expressed statutes on restrictive sovereign immunity, commercial parties who enter into agreements with such states often include a specific clause in their agreements. The clause ensures that the sovereign states waive off their sovereign immunity expressly if any future dispute arises. Such a clause is known as the ‘Sovereign Immunity Waiver Clause.” The objectives of this clause are to ensure that, in case of any possible future disputes with the sovereign state, the foreign court can exercise its jurisdiction and is able to hear the legal proceedings, order reliefs for the involved commercial parties, provide judgements and awards, and also enforce arbitral awards against the foreign state.

The wording or formatting for different types of sovereign immunity clauses has been discussed in detail here.

If the Sovereign Immunity Waiver Clause is included in any commercial agreement, the participating sovereign state cannot claim the defence of sovereign immunity to prevent any legal proceedings in a foreign court. In states with statutes which expressly document the restrictive immunity principle, these clauses serve no practical purpose since they are already implied. However, it is advisable to include such a clause to safeguard against future disputes. Former Attorney-General for India, K. K. Venugopal, is also of the opinion that to avoid any uncertainty, it is prudent to include such a clause on waiver of sovereign immunity.

However, it must be noted that even if a sovereign state allows a foreign court to exercise its jurisdiction in case of any future disputes on the basis of the sovereign immunity waiver clause, it does not necessarily mean that in case of a dispute, if the judgement goes against the state, the state assets (any kind of state infrastructure, real estate property, intellectual property, revenue, payment, or service owned by any state entity and/or public benefit corporation) of that sovereign state can be seized or executed to enforce the judgement. This is because there is a basic difference between the types of sovereign immunity: ‘immunity from jurisdiction’ and ‘immunity from execution.’

‘Immunity from jurisdiction’ is the privilege of the sovereign state, where it can refrain from allowing a foreign court to exercise its jurisdictions; conversely, immunity from execution’ ensures the sovereign state that even though the foreign court is allowed to use its jurisdiction over the sovereign state, if the judgements go against the state, its state assets cannot be seized and executed to enforce the said judgement. So, even though a sovereign state lacks jurisdictional sovereign immunity, it can successfully resist the execution of its state assets.

Sovereign immunity and execution of state assets in foreign jurisdictions

Sovereign immunity from execution depends upon the nature of assets upon which execution is to be levied, not upon the nature of claims; the claims can be of a commercial or sovereign nature. To enforce judgements passed by foreign courts for a dispute arising between the parties in a commercial transaction, including a sovereign state as one of the parties, the following conditions must be satisfied:

The state assets of a particular state must be pledged as security or hypothecated to be executed in the future in that foreign state for any future dispute or default by the state. The sovereign state should consent to the execution of such state assets to satisfy the judgment against the state.
The particular state asset must have been used or have any connection to the commercial activity based on which the claim against the state is made.

Such provisions are present in both Section 1610(a) of the United States Foreign Sovereign Immunities Act of 1976 and Section 13(2)(b) of the English State Immunities Act of 1978.

Article 19 of the United Nations Convention on Jurisdictional Immunities of States and Their Property states that a sovereign foreign state cannot take any post-judgement measures of constraint, which include attachment, arrest, or execution, against the property of another state unless the state has expressly consented to the measures through the following channels:

by an international agreement;
by an arbitration agreement
in a written contract; or
a declaration given by the state before the court; or,
by a written communication after a dispute between the parties has arisen;

The property can also be attached if the state itself allocates or earmarks the said property to satisfy the claim related to the proceeding.

India signed the Convention on 12th January, 2007 but it has not been ratified yet. Expressly, for states like India, which lacks any legislation on restrictive immunity, the execution of state assets is difficult unless India expressly consents to it.

Many scholars opine that if a state has immunity from execution, it does not matter whether the state has immunity to jurisdiction or not.

Another problem regarding the execution of assets that commonly arises is the issue of mixed assets. Mixed assets are those assets which are used for both sovereign and commercial purposes. Axiomatic international laws state that state assets used for sovereign purposes cannot be executed to satisfy a commercial judgment. Again, if the asset is used for both sovereign and commercial purposes, it cannot be used for commercial judgments because it is partially used for sovereign purposes. There are multiple examples of judicial pronouncements regarding the issue of mixed assets.

Challenges in the execution of state assets

Even if the state does not have access to immunity of execution, the foreign state may face some of the following challenges while executing the assets of the state:

Lack of assets;
Restrictive nexus requirement;
Mixed assets;
The burden of proof on the judgment creditor to prove the nature of state assets sought to be executed is commercial.

Concept of sovereign immunity and Section 86 of the Code of Civil Procedure

Section 86 of the Code of Civil Procedure deals with the law regarding the jurisdiction of foreign states in India. It applies the international law of the inviolability of foreign states in an Indian court, thus upholding the doctrine of sovereign immunity.

Section 86 of the Code of Civil Procedure, 1908

The concept of sovereign immunity is enshrined under Section 86 of the Code of Civil Procedure, 1908. It states that no foreign state can be sued in any court. A foreign state can only be sued if the central government consents, “certified in writing by a secretary to that government”. Hence, prior written consent from the government is necessary. Section 87A of the Code clarifies that a “foreign state” is any state recognised by the Government of India situated outside the territory of India.

However, the Code does not discuss whether sovereign immunity applies to commercial transactions or not.

Consent by the Central Government for such suits

To institute a suit against foreign entities in India, Section 86 of the CPC states that unless the Central Government provides written consent through its Secretary, no suit against foreign states (including the Rulers, Ambassadors, and Envoys) can be filed. However, there is an exception to that. A person, as a tenant of immovable property in any foreign state, can sue without such consent. Such a person can institute a suit against the foreign state from whom he holds or claims to hold the property. In other cases, prior written consent from the central government is mandatory.

In other situations, such consent may be given by the Central Government with respect to a specific suit or multiple specific suits. Consent can also be obtained for multiple suits belonging to a specific class or classes. The government may also specify the Court where such foreign states may be sued.

The Central Government shall not provide any consent unless it appears to the Central Government that the foreign state:

Has itself instituted a suit against the person who is desiring to sue;
Trades within the local limits where the said court has its jurisdiction;
Possesses immovable property within such jurisdiction and will be sued regarding such property or money charged on this behalf;
The foreign state itself has waived the privilege of sovereign immunity through the provisions of Section 86. The waiving of privilege can be either implied or expressed.

No decree can be executed against any property of a foreign state without the written consent of the Central Government through its Secretary.

Section 86 is applicable to any ruler, ambassador, or envoy of a foreign state and also to any high commissioner of any Commonwealth country.

Section 86 does not have the scope to arrest any ruler, ambassador or envoy of a foreign State or any high commissioner of any Commonwealth country.

The Central Government may reject requests for granting written consent to sue a foreign state or its representatives, but before that, it should provide a “reasonable opportunity of being heard” to the person making such a request. Only after that, the government may decline such a request.

In the case of Qatar Airways vs. Shapoorji Pallonji & Co. (2013), there was a commercial dispute between the parties. The appellant was found to be a legal personality governed by the laws of Qatar. It was asserted that the appellant is a foreign state under Section 86 of the CPC, and a suit filed in the original jurisdiction of the High Court is not maintainable unless permitted by the Central Government. A judgement authored by the Bench of Justice D.Y. Chandrachud and Justice A.A. Sayed of the Bombay High Court held that contractual relationships governed by commercial activities in India are subject to the jurisdiction of a competent court in India.

In 2021, the Ministry of External Affairs of India granted permission under Section 86 of the CPC to a French company named Ultraconfidentiel Design Private Limited to sue the Spanish Embassy in India.

Sovereign immunity and the Constitution of India

Post-independence, the Indian courts have continued to narrow down the scope of sovereign immunity so that aggrieved citizens can sue the state and may receive fair compensation if they are entitled to it. The Constitution of India does not expressly voice for sovereign immunity, rather it is based on inference.

Both Articles 294 and 300 under Chapter III of the Constitution of India, which deals with “Property, Contracts, Rights, Liabilities, Obligations and Suits,” contain provisions regarding sovereign immunity of India. Both the Articles have explicit and implicit provisions regarding sovereign immunity.

Article 294 talks about the rights, liabilities and obligations of the central and state governments. Article 294(b) specifically states that all rights, liabilities and obligations of both the central and state governments arise out of contracts or otherwise. The word ‘otherwise” implies any other liabilities, including tortious liabilities.

Article 300 is a key provision related to the doctrine of sovereign immunity. It deals with the liability of the state and has its roots in Section 176 of the Government of India Act, 1935. This section specifically mentions that “the Federation may sue or be sued by the name of the Federation of India, and a provincial government may sue or be sued by the name of the province.”

Similar to the aforementioned provision, Article 300 considers the central and state governments to have a juristic personality. The Government of India can be sued in a court of law as the Union of India. Similarly, an Indian state government can be sued as “State of X.”

Article 300(1) of the Indian Constitution declares the nomenclature of state parties to suit proceedings, while Article 300(2) underlines the extent of liability of the states.

The first notable case regarding the liability of the state after the Constitution came into force was State of Rajasthan v. Mrs. Vidhyavati (1962), which examined the scope and application of Article 300.

State of Andhra Pradesh v Challa Ramkrishna Reddy & Ors (2000) has examined the relationship between the doctrine of sovereign immunity and the fundamental right of right to life under Article 21 of the Constitution. Article 21 forbids the state to deprive a person of their personal life and liberty “except according to a procedure established by law.” Life under Article 21 has a wide meaning and constitutional provisions deal with the safeguard to negative deeds of the state and positive obligations upon the state under the Directive Principles of State Policy.

Sovereign immunity and the fundamental rights guaranteed by the Constitution contradict each other. Fundamental rights can be enforced by the Supreme Court under Article 32 and by the High Court under Article 226. These Articles not only have overthrown the doctrine of sovereign immunity but also established the defence of the doctrine of sovereign immunity by the states as inapplicable. Hence, the states have tortious liability for violations of Article 21 by their employees or agents.

Conclusion

The doctrine of sovereign immunity originated from the British common law doctrine. With the establishment of the British Raj in India, the doctrine was also incorporated as a part of the legal doctrine in Indian laws. However, the applicability of sovereign immunity in India, even during the rule of the East India Company, was not welcomed.

With independence and the establishment of constitutional supremacy, the guarantee of fundamental rights became the priority of the Indian judiciary. However, the doctrine of sovereign immunity and the fundamental rights guaranteed by the state contradict each other. Hence, with time, not only was the doctrine overthrown by the judiciary, but the defence of sovereign immunity also became infructuous. However, the Code of Civil Procedure has incorporated provisions for sovereign immunity for foreign states in certain situations, even though they can also be sued with prior written permission of the Central Government.

References

George W. Pugh, Historical Approach to the Doctrine of Sovereign Immunity, 13 La. L. Rev. (1953) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol13/iss3/5

Panday, Ashish, Sovereign State Immunity while Enforcement of Arbitral Award – India (March 5, 2023). Available at SSRN: https://ssrn.com/abstract=4378659

Smith, Jr., Fred, Local Sovereign Immunity (March 6, 2016). Columbia Law Review, Vol. 116, No. 409, 2016, Available at SSRN: https://ssrn.com/abstract=3083491

https://ijtr.nic.in/articles/art68.pdf

Corporate governance in family owned businesses

By

Vanshika Kapoor

-

January 29, 2024

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This article has been written by Rajesh Kumar Handuja pursuing an Executive Certificate Course in Corporate Governance for Directors and CXOs from Skill Arbitrage and edited by Shashwat Kaushik.

This article has been published by Shashwat Kaushik.

Table of Contents

What is corporate governance

As the management principle states – everything we do needs controls in place and needs to be monitored for implementation of the controls, even if everything is going right. If there are no controls, then there are high chances of failure.

When it comes to managing businesses, whether family owned or otherwise, there is an absolute necessity to implement controls – which will keep the businesses doing the right thing and keep the stakeholders’ interests, as well as the society in general, safe.

A well structured control mechanism, applied to businesses in general, is called corporate governance. The corporate governance mechanism encompasses all the rules, norms and procedures that regulate and control business operations. The management, including the board of directors, auditors, shareholders and other stakeholders, are responsible for ensuring that the businesses are run and managed properly. Their role is crucial in steering the corporate structure so that businesses achieve their objectives and also ensure transparency and accountability at all levels. They need to ensure that the relevant provisions of corporate governance are appropriately embedded in the governance procedures, e.g. Articles and Memorandum of association, etc. Instituting robust governance mechanisms will uphold confidence among employees, customers and investors and also ensure the seamless operation of the business.

Over the years, there have been a number of instances of business failures significantly impacting employees, customers, investors, shareholders (large and small) and society in general (for example, if any employee loses their job due to mismanagement, it is not only the employee who suffers but the family of the employee is also severely impacted). Many of these failures are actually attributed to fraud, mismanagement or a lack of proper governance mechanisms. In order to ensure quality governance in corporate setups, the Confederation of Indian Industry, Securities and Exchange Board of India and Ministry of Corporate Affairs, as well as other regulators, have issued a number of guidelines with the larger intent to prevent fraudulent practices and to protect stakeholders. Some of these controls are listed below:

Independent Directors on the board of directors;
Formation of Corporate Social Responsibility, Audit, Remuneration and Nomination Committees;
Serious Fraud Investigation Office; and
Women directors on board of directors to ensure diversity.

Need for corporate governance in family owned businesses

Family businesses form a major part of India’s economy and hence play a vital role in India’s growth. While many family owned businesses range from very small to very large,. These family owned businesses are no exception when it comes to having corporate governance in place. These businesses need a well structured corporate governance, like any other business entity. There is an absolute need for these businesses to be disciplined and properly governed. Lack of proper governance will certainly have an adverse impact on the national economy. There is a need to have strong governance measures in such businesses to prevent tension between family members as well as to provide strong competition to other players in the global economic markets. In family-run businesses, there is often a high degree of interdependence between family members, which can lead to conflict and tension. Strong governance measures can help to prevent this by ensuring that there is a clear separation of roles and responsibilities and by providing a framework for resolving disputes. In addition, strong governance measures can help to ensure that the business is run in a professional and efficient manner, which can give it a competitive advantage in the global economic markets.

Major challenges in family owned businesses

Major challenges in family owned businesses are:

Most of the key managerial positions are held by family members, thereby vesting the decision making power within the family. However, there are also some potential drawbacks to having family members in key managerial positions. These include:

Conflicts of interest: When family members are in charge, there is a greater risk of conflicts of interest. For example, family members may make decisions that benefit themselves at the expense of the company.
Lack of diversity: Family-run businesses often lack diversity in their leadership. This can lead to a narrow range of perspectives and a lack of innovation.
Difficulty in succession planning: When the founder of a family-run business retires or passes away, it can be difficult to find a qualified family member to take over. This can lead to instability and a decline in the company’s performance.

Non family members may only occupy senior positions but with very little opportunity for decision making/ influencing the decisions made by family members.
Slight instability/ rivalry or difference of opinion could adversely affect the business and lead to positioning the business in a negative light in the market and to prospective investors. For example, it could lead to:

Decreased productivity and efficiency, as employees may be distracted by conflict or uncertainty.
Increased turnover, as employees may leave the company to avoid the negative work environment.
Damage to the company’s reputation, as customers may be less likely to do business with a company that is seen as unstable or contentious.
Difficulty attracting new investors, as potential investors may be wary of investing in a company that is not stable or that is seen as having a negative work culture.

There is a greater risk of nepotism than providing a fair chance to others (outside family) to be in key positions. Nepotism is the practice of favouring relatives or friends, especially in hiring or promotion, without regard to their qualifications. This can lead to a number of problems, including:

Incompetent or unqualified people are being hired or promoted.
A lack of diversity in the workplace.
A decrease in morale and productivity.
A loss of trust in the organisation.

Businesses are driven more by emotions than by professional practices and procedures. This is because emotions can cloud judgement and lead to decisions that are not in the best interests of the company. For example, a business owner who is feeling stressed or anxious may make impulsive decisions that they would not normally make. They may also be more likely to take risks that could end up costing the company money. Professional practices and procedures, on the other hand, are designed to help businesses make decisions in a rational and objective manner. They provide a framework for decision-making that can help reduce the influence of emotions.
The head of family is not competent enough to run the business and, subsequently, could lead to inappropriate transfer of power within the family as the family grows.
Unawareness of policymakers of the specificities of family businesses and their economic and social contribution.
Lack of a proper succession plan and businesses being transferred to incompetent successors.

Provision for corporate governance in family owned companies under Companies Act, 2013

As mentioned earlier, the family owned businesses are expected to follow and adhere to an equivalent corporate governance mechanism as any other non-family owned company or group of companies. The corporate governance mechanism is essential for running any business successfully and ethically. In fact, it is more important to have a well structured corporate governance mechanism for family owned businesses in view of the challenge, as brought out earlier in this document. Institutioning standard accounting processes, preparation and disclosure of the financial statements – demonstrating transparency in all its transactions as well as accountability towards shareholders and other stakeholders—will strengthen the organisation. Some of the other important measures are appointing independent directors, ensuring an accountable and transparent board of directors, conducting regular board meetings, having whistleblower policies, etc.

A family protocol should be commonly used in family business as a set of rules that define the internal policies on which the family members agree to work during the life of the company. The report of the European Commission on Family Businesses referred to the Family Protocol as the Family Constitution and defined it as:

“A statement of the principles that outline the family commitment to the core values, vision, and mission of the business. The constitution also defines the roles, compositions, and powers of key governance bodies of the business: family members/shareholders, management, and board of directors. In addition, the family constitution defines the relationships among the governance bodies and how family members can meaningfully participate in the governance of their business. (European Commission, 2009)”

Key points for continued success of family owned businesses

The family owned businesses must focus on the following key points to have continued success in the long run and greater confidence among shareholders and stakeholders:

A clear distinction between business, emotions and family relations

The head of the family (and potentially the head of business) is accountable to ensure that all the family members involved in running the business have a well defined role and responsibility. Businesses do not run only on emotions and relationships. Each member is expected to perform his/ her role appropriately and it is important that each member has a clear understanding of the expectations from them. This clarity will help not only to prevent internal clashes and conflict but also to help businesses thrive and compete at the global level with other businesses.

Define leadership roles

A succession plan is vital for any business activity in order to be prepared for the future, whether it is a planned transition or a role acquisition due to exigencies. A well structured succession plan consists of the skill/ competency gaps and a roadmap to bridge them. The person likely to succeed the incumbent gets a good opportunity to learn the secrets as well as a proper handoff. It also helps to remove any confusion about whether there is natural succession (e.g., from father to elder son and so on…) or a well-planned, out of the box succession. It also helps shareholders and other stakeholders express their interests, objections, etc. and keep business communication clear and transparent.

Principles of democracy

In order to run a business with disciplined business practises, it is absolutely necessary to appoint democratically selected directors on the board of directors in family run family owned businesses. It is an important aspect of building confidence since most of the key positions are generally governed by favouritism and nepotism. It is important to make the governance practises public as much as possible to emphasise family’s resolve to run the businesses ethically as well as professionally.

Separation of family protocol vs company by-laws

It is highly important to have distinct boundaries for family protocols and company by-laws because both of these operating guidelines have distinct characteristics and should not conflict with each other. The family protocol is an agreement of honour in the family fellowship designed by family members (with or without external guidance) and harmonises family interest with business interest. On the other hand, the company by-laws are a public document controlled by laws that is generally designed and elaborated by lawyers who have expertise in defining the company bylaws and focus only on the business interests to regulate the company’s whole structure. The family assemblies should not interfere or double up with the general meetings of the business, as the family assemblies are generally held to handle family matters and general meetings are held to handle business topics.

Conclusion

As is evident from the discussion in this paper, corporate governance is an absolute necessity in family run businesses to protect the rights of family members and shareholders (current and future), to treat family members equally, and to maintain the power balance. It also protects the rights and interests of third parties (stakeholders other than family members) to promote active cooperation between them and society in general by creating more jobs and wealth. The ultimate goal is to keep the business competitive and flourishing. The family owned businesses face a unique set of challenges as compared to other companies due to the very nature of their control. To build confidence among external stakeholders, it is necessary to have a well structured governance mechanism and businesses need to demonstrate that established controls are practised.

References

Minimum wages in India as per Labour Law

By

Vanshika Kapoor

-

January 29, 2024

0

This article is written by Sai Shriya Potla. It elaborates on the minimum wages in India as per the labour laws while highlighting the different legislations passed by Parliament on minimum wages. This article also deals with the components of minimum wages and how the minimum wages are calculated across all states in India.

Table of Contents

Introduction

A wage is a kind of remuneration provided by an employer to his employees on the basis of work done at a specified time, i.e., an hour, a day, a week, or a fortnight. A wage is generally paid for unskilled work or blue-collar jobs, in contrast to salaries, which are paid for skilled work or white-collar jobs that are given out at regular intervals.

The employers can lower the wages that are to be paid to the workmen to make more profits and the workers are compelled to accept those nominal wages due to their lack of stable employment and poverty. Unlike a salaried employee who has long-term security, workmen are often exploited by their employers. Therefore, every workplace must have a minimum wage. A minimum wage is the minimum amount of remuneration an employer is required to pay an employee to control workplace harassment.

The following article exhaustively deals with the minimum wage as per the labour law in India, the history of the minimum wage and special legislation passed in India to regulate the minimum wage.

Minimum wages

The minimum wage is the lowest amount of remuneration that is required to be paid by the employer to the employee for the performance of the work. The minimum wage cannot be reduced through collective agreement or individual agreement. The state determines the rate of the minimum wage, taking into view the economic conditions and cost of living in the nation.

Purpose of minimum wages

Basic standard of living: Minimum wages ensure that a person lives a decent life and fulfils his basic needs, including food, clothing, shelter, and other basic amenities.

Prevents workplace harassment: The workers will be prevented from paying low wages for their work. The state will constantly supervise to ensure that all workplaces follow the principle of the minimum wage.

Eliminate poverty: The minimum wage will raise the amount of remuneration for low-paying jobs. On some level, this can raise the living standards of people living below the poverty line.

Increase the output: When the employees are satisfied with the amount of remuneration, they are likely to increase their productivity in the workplace, which will lead to an increase in total output and indirectly help the country’s economy.

Boost to the economy of a country: With the increase in remuneration for all people, the country’s average income increases, leading to economic growth.

Types of salaries/ wages

The Tripartite Committee on Fair Wages, 1948, defined three types of wages, i.e., minimum wages, fair wages, and living wages.

Minimum wages: As mentioned earlier, minimum wages are the minimum amount of remuneration that the employer is required to pay to the employee. This is a compulsory obligation of the employer; he has to fulfil it at all costs.

Fair wages: The minimum wage is the statutory mandate, while fair wages are dependent on the discretion of the industry. Fair wages are dependent on the capacity of the industry to bear the financial burden and cost of living in a particular area. As of now, many organisations pay fair wages for their employees.

Living wages: A person is said to be earning living wages if he or she not only fulfils his and his family’s basic needs but also can afford to afford other luxuries like education, insurance, etc. Living wages are the ultimate goal of a nation. However, every country cannot provide living wages considering its economic conditions.

History of minimum wage laws

The Code of Hammurabi is the world’s earliest text addressing the minimum wage. It states, “If a man hires a workman, then from the beginning of the year until the fifth month he shall give six grains of silver per diem. From the sixth month until the end of the year, he shall give five grains of silver per diem.” In the modern era, New Zealand and Australia are the first among all nations to introduce minimum wage regulation.

Initially, the concept of minimum wages was used to settle disputes between workers and industries. The Industrial Conciliation and Arbitration Act, 1894, enacted by the government of New Zealand, empowered the court of arbitration to settle industrial disputes by fixing the minimum wage. This method of fixing minimum wages by arbitration was adopted by the courts of Australia.

At the same time, Australia and the United Kingdom introduced minimum wage legislation to eradicate the practice of sweating. Sweating is a method of paying insufficient wages to their workers, making it difficult for them to meet their basic needs.

History of minimum wage laws in India

The concept of the minimum wage has been present in Indian society since the ancient period. Arthashasthra and Sukranti are a few famous Indian texts that mention payment of wages, employer and employee relationships, minimum wages, etc.

After the Second World War, the rights of workers gained importance. In 1943, an Indian Labour Conference set up a Labour Investigation Committee with the help of the Standing Labour Committee to inquire into the working conditions of the workers in India. The Standing Labour Committee in 1946 recommended enacting special legislation to address the issue of minimum wage, which resulted in the introduction of the Minimum Wages Act, 1948, making India one of the first developing nations to enact its own minimum wage legislation.

The Minimum Wages Act, 1948

The Minimum Wages Act, 1948, was passed for the welfare of workers. The Act fixes minimum wages to ensure that workers are not exploited in the workplace. This Act was enacted specially to safeguard the rights of the unorganised sector, as they are an easy target for exploitation because of work instability and a lack of bargaining power.

The Minimum Wages Bill was introduced in the central legislative assembly on April 11, 1946, and passed in the same year. However, the Minimum Wages Act (hereinafter referred to as the “Act”) came into force on March 15, 1948.

Appropriate Government

The appropriate government has the power to determine the minimum wage with regard to scheduled employment. According to Section 2(b) of the Act:

The central government has the authority to determine the minimum wage carried under the authority of the central government and railway administration, or any employment in relation to mines, oil-field and major ports, or any co-operation established under any central Act.
The state government has the authority to determine the minimum wage with regard to other scheduled employment.

Section 2(g) of the Act defines scheduled employment as employment that falls within the purview of the schedule mentioned in the Act or any branch of work forming part of such scheduled employment. Scheduled employment is divided into two parts – Part I and Part II. Part I deals with non-agricultural employment and Part II deals with agricultural employment.

Fixation of minimum rates of wages

Section 3 states that the appropriate government has the authority to fix the minimum wages for Part I and Part II in the schedule. While determining the rate of minimum wage specified in Part II of the schedule, the appropriate government can fix the rate for a part of the state or a specific class.

The appropriate government can review the minimum wages at regular intervals not exceeding five years and change the rates of minimum wages if deemed necessary. Even if the appropriate government fails to review the minimum wages within five years, the government has the right to review and fix the minimum rate of wages. Until the new rates of minimum wage are fixed, the old rates of minimum wage will be in force.

The appropriate government cannot fix the rate of minimum wage if the total number of workers in that employment is less than a thousand members from that state. However, if it is brought to the notice of the appropriate government that the total number of workers has increased from a thousand members, the government can determine the rate of the minimum wage.

While fixing or revising the rates of minimum wages, the appropriate government can:

Fix a different minimum rate of wages for

different scheduled employment
different classes of work in the same scheduled employment
Adults
Adolescents
children and apprentices
minimum wages in different localities.

Fix one or more of the wage periods, namely- an hour, a week, a month, or any longer period.

When the appropriate government fixes or revises a new rate of minimum wage while any proceeding relating to minimum wages is pending before any tribunal, such a revised minimum rate of wage will not be applicable in the proceeding.

Minimum rate of wages

According to Section 4, the appropriate government, while fixing or revising the new rate of minimum wage, must include one of the following-

A basic rate of wages and special allowances, also known as cost of living allowances, that are provided at specific intervals by the appropriate government,
A basic rate of wage and cash value of concessions for supplies of essential goods at a lower rate, which may or may not include cost of living allowance,
A basic rate of wage, cost of living allowance and cash value of concessions.

Procedure for fixing and revising minimum wages

Section 5 of the Act provides two methods for fixing and revising minimum wages. They are-

By Committee: The committees and sub-committees conduct enquiries and advise the appropriate government about fixing or revising minimum wages.

The appropriate government can appoint an advisory board under Section 7 of the Act to advise committees and sub-committees on matters relating to fixing or revising the rate of minimum wages.

By Notification: The appropriate government may directly publish its proposals by notification in the official gazette. The responses to such proposals will be taken from the public. Only those responses that are within two months of the notification will be taken into consideration for fixing minimum wages.

The appropriate government may approach the committee even if the rate of the minimum wage is fixed or revised through notification.

Fixing hours for normal working days

Section 13 of the Act empowers the appropriate government to make provisions in relation-

To fix the number of hours of work in a normal working day, which includes one or more intervals.
To provide a day of rest to the employees every week and provide remuneration on the day of rest.
The payment of remuneration for such a day of rest will be the payment of a normal day, not the overtime rate. The overtime rate is working more hours than specified work time.

The above-mentioned benefits will be available to the employee only if he falls within the following category:

If the employee could not work because of any foreseen emergency or unseen work,
If the employee is engaged in work of such a nature that he must perform outside the limits of the workplace,
If the nature of the work of the employee is intermittent, to hold employment of an intermittent nature, the employee, during his hours of duty, must have a period of inaction. Even if the employee is on duty on such a day, he will not be mandated to perform any physical action.
If the employee is engaged in work that must be completed for technical reasons, and;
If the employee is involved in a work where he is not able to perform adequately due to irregular action of natural force, natural forces are those that are not within human control.

Wages of a worker who works for less than a normal working day

Section 15 states that if an employee works less than the prescribed hours of work for a day, he will be entitled to receive the full amount of remuneration as of a normal working day. However, the employee will not receive the full amount on a normal working day if his failure to work was caused by his unwillingness to work.

Claims

Section 20 of the Act provides the qualifications of ‘the authority’ to decide the claims arising from non-compliance with the provisions of the Act. They are-

Commissioner for Workmen’s Compensation
Any officer of the Central Government exercising duties as a Labour Commissioner for any officer of the State Government, not below the rank of Labour Commissioner.
Any officer who has experience as a judge of a civil court or as a stipendary magistrate.

The aggrieved employee, legal practitioner, or any person on behalf of the aggrieved employee can register a complaint before the authority. The applicant should apply within six months of non-payment of the prescribed minimum wages. The applicant can apply after six months if he has sufficient reason to satisfy the authority.

The authority provides both the employer and employee with the right to be heard. The authority, if it thinks it is necessary, may call for further inquiry before making the final decision.

In the case of payment less than the rate of the minimum wage, if the payment of the minimum wage and compensation decided by the authority payable to the employee exceeds the amount of the actual minimum wage, the authority must ensure that the compensatory amount does not exceed ten times the actual minimum wage.

In the case of non-payment of wages, the authority may order compensation to the employee along with the payment of wages not exceeding ten rupees. The authority can still order compensation even if the parties have a court settlement. The decision of the authority will be deemed final.

If the application for payment of less than the minimum wage is found to be malicious or vexatious, the authority may award compensation of fifty rupees to the employer from the applicant.

Penalty for certain offences

Section 22 of the Act mentions the penalty for payment of minimum wages less the prescribed amount. If the employer pays less than the minimum rate of wages or contravenes any provision of Section 13, he shall be punished with imprisonment for the amount not exceeding six months or a fine of five hundred rupees or both.

Criteria for fixing the minimum wage

There are no specific criteria for fixing or revising the rate of minimum wage by the appropriate government. However, the Tripartite Committee of the Indian Labour Conference, 1957, held in New Delhi, laid down five norms for fixing the minimum wage. They are

The minimum wage must be three consumption units per worker.
The minimum wage must fulfil the basic food requirement of an adult of 2700 calories.
It must fulfil the clothing requirements of the family.
Fuel, lighting, and other items must constitute up to 20% of the minimum wage.
With respect to housing, the rent provided by the government under the Government Industrial Housing Scheme must be taken into consideration.

Constitutional validity of the Minimum Wages Act

The principle of minimum wages is deeply ingrained in the Indian Constitution under Article 39 and Article 43 of the Directive Principles of State Policy. Article 39(a) mentions that the state can adopt laws to ensure adequate means of livelihood for men and women equally. Article 43 states that the state, through suitable legislation, ensures living wages, a decent standard of living and social and economic opportunities for all workers.

The constitutional validity of the Minimum Wages Act was raised on the grounds that it violates the freedom of free trade and occupation enshrined under Article 19(1)(g) of the constitution in the case of Bijoy Cotton Mills Ltd. v. State of Ajmer (1954).

The employers contended that the upheaval of minimum wages for workers puts unreasonable restrictions on the rights of employers, as they could not carry on trade and business under Article 19(1)(g) because the industry is not in a position to pay the minimum wage. They also argued that the Act is unreasonable as the decision of the appropriate government related to fixing the rate of the minimum wage is not reviewed.

The Supreme Court held that securing minimum and fair wages for workers is conducive to the general public interest and thus is not an unreasonable restriction on the freedom of trade and occupation. The Court further ruled that the appropriate government has to take the decision of the committee before fixing the rate of minimum wages and although the decision of the appropriate government is not subject to scrutiny, this cannot be the reason to declare the provisions of the Act unreasonable.

The Code of Wages, 2019

The Code of Wages, 2019 was enacted to align the labour laws with the present economic conditions prevalent in the country and new technological advancements. The Code of Wages, 2019 consolidates four labour laws-

The draft code was prepared by employers’ and workers’ representatives, regional Labour Conferences, inter-ministerial consultations, and based on reports of the Parliamentary Standing Committee on Labour in nine tripartite meetings. The Code of Wages was passed in the Lok Sabha on July 30, 2019 and in the Rajya Sabha on August 2, 2019. The Code of Wages received presidential assent on August 8, 2019

Key changes in Code of Wages, 2019 w.r.t minimum salary

The Code introduced new changes with respect to the minimum wage. They include-

Floor wages

In the Minimum Wages Act, 1948, both the central government and the state government have the power to fix or revise the rate of minimum wages in the employments mentioned in the schedule. However, the new code changed this method of fixing minimum wages.

Section 9 of the Code empowers the central government to determine the floor wages for all employment across different geographical locations. The appropriate government has to fix the minimum wage, not less than the floor wage determined by the central government.

Wages for overtime work

Under the Minimum Wages Act, if an employee works overtime beyond the normal working hours, the employer is required to pay the amount of wages for overtime work as prescribed under the Act or by the appropriate government, whichever is higher.

The code has uniformized the wages for overtime work. Section 14 of the Code states that the employer is required to pay twice the normal rate of wages for overtime work.

Increase in penalty amount

The Code increased the amount of penalty for non-compliance with the provisions of the rate of minimum wages as prescribed by the Act. Section 54 states that if an employer pays less as prescribed by the Code, he shall be held liable with a fine up to fifty thousand.

If the employer is found violating the provisions of minimum wages under the Code more than once, he will be liable to imprisonment for a term of three months and a fine of one lakh rupees.

Though the Code of Wages was passed in 2019 itself, it is not yet in force. On December 18, 2020, the central government, by notification in the official gazette, enforces certain provisions of the Code to the extent they relate to the central government. They include-

The Central Advisory Board

Section 42 of the Code states that the central advisory board consists of members nominated by the central government. They include-

Persons representing employees
Persons representing employers
Independent persons not exceeding one-third of the total members of the board
Five representatives from the state governments

One-third of the members of the board shall be women and the chairman will be appointed by the central government from among the individual persons.

The Central Advisory Board shall provide suggestions to the central government with regard to fixing or revising the rate of minimum wages. The central government may issue directions to the state government regarding the matters dealt with by the board.

The Central Advisory Board is empowered to regulate its procedures, which include committee and sub-committee meetings. The Act shall prescribe the term of office for the members of the board.

With Section 42 of the Code coming into force, Section 8 of the Minimum Wages Act, which dealt with the Central Advisory Board, is repealed.

Power of the appropriate government to make rules

Section 67 empowers the central government to make rules regarding the procedure of the Central Advisory Board and the term of office of the members of the board, as mentioned in Section 42.

Components of minimum wage

Section 7 of the Code mentions that the minimum wage may include any one of the following components-

The basic rate of wages and allowance provided by the appropriate government at specific intervals is also known as the cost of living index.
The basic rate of wages and cash value of concessions with or without the cost of living index.
The basic rate of wages includes the cash value of concessions and cost of living index.

Procedure for fixing or revising the minimum wage

Section 8 specifies that the appropriate government for fixing or revising the minimum wage rate may follow the committee method or notification method.

The committee includes the following categories of people:

Persons representing employees
Persons representing employers
Individual persons not exceeding one-third of the total members of the board

The appropriate government fixing or revising the minimum rate of wages shall consult the advisory board under Section 42. The appropriate government is required to revise the rate of minimum wages every five-year period.

The power of the central government to fix floor wage

Section 9 empowers the central government to determine the floor wage for all employment across all the states. The appropriate government has to fix the rate of minimum wage not less than the floor wage specified by the central government.

If the appropriate government has already fixed the minimum wage, which is higher than the floor wage, then the appropriate government shall not reduce the rate of the minimum wage.

Components of minimum wage

The minimum wage must not only include the mere remuneration that covers the basic survival of life but must also provide for the preservation and betterment of the worker These utilities must be incorporated into the minimum wage of the worker, regardless of the financial status of the employer. Therefore, nothing more will be added to the components of the minimum wage that will bring it next to the fair wage.

The International Labour Organisation states that the minimum wage should possess the following components:

Basic pay
Annual bonus
Tips
In-kind benefits (Educational and medical insurance, pension and retirement plans, and travel benefits)
Productivity and performance pay
Allowances and premiums for non-standard work hours or dangerous work.

Section 4 of the Minimum Wages Act of 1948 deals with the components of the minimum wage.

How is the wage calculated in India

The minimum wage is not uniform in all states in India. The rate of the minimum wage is fixed by the appropriate government. To determine the minimum wages, the workers are broadly classified into three categories: unskilled, skilled, and highly skilled.

Unskilled worker: An unskilled worker does not require any training or skills for the work. Such a worker will not be required to use their intellectual or reasoning abilities in the work. Unskilled workers are generally required for manual labour.

Skilled worker: A skilled worker possesses high qualifications, training, and other skills and is capable of making independent judgements in their work.

Highly skilled worker: A highly skilled worker receives the highest wage of them all. A worker with the most qualifications, leadership qualities, and interpersonal interactions will be deemed to be a highly skilled worker.

Minimum wages for states across India (Per Month) (in Indian Rupees)

State	Unskilled	Skilled	Highly Skilled
Andaman and Nicobar Islands	13,988	17,680	19188
Andhra Pradesh	12,344	13,844	14,844
Arunachal Pradesh	6,600	7,200	NA
Assam	9,246.10	13,430.85	17,265.55
Bihar	10,270	13,000	15,886
Chandigarh	12,623	13,298	13,698
Chattisgarh	10,480	11,910	12,690
Dadra and Nagar Haveli	9,237.80	9,653.80	NA
Daman and Diu	9,237.80	9,653.80	NA
Delhi	17,494	21,215	NA
Goa	10,790	13,728	NA
Gujarat	12,012 – 12,298	12,558 – 12,870	NA
Haryana	10,532.84	12,802.69	13,442.82
Himachal Pradesh	11,250	13,062	13,592
Jammu and Kasmir	8,086	12,558	14,352
Jharkhand	8,996.34	12,423.87	14,351.39
Karnataka	14,424.63	16,858.07	18,260.20
Madhya Pradesh	9,825	12,060	13,360
Maharashtra	12,699	14,310	NA
Nagaland	5,280	7,050	NA
Punjab	10,353.77	12,030.77	13,062.77
Rajasthan	6,734	7,358	8,658
Tripura	7,277	8,928	NA
Uttar Pradesh	10,275	12,661	NA
Uttarakhand	9,913 – 10,031	11,070 – 11,218	NA
West Bengal	9,784	11,804	13,023

Conclusion

The minimum wage is the minimum amount of remuneration that an employee or worker is paid for their performance. India, being a welfare nation, embraced the principle of minimum wages and enacted the Minimum Wages Act, 1948, to prevent exploitation at the workplace and ensure financial stability. The Act enables the state to fix and revise the rate of minimum wages, appoint advisory boards to guide the appropriate government and provide penalties for non-compliance with the provisions of the Act. Along with these positive aspects of the Act, there are a few drawbacks that diminish the integrity of the object for which the Act was enforced.

Since the enactment of the Act in 1948, the country has witnessed many economic changes, making the Act slightly out of touch. The Act only provides minimum wages for the employments mentioned in the schedule of the Act and which have more than 1,000 employees in the state; thus, many activities do not receive the benefits of the Act. One of the major challenges is the lack of knowledge among workers with regard to the existence of the Act. The Code of Wages, 2019 noticed these issues and made modifications to the previous Act. However, only certain provisions of the code were enforced. The government must take the necessary steps to create awareness among the workers about the rights provided under labour laws.

Frequently Asked Questions (FAQs)

Is Code of Wages, 2019 in force?

The Code of Wages was enacted on August 8, 2019 but the Code is not in force. Only certain provisions of the Code that relate to the central government came into force by notification in the official gazette.

Does the Minimum Wages Act, 1948, apply to all kinds of employment?

The Minimum Wages Act, 1948, applies to both skilled and unskilled work mentioned in the schedule mentioned under the Act. The provisions of the Act do not apply to other employments not mentioned in the schedule.

Is the minimum wage the same as the basic salary?

The basic salary is the base salary an employer receives before any additions or deductions to the original amount. On the other hand, the minimum wage includes a basic salary, allowances, or cash amounts for concessions for basic amenities.

References

Labour and Industrial Laws, Central Law Publications, S.N. Misra, 29th edition,
https://www.staffnews.in/2019/11/central-sphere-and-state-wise-minimum-wages-rate-list-for-skilled-semi-skilled-and-unskilled-workers-w-e-f-01-oct-2019.html
https://www.indiabudget.gov.in/budget2019-20/economicsurvey/doc/vol1chapter/echap11_Vol1.pdf
https://www.ilo.org/public/libdoc/ilo/1981/81B09_266_engl_1993.pdf
https://pib.gov.in/PressReleasePage.aspx?PRID=1844649

Countries where abortion is legal

By

Vanshika Kapoor

-

January 29, 2024

0

This article is written by Nishka Kamath. It is an endeavour to describe the legality of abortion across countries around the world. It also has an overview of the history of abortion, along with a brief overview of the opinions of individuals on legalising abortion.

Table of Contents

Introduction

Hi there! You might have read or heard about the heated Roe v. Wade debate where the US criminalised abortion all over again; however, the US is not the only country in the world to do so. Each country has its own specific legislation and procedure to deal with the right of women to have a safe abortion. Mentioned below is a brief overview of the legality of abortion in about 200 countries across the globe.

These facts are based on information from:

Centre for Reproductive Rights,
The Guttmacher Institute,
The World Health Organization and Reuters, etc.

If you are interested in reading about abortion laws across the world, go ahead and read this extensive piece!

Some history on abortion : a global perspective

Historically speaking, abortion was introduced for 3 main reasons:

Abortion was quite dangerous and abortionists were taking the lives of women; hence, laws had a public health intention to safeguard the lives of the women- who nevertheless decided to terminate their pregnancies and put their lives at risk while doing so, as they still do today in case they do not have any other option.
Abortion was said to be a sin or a form of transgression of morality, and there were provisions that were made with the intention to punish and act as a deterrent.
Abortion was restricted to protect foetal life in some or all circumstances.

Since the ways of abortion have become safe, laws and provisions against termination of pregnancy make sense only in cases of punitive and deterrent purposes, or to protect foetal life over that of women’s lives. While some prosecutions for unsafe abortions that cause injury or death still take place, far more often existing laws are being used against those having and providing safe abortions outside the law today. Ironically, it is restrictive abortion laws—leftovers from another age—that are responsible for the deaths and millions of injuries to women who cannot afford to pay for a safe and legal abortion.

Right to abortion: a brief overview

Over the past few decades, countries across the world have made significant progress in guaranteeing women’s access to abortion, with about 50 countries liberalising their abortion laws. Some of this change has been gradual, thus allowing women to terminate their pregnancy only in situations that are life-threatening or in cases when the pregnancy occurred as a result of rape. Nonetheless, a lot of these modifications have been transformational, erasing all restrictions on abortion in favour of women’s reproductive freedom.

Nearly 90% of countries across the globe have laws and provisions that allow abortions, at the very least when the woman’s life is in danger. Most of the nations that allow abortion when it has to be performed to save the woman’s life or when her life is in danger as a result of the pregnancy, also allow pregnancies to be terminated for other reasons, like when a woman’s health is in danger during pregnancy, in situations of rape or if the pregnancy is a result of an incestuous relationship.

Even though the legal status of abortion varies from state to state and region to region, a large majority of countries allow abortion in some situations. About 25 countries have put a ban on abortion entirely. For more details, read the ‘Countries where abortion is severely restricted’ section. Most industrialised countries permit the termination of pregnancies without restriction. About 100 countries have some restrictions, typically allowing abortion only in certain circumstances, like a risk to the physical or mental health of the woman, on socio-economic grounds, or the presence of foetal anomalies. However, legal language concerning exemptions for foetal impairment is often unclear and vague, thus leading to uncertainty among medical professionals regarding the legality of conducting specific abortion procedures.

Countries where abortion is legal

In these countries, abortion is legal on request, with varying developmental limits.

Albania

In Albania, abortion can be carried on until 12 weeks if the pregnant woman considers the pregnancy to impact her psychologically. The woman has to undergo counselling for a week before the abortion. Further, from the 12th to the 22nd week, too, a pregnancy can be terminated in Albania, considering both- medical and social reasons.

Argentina

In December 2020, Argentina passed a law that made abortion legal. Kindly go to the ‘Countries who approved abortion: a recently won right’ section to read about it in detail.

Armenia

In Armenia, abortion is legal on request for up to 12 weeks of pregnancy. Further, in only special circumstances, it is allowed between 12 and 22 weeks.

Australia

Generally, abortion is legal in all the states and territories in Australia, provided the abortion is carried out under certain circumstances and is performed by a registered practitioner. However, one must note that every state and territory has its own rules for the termination of pregnancy. Also, doctors can perform abortions up to 22 weeks after gaining informed consent. After the 22nd week, abortion must be carried out in a hospital and the approval of a specialist medical practitioner is needed.

Austria

Abortion has been fully legalised in Austria since January 1975. Elective abortions can be performed in Austria if the pregnancy is under 12 weeks. It may also be performed after 12 weeks if-

The woman’s mental or physical health is in danger.
The child is at risk of being born with abnormalities (say, a serious physical or mental defect).
The woman is under 14 years of age.

Azerbaijan

In Azerbaijan, it is legal for a woman to terminate her pregnancy between 12 and 28 weeks. Currently, the abortion law of Azerbaijan remains unchanged and is based on the abortion law of the Soviet Union of 1955, when Azerbaijan was a Republic of the Soviet Union (as the Azerbaijan Soviet Socialist Republic), and despite gaining independence in 1991, no amends were carried out in the previously existing law.

Belarus

In Belarus, abortion has been legalised since November 23, 1955, when Belarus was a Republic of the Soviet Union. The current abortion law, which dates from December 31, 1987, stands out as one of the most liberal abortion laws in Europe. In Belarus, a woman can terminate her pregnancy on request up to 12 weeks, and in specific circumstances, on a variety of grounds, until 28 weeks.

The current law allows abortion for the following reasons:

Harm or death to the foetus and/or that of the expectant woman.
The pregnancy was a result of rape or incest.
The to-be father has expired.
The expectant mother or father has been given jail time.
The court in Belarus has ordered stripping pregnant women of their parental rights.
If the household already has 5 children,
If the to-be father and mother are undergoing a divorce,
There is a family history that includes mental or physical disabilities.

Belgium

Abortion is legal in Belgium until it is under 12 weeks after conception when the woman is in a state of distress. Further, it is allowed at any stage of the pregnancy if two physicians are of the same opinion that the pregnancy poses a serious threat to the woman’s health or in situations when the child has an extremely serious and untreatable ailment.

Bosnia-Herzegovina

In Bosnia and Herzegovina, termination of pregnancy is legal on request during the first 10 weeks of pregnancy. Between 10 and 20 weeks, an abortion is allowed if-

The life or health of the woman is in danger.
The foetus is severely impaired.
The pregnancy was a result of crime (like rape or incest).
For psychosocial reasons.

In all these cases, approval for terminating the pregnancy has to be obtained from a Committee, and the woman has to undergo counselling before undergoing abortion. After 20 weeks of pregnancy have passed, a woman can terminate her pregnancy when it has to be performed to save her life or health.

Please note: Individuals who perform abortions illegally are liable for punishment, not the woman who undergoes the procedure in Bosnia and Herzegovina.

Brazil

In Brazil, abortion is a crime that attracts penalties ranging from 1 to 3 years of jail time for the pregnant woman and from 1 to 4 years of jail time for those individuals who performed the abortion on another woman. However, it is allowed in three specific circumstances (induced abortion is not punishable by law), namely:

In case the pregnancy may put the woman’s life at risk.
When the pregnancy occurred as a result of rape.
If the foetus is anencephalic.

Bulgaria

In Bulgaria, abortion is legal on request for up to 12 weeks. Further, abortion is permitted between 12 and 20 weeks for women who have some ailment or if the pregnancy puts her or the child’s life in danger. Also, after 20 weeks, a woman can terminate a pregnancy if the pregnancy puts her life in danger or if the foetus is genetically harmed (i.e., evidence is found of a severe foetal impairment).

Cambodia

In Cambodia, a woman is allowed to terminate her pregnancy legally upon request within the first 12 weeks of pregnancy. After 12 weeks have passed, abortions are only legal and allowed in Cambodia in cases when-

The abortion will save the life of the woman or preserve her health.
The pregnancy occurred as a result of rape.
The child may be born with a disease that is not treatable.

Please note: In all of these cases, there has to be at least approval from two medical personnel.

Canada

In Canada, a woman can terminate her pregnancy even without giving a legally justifiable reason, as long as she is doing so within the gestational limit that is set by the province or territory. The gestational limit ranges from 12 weeks to 24 weeks and 6 days.

Cape Verde

In Cape Verde, abortion has been allowed upon request for up to 12 weeks of pregnancy since 1986. After 12 weeks, a woman is allowed to terminate her pregnancy if-

The pregnancy will put the woman’s physical or mental health at risk, or
If the foetus is impaired.

Interesting fact: Cape Verde is one of only five countries in Africa that allow elective abortions, alongside Mozambique, South Africa, Sao Tome and Principe and Tunisia.

Chile

In Chile, up to 2017, abortion was not permitted under any situation; however, only therapeutic abortion, i.e., abortion on medical grounds, was allowed by the Health Code from 1931 but was later repealed in 1989. It took the nation more than 25 years to reverse the ban. However, abortion laws have changed over time. Before 2017, Chile had one of the most stringent laws across the globe and prohibited the practice of terminating pregnancy altogether. After some amends, abortion has been allowed in some circumstances now. Currently, abortion is allowed in the following 3 circumstances:

When the life of the expectant mother is in danger.
When there are foetal anomalies incompatible with life.
In cases of rape during the first 12 weeks of pregnancy (or 14 weeks if the woman is under 14 years old).

Please note: In spite of all the permissions and legislation, some doctors refuse to perform abortions, especially if the pregnancy is borne out of rape.

China

In the 1950s, China legalised abortion. China further encouraged the practice of a one-child policy considering the ever-growing population in the nation. This policy was enacted in 1979 to curb population growth by restricting families from having a single child. Abortion in China is legal throughout the pregnancy and most women can avail of the facility through-

China’s family planning programme,
Private hospitals,
Public hospitals, and
Clinics across the whole country.

Colombia

In Colombia, abortion is freely allowed up to 24 weeks of pregnancy. This decision came after there was a ruling by the Constitutional Court on February 21, 2022. One can terminate their pregnancy after 24 weeks, but it is only allowed if there is a risk of death to the mother, foetal malformation, or rape, as per a Constitutional Court ruling in 2006.

Croatia

In Croatia, abortion has been a regulated medical operation procedure since 1952, with certain restrictions. As per the present law, a pregnancy can be terminated as an elective procedure until 10 weeks following conception. A woman is allowed to have an abortion even after 10 weeks in specific circumstances.

Cuba

In Cuba, abortion is legal and is allowed on demand for free via a public healthcare system. It is legal to have an abortion after 10 weeks of gestation. Women who want to opt for an abortion have to receive pre-abortion counselling, and minors have to obtain the consent of their parents or judicial authorisation.

Cyprus

Since 2018, Cyprus has allowed abortion until the 12th week of pregnancy. Further, in rape cases, pregnancy can be terminated up to the 19th week of pregnancy. Previously, abortion was only allowed if-

The mother has a risk of physical or mental harm, or
A risk of foetal deformity, or
If the woman was raped or sexually assaulted.

Please note: There is no provision as such, but abortion is only performed up to 28 weeks in Cyprus.

Additionally, if someone is caught in an act of unlawful abortion, he/she will be liable to 7 years of imprisonment, including the expecting mother.

Czech Republic

In the Czech Republic, a woman is allowed to terminate her pregnancy legally for up to 12 weeks and up to 26 weeks for therapeutic abortion. Abortion after the 12th week is allowed only if-

The pregnant woman’s life or health will be in danger if she continues the pregnancy, or
If there is a suspicion of foetal impairment.

Additionally, women who had an abortion are not allowed to have another abortion within 6 months unless-

They had 2 deliveries,
Are 35 years of age or older,
The pregnancy was a consequence of rape.

Dem. People’s Rep. of Korea/North and South Korea

South Korea

In South Korea, abortion was decriminalised by a 2019 order by the Constitutional Court of Korea. The same became effective on 1st January 2021. From 1953 to 2020, abortion was not legal in most circumstances; however, illegal abortions were very common then and were performed at hospitals and clinics.

Since 1973, the Mother and Child Health Act has been enacted, which stated 5 special circumstances that made abortion legal. They are as follows:

In case the expecting woman or her spouse has any eugenic or genetic disability or disease.
In case the expecting woman or her spouse has any disease that is infectious.
In case the pregnancy occurred as a result of rape or quasi-rape.
In case the pregnancy happens between two individuals who are legally not allowed to marry (say, blood relatives in incestuous relationships).
In case the continuation of pregnancy could potentially harm the health of the pregnant woman.

North Korea

In North Korea, abortion laws have been changing here and there. While it was illegal throughout history, it was in the 1970s that abortion laws came into existence. It was made legal in 1983 and banned again in 1993. Later in 2015, a law was passed that banned birth control devices. The same law levied fines and also attracted jail time for people who undergo the process of abortion or perform the act. Due to the ban imposed on contraceptives and abortion services in medical facilities or hospitals, there was a surge in unsafe abortions.

Denmark

An abortion is fully legalised in Denmark if the woman’s pregnancy has not exceeded 12 weeks. The patient has to be 18 (or older) to make a decision on termination of pregnancy by self; if not, there has to be the consent of a parent, except under special circumstances.

Abortion can be performed even after 12 weeks if the woman’s life or health is at risk or under certain circumstances like-

Poor socio-economic condition of the woman.
There is a risk of birth defects in the baby.
The pregnancy was a result of rape.
There is a risk to the mental health of the mother.

Faroe Islands

In the Faroe Islands, Denmark, abortion is allowed only under certain circumstances, like-

The pregnancy is harmful or fatal to the mother.
There are high chances of birth defects during pregnancy.
The pregnancy was borne out of rape.

Please note: If the woman is married, consent has to be obtained from the husband on Faroe Island.

Estonia

In Estonia, abortion is allowed on demand before the end of the 12th week of pregnancy. Under the 12th week, for abortion, a woman has to consult a doctor and has to state the reason for abortion in writing. However, abortions are allowed up to the 21st week if-

The woman is younger than 15 or older than 45 years old,
If the pregnancy puts the life or health of the woman at risk,
The child has a serious physical or mental defect, or
If the woman is ill or has any medical conditions that would hinder the child’s development.

France

In France, abortion is available on request for up to 12 weeks. The woman has to claim to be in a state of distress because she is pregnant. After 12 weeks, abortions are only allowed in the following circumstances-

The pregnancy poses a threat to the woman’s health.
The child will suffer from a severe illness that is not curable.

After 12 weeks, to terminate a pregnancy, two doctors have to confirm the risk, stating that the pregnancy will pose a threat to the health of the expectant of the woman or foetus.

Please note: If a pregnant girl who is 16 or under the age of 16 wants an abortion, she can do so without the consent of her parents, but she has to be accompanied by an adult she chooses to accompany her.

French Guiana

In French Guiana, abortion is legal. Here, the French Penal Code is applicable. Under Article 223-10 of the French Penal Code, any termination of pregnancy without obtaining the consent of the individual concerned attracts a punishment of 5 years of jail time and a fine of €75,000.

Georgia

In Georgia, a woman can terminate her pregnancy legally up to the detection of an embryonic heartbeat, which typically begins in the 5th or 6th week after the onset of the last menstrual period (LMP) or two to three weeks after implantation. Further, if the woman is past around 6 weeks of pregnancy, she may need to travel out of Georgia to get an abortion unless she qualifies for an exception. Exceptions are very limited and include:

To save the life of a pregnant woman.
To preserve the physical health of the expectant mother.
If the foetus is not expected to survive the pregnancy.
If the pregnancy is a result of rape and/or incest.

Please note: One can leave Georgia and get an abortion out of state.

One must note that to carry out an abortion, some states have a mandate for a waiting period, meaning the expectant mother will have to schedule an appointment for a counselling session, and then wait a required amount of time before having her abortion appointment. If the pregnant lady is under the age of 18, some states may have a mandate to obtain consent from a parent or guardian to get an abortion.

Germany

In Germany, abortion is permissible for up to 12 weeks or the first trimester. Women have to receive proper counselling 3 days before carrying out termination. Such counselling, called “Schwangerschaftskonfliktberatung” (pregnancy-conflict counselling), is necessary to apprise women about the rights of the unborn (they too have the right to life) and make an attempt to convince her to carry the baby to term. In cases of emergency, just the counselling mandate could be waived.

Abortion after the first trimester is usually forbidden unless the life of the woman is in danger or there is a serious threat to her physical or mental health. Also, the law has a provision that permits doctors to refuse to carry out an abortion on moral or religious grounds, but they are required to refer the patient to a willing practitioner.

Greece

In Greece, abortion is legal for up to 12 weeks and is allowed as late as 19 weeks in cases of rape or incest or as late as 24 weeks in cases of foetal abnormalities. In case there is any risk to the life of the expectant mother, the pregnancy can be terminated legally at any time before birth. However, girls under the age of 18 must obtain written permission from their parents or guardians before being allowed an abortion.

Greenland

Abortion in Greenland was legalised on 12 June 1975, under legislation equivalent to Danish law.

Guinea-Bissau

In Guinea-Bissau, a woman is allowed to terminate her pregnancy on request.

Guyana

In Guyana, under the Medical Termination of Pregnancy Act, abortion is legal as per the request of the expectant mother. Guyana’s legislation passed in 1995, which legalised abortions up to 8 weeks in all circumstances. If there is a risk to life or the health of a woman, abortion can be carried out at any time before delivery. In cases of rape and foetal impairment, the pregnancy can be terminated for up to 16 weeks. For economic or social reasons or on request, pregnancy can be terminated for up to 8 weeks.

Hungary

In Hungary, abortion is allowed on request for up to 12 weeks and the time can be extended up to 24 weeks under special circumstances. Before terminating the pregnancy, the woman has to undergo counselling. The pregnant woman has to consult a nurse to inform her about the issues of contraception as well as to provide help if the pregnancy is carried to term. Please note, in case there is any risk to the life of the expectant mother, pregnancy can be terminated legally at any time before birth.

Iceland

On May 14, 2019, a Bill was passed by the Icelandic Parliament that legalised abortion on request within the first 22 weeks of pregnancy, irrespective of the circumstances. Even before the Bill was passed, a woman was allowed to abort her pregnancy within the same timeframe; however, the decision to abort after the 16th week required approval from a Committee. After the Bill, the decision is now totally in the hands of the pregnant woman. The Icelandic law defines termination of pregnancy as abortion up to 22 weeks, while after 22 weeks it is defined as delivery. There is a further change in relation to minors, who are now legally able to terminate a pregnancy without the consent of a parent or guardian. The new law adds that the minor shall be offered information and counselling on contraception.

Also, the terminology referring to abortion in Icelandic was changed to “interruption of pregnancy”, replacing the previous, more charged term literally translated to “fetus extermination”.

Israel

In Israel, abortion was illegal but became legal provided the Committee approved the activity under the Penal Code of 1977. Before 2014, abortion was permitted (that too, after obtaining consent from the Committee) under limited circumstances like-

The expectant woman is unmarried,
Considering age considerations (if the woman was under the age of 18—the legal marriage age in Israel – or over the age of 40),
The pregnancy was conceived under illegal circumstances like that of rape, statutory rape, etc., or an incestuous relationship, birth defects, or risk to the health or life of the mother.

Italy

In Italy, abortion is allowed up to 12 weeks on request. Here, the woman has to undergo a week’s reflection period to be imposed on her before the termination, unless the situation is one of urgency. A certificate confirming the pregnancy and request for termination has to be issued by a doctor and must be duly signed by the woman and the doctor.

For girls under the age of 18, consent has to be obtained from their parents or guardian. After 12 weeks, abortion is allowed only if-

The foetus has a genetic deficiency,
The mother’s physical and mental health have to be preserved.

Kazakhstan

In Kazakhstan, the process of abortion is regulated through the following Acts-

The Reproductive Rights Law (2004),
The Criminal Code (1997), and
The Ministry of Health Medical and Social Indications for Abortion (2008).

In Kazakhstan, abortion is legal in the following cases:

If the pregnant woman is at health risk (abortion has to be approved by a Committee of three health professionals, namely-

A gynaecologist,
The head of the institution, and
An expert on her condition).

That the illness has to be on the approved list.
If the pregnancy will put the life of the woman in danger (there is no limit as to the gestational age).
If the woman’s health could be significantly harmed, with no limit as to gestational age.
If the expectant mother’s mental health is at risk.
Upon request, for whatever reason, including reasons such as pregnancy from an incestuous relationship,
If the pregnant woman has a cognitive or intellectual disability.

Please note: Terminating a pregnancy in the case of a minor requires parental permission or that of another adult.

Kyrgyzstan

In Kyrgyzstan, under Id. Art. 16.3., a woman is allowed to artificially terminate her pregnancy for up to 12 weeks at the request of the expecting woman. Further, abortion is allowed for up to 22 weeks for social reasons based on established standards and a commission consisting of medical and social professionals who must approve the request for an abortion. Further, a woman can terminate her pregnancy at any time during the pregnancy on the basis of medical necessity. Also, under Id. art. 16.3., if a minor requests an abortion, the consent of the parents or a legal representative is mandatory.

Please note: Under the new law (Id. Art. 17.1.), it is legal to use contraception in Kyrgyzstan, and individuals are free to choose the contraceptive method.

Latvia

In Latvia, abortion is allowed up to 12 weeks into pregnancy. After 12 weeks of pregnancy, a special authorization is necessary or can be terminated on non-medical grounds, like:

The death of the husband during pregnancy,
The expectant mother is imprisoned or her husband is imprisoned,
The expectant couple is undergoing divorce during the course of pregnancy,
The pregnancy was caused as a result of rape, and
There is a history of child disability in the family.

Lithuania

In Lithuania, abortion is available only on request for up to 12 weeks. After 12 weeks, a special authorization is required. The abortion laws of Lithuania are similar to that of Latvia, the countries having been a part of the former Soviet Union.

Luxembourg

In Luxembourg, abortion is legal up to 12 weeks in certain circumstances like-

To save a woman’s life,
To preserve her mental or physical health.
In case of economic or social reasons.
In case the pregnancy occurred through rape or incest or foetal impairment.

Before terminating the pregnancy, a one-week reflection period has to be given to the women along with an information booklet that explains options other than abortion.

After 12 weeks of pregnancy has passed, the law in Luxembourg has a provision that allows abortion only and only if there are some serious issues, like risk to the woman’s or the unborn child’s health. This threat has to be confirmed in writing by two doctors. Further, a doctor cannot terminate the pregnancy unless the life of the woman is in imminent danger.

Before the end of 12 weeks after conception (14 weeks after the last menstruation period), a woman who claims to be in distress, can get permission to terminate her pregnancy after consulting 2 doctors, namely:

One medical, and
One has to be psycho-social.

She has to serve a waiting period of at least three days. Further, the woman can terminate her pregnancy at later stages only when two doctors certify there is a danger to her or the foetus. For patients who are under 18 or underage, a trusted adult has to accompany them for the consultation and the procedure itself.

Maldives

In the Maldives, abortion is prohibited except for certified medical reasons. Here, an individual is said to have committed an offence if, after the first 120 days of the pregnancy:

He/she purposely terminates the pregnancy of another person by means other than live birth, or
The pregnant lady purposely terminates her own pregnancy by using or causing another person to use instruments, drugs or violence upon her for the purpose of terminating her pregnancy by means other than live birth.

However, if the mother is at risk, an individual will not be held guilty of committing an offence if such an individual is-

The mother, or
A licenced medical professional who has determined that the pregnancy is putting the mother’s life at risk.

Also, prevention of pregnancy by medically obstructing means of pregnancy or prescribing oral contraception or any other substance that works prior to being pregnant or at the time or afterwards is not an offence in the Maldives.

Moreover, for a pregnancy resulting from sexual assault or incest, one won’t be held guilty of terminating the pregnancy if the pregnancy is the result of-

sexual assault (as defined by Section 130), or
incest (as defined by Section 413).

Furthermore, abortion is allowed in cases where thalassaemia is diagnosed. Thalassaemia is a fatal genetic blood condition that is carried by 20% of the population and affects one child in every 250.

Moldova

In Moldova, abortion is legal on request during the first 12 weeks of pregnancy. It is permitted for up to 28 weeks under special circumstances (the circumstances being determined by the Ministry of Health). The Ministry of Health allows pregnancy to be terminated until 22 weeks in the following situations:

There is a threat to the health of the expectant mother.
The pregnancy was a result of crime (say, rape or incest).
The foetus had genetically severe malformations or congenital syphilis.

Please note: In Moldova, abortions must be carried out in authorised medical facilities by obstetricians and gynaecologists.

Mongolia

In Magnolia, abortion is legal on request.

Montenegro

In Montenegro, a woman can terminate her pregnancy on request within the first 10 weeks of pregnancy. Further, during the 10 and 20 weeks, one can terminate her pregnancy by getting approval from a Committee, and such an act can be performed only on medical grounds like-

The child is expected to be born with serious disabilities.
The pregnancy is the result of a crime.
If the woman could face serious family circumstances during pregnancy or after birth.

Moreover, between 20 and 32 weeks, abortions must be approved by an ethics committee, and are only allowed for medical reasons or in the case of serious foetal defects. Then, after 32 weeks, abortions can only be permitted to save the pregnant woman’s life.

Interesting fact: The current abortion law of Montenegro, which dates from 2009, repeals the previous 1977 law enacted by Yugoslavia.

Mozambique

In Mozambique, abortion was liberalised in 2014. It allowed abortions on request up to the first 12 weeks of pregnancy. In addition to this, pregnancy can be terminated up to the first 16 weeks and if there is a case of foetal anomaly, up to 24 weeks. As per the legislation, abortions have to be performed at officially designated facilities, and that too, by quality practitioners only.

Nepal

In Nepal, abortion was made legal in March 2002. Here, the pregnancy can be terminated when the woman is up to 12 weeks pregnant. Further, if the woman is above 16 years of age, she does not need to obtain permission from her husband or guardian; if not, she has to seek their permission. In case the pregnancy was a result of rape or incest, it can be terminated up to 18 weeks. Also, if the doctor is of the opinion that the pregnancy poses a threat or danger to the physical or mental health of the expectant mother or if the foetus suffers from a physical deformity, the pregnancy can be terminated at any stage.

Netherlands

In the Netherlands, abortion is legal up to 13 weeks of pregnancy on request. However, a 5-day reflection period is necessary between the first consultation and the performance of the abortion. Further, abortion is allowed even after 13 weeks, up to 24 weeks if the woman claims she is in a state of distress.

New Caledonia

In New Caledonia, the abortion laws have seen improvement. Now, a medically induced abortion can be performed on the woman before the end of 5 weeks of her pregnancy, especially in certain medical and social care centres outside Noum.

New Zealand

In New Zealand, a woman whose pregnancy is under 20 weeks old can seek an abortion from a healthcare practitioner. However, if her pregnancy is over 20 weeks, she has to get permission from a health practitioner, who will then ascertain whether the procedure is ‘clinically appropriate’. After March 2020, women can only terminate their pregnancies after consulting two healthcare practitioners.

Norway

In Norway, abortions from the 12th to 18th weeks of pregnancy are granted via an application under special circumstances like-

The mother’s health is in danger.
Her social situation is not good.
The foetus is in great danger or has severe medical complications,
If the woman became pregnant while she was underage,
If the pregnancy was a result of sexual abuse.

After the 18th week, the reasons for terminating the pregnancy have to be severe and an abortion will not be granted after viability.

Please note: Girls who are under the age of 18 need to obtain consent from their parents even though in some situations this mandate may be overridden.

Portugal

In Portugal, abortion is allowed under certain circumstances up to 16 weeks. An abortion is allowed within the first 12 weeks of pregnancy to save a woman’s life or if her mental or physical health is in danger. Further, abortions are allowed until 16 weeks if the pregnancy was a result of rape or sexual crime. Furthermore, it is allowed up to 24 weeks if there is a risk that the child born from the pregnancy will be born with an incurable disease or malformation. Such information has to be certified by a doctor other than the one who has performed the procedure. The restrictions keep increasing gradually at 12, 14 and 24 weeks.

Puerto Rico

In Puerto Rico, abortion is legal throughout the pregnancy of the woman. Since June 2022, a Bill which will need to be considered by the House) has been passed by the Senate that allows abortion up to 22 weeks with exceptions like-

Danger to mother’s life,
Any defects with the foetus and
If the foetus would not be viable.

Republic of North Macedonia (formerly Macedonia or North Macedonia)

In the Republic of North Macedonia, which was formerly Macedonia or North Macedonia, abortion is legal on request during the first 12 weeks of pregnancy. Pregnancy can be further terminated under special circumstances between 12 and 22 weeks. The special circumstances include rape, incest, foetal malformation, for socio-economic reasons or in case of crisis pregnancies.

Please note: Abortion in the Republic of North Macedonia, was regulated by a 2019 law.

Romania

In Romania, abortion is allowed up to 14 weeks on request. It has to be performed after obtaining the consent of the woman and must be performed in a medical institution or surgery clinic. Also, abortions could be performed even after 14 weeks if they are of utmost necessity for therapeutic reasons, as per the legal provisions. Any doctor or individual who performs an illegal abortion will/may face suspension.

Russia/Russian Federation

In Russia, abortion is allowed up to the 12th week of pregnancy and up to 22 weeks if the pregnancy is a result of rape or poses a risk to the mother’s life.

Interesting fact: Russia was the first country to legalise abortion in 1920.

Sao Tome & Principe

In Sao Tome and Principe, it is legal on request.

Serbia

In Serbia, abortion is performed and allowed at the request of the expectant woman until the first 10 weeks of pregnancy. After 10 weeks, she can terminate her pregnancy only after the consent of a doctor’s council, or the ethics commission in case the pregnancy advances. However, the pregnancy can be terminated at any time if the pregnancy was a result of sexual abuse or incest or if there is foetal impairment or if the life of the expectant woman is in jeopardy.

Singapore

In Singapore, pregnancy is allowed up to 24 weeks (6 months). The pregnancy can be terminated even after 24 weeks if the life of the mother is in danger. Please note, that there is no defined minimum or maximum age for the abortion procedure in Singapore. Also, like in other countries there is no mandate for parents to consent to abortion for minors (under 16 years). The duration of the pregnancy shall be calculated from the first day of the last normal menstruation of the pregnant woman to the end of the 24th week.

Interesting fact: Singapore’s laws on abortion are considered to be one of the most progressive laws across the globe.

Slovak/The Slovakia Republic

In Slovakia or the Slovak Republic, women are allowed to terminate pregnancy up to 12 weeks. For abortion, women have to request a procedure in writing. A woman is only allowed to terminate her pregnancy if her previous abortion, if any, has surpassed 6 months period, the exception is that the woman has had 2 births or is 35 or above the age of 35, or if the pregnancy was a result of rape. Further, a woman has to receive counselling before the abortion is performed. For women under 16 years of age, parental consent is needed. For minors between the ages of 16 and 18 years, the physician has to inform the parents of the abortion. Also, abortion after 12 weeks is allowed only when-

There are medical reasons.
There are genetic reasons.
The pregnancy occurred as a result of rape or other sexual crimes.

Slovenia

In Slovenia, abortion is allowed on request for up to 10 weeks. After the 10 weeks of pregnancy, one has to obtain special authorization by a Commission that consists of a:

Gynaecologist/obstetrician,
A general physician or a specialist in internal medicine, and
A social worker or a psychologist.

If the woman is under age she has take approval of her parents or guardian, unless she is recognised as emancipated (fully competent to earn her own living).

South Africa

Abortion in South Africa is legal by request when the pregnancy is under 13 weeks. Also, it is legal to terminate pregnancy between 13 to 20 weeks if:

The pregnancy would have a significant impact on the individual’s social or economic circumstances.
The pregnancy poses a risk of injury to the individual’s physical or mental health.
There is a substantial risk that the foetus will undergo severe physical or mental abnormality.
There is a belief that the pregnancy resulted from rape or incest.

Further, pregnancy above 20 weeks is legal if the medical practitioner believes that:

The pregnancy endangers the life of the woman.
The pregnancy would result in serious malformations of the foetus.
The pregnancy would pose a risk of injury to the foetus.

Spain

In Spain, abortion is allowed under certain conditions up to 12 to 22 weeks. Abortions are allowed for up to 12 weeks to avoid a serious threat to a woman’s physical or mental health. If the abortion is a result of rape, the rape has to be reported to the police, and the procedure for termination has to be carried out within 12 weeks of pregnancy. Further, the abortion can be carried on for up to 22 weeks if there is a foetal impairment. For this, there has to be a certification by two specialists, other than the doctor performing the abortion, claiming that the child would suffer from severe physical or mental defects. Such a procedure has to be performed within the first 22 weeks. All abortions in Spain must be reported to the national health authorities.

Sweden

In Sweden, abortion is allowed on request up to 18 weeks of pregnancy. If the pregnancy is between 12 and 18 weeks, the woman has to discuss the process with a social worker. After the pregnancy has exceeded 18 weeks, the woman has to obtain permission from the National Board of Health and Welfare. In Sweden, abortions have to be performed by a licenced medical practitioner and except in cases of emergency, they have to be in a general hospital or other approved healthcare establishment.

Switzerland

In Switzerland, under the Swiss Penal Code, there are two Articles – Article 118 and Article 119—that have provisions related to abortion.

Article 118

Article 118 states that any individual who terminates a pregnancy without the consent of the pregnant woman shall be imprisoned for 1 to 10 years. Further, there will be an imprisonment of not more than 3 years or a monetary penalty for the woman who has terminated her pregnancy without following the requirements of the Penal Code and Article 119.

Article 119

Article 119 talks about the requirements for legal abortion and they are as follows:

After the end of 12 weeks, it is up to the physician’s discretion to ascertain if the pregnancy must be terminated so as to avoid her undergoing serious physical injury or serious psychological distress.
The risk must be greater the more advanced the pregnancy is, or the termination must be performed-

At the written request of a pregnant woman within 12 weeks of the start of the woman’s last period
By a physician who is licenced to practise his profession, and
The woman claims that she is in a state of distress.

Please note: The physician must have a detailed consultation with the woman prior to the termination and provide her with appropriate counsel.

If the woman is not capable of reaching an inference, the consent of her legal representative has to be obtained. The statute directs the Swiss Cantons to designate the medical practises and hospitals that fulfil the requirements for the professional conduct of procedures to terminate pregnancy and for the provision of counsel.

Tajikistan

In Tajikistan, a woman is allowed to terminate her pregnancy with the gestational limit of 12 weeks on request.

Thailand

In Thailand, abortion is allowed up to 20 weeks of pregnancy, recently authorised by Thailand’s Public Health Minist,ry as opposed to 12 weeks as per the previous legislation.

Tunisia

In Tunisia, abortion is legal for social reasons.

Interesting fact: Tunisia is the only Islamic-majority country that approves abortion for social reasons.

Turkey

In Turkey, abortion is allowed for up to 10 weeks. Under special circumstances (say the woman’s life or that of the foetus is in danger), the time limit threshold can be expanded.

Abortion up to 10 weeks can be carried out for the following reasons:

The pregnancy poses a threat to the mental and/or physical health of the expectant woman.
The foetus would be physically or mentally impaired.
If the pregnancy occurred as a result of rape or incest.
The pregnancy can also be terminated for economic or social reasons.

For terminating the pregnancy, it is important for the expectant mother to consent to this act. If she is underage (below 18), consent from her parents is required. If she is married, the consent of her husband is necessary. Women who are above 18 and unmarried may decide on their own for such an activity.

Turkmenistan

In Turkmenistan, a woman can terminate her pregnancy up to 12 weeks, previously; however, in 2015 the Government of Turkmenistan passed a law restricting abortion to only up to five weeks.

Ukraine

In Ukraine, a woman can terminate her pregnancy on request during the first 12 weeks of her pregnancy. However, after 12 and 28 weeks, a woman can terminate her pregnancy on a variety of grounds, which are as follows:

Medical reason,
Social and personal grounds, and
For any reason with the approval of a commission of physicians.

Uruguay

In Uruguay, a woman is allowed to terminate her pregnancy on request before 12 weeks of gestation. However, she has to serve the 5-day reflection period before carrying out such an activity. Abortion has been legalised in Uruguay since 2012.

Interesting fact: Uruguay is one of only four countries in South America where abortion is legal on request; the other three are Argentina, Guyana and Colombia.

Uzbekistan

In Uzbekistan, one can abort her pregnancy up to the first 12 weeks. A woman can also terminate her pregnancy on social or economic grounds where the gestational period is 22 weeks. Further, the pregnancy can also be terminated up to 22 weeks on the grounds of foetal impairment or if the pregnancy was a result of rape committed on the expectant mother or the mother’s health is in danger.

Vietnam

In Vietnam, abortion is legal. However, the law does not indicate any gestational limit.

Interesting fact: The Criminal Code of Vietnam does not have any provision that criminalises abortion practices.

Countries where abortion is legal on socio-economic grounds

In these countries, abortion is legal on socio-economic grounds.

Barbados

In Barbados, a woman can terminate her pregnancy on social or economic grounds. Further, pregnancy can also be terminated if-

The pregnancy was a result of rape.
In cases of incest.
In case there is a foetal impairment.

Please note: For minors, to abort the pregnancy, obtaining the consent of parents is a mandate.

From the first week to 12 weeks, a woman must get approval from a physician to terminate her pregnancy. After the first 12 weeks and between 12 to 20 weeks, one has to take approval from two physicians. After the first 20 weeks, one has to take approval from three physicians.

Please note: Before terminating the pregnancy, the woman has to undergo counselling.

Belize

In Belize, abortion is allowed on social and economic grounds. A woman can also terminate her pregnancy if there is any foetal impairment. However, abortion is a criminal offence except when it is performed by a medical practitioner under certain circumstances and the punishment for the same is life imprisonment. The circumstances where abortion is allowed in Belize are as follows:

To protect the life of the mother.
To protect the physical or mental health of the mother or any existing child of the family.
If there is a substantial risk that the child thus born will be severely handicapped.

Ethiopia

It was in 2005 that the Ethiopian Parliament liberalised abortion law and made abortion legal for women under specific conditions. In the present, abortion is legal in Ethiopia in the following cases:

There are some maternal issues related to foetal impairment.
The pregnancy occurred through rape.
There are incest relations involved.

In Ethiopia, a woman can terminate her pregnancy on social or economic grounds, as well. Moreover, pregnancy can be terminated on additional enumerated grounds like the woman’s age or capacity to care for a child.

Fiji

Abortion in Fiji is taboo and a woman can terminate her pregnancy only on social or economic grounds; however, the law does not permit voluntary abortion as it is against religious beliefs, since the country holds a stronghold of Christianity with other religious beliefs that prohibit abortion. Further, pregnancy can also be terminated if-

The pregnancy was a result of rape.
In cases of incest.
In case there is a foetal impairment.

Please note: For minors, to abort the pregnancy, obtaining the consent of parents is a necessity.

Finland

In Finland, abortion is legal only under certain circumstances. It is permitted up to 12 weeks to:

Save the woman’s life,
To preserve her mental health,
For economic or social reasons,
For pregnancies involving rape or incest.

Abortion up to 12 weeks must be approved by one or two doctors.

Further, it is available up to 20 weeks if there is a risk to the physical health of a woman or if she is younger than 17. Abortion up to 20 weeks must be approved by the State Medical Board.

Also, the termination can be performed up to 24 weeks if the woman’s life is in danger or if there is a risk of a foetal malformation.

Great Britain/Britain

In Great Britain, abortion is usually allowed on socio-economic grounds for the first 24 weeks of pregnancy, which is a later term limit than most other countries in Europe, and after this point for medical reasons.

Hong Kong

It was on 17th February 1981, that the Legislative Council passed the abortion Bill and made abortion legal in Hong Kong. the Counsel claimed that abortion in Hong Kong will be legal in the following circumstances-

For victims whose pregnancy was a result of rape or incest, provided the offence is reported to the police official within 3 months of the activity taking place.
If the expectant mother’s life is at risk.
On socio-economic grounds.
If the foetus has abnormalities that would result in the baby being handicapped.

Please note: Abortion in Hong Kong is only permitted for termination only if it does not exceed 24 weeks’ duration.

India

In India, abortion became legal under several circumstances with the introduction of the Medical Termination of Pregnancy (MTP) Act, 1971, and the 2002 Amendment which enabled women to access safe and legal abortion services.

Later in 2021, the MTP Amendment Act, 2021 (which became effective on 24th September 2021), was passed with several amendments to the 1971 Act like the following:

Women are allowed to seek safe abortion services on grounds of contraceptive failure,
An increase in gestation limit to 24 weeks for special categories of women, and
Opinion of one abortion service provider required up to 20 weeks of gestation.

Also, abortion in India is allowed on socio-economic grounds. For minors, in order to seek an abortion, obtaining the consent of parents is necessary.

Japan

In Japan, a woman can terminate her pregnancy up to 22 weeks in the following circumstances:

Endangerment to the health of the pregnant woman.
Economic or social hardship.
If the pregnancy occurred as a result of rape.

Rwanda

In Rwanda, abortion was illegal up to 2017 and anyone who underwent abortion or helped someone terminate their pregnancy would have to serve some jail time. However, the law has been amended (in 2018) and abortion has been allowed in the following circumstances:

If the pregnancy occurred as a result of rape.
If the pregnancy occurred as a result of forced marriage.
If the pregnancy occurred as a result of incest.
If the pregnancy poses a health risk.

Please note: The law requires that the pregnancy be terminated only after consulting some doctor(s).

Saint Vincent and the Grenadines

In Saint Vincent and the Grenadines, abortion is allowed on social and economic grounds and in cases when:

The pregnancy was a result of rape.
The pregnancy was a result of incest.
The pregnancy had foetal impairment.
The pregnant woman had physical or mental health issues as a result of the pregnancy.

Taiwan

In Taiwan, abortion is generally allowed up to 24 weeks of pregnancy under several legal circumstances and further in case it is medically necessary. Abortion was legally allowed after the enactment of the Genetic Health Act (Chinese: 優生保健法) in 1985 which was later amended in 2009. This law makes abortion accessible for unmarried adult women as well as married women.

Under this Act, abortion in Taiwan is under the following seven conditions:

Acquisition of a “genetic, infectious or psychiatric disease detrimental to reproductive health” by the parents.
Acquisition of a genetic disease within four degrees of relational separation from either parent.
The pregnancy puts the mental or physical health of the woman at risk.
There is a potential medical risk for teratogenesis (development of congenital abnormalities).
Any pregnancy that occurred as a result of rape, sexual intercourse on false premises.
The pregnancy is with a person who cannot legally be married to the expectant mother.
The pregnancy will likely affect the mental health or family life of the expectant mother or the father.

United Kingdom

In the United Kingdom, abortion is allowed up to 24 weeks.

England, Wales and Scotland

Abortion is permitted in England, Wales and Scotland considering the following reasons-

To save her life,
For health reasons,
For social or economic reasons.

Northern Ireland

In Northern Ireland, in order to abort the pregnancy, the woman’s health has to be at risk.

To carry out the termination, certification of 2 medical practitioners is required. They have to certify that the required medical grounds are met and the woman can terminate her pregnancy on any of the above grounds. The woman does not necessarily have to get permission from her spouse in case of medically terminating the pregnancy.

Zambia

Zambia is one of the few countries where abortion is allowed on economic and social grounds; however, despite having a liberal law, structural and cultural barriers make it difficult for Zambian women to obtain abortions. In Zambia, abortion is allowed under the following circumstances:

Continuing the pregnancy will pose a threat to the life of the expectant woman,
Continuing the pregnancy will be a risk or be injurious to the physical or mental health of any existing children of the pregnant woman, greater than if the pregnancy were terminated,
There is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be severely handicapped. In determining whether the continuance of a pregnancy would involve such a risk account may be taken of the pregnant woman’s actual or reasonably foreseeable environment or her age.

Countries where abortion is legal when the woman’s or the mother’s life is in danger

In these countries, abortion is legal when the woman’s or the mother’s life is in danger.

Afghanistan

In Afghanistan, abortion is illegal unless the life of the woman is at risk or the baby’s life is endangered, interpreted as the baby having a severe disability or low quality of life.

Antigua and Barbuda

In the Antigua and Barbuda islands, abortion is prohibited unless it is absolutely a necessity, say, if the expectant woman’s life is in danger. If her life is at risk, then she can be allowed to terminate her pregnancy as per the general criminal law and necessary circumstances. Additionally, in the Infant Life Preservation Act of 1937, any individual(s) who is/are found to end a pregnancy before the birth of the child to save the life of the mother will not be punished for such an action. This Act applies to those pregnancies that are 28 weeks old, at least.

Bahrain

In Bahrain, abortion is legal upon request only when authorised by a panel of physicians. As per the Penal Code of 1976, abortion will be considered illegal when it is self-induced. Such an activity attracts a penalty for the pregnant woman which ranges up to 6 months in prison. And when the pregnancy is terminated without the permission of the woman, then the individual may be imprisoned for up to 10 years.

Bangladesh

In Bangladesh, abortion is illegal in most circumstances, however, menstrual regulation is often used as a substitute. Bangladesh is still governed by the Penal Code from 1860, where induced abortion is illegal unless the expectant woman is in danger.

Bhutan

Abortion is only allowed in Bhutan under the following circumstances:

The pregnancy is a result of rape.
The pregnancy is a result of incest relations.
The mental health is in danger and can be preserved by terminating the pregnancy.
The abortion is important to save her life.

Despite this, the United Nations report on abortion notes that the exact status of the country’s abortion law is uncertain, “because the state religion of Bhutan is Buddhism, which disapproves of abortion, it is probable that the procedure is allowed only to save the life of the pregnant woman”.

Brazil

In Brazil, under its Penal Code, abortion is only allowed if it has to be performed to save the pregnant woman’s life or in case the pregnancy occurred as a result of rape or incest.

Under Article 124 of the Penal Code, if a woman induces an abortion on herself or gives permission to another person to induce it, there will be a punishment of detention between 1 to 3 years. Then, under Article 125, if the abortion is induced without the consent of the pregnant woman by a third party, there shall be a punishment between 3 to 10 years. Further, under Article 126, if an individual induces abortion after obtaining consent of the expectant woman, then there is a punishment between 1 to 3 years. However, under Article 127 (amendment), the punishment in Article 125 and Article 126 will be increased if as a consequence of the abortion or the measures taken to induce it, the pregnant woman undergoes serious physical harm. Also, the punishment will be doubled if due to any of these reasons, there is death of that woman. Under Article 128, abortion carried out by a doctor will not be penalised.

There are some instances where abortions are necessary like-

There is no other way to save the life of the expectant mother.
The abortion is carried out for a pregnancy that resulted due to rape.
If the pregnancy is the result of rape and the abortion is preceded by the consent of the pregnant woman, or, if she is unable, by her legal representative.

Brunei Darussalam

In Brunei Darussalam, abortion is legal only when it has to be performed to save the life of the expectant woman. A woman who induces her abortion may be penalised from 3 to 10 years of imprisonment and the person who performs it shall be sentenced to 10 to 15 years of imprisonment.

Burkina Faso

In Burkina Faso, abortion is allowed in the following circumstances-

To save the life of the pregnant woman.
To protect the health of a pregnant woman.
If the pregnancy occurred as a result of rape,
If the pregnancy is between incest relations.
If there is a severe foetal impairment.

Burundi

In Burundi, abortion is only allowed if it is carried out to preserve the health of the pregnant woman. As stated in the book “Abortion Policies: A Global Review”, abortion is also allowed in the following circumstances-

If the pregnancy gravely endangers the woman’s physical health.
If the pregnancy affects the woman’s potential mental health.

However, it is crucial that two certified physicians approve that the pregnancy is threatened before providing medical assistance. Even in cases in which a practitioner has deemed that the pregnancy has endangered the woman, both the physician and the woman may be subject to prison time and fines. A person who performs an abortion, including the expectant woman, will be subjected to imprisonment for between 6 and 2 years and a fine of between 1000 to 5000 Burundi francs (FBUs). Further, if the person who is performing such an act is a medical or paramedical professional or is studying for such a profession, the punishment is between 1 and 5 years and a fine between 1000 and 10,000 Burundi franc (FBUs). Also, if the abortion results in the death of the woman, the punishment would be about 20 years of imprisonment.

Cabo Verde

In Cabo Verde, abortion is legal on request before the 12-week gestation period. This provision has been in action since 1986. After 12 weeks have passed by, a woman can terminate her pregnancy in the following circumstances-

If the pregnancy poses a risk to her physical or mental health.
If the foetus is impaired.

Interesting fact: Cape Verde is one of the only 5 countries in Africa that permits elective abortions. The other countries are Mozambique, Sao Tome and Principe, South Africa and Tunisia.

Also, as per WHO’s research titled “Global Abortion Policies Database”, in Cape Verde, abortion is allowed in case the pregnancy occurred through rape or there are incest relations involved.

Côte d’Ivoire

In Côte d’Ivoire, abortion is allowed to save a woman’s life.

Also, as per WHO’s research titled “Global Abortion Policies Database”, in Côte d’Ivoire, abortion is allowed in the following cases:

There is foetal impairment.
The pregnancy occurred through rape.
There are incest relations involved.
The expectant woman’s mental or physical health is at risk.

Egypt

In Egypt, abortion is not allowed under Articles 260-264 of the Penal Code of 1937; however, it is allowed in exceptions like when the pregnant woman’s life is in danger and an abortion is necessary to save her life.

Gabon

In Gabon, abortion is legal when the expectant woman’s life is in danger.

Gambia

In Gambia, abortion is only allowed to preserve the health of the pregnant woman.

Guatemala

In Guatemala, abortion is only allowed in cases where it has to be performed in order to save the life of the pregnant woman; in other cases, a woman cannot terminate her pregnancy in Guatemala legally.

Indonesia

In Indonesia, abortion is allowed in cases involving-

Medical emergencies,
In cases of severe foetal anomalies.

In the latter situation, if the woman is married, it is important to obtain the consent of the expecting woman and her husband before terminating the pregnancy. Further, the law was expanded in 2009 to legalise abortion in cases of rape, but such a law is allowed for pregnancies only up to six weeks’ gestation.

Jordan

In most of the situations, abortion is not allowed in Jordan, except-

To save the life of the woman,
To preserve the health of the pregnant woman.
In 1971, a public health law was introduced to allow abortion on the grounds of mental health issues.

Kuwait

In Kuwait, abortion is allowed in the following circumstances:

To preserve the health of the expectant woman.
In cases of foetal impairment.

Please note: To terminate the pregnancy, parental or spousal consent is necessary in Kuwait.

Interesting fact: Kuwait is the first Arab nation in the Persian Gulf to allow abortion.

Kiribati

There are strict laws in Kiribati when it comes to abortion. Here, a woman is only allowed to terminate her pregnancy in case it is necessary to save the life of the woman. If the woman performs it for any other reason, she will be subjected to 10 years of imprisonment, and if a woman performs a self-induced abortion, the penalty is imprisonment for life.

Lebanon

In Lebanon, abortion is not allowed except when it has to be performed to save the mother’s life, i.e., if and only if her health is at risk.

Libya

In Lebanon, abortion is not allowed except when it has to be performed if and only if the mother’s health is at risk. It is not allowed, even for women who have been raped.

Malawi

In Malawi, abortion is not permitted except when the mother’s life is at risk.

Mali

In Mali, a woman can only terminate her pregnancy in the following circumstances:

If it is to safeguard her life.
When the pregnancy occurred as a result of rape or incest.

Even though abortion is very common throughout the country, most of the methods used are unsafe.

Marshall Islands

In Marshall Island, abortion is only allowed if it has to be performed to save the life of the pregnant woman. Further, even if the physician thinks that an abortion will save the life of the woman, she has to obtain the consent of her spouse, must go through counselling and sign a form that gives her consent to use family planning services after the medical procedure. Before any treatment that concerns reproductive health, minors need to get consent from their parents or guardians.

Micronesia

In Micronesia, abortion is only legal if it is done to save the life of the woman.

Myanmar

In Myanmar, abortion is only legal if it is done to save the life of the woman.

Nigeria

In Nigeria, the only legal way to terminate a pregnancy is when the pregnancy will put the life of the mother in danger.

Oman

In Oman, one can only terminate their pregnancy when the woman’s life has to be saved. The abortion has to be consented to by the husband. To carry out the termination, they have to obtain certification from multiple registered medical practitioners working in government hospitals that claim and verify that the ongoing pregnancy poses a threat to the woman’s life and that terminating the pregnancy is essential. Also, a marriage registration certificate to prove that the couple is married has to be submitted.

The act of abortion attracts a penalty in Oman. Any woman who is caught buying abortion pills or any individual helping her will be punished. The woman will be punished for 3 months to 3 years. In case the abortion was performed intentionally and against the will of the pregnant woman, the person will be sentenced to imprisonment for up to 5 years.

Pakistan

A pregnancy cannot be terminated in Pakistan unless it has to be done to save the life of the woman and is in ‘good faith’. If performed otherwise, it is a punishable offence that can lead to imprisonment of 3 years or more, depending on the fact, like whether the act was performed with or without obtaining consent from the expectant woman.

Panama

In Panama, abortion is legal in the following circumstances only:

To save the life of the mother.
If the pregnancy was a result of rape.
If the pregnancy has incest relations involved.
There was foetal impairment.

If the woman terminates her pregnancy illegally, the punishment is between 1 to 3 years of imprisonment. For the doctor who performs such a procedure, the punishment is 3 to 6 years of imprisonment. If the pregnancy is terminated without obtaining the woman’s consent or in case the woman dies during the procedure, the punishment is 5 to 10 years of imprisonment. If the husband is found guilty of performing such an act, the penalties are increased by one-sixth.

Papua New Guinea

In Papua New Guinea, abortion is only legal when it is necessary to save the mother’s life. If the pregnancy is terminated for any other reason, the violator may have to face 14 years of imprisonment. A woman who performs a self-induced abortion may be imprisoned for 7 years.

However, Papua New Guinea law gives authority to local courts to take into account the customs and traditions into consideration when it comes to abortion in cases of rape or insect; here, the woman or the individual who performed this activity will not face any charges.

Paraguay

In Paraguay, abortion is illegal except when there is a threat to the life of the woman and when her life is in acute danger. Any individual who performs an abortion can be sentenced to 15 to 30 months of imprisonment. If the act of abortion is carried out without obtaining consent from the woman, the punishment is increased to 2 to 5 years of imprisonment. If, while aborting the child, the death of the woman occurs, the individual carrying out the abortion can be sentenced to between 4 to 6 years of imprisonment and between 5 to 10 years in cases if she did not give her consent for the termination of her pregnancy.

Peru

In Peru, abortion is legal only when it has to be performed to save the woman’s life, as the pregnancy poses a threat to her life or her health.

Qatar

Abortion in Qatar is legal in the following circumstances:

If it is necessary to save the life of the woman.
If there is evidence that the child will be born with deficiencies (both, mental or physical) that cannot be treated and both parents give their consent to terminate the pregnancy.
In case of foetal imprisonment.
If the pregnancy is less than 4 months and will cause serious harm to the woman if continued.

Please note: Abortion has to be recommended by a medical commission comprising three specialists before it can be performed. By law, abortions must be performed in a government hospital.

In some situations, abortion is not allowed whatsoever. Under Qatar’s Penal Code, a woman who induces her abortion or gives consent to terminate her pregnancy can face up to 5 years of imprisonment. Those individuals who perform an unauthorised abortion on a woman may face up to 5 years of imprisonment if it is performed with her consent and up to 10 years if it is performed without her consent.

Saudi Arabia

In Saudi Arabia, one can abort their pregnancy only in the following circumstances:

In case there is a risk to the woman’s life.
In cases of foetal impairment.
To protect the physical and mental health of the woman.
Also, pregnancies arising from incest or rape can be terminated legally under the mental health exemption.

Please note: If the foetus is more than four months old, approval from specialists, thus claiming that the pregnancy will result in the death of the pregnant woman or may cause severe damage to her health, is required. Further, even the woman and her spouse have to give their assent.

Interesting fact: In Saudi Arabia, if abortion is performed on a woman except for the aforementioned reasons, the violator may have to pay blood money to the unborn child’s family.

Solomon Islands

In the Solomon Islands, abortion is only legal when it is performed to save the life of the mother. In case abortion is performed for any other reason, the offender may face a lifelong imprisonment sentence. Also, a woman who performs a self-induced abortion may also face a lifelong imprisonment sentence. Any approved abortion needs to be consented to by two physicians as well as the husband of the pregnant woman or next of kin.

Somalia

In Somalia, abortion is only legal to save the life of the woman.

South Sudan

In South Sudan, abortion is a criminal offence unless it is done in good faith to save the life of the mother.

Sri Lanka

In Sri Lanka, abortion is a criminal offence unless it is performed to save the life of the woman.

Sudan

In Sudan, abortion is legal in the following circumstances:

In case the pregnancy occurred as a result of rape (the woman has to inform the police immediately).
If the woman’s life is at risk.

Syria

In Syria, abortion is legal only to save the woman’s life. Parental or spousal consent has to be given before terminating the pregnancy.

Tanzania

In Tanzania, abortion is illegal to preserve the health of the mother. Under the Tanzanian Penal Code, abortion is not allowed except when it has to be performed to preserve the life of the mother. Under the Tanzania Penal Code, health practitioners or individuals who perform illegal abortions may be sentenced to imprisonment of up to 14 years, whereas, those women who procure abortions for themselves may be sentenced to up to 7 years in prison.

Timor-Leste

In Timor-Leste, any abortion is legal only to preserve the health of the woman. This act requires consent from three physicians. In Timor-Leste, all other acts of abortion are criminal offences, and the individual performing the act and the pregnant woman may face up to 3 years of imprisonment.

Tuvalu

In Tuvalu, abortion is only legal if it is to save the life of the pregnant woman. If it is performed for any other reason, the offender may be subjected to 10 years of imprisonment. A woman who performs an abortion may be imprisoned for life.

Uganda

In Uganda, no individual is allowed to terminate her pregnancy except as authorised by law. So, abortion is still an offence unless it is performed by a licenced and registered physician to save the life of a woman or to preserve the physical or mental health of the pregnant woman.

United Arab Emirates (UAE)

In the United Arab Emirates (UAE), abortion is illegal except when it is necessary to save the life of a woman or if there is a risk to the unborn child, like a genetic condition that may prove to be fatal or if there is a foetal impairment. Spousal authorization is required to terminate the pregnancy. Any woman who has undergone an abortion except in the above circumstances will face a penalty of up to 1 year in prison and a fine of up to Dh 10,000.

Venezuela

In Venezuela, abortion is only allowed when the pregnancy poses a threat to the health of the pregnant woman or is a result of rape or if the foetus cannot survive outside the mother’s womb. In other circumstances, abortion is illegal.

Yemen

Abortions are only allowed in Yemen to save the life of a pregnant woman, thus making it one of the strictest abortion laws in the Middle East and across the globe.

Countries where abortion is legal to preserve the health of the pregnant woman

In these countries, abortion is legal to preserve the pregnant woman’s health.

Algeria

In Algeria, a Government Bill was issued that proposed to make abortion legal under the following circumstances:

The pregnant woman is psychologically and mentally at risk.
There is a non-viable or severe foetal abnormality or disease.
If the woman continues her pregnancy, her life will be in danger.

Please note: To abort the child, the woman has to see the doctor and the doctor must obtain the consent of the woman and inform her of the whole situation.

Angola

In Angola, abortion is legal only if it is necessary to save the life of the woman or her health. It is only legal in cases of rape or foetal impairments. Under Article 154 of the Penal Code, any abortion performed under different conditions may attract a penalty for the woman and the individual performing it up to 5 years of imprisonment.

Bahamas

As per the Bahamas Penal Code under Article 315, any person who intentionally and unlawfully causes an abortion or miscarriage will attract imprisonment of up to 10 years. In the Bahamas, abortion is legal in the following circumstances:

There is foetal deformity.
The pregnancy occurred as a result of rape.
The pregnancy occurred through incest relations.
The pregnant woman’s health is at risk.

Bolivia

In Bolivia, abortion is illegal except in the following circumstances:

The pregnancy occurred as a result of rape.
There are incest relations involved.
To protect the health of the woman.

Botswana

In Bostwana, abortion is only legal if it has to be performed to save the life of the woman or if the pregnancy gravely endangers the woman’s physical or mental health, or in case if it the pregnancy occurred as a result of rape or incest. In Botswana, abortions that meet these requirements must be performed within the first 16 weeks of pregnancy in a government hospital and must be approved by two physicians.

Cameroon

In Cameroon, abortion is legal only to save the life of the pregnant woman, or if the pregnancy endangers her physical or mental health or if the pregnancy occurred as a result of rape.

Central African Republic

In the Central African Republic, abortion is legal only when it is a result of rape or if it has to be performed to save the life of the woman and has to be done through a medical practitioner. There is no explicit mention of such a provision under any law. Any individual who performs an abortion may face up to 5 years of imprisonment along with a fine and the physicians performing it illegally may be at risk of losing their medical license for up to 5 years.

Chad

In Chad, abortion was prohibited until December 2016. In 2017, abortion is legal under the following circumstances:

In case of sexual assault.
In case the pregnancy occurred as a result of rape.
There are incest relations involved.
When the pregnancy endangers the mental or physical health of the life of the mother or the foetus.

Costa Rica

In Costa Rica, abortion is restricted, except when it has to be performed to preserve the physical or mental health of the woman. Abortions are illegal in almost all cases, including when the pregnancy occurred as a result of rape or incest and when the foetus suffers from medical problems or birth defects. The 2013 United Nations Abortion Report states that Costa Rica permits abortions when the woman’s mental health is in question; however, the same is not explicitly mentioned anywhere in the statutes.

Comoros

In Comoros, abortion is only allowed when it has to be performed to save the health of the pregnant woman.

Democratic Republic of Congo

In the Democratic Republic of Congo, abortion is generally prohibited but can be performed to save the life of the pregnant woman.

Eritrea

In Eritrea, abortion is permitted on the following grounds:

When the pregnancy poses a risk to the life of the pregnant woman.
When the pregnancy poses a risk to the health of the pregnant woman.
When the pregnancy occurred as a result of rape.
When the pregnancy is between incest relations (please note, this is slightly unclear).

Equatorial Guinea

In Equatorial Guinea, abortion is legal to preserve the health of the expectant woman; spousal or parental authorization is required to terminate the pregnancy.

Ghana

Abortion in Ghana is allowed in some circumstances like:

The pregnancy was a result of rape, defilement or incest. All these are crimes in themselves in Ghana.
Where the pregnant woman requests an abortion.

In some cases, like when the woman lacks the capacity to request an abortion, the woman’s next of kin may request the same. Say for instance, if she is unconscious and needs immediate medical assistance, which may include abortion, or if she is mentally incapable of making medical decisions (like she has an intellectual disability), or if she is a minor (even though the age of a minority is below 18 years, the legal age to consent is 16 years) in the eyes of the law.

Ivory Coast

In Ivory Coast, abortion is legal only to safeguard the life of the pregnant woman. There has to be consent given by 3 physicians certifying that the life of the woman can only be saved through the termination of the pregnancy.

Kenya

In Kenya, abortion is prohibited, with the only exception of certain circumstances like-

Threat to the life or health of the expectant mother,
The pregnancy was a result of rape.

Unsafe abortions are one of the major causes of death and health complications for women in Kenya.

Liberia

In Liberia, abortion is illegal, except in the following cases:

The pregnancy occurred as a result of rape.
There is a foetal abnormality.
There is a risk to the physical or mental health of the woman.

It is important that two physicians provide certification on these exceptions and also certify evidence of rape or incest to the health minister, a county attorney or the police. Illegal abortion may attract a penalty of up to 5 years in prison.

Liechtenstein

In Liechtenstein, abortion is only legal in the following circumstances:

If the life of the mother is in danger.
If the pregnancy occurred as a result of rape.
If the mother was underage.

Malaysia

In Malaysia, abortion is generally permitted to save the life of the mother or in situations where their physical or mental health is in danger for the first 4 months (approximately 120 days) of gestation.

Mauritius

There is no proper information on abortion laws in Mauritius. Some say it is illegal. Some say it is allowed in the following circumstances:

To preserve the health of the woman.
In case the pregnancy occurred through rape or incest relations.
In cases of foetal impairment.

It is important to seek parental consent for minors.

Monaco

In Monaco, abortion is only allowed in the following circumstances:

In case the pregnancy occurred as a result of rape.
In cases of foetal deformity.
In case of illness of the pregnant woman.
In case there is fatal damage to the pregnant woman.

Morocco

In Morocco, at the moment, abortion is prohibited under the Moroccan Penal Code, except when the life of the mother is at risk and it should be performed with the permission of a physician and the spouse. In other cases, if the woman terminated her pregnancy, she could face prison sentences and fines.

Niger

In Niger, a woman can terminate her pregnancy if it occurred as a result of rape or through an incestuous relationship. Further, it is allowed in cases where the continuation of pregnancy endangers the life and health of the pregnant woman or when there is a high probability that the foetus will have a particularly serious condition.

Poland

Poland, just like a few other Catholic countries, has strict laws against abortion. Abortion has been illegal since 1993; however, a 2020 ruling by Poland’s Constitutional Tribunal, which came into effect in 2021, removed one of the exceptions to the law, i.e., foetal abnormalities, and imposed a near-total ban on abortion. Now, a woman is only allowed to terminate her pregnancy if her life is in danger (including mental health risk as stated by a psychiatric diagnosis) or if there is a reasonable suspicion that the pregnancy resulted from rape or incest. The eternal time for terminating a pregnancy is 12 weeks; however, abortions are allowed after 12 weeks if continuing the pregnancy would put the life or health of the woman in danger. The pregnancy must be performed in a hospital or clinic with the consent of the pregnant woman and if she is a minor, consent has to be obtained from her parents or guardian.

Saint Kitts and Nevis

In Saint Kitts and Nevis, abortion is legal if the life of the pregnant woman is threatened by the pregnancy. The Infant Life (Preservation) Act states that abortion can be allowed at any stage as long as the procedure is performed “in good faith for the purpose only of preserving the life of the mother“.

Saint Lucia

In Saint Lucia, a woman can terminate her pregnancy when it is necessary to do so to preserve her health. Also, a woman can terminate her pregnancy in cases of rape or incestuous relationships.

Togo

Togo has become one of the few American countries that permit abortion on the following grounds:

To preserve the health of the pregnant woman.
In case the pregnancy occurred as a result of rape.
If the pregnancy occurs through an incestuous relationship.
In case there is foetal impairment.

Trinidad and Tobago

In Trinidad and Tobago, abortion is only allowed to preserve the health of the woman.

Zimbabwe

In Zimbabwe, abortion is allowed if the pregnancy puts the life of the pregnant woman in danger or poses a threat to permanently impair her physical health, if the child could be born with several physical or mental defects or if the foetus was conceived as a result of rape or an incestuous relationship.

Countries that approved abortion: a recently won right

In these countries, abortion has been decriminalised and legalised quite recently.

Europe (in some parts)

In some parts of Europe, the right to abortion has been acquired or improved in recent times. For instance, the European microstate of San Marino gave its approval by referendum a little while ago.

Argentina

The Parliament of Argentina passed legislation that permitted abortion up to the 14th week in December 2020. Before this legislation was passed, abortion was only legal when the victim was impregnated by rape or when the life of the expecting mother was in danger.

New Zealand

New Zealand decriminalised abortion in 2020. Even though most of the Australian federal states legalised abortion by 2018, New South Wales took an additional year to reach this inference.

San Marino

In San Marino, abortion is legal in the first 12 weeks of gestation for any reason. It is also allowed if the pregnancy poses a risk to the life of the woman, or if the foetus has an anomaly that might pose a threat to the health of the woman, or if the pregnancy occurred as a result of rape or incest. In cases of risk to the woman’s life after foetal viability, the pregnancy may also be interrupted by attempting a live birth.

Before 2022, there was a penalty being imposed on any woman who procured an abortion or on any person who helped her and performed the abortion. Although the law did not explicitly mention any exceptions, abortions performed to save a woman’s life were generally permitted by the legal principle of necessity.

South Korea

In 2019, South Korea put an end to the abortion ban, considering it unconstitutional.

Ireland

In 2018, after a prolonged debate, there was finally a referendum that put an end to abortion in traditionally Catholic Ireland. Termination of pregnancy is allowed only and only if the woman’s life is at risk (including the risk of suicide).

Ireland has voted 5 times in the past 2 decades, only to decide recently to allow women to terminate their pregnancy, if they say they are having suicidal thoughts. This is one of the loopholes the government and Catholic Church wanted to resolve.

Laos

Abortion in Laos was totally banned until 2021; however, the law now allows abortion in the following cases:

The pregnant woman has major health issues like heart disease, blood diseases, mental health issues, cancer, and kidney disease, among others named in the legislation.
The pregnant woman is a member of a low-income family.
The pregnant woman has more than 4 children already.
The pregnant woman is below the age of majority.
The foetus has an intellectual disability or has been exposed to poison or over 15 rads of radiation.
The foetus was otherwise lost.
The pregnancy was a result of rape or birth control failure.

Mexico

Mexico in September 2021 declared an abortion ban as unconstitutional, thus paving the way for laws on abortion in the nation’s 32 federal states. Further, Mexico’s southern state of Guerrero, on May 18, 2022, decriminalised abortion in the first 12 weeks of pregnancy, becoming the eighth region in the conservative Latin American country to do so. However, the laws may vary from state to state. Generally, it is allowed in the following circumstances:

In case the pregnancy occurred through rape.
In case there are foetal abnormalities.

Please note: In Mexico, there is a federal system where abortion laws are ascertained at the state level. This classification reflects the legal status of abortion laws for the largest group of people.

Countries where abortion is severely restricted

You might wonder, are there any countries where abortion is completely banned? So yes, there do exist such laws. Mentioned below are the states where abortion is severely restricted or banned completely.

Andorra

Abortion in Andorra is illegal in all cases, meaning there is a total ban on abortion in this country.

Aruba

Abortion is illegal in Aruba.

Congo (Brazzaville)

In Congo (Brazzaville), abortion is not permitted in any circumstance.

Curaçao

In Curaçao, terminating a pregnancy is forbidden by law.

Dominican Republic

In the Dominican Republic, abortion is illegal under all circumstances, including when the life of the pregnant woman or girl is in danger.

Egypt

In Egypt, abortion is banned generally. However, there is an exception that permits abortion if it is necessary to save the pregnant woman’s life.

El Salvador

Abortion is a crime in El Salvador, which has some of the world’s most restrictive laws. They prohibit abortion even when pregnancy endangers a woman’s life or health or in cases of rape. The procedure has been banned without exception since 1998. More than 180 women who experienced obstetric emergencies were prosecuted for abortion or aggravated homicide in the last 20 years. Women accused of having had abortions have been convicted of homicide, sometimes with prison terms of up to 40 years, according to Human Rights Watch.

Gabon

In Gabon, abortion is illegal for now. However, the government has proposed new laws to support gender equality. One of these proposed laws states that women should be allowed to terminate their pregnancies beyond the current limit of 10 weeks into pregnancy in cases of rape, incest or when there is a risk to the mother’s life.

Haiti

In Haiti, abortion is prohibited altogether, which is why women, at times, have been resorting to dangerous ways to terminate unwanted pregnancies.

Honduras

The process of abortion is completely restricted under any circumstance. The same has been the case since 1982.

Iran

In Iran, abortion is effectively banned, except for some exceptions. The renewed law puts the power to give permission for terminating a pregnancy in the hands of a panel consisting of a judge, medical doctor and forensic doctor, rather than on the pregnant women, supported by the medical doctor in cases of-

Therapeutic abortion,
Threat to the life of the pregnant woman, or
Foetal anomalies.

Iraq

In Iraq, abortion is not allowed except in cases of rape or incest. As per Islamic teachings, women are forbidden from foetal killings except when the pregnancy is proved to be a high risk to the pregnant woman and when such situations arise, induced abortion may be allowed.

Jamaica

In Jamaica, aborting a pregnancy is considered a felony. The pregnant woman who terminated her pregnancy and the individual helping her in the activity will be prosecuted as per the law.

Madagascar

Abortion in Madagascar is illegal and the person who commits such an offence will be prosecuted severely.

Malta

In Malta, women are strictly denied access to abortion, even when their lives are in jeopardy. It is the only European Union state that forbids this process of abortion. In Malta, women who have an abortion face imprisonment from 18 months to 3 or 4 years in jail.

However, recently, the Maltese lawmakers, in a unanimous decision, approved a law to ease up this strict law. They voted to allow abortion in Malta in cases where the woman’s life is in danger.

Please note: The abortion will be carried out only after obtaining the consent of three specialists, thus agreeing that the termination is necessary or the woman’s life will be at risk.

Mauritania

In Mauritania, abortion is illegal in all circumstances.

Nicaragua

In Nicaragua, abortion is completely illegal. Before November 2006, there was a provision that allowed termination of pregnancies for therapeutic reasons, but this clause is no longer in effect.

Palau

Abortion in Palau is illegal, except on medical grounds.

Please note: The medical grounds on which such an act is allowed are not stated explicitly anywhere.

Philippines

Abortion in the Philippines is illegal. Physicians and midwives who perform such an act may face imprisonment up to 6 years and the woman who gives consent for abortion may also face imprisonment between 2 and 6 years.

Senegal

Abortion laws are a little unclear in Senegal. Generally, as per the Criminal Code of the country, abortion is illegal altogether; however, as per the Code of Medical Ethics, a woman can be allowed to terminate her pregnancy if 3 doctors testify that the procedure is necessary to save the life of the pregnant woman.

Sierra Leone

In Sierra Leone, abortion is illegal presently; however, a Bill has been passed to upturn this, decriminalise abortion, and overturn the country’s colonial-era law.

Suriname

In Suriname, abortion is illegal, except in cases where the pregnancy poses a threat to the life or health of the pregnant woman. The woman who consents to terminate the pregnancy is subject to up to 3 years of imprisonment, and the penalty for the doctor, medical practitioner or individual performing such a procedure is imprisonment of up to 4 years.

Tonga

In Tonga, abortion is severely restricted by criminal law, as almost all abortions are illegal. Only medical authorities can terminate a pregnancy by citing the preservation of maternal health.

United States

After the US Supreme Court overturned the judgement of Roe v. Wade, abortion being legal in the United States varies from state to state. Since 2022, around 14 states have enacted near-total abortion bans, while 2 states (Georgia and South Carolina) have banned abortion past roughly six weeks of pregnancy. Other states have enacted laws or held ballot referendums to protect abortion rights. For state-wise information, check out this article.

West Bank & Gaza Strip

Abortion is prohibited in the West Bank by the Jordan Penal Code under Articles 321–325. Whereas, in Gaza, it is prohibited by the Criminal Code of 1936 under Articles 175–177.

Opinions of people on laws of abortion

A general perspective

As observed above, the Supreme Court of the United States put an end to the constitutional right to terminate a pregnancy last year, and around 62% of adults are of the opinion that abortion should be considered legal in all or most of the cases. On the other hand, Poland stands out among those European countries surveyed for its residents’ having more conservative views when compared with the opinions of other Europeans. Over half of Poles (56%) advocate that abortion should be legal in all or most cases, while 36% express their belief that it should be considered illegal in all or most cases.

However, attitudes about legalising abortion vary from state to state and region to region. Individuals in the Asia-Pacific region believe that it should be legal in all or most of the cases in Australia, India, Japan and South Korea; however, in Indonesia, 83% of adults claim that abortion should be considered illegal in all or most of the cases. Further, in Israel, about 51% of adults are of the opinion that abortion should be legal in all or most of the cases, whereas, 42% argue that it should be prohibited in all or most cases. However, among the three African countries surveyed in this survey—Kenya, Nigeria, and South Africa—the majority of the population was in favour of making abortion illegal in all or most cases, with 89% of Kenyan adults and 92% of Nigerian adults expressing this view. In South America, opinions regarding the legality of abortion are divided between Argentina and Mexico. Conversely, in Brazil, seven out of ten adults assert that abortion should be illegal in all or most cases.

Abortion rules are more restrictive in countries where support for legal abortion tends to be lower. Abortions in Brazil, Indonesia and Nigeria are only permitted when a woman’s life is at risk, according to the Center for Reproductive Rights. In Israel, Kenya and Poland, abortion is permitted to preserve the health of the woman. Most other countries surveyed have more permissive regulations that allow abortions up to a specific point during the pregnancy.

A gender-based perspective on abortion

Gender also plays a major role in the views of abortion, even though these differences are not as large or well-known as ideological and religious differences. As per a survey, in seven countries like Australia, Israel, Japan, South Korea, Sweden, the UK and the U.S., women have shown a notably higher tendency than men to support the legalisation of abortion in all or most of the cases. In an additional six countries in Europe and North America, women also exhibit more inclination than men to support the belief that abortion should be legalised in all circumstances. Contrarily, in Hungary, India, Indonesia, and Poland, as well as all the African and Latin American countries surveyed, men and women have more or less similar views on abortion.

Conclusion

While reviewing the legality of abortion in about 200 countries across the globe, we can certainly say that abortion laws vary significantly worldwide. As highlighted, most of the countries support and permit abortion on the following 6 grounds:

Risk to life of the pregnant woman.
The pregnancy occurred as a result of rape or sexual abuse.
There are serious foetal anomalies.
There is a risk to the physical and/or mental health of the pregnant woman.
On social and/or economic grounds.
On request.

Such a comprehensive overview throws light on the nuanced and diverse approaches taken by countries regarding rights and access to abortion. Understanding the six grounds on which abortion is permitted in various jurisdictions emphasises the complex intersection of legal, ethical, and societal factors influencing reproductive healthcare globally.

This exploration serves as a valuable resource, offering insights into the legal frameworks that shape access to abortion services worldwide. It is a reminder of the importance of recognising and respecting individuals’ autonomy and rights to make informed choices about their reproductive health.

As readers engage with this information, it is hoped that this article has provided valuable insights into the multifaceted nature of abortion laws across the world. By understanding these legal nuances, we aim to promote informed discussions, advocate for comprehensive reproductive healthcare, and support ongoing efforts to ensure equitable access to safe and legal abortion services globally.

May this article serve as a catalyst for continued dialogue, awareness, and advocacy towards securing reproductive rights for all individuals. Happy reading and let us continue to work towards a world where reproductive autonomy is respected and protected.

Frequently Asked Questions (FAQs)

What does it mean when one says abortion is legal in a particular country?

Legalising abortion in a particular country means the country is permitted to terminate a pregnancy in some circumstances. Such laws mention the conditions, the time period known as the gestational limit and the procedure wherein abortion can be carried out legally.

Are there any international laws and/or agreements that talk about abortion rights?

There are several international human rights institutions, like the Universal Declaration of Human Rights and treaties like the International Covenant on Civil and Political Rights, that recognise reproductive rights, including access to safe abortion in certain circumstances. However, interpretations and implementation of these rights depend upon the laws of that particular country.

References

Interplay of standard, competition, and intellectual property : a comprehensive study of the US position

By

Vanshika Kapoor

-

January 28, 2024

0

This article has been written by Nagesh Karale pursuing a Diploma in US Intellectual Property Law and Paralegal Studies from LawSikho and edited by Shashwat Kaushik.

Table of Contents

Introduction

As per dictionary meaning, a standard is something set up or established by an authority as a rule for the measure of quantity, weight, extent, value, or quality. It ensures consistency, compatibility, interoperability, and safety. Standards are applicable to a range of areas, such as technology, education, business, etc. It provides specifications and regulations for goods, procedures, or services.

Role of standards in promoting innovation

Standards are essential for promoting innovation in a variety of ways. They provide a common language and framework for businesses and organisations to communicate and collaborate, and they help to ensure that products and services are compatible and interoperable. By reducing uncertainty and risk, standards can also help encourage businesses to invest in new and innovative technologies.

Standards maintain quality of products or services.
Standards reduce investment risk in new emerging technologies. (e.g., cellular infrastructure, silicon chip designs).
Standards boost the confidence of investors and reduce uncertainty and confusion.
Effective collaboration among scientists, engineers, and companies becomes easy.
Standards reduce costs during production and development of products or services.
Due to standards, entry of a new player becomes easy in the competitive market.
Standards enhance market reach internationally due to product compatibility.
Standard processes and specifications lead to large-scale production and global promotion of products. It fosters economies of scale.
Standards encourage healthy competition by ensuring nearly the same price and quality of products.
International standards encourage governments to make better rules and regulations for trade.
By adapting universally accepted standards, companies can confidently participate in the global manufacturing chain.

The US is also involved in formulating international standards. The U.S. has adapted a private sector–driven and consensus-based approach.

Intellectual property rights in the United States

In the U.S., there is no need for the registration of copyright for original works. But getting them officially registered is advised for legal purposes. The United States Patent and Trademark Office (USPTO) issues patents. Patents are issued for utility, design, and plant aspects. Trademarks are registered first for use on a commercial basis.

The USA is a signatory to key international IP agreements like the Paris Convention, Berne Convention, Madrid convention and Patent Cooperation Treaty (PCT), but not to the Hague Agreement. It is beneficial to register an IP, which offers various benefits.

Importance of IPR in fostering innovation

IPR offers incentives for innovation and invention of products or services.
It guarantees a return on investment for inventors and small businesses.
Society gets benefits from the introduction of new technologies.
IPR converts the inventor’s knowledge into a commercially tradable asset.
IPR promotes business growth and job creation through licencing.
IPR increases appeal to investors for technology commercialization.
IPR motivates people to generate new ideas and inventions through the patenting process.
IPR acts as a preventative measure against unethical third parties taking advantage without permission or proper credit.
The commercial success of patented technologies contributes to funding future research and development.
IPR generates technical information and business intelligence, which foster innovation.
Patent information mapping aids policymakers in shaping innovation-friendly policies.

Standardisation, organisations and processes

Following are the few important organisations involved in developing standards in the US. It works across different industries.

American National Standards Institute (ANSI): It is a private, non-profit organisation. It supervises the creation of standards voluntarily. This institute deals with standards related to products, services, processes, systems, and personnel.
National Institute of Standards and Technology (NIST): The role of NIST involves developing and endorsing measurement standards. It is a federal agency.
Institute of Electrical and Electronics Engineers (IEEE): it is involved in establishing worldwide standards in the fields of electrical engineering, electronics, and related disciplines.
American Society for Testing and Materials (ASTM International): It is a globally recognised leader in development. It provides voluntary consensus standards for a wide range of materials, products, systems, and services.
International Organisation for Standardisation (ISO): ISO is responsible for developing and publishing international standards. The United States is one of the members of ISO committees.

International Telecommunication Union (ITU): It develops standards for connecting networks and telecommunications standards.
Internet Engineering Task Force (IETF): It is an open standards organisation that the Internet Society’s Internet Architecture Board oversees. The IETF defines internet operating protocols.

These organisations play an important role in various sectors of the economy. It guarantees safety, interoperability, and quality. Industry consortia and government agencies are responsible for setting standards. Both jointly establish, maintain and promote these standards.

Industry consortia assist in addressing common challenges within a specific industry or sector and promoting shared interests. Consortia often develop industry-specific standards to ensure interoperability, compatibility, and efficiency among products or services. These standards are typically voluntary but widely adopted within the industry.

Nationally or internationally, government agencies often set regulatory standards. These standards are useful for public safety, health, and environmental protection. Compliance with these standards is often mandatory.

Industry consortia and government agencies work jointly. This collaboration ensures that industry standards align with regulatory objectives. Industry consortia may share information and insights with government agencies. This input is used as feedback for the regulatory process.

Industry consortia standards are typically voluntary. These standards allow for flexibility and innovation. Regulatory standards set by government agencies are often mandatory. These are in compliance with laws and regulations.

Both industry consortia and government agencies may participate in international standard-setting bodies. This leads to the global harmonisation of standards. International standards are useful for trade and interoperability on a global scale.

Here are examples illustrating the roles of industry consortia and government agencies in standards development:

Industry consortia

Bluetooth Special Interest Group (SIG)
- Role: The Bluetooth SIG is a consortium of companies promoting the Bluetooth wireless communication standard.
- Standards development: The consortium develops and maintains standards for wireless communication, ensuring interoperability among devices like smartphones, headphones, and IoT devices.
World Wide Web Consortium (W3C)
- Role: W3C is an international community. It formulates standards to secure the sustained development of the Internet.
- Standards development: W3C develops and maintains standards like HTML, CSS, and Web accessibility, influencing web development practices globally.

Government agencies

Food and Drug Administration (FDA)

The FDA monitors the safety and labelling of most food products to ensure that they meet established standards and do not pose health risks to consumers. The FDA reviews and approves new medications before they can be marketed and sold to the public. This involves rigorous testing to ensure their safety and effectiveness. The FDA plays a central role in maintaining and improving public health by regulating a wide range of products that impact people’s lives daily.

National Institute of Standards and Technology (NIST)

NIST serves various roles, primarily focusing on standards development and technology advancement. NIST establishes and maintains measurement standards for a wide range of industries. NIST plays a crucial role in developing and promoting cyber security standards. It also provides scientific research and calibration services.

Collaboration between consortia and agencies

Automotive industry

The Society of Automotive Engineers (SAE) serves as a vital organisation that sets standards in the dynamic and innovative fields of automotive and aerospace engineering.

Energy efficiency standards

The International Electrotechnical Commission (IEC) is a global organisation that plays a significant role in standardising technologies in the field of electrical engineering and electronics.

Global harmonisation

ISO (International Organisation for Standardisation)

ISO is a global body that develops and publishes international standards to ensure the quality, safety, and efficiency of products, services, and systems. ISO includes the participation of experts, industry professionals, and representatives from governments, non-governmental organisations, and consumer groups. ISO standards include ISO 9001, which is a widely recognised standard for quality management systems. Organisations that follow ISO 9001 demonstrate their commitment to quality and continuous improvement.

International Telecommunication Union (ITU)

The International Telecommunication Union (ITU) is a specialised agency of the United Nations that focuses on issues related to information and communication technologies (ICTs). ITU is involved in developing international standards for telecommunications, spectrum allocation, cyber security and assisting research and development in the field of ICTs.

FRAND commitments and fair competition

A Standard-Essential patent is a patent that is essential for implementing a specific technology standard. These standards are typically established by SSOs. SEPs are essential for ensuring interoperability among products or services that adhere to a specific standard. They define key technologies or functionalities that enable devices from different manufacturers to work together. Its licencing terms are expected to be fair, reasonable, and non-discriminatory to facilitate widespread adoption of the standard.

Following are the few challenges faced by technology industries due to Standard-Essential Patents (SEPs):

Patent holdup- Patent hold-up happens when a company with a crucial patent for a widely-used technology demands more money than initially promised. The patent holder takes advantage of the fact that many products already rely on that technology. This can be a problem because it limits fair competition and innovation. So the end result is increased costs for consumers.
Royalty base- Instead of considering the value of the specific patented part, SEP holders sometimes calculate fees based on the total price of the end product. This can be problematic for those who want to use the patented technology. It may result in higher fees that aren’t directly proportional to the value of the patented component. It’s like paying for the entire pizza when you only had a slice!
Royalty stacking- Royalty stacking occurs when companies have to pay fees to multiple owners of Standard-Essential Patents (SEPs) for using various patented technologies in their products. If these fees add up to more than what companies earn from selling their products,
There is a concern that owners of Standard-Essential Patents (SEPs) might threaten to stop others from selling products unless they agree to pay high fees. This is a problem because it goes against the commitment to fair and reasonable licencing and breaks competition laws.

FRAND stands for fair, reasonable, and non-discriminatory. FRAND commitment is commonly associated with technical standards. This commitment is made between the owner of a patent (essential for a standard) and a standards development organisation (SDO). It lays out the fair and reasonable conditions under which the patent will be licenced for essential technologies.

These organisations require their members to reveal patents that could be essential, commonly known as Standard Essential Patents (SEPs). Also, there is a requirement for a declaration of their readiness to licence SEPs on FRAND terms. The extent of this commitment differs among SDOs as per their bylaws.

The decision to make a FRAND commitment is voluntary. These FRAND commitments are based on Standards Development Organisation’s (SDO) requirements. The licensing terms for Standard Essential Patents (SEPs) are decided by the patent holder and implementers. Disputes arising from FRAND terms may be resolved through legal proceedings. The FRAND commitment is regarded as a binding and enforceable contract.

The courts have provided direction on disputes related to FRAND commitments. Determining a reasonable royalty for FRAND-encumbered patents is often guided by considering comparable licences. In cases where implementers sell products globally, some courts have asserted that FRAND licences should have a global scope. The courts have provided guidelines to resolve the disputes related to FRAND – committed agreements.

The discussion around FRAND commitments extends to antitrust considerations. While some assert that violating FRAND obligations amounts to an antitrust violation, U.S. courts have not supported this perspective. In cases such as FTC v. Qualcomm (2020), courts underscored the importance of presenting evidence of harm to competition, emphasising that merely breaching contractual duties related to FRAND commitments does not automatically constitute an antitrust violation.

FRAND commitments avoid the monopoly of SEP holder companies in the market. FRAND avoids patent hold-ups. In this matter, patent holders demand excessive fees or use legal threats to gain an unfair advantage. FRAND is useful for striking a balance between innovation and fair compensation for patent holders.

Antitrust laws and standardisation

The U.S. government has enacted antitrust laws with the intention of preventing anticompetitive and unjust business practices, ultimately aiming to safeguard consumers. The anticompetitive activities include:

Market allocation involves entities dividing business activities to create a de facto monopoly.
Bid rigging is an illegal practice. It occurs when parties collude to determine contract winners.
Price fixing involves intentionally setting prices, limiting consumer choices.
Monopolies, which lead to the dominance of an industry in the market,.
Mergers and acquisitions are classified into horizontal (combining dominant companies), vertical (merging buyers and sellers), and potential competition mergers.

U.S. antitrust laws consists of three key legislations:

Sherman Anti-Trust Act of 1890 – This act targets unreasonable restraints of trade and monopolisation, with severe penalties for violations.
Federal Trade Commission Act establishing the FTC – This Act prohibits unfair competition and deceptive practices and aligns with the Sherman Act.
Clayton Antitrust Act- This act focuses on additional practices, including regulating mergers, preventing discriminatory practices, and empowering private parties to sue for damages.

In the United States, antitrust measures are enforced by both the Department of Justice (DOJ) and the Federal Trade Commission (FTC). Following are some antitrust issues that arise in standard setting.

Patent ambush – where a company doesn’t reveal important patents during standard setting but later uses them to gain an unfair advantage.
Patent hold-up – where a patent owner demands higher fees after a standard is set. This poses difficulties to other companies to compete in the market.
Royalty stacking – when multiple patent owners charge fees for a single standard, creating high costs for businesses.
Competitors cooperate in secret to set standards to benefit them. It creates an unfair situation in the tech industry.
Restricting interoperability is like preventing devices from easily working together which slows down progress in technology.
Exclusive agreements that limit working with others can raise concerns about fair competition.

Patent pools and collaboration

A patent pool may be defined as a consortium of at least two companies agreeing to cross-license patents relating to a particular technology. Patent pools are useful as they can save patentees and licensees’ time and money. The patent pool prevents the blocking of essential patents. Patent pools are useful for the development of new products but their licencing practices may give rise to competition-related issues.

According to American economist Carl Shapiro, a patent thicket is “a dense web of overlapping intellectual property rights that a company must hack its way through to commercialise new technology.” In the telecommunications industry, there are many technologies involved that are protected by many patents. For example, a cell phone may be covered by more than 2.5 lac patents for its components, such as LCD, antennas, processors, batteries, etc. To enable the protection of that individual cell phone, it is necessary to gather access to all surrounding technologies.

Patent thickets disrupt innovation. Obtaining many essential patents from different patent holders becomes a difficult task. It may lead to increased patent litigation. Negotiating licencing agreements becomes a complicated task due to the involvement of many patent holders. Anti-competitive collusion among competitors attracts violations of competition law. The increased cost of a patent transaction reduces the profit margins.

Though standards set uniform criteria for engineering practices and methods, they pose entry barriers due to the difficulty of switching between standards.

Patent pools recognise standardisation needs for shared patents. Patent pool members can use each other’s patents and offer licences. The licencing fees are distributed among pool members. Patent pools must comply with antitrust rules.

The Department of Justice (DOJ) has specific criteria for patent pools under antitrust law. Patents must be clearly identified and available for individual or package licencing. Patents need to be valid, not expired. The pool should focus on technically essential patents. The patents must avoid competition. An independent expert checks a patent’s essential nature. The pool should have a limited duration, and the proposed royalties must be reasonable. Worldwide, non-exclusive licences should be offered. Licensees should have the freedom to use alternative patents. They must also grant back licences for essential patents. Patent pool members shouldn’t fix prices beyond the pool’s scope.

Licensing and enforcement issues

Enforcing intellectual property rights related to standards poses several challenges:

Technical standards often include many patents from various owners. It is very difficult to identify, manage, and enforce these IP rights within various different standards.
Patent pools mostly include standard-essential patents (SEPs). It is difficult to negotiate FRAND licencing terms.
Standards can vary globally. Different countries have their own different IP laws. So it becomes difficult to decide on uniform enforcement rules due to different jurisdictions of laws.
Patent holders who are involved in patent holdups demand excessive royalties for their SEPs. Due to conflicts in negotiations, it becomes very difficult to enforce stacking where multiple royalties accumulate for different SEPs within a standard.
Some holders of Standard-Essential Patents (SEPs) may refuse to share essential patents or impose unfair and discriminatory licencing terms. It hampers fair competition.
SEP holders might threaten to stop others from using their patents to gain an advantage in licencing negotiations. This can result in legal battles and make it difficult to enforce intellectual property rights.
It is difficult to resolve IPR issues such as cross-border disputes and different legal interpretations across jurisdictions.
Disputes over licencing terms, as per FRAND commitments, can lead to long legal battles. This delays the enforcement of IP rights.

International cooperation and standardised dispute resolution mechanisms are required to resolve the issues related to SEP licencing. Continuous efforts are required to bring transparency and fairness to standard licencing processes.

Emerging technologies and future considerations

Types of emerging technologies are:

Artificial Intelligence (AI)

Artificial intelligence (AI) is influencing industries like healthcare, finance, and production. AI systems can create original works like literature, art, and music. Authorship and ownership of AI-generated work are debatable issues.

This poses challenges for traditional intellectual property (IP) laws. The uncertainty in these IPR laws makes it difficult to protect AI-generated content. AI requires vast input data to train generative AI systems. So without infringing on other intellectual property rights, it is not possible to create new work.

Blockchain technology

Blockchain ensures secure data storage by preventing hacking. It provides proof of ownership, timestamps, and smart contracts for enforcing IP rights. It’s like a super-secure vault that also keeps track of who owns what and when. This is a decentralised and transparent technology. Blockchain creates unchangeable ownership records and automates the enforcement of IP rights using smart contracts. However, using blockchain may lead to legal issues like privacy concerns, jurisdiction problems, and compatibility challenges.

3D Printing

3D printing or additive manufacturing, is the construction of a three-dimensional object from a CAD model or a digital 3D model. 3D printers are easy to operate. Anyone can replicate existing patented goods by using 3D printing. This technology raises concerns regarding infringement of copyrighted work and counterfeiting. Moreover, 3D printing introduces the risk of trademark violations.

Conclusion

The right balance is required for encouraging innovation, promoting fair competition, and protecting IP rights. The U.S. follows a path of private sector leadership and collaboration. The US is handling challenges posed by standard-essential patents, antitrust issues and evolving technologies like AI, block chain, and 3D printing. Strategic investments in research, development, and international partnerships are also important issues.

The United States should have a proactive, long-term plan to lead in Converging Technologies (CET) standards. It should stick to its private sector-led approach. To succeed, the U.S. must invest in R&D for CET. The US also tries to build strong partnerships and support a skilled workforce to create international standards. These investments will create economic opportunities, protect standards integrity, and ensure durable standards that benefit both domestic and global communities.

References

Kharak Singh v. the State of Uttar Pradesh (1962) : case analysis

By

Vanshika Kapoor

-

January 28, 2024

0

This article is written by Mayur Sherawat. This article seeks to provide a case brief on Kharak Singh v. The State of U.P. along with tracing the case as an inception point leading to a concrete Right to Privacy in India. Further, it includes all the details, facts, issues, arguments of the parties and the judgement the Bench gave in this case.

It has been published by Rachit Garg.

Table of Contents

Introduction

Kharak Singh v. State of Uttar Pradesh (1962) stands as a landmark judgement, addressing questions pertaining to the Right to Privacy and the attack by law enforcement agencies on the same. Adjudicated by the Supreme Court (SC) in 1962, it marked a critical juncture in the interpretation of constitutional rights and balancing them with the needs of state surveillance. The petitioner, Kharak Singh, in this case, challenged aggressive surveillance measures employed by the Uttar Pradesh Police as being violative of his Right to Privacy. The surveillance methods adopted by the police included secret picketing, domiciliary visits at night, and periodical inquiries. These actions were authorised by U.P. Police Regulations. The SC provided relief to the petitioner not on the grounds that the actions violated his Right to Privacy but on the basis that a person’s Right to Life may only be restricted by law and not executive order. The case initiated a jurisprudential debate shaping the contours of Privacy Rights in India, making the case an inception point while tracing the development of the Right to Privacy from its nascent reference to unanimously being held as a fundamental right in the K.S. Puttaswamy case (2018).

Details of Kharak Singh v. the State of Uttar Pradesh (1962)

Let us take a look at the details involving the case.

Supreme Court Bench

The then Hon’ble Chief Justice of India, Bhuvneshwar Prasad Sinha,

Hon’ble Justice Rajagopala Ayyangar,

Hon’ble Justice Jaffer Imam Syed,

Hon’ble Justice K. Subbarao,

Hon’ble Justice, J.C. Shah,

Hon’ble Justice, J.R. Mudholkar.

Parties to the case

Petitioner

Kharak Singh

Respondent

State of Uttar Pradesh

Date of decision

18th December 1962

Case citation

(1963) AIR 1295 1964 SCR (1) 332

Facts of Kharak Singh v. the State of Uttar Pradesh (1962)

Kharak Singh, the petitioner, was a resident of Uttar Pradesh who filed a writ petition in the Supreme Court of India in 1962 challenging the validity of certain surveillance tactics employed by the police under the U.P. Police Regulations. Kharak Singh was earlier put on trial in 1941 for allegedly being part of an armed robbery but was released due to a lack of evidence under Section 169 of the Code of Criminal Procedure, 1973. The U.P. Police also opened a “history sheet” defined under Section 228 of the U.P. Police Regulations for the petitioner, classifying him under Class A of criminals under surveillance. Class A was meant for dacoits, burglars, cattle thieves and railway goods waggon thieves. Meanwhile, Class B was meant for confirmed criminals who were highly likely to commit crimes other than those mentioned above, such as professional cheating. The Petitioner had said that the authorities had watched him around the clock. He had said that the village guard and sometimes the cops arrived at his house, had banged and shouted at the petitioner’s door, and had disturbed his sleep at night. The police also went so far as to make him wake up and take him to the police station to verify his identity. Whenever Kharak Singh travelled to another place, he had to tell the village guard or the police station about his trip. He had to inform the station where he had gone and when he would come back and as soon as he had reached his destination, the police station at his destination had been informed by the police from where he resided to keep an eye on him in the same exorbitant way. This displayed the intensity of the poking surveillance that Kharak Singh was put under.

These acts were carried out under the garb of U.P. Police Regulations that were validated by Section 12 of the Police Act, 1861. The police were authorised to carry out surveillance, maintain records of the movement and activities of individuals, and conduct domiciliary visits between 10 p.m. and 6 a.m. without a warrant. Kharak Singh argued that these actions violated his Right to Privacy, which should be considered a fundamental right protected under Articles 19 and 21 of the Constitution of India. The Petitioner claimed that the surveillance and domiciliary visits not only infringed upon his personal liberty but also affected his right to live with dignity and security. He argued that the police actions were without any reasonable grounds as considered under Article 21 and were conducted solely based on suspicion or mala fide satisfaction of the police authorities. The State of Uttar Pradesh, represented by the respondents, defended the validity of the U.P. Police Regulations. They contended that the regulations were necessary for the prevention of crime and the protection of public safety, thus effectively painting the petitioner as a public enemy whose rights can be restricted in favour of society.

Provisions

Before we consider the issues involved, let us go over some of the essential provisions of the law involved. Article 19 guarantees six freedoms to all citizens, including the freedom of speech and expression, the freedom to assemble peacefully without arms, to carry on any trade, profession or business, to form associations or unions, and to move and reside freely in part of the country. However, these freedoms are not absolute and are subject to reasonable restrictions such as the interests of the state and order, public health, and morality or the interest of any marginalised groups in the country.

Article 21 ensures the Right to Life and personal liberty, protects against arbitrary actions, and emphasises a fair legal procedure for deprivation of any of the person’s rights. Article 21 has been used to expand the ambit of fundamental rights, bringing within its scope more and more rights as part of what constitutes life and personal liberty. It also provides the judiciary with the option to fine-tune the fundamental rights to be in conformity with changing circumstances and the level of development in the country.

Issues of Kharak Singh v. the State of Uttar Pradesh (1962)

The main issue while hearing this case before the Hon’ble Supreme Court of India was to determine whether the surveillance and domiciliary visits carried out by the police under the U.P. Police Regulations violated the fundamental Right to Privacy guaranteed under Article 21 of the Constitution of India. The specific issue can be further broken down into the following components:

Right to Privacy: The Court had to determine whether the Right to Privacy is encompassed within the broader concept of personal liberty under Article 19 of the Constitution. The constitutionality of surveillance and domiciliary visits was closely linked to the recognition of the Right to Privacy as a fundamental right.
Constitutionality of Surveillance: The Court had to analyse whether the provisions of the U.P. Police Regulations, such as classifying them within Classes A and B of criminals, which authorised surveillance by the police without proper safeguards and oversight, were in violation of the Right to Privacy. The issue was whether such surveillance infringed upon an individual’s Right to Privacy and personal liberty.
Constitutionality of Domiciliary Visits: The Court needed to assess the validity of domiciliary visits conducted by the police under the U.P. Police Regulations, which allowed entry into individuals’ dwellings without a warrant at odd hours of the night.
Standard for Justifying Surveillance and Domiciliary Visits: The Court had to establish the standards for justifying surveillance and domiciliary visits. It needed to determine whether only suspicion or subjective satisfaction of the police authorities were sufficient grounds for such actions, or if there needed to be more objective and reasonable grounds.
Procedural Safeguards: The Court needed to evaluate whether the U.P. Police Regulations provided adequate procedural safeguards to safeguard against the arbitrary exercise of police powers. The issue was whether there should be a requirement for a warrant and specific objective criteria to ensure that the Right to Privacy was not unlawfully infringed upon. The decision in the Kharak Singh case not only addressed these specific issues, but it also laid down foundational principles that continue to shape the interpretation and protection of the Right to Privacy in India.

Petitioner’s arguments

Violation of Fundamental Right to Privacy: It was urged before the SC that acts set out in clauses (a) to (f) of Regulation 236 infringed upon the rights given by Article 19 (1)(d) “to move freely throughout the territory of India”. Along with Article 19 it was argued that personal liberty under Article 21 was also shadowed over by the acts mentioned in the clauses. The Petitioner argued that the continuous police surveillance and nightly domiciliary visits violated his fundamental Right to Privacy. He contended that Privacy is an essential aspect of personal liberty and dignity, and a compelling state interest must justify any infringement upon it.
Arbitrary and Unreasonable Actions: The Petitioner asserted that the surveillance and domiciliary visits were conducted without any reasonable grounds or objective criteria. He argued that mere suspicion or subjective satisfaction of the police authorities cannot be a valid basis for intruding upon an individual’s Privacy. He described that the chaukidar of the village enters his house at odd hours and demands loudly that he accompany the chaukidar to the police station to report his presence. The Petitioner also alleged misuse of authority by the chaukidar, going beyond the scope of instructions given to him. However, this was out right denied by the police officials and not taken into consideration by the Bench. The basic argument under this head rested on how there are minimum requirements of the state to deter crime by having surveillance on “habitual criminals” but the U.P. regulation goes above and beyond those requirements, allowing for totalitarian and arbitrary powers to be exercised by the police officials.
Lack of Procedural Safeguards: The petitioner brought notice to the absence of proper procedural safeguards in the U.P. Police Regulations. He asserted that the regulations did not require a warrant or provide any oversight mechanisms for surveillance and domiciliary visits. The police could enter his house without having to follow any of the standard procedures due to the regulations. This lack of procedural safeguards gave wide room for abuse of authority and effectively made it simpler to violate the petitioner’s Privacy.

Respondent’s arguments

The respondent’s arguments can be divided into 2 parts :

The U.P. Regulations do not constitute an infringement on any of the freedoms guaranteed under Part 3 of the Constitution.
Even if the Regulations do infringe upon the freedoms under Part 3 then such infringement is a reasonable restriction as they were framed to allow the police to act more efficiently to protect the interests of the general public. The regulations so made were only directed towards those

Now, because the second point was without any legal basis, there was a requirement by the bench to prove that the impugned regulations form part of valid law and have a statutory basis. The defence for the state attempted to show the regulations as part of valid law, as they traced their authority from Section 12 of the Police Act, 1861.

Ratio decidendi

The ratio decidendi, or the legal principle underlying the decision, in this case revolves around the recognition of the Right to Privacy as a fundamental right under Article 21 of the Constitution of India and the insistence on procedural safeguards and objective standards for limiting this right. The key components of the ratio decidendi can be summarised as follows:

Regulations made under Section 12 were not statutory provisions

The regulations permitting classification and extra surveillance on ‘habitual criminals’ were not valid laws within which the state could make restrictions for clauses 2 to 6 under Article 19. The regulations also do fall under the ‘procedure established by law’ and thus could not be construed as reasonable restrictions on the life and liberty of an individual as guaranteed by Article 21. The Court granted a part writ of mandamus sought by the Petitioner, directing the U.P. Police not to continue domiciliary visits to Kharak Singh.

Domiciliary visits at odd hours employed by U.P. Police were held to be unconstitutional

The Court recognised that while the Right to Privacy is not explicitly mentioned in the Constitution of India, it is implied in the broader concept of autonomy and personal liberty under Article 21. The right of the accused to move freely was also violated due to the need to inform the station wherever he goes. The Court held that an individual’s Right to Privacy is essential for preserving personal intimacies, safeguarding one’s personality, and leading a life free from unnecessary interference. It was highlighted that the term ‘personal liberty’ is intended to complement the constitutional purpose of ensuring individual dignity, as expressed in the Constitution’s Preamble this was put down by looking at the relationship between the ‘liberties’ in Articles 19(1) and 21, concluding that while Article 19(1) dealt with specific types or attributes of freedom, “the term ‘personal liberty’ is used as a compendious term in Art. 21 as a compendious term,” which encompassed and included the rest.

Restricting the Right to Privacy

The Court held that the Right to Privacy can only be limited if there is a compelling state interest. Mere suspicion or subjective satisfaction of the police authorities cannot be sufficient grounds for infringing upon an individual’s privacy. The Court further held that neither Article 19(d) nor 21 was being violated through picketing of the petitioner’s house, as it was important to keep track of the person’s contacts and activities that habitual criminals or those about to become habitual criminals might engage in. The rights granted by the Constitution were not intended to protect mere personal sensitiveness.

Procedural Safeguards

The Court ruled that the U.P. Police Regulations, which allowed surveillance and domiciliary visits without proper safeguards, were unconstitutional. The Court highlighted the importance of procedural safeguards, such as the requirement of a warrant and objective criteria for the police, to prevent arbitrary exercise of their powers.

Objective Standards and Oversight:

The Court stressed the need for objective standards and oversight mechanisms to ensure that any intrusion on privacy is justified. It asserted that surveillance and domiciliary visits can only be justified if conducted under specific laws with adequate safeguards in place. The ratio decidendi of the case emphasises the importance of procedural safeguards, objective standards, and justifiable state actions when limiting the Right to Privacy.

Dissenting opinion of Justice Subba Rao

The total bench was composed of 6 members, out of whom Justice Subba Rao had a dissenting opinion, which is of particular importance. Justice Subba Rao not only argued to hold Section 236(b) unconstitutional but also did the same for the entire Regulation on the basis that it is inherently against Articles 19 and 21. The view held by Justice Rao was forward-looking, he understood the fact that the petition raised questions that would have far-reaching effects. He considered the possible expansion of the meaning of life, given Article 21. To that purpose, he brought to light the case of Munn v. Illinois (1876), which defined life as not being mere animal existence. Further, he illustrated how, in the case of Bolling v. Sharpe (1954), the offence against liberty was not simply restricting the body of a person but also confining the full range of actions that an individual conducts in his/her life. In his dissent, he further adds that as civilization progresses, there must not be a narrow understanding of a person’s liberty because society moves away from mere physical restriction to mental fears and grievances that may be conditioned by actions such as those that the U.P. Police was performing against the petitioner. As discussed in Wolf v. Colorado (1949), surveillance of a person’s private life restricts his liberty to a greater extent than simply imprisoning a person. According to Justice Rao, the application of security against the police’s arbitrary intrusion on a person’s privacy has as much application to Indian jurisprudence as it does to its American counterpart.

Aftermath of Kharak Singh v. the State of Uttar Pradesh (1962)

The case of Kharak Singh acted as an effective precedent for promoting the Right to Privacy. In Govind v. State of Madhya Pradesh (1975), regulations similar to the U.P. Police Regulations were challenged by the petitioner on the grounds of being unconstitutional and against the Right to Privacy. In this case, the Court upheld the regulations and the accompanying domiciliary visits and picketing that the Madhya Pradesh regulations provided for. The two-judge Bench listed that Right to Privacy cannot be read widely as it would raise questions about the judiciary’s reliance on a right not expressly mentioned in the constitution. However, in part relief, it was held that domiciliary visits should not become routine follow-ups by the police but only be used for the clearest cases of persons threatening the security of a community.

These different stances of the state judiciary culminated in People’s Union of Civil Liberties v. UOI (1996), where the constitutionality of Section 5(2) of the Indian Telegraph Act, 1885, was challenged and subsequently struck down. It was held that phone tapping was a serious invasion of a person’s privacy and against Article 21. Up until this junction, privacy was not yet set forth as a fundamental right; however, this changed with the Aadhar case.

The complete recognition of a Right to Privacy came in through the case of Justice K.S.Puttaswamy (Retd) v. Union of India (2018). The case started as a batch of petitions challenging the constitutional validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, which required citizens to link their biometric and demographic information to a unique 12-digit identity number. The petitioners argued that privacy is an intrinsic part of the Right to Life and personal liberty guaranteed under Article 21 of the Constitution. While upholding the Right to Privacy, the Court ruled that the Aadhaar scheme would be constitutionally valid, but certain restrictions were imposed to protect privacy, such as making it non-mandatory for various services. The case became a cornerstone in giving constitutional roots to the Right to Privacy making it an important jewel in the freedoms guaranteed under Part 3 of the Constitution.

Conclusion

The judgement in the Kharak Singh case marks the first time the Supreme Court of India, in-relief granted the Right to Privacy although the Court did not acknowledge it as a fundamental right. It laid the foundation for subsequent cases that strengthened the Right to Privacy and set limits on state surveillance. The decision also emphasised the importance of procedural safeguards and the need for any intrusion on privacy to be based on objective standards rather than subjective satisfaction. This later led to the establishment of the principle that the Right to Privacy is fundamental and should only be restricted through procedures established by law.

Frequently Asked Questions (FAQs)

What is the Right to Privacy?

Right to Privacy refers to the fundamental right of an individual to protect their personal sphere against interference by the state or non-state actors. This right entails that individuals are guaranteed the autonomy to make their life choices without requiring authorization for each and every action.

What other fundamental rights trace their origins to landmark judgements?

Apart from the Right to Privacy, the judiciary, as the guardian of the Constitution, has set forth other fundamental rights. These include the freedom of the press discussed in Bennett Coleman & Co. v. Union of India (1973), the right to a healthy environment elaborated as part of Article 21 discussed in Vellore Citizens Welfare Forum v. Union of India (1996), and the right to information that was deliberated and ruled as a fundamental right in the case of State of U.P. v. Raj Narain (1975).

References

Mody, Z. (n.d.). 10, Judgements That Changed India, Penguin UK.
Supreme Court’s Verdict on Privacy – Analysis of the Puttaswamy Case, 1.3 JCLJ (2021) 442

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A comprehensive guide to WIPO Uniform Domain Name Dispute Resolution Policy (UDRP)

By

Vanshika Kapoor

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January 27, 2024

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This article has been written by Nagesh Karale pursuing a Diploma in US Intellectual Property Law and Paralegal Studies from LawSikho and edited by Shashwat Kaushik.

Table of Contents

Introduction

A domain name is the internet address for the website. It is useful for locating web pages or online resources on the World Wide Web. It is an easy-to-remember name that’s associated with a physical IP address on the Internet. Domain names are associated with numeric IP addresses. The characteristics of good domain names are that they are short and easy to remember. Anyone can purchase a domain name. A good domain name brings more visitors to the website.

Domain Name Service (DNS) is an essential component of the internet. It is implemented as a decentralised, hierarchical system .It is distributed globally across groups of DNS servers. The service acts as a giant directory for resolving domain names to IP addresses and IP addresses to domain names, irrespective of where the domains are located.

Domain names are organised under the DNS root domain. The first group consists of top-level domains (TLDs), which include generic ones such as.com,.info,.net,.edu, and.org. Additionally, there are country-specific TLDs known as ccTLDs such as .jp and .uk.

Following are the Key Benefits of a Well-Chosen Domain Name for Business

A strong domain name adds professional credibility to business.
A good domain name advertises brand name and attracts customers.
It increases search engine ranking.
It will provide brands with marketability locally or globally.
A unique and recognisable domain can set a business apart from competitors.

Cybersquatting is a cybercrime that involves registering, selling, or using a domain name to profit from someone else’s trademark, service marks, company names, or personal names. It is also known as domain squatting. This practice can cause customer confusion and damage a brand’s reputation. It is illegal to buy domain names that are identical to or very similar to trademarks. The motive of a cybersquatting is to gain profit from it either by ransoming the domain name back to the trademark owner or by using the domain name to divert business from the trademark owner to competitors.

In disputes related to domain names, court battles can be prolonged and costly. These disputes frequently centre on arguments concerning trademarks or dilution. It is difficult to establish such claims, particularly for well-known individuals who may not have officially trademarked their names.

The UDRP Administrative Procedure globally provides a quicker and more cost-effective alternative to court proceedings for settling disputes related to Internet domain names. Decision-makers involved in this process are specialists in fields such as international trademark law, domain name issues, e-commerce, and dispute resolution.

Understanding the WIPO UDRP

The World Intellectual Property Organisation (WIPO) is a specialised agency of the United Nations. It is devoted to fostering global protection of intellectual property rights (IPR) and encouraging creative activities. It was established in 1967 and is based in Geneva, Switzerland. WIPO functions as a self-funded entity with 192 member nations. WIPO’s functions include signing international agreements, providing legal and technical assistance, conducting research, and facilitating global campaigns to enhance IP protection.

The UDRP rules and WIPO Supplemental Rules were created by ICANN (Internet Corporation for Assigned Names and Numbers). The WIPO Centre played a crucial advisory role. These rules provide guidelines for the entire dispute resolution process. Accredited service providers, such as the WIPO Arbitration and Mediation Centre, manage UDRP procedures.

Grounds for UDRP complaints

The UDRP procedure is applicable for individuals or companies globally to file domain name complaints, mostly for generic top-level domains (gTLD). It may be applied for disputes concerning a country code top-level domain (ccTLD) if the respective ccTLD registration authority has voluntarily adopted the UDRP Policy.

Criteria for eligibility

Paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy (UDRP) states that the complaint must include three mandatory elements:

How the trademark and domain name are identical or confusingly similar.
Why the respondent has no rights or legitimate interests in the domain name.
How the domain name was registered and used in bad faith.

Circumstances of bad faith registration and use

The following circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

If domain registration involves registering a domain with harmful intentions. This can include attempting to sell, rent, or transfer the domain to the complainant or a competitor to make a profit.
If registering a domain to prevent the rightful trademark owner from obtaining a matching domain repeatedly. It also includes registering a domain to disrupt a competitor’s business intentionally.
If using the domain to attract internet users for financial gain and causing confusion about the source or affiliation with the complainant’s mark.

This list is not limited to bad faith in both the registration and use of a domain name.

Filing a UDRP complaint

Five Stages in UDRP Administrative Procedure:

The complainant submits a complaint to an ICANN-accredited dispute resolution service provider (such as the WIPO Centre).
The respondent submits a response.
The dispute resolution service provider appoints an Administrative Panel (Panel members 1 or 3).
The Administrative Panel informs a decision to all relevant parties.
In the event that the decision requires the cancellation or transfer of the domain name(s), the respective registrar(s) implements the decision of the Administrative Panel.

Preparing and filing a complaint

The UDRP process generally settles disputes within 60 days of filing a complaint with the WIPO Centre. The costs vary depending on factors like the number of domain names and whether one or three panel members are chosen.

To maintain confidentiality, the WIPO Centre’s website only shows specific details of proceedings. The process follows the language in the registration agreement. The Administrative Panel makes exceptional decisions about in-person hearings if necessary.

The complainant is free to select any accredited dispute resolution service provider. Disputes for gTLDs are managed by ICANN-accredited providers like the WIPO Centre. Disputes for ccTLDs follow accreditation by the respective ccTLD administration. There is no standard ICANN form for UDRP complaint and response filing. The WIPO Centre provides a model complaint and response filing guidelines.

The complaint and response submitted electronically should match the language of the registration agreement. Due to the WIPO Centre’s model aids, there is no need for legal assistance. A single complaint may include several domain names under the same entity. There is no need for certification or notarization of the documents. A fee mentioned in the UDRP rules is required for processing the complaint. According to the new UDRP rules, the complaint should be sent only to the WIPO Centre and the registrar(s). Domain owner’s information can be obtained through a “Whois” search for gTLDs or the related registrar’s Whois service for ccTLDs.

The WIPO Centre performs a formality compliance review involving the assessment of documentation such as the complaint transmittal cover sheet. It confirms the fulfilment of items mentioned in Paragraph 3(b) of the UDRP Rules and ensures proper payment.

Preparing and filing a response

According to Paragraph 5(a) of the UDRP Rules, it is obligatory to file a response within 20 days from the commencement of the administrative proceeding. If the respondent fails to respond within this timeframe, the WIPO Centre proceeds to appoint the Administrative Panel, which makes a decision based on the information available.

The WIPO Centre makes it easy to submit documents electronically, either by sending them as email attachments or by directly submitting them online. The Response should reference circumstances outlined in Paragraph 4(c) of the UDRP Policy to show rights or legitimate interests in the domain name.

The filing of a response is free of charge. The respondent should send his response electronically to both the complainant and the WIPO Centre, excluding the registrar(s).

Role of WIPO panellists

An administrative panel includes one or three impartial individuals appointed by the dispute resolution service provider. This panel is independent of the service provider, ICANN, registrars, and the involved parties. Panellists listed by the WIPO Centre are chosen based on their established reputation for impartiality, judgement, and experience in international trademark law, e-commerce, and Internet-related matters. The list is global, featuring over 400 panellists from 50+ countries. The Administrative Panel is appointed post-response filing or the response due date. For a single panellist case, the appointment occurs within 5 days of the response filing or due date. In a three-person panel, it’s typically within 15 days.

5.1 Appointment Process

If both parties opt for a single panellist, the WIPO Centre appoints from its panellist list.
For a three-person panel with differing party designations, the WIPO Centre seeks to appoint candidates nominated by each party. If not feasible, appointments are made from the centre’s list. The third panellist is selected based on party preferences from a provided list.
In the event of no response from the respondent, the WIPO Centre appoints the administrative panel based on the number of panellists designated by the complainant (1 or 3).

The complainant pays the fees. But if the respondent demands three panel members, then the costs are shared by both parties. For 1-5 domain names, the fee is USD 1500 for a single panellist and USD 4000 for three panellists. For 6-10 domain names, it’s USD 2000 for a single panellist and USD 5000 for three panellists. The complainant covers all fees, and the respondent shares fees only if opting for three panellists. Additional payments may be requested in exceptional circumstances.

WIPO UDRP decision process

Types of decisions

Order the disputed domain name(s) be transferred to the complainant.
Order the disputed domain name(s) be cancelled.
Decide in favour of the domain name registrant, denying the requested remedy.

If the dispute is not within the scope of Paragraph 4(a) of the UDRP Policy, the Panel must specify this. If, after considering submissions, the Panel finds the complaint brought in bad faith, it must declare this in its decision. No monetary judgments or lawyers’ costs can be awarded by the Administrative Panel. According to Paragraph 15(b) of the UDRP Rules, in the absence of exceptional circumstances, the Administrative Panel must forward its decision on the complaint to the WIPO Centre within fourteen days of its appointment.

Appeals and enforcement

The domain name registrant losing in the administrative proceeding can challenge the decision by filing a lawsuit in certain courts (Paragraph 4(k) of the Policy). The registrar implements the panel’s decision 10 business days after notification, unless the registrant provides official documentation of a lawsuit filed in a mutual jurisdiction. A court’s jurisdiction is at the location of the registrar’s principal office or the domain name registrant’s address in the WHOIS database at the time of the complaint.

The concerned registrar will then take no further action until it receives:

Satisfactory evidence of dispute resolution between parties.
Evidence of dismissal or withdrawal of the registrant’s lawsuit.
Copy of a court order dismissing the lawsuit or stating the registrant has no right to use the domain name.

In accordance with UDRP Paragraph 16(b) of the Rules, decisions are made publicly accessible online with exceptions. WIPO’s website features decisions in an online index. Jurisprudential Overview analysing trends and principles has educational value.

As per Paragraph 17 of the updated UDRP Rules, effective July 31, 2015, UDRP proceedings can be suspended for a settlement agreement. To initiate settlement, both parties are required to inform the WIPO Centre using the Standard Settlement Form. If no panel has been appointed, there is a possibility of a partial refund of the complainant’s filing fee.

The registrar involved executes the Administrative Panel’s decision within 10 business days of receiving notice. However, if the respondent contests the decision in court, the implementation may be delayed. The specific guidelines of the registrar determine how the transfer or cancellation is carried out.

Role of the registrar

The registrar does not actively participate in the administration or conduct of the administrative proceeding. However, its responsibilities include:

The registrar provides requested information to the WIPO Centre, which involves confirmation of the registration of disputed domain name(s), verification of the registrant and the respondent in the complaint with contact details, along with relevant documents like the registration agreement.
The registrar prevents the transfer of the domain name registration to a third party after the commencement of an administrative proceeding.
The registrar implements the Administrative Panel’s decision, which may involve carrying out actions such as transfer or cancellation of the domain name registration.

Role of WIPO arbitration and mediation centre

The functions of the WIPO arbitration and mediation centre:

The WIPO Arbitration and Mediation Centre administers the proceedings, which include verifying that the complainant satisfies the formal requirements of the UDRP Policy, Rules and WIPO Supplemental Rules.
It coordinates with the concerned registrar(s) to verify that the named respondent is the actual registrant of the domain name(s) in issue and the respondent’s contact details.
It notifies the complainant and sends out case-related notifications.
It appoints the Administrative Panel and ensures that the administrative proceeding runs smoothly and expeditiously.
It maintains independence and impartiality throughout the process.
It provides general information on the procedural aspects of the UDRP Policy, Rules and WIPO Supplemental Rules but does not provide case-specific advice to involved parties.

The role of a WIPO case administrator

The WIPO case administrator is principally responsible for managing all administrative matters relating to the dispute and communicating with the Administrative Panel.
He provides assistance to the Administrative Panel, facilitating communication and logistical details.
WIPO case administrators often have legal backgrounds. They are multilingual and experienced in international dispute resolution and domain name issues.

UDRP and new gTLDs

ICANN’s new gTLD Programme seeks to add over 1,000 new top-level domains (TLDs) to the Internet. This new programme includes generic terms, brand names, and diverse scripts like Arabic and Chinese. In response to this expansion, rights protection mechanisms (RPMs) for trademarks have been established to safeguard IPR. These mechanisms function both before and after TLDs are approved and become operational.

Over the past decade, WIPO has been involved in shaping policies at the convergence of the domain name system (DNS) and IP laws. WIPO has also been involved in UDRP development and providing recommendations for protecting non-trademark identifiers. ICANN’s new gTLD programme addresses the potential for trademark abuse and consumer confusion.

Rights protection mechanisms applicable to new TLDs

Legal Rights Objections (LRO)

Trademark owners can raise objections to new Top-Level Domain (TLD) applications through the LRO procedure. This dispute resolution process is administered by WIPO with the help of ICANN. After filing trademark objections by the owner, the independent panel determines if the applied-for TLD would infringe on existing trademarks.

Trademark Clearinghouse (TMCH)

TMCH is a centralised repository that provides data on registered trademarks. It supports RPMs such as Sunrise Registration (allowing trademark owners to register corresponding domains before the public) and Trademark Claims (notifying potential conflicts between domain names and existing trademarks).

Uniform Rapid Suspension System (URS)

URS is a faster and more straightforward complement to UDRP for clear cases of trademark abuse. It imposes a higher burden of proof on complainants, and the only remedy is the temporary suspension of the domain. WIPO provides observations on URS to maintain a balanced approach.

Post-Delegation Dispute Resolution Procedure (PDDRP)

PDDRP is an administrative alternative for trademark owners to address registry-related cases leading to or supporting trademark infringement. The WIPO Centre administers the trademark PDDRP. It requires trademark owners to demonstrate registry conduct infringing trademarks.

Uniform Domain Name Dispute Resolution Policy (UDRP)

UDRP is an out-of-court mechanism for resolving bad-faith domain registrations. Designed by WIPO, it applies to all ICANN-approved TLDs. Trademark owners can file complaints demonstrating the lack of legitimate interests and bad-faith registration, leading to domain transfers.

Future developments and evolving challenges

Criticisms of the UDRP

UDRP is biassed in favour of trademark holders, pointing to high success rates for complainants and the system allowing them to choose the dispute resolution service provider.
Respondent default, where the respondent fails to respond to the complaint within the specified time, is a common occurrence. It leads to complainants winning the majority of cases, although critics contend that many defaults involve clear-cut cases of cybersquatting.
The outcomes of domain name dispute resolutions can vary based on factors such as the number of panel members (1 or 3) and the chosen dispute resolution provider.
UDRP fails to ensure that domain owners actually receive notice that a complaint has been filed against them.
The only alternative available to the losing party in a UDRP proceeding is to file a lawsuit to overturn the panel’s decision. Domain name disputes remain a relatively novel concept for the court systems of most countries.
UDRP gives service providers too much freedom to add supplemental rules that may bias the dispute resolution process.
Jurisdictional obstacles and the uncertainty on the part of courts as to how these cases should be handled appear to have limited the usefulness of courts as a medium for appealing UDRP decisions.
The losing party has a short period (only ten business days) to file suit in a court of mutual jurisdiction; otherwise, the panel’s decision will be implemented.
UDRP’s allotted a twenty day response period fails to provide sufficient time for domain owners to respond to complaints.
UDRP can refer to prior decisions for guidance, but these decisions are not binding precedent. So it leads to concerns about the potential for a chain of incorrect decisions.

Proposed solutions and improvements for the UDRP’s problems

Making Three-Member Panels the Standard for UDRP Dispute Resolution.
Inconsistent precedents create a need for a mechanism to establish a uniform body of precedent for UDRP panels, particularly in cases where the respondent defaults. It leads to differing interpretations of burden of proof among panels.
Implementing a UDRP Based Appellate Process.
Transform UDRP into an international treaty. Although it will reduce flexibility, could establish a universally recognised and reliable procedure for efficiently resolving domain name disputes.

Conclusion

The UDRP plays a crucial role in efficiently resolving domain name disputes. It provides a standardised process to protect intellectual property rights. While it has been effective, the introduction of three-member panels and an appellate process can further enhance fairness. It will strengthen the UDRP’s effectiveness in addressing evolving challenges in the domain landscape.

References

All about corporate fraud

By

Vanshika Kapoor

-

January 27, 2024

0

This article is written by Minhaj Nazeer. It talks about the concept of corporate fraud in India. This article aims to provide an overview of the nature, causes and consequences of corporate fraud in India, as well as the relevant legislation and regulations, namely, the Prevention of Money Laundering Act, 2002, the Securities and Exchange Board of India, Act 1992 and the Companies Act, 2013 that deal with corporate fraud. The writer also mentioned the investigation and mitigation of corporate fraud, followed by the relevant case laws and some FAQs.

Introduction

In the corporate world, corporate fraud is a persuasive and complex scenario that builds a shadow over the integrity of business worldwide. The web of illegal financial transactions poses a significant threat to corporations and stakeholders. This ultimately kills shareholder’s trust, depletes investment money and harms the company’s brand name. This article discusses corporate fraud in detail. It mainly focuses on all the nuances of corporate fraud in India, essentially concentrating on the evolution, types, indicators, categories, etc. The concept of corporate fraud has been discussed with past popular examples of fraud that occurred in India and changes in regulations with respect to the same.

What is fraud

Under Section 17 of the Indian Contract Act, 1872 the term fraud is defined as any act by an individual who is a party to a contract, or any kind of willingness to allow any third person like agents, to trick the other person into entering into the contract. One of the criteria is to promise without any intention of performing it or any behaviour that the law defines as fraudulent, etc. To come under fraud the essential elements are like a false representation, or made without any knowledge of its truthfulness. According to Section 19 of the Act, the legal effect of fraud in a contract whose consent is obtained through fraudulent means is that it is voidable with the permission of the other party. If a party enters into the contract through fraud, the contract is considered voidable under Section 19 of the Contract Act. It was held in the case of Dr. Vimla v. Delhi Administration (1962) that the idea of deceit is a necessary ingredient of fraud, but it does not exhaust it. The expression ‘defraud’ involves two elements namely, deceit and injury to the person deceived. In this case, the injury is explained as anything which can be movable or immovable or anything which involves money.

What is corporate fraud

Corporate fraud is the illicit and deceptive practices committed within a company. These practices jeopardise the trust of stakeholders and the integrity of financial markets. Corporate fraud can be classified into two, it can be criminal or civil law violations. The Punjab National Bank Scam is one of the most massive as well as recent scams which is considered as a crime. The fraud involved a lump sum amount of 15,000 crores. The fraud which has less amount involved is considered as civil law violation. The violations are namely employee fraud, investment scams, misappropriation of assets, corruption etc. Individuals commit fraud for personal benefits or for the benefit of the company. Sometimes corporate frauds go beyond the purview of employees and badly impact the economy and the business.

Financial statement fraud is the most common mode of corporate fraud. Companies falsify accounting in order to mislead the financial figures. Pumping schemes which artificially raise stock prices before they reach the markets, are a kind of market manipulation. Corporate entities also make fraud disclosures to investors and fail to declare their income to lower tax liability.

Evolution and development of corporate fraud

During independence, corporate fraud grew at a slower rate due to restrictions in the economy and less globalisation. Later, with economic liberalisation in the late 1990s, fraud began to surge. The growth in technology and development further fueled fraudulent activities in the corporate world, companies started to use regulatory loopholes. In India, most of the corporate frauds are based on financial statement manipulations (false account statements), insider trading (an employee trading with public information before it is published), etc. The Satyam scandal in early 2000 has projected the technical drawbacks leading to a surge in fraud.

Harshad Mehta scam, 1992

This scam cost more than four thousand rupees for the country. Harshad Mehta committed the fraud by exploiting the loopholes of the Indian stock market. He utilised the advantage of poor coordination of the stock market and bank. The banks involved were premium banks like the State Bank of India and the National Housing Bank. After this scam, the Securities and Exchange Board of India (SEBI) expanded its jurisdiction over Foreign institutional investments, credit rating agencies, etc. Mehta and his associates syphoned off the funds from bank transactions and bought shares in different segments; this paved the way for a surge of price in the Bombay Stock Exchange (BSE). After getting caught the bank started asking for the money back. Harshad Mehta and his brother were arrested for misappropriating more than 28 lakh shares and around 90 companies by forging share transfer forms. The total amount of misappropriation was approximately 250 crores. Later he was acquitted from the case. There was a drastic fall in share prices and the market causing a breakdown in institutions like the Reserve Bank of India (RBI) and other commercial banks. The first reformation was introducing the Nation Stock Exchange (NSE) and a committee headed by Kumar Mangalam Bajaj and Narayana Murthy which is overseen by the Securities and Exchange Board of India (SEBI). The main structural change with respect to the scam was recording all the transactions related to the purchase of investments and subsidiary general ledger as a prevention to the scamsters.

Ketan Parekh scam, 2001

This scam resulted in a loss of 2000 crore. Like Mehta, the fraud was due to another loophole in the stock market. The fraudster took advantage of the gap in the banking system with the stock market in the country. After this fraud, the SEBI(Amendment) Act, 2002 was passed which brought some major changes in the prevalent legislation. That included Section 11A of SEBI (Amendment) Act, 2002 in which the issuing of prospectus, offer documents and advertisements asking for investments were introduced. The board regulated and started prohibiting the issue of prospectus, offer documents, and advertisements which solicit money for the issue of securities, this was a collective investment scheme. Ketan Parekh was a Chartered Accountant (CA) and was also part of the institutional brokerage business inherited from his father. He used to pick up substantial stakes from promoters at large discounts and shifted focus to institutional investors. There was an irregularity in shares which was bought by him and led to a 176 point loss in the market on that trading day. SEBI banned short sales and rumours started spreading in the exchange. Later on, the Bank of India filed a criminal case against Ketan Parekh for his involvement in the pay order scam of Madhapuva Mercantile Cooperative Bank and got arrested. Thereafter, SEBI prohibited his broking and merchant banking firms from starting a new business. This was the second largest scam and after this SEBI introduced Clause 49 to the Listing agreement to ensure that businesses are behaving in the best interests of the market by following all the corporate governance guidelines.

National Spot Exchange scam, 2013

This was another big scam that questioned the authorities and brokers’ intention towards investor protection. This showed that the government was not capable of overlooking the proper functioning of the companies which have public money. Post this scam, SEBI started an investigation against broking firms and regulated their functions. NSEL(National Spot Exchange Limited) was incorporated in the early 2000s, to establish a single market across the country for both manufactured and agricultural procedures. NSEL became the first ever electronic commodity exchange for spot delivery of contracts including agricultural products. This exchange took around 25 days to settle a contract while the permitted time was only half of it. Later on, the regulator Forward Market Commission (FMC) intervened and asked to settle the payment defaults. When investors were claiming commodities of their money, borrowers were not in a position to provide them because there was a goods shortage in warehouses. Eventually, large brokers and financial players came under investigation. The allegation was regarding the false promises to the clients. The brokers allowed the clients to execute trades even though they had less balance in their accounts. The team of officers from SEBI investigated and submitted the report. The investigation team suggested banning the brokers from commodities derivatives trading and also initiating prosecution for the misappropriation.

Indicators of corporate fraud

There should be multiple indicators to have a scope of fraudulent activity. There are several indicators such as unusual financial patterns, changes in employee behaviour, and lack of control inside the company, etc. To understand unusual financial patterns, usually sudden unaccountable fluctuations can be found in the revenue, profits or expenses. Unusual lifestyle changes and resistance to audits are indicators of change in employee behaviour. It is very empirical that the indicators should be considered collectively and not independently to make sure about the fraudulent activity.

Reasons behind increased corporate fraud cases

The major reason behind a surge in corporate fraud cases is high expectations from the business. Crucial reasons are economic pressure, competition in the market and lack of protection for whistleblowers in the organisations.

Let’s discuss them.

Economic Pressure

India’s economy is revolving rapidly because of intense competition and profit-driven businesses. This led the business to opt for an easy way to make more business by doing fraudulent activities so that they could cope with the economic conditions. Also, companies under financial strain may resort to unethical practices to achieve targets, increase investors and other factors such as securing loans.

Competition in the market

Most of the time, companies engage in fraudulent practices to match their advantage with other competitors. The pressure to outperform the peers leads to breaking the legalities. This leads to the manipulation of financial statements, securing contracts in an unethical manner and much more.

Less protection for whistleblowers

The lack of a whistleblower protection mechanism impacts the reporting of fraudulent activities. The fear of snitching and lack of confidence to reveal the wrongdoing of the colleague is the major issue in whistleblowing. This essentially allows the fraudulent practices to persist and remain undetected for a long period of time.

Categories of corporate fraud

Asset misappropriation

This is a theft or misuse of the company’s assets which belong to the company. It can be committed by any individual who ranks from directors to employees who are entrusted with the company’s assets. For example, this fraud wherein the perpetrator employs tricks to steal or misuse the company’s assets. Assets can be tangible and intangible, modus operandi of fraud will be fictitious sales, false inventory, falsifying asset requisition and transfer.

Bribery and corruption

This is a heinous crime when compared to other frauds because this essentially affects the company’s economic development. The act of bribery involves offering, giving or receiving anything which can hamper the official act of the company. While corruption is more heinous than bribery, it includes illegal gratification, bribery and economic extortion. Employees use their power improperly for business transactions by this the employee gains an advantage for themselves or for a third person.

Financial statements

This involves acts wherein the company’s financial statements of the company are misrepresented. This damages the company internally and externally. The forms of fraud are manipulating accounts, overstating revenue assets and investments, understating liabilities and non-disclosure of financial information.

Corporate Espionage

Due to high innovation and competition in the market, the companies use high-tech methods to collect information from other companies. For this, a bogus company is made for the purpose of manipulation and hides their details regarding the business transactions.

Money Laundering

This is an illegal process of making lump sum money that is generated by crimes such as drug trafficking or terrorist funding which is coming from a legitimate source. Most financial companies have anti-money laundering policies to scrutinise and prevent this activity.

Ponzi Scheme

This is an investment fraud that pays investors an amount by collecting money from new investors. Essentially, in Ponzi schemes, the organisers encourage investors by promising high returns with little risk. The fraudsters take a small portion of the newly invested money before paying the former investors, that’s how they keep moving forward.

Accounting misappropriation

In accounting fraud, the company manipulates financial statements to create impressive corporate financial stability. This can be committed by employees, accountants, or by the whole organisation misleading the stakeholders. It can be done by overstating its revenue, not recording expenses, etc.

Legislations which govern corporate fraud in India

Companies Act, 2013

The Companies Act, 2013 provides laws for punishment related to an individual who commits fraud against the company. Section 447 states that any individual who is guilty of fraud will be punished with imprisonment up to 10 years or the fine as decided according to the value of the fraud, it should be less than the fraud amount, it may extend to three times the amount of fraud involved.

Securities and Exchange Board of India Act, 1992

The Securities Exchange Board of India (SEBI) acts as a regulatory organisation to constantly monitor fraud. The SEBI was constituted as a non-statutory body on April 12 1988 through a resolution of the Government of India and the provisions came into force on January 30, 1992. The Corporation Finance Investigation Department (CFID) carries out detailed scrutiny on irregularities such as fraud, diversion, material misstatement, fraudulent related party transactions, non-compliance with the issue of IPO and suspected diversion of funds, etc. Key functions of SEBI include safeguarding the interests of Indian investors while educating them about securities markets and respected intermediaries. Also, SEBI facilitates the development and seamless functioning of the securities market. Regulating the business operations within the securities market is also one of the main functions of SEBI.

Section 12A – Prohibition of manipulative and deceptive devices, insider trading and acquisition of securities or control. This section prohibits manipulative and deceptive devices and insider trading to any person directly or indirectly to commit it. It says that no person shall directly or indirectly indulge in employing devices that are manipulative in nature or engaging in insider trading etc.

Section 15 E – Penalty for failure to observe rules and regulations by an asset management company. The section explains that where any asset management company of a mutual fund registered under this Act, fails to comply with any of the restrictions on the activities of asset management, then such company shall be liable for penalty. The penalty can be not less than one lakh rupees but which extends to a maximum of one crore rupees. Under this section, the SEBI provides penalties in cases of insider trading, nondisclosure of shares, failure to refund to the investors and other fraudulent and unfair trade practices.

Prevention of Money Laundering Act, 2002

Under the Prevention of Money Laundering Act (PMLA), corporate fraud is a predicate offence When any type of money laundering or other similar fraud to is committed to conceal or any benefits from the offence. If any person commits any fraud related to the acquisition, possession or any act that proceeds to money laundering that will be also considered as a money laundering offence. The provisions of PMLA protect against corporate frauds occurring in India. Section 3 talks about the offence of money laundering, it says whosoever directly or indirectly attempts to indulge or assist a party or actually involved in any process or connected with the proceeds of crime including its concealment, possession, acquisition shall be guilty of the offence of money laundering. Section 4 of the act talks about the punishment for money laundering. The punishment is rigorous imprisonment for a term which shall not be less than three years, it can also extend to seven years and a fine.

Corporate fraud provisions under Companies Act, 2013

Section 447: Punishment for Fraud

This section provides punishment for an individual who committed fraud against the company. It explains that any individual who is guilty of fraud shall be punished with a fine and imprisonment with a maximum period of 10 years. The fine should be not more than three times the amount involved in fraud. But in certain conditions, the fine may extend up to three times the amount of fraud involved.

Section 447A: Punishment for False Statement

Section 447A says that if any individual makes a false allegation in any return, report, or any other document which is related to the registrar will be punished with imprisonment for a maximum of three years or a fine of five thousand rupees or both.

Sections 448, 449 and 450: Punishment for forgery

Section 448 deals with the forgery offences against the company. Any individual who is considered guilty of forgery, when either a new forged document is created or existing documents of the company that are false and misleading statements with respect to the company. Then the person shall be punished with imprisonment which may extend up to 7 years and can be along with a fine of five thousand rupees or in certain cases the amount maybe three times the amount involved in fraud.

Section 542: Liability for fraudulent conduct of business

While winding up of a company, the persons who are carrying the business are personally liable for all the fraudulent conduct of business, and also if the company has any debts or other liabilities.

Non-compoundable fraud

Usually, the punishment for fraud is imprisonment and fine as provided under Section 447, it is considered a non-compoundable offence. The Act of fraud has recently become a more heinous offence after introducing regulations. The Act has mentioned the punishments under Section 447 and several sections as mentioned below have explained the fraud by directors, managers, and other officers of the company. The new laws go beyond the ambit of professional liability and include personal liability.

The table below explains the relevant sections under the Companies Act, 2013 of fraud and who will be accounted (defaulter) for the same

Section	Fraud	Defaulter
7(5)	False information or material suppression	Individual
8	Fraud in company affairs	Officer
34	False statements in prospectus	Individual who authorises the issue of prospectus
36	Fraudulently inducing to invest	Individual
38	Personation of securities, acquisition etc	Individual
46(5)	Duplicate certificate of shares	Officer
75(1)	Default of deposits/ interests	Officer of the company
206	Fraudulent business	Officer
229	False statement or destroying evidence during investigation	The individual who required to provide information regarding the case

Investigation of corporate fraud

The investigation method is comprehensive, combining legal procedures and cutting edge technology to detect financial irregularities. SEBI, PMLA, and the Companies Act are examples of such regulations. The legislation empowers the regulatory body to investigate, scrutinise and enforce law proceedings if the companies or businesses are suspected of engaging or are found engaging in fraudulent activities like insider trading, misleading the financial statements, etc.

Serious Fraud Investigation Office

This is a multifunctional agency consisting of experts to detect fraudulent activities. The agency investigates cases of companies involved in financial fraud. The central government will investigate these companies. The agency can arrest in cases where an individual is found guilty of an offence under the Companies Act. The agency is established under Section 211 of the Companies Act, 2013. The investigating team consists of experts from different sectors like capital markets, banking sector, forensic audit, information technology and taxation. The agency has also had the power to arrest any person found guilty of committing fraud under the act. The agency takes up only complex matters and has interdepartmental ramifications, multidisciplinary aspects, etc. The Satyam scandal was one of the cases that was taken by this agency and submitted the report.

National Company Law Tribunal

This quasi-judicial authority handles corporate disputes, it has powers to provide relief for class action suits, mismanagement, etc. The tribunal is not bound by the procedural rules, it also decides cases by the principle of natural justice. This authority is also established under the Companies Act, 2013. NCLT has the power to award pecuniary damages and penalties for the wrong or offence committed by the officers of the company. The tribunal is not bound to any strict procedures rather the matter can be decided following the principles of natural justice.

How does lifting of corporate veil help with mitigation of corporate fraud

The corporate veil is a legal concept that separates a company’s actions from those of its shareholders. This is to safeguard stockholders from liability for the company’s conduct. Lifting of the corporate veil helps to reveal the individuals who committed the fraud behind the corporate entities. By piercing the corporate veil, the intent of the abuse of corporate structures should be proven. The corporate veil protects the shareholders and members from the defects occurring in the name of the company. For example, when the director of the company defaults when he is part of the company, the liability to the company is not to the director of the company. Essentially, the concept of a corporate veil protects the members of the company by shielding them from the repercussions of wrong doings in the name of the company.

Infamous corporate fraud cases

M/S Satyam Computers Services vs. Directorate of Enforcement (2011).

This case was the first major fraud India faced and resulted in stringent regulations, reporting and governance mechanisms. In this case, the company was reflecting large bank balances in the financial statements constantly but was inconsistent with other companies which were involved in the same business model. Apparently, a separate team was working on the scam. In order to convince the auditors during the closure of financials, they issued fake bank confirmations and statements as evidence. The approximate amount involved was around USD 1 billion. At the same time Satyam was receiving awards for good corporate governance and the promoter of the company acquired respect in the industry.

Satyam had a good business model and portfolio with a good number of international clients. The government took the initiative to revamp the company, initially, the government dismissed all the board of directors and appointed professionals. Later, the company was sold to Mahindra Group and currently, it is a major part of the successful technology business of the group.

Kingfisher Airlines Ltd vs. Union of India (2015).

In this case, the Kingfisher Airlines scam was another corporate fraud, in the airline industry, which led to the fall of the Kingfisher empire. The kingfisher is tagged as the king of good times, owned by the great businessman of the country, Vijay Mallya. Kingfisher was famous for its beverages, later over a short time period, the company established the most luxurious aeroplanes in the country. The service of the aircraft was of high quality and the company was the second highest in market share after Jet Airways. The company had bad debts, and Vijay Mallya had to sell his personal properties and beer business to liquidate the borrowings. A consortium of banks published an approx of INR 9000 crores as debt. This case is more of a business failure due to bad debts than a corporate fraud.

The table below shows the amount of loans taken by Vijay Mallya

Serial No.	Name of the Bank	Loan Amount
1	Axis bank	50 crores
2	Punjab and Sind bank	60 crores
3	Federal bank	90 crores
4	Indian Overseas bank	140 crores
5	United bank of India	430 crores
6	Bank of baroda	550 crores
7	Punjab National Bank	800 crores
8	State bank of India	1600 crores

Punjab National Bank vs. Union of India (2022).

This is a case of major banking fraud in the nation, which is INR 15000 crores. The fraud was committed by the proficient jewellers of the country, Nirav Modi and Mehul Choksi. They both engaged in exporting polished diamond business. They had strong retail chains of diamond business in India and other international destinations. The question of funding arose after some point. Apparently, the company was defrauding Punjab National Bank and other banks. They transacted large amounts of money without any underlying assistance from junior-level banking officials. The estimated amount involved was more than around INR 16000 rupees. RBI issued red alerts to all banks, advising the banks to have right system deficiencies. After this scam in 2018, the government approved the Fugitive Economic Offenders Bill to deter economic offenders from evading the process of Indian law by giving powers to the government to confiscate the assets of fugitives, including the Benami assets of absconding loan defaulters. The bill covers a wide range of economic offenders including loan defaulters, fraudsters, individuals who violate the laws governing taxes, black money, Benami properties, financial sector and corruption.

Union of India vs. Infrastructure Leasing & Financial Services Ltd (2022).

This is the case of the largest fraud in the country, as the company Infrastructure Leasing & Financial Services (ILFS) played a key role in infrastructure development in India. The company was backed by large shoulders like LIC and SBI and had representatives on the board. The debt amount was a sum of INR 91000 crores including the PF and pension funds. The fraud happened mainly as a result of the diversion of borrowed money associated with entities by some members of the senior management team among other factors. The company had a high credit rating and this made most of the asset management, and insurance companies invest large sums in its debt issuance. The rating agencies did not downgrade the rating of the company even when they had clear financial stress signals due to its high reputation. Even if the rating agencies had hints the actual rating was changed abruptly to the lowest from the highest after defaulting on repayment obligations. The company had a reputed top management, and no one challenged the decisions of the directors.

Subrata Chattoraj vs. Union of India (2014).

This case was a Ponzi scheme scam, the scheme was started by the Saradha Group. They collected money from investors by issuing bonds which are redeemable, debentures and promised high profits from investments. The agents were hired from throughout West Bengal with high salaries to expand quickly. This made the scheme get investments from around 200 companies. The company used a nexus of companies to avoid regulatory bodies. Later, in 2013, the scheme collapsed, incurring a loss of around 200 billion to the depositors and agents. The Securities Exchange Board of India barred the group from the securities market till the company was shut down.

How to prevent corporate fraud

Good corporate governance practices will essentially help to prevent the risk of fraud and corruption. To have good corporate governance the company would have intact written policies, procedures and protocols to ensure the expectations of the individuals of the company especially regarding financial reporting and compliance. Good governance provides transparency and accountability within the organisation which also helps to detect any irregularities in the activities. Through good corporate governance, the roles of the board will be divided equally, this will also help in balancing the accountability of the board members. This also provides intense robust internal controls and helps to detect the defaults in the company rapidly.

Role of technology

The technology offers several tools to prevent corporate fraud and increase good governance. Data analytics and artificial intelligence are key factors where the algorithms can learn from past data to understand fraud especially in financial frauds and also in other business operations. The decentralised mechanism of blockchain technology helps to identify patterns and anomalies which indicate fraud. Blockchain minimises fraud by creating fool-proof data for financial transactions. Digital identity verification technology facilitates a digital identity process to reduce impersonation. Cybersecurity measures like regular security audits and training on cybersecurity help to create a robust system against cyber threats. There is fraud detection software to identify irregularities and unusual behaviours that may give hints of fraudulent activities.

Recent developments in corporate fraud in India

The Securities Exchange Board of India introduced new provisions in Listing Obligations and Disclosure Requirements Regulations, 2015 (LODR Regulations, 2015) for occasions when a forensic audit is initiated, listed companies should mandatorily disclose certain information to stock exchanges. The company should inform the public that a forensic audit has taken place, the identity of the organisation and other justifications. Also, the company should submit a final forensic audit report with receipts of listed companies.

LODR (Second Amendment)Regulations, 2021

The amendments seek to enforce higher disclosure and standards of corporate governance in public listed companies. The main change in this amendment was the disclosure of fraud, default and arrests. The listed entities are now obligated to disclose any fraud or defaults by the company or subsidiary and any fraudulent activity, default, or arrest of its promoter, director, key managers or any senior management of the listed entity which has happened in India or outside India. The newly introduced compliance mandate is to increase international security requirements.

As per Regulation 30(6), a listed entity has to disclose to the exchange all the material information at the earliest and should not take more than 24 hours from the occurrence of the event or information. In case failure to disclose information or the information is made after 24 hours from the event occurred, the listed company should give an explanation for the delay along with such disclosures. These disclosures should be made within the specific timelines. The disclosure should be made as soon as possible within specific timeframes, the time period depends on the nature and origin of the event. The specified time frames are as mentioned below;

Within 30 minutes the decision from the board of directors meeting with respect to the event should be disclosed.
Within the next 12 hours after the event or information occurred should disclose from which listed entity it originated.
Within 24 hours from the occurrence of the event, in cases when it did not originate from within the listed company.

Conclusion

Corporate fraud is a breach of trust which hampers the business culture and extends beyond financial malfeasance. It damages the very texture of businesses, destroys the trust of stakeholders and tarnishes the reputation of the organisations. The reason behind the surge in fraud cases is mainly due to the intense competition in the market creating an environment for unethical practices. The legislation governing fraud in India, like the SEBI Act, PMLA and Companies Act are acting rigorously to prevent malpractice. Frequently Asked Questions (FAQs)

What are specific legislative guidelines provided in SEBI, PMLA, and Companies Act regarding corporate fraud?

These legislations collectively try to prevent Corporate fraud by empowering regulatory bodies to monitor, penalise and prosecute, etc. for fraudulent activities ensuring a comprehensive approach by sustaining corporate integrity.

What is the lifting of the corporate veil?

The concept of corporate veil is a legal concept which separates the actions of a company from the actions of the shareholder. This is to protect the shareholders from being liable for the actions of the company. This also helps the court to determine whether they hold shareholders liable or not for the actions of the company.

How can technology help in easing the identification and prevention of corporate fraud?

Advancing data analytics and machine learning play a major role in identifying fraudulent companies which helps in investigations. These technologies will help to detect anomalies in corporate transactions.

Reference

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AI to replace lawyers : a critical analysis

By

Vanshika Kapoor

-

January 26, 2024

0

This article has been written by Kanishka pursuing a Diploma in Intellectual Property, Media and Entertainment Laws couse from LawSikho and edited by Shashwat Kaushik.

Introduction

Technology has impacted human society in every aspect of life. It has become one of the recent topics to discuss. With the evolution of technology, it has started to disrupt old methods and create new ones. One such disruption can be observed in the legal profession. It is considered one of the oldest professions, as it legally relies on human expertise and intricate knowledge of laws. The profession has involved a high degree of skill, expertise, and attention to detail. The article will explore whether the rise of AI in law has any impact on the law profession.

Meaning of artificial intelligence

Artificial intelligence can be defined as the ability of a digital computer to perform any task that is associated with intelligence. It is often connected with intellectual processes such as the ability to reason, discover meaning, generalise, or learn from experience. It is regarded as a simulation of human intelligence. Some of the specific applications of AI can include expert systems, natural language processing, speech recognition, and machine vision. In artificial intelligence, there is a requirement for specialised hardware and software. Some of the languages that are included in the AI are Python, R, Java, C++, and Julia.

AI has helped the business to make the business work efficiently. Some of the areas in which AI has helped businesses are customer service work, lead generation, fraud detection, and quality control. Moreover, it is also been observed that AI performs tasks much better than humans, particularly in cases of repetitive, detailed-oriented tasks

How does AI perform its functions

According to one of the publications made by Stuart Russell and Peter Norvig, Artificial Intelligence: A Modern Approach, artificial intelligence has four potential goals or definitions, which are as follows:

Human Approach	Ideal Approach
Goal 1: A system that thinks like a human.	Goal 3: A system that thinks rationally.
Goal 2: A system that acts like a human.	Goal 4: A system that acts rationally.

One of the ideal characteristics of AI is the ability to rationalise and take actions to achieve a specific goal. For instance, if you write, “I want four questions related to World War II,” AI will provide you with those sets of questions. AI works on the principle that human intelligence includes mimicking/copying human cognitive activity.

Some of the cognitive skills that are included in AI programmes are:

Learning: This programme focuses on acquiring data and creating rules to turn into actionable information. These rules are called algorithms, which help the programme provide step-by-step instructions to complete a task.
Reasoning: This AI focuses on choosing the right algorithm to reach a desired outcome.
Self-correction: This AI programme is designed to fine-tune algorithms and ensure the most accurate results possible.
Creativity: This AI uses neural networks, statistical methods, etc. to generate new images, text, music, and ideas.

Artificial Intelligence and law

With the rise of artificial intelligence, there has been automation in mental tasks. Though it may be optimising for blue-collar jobs, it is creating fundamental changes for many white-collar jobs. It has been in the field of law too. AI has had a profound impact on the practise of law. AI has been more like an aid than a replacement for attorneys, as it has been used for various purposes such as reviewing contracts, finding relevant documents during the discovery process, and conducting legal research. It is seen as a catalyst for growth. According to many legal professionals, AI is creating growth opportunities. It helps reduce the friction needed to launch new services or expand into a new market. However, at the same time, it has created a fear among the attorneys that it will replace their jobs in the upcoming years.

Assistance provided by AI in legal profession

Artificial intelligence has helped the legal profession by providing aid in the following manner:

Due diligence review

Due diligence can be defined as an analysis that an investor uses for investment by verifying facts such as financial and legal records. Since they conduct due diligence, legal professionals are often required to review a large number of documents, such as contracts. With the assistance of artificial intelligence, legal professionals can review their documents quickly.

Contract review and formation

With the help of AI, the formation of contracts has become much easier. With the arrival of AI tools, legal professionals can draft contracts on a self-service basis. Through these platforms, both lawyers and clients can access them easily. Moreover, with AI-driven document management software, legal files such as contracts, case files, notes, and emails are managed easily. It also provides security to the information, as these tools have features such as document ID and check-in/check-out privileges.

Legal research

Another feature that AI has helped legal professionals with is legal research. It has made the process easier, faster, and more efficient. AI helps professionals quickly scan and search large databases, which can include statutes, regulations, practise areas, jurisdictions, etc.

Litigation analysis

AI software tools help lawyers review precedents and draft more accurate documents for litigation purposes.

Advantages of artificial intelligence

Artificial intelligence has contributed to legal professionals in the following manner:

Time management

Lawyers often get busy with repetitive and mundane tasks, such as researching laws or scouring through documents. With the help of AI, this process gets automated, thus avoiding time consumption. Moreover, they could focus on aspects like job satisfaction, client management, etc.

Productivity

With the help of AI, lawyers become more efficient in their work. With the trained algorithms in machine learning, it can identify the pattern easily and provide information within a fraction of a second.

Elevate lawyers’ work

With the help of sophisticated AI-powered tools, lawyers are able to do other tasks such as drafting legal documents, conducting legal research, and analysing contracts. This helps to speed up routine tasks and helps lawyers work on higher-level tasks such as negotiation, advocacy, and counselling.

Critics of artificial intelligence

Despite its tremendous contribution to the legal field, it has been subjected to various criticisms, such as:

Biases

Though AI systems are based on unbiased data, if historical data is used to train AI models, then it will create bias and discriminatory patterns. This will create unjust outcomes. This will establish injustice as paramount in legal practise, such as fairness and justice.

Lack of transparency

There is a lack of transparency with the AI models because they do provide clear reasons when they arrive at their judgements or conclusions. This defeats legal professionals ability to justify their arguments with appropriate reasoning, thus lowering trust in the legal system.

Data privacy

Putting sensitive data in the AI models can severely affect the privacy of the client. Legal professionals must ensure that the data privacy of the client is not infringed by any unauthorised access, breach, or misuse of sensitive information.

Applications used by lawyers

Some of the apps that are used by legal professionals are:

LegalRobot: It is an AI-driven platform that provides assistance in understanding and drafting legal documents.
DonotPay: It is an AI-driven platform that simplifies the process of handling legal issues such as consumer rights, small claim disputes, etc.
Latch: This AI-driven tool provides assistance in legal practise management, such as document automation, billing, etc.
OneLaw.ai: This AI-driven tool provides assistance in legal research to lawyers.
PatentPal: PatentPal helps simplify the patent search and analysis for inventors, lawyers, law firms, and companies.

Will AI replace lawyers in the future

According to the report, the AI industry is expected to grow from $0.94 billion in 2023 to $3.29 billion by 2023. Though it has helped to increase automation in legal firms and corporations, lawyers still fear that their jobs are at risk. This can be seen in one of the 2018 Pew Research Centre studies, which revealed that 65% of Americans were fearful and uncertain about automation, which has impacted the workforce. This has increased in 2023 with the increase in the use of AI.

Despite these worries, a positive view towards AI can be seen. According to Solum, creativity will help lawyers figure out new things that artificial intelligence will be charged with doing. Though lawyers are hesitant about the impact of AI because of detail-oriented work and the importance of accuracy and critical thinking, with the emergence of AI, 22% of a lawyer’s workload would be automated. Moreover, AI will not be sufficient to replace lawyers. Though there may be certain tasks, human intelligence, creativity, and emotions cannot replace them. It cannot replace skills such as convincing skills, strategic decisions, and relationships with clients. AI cannot take the position of leader while motivating a team of attorneys to produce their work.

Conclusion

To conclude, AI has helped to transform the legal industry in unprecedented ways. Though it has helped lawyers relieve themselves from mundane tasks such as legal research and e-discovery, at the same time, the emergence of AI has posed various challenges such as data privacy, lack of transparency, etc. AI can only become a tool for assistance for lawyers and cannot replace lawyers because laws are much more about the laws. It is also about reasoning with appropriate emotions, creativity, critical and analytical analysis, and persuasive skills, which can only be embodied by humans.

References

How to squeeze in self-care activities during a busy week

By

Vanshika Kapoor

-

January 26, 2024

0

This article has been written by Tanavee Sharma pursuing a Diploma in Strategic HR for Startups and Emerging Industries course from LawSikho and edited by Shashwat Kaushik.

Table of Contents

Introduction

Some of us are really busy with work, our schedules, and appointments, and I totally get that, but that doesn’t mean our health has to suffer because our health is the real money, right? But to live a happy life, work is necessary. However, it’s not just about work; it’s about working with passion. Working with passion and excitement can bring you more satisfaction and peace in your work life. This way, you won’t feel tired during a busy week.

In this article, I am sharing some really wonderful and simple ways to do “self-care” in this busy life. You can do each of those things in as little as 5-10 minutes.

What is self-care

Self-care is a mindset and a habit that involves taking care of ourselves, including our physical, mental and emotional health. Physical health includes getting good sleep, eating balanced meals, etc. Mental health includes the ability to process information and emotional health is how you express feelings.

Physical Health:

Getting enough sleep.
Eating a healthy diet.
Exercising regularly.
Managing stress.
Avoiding harmful substances (e.g., tobacco, alcohol, drugs).

Mental Health:

The ability to process information.
The ability to cope with stress.
The ability to maintain relationships.
The ability to make decisions.
The ability to manage emotions.

Emotional Health:

How you express your feelings.
How you cope with difficult emotions.
How you relate to others.
How you feel about yourself.

It is important to maintain a balance between physical, mental, and emotional health. When one area is out of balance, it can affect the others. For example, if you are not getting enough sleep, it can make it difficult to concentrate and make decisions, which can lead to stress and emotional problems.

There are many things you can do to improve your overall health and well-being. Some simple tips include:

Get regular checkups with your doctor
Eat a healthy diet
Exercise regularly
Get enough sleep
Manage stress
Spend time with loved ones
Do things you enjoy

If you are struggling with your physical, mental, or emotional health, it is important to seek help from a qualified professional. A therapist can help you identify the root of your problems and develop coping mechanisms to help you manage them.

It involves taking care of our health, mind and heart, just like we care for others. When we become busy in life, it’s hard to give ourselves time. That’s why it’s important to treat ourselves as we would treat a friend and engage in positive self-talk to boost our confidence. We can be our own motivators and find easy ways to practise self-care when life gets hectic. But don’t worry; there are some easy ways to practise self-care.

Simple effective ways to do self-care in a busy week

Pause and take five deep breaths

To relax ourselves, we should take 4-5 deep breaths. In this way, the blood circulation in our body works more easily. After breathing exercises, we feel relaxed and fresh in our minds. To do breathing exercises, you need a clean and open-air space that helps to make you feel relaxed. You should wear comfortable clothes so that you can breathe without any disruption. And it would be best if you sat in a comfortable seat. You can play some meditation tunes, which can make you feel relaxed. Deep inhaling and exhaling are powerful techniques to remove anxiety or stress.

Drink a full glass of water

When you are busy at work, it is easy to forget to drink water. So, to avoid this, you can create a designated spot for a water bottle in your work area. Drinking enough water will not only improve your digestion and make your skin look healthy but it will also boost your brain activity. It’s important to drink only clean water and to avoid other drinks. So, don’t wait until you are thirsty to drink water. Make a conscious effort to drink water regularly to keep your body functioning properly.

Journal yourself

What is journaling? Journaling is the practise of writing down your thoughts, wishes, plans, etc. that come into your mind. This can be extremely helpful in processing and understanding your feelings, especially when you are experiencing anxiety or sadness.

What to write in a journal: You can write about your fears and triggers. That way, you can control them with a positive mindset. You can also write about the things that you want to improve about yourself, about your accomplishments in life and about your long term vision for where you want to be. You can write these questions in a journal, like what you love about yourself, what are the best things in your life right now, etc. This way, if you ask yourself these questions, you can get to know yourself better.

Spend 5 minutes out in the sun

We all need to get sunlight for our bodies. Doctors also suggest that staying in sunlight for 5 minutes is good for our health. It gives us vitamin D. By spending at least 5 minutes in direct sunlight each day, we can ensure that our bodies are receiving an adequate amount of this important vitamin. It helps the body to absorb and retain calcium and phosphorus. It can reduce cancer cell growth and help control infection. All vitamins are important for us to be safe from diseases.

Go for a walk, be in your peaceful place

In a busy week, you should take time to go for a walk. Walking can relax your mind and body. Your mind focuses on natural surroundings like birds, sky, trees, etc. You can also choose places where you can sit and feel relaxed, and simply enjoy your peaceful sitting. For example, you might choose a park bench, a quiet corner of your home, or a spot by a river or lake. Once you’ve found a comfortable spot, take a few deep breaths and close your eyes. Focus on the feeling of your body relaxing, and let go of any tension or stress. You might also want to try to clear your mind of all thoughts or simply focus on a single positive thought or image. After a few minutes, open your eyes and take a few more deep breaths. Notice how you feel calmer and more relaxed. If you find that your mind wanders while your sitting, don’t worry. Simply bring your attention back to your breath or your body. With practise, you’ll be able to sit for longer periods of time and experience a deeper sense of relaxation.

Listen to your favourite song, watch your favourite movie and learn new skills

When you listen to your favourite song, it has the power to make you smile and create a vibe in your head.

It’s the same as watching your favourite movie; it makes you feel relaxed and happy. You can also spend time learning your favourite new skills, like how to play the piano, etc. The possibilities are endless. It’s up to you to decide how you want to spend your time.

Take a challenge to face your fears, just for one minute

Suppose you have a fear of public speaking. You can control your fear by facing it. When you face the fear, at the beginning of it, you will feel more fear but after completing 1 minute, it will be more manageable. I personally believe that taking small challenges creates major affective differences in life, not only in life but also in our personalities.

If you face your fear for one minute, it can be a life changing experience. I suggest you take small steps towards taking on challenges because, when you do something brave enough, you will get to know yourself amazingly.

Talk to yourself and always appreciate yourself by saying pleasant words

Pleasant words like I’m enough, I’m doing great in my life, I’m getting better every day, I’m more than my thoughts, I am so grateful for everything that I have, I am blessed with love, family and friends, etc. are very helpful. When you say these words again and again on a daily basis, you’ll feel the amazing difference in your belief system. You will feel less anxious and less mentally stressed. You will feel light in your heart and mind. We all should take time to talk to ourselves.

There are two types of self-talk. Positive self-talk and negative self-talk. But what is more important and helpful for us is to indulge in positive self-talk. Positive self-talk is like the bright side of you. It creates a beautiful place for yourself. It encourages you to believe in yourself more. It motivates you to fulfil your dreams, desires and goals.

Talk to your loved ones or to your best friends

When you start spending time with your loved ones, they make you feel relaxed. You eat and spend time together, talk with each other and get to know everyone. As we talk, we express our emotions. After expressing our thoughts, we become calm and relaxed.

Our family is the backbone. With their help and support, we can easily face any challenges in life. Being with them will automatically lower your stress, as it diverts your mind from a busy to a relaxed position.

Date yourself (love yourself in all ways)

There are many beautiful ways to do this, such as going out wherever you love to, eating what you like, doing what you want to do, wearing your favourite dress, and enjoying your life. You can go on adventures, visit hills and rivers, and enjoy your favourite food and clothes without worrying about others.

Don’t wait for the right time to celebrate your efforts. It all depends on mindset. You are free to do anything.

Learn to say no

Build a habit of saying no. If something or someone is not important to you in life, just make yourself free from toxic people. It’s okay to be selfish and take care of yourself. You are your own guide and motivator. You can definitely do anything in life by yourself.

Surround yourself with skilled and positive people

You are a calm person because you choose to be surrounded by skilled and positive people. When your surroundings motivate you to upgrade your skills, you grow. When you meet with your friends, you’ll discuss new ideas and talk about skills, which will lead to your overall growth. Skilled and determined people are generally helpful in a lot of ways. They also teach us how to stay positive and how to not get demotivated.

Spend money on yourself

When you are happy with yourself, nothing can make you feel bored. Also, when you spend money on yourself, it is a sign of independence. Everybody loves to spend money on themselves. This is also a way to show love to yourself. However, it’s important not to overspend; otherwise, it can lead to stress. When you buy something, it releases dopamine, which is related to pleasure and happiness.

There are various ways to spend money on oneself, such as by travelling, learning new skills, shopping, helping needy people, or going on an adventure. By doing so, we feel satisfied and calm.

Conclusion

All of these ways describe that surrounding yourself with loved ones is a powerful way to avoid feeling like a workaholic. This can be achieved by creating a balance between your personal and professional lives. You can achieve this balance by prioritising your time. You are the writer and creator of your story. So, create the life you want to live.

Imagine you are the lucky one, where all good things come to you and everything works out for you. Once you start loving yourself and living openly, you’ll never feel too busy or tired from work.

iPleaders

Limits of sovereign immunity

Introduction

Origin of sovereign immunity in India

Features of sovereign immunity

Inviolability

A form of immunity

Sovereign immunity in international law

Related legal maxims

Sovereign and non-sovereign functions of states

Sovereign functions performed by the state

Non-sovereign functions performed by the state

Types of sovereign immunity

Immunity to jurisdiction

Immunity from execution

Categories of sovereign immunity

Sovereign immunity based on jurisdiction

Local sovereign immunity

Foreign sovereign immunity

Sovereign immunity based on extent

Absolute sovereign immunity

Restrictive sovereign immunity

Qualified immunity

Sovereign immunity from legal proceedings

Sovereign immunity and execution of state assets in foreign jurisdictions

Challenges in the execution of state assets

Concept of sovereign immunity and Section 86 of the Code of Civil Procedure

Section 86 of the Code of Civil Procedure, 1908

Consent by the Central Government for such suits

Sovereign immunity and the Constitution of India

Conclusion

References

Corporate governance in family owned businesses

What is corporate governance

Need for corporate governance in family owned businesses

Major challenges in family owned businesses

Provision for corporate governance in family owned companies under Companies Act, 2013

Key points for continued success of family owned businesses

A clear distinction between business, emotions and family relations

Define leadership roles

Principles of democracy

Separation of family protocol vs company by-laws

Conclusion

References

Minimum wages in India as per Labour Law

Introduction

Minimum wages

Purpose of minimum wages

Types of salaries/ wages

History of minimum wage laws

History of minimum wage laws in India

The Minimum Wages Act, 1948

Appropriate Government

Fixation of minimum rates of wages

Minimum rate of wages

Procedure for fixing and revising minimum wages

Fixing hours for normal working days

Wages of a worker who works for less than a normal working day

Claims

Penalty for certain offences

Criteria for fixing the minimum wage

Constitutional validity of the Minimum Wages Act

The Code of Wages, 2019

Key changes in Code of Wages, 2019 w.r.t minimum salary

Floor wages

Wages for overtime work

Increase in penalty amount

The Central Advisory Board

Power of the appropriate government to make rules

Components of minimum wage

Procedure for fixing or revising the minimum wage

The power of the central government to fix floor wage

Components of minimum wage

How is the wage calculated in India

Minimum wages for states across India (Per Month) (in Indian Rupees)

Conclusion

Frequently Asked Questions (FAQs)

Is Code of Wages, 2019 in force?

Does the Minimum Wages Act, 1948, apply to all kinds of employment?

Is the minimum wage the same as the basic salary?