In this article, Arpana Gupta pursuing M.A, in Business Law from NUJS, Kolkata discusses Guidelines for Surrender-cum-Rehabilitation of Naxalites in the Naxal affected States.

Capitulation-cum-Rehabilitation strategy is part of the overall policy to build agreement and evolve an acceptable and peaceful solution to violence perpetrated by radical groups, to usher in peace and development, especially in the concerned regions. Though, policies for rehabilitation of radicals have been successful in J&K and North Eastern States, enactment of similar policies in Naxal affected States has not been impressive for numerous reasons. This policy has been evolved, keeping in mind the specific physical and social landscape to help those Naxalites who want to abjure violence, surrender and join the mainstream. Surrender and reintegration policy is part of a multi-pronged conflict management and determination strategy and is required to be realized along with firm action by police against those who follow the path of strength. As the naxal problem has arisen on interpretation of real and perceived neglect, withdrawal and disaffection, mainly towards the subjugated, the solution should aim at providing gainful hire and entrepreneurial opportunities to the surrendered Naxalites so that they are encouraged to join the conventional and do not return to the fold of naxal movement.

Objectives

The purposes of these Guidelines for surrender-cum-rehabilitation of Naxalites in the naxal affected States are:

• To wean away the mistaken youth and hardcore Naxalites who have drifted into the fold of naxal movement and now find themselves stuck into that net.
• To guarantee that the Naxalites who surrender do not find it striking to join the naxal movement again.

Strategic surrenders by those elements who try to make use of the welfares extended by the Government to supplement their vested benefits should not be encouraged under the Scheme.

Eligibility Criteria

• These guidelines are appropriate to those Naxalites who surrender with or without arms.
• The eligibility of such Naxalites for assistance under the scheme would be inspected by the Screening cum Rehabilitation Committee established by the concerned State Government.
• The benefits of the scheme shall not be available to a surrendered that has already surrendered and advanced under existing surrender/rehabilitation outlines in any of the naxal pretentious States.

Benefits under the Scheme

Individuals eligible under the scheme may be informed training in a trade/vocation of their liking or befitting their ability. They shall be paid a monthly remuneration of rupee 2000/- each for a maximum period of 36 months. Though, if the surrendered secures any employment in Government or any lucrative self-employment, the monthly stipend will be discontinued.

An immediate grant of rupee 1.5 lakh shall be kept in a bank in the name of surrender as a fixed deposit which may be quiet by the surrendered after completion of 3 years, subject to good conduct to be specialized by the authorities designated for this purpose by the concerned States. This money can also be utilized as guarantee security/brim money against loans to be availed of by the surrendered from any bank for self-employment. In the occurrence of a surrendered being able to save any Government job, this quantity shall not be given to the surrendered.

Method for Screening/Documentation and Rehabilitation of Naxalites

1. The following interventions will be involved in the course of identification and rehabilitation of surrendered Naxalites:-

• ADG/IG(Special Branch/(CID) will item as the Surrender and Rehabilitation Major (S&R Officer) under the Arrangement.
• Central Para Military Power.
• Government Police/State Administration.

2. Each of the Security Forces organized will identify one officer of the rank of DIG or equal officer as the nodal officer for organizing matters relating to surrender and reintegration of Naxalites, with respect to their organization.
3. A Naxalite shall be free to capitulation before any unit of the CPMFs, District Magistrate, District SP, Range DIG, IG (Ops), IG (Special Branch), DIG (Special Subdivision), SP (Special Branch), SDM, Sub-Divisional Police Major and other notified officers. The generals for this purpose shall be advised by the State Governments. A Naxalite may also surrender before any unit of the Army or the CPMFs outside the State. The officer getting the surrendered shall send the details as informed by the surrendered occupied up in prescribed proforma to the S&R officer and to the nodal generals of all the deployed forces. The nodal officer of each association will verify the antecedents and activities of the Naxalites from its own bases and send specific references to the S&R Officer, stating as to whether the discrete could be taken in as surrendered or not.
4. The officer getting the surrendered will provide immediate security to the surrendered and after getting necessary details for filling up the requisite preforms, send him to the transfer camp to be preserved by the S&R Officer. The decision about the acceptance or otherwise, of the surrendered should be occupied within 15 days.

Screening Procedure may also comprise the Following

The Naxalite who surrenders may be an uncompromising, underground Naxalite cadre and a member of a Dalam and surrenders in accord with the inclusive surrender and rehabilitation policy being implemented by the concerned State Government. Rehabilitation of surrendered Naxalite should be narrowed to dalam members and above, other ranks and over ground supporters/sympathizers’ being considered only in exclusion belongings.

The expert designated by the concerned State Government for the determination should ensure that the surrendered is a genuine Naxalite and the Naxalite should make a clear concession of all the criminal acts dedicated by him/her including names of organizers and other participants, names of financers, harbourers, guides, details of the naxal organizations, arms / ammunition and the property looted/dispersed/disposed of by the Naxalite and organization to which the Naxalite belongs, which may be confirmed.

Court Cases

Heinous corruptions committed by the surrendered may continue in the courts. For minor offences, plea bargaining could be allowed at the preference of the State Authorities. States may deliberate providing free legal services/advocate to the surrendered Naxalite as per the policy of the concerned State. Fast track courts may be constituted by the anxious States for speedy trial of cases against the surrendered.

Impression Assessment of the Strategies

The Ministry of Home Affairs may review these guidelines occasionally in consultation with the concerned State Governments and take suitable corrective action if required.

IMPORTANT STRUCTURES FOR LWE PRETENTIOUS STATES

In order to holistically discourse the LWE problem in an effective manner, Government has formulated National Policy and Action Plan adopting multi-cleft strategy in the areas of security, development, guaranteeing rights and prerogative of local communities etc.

Safety Related Distribution (SRE) Structure

Under the Security Related Disbursement (SRE) Scheme, support is providing to 106 LWE affected districts in 10 States for recurring outflow relating to operative needs of safety forces, training and insurance and also for Left Wing Extremist squads who surrender in accordance with the renunciation and rehabilitation policy of the concerned State Government, community policing, security-related substructure by village defense committees and publicity material.

Road Requirement Plan-I (RRP-I)

For refining road connectivity, the Government permitted the Road Requirement Plan Phase (RRP-I) on covering 34 LWE pretentious districts of 8 States i.e. Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha and Uttar Pradesh. The scheme envisions 5,422 km road lengths at an assessed cost of ₹ 8,585 Crores. 4,290 km roads have been accomplished. 08 critical bridges are also actuality constructed under RRP-I in 6 LWE affected States. The development is being reviewed regularly. Out of 8 bridges, 2 have been accomplished in Telangana (1) and Maharashtra (1), while other 6 are under progress at innumerable stages.

Road Connectivity Project for LWE affected areas (RRP-II)

The Government permitted this scheme for additional improving road connectivity in 44 regions of 9 LWE affected States. This Scheme envisages 5412 km roads and 126 connections at an estimated cost of rupee 11,725 Crores. Ministry of Rural Development is the nodal Ministry for this project. The roads included under the structure have been acknowledged by the Ministry of Home Affairs in discussion with the State Governments and the security activities.

LWE Mobile Tower Scheme

To recover portable connectivity in the LWE areas, the Administration approved connection of mobile strongholds in LWE pretentious States, namely: Andhra Pradesh (227), Bihar (184), Chhattisgarh (497), Jharkhand (782), Madhya Pradesh (22), Maharashtra (60), and Odisha (253). The Department of Telecommunication has been realizing this Scheme. 2187 mobile towers have been connected and the project stands accomplished.

Scheme of Fortified Police stations

The Ministry has sanctioned 400 police stations in 10 LWE pretentious States at a unit cost rupee 2 crores under this scheme. A total of 373 of PSs have been completed, work at 27 PSs is under advancement.

Civic Action Programmed (CAP)

This scheme is under execution from 2010-11 in LWE affected areas. Under this structure funds are providing to CAPFs (CRPF, BSF, ITBP and SSB) @ rupee 3.00 lakh per company per year for leading various civic activities for welfare of local poor individuals in LWE affected areas. This is a very efficacious scheme to bridge the slit between the Security Services and the local people and also helpful for winning their hearts and minds. In this background, funds of rupee 19.02 crore and rupee 19.00 crore were released during the financial years 2015-16 and 2016-17 respectively. For the current economic year 2017-18, an amount of rupee 19.00 crore has been assigned under the Scheme.

GIS Mapping

LWE Division originated a new proposal of GIS mapping of the indispensable services in the 35 most affected LWE districts. A project has been introduced for mapping of financial services, school, post offices, health facilities, mobile strongholds, PDS services, Road and security landscapes etc. in time bound method. This will help to the investor to take informed decision on the developmental and security associated issues.

Unified Expertise

A Unified Facility has continued set up in the States of Chhattisgarh, Jharkhand, Odisha and West Bengal. The Unified Command has generals from the safety establishment, also civilian officers’ representative the civil administration and it will carry out carefully planned hostage LWE trials.

The Left Wing Extremism affected States have been asked to effectually implement the provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) on precedence, which categorically allocates rights over minor forest yield to the Gram Sabha.

A number of Left Wing Extremist outfits have been functioning in certain remote and poorly connected pockets of the nation for a few decades now. In a noteworthy development in 2004, the People’s War (PW), then operational in Andhra Pradesh, and the Maoist Communist Centre of India (MCCI), and formerly operating in Bihar and adjoining areas, complex to form the CPI (Maoist) Party. The CPI (Maoist) Party is the foremost Left Wing Extremist outfit responsible for majority of occurrences of vehemence and killing of civilians and sanctuary forces and has been included in the Schedule of Terrorist Organizations along with all its formations and front associations under the Unlawful Activities (Prevention) Act, 1967. The CPI (Maoist) viewpoint of armed insurgency to overthrow the Government is intolerable under the Indian Constitution and the founding philosophies of the Indian State. The Government has given a call to the Left Wing Extremists to shun violence and come for talks. This plea has been forbidden by them, since they believe in violence as the means to capture State influence. This has resulted in a strengthening cycle of ferocity in some parts of India. The poor and the marginalized sections like the tribal are bearing the brunt of this violence. Many well-meaning liberal intellectuals fall prey to the Maoist publicity without understanding the true nature of Maoist insurrection doctrine which glorifies violence and believes in accepting the military line to capture power. The majority of the civilians killed are ethnic often branded as ‘Police informers’ before being viciously tortured and killed. In fact, the tribal and the economically deprived sections, whose cause the Maoists claim to espouse, have been the biggest victims of the so called ‘prolonged people’s war’ of the CPI (Maoist) against the Indian government.

The Subtleties of Maoist Uprising

Some sections of the society, especially the younger generation, have idealistic illusions about the Maoists, arising out of an incomplete empathetic of their ideology. The vital theme of Maoist ideology is an asset. The Maoist uprising principle adores violence as the crucial means to confound the existing socio-monetary and political structures. The People’s Liberation Guerilla Army (PLGA), the equipped wing of CPI (Maoist), has been created with this purpose in mind. In the first stage of the insurgency, the PLGA resorts to paramilitary warfare, this primarily aims at creating a vacuum at the sward-roots level of the existing governance edifices. This is achieved by killing lower-level government officials, police-recruits of the local police stations, the workers of conventional political parties and the people’s legislatures of the Panchayats Raj system. After creating a political and governance vacuum, they compel the local population to join the movement. A vociferous propaganda is also carried out against the ostensible and real inadequacies of the existing state erection.

In areas under Maoist dominion, the absence of governance develops a self- fulfilling prophecy since the conveyance systems are extinguished through killings and bullying. This is the first step in the strategy of the Maoists to seek to control the landscape. In the meanwhile, many Front Organizations are created to facilitate mass-deployment in semi-urban and urban areas through ostensibly democratic means. Most of the Front Organizations are led by well-sophisticated intellectuals with firm belief in the Maoist uprising doctrine. These ideologues function as masks to cover the vehement nature of the CPI (Maoist) thought. They also form propaganda/disinformation technology of the party.

They vociferously take up issues like ‘displacement of tribal’, ‘corporate exploitation’, ‘human rights violations’ by security forces etc. and often make eccentric claims in this regard which get reported even by the conventional media. The Front Organizations also skillfully use state structures and legal processes to further the Maoist agenda and weaken the implementation regime. The important purposes of these Organizations include conscription of ‘professional revolutionaries’, raising funds for the uprising, creating urban shelters for underground cadres, providing legal support to arrested cadres and mass- mobilization by agitating over issues of relevance/ convenience. The Front Organizations aim to provide short-period democratic subterfuge to concealment-up the totalitarian and oppressive nature of the Maoist philosophy. The CPI (Maoist) also has a strategic game-plan to generate a ‘United Front’ with all like-minded dissatisfied/terrorist getups in India. It needs to be remembered that many of these outfits are supported by external forces hostile to India and the CPI (Maoist) consider such coalitions as tactical assets.

In a casing, the CPI (Maoist), the main LWE outfit in India, aims to take over the existing democratic state structure with fierceness as their primary weapon, and mass mobilization and tactical united fronts as complementary mechanisms and plans to usher in so termed ‘New Democratic Revolution’ in India.

THE GOVERNMENT OF INDIA’S METHOD

The Government’s tactic is to pact with Left Wing Extremism in a comprehensive means, in the areas of security, expansion, guaranteeing rights and entitlements of local populations, improvement in governance and public discernment management. In dealing with this periods-old problem, it has been felt suitable, after various high-level considerations and communications with the State Governments concerned, that an integrated approach aimed at the moderately more affected areas would deliver results. With this in view, a comprehensive analysis of the spread and tendencies in respect of Left Wing Extremist vehemence has been made and 106 districts in ten States have been taken up for special attention with respect to planning, enactment and monitoring various interventions. However, ‘Police’ and ‘Public Order’ being State subjects, action on conservation of law and order lies mainly in the domain of the State Governments. The Central Government closely displays the situation and supplements and synchronizes their efforts in several ways. These include providing Central Armed Police Forces (CAPFs) and Commando Battalions for Unyielding Action; sanction of India Reserve (IR) battalions, setting up of Counter Uprising and Anti-Terrorism (CIAT) schools; upgrading and upgradation of the State Police and their Intelligence tackle under the Scheme for Modernization of State Forces Forces (MPF scheme); reimbursement of safety related disbursement under the Security Associated Expenditure (SRE) Structure; if airliners for anti-naxal acts, support in training of State Police comprehensive the Ministry of Defense, the Central Police Organizations and the Bureau of Police Research and Development; sharing of Intelligence; simplifying inter-State coordination; assistance in community policing and civic action computer operator etc. The underlying attitude is to enhance the capacity of the State Governments to tackle the Maoist menace in an intensive manner.

EVALUATION AND MONITORING APPLIANCES

To give special focus to expansion in the LWE affected areas, MHA has been reviewing the LWE condition regularly through number of evaluation and monitoring appliances. Reviews cover operational and developmental issues with those of other Ministries of the Government of India. These mechanisms include:-

• The Union Home Minister summons the meetings of Chief Ministers of LWE exaggerated States.
• The Union Home Minister and the Minister of Federations (Home) visit LWE affected States to review the LWE condition.
• Analysis Group Meeting underneath the chairmanship of the Cabinet Secretary.
• Get-togethers by Union Home Secretary through Secretaries of Central Ministries and Chief Administrators of the LWE affected States and Central Ministries.
• Empowered Committee underneath AS (LWE), constituted to review the development of various evolving schemes/developments.

Conclusion

It is the trust of the Government of India that through an all-inclusive approach directing on development and security related involvements, the LWE problem can be efficaciously tackled. Though, it is clear that the Maoists do not want root reasons like underdevelopment to be talked in a meaningful manner since they resort to aiming school buildings, roads, railways, bonds, health organization, communication conveniences etc. in a major way. They wish to keep the populace in their areas of influence marginalized to preserve their outdated thought. Consequently, the process of development has remained set back by decades in many parts of the country under LWE effect. This needs to be recognized by the civil humanity and the media to build burden on the Maoists to eschew violence, join the conventional and recognize the fact that the socio-monetary and political subtleties and aspirations of 21st Century India are far removed from the Maoist world-view. Further, an ideology based on violence and annihilation is doomed to fail in an egalitarianism which offers legitimate forms of criticism redressal.

Introduction

The entire world in Cyberspace is a place under one rooftop. The thoughts, considerations, articulations, views, culture, convention and traditions spill out of one corner to the next corner of the globe at a single click. With the outpouring from one corner to another of these cultures, conventions, traditions, articulations, perspectives, contemplations and thoughts the unavoidable hardship i.e. the flexibility and agreeability and blending of one culture with the other was acknowledged, a major conflict between the materialistic west and spiritual east. Pornography is one such zone of significant clash. It has been from the very initiation a debate issue. This issue was significantly more under debate after a reported case of cybercrime as per section 67, in which a minor i.e. class XI understudy of Bal-Bharti School, Delhi had suffered.

The Internet has offered ascend to another platform for the online distribution and utilization of obscene information and data. Billions of individuals around the globe are going through websites taking into account this information and data. These websites contributes to the biggest development sector of the digital economic world. However, as the utilization of internet-web has outgrown with the passing of time, it is misused additionally and an expansive number of various sorts of crimes are submitted through this internet web such as hacking, IPR infringement, cyber terrorism, cyber fraud, cyber defamation, cyber forgery, cyber stalking and so on. One of the major of these crimes is cyber obscenity.

Obscenity is exceptionally delicate issue everywhere throughout the globe yet there is no settled meaning of the word “Obscenity” under any law. What is naked workmanship or sexually unequivocal thing for one individual might be Obscene or porn for another. Obscenity on the Internet is not typically a crime. Internet-Web has given a medium to the assistance of violations like Pornography or Obscenity. Digital Obscenity is the exchanging of sexually expressive materials within the internet. Despite the fact that the Indian Constitution ensures the freedom to expression and freedom of speech, it has been held that a law against obscenity is constitutional. The Supreme Court of India has characterized obscene as “repulsive, offensive to modesty filthy, decency or lewd “. It is extremely hard to affirm whether any pornographic material is illegal or not? One specific obscene material might be illegal in India however not in different nations. The test for pornography was first set out by the Regina v. Hicklin[1], as a propensity to debase and degenerate those whose brains are open to such shameless impacts and into whose hands a distribution of this sort may fall.

Definition and Meaning of Cyber Obscenity

The word “Cyber Space” was first utilized by William Gibson in his novel “Neuromancer” 1982. The word Cyber or Cyberspace indicates a virtual situation inside which organized PCs’ action happens and Obscenity is any announcement or act which firmly outrages the predominant profound quality of the time. Obscenity is a lawful term that applies to anything hostile to ethics and is frequently likened with the term pornography. Obscenity is gotten from the Latin word obscene. In R.V. Hicklin[2], the word obscene was plainly characterized as “Any issue which tends to debase or degenerate those whose psyches are interested in corrupt impact.”

The Hicklin test expresses that an administering body may forbid anything that “debases and undermines those whose brains are interested in such corrupt impacts and into whose hands a production of this sort may fall.” Digital obscenity is the exchanging of sexually expressive materials inside the internet. The digital pornography or obscenity talk about is exceptionally mind boggling in light of the fact that pornography is not really unlawful. The test is the United Kingdom and different locales is regardless of whether the materials are obscene and debase its watchers, however, there are significant lawful and good contrasts as to criteria that empower law implementers to set up obscenity and deprivation. In England, for instance, people every day see scandalous pictures, however, the different aspects of the mass media. These same pictures may be lawfully obscene in some Islamic social orders, yet they are considered splendidly adequate in more lenient nations.

As per Supreme Court of India, “the idea of obscenity would vary from nation to nation relying upon the measures of ethics of contemporary society.” And that obscenity has a propensity to debase and degenerate those whose brains are interested in such improper impacts.

History of Cyber Obscenity

The delineation of such obscene expressive acts is as old as the human progress itself. However, the cutting edge idea of obscenity i.e. digital obscenity came after the foundation of Internet. Invention of internet in the mid 1980’s was made by the National Science Foundation (“NSF’) which financed the fiber-optic joins that shaped the foundation of the Internet. At first, the Internet was for the most part restricted to clients who had work related electronic mail account on a PC keep running by their manager. In 1991, the NSF lifted confinements against business utilize. Today, the Internet is accessible to anybody with a PC, modem and mobile phone. Despite the fact that obscenity was at that point exhibit in the public eye as books, magazines or recordings. Yet, after the creation of the web these are made accessible inside the virtual space i.e. the internet. Subsequent to making accessible these obscene materials in the web, these are exceptionally close to the clients. Accordingly, in the present era cyber obscenity viz. digital obscenity is conferring by individuals of each class of society in each nation. The legitimate status of the present day porn industry shifts from nation to nation. Generally nations allow some level of entertainment to adults. While a few nations boycott the pornography. These nations are Bahrain, Cuba, Kenya, Saudi Arabia, Singapore, Indonesia, Iran, Egypt, Kuwait, UAE, Malaysia and India.

Transmitting Obscene Material in Electronic Form: A Crime

Obscenity when considered as an offence it is not defined in any acts in India, however certain laws state that ‘obscenity’ in certain situations establishes it as an offence. Indian Penal Code, 1860 and Information Technology Act, 2000 are the two legislations in India which recognizes obscenity as an offence or crime in certain circumstances. However nor the Information Technology Act, 2000 or the Indian penal code has defined the word obscene or obscenity, but as per section 67 of the Information Technology Act, 2000 and section 292 of the Indian Penal Code, 1860 elaborates and explains Obscenity as “anything which is lascivious or appeals to the prurient interest or if its effect is tend to deprave and corrupt persons.”[3][4]

Brief Explanation of Each Word

1. Lascivious: It is something which excites lust in a person;
2. Appeals to: This word here means something which arouses interest in a person;
3. Prurient interest: This word here means which is drawn by lustful thoughts;
4. Effect: This word here means to cause or change or any event;
5. Tend to deprave and Corrupt: This word here means to draw a person towards becoming immoral or bad morally;
6. Persons: This word here means natural persons including men, women, children[5]; it does not include any artificial persons.

Henceforth as per the two laws i.e. Indian Penal Code 1860 and Information Technology Act, 2000 (as amended by Information Technology Act, 2008), anything which is anything which is lascivious or appeals to the prurient interest or if its effect is tend to deprave and corrupt persons is said to be obscene.

Cyber Obscenity Under Various Legislation in India

Obscenity is an offense under the Indian Penal Code, 1860. Section 292 of the Indian Penal Code, 1860 thoroughly sets out the conditions in which “obscenity” is an offense. Section 292(1) of the Indian Penal Code, 1860 laid out that any activity i.e.

(a) Deal, enlist, conveyance, open presentation or course, makes, produces or, then again has the ownership of any obscene book, leaflet, paper, drawing, painting, portrayal, or, then again figure or some other obscene protest at all or

(b) Import, send out or pass on any obscene protest for any of the reasons specified aforementioned, or knowing or having motivation to trust that such obscene protest will be sold, let to procure, disseminated or freely showed or in any way out into flow, or

(c) Partaking in or getting benefits from any business throughout which any such obscene articles are, for any of the reasons previously mentioned, made, created, bought, kept, imported, traded, passed on, openly showed or in any way put into flow, or

(d) Promotes or makes known by any methods at all that any individual is drawn in or is prepared to take part in any act or that any such obscene protest can be secured from or, on the other hand through any individual or

(e) Offer or endeavor to do any act, are the offense under section 292 of the Indian Penal Code, 1860.

Obscenity is additionally an offense under the Information Technology Act 2000. Section 67 of the Information Technology Act sets out the law that obscenity is an offense when it is published or transmitted or caused to be published in any electronic form[6].

Published

Published here means any information which is distributed and broadcasted formally by issuing and selling copies of the same for general public.

Transmitted

Transmission here means transfer, pass, communicate, a medium for transmitting, signal etc.

Caused to be Public

Caused to be public here means that to give effect of publishing some information by direct or indirect way. It also includes the publishing the certain information by any internet service provider or website server.

The Indecent Representation of Women (Prohibition) Act 1986[7], disallows obscene portrayal of girls or women. Section 2(C) of the Indecent Representation of Women (Prohibition) Act, 1986 characterizes obscene portrayal of girls or women as “the delineation in any way of the figure of a girl or women, her frame or body or any part thereof so as to have the impact of being disgusting, or slanderous to, or stigmatizing, ladies, or is probably going to debase, degenerate or harm the general population morale quality or ethics.”

This Act denies any production, show, ads, deliver or cause to be created, deal, let to contract, disseminate or circle containing obscene portrayal of girls or women and the distribution or sending by post any books, handouts, slide, film, composing, drawing, painting, photo, portrayal or figure in any shape containing obscene portrayal of a girl or women.

Cyberspace is a virtual space or world. There is no regional breaking point which separates this crime between the nations. Since in this stage in carrying out the same crime at least two nations may include in the meantime. Now and again it would be extremely hard to confirm that which nation’s’ law ought to be applied in a specific case. The Indian court embraced the approach of Common Law. As in Ranjit Udeshi v. Territory of Maharashtra[8] case Supreme Court built up an adjusted adaptation of the Hicklin test as the test for indecency in India. The Supreme Court has watched that the trial of indecency set around Cockburn C.J. in Miller V/S California ought not be disposed of.

In ensuing case, the Supreme Court additionally verbalized on the test for obscenity. In

Chandrakant Kalyandas Kakodkar v. Province of Maharashtra[9], the court held: “What is obscenity has not been characterized either in area 292 of IPC or in whatever other statutes. It just restricts or punishes the mailing, granting, sending out, distributing and offering of the obscene issues. It is the obligation of the Court to consider the obscene issue by taking a general perspective of the whole work furthermore, to decide if the obscene entries are so prone to debase and degenerate those whose minds are interested in impacts of this short.”

In Samaresh Bose v. Amal Mitra[10], the Supreme Court held that the idea of vulgarity would contrast from nation to nation contingent upon the principles of ethics of contemporary society.

Punishment Under Indian Penal Code, 1860, Information Technology Act, 2000 (As Amended by Information Technology Act, 2008) & Indecent Representation of Women (Prohibition) Act, 1986

The Punishment for an offense under section 292 of the Indian Penal Code, 1860 is on first conviction with detainment (straightforward or thorough) for a term which may stretch out to two years, and with fine which may stretch out to two thousand rupees, and in case of a moment or resulting conviction, with detainment (straightforward or thorough) for a term which may stretch out to five years, and furthermore with fine which may stretch out to five thousand rupees.

The Punishment under Information Technology (Amendment) Act, 2008 is given in distinctive stages. As they seem to be:

Punishment for Transmitting or Publishing Obscene Information in Electronic Form

As per Section 67 of Information Technology (Amendment) Act, 2008[11],whoever distributes or transmits or causes to be distributed or transmitted in the electronic form any information or data which contains sexually expressive act or direct might be rebuffed on first conviction with detainment of either portrayal for a term which may reach out to five years and with fine which may stretch out to ten lakh rupees and in case of second or resulting conviction with detainment of either portrayal for a term which may reach out to seven years and furthermore with fine which may stretch out to ten lakh rupees.

Relevant Case

This case is tied in with posting obscene, defamatory and irritating message about a divorced lady in the Yahoo message group. Emails were sent to the divorced lady (Victim) for data by the accused through a false email account opened by him for the sake of harassing the victim. These postings brought about irritating telephone calls to the woman. In light of the woman’s grumbling, the police arrested the accused. Investigation uncovered that he was a known family companion of the victim and was keen on wedding her. She was hitched to someone else, yet that marriage finished in separate and the accused began to call her again by sending such emails. On her hesitance to wed him, he began hassling her through web.

Decision

The accused was discovered liable for offenses under section 469, 509 Indian Penal code, 1860 and section 67 of Information Technology, Act 2000. He is indicted and condemned for the offense as takes after:

• According to 469 of Indian Penal code, 1860 he needs to undergo detainment for 2 years and to pay fine of Rs.500/ –
• According to 509 of Indian Penal code, 1860 he is to undergo 1 year Simple detainment and to pay Rs 500/ –
• According to Section 67 of Information Technology, Act 2000, he needs to undergo detainment for 2 years and to pay fine of Rs.4000/ –

All sentences were to run simultaneously.

The accused paid fine sum and he was held up at Central Prison, Chennai. This is viewed as the principal case sentenced under section 67 of Information Technology Act 2000 in India.

Punishment for Transmitting or Publishing of Data or Information Containing Sexually Expressive Act in Electronic Form

As per Section 67 of Information Technology (Amendment) Act, 2008, whoever distributes or transmits or causes to be distributed or transmitted in the electronic frame, any material which contains sexual expressive act or lead, should be rebuffed on first conviction with detainment of either portrayal for a term which may stretch out to five years and with fine which may stretch out to ten lakh rupees. In case of second or ensuing conviction with detainment of either portrayal for a term, that may stretch out to seven years and furthermore with fine, which may stretch out to ten lakh rupees.

Punishment for Transmitting or Publishing of Data or Any Information Depicting Children in Sexually Expressive Act in Electronic Form

As per Section 67 of Information Technology (Amendment) Act, 2008[12], whoever

(a) Transmits or publishes or causes to be transmitted or published material in any electronic media form which portrays children engaged in sexually expressive act or behavior, or

(b) Creates, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes text or digital images or material in any electronic media form portraying children in any obscene or indecent or sexually expressive behavior, or

(c) Induces, Entices, cultivates children to online relationship with one or more children for any sexually expressive act or in a behavior that may offend a reasonable adult on the computer resource, or

(d) Facilitates Child abuse on online platform, or

(e) If any recordings are made on own abuse or that with others relating to sexually expressive act with children.

He shall be punished on first conviction with detainment for a term which may extend to five years along with a fine which may extend to ten lakh rupees. In the event of second or subsequent conviction with imprisonment of a term which may extend to seven years along with fine which may extend to ten lakh rupees.

As per Section 6 of the Indecent Representation of Women (Prohibition) Act 1986, any person who contravenes the provisions of this Act shall be punishable on first conviction with detainment which may extend to two years, along with fine which may extend to two thousand rupees. In case of a second or subsequent conviction with imprisonment for term of not less than six months which may extend to five years alongwith a fine not less than ten thousand rupees but which may extend to one lakh rupees.

Relevant Case

Janhit Manch & Others v. The Union of India[13]: A Public Interest Litigation was filed to seek a complete ban on pornographic websites. The NGO had argued that websites displaying sexually expressive content had an adverse influence, leading youth on a delinquent path.

Impact of Cyber Obscenity on the Society and Steps that can be taken for Eradicate the Same

In recent Era Internet has turned into the most venomous and risky adversary of man and society. In spite of the fact that it opens a world brimming with learning and data, its uses are misused pointlessly to do criminal exercises and furthermore those which are illicit in nature and this is the motivation behind why we contrast advances with a coin, that is, similar to a coin innovations likewise have two sides, the head being the favorable part and the tail being the disadvantageous part. Cyber-crimes against individuals incorporate a wide range of offenses. Harassing is extremely normal and effectively done inside a talk room or by means of email. This may incorporate physical and sexual dangers, verbally abusing and obscene talk. The trafficking of sexually expressive data and information incorporates pornography of grown-ups what’s more, kids.

In genuine cases, the Internet is utilized to find people, meet them face to face and carry out genuine crimes, for example, assault or murder once the culprits are in contact with the assault.

The Crimes viz. digital obscenity taints the brain of the general population. It makes more noteworthy symptom on the psyches of the kids and the adolescent era. Furthermore, by the obscene data or information i.e. pictures, recordings, or whatever other thing influence the respect of those individual whose pictures or recordings or names are used to do this business of obscenity.

There are certain suggestive steps, which can be given on this specific subject. By following these steps this Cyber obscenity crime can be eradicated to some degree. The said steps are briefly pointed out below:

1. To confine or to decrease the crime of digital obscenity people in general should know. Through instruction, people in general might know about the hindrances of the production of obscene material through the web.
2. There must be the workplaces of the whole sites throughout the nations of everywhere throughout the world.
3. There must be a procedure to make an email account in any site. As an application frame must be put together by the disconnected procedure to the workplaces made by those sites. What’s more, with the application shape a photo and the personality must be presented by the candidate.
4. Only by this procedure any one should influence his or her email to account at that point there is less opportunity to transfer any obscene material through those email accounts. Since they can convict easily by those data.
5. On the conviction of the guilty party transferring the obscene data or information, the disciplines of detainment insect the fine are not adequate. There must be a discipline to suspend the guilty party to utilize his record or to make another record to a specific timeframe as indicated by the nature of the Crime conferred by him.

Conclusion

Obscenity is to a greater extent a social malice than crime (i.e. unlawful). It is an issue, which can’t be tackled in a day. I would insist that in any case demand my point that “Pornography” as such is not obscene and unlawful, yet “pornography” which is obscene is illicit and corrupt. There is a desperate need to change our standpoint and attempt to comprehend this exceptionally fundamental boundary amongst “pornography” and “obscene”.

We can’t deny the way that digital obscenity is available in our general public and it can’t be overlooked. On the off chance that we attempt or of we expect that it can be expelled in a brief timeframe then we are incorrect. It is not through enactment that we can check or control it. Since this obscenity has done the brains of web clients filthy. Nevertheless, by the institution of strict enactment for the digital world can confine its impact to some degree. One of the conceivable ways might be through expanding and spreading mindfulness among the majority. It is not just the guilty parties who transmit or distribute this data or information, it is mindful to build this crime. The overall populations who never include in such action are likewise in charge of this since they who look through these things in Internet to watch or hear. Furthermore, via looking through these things in web they are supporting fiscally those sites that are transmitting these. Since their pay is relies on the quantity of the watchers of that specific destinations. In this way on the off chance that we need to check this crime we should need to limit our hands to entering these sites and should take a look at ourselves not to give any money related help by implication.

Endnotes

[1] L.R. 3 Q.B. 360 (1868)

[2] L.R. 3 Q.B. 360 (1868)

[3] Section 67 of the Information Technology Act, 2000

[4] Section 292 of the Indian Penal Code, 1860

[5] Children as per these sections means children under the age of 18 years

[6] Section 67 of the Information Technology Act, 2000

[7] Indecent Representation of Women (Prohibition) Act 1986 referred

[8] AIR 1965 SC 881

[9] AIR 1970 SC 1390

[10] (1985) 4 SCC 289

[11] Information Technology (Amendment) Act, 2008 referred

[12] Section 67 of Information Technology (Amendment) Act, 2008

[13] In the High Court of Bombay, PIL NO.155 OF 2009

Reference of the Information Technology Act, 2000, Information Technology (Amendment) Act, 2008, Indian Penal Code 1860 and Indecent Representation of Women (Prohibition) Act 1986 has been taken for preparation of the document.

In this article, Bhavana Thakur of KIIT Law school discusses grounds on which a hospital can return a patient who came for treatment. Also, Bhavana put forth the steps to take when a hospital, on unreasonable grounds fails to admit a patient.

No hospital, without reasonable ground, can deny treatment to a patient. Moreover, in cases of fatal injuries or any other medical emergency cases, it becomes the duty of the hospital to take steps which might save patient’s life.

The Emergency Medical and Treatment Labor Act (EMTALA) enacted in 1986 expressly prohibits the forswearing of care to poverty-stricken or uninsured patients in view of an absence of capacity to pay. It likewise restricts pointless exchanges while mind is being controlled and denies the suspension of care once it is started, arrangements that anticipate dumping patients who can’t pay on different healing centers. The treatment of destitute and uninsured patients is a gigantic money related deplete upon the wellbeing framework, particularly in zones where no open clinics are accessible.

While EMTALA does not forbid mind suppliers from getting some information about a patient’s capacity to pay, it makes it clear that crisis treatment can’t be deferred while the capacity to pay is being checked. Basically, the law sets up for a “treat to begin with, make inquiries later” strategy. This strategy fills a double need by securing both private healing facilities and patients. Private doctor’s facilities are ensured in light of the fact that they can deny non-crisis mind in view of capacity to pay and patients are secured on the grounds that refusal or postponement of crisis mind in view of intends to pay is illicit.

RIGHT AND DUTIES OF A PATIENT

1. Right to be treated with dignity and respect.
2. Right to health-care information which includes the following (An inclusive list):

• Diagnosis and disease process.
• Treatment option.
• Medical documentation
• Healthcare provider information.
• Anticipated expenditure.

3. Right to privacy and confidentiality.
4. Right to consent to diagnostic and therapeutic procedures.
5. Right to participation in research and innovative therapies.
6. Right to refuse/withdraw from treatment/research protocol.
7. Right to air grievances and seek redressal.
8. Right to continuity of care.
9. Right to expected quality of care of contemporary standards.
10. Duty to exercise rights responsibly and reasonably.
11. Duty to provide accurate and complete information regarding health-related issues.
12. DUty to comply with instructions of health care provider.
13. Duty to obey the rules and regulations of the hospital.
14. Duty to honor financial liabilities.

RIGHT FOR TREATMENT

In a crisis circumstance, a patient has a privilege to treatment, paying little respect to capacity to pay. In the event that a circumstance is probably going to cause passing, genuine damage, or inability if not going to quickly, it is a crisis. Heart failure, overwhelming dying, significant stun, serious head wounds, and intense crazy states are a few cases of crises. More subtle circumstances can likewise be crises: broken bones, fever, and cuts requiring join may likewise require quick treatment.

Both public and private healing centers have an obligation to direct restorative care to a man encountering a crisis. In the event that a doctor’s facility has crisis offices, it is legitimately required to give fitting treatment to a man encountering a crisis. On the off chance that the doctor’s facility can’t give crisis administrations, it must give a referral to suitable treatment.

REFUSAL BY THE DOCTOR

Refusal of restorative treatment normally happens in crisis rooms and dire care centers. A prepared medicinal professionals or attendant’s evaluation of a therapeutic condition, known as triage, decides the need of a harmed individual’s restorative need. Individuals with perilous wounds might be seen instantly, while those with lesser wounds may need to hold up.

For instance, A patient with chest torments, which may show the onset of a heart assault, will get quick medicinal care. Those with head injury, genuinely consumes, or other dangerous wounds will likewise be high on the rundown. Somebody with a sprained lower leg, be that as it may, may need to sit tight for a few hours before being seen.

There are times when a patient might be legitimately denied crisis medicinal care. Probably the most widely recognized reasons include:

• The patient displays “tranquilize looking for conduct.” Most crisis room specialists and attendants are prepared to recognize the individuals who likely have a medication issue.
• The patient is betrayed, trusting she is genuinely sick when there is no genuine ailment.
• The patient showcases ruinous or hazardous conduct while holding up to be seen.

In the event that you don’t fall under one of the above classifications, you will at present have the capacity to see the crisis room specialist, regardless of the possibility that you don’t have a therapeutic crisis (because of risk reasons). You may need to hold up until the point that each patient with a more genuine condition is seen, regardless of the possibility that they touched base at the E.R. hours after you did, which is an authentic exercise of crisis mind triage.

Under EMTALA, An emergency medical condition is defined as:

One that shows itself by intense indications of adequate seriousness (counting extreme torment, psychiatric unsettling influence, and additionally manifestations of substance manhandle) with the end goal that the non appearance of prompt medicinal consideration could sensibly be relied upon to bring about the accompanying:

• Setting the strength of the individual (or unborn tyke) in genuine danger.
• The genuine hindrance of a substantial capacity.
• The genuine brokenness of any real capacity or part.
• The deficient time to impact a sheltered exchange of a pregnant lady to another doctor’s facility before conveyance, or, that the exchange may represent a danger to the well being or security of the lady or unborn tyke.”

Legal steps to take when denied medical treatment on unreasonable grounds

On the off chance that you were denied treatment for authentic reasons at a crisis room or earnest care focus, you may have no lawful response. Assuming, be that as it may, you gain from a dependable medicinal supplier your condition required crisis care, and you were moved in the opposite direction of an E.R., you may have the premise of a restorative negligence assert.

Furthermore, you may report the crisis supplier’s activity to Medicare. They will examine your claim, and in the event that they discover you were denied crisis therapeutic care infringing upon EMTALA, the office might be liable to:

• End of their lucrative Medicare supplier ascension
• Fines up to $50,000 per infringement ($25,000 for a clinic with less than 100 beds)
• Doctor fines of $50,000 per infringement, including available to come back to work doctors

In the event that you are wrongly denied treatment in a crisis room setting, approach to see the individual in charge of operations. Express that you know about EMTALA directions and you’re certain declining to treat you is an infringement. Refer to the reasons you were wrongfully denied treatment, for example, not having protection, or being not able pay the expenses of treatment.

You have no rights to any fines demanded against the doctor’s facility for infringement of EMTALA. In any case, in the event that you can demonstrate their treatment dissent brought about a superfluous exacerbation of a prior condition, or was in charge of pointless physical torment and enduring, you may have the premise of a medicinal misbehavior case.

In the event that the healing facility was fined or reproached by the legislature for abusing EMTALA, those infringements will go far towards supporting a negligence guarantee.

On the off chance that you were declined medicinal treatment in light of segregation, as set out under The Federal Civil Rights Act, the infringement can be accounted for to your state lawyer general’s office, or the neighborhood office of the United States Attorney

Can private doctors refuse to treat patients?

The short answer is, yes. A private doctor isn’t subject to the provisions of EMTALA, and can dismiss you as a patient at any time (barring discrimination), for just about any reason, without fear of credible legal reprisals. Doctors in private practice are basically small business owners.

A doctor can refuse to treat a patient because

• The doctor’s practice is so busy she is unable to accept new patients.
• The doctor doesn’t have a working relationship with your health insurance company.
• The doctor chooses not to treat patients with the illness or injury you suffer from.
• You can’t pay for the costs of treatment.
• You or your spouse is a medical malpractice attorney.

Your doctor can refuse to continue treating you because

• You haven’t paid your bill.
• The doctor has stopped doing business with your health insurance provider.
• You continue to exhibit drug seeking behavior.
• You are a disruptive patient.

For reasons of conscience (including religious, contraceptive, or palliative care beliefs, or deciding not to prescribe narcotics for pain management).

The doctor learns you or your spouse is a medical malpractice attorney.

CONCLUSION

The most common reason for refusing to accept a patient is the patient’s potential inability to pay for the necessary medical services. Patients should be given some indication of the financial requirements when they make an appointment for treatment to prevent them from delaying making other arrangements for care while waiting for an appointment at which they will receive no treatment. While it has not been clearly established that making an appointment creates a physician-patient relationship, it would be difficult to explain to a jury why someone in urgent need of care was turned away after having waited for an appointment. A defensible decision not to accept a patient for financial reasons can appear questionable in retrospect if the person was injured by the subsequent delay in receiving medical care.

In this article, P. Mohan Chandran pursuing M.A, in Business Law from NUJS, Kolkata discusses the Use of Machines in Arbitration – Are We Ready?

The use of technology in the legal field has been continuously evolving, and its use by lawyers has risen steadily. For instance, DRExM[1] has, lately, been used in Egypt to resolve construction disputes, because of its ability to recommend the most appropriate dispute resolution technique, depending on the nature of the dispute, the evidence, and the relation between the parties.

Of late, a group of lawyers – Watson, Ross, Lex Machina and Compas – has been the most sought-after by the most reputed law firms. They are supposed to forecast results with greater accuracy than Gary Born,[2] create more compelling stories than Stanimir Alexandrov[3] and even administer better awards than Gabrielle Kauffman-Kohler.[4]

In the future, Artificial Intelligence (AI) is expected to transform legal practice. In the coming future, the possibility of technology having its predominance over human subjects, even in the field of law, is high. An American law firm has already started using an AI researcher that can conduct legal research more swiftly and economically than a human. In this scenario, the million-dollar question in everyone’s mind is: ‘will technology replace arbitrators shortly? And, are we ready for it?’

Technology/Machines Replacing Humans

In the U.S, advanced document production programs have already begun to displace contract lawyers. A latest report [5] by Carl Frey, co-director of the Oxford Martin program on technology and employment at the Oxford University, reveals how rapid enhancements in machine learning imply risk for highly-skilled workers, who may have their jobs mechanized, with judges and magistrates at medium risk (40.1%), together with detectives, economists, computer programmers, commercial pilots, and personal financial advisers. Those professionals who are at highest risk are insurance underwriters, loan officers, and credit analysts.

Technology makes us rethink on the intuitive nature of the arbitrator’s order and how much of it can be renounced. It is said that writing one’s own awards protects one’s own intellectual integrity and that arbitrators who delegate this task to an assistant are no longer discharging their decision-making function.

We need to confront new changes head-on and question ourselves about what we eventually expect from the arbitral process, and what it can accomplish. Do we want impeccably logical, absolutely unemotional reactions? Irrefutable legal reasoning? A quest for truth? And what is the role of justice and empathy – which supposedly, even highly advanced machines can’t replicate – in the arbitral decision making of the future? We are on the cusp of time where technology in arbitration is in a transitional phase, from being just functional to truly life-changing.

Appointment of machines as Arbitrators

Arbitration is not immune to dynamic technological advancement. With technology reigning supreme over humans, the bigger question that arises is: ‘are parties willing to appoint machines as arbitrators?’

None of the arbitration laws explicitly restrain the appointment of a computer as an arbitrator. Instead, every provision pertaining to the validity of the arbitration agreement only defines it as the submission of a dispute to the arbitrators. In turn, the definitions of ‘arbitral tribunal’ only mention that parties may appoint a sole or a plurality of arbitrators. Thus, based on this argument, both an arbitration agreement referring the dispute to a machine arbitrator and the composition of a tribunal by such machine would be valid.

However, the Arbitration Acts of Brazil (Art. 10), Ecuador (Art. 19), Peru (Art. 20), and Colombia (Art. 7 – domestic arbitration) contain specific references to arbitrators as ‘humans’ or require them to act by themselves. For instance, the Peruvian Arbitration Act states that “any individual with full capacity to exercise his civil rights may act as an arbitrator”[6].

On the contrary, legislation of Chile, Colombia (international arbitration) and Mexico, as well as the Model Law, do not contain a specific reference to arbitrators as ‘human,’ nor require them to be in a capacity to exercise their civil rights. Disputably, this legal lacuna would allow users to appoint a computer as an arbitrator in these countries.

However, the legal status of MLS (Machine Learning Systems) might change in the future. For instance, members of the European Parliament have mooted to provide legal status to robots, classifying them as ‘electronic people’ and holding them liable for their acts or omissions. This kind of regulation could open new avenues, allowing parties to appoint computers, even in countries that require ‘human’ arbitrators. Moreover, even if parties were disallowed to appoint computers as arbitrators, it does not mean they cannot consent to use them. Even if arbitration laws do not apply, courts should still execute such agreements as a matter of contract law.

Apart from these regulating considerations, the appointment of machine arbitrator could be curbed based on an alleged breach of international public order. Such a concept constantly emerges to meet the needs of the political, social, cultural and economic contexts. However, change takes time to be executed.

Hence, an award effected by machine arbitrators should be set aside for violating the international public order, as it lacks critical human attributes such as emotion, empathy and the ability to explain a decision.

Use of ‘Virtual’ Technology in Arbitration

We can see where the fault lines of a modern vis-à-vis traditional legal landscape will lie with one piece of technology whose use extends to the frontier between the conventional and the life-changing video conferencing. The technology of Video Conferencing technically viable since 1964, became prevalent only after the turn of the millennium. As the technology has advanced and dispersed, it has increasingly been offered in arbitration as the mode for examination and cross-examination of witnesses who have difficulty in showing up personally at hearings.

The use of video technology has incited an interesting rift in the opinions of arbitrators and counsels alike. On the one hand, conventionalists believe that it is fundamentally illogical to question a witness from a remote location, on the other side, enthusiasts believe that video technology will help get rid of much of the time and expense that plagues arbitration hearings.

For a brief moment of time, the conventionalists had a point. The video technology in use was comparatively primeval, susceptible to disruption and delay, and hardly an optimal medium for the art of cross-examination. However, since 2010, newer and better video technology has empowered multiple users from diverse locations to meet and negotiate by video, in high definition and with no significant time lag. This newer generation of video technology mostly disqualifies the criticisms that many arbitrators and counsels had initially advanced against the use of video conferencing in arbitral hearings. Moreover, it makes pragmatic the possibility of not only examining far-flung witnesses but also executing arbitrations with several of the participants and stakeholders in different locations. However, there remains a substantial percentage of practitioners who are uncomfortable with the prospect of administering all or part of an arbitral hearing by video. These criticisms all condense to the loss of in-person contact that follows from a virtual proceeding.

It is at this point in the development of technology in arbitration that criticisms of this type expose a firm elemental belief. As mentioned above, the modern wave of high-definition video conferencing provides a crystal-clear picture of a participant on the screen akin to him sitting just next to you in the room. The participant’s facial expressions, body language, and voice tone are enhanced by the medium of the video conference. It is no longer maintainable with this kind of video to criticize that one cannot gauge a witness’s non-verbal and sub-conscious signs.

With rapid advancement in technology, we face the possibility of even more immersive and realistic technology to simulate personal interactions. Today, we are on the verge of a revolution in virtual reality technology. Some of the technological giants, such as Google, Facebook, and Microsoft, have announced virtual reality headsets that signify a sea-change in current technology, competing with independent outfits such as Magic Leap, to develop the most economical and most realistic devices. The first such headsets may be more suitable for video games and visual images than for virtual hearings, but it is unlikely to take long before they can efficiently replace video conferences as substitutes for personal meetings providing a much more realistic, real-time feel.

When the cost and quality of such technology make it practical to conduct ‘headset hearings,’ any criticism about the proximity of the medium and the difficulty of interacting with others in a virtual hearing will be eliminated. All that would be left, then, as a probable criticism to virtual hearings, is an inexpressible preference for the ‘feel’ of dealing with a witness personally, rather than distantly. The idea behind this is that there is an indefinable component to personal human contact, in which the participants are provided a better opportunity to assess the qualities of their speakers than they would be by phone, video, or hologram. If the arbitrators make this preference clear, the parties and their lawyers will keep supplying witnesses in person to meet it.

One of the fields where technology is mostly used in arbitration at the moment is advocacy. With smart use of computer-generated graphics or diagrams, complicated facts are simplified, and a case is made easier to understand. An interactive video of a damaged manufacturing plant will probably emphasize the message of the plant’s failings more effectively than would a dry, oral recitation of the construction’s failure. A video of the ravage created by a natural disaster will carry more emotional weight in a dispute about insurance coverage than a spreadsheet exposing the ruin in figures. In the near future, we can expect more advanced visual fireworks ever to assist parties’ cases.

If the evaluation of evidence and decision-making role of arbitrators is, as disputed, increasingly seized by AI, technological advocacy aids will become progressively redundant. A computer is not vulnerable to emotion and will be no more influenced by a video than by a transcript.

The present generation of lawyers in arbitration confront a turbulent ride with technology. Today, and for a few more years, they can leverage technology to move and persuade tribunals. But the rapid growth of technology will steadily weaken their power and could phase out their role altogether.

Performance of Machines vis-a-vis Humans in Arbitration

Although technology has evolved rapidly in the last few years, a Machine Learning System (MLS) is still unable to read, forecast or feel emotions precisely. The lack of emotional processing would be a significant drawback for a machine arbitrator.

Emotions are vital for humans. This would be a significant drawback for machine arbitrators. Machines, including computers, can’t instantly feel emotions because they can neither recognize nor understand signs such as facial expression, gestures, and voice intonation. In turn, machines can’t communicate information about their own emotional state by using relevant, responsive signs.

Inability to give due recognition to the parties’ emotional reactions impedes the arbitrators’ understanding of the case as it undermines the part played by the parties’ emotions in the circumstances leading up to the dispute. Emotions act as a source of information, matter of motivation and control information processing by masking our perception, memory encoding, and judgments. Without emotions, our decisions are not human. Moreover, specific emotions such as anger plays a significant role in legal decision making. According to Terry Maroney[7], anger generates a bias towards fighting against injustice. Thus, angry arbitrators are vulnerable to feeling an intense desire to repair an unjust situation, even if that means taking more risks to rectify the existing scenario.

Furthermore, MLS also lacks empathy, i.e., the ability to understand the intentions of others, anticipate their behavior, and experience the emotions they are feeling. This emotional intelligence characteristic requires the development of metacognition i.e. thinking about thinking, thinking about feeling and thinking about other’s thoughts and feelings. However, computers haven’t acquired this feature hitherto.

Empathy is critical in arbitration. Arbitrators have to put themselves in the shoes of the respective parties to fathom their hopes, struggles, expectations, and assumptions. It is only after this cerebral exercise that arbitrators are ready to perceive the dispute and reach an award completely. Moreover, MLS are not yet able to explain their judgments. This could be an issue, even where arbitrary awards are allowed if consented. For instance, computers would be unable to issue final judgments regarding a fundamental decision subject to an appeal for reconsideration. Arguably, this could breed defiance against machine arbitrators, based on due process. Prominently, the European Union’s General Data Protection Regulation, that is effective from May 2018 prohibits automated decisions regarding profiling, if the algorithms cannot be subsequently explained to its users (“right to an explanation”).

This may create numerous issues, as corporations might try to mask information from public scrutiny, access to codes will possibly be complex for ordinary citizens and, specially, there will be an imbalance between the mathematics involved in machine learning and the demands of human-scale reasoning and style of interpretation. In short, machines are limited. An unemotional arbitrator, without empathy and the ability to explain itself, would be unable to fully comprehend the drama of the parties, their intent, and the provided meaning, apart from the written text of the contract and documents.

However, AI will not eliminate arbitration for now because resolving international disputes goes beyond establishing the factual matrix of a case and applying established legal principles.

It may be easy to analyze a wealth of well rationalized common law judgments and come to almost accurate conclusions. When humans can do it, AI could do it better. However, in many jurisdictions, court judgments are much shorter, and the reasoning is much vague, with very little explanation of the relevant facts and parties’ arguments. As a consequence, legal research needs experience in a specific jurisdiction and knowledge of the historical roots of several legal principles and traditions. It becomes subtler and, to a great extent, echoes a speculative game where you have to use your intuition and everyday life experience to understand the rationale behind a specific judgment. International arbitration resolves disputes from around the world between parties from different geographies and with different legal traditions. There is no reason to presume that AI would match the quality and ease of information available for research in every geography anytime soon.

The same goes for fact-finding, too. The analysis of the information, which is well documented and consistent, is not too arduous a task for a human. Therefore, it could be accomplished easily by AI. But the fact-finding function of the arbitrator goes beyond that because, in several intricate disputes, the factual matrix is split up. A few facts may not be established with adequate certainty. Even the standard of proof pertinent to non-criminal law cases necessitates something that goes beyond pure analytical skills. Arbitrators may need to summon up their personal business experiences from everyday life. They may require utilizing their knowledge of various cultures, business traditions, and human psychology to identify which interpretation is more probable, or which one is real to be believed. They then need to figure out the links between isolated proven facts.

Moreover, in several cases, the application of law to the established facts does not automatically yield the right result for one reason or another. Some vital facts cannot be established with appropriate certainty. Sometimes, the law, when applied stringently, may spark improper results. Sometimes the law may not even exist to govern a particular situation, and the parties may also ask their arbitrators to resolve the dispute according to the principles of right and good. All these situations necessitate that human senses of justice and equity are involved in the decision-making process.

Hence, AI may be suited for smaller and more simple cases. But the real value of international arbitration as a means of peaceful resolution of international disputes between various parties is not in creating standardized and steady results. Its real value is that the people involved in the process – arbitrators, counsel, experts – exercise their own cultural, business and legal backgrounds, life experiences, and senses of equity and justice to settle the dispute. This is usually not only right as a matter of strict law, but is most significant as just and fair under the circumstances of the case.

A popular study[8]of Israeli parole judges over a span of eight months explained that their conduct showed an expected pattern. After starting work in the morning, they would grant applications for parole at an average rate of 65%, with the number of successful applications declining before lunchtime. After lunch, an applicant’s probability of parole surged again to 65% before steadily declining again. The gravity of the applicants’ crime had no relation to the sequence in which it presented itself before the judges; they were simply more inclined to be lenient when they were not hungry.

Well, one may wonder what connection this has with technology! The answer is that technology is reaching a stage where devices can not only compensate for human lacuna in decision-making, but also substitute their own, more precise assessment of the facts.

There is a volley of questions that might arise from the use of technology in an arbitration. Would parties be compelled to use it? Could arbitrators confront a challenge from a party for using technology on the basis that they were abjuring their responsibility to adjudge the case to a machine? Or could they confront a challenge for not using it on the ground that they ought to use every tool at their disposal to determine the truth? Would counsel waiver to advance certain witnesses on the ground that they might not survive the eagle-eye of a machine – and would that be atrocious? Would arbitrators attract a negative inference from a witness willing to depose, but not to use the machine? Whatever it is, technology seems to be here to stay.

Advantage Machines

MLS could assist arbitrators. For instance, HYPO is a computer that guides arbitrators in the search for precedent, explains similarities and differences between cases, and even suggests possible arguments that could be used for dispute resolution. In such cases, the machine would not make the decision, but only act as a guide for arbitrators. In this scenario, it would still be up to the human arbitrators to attribute purpose and meaning to the evidence.

The arbitration legal framework was not structured to explicitly prohibit or admit the appointment of computers as arbitrators. With the evolution of technology, we have to amend our laws accordingly. Therefore, arbitration practitioners should discuss the changes that would take place if machine arbitrators are appointed. How would the standard of ‘conflicts of interests’ be applied? Would it be possible to appoint a machine in a panel with two human arbitrators? How would they deliberate?

Technology will undoubtedly and ultimately catch up and provide solutions. Primeval lawyers who try to clutch on to tradition and quell innovation will remain at the middle of the evolutionary chain. Hence, it is left to the arbitration community to express its needs for empathetic arbitrators, who are able to explain and feel their decisions.

Very soon, AI could take over certain portion of legal business, such as legal research and drafting, if it is able to deliver more consistent and reliable results at more economical costs. AI will be better able to perform legal research than humans. Similarly, it is quite likely that AI will be better at fact-finding. Most organizations would be glad to have a dispute resolution mechanism that delivers consistent and precise results at a fraction of the actual costs involved in today’s arbitrations. There is probably less scope for apprehension about machines adjudging humans in the commercial context. For this reason, AI-based dispute resolution will likely take over some portion of the alternative dispute resolution (ADR) market in the near future. Also, it will leave very little scope for standard disputes. By using the same AI technology, without formally involving in a dispute with an opponent, results might be easier to predict. So, to be precise, it will be a mechanism for alternative dispute prevention’.

Benefits & Risks With Machine Arbitration

Benefits

The legal market in general is getting more dynamic, with a robust focus on efficiency, novel ways of offering legal services, cost competitiveness, new market players and new online legal services, which will also affect the arbitral proceedings, and the lawyers and client expectations on the use of technology, instant access to knowledge, and communication taking place with extraordinary speed.

With the help of state-of-the-art technology, benefits such as enhanced accessibility, search and support facilities for electronic files, interactive documents, virtual hearings with improved use of exhibits, online dispute resolutions and efficiency growth can be accomplished. This is a dynamic process, evolving into more production-friendly arbitration over time. Today, the level of electronic evidence being accepted differs predominantly. Some arbitral tribunals only accept hard documents, while others are receptive to accepting electronic evidence.

Risks

The use of new technology brings both risks and opportunities. Some of the risks concern issues related to security and privacy, ownership of data, technical problems with dual-use devices, the risk of missing important information with too many possibilities to access numerous documents and the risk that the parties may not be equally well-equipped or experienced, resulting in an inequality that could be inimical to due process. These risks need to be carefully addressed and it is crucial that the adoption to latest technology is made with appropriate care and contemplation as not to impair the fundamental principles of the process. The advances made in information and communications technology have opened up opportunities and changes that have invariably had – and will continue to have – an impact on working practices and created new client expectations for the arbitral community to adapt. The enduring success of international arbitration in the 21st century will depend on our ability to develop innovative and visionary techniques to meet the future challenges and risks.

Innovative Technology in Arbitration

There are already numerous new innovative projects being planned and implemented, mostly in the consumer dispute field with online dispute procedure solutions. For instance, the European Commission, of late, recommended the setting-up of an EU-wide online platform resolving consumer disputes. But, there are also solutions targeted at the efficient management of intricate business disputes referred to international commercial arbitration by the use of the latest technology. For instance, the International Chamber of Commerce (ICC) has created a facility called Net Case, which allows parties and arbitrators to handle aspects of their proceedings in a secure online environment.

Another similar technological innovation is the WIPO ECAF, which allows parties, experts, arbitrators, and mediators in a case to submit communications electronically, record facts, receive case information summaries and synopsis of schedule, and the economic status of the case. Other instances on the use of new technology to simplify litigation management are:

Case Anywhere

A web-based software application tool, created for US litigation, which can be used by court and lawyer to efficiently manage their cases by allowing users to electronically serve litigation documents, arrange and search case records, access testimonial transcripts, and communicate over a secure internet connection.

LexisNexis CaseMap

A tool for lawyers to effectively seize, organize and assess the facts, cast of characters, relevant issues, research and participants in a case.

The Stockholm Chamber of Commerce (SCC)

The Stockholm Chamber of Commerce (SCC), of late, has also launched a forward-thinking project using new technologies – The Swedish Arbitration Portal. The portal is an innovative service that provides the arbitration association free access to English translations of Swedish court judgments on issues pertaining to both international and domestic arbitrations.

With the use of cloud computing, latest state-of-the-art software products can be used without any huge upfront investment costs, which would shrink the costs of execution and provide well-developed, efficient and economical solutions for arbitral proceedings. With the rampant use of cloud-based technology, latest innovative solutions to meet the challenges of the future and identifying ways to draft the award faster will be increasingly easy to adopt.

Usually, the question of whether and to what extent latest technology will be used in a given arbitration will be a thing for the parties and arbitrators to decide in discussion with each other. Although the benefits provided by the latest technology are quite compelling, there is no proposition that they should be imposed against a participant’s will. So, lawyers have to take the call when it has to be determined how the new wave of information technologies will impact arbitration. It is advisable for lawyers to embrace the vast technological possibilities by adapting them to the dynamic world.

Hot-Tubbing

Hot-tubbing or simultaneous evidence is a system of providing evidence, where experts give evidence simultaneously and the court or tribunal leads a discussion between them.

The main objectives of expert hot-tubbing in technology-related arbitrations are:

• To save trial time
• To enhance the quality of expert evidence
• To support the court in determining disputed issues of expert evidence
• To save costs.

Hot-tubbing allows experts to ask questions to each other, answer such questions, and most importantly, to respond to each other’s opinions. It helps the tribunal in understanding technology matters. However, the success of hot-tubbing depends on the arbitrator’s adequate understanding of the subject-matter to conduct the discussion and the ability of the arbitrator to chair in the discussion between experts.

Conclusion

The advent of AI will transform legal practice. The likely impact for those engaged in the arbitration arena is that there is no express prohibition to machine arbitration or machine arbitrators in one Model Law jurisdiction. Public policy concerns are likely to arise, but these are expected to wane over time.

The rapid nature of technological advancement entails swift action to address the legal, ethical and practical challenges raised by machine arbitration. The development of specialized arbitral rules and frameworks to control and execute machine arbitration will be essential should this technology become a reality.

Probably these rules and frameworks should be drawn up soon in the near future. After all, the Permanent Court of Arbitration published their Optional Rules for Arbitration of Disputes Relating to Outer Space Activities in 2011, well ahead of the comprehensive commercial spaceflight. Similar prudence in respect of machine arbitration may reduce the risks that tend to accompany far-reaching change.

With the advancement of AI programs such as Watson, it is possible that in the present direction, a computer would be able to serve as a fact-finder and arbitrator on its own, within the next 20 years: exploring the applicable law more intensively, evaluating the validity of witness evidence more flawlessly, and contemplating a great deal more swiftly than human arbitrators. Parties might then not object to the use of such a machine to decide their disputes.

However, it would remain the choice of the parties whether to employ a non-human arbitrator when one becomes viable. Given our mindset and weakness for human interaction, parties may well reject the opportunity to have their dispute decided by a computer program, even at the risk of having more ‘imperfect’ humans possibly decide it ‘unfairly’.

An interesting scenario might occur if one party were willing to use a computer as an arbitrator, but another objected to it. Will the arbitral institution be able to foist a non-human arbitrator on an objecting party, or would that characterize an abuse of the process? It might be that parties and institutions adopt an amalgamated approach, with parties appointing humans and a machine serving as the third member.

On the other hand, a human tribunal might review with a computer as a supplement to, or check on, their decisions. The computer might, therefore, perform a role akin to the one for which tribunals use tribunal secretaries. This kind of approach might provide a satisfactory solution to those who emphasize on human interaction in an arbitral proceeding and those ready to place their faith on the less imperfect, but less acceptable, prospect of ‘robotic justice’.

As arbitration is predominantly criticized for getting sluggish and exorbitant, the technology that could be used in the process is becoming more economical and advanced. The economics of dispute resolution, thus, proposes an inflection point somewhere in the next decade, where the benefits of technology rapidly enhance the current process.

References

1. Jose Maria de la Jara, Alejandra Infantes, and Daniela Palma, Machine Arbitrator: Are We Ready? KLUVER ARBITRATION BLOG (May 4, 2017), http://kluwerarbitrationblog.com/2017/05/04/machine-arbitrator-are-we-ready/.
2. Jack Wright Nelson, Machine Arbitration and Machine Arbitrators, YOUNGICCA BLOG (July 28, 2016), http://www.youngicca-blog.com/machine-arbitration-and-machine-arbitrators/.
3. Andrey Panov, Machine Arbitration: Will We be Out of Our Jobs in 20 Years?THOMSON REUTERS (Aug. 4, 2016), http://arbitrationblog.practicallaw.com/machine-arbitration-will-we-be-out-of-our-jobs-in-20-years/.
4. Thomas D. Halket, Using Information Technology in Arbitration, AMERICAN BAR ASSOCIATION (Jan. 2015), https://www.americanbar.org/publications/gp_solo/2015/january-february/using_information_technology_arbitration.html.
5. Innovation in Arbitration, VIRTUAL INTELLIGENCE,http://vqab.se/innovation-in-arbitration.aspx.
6. Paulius Docka, How Hot-Tubbing Might Affect Technology Related Arbitration, SILICON VALLEY ARBITRATION & MEDIATION CENTER, https://svamc.org/how-hot-tubbing-might-affect-technology-related-arbitration/.
7. Dr. Faith Serbest, The Use of Information Technology in International Commercial Arbitration, ACADEMIA.EDU (June 6, 2012), https://www.academia.edu/5795816/The_Use_of_Information_Technology_in_International_Commercial_Arbitration.
8. Paul Cohen and Sophie Nappert, The March of the Robots, GLOBAL ARBITRATION REVIEW (Feb. 15, 2017), http://globalarbitrationreview.com/article/1080951/the-march-of-the-robots.
9. Sophie Nappert and Cohen, The Brave New World of IT and International Arbitration – The Practitioner’s Perspective,RESEARCH GATE (Sept. 2016), https://www.researchgate.net/profile/Sophie_Nappert/publication/303749723_The_Impact_of_Technology_on_Arbitral_Decision_Making_-_The_Practitioner%27s_Perspective/links/5750460508aefe968db72809/The-Impact-of-Technology-on-Arbitral-Decision-Making-The-Practitioners-Perspective.pdf.

[2] Gary Born is the Chair of the International Arbitration Practice Group. He is widely regarded as the world’s pre-eminent authority on international commercial arbitration and international litigation. For the last two decades, he has been ranked as one of the world’s leading international arbitration practitioners and the leading arbitration practitioner in London for the last two decades.

[3]Stanimir A. Alexandrov is co-leader of Sidley Austin LLP’s International Arbitration Group. He focuses his practice in the areas of international dispute resolution, including investor-state arbitration and international commercial arbitration, and resolution of trade disputes before the WTO.

[4]Prof. Kaufmann-Kohler is a Partner at Lévy Kaufmann-Kohler and Professor at the University of Geneva. She has acted as counsel or arbitrator in over 200 commercial, investment, and sports arbitrations. She is founder and director of the Geneva LLM in International Dispute Settlement (MIDS), and Co-founder of the Foundation for International Arbitration Advocacy (FIAA).

[5]Paul Cohen and Sophie Nappert, The March of the Robots, GLOBAL ARBITRATION REVIEW(Feb. 15, 2017), http://globalarbitrationreview.com/article/1080951/the-march-of-the-robots.

[6] Jose Maria de la Jara, Alejandra Infantes, and Daniela Palma, Machine Arbitrator: Are We Ready? KLUVER ARBITRATION BLOG (May 4, 2017), http://kluwerarbitrationblog.com/2017/05/04/machine-arbitrator-are-we-ready/.

[7]Terry Maroney’s research focuses fundamentally on the role of emotion in law. She was chosen as a Fellow of the Center for Advanced Study in Behavioral Sciences at Stanford University to pursue a theoretical and empirical investigation on the role of emotion in judicial behavior and decision-making. Her scholarship on judges’ emotions — including “Angry Judges,” “Emotional Regulation and Judicial Behavior” and “The Persistent Cultural Script of Judicial Dispassion” — has been extensively read by both judges and scholars of judicial behavior.

[8]Paul Cohen and Sophie Nappert, The March of the Robots, GLOBAL ARBITRATION REVIEW (Feb. 15, 2017), http://globalarbitrationreview.com/article/1080951/the-march-of-the-robots.

Introduction

According to WIPO, Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court[1].

According to CIARB, Arbitration is a non-judicial process for the settlement of disputes where an independent third party, an arbitrator, makes a decision that is binding[2].

From the above definitions, it is clear that arbitration is a process for dispute resolution where the dispute is not resolved by a judge but a neutral third party i.e. arbitrator. Further the arbitration rests on the existence of an arbitration agreement whereby which the parties agree to settle their dispute, present or future, via arbitration. Prima facie, it’s a form of consultative process whereby which both parties enter into a neutral arbitration clause/agreement after consultation and negotiations, whereby they decide to resolve their dispute via arbitration where both the parties will have a say in the appointment of Arbitrator.

Problem

Lately the trend is rising whereby which the companies, both private and PSUs, are taking unfair advantage of their position, by drafting standard one sided, company favoring, contracts when they need to engage services of a contractor and in the said contract, they include an unreasonable arbitration clause in which unfair advantage is given to the company with respect to the appointment of arbitrator as the company makes itself the sole appointing authority and then the contractors, because of their no bargaining power, are forced to sign such one sided contracts.

The effect of such contracts is that, the company tend to become an unreasonable boss instead of being a consumer obtaining services of the contractor, and then the circus begins.

The contractor performs his services and asks for his fees by raising invoices. The company start ignoring the contractor and keep on delaying his payment. Because of this, dispute arises and in order to resolve it, the contractor takes the route of dispute resolution mechanism as is provided in the contract and that’s when the contractor realizes that the contractor does not have any kind of say in the appointment of arbitrator and everything is vested in the hands of company. In such situation, since the contractor deem himself to be bound by the agreement, he starts the process of dispute resolution in accordance with the arbitration clause in the contract, by sending a notice to the company asking for the appointment of arbitrator. And once again, the company did not pay any heed to the contractor’s notice asking for appointment of arbitrator and to the surprise of contractor, he lands in a situation, where the company did not initiate the arbitration process and the time fixed for initiation of arbitration proceedings is lapsed. The contractor lands in an unforeseen situation where his problems don’t seem to end.

In such situation, what should a contractor do? Is he left totally remediless or is there something he can do to get the redressal of his grievance?

Fortunately, there’s still something that a contractor in this situation, can do.

Solution

Section 9 & 11 Arbitration and Conciliation Act, 1999

The first thing which a contractor can do is to file a Section 9 Arbitration and Conciliation Act, 1999 petition for interim relief whereby which he can ask the court to grant an order to require the company to deposit the disputed amount in court or an order for restraining the company from disposing off its assets till the time the dispute is resolved. This interim relief will be valid for 90 days as after the 2015 amendment, time limit of 90 days has been added in section 9 which stipulates that if the interim relief is granted before commencement of arbitral proceedings, the arbitration must commence within 90 days.

After getting interim relief, the contractor will have to file a petition under section 11 of Arbitration and Conciliation Act 1999 for the appointment of arbitrator. Section 11 provides that if there is a specific procedure in the agreement for the appointment of arbitrator and the said procedure is breached, a party can move to the court for the appointment of an arbitrator. But since the company did not participate in the appointment of arbitrator even after service of the notice, chances of its cooperating here in section 11 proceedings or during the arbitration if the court appoints an arbitrator under section 11, are very slim which will render the interim relief obtained under section 9 otiose.

Further one can argue that once the arbitrator is appointed under section 11, the arbitration will take place irrespective of the fact as to whether the company participates or not as if it does not, the arbitrator will pass an ex parte award. This argument is perfectly valid but my concern is, even if things happen according to this argument, there are still plenty of ways for the company to challenge the said ex parte award, obtained by the contractor, and stall the entire process of its execution which will create further worse condition for the contractor than it was in the very beginning as now the contractor will end up losing some years of his life and huge amount of legal fees which he had spent in order to conduct the arbitration proceedings and obtain the arbitral award and now, after all that, he is again at square one.

So, is there any other option whereby which the contractor can save his time, money and make sure that his dispute when gets resolved, it should be once and for all? Yes!

Civil Suit

Yes, a civil suit in the presence of an arbitration clause/agreement. To take a different position, in my opinion, the contractor can also avail the redressal of his grievance by way of a civil suit.

In my opinion, the contractor should take recourse to CPC and file a civil suit in the competent civil court to seek the relief to his grievances and further if the dispute is with respect to the withholding of payment, the contractor should file a summary suit.

Suit

Now with the filing of civil suit, the contractor can also file an application under order 39 rule 1 & 2 for the grant of interim relief in one go. The moment contractor files a suit, the company will file a section 8 (Arbitration and Conciliation Act, 1999) petition and in such situation, the contractor should contest the said section 8 petition claiming that the entire arbitration clause/agreement is void ab initio by pleading the grounds as are mentioned in the contract act, which are applicable in the given situation, which renders the contract void ab initio.

Word of warning though, at this stage, do not contest the validity of entire agreement as in a recent judgment of Sasan Power Ltd. vs North American Coal Corporation India Private Ltd.[3], SC has clarified that during section 8 proceedings, the court cannot go into the question of validity of entire agreement and can only look at the question of validity of arbitration clause/agreement i.e. whether the arbitration clause/agreement is null and void, inoperative or incapable of being performed?

Now, that contractor is contesting the validity of arbitration clause/agreement, he should take another ground that the company has drafted a self-serving contract, which is clear from the fact that the arbitration clause in the contract, which is drafted by the company, makes the company, the sole authority to appoint the arbitrator, and when in accordance with said contract’s arbitration clause, the contractor sent a notice invoking the arbitration, the company neither respond to it nor initiated the arbitration proceeding and now by way of section 8 petition, it’s trying to manipulate the court to take advantage of its breach of a contract which the company drew itself in its favor and it’s a settled principle of law that a party which drafts a contract cannot take the advantage of its own breach or of the vague provisions of the contract so drawn by it and in such situation the benefit will always go to the non-drafting party, which in this case is the contractor.

If these grounds are pleaded right, the chances of getting a relief from the court is bright which is better than feeling remediless and being a victim to the wrong doings of the errant companies which employs the services of contractor and then refuse to pay their fees.

Further, if the court dismiss section 8 petition filed by the company, the contractor might end up securing some interim relief in accordance with the relief prayed for in the plaint i.e. the court will either order the company to deposit the disputed amount in the court or order the company to not to dispose of its asset till the final adjudication of the dispute.

Summary Suit

In case that the dispute is with respect to the withholding of payment even after issuance of the invoices to the company, the contractor can file a summary suit in the court of competent jurisdiction.

When a summary suit is filed, the company will be required to file a leave to defend but the company will file section 8 petition and the moment the company files section 8 petition, it will lose its right to file leave to defend and the contractor, on that ground can avail the decree in his favor.

Bottom line

The above opinion prescribes a remedy for the contractors who think that they are left remediless by the errant companies which refuse to pay them their deserved fees and then hold the one-sided agreement, which the contractors were forced to sign because of no bargaining power of them, over their head.

Now, the contractors in such position does not have to worry anymore and when faced with such situation, they should consult a lawyer and get the process started.

Lacuna

The above discussion throws light on a glaring lacuna in Code of Civil Procedure (CPC) which should have been fixed by now via an amendment but not fixed yet.

The lacuna is that it is a settled law under section 8 of Arbitration and Conciliation Act that if there exists a contract in which the dispute resolution mechanism is provided as arbitration and one party in breach of same, files a civil suit instead of invoking the arbitration or in contravention of arbitration clause/agreement then the other party should file a section 8 petition to refer the dispute to the arbitration but the condition is that the said section 8 petition must be filed before filing first pleading/statement on claim/Written Statement in the court and if the section 8 petition is not filed at the very first instance then the party loses its right to get the dispute referred to the arbitration. Now, the situation is really perverse when it comes to summary suits as in that case, the condition on defendant is that he has to file a leave to defend within 10 days, at the first instance in order to get a chance to defend the suit and if the defendant fail to do same, he lost the opportunity to defend the suit and the said suit be decreed against him.

Now in cases where a summary suit if filed on the basis of a contract which includes an arbitration clause/agreement and the defendant files a section 8 petition in the summary suit, he loses his right to defend the suit and if he files a leave to defend, he loses his right to get the dispute referred to arbitration.

Solution

The parliament should take note of this lacunae and pass an amendment whereby which it should add a new proviso to order 37 rule 3(5) stating that “if a summary suit is filed on the basis of a contract and in the said contract, arbitration clause is provided for the resolution of disputes then the filing of section 8 petition by the defendant at first instance instead of filing a leave to defend will not disentitle him from filing a leave to defend. The court should first consider the section 8 petition in such cases and if the court rejects section 8 petition, it is then that the defendant be given a chance of 10 days to file his leave to defend.”

[1] http://www.wipo.int/amc/en/arbitration/what-is-arb.html

[2] http://www.ciarb.org/dispute-appointment-service/arbitration/what-is-arbitration

[3] SLP (c) No. 33227 of 2015

In this article, Rishabh Saxena of NUALS does an analysis of Arbitration procedures and practices in India.

Arbitration proceedings are not in complex in nature unlike in regular courts, it’s pretty simple and easy. A party commences an arbitration proceeding by issuing a notice in written to the other party of its intention to refer the matter to  arbitration. The respondent replies to the arbitration by filing answer against the arbitration claim within stipulated time period specifying relevant facts and available defences against the claim. Unless otherwise agreed by the parties, Arbitration proceedings are deemed to be commenced on the date on which the respondent receives such notice from the claimant. After the selection of Arbitrators, parties meet in persons for the conduct of the hearing in front of arbitrators. Lastly, after the examination of witnesses and evidences. The arbitrator, in concluding stage, gives ‘award’ which is binding in nature. Conduct of Arbitral proceedings are provided in Chapter V of Arbitration and Conciliation Act, 1996.

Limitation on commencement of arbitral proceedings

The Limitation Act, 1963 applies to all proceedings under Arbitration and Conciliation Act, 1996 as it applies to proceedings in Indian courts, except to the extent clearly keep out by the Arbitration and Conciliation Act. Any proceeding under arbitration commenced after the limitation period (three years from the date on which the cause of action arose) will be time-barred.

Equal treatment of Parties

Both the parties should be treated equally and equal opportunities should be given to them to be heard and to present their case.

Rules of procedure in arbitration

There are no such rules on the procedure for conducting the arbitration proceedings. The parties are free to agree on the procedure to be followed by the arbitral tribunals in conducting its proceedings. If no such procedure agreed by the parties, the tribunal is authorised to conduct the proceedings in such a manner it considers appropriate.

The arbitral tribunal is expressly not bound to apply any provisions of the Civil Procedure Code 1908 and the Evidence Act, 1872. If under arbitration agreement it is mentioned, the arbitration is to be administered by arbitral institute, the rules of that institution become part of the arbitration clause by implication. The rules of arbitral tribunal includes power to determine the admissibility, relevance, materiality and weight of any evidence.

Place of arbitration

The parties are free to agree on the place of arbitration as per their convenience. In case failed to agree upon place of arbitration, the arbitral tribunal shall determine the place of arbitration considering the circumstances of case including convenience of the parties.

Language of proceedings

Parties are free to agree upon the language to be used in the arbitral proceedings. If the parties fail to agree on any language then arbitral tribunal decides  which language to be used in the arbitral proceedings.

Statement of claim and defence

The claimant have to state the facts supporting their claim, raise the points at issues and relief or remedy sought to the respondent within the time period stipulated by the parties or determined by the arbitral tribunal and the respondent replies filing an answer against the arbitration claim of claimant that specifies the relevant facts and available defenses to the statement of claim.

A party can amend or supplement his claim and defence throughout arbitral proceedings, unless the tribunal considers it unsuitable to allow the amendment or supplement in respect of the delay in making it.

Hearings

The parties shall be given sufficient prior notice before any hearing and of any meeting of arbitral tribunal for the inspection and verification of documents, goods and property. The arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials:

Arbitration and Conciliation (Amendment) Act,2015 requires the arbitral tribunal at least, hold oral hearings for the presentation of evidences or for oral arguments on a day-to-day basis, and not grant adjournments unless reasonable cause is given.

All documents, statements and required information supplied, and application made to the arbitral tribunal by the one party shall be communicated to the other party and any evidentiary document or expert report on which an arbitral tribunal can rely in making it decision shall also be communicated to the parties.

Default of a party

If claimant without providing sufficient cause fails to communicate his statement of claim to the tribunal, the arbitral tribunal can terminate the proceedings with immediate effects. But it is not the same in case of respondent if he fails to communicate his statement of defence, the arbitral can continue the proceedings without treating that failure in itself as an admission of alienations by the claimant.

Evidences

The parties are free to agree on the rules of gathering and submitting evidences. If they are not getting agree on these matters, the tribunal has the discretionary power to determine how evidence may be gathered and submitted to it. The arbitral tribunal can take both documentary and oral evidence on record. While considering evidence tribunal required to observe the fundamental principle of natural justice.

Court Assistance

Local courts can assist tribunals in arbitration proceedings. This includes the power of providing interim order and appointment of arbitrator if the parties are unable to agree on the appointment of arbitrator.

If a party makes any default, refuses to give evidence or guilty of contempt of arbitral proceedings shall be subject to penalties or punishment by the order of the court on the representation of arbitral tribunal.

Third party

In India, the question is yet to be answered whether the non signatory party bound by arbitration agreement or not. Arbitral tribunals and courts take different methods to bound non signatory parties to an arbitration agreement like “group of companies” doctrine where a  clear intent to bind such non signatory parties. However, in Indowind Energy Ltd V. Wescare (India) Ltd (2010) the Supreme court of India held a “third party not a signatory to an arbitration agreement would not be bound by such agreement, even if some sort of nexus exists between third party and transactions of questions.”

In this article, Karan Singh of Jindal Global Law School discusses Sports Arbitration in India.

Introduction

Sports is growing rapidly in India. Sports is regarded as one of the largest industry globally. The game is changing at a rapid speed. It has become a multi-million dollar industry globally. In India as well, sports is coming into existence these days. People are showing their interest in this field too. Sports is becoming more of a business and so many people are earning profits from it. Not even spectators, even players are earning so much from sports. Due to new initiatives in India such as Indian Premier league, Hockey India League, Indian badminton league, Pro Kabbadi League etc, the rate and GDP in sports sector is increasing. The sports industry in India has increased from Rs.43.7 billion in 2013 to Rs. 48 billion in 2015. India has moved forward from a single SportsNation to multiple sports nation. India is still witnessing a boom in sports sector helping the players and the sports business to take initiative.

As the sports is growing too fast in India, all the players and spectators do have disputes between each other. Either the dispute is between the players or between the committees and players. In every industry disputes arise but how do disputes in sports is solved. This question is not common in India as no-one knows about the sports law that exists in India. Even in sports, there is rules and regulation which should not be violated. As you have rules to do business, or you have rules for buying a property, we also have rules for sports in India.

Sports law in India can be related to anything which involves Sports in it. This can be contracted in sports, injuries in sports, harassment in sports, drugs related issues in sports, etc. In India, there are so many governing bodies that govern the sports law like

• National Sports Policy, 2001
• Sports Law and Welfare Association of India
• Sports Authority of India
• The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act
• Youth Affairs And Sports Department Of Sports

These government authorities take care of the law and make new laws. Also, these government bodies promote sports in India and provide a good infrastructure for sports.

Making rules and regulation is a mandatory thing to do by the government but following it can be difficult. So, what is the solution if there is a dispute arises in sports? Who will resolve the dispute in sports? These question will be covered in this article.

Sports Arbitration

Sportsmen and the spectators do have a right to solve their disputes if they feel that their rights are violated. People related to sports can go to court if any disputes arise between them. But it is not possible for them to stand in the queue of the court which can take years to resolve the case as they have very limited time in their career. If they solve their disputes in the court then they won’t be able to concentrate on their career. This can be a challenge for sportsman and spectators.

To solve the disputes as earliest as possible International Olympic Association (IOA) directed by the International Olympic Committee to establish an Indian Court of Arbitration for Sports (“ICAS”). Indian Court of Arbitration for Sports will consist of 8 retired Judges Of higher judiciary. All the disputes arising in the relation of sports will be decided by the ICAS.

Indian Court Of Arbitration For Sports (ICAS)

This governing body was set up in 2011 under the Chairmanship of Dr. AR. Lakshmanan, former Supreme Court judge and former Law Commission Chairman to resolve all the sports related disputes in India. Other 7 members of the ICAS are Justices M R Culla, R S Sodhi, B A Khan, Usha Mehra, J K Mehra, Lokeshwar Prasad and S N Sapra. This step to setup an Alternate dispute Centre for the people related to sports is a step towards a development in the area of Sports Law. This development is effective in resolving disputes at the earliest possible. While deciding the cases related to sports, the judiciary should keep in mind that the lifespan of sportsman is very limited and they can not afford to lose time in the long queue of the Litigation courts. There should be an alternative for that. Indian Court of Arbitration For Sports is the first ever alternative for the sportsperson to get their dispute resolved at the earliest.

The Importance of having ICAS

Fast resolution: ICAS helps to hear and resolve the dispute on a fast pace which can be beneficial to the sportsperson. Everyone knows that sportsperson has a very limited career in their lifetime and if any dispute arises in between their career then it can be a problem for them and for their career. So, to resolve the dispute as earliest as possible ICAS comes in the role.

Better than civil courts in deciding: ICAS is better than civil courts when deciding for a dispute. In many cases, civil courts were favoring the athletes because of the arguments given by their advocates. In one of the cases related to doping, the court dismissed the argument of IAAF that the athlete is an amateur and did not have any trade and therefore could not be any restraint. But the court held that any action that infringed her right to compete amounts to a restraint of trade. Hence, setting up an alternative method like ICAS can help in solving the cases with accuracy.

Chance of Appeal: The international court of arbitration for sports(CAS) is is the sportsman and speculation on international level only. If anyone wants to appeal the decision given by Doping agency then they have to appeal to the CAS only. But only the international sportsperson or spectators can appeal. National level players or State level players cannot appeal to the CAS. ICAS allows every sportsperson and spectators to resolve the dispute. This gives power to people to appeal if the decision is not correct.

Mediation: It can also help parties solve their disputes on an amicable basis through mediation when this procedure is allowed.

Conclusion

Awareness about the sports law is very limited in India which is having the adverse effect on the sports in India. Many Sports Person is unaware of the rights and law of the sports they play. CAS does have a right for the sportsperson to appeal within limited time. As the sportsperson is completely dependent on the Federation they are lacking much information as Federation do not tell the Sportsperson about their rights. Sports Arbitration is a new concept in India and should be promoted in every sport. Having a tribunal that is especially for Sports can be beneficial for a sportsman and spectators in resolving disputes. ICAS can be effective in resolving the disputes and giving a chance of appeal to the athletes. However, in India, as the sports is emerging through many leagues like IPL, PKL etc government should do something for sports in it and promote it. Sports business is increasing but what about the judicial help in sports. Judicial help in sports is very important and should be taken care by the government. It is not because sports is there it is because sports is increasing our GDP and also athletes are working hard for their country. Athletes of India should have a right in every way especially from Judiciary side.

In this article, Karan Singh of JGLS discusses whether it is illegal to make beer or wine at home for personal consumption or not.

Introduction

Alcohol Law in India is strict in many ways. Alcohol is included in the state list which means that the law of each state will be different in India. Alcohol is something which you can consume after attaining certain age in India. Also, if you want to sell the alcohol in public you have to get a license.

In some states in India alcohol is totally banned and in some states, the drinking age is more than 25 years. The rules and regulations differ from state to state. States, where there is a total ban on alcohol, are Bihar, Gujarat, Lakshadweep, Manipur, and Nagaland. These states are the dry states and alcohol is illegal without a permit. In Delhi, the legal age to consume alcohol is 25 years.

Homebrewing is brewing beer or making wine for personal use or for non-commercial purpose. Beer or wine has been brewed non-commercially for 7000 years in Egypt and China. People make beer and wine because of many reasons. They make beer and wine to avoid the higher cost of buying commercially. Some make beer and wine to adjust its taste according to one’s own preference. They can create drinks that are not available in the market. Making a beer or wine is an art. Some people love to make beer for themselves. People can find lots of information on how to make it. Below is the procedure to make wine or beer, if you want to make it for personal use.

But is it legal to make beer or wine at home for personal consumption in India?

YES, it is completely Legal to make wine or brew beer at home in India for personal use except in states where it is banned like Bihar, Gujarat, Lakshadweep, Manipur, and Nagaland. No law states in India that you cannot brew beer or make wine at home but this is only for personal use and not for commercial purpose.

You can make wine or brew beer but should consider some points:

• If you are making wine or beer then you should not sell it or make any kind of profit.
• It should be strictly for personal use only.
• There is a limit to how much you make it. More than 50 litres can land you in trouble as a quantity more than 50 litres cannot be considered for personal use.
• While making or storing the alcohol, you should be careful that your wine or beer does not turn poisonous.

Homebrewing of alcohol – A comparative study between India and the European countries

United States

Making beer and wine at home in the US was legalized in 1978 for the first time since prohibition made it illegal in 1919. In 2013, Mississippi and Alabama last two states passed the law to permit beer brewing at home. In all 50 states of US passes the law to permit beer brewing at home. Now In US people can make wine or beer at home. The hobby of making beer and wine at home has been expanding in recent years. More than 1 million people make beer or wine at home once a year.

United Kingdom

Legal In unlimited quantity for domestic consumption only. If one wants to sell the fermented products then have to pay duty and registration with HM Revenue and Customs.

Can a Pub In Delhi Brew Beer or Make Wine for Selling?

Yes, a pub in Delhi can brew beer or make wine. These beer brewing on small scale is called microbrewing. Any pub can brew beer for making a profit out of it. It is very important to improve the taste of the beer or else no one will like it. It should be better than the bottled beer and should be less costly. For making a microbrewing one has to buy a machine which can be costly. Microbrewing does have a separate licence and these pubs have to obtain that licence before starting the microbrewing. This licence is obtained from the excise department. Microbrewing licence is not given in every state of India. It is provided in some states like Delhi, Haryana, Karnataka and Maharashtra. The licence is given for the sale of the beer, or for export or supply outside India as well.

Why brewed beer tastes better than the bottled beer? India’s first commercial microbrewery at Gurgaon’s Galaxy Hotel and Spa, where the brewmaster works explains that “Creativity is the key component here. Industrial brewers are driven by a mass-merchandising mindset where profits matter the most”.

This is the reason the government is promoting beer brewing as it is increasing the GDP through taxes. Also, it is increasing the employment in this section. Licenses are given to the companies by the excise department according to their state rules.

If the preparation causes nuisance to neighbours

If you are planning to make wine or brew beer, then you should take precautions.These precautions can be minor but can land you in jail or in trouble. We have to know the law before making beer or wine as alcohol is something that is not promoted in the society. You can to take care that no one around is getting disturbed by your brewing beer. Which law will stop you from making wine or beer:

Section 268 of IPC

A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
This section simply states that if anyone does any act like making beer or wine and because of its smell, the neighbor is getting affected then it will come under Public nuisance.

Section 304A of IPC

Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
This section focuses on the act of a person because of which it causes death by negligence. Brewing beer or wine can be dangerous as alcohol is a flaming beverage. And it can be possible because of your negligence it catches fire and hurt someone.
Home made beer or wine can easily turn poisonous in very less time and if anyone gets hurt, all the liability is on you.

In hotels or pubs where they make wine or beer take extra precaution as this can be a problematic situation if anything goes wrong. They take precaution for the smell of the wine/beer, precaution for fire etc.

Excise Duty on homemade beer or wine

Excise Duty or rules deal with any kind of intoxicants in the alcohol industry, for which the tax is taken for production or selling of alcohol. Generally, this is only done for bulk orders of alcohol and not for a little quantity of alcohol made at home. This is done to the beer made in a pub as well but no tax is applied on the beer or wine which is made at home. The taxes are calculated on the alcohol by volume which can be monthly or weekly.
Excise duty is not applied on the alcohol that has the alcoholic strength below 5% and is homemade. As the excise duty is applied on the bulk order only then the homemade wine or beer would not attract tax or duty. If the wine or beer is more than the limited quantity then action can be taken against the person.

The Amount of spirit one can stock up at home according to States in India:

Delhi

No individual can stock more than 18 litres of wine, liquor, beer, cider and alcopop and 9 liters of Indian and foreign liquor(whiskey, rum, gin, vodka) at home. Those travelling to another state can carry only 1 liter of any liquor.

Punjab

The State allows to stock only 2 bottles of IMFL, 1 case of beer, 2 bottles of imported liquor, 2 bottles of a country made liquor and a bottle of brandy. If you want to stock more bottles then you can obtain an L-50 permit which has an annual fee of Rs.1000 and lifetime fee of Rs. 10,000.

Haryana

An individual can stock up to 6 bottles of country liquor, 18 bottles of IMFL, 12 bottles of foreign liquor, 12 bottles of beer, 6 bottles of rum, 12 bottles of wine and 6 bottles of vodka. If you want to stock more then you can obtain a L-50 permit which has an annual fee of Rs.200 and Rs 2000 for the lifetime.

Rajasthan

An individual can stock up to 12 bottles or 9 liters of IMFL.

Himachal Pradesh

An individual can stock up to 36 bottles of whiskey and 48 bottles of beer per person. For more, the L-50 permit can be obtained.

Goa

Under this State Law, 12 bottles of IMFL, 24 bottles of beer, 18 bottles of country liquor, 6 bottles of denatured spirit. Goa State Law is strict, punishment includes imprisonment which may extend to 7 years.

Conclusion

In India, home brewing beer and making wine is legal but storing it can be difficult. Storing beer and wine is prescribed under the State law of different states. You should take care of the law before storing it at home. Homebrewing can be difficult for a common man to make in India as it takes time and patience. One has to wait more than a year to make a wine or beer. But homebrewing should be promoted in India to avoid high taxes on alcohol and to get the taste that one needs. Also, home brewing will help to get the fresh and diverse flavour of the beer and wine. Even in pubs, the sale of brewed beer is more than the bottled beer as it is fresh and safe for health. Bottled beer is unreliable as the quality matters. If you want to drink beer for relaxing then you should go for home-brewed beer as it is much better in quality than bottled one.

In this article, Karan Singh of JGLS discusses Compulsory Licensing of Patents in India.

“There’s this thing called compulsory licensing law that allows artists through the record companies to take your music at will without your permission”– Prince

Introduction

This article is an explanation to Compulsory Licensing dealt under Intellectual Property Rights. Intellectual Property Rights refers to the legal rights granted with the aim to protect the creations of the invention. These rights include Industrial Property Rights i.e industrial designs and trademarks, or compulsory licensing under patent act and copyright i.e right of the author or creator. Some related rights are also there like rights of the performers, producers and broadcasting organisations.

Compulsory licensing comes under The Patent Act, 1970. Patents are granted to promote new inventions which is a product or a process that provides a new way of doing something or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.

What is compulsory licensing

Compulsory licensing is a measure which is provided by the patent act. It ensure that the patentee do not misuse their patent rights. Compulsory Licensing is given only for public health and nutrition. Simply speaking, it is a license given to a 3rd party to manufacture, use, or sell the product or use the process that provides a new way of doing something which has been already granted patent without the permission of the owner. This is done for the public health, or in national emergency and health crisis. As this license works against the owner of the patent there are conditions that are given by the government to be fulfilled.

For example: If a drug that is already patent is available at a very high price and poor people of the society can not buy it, then government can give compulsory license to the other pharmaceutical companies to make the same drug at a low rate. This is done so that people can have access to that drug at cheap price also.

Status of Compulsory Licensing in India

Compulsory Licensing was first given to a company in 2012. Under the Indian Patent Act, conditions for granting of compulsory licensing are given. The conditions which need to be fulfilled in order for a compulsory license to be granted are given under section 84 and 92 of the Indian Patent Act, 1970. If any company wants a compulsory license of any product then they should follow these two sections. These sections are explained below:

Section 84 of Patent Act, 1970

As per this section, any person who is interested or already a holder of the license under the patent can make a request to the controller for grant of compulsory licence on patent after three years from the date of grant of that patent on the existence of conditions mentioned in the section 84 of the patents act, 1970. Compulsory licence will be granted on the following grounds:

• That the reasonable requirements of the public with respect to the patented invention have not been satisfied or,
• That the patented invention is not available to the public at a reasonably affordable price or,
• That the patented invention is not worked in the territory of India.

These are the few grounds on which the compulsory licence will be granted. If the product is not available to the public at a reasonably affordable price, if the public is not satisfied with the patented invention or if the product is not available in the territory of India.

Section 92 of Patent Act, 1970

This section deals with other grounds on which the compulsory licence will be granted. These are special provision for compulsory licences on notifications by central Government. Government grants compulsory licences in the following grounds:

• For exports, If the product is used for exporting to another country then government can grant licenses but this is only in exceptional circumstances.
• If there is national emergency, this is the case where the product is needed on an urgent basis like in war or in health crisis. For example, licence is granted to the companies of manufacturing guns at the time of war or licenses granted to drug companies to manufacture the patented drug at the time of health crisis.

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Advantages of Compulsory Licensing

• Compulsory licence stops the abuse of Intellectual property rights. It gives reward to the owner of the patent keeping in mind the limitation for the owner. It helps in rewarding the patentee for their invention and making the product available to the society at reasonably affordable rate. Compulsory licensing sometimes becomes unavoidable as to save lives of the populace by ensuring accessibility of the products at affordable rate. It also helps to break the monopolies and cartel which are some of the abuses of patent rights.
• It is very important for the government to keep a control over the use of dominant position of the companies. Compulsory licensing will help in Indian industrial sectors development. The size of the Indian market is one of the biggest in the world, compulsory licensing will help to make the products more accessible to public and it will beneficial for public welfare.
• Sometimes the patentee of the products delays in development of important technology which give rise to a deadlocks between the improver and the original patentee. Compulsory Licensing can be used as an effective tool to resolve these deadlocks by pressurizing the original patentee to come to the terms of an agreement with the improver. It can therefore help in generating rapid technical progress.

How compulsory licensing is helping industries to grow

• Availability of goods and services at affordable prices to the developing and underdeveloped countries.
• The local industries which obtain compulsory license for the patented goods can produce employment for thousands of workers and therefore reduce unemployment.
• In order to advance in science and technology, underdeveloped countries need maximum access to intellectual property of advances nations.
• More than 80% patents in developing and underdeveloped countries are owned by citizens of developed countries. So, Compulsory licensing will help the underdeveloped countries to have access to the patented products.

The First Case of Compulsory Licensing in India

Natco Pharma Ltd. is the first company to file for compulsory licensing for producing generic version of Bayer’s Corporation’s patented medicine Nexavar, used in the treatment of kidney and liver cancer. In India, the patent office in 2012 granted the compulsory license to Natco Pharma for the same drug. It was argued by the Natco Pharma that the public does not have access to this drug at affordable price and the patented invention was not worked in India. All the 3 conditions of sec 84 was fulfilled that,

• The reasonable requirements of the public were not fulfilled
• That it is not available at an affordable price
• Patented invention was not worked around in India.

So, Natco applied for the compulsory license under section 84 of the Patent Act for Bayer’s patented drug Nexavar. Nexavar was available by the Bayer Corporation for $ 6299 for a month’s course. Natco Pharma proposed that it the same drug will be available by the name of Sorafenib Tosylate for just $196. It was proposed that it will benefit the whole population of India which is in millions. The government decided for the general public health and granted the compulsory license to the Natco Pharma.

Trade Related Aspects of Intellectual Property Rights (Trips)

The Doha Conference 2001 of WTO adopted declaration that realizes the importance of public health as compare to IPR. It was decided in that conference that the countries have right to protect public health and provide cheap medicines. It was also decided for all the members that rights are also given to all the countries to decide the right under what conditions it can use compulsory licenses.

As India is a member to TRIPS, it may be noted that India has a well established TRIPS compliant legislative, administrative and judicial framework to safeguard IPRs. Under the Doha Declaration on the TRIPS agreement, each and every member has a right to grant compulsory licenses on the grounds that is mentioned in the Act. India can grant such licenses and have a right to grant compulsory licenses under certain circumstances such as public health emergencies to ensure access to affordable products.

Conclusion

Compulsory licensing is important for a underdeveloped or developing countries. As, the resources which are not available in the a particular country can be a necessity for that country. Medicine is a necessity for the society and if a patented drug is available in a country but is very expensive that a normal person can not afford that drug then the government of that country has to do something for the people who can not afford it. Here, the compulsory license role comes in. Compulsory licenses will make the similar product available to the people who can not afford that drug.

TRIPS agreement for the public health was the first step by WHO to protect the people from sickness and diseases which is common in countries but the medicine is not available.

In this article, Parth Sarthy Kaushik discusses rules governing the removal of Independent Directors and the need for reform.

The role and significance of independent directors has been formally recognized by the Companies Act, 2013. The law, with the aim to strengthen the corporate governance norms, details the obligations of independent directors which includes, inter alia, the duty to look after the interests of minority shareholders and scrutinizing the performance of management by providing an objective opinion on the strategy and functioning of the company.

JJ Irani Committee on Company Law (2005) observed that independence of the board of directors from external influences is critical for effective corporate governance and an independent director would play a key role to balance the interests of various stakeholders. The rationale behind formalising the institution of independent directors arises from the fact that non-independent directors (who are appointed by majority shareholders/promoters) represent the interests of majority shareholders and their approach is dictated by such interests. Therefore, independent directors are considered quint-essential in bringing objectivity to the governance process in the larger interests of the company by taking into account the interests of all stakeholders, particularly the minority shareholders. Thus, the Companies Act, 2013 casts an onerous burden on independent directors to discharge their fiduciary duties in addition to the obligations mandated by the statue.

However, in light of the on-going Tata boardroom battle, which has resulted in the ouster of a number of independent directors, serious concerns have been raised on the vulnerability of the institution of independent director and the need for their protection against a vindictive management. In the present context, it is very crucial to ensure that independent directors are treated fairly so that they can perform their duties without the fear of repercussions from the majority shareholders.

Duties and Obligations of Independent Directors

Section 149 (8) of CA, 2013 lays down that the independent directors are required to follow the professional code of conduct as specified in Schedule IV of the Act. The Schedule dictates that independent directors shall discharge their responsibilities in a professional and faithful manner. It also lays down the duties and obligations of independent directors to promote investor confidence, secure the interests of minority shareholders and ensure compliance with applicable laws.

Section 149(7) casts a duty on an independent director to make a self-declaration, prior to their appointment stating that he/she meets the criteria prescribed for the position on which they are being appointed. Further, Section 173(3) provides that any decision taken by the board in the absence of independent directors is required to be circulated to all directors and cannot be implemented without the approval of at least one independent director.

Therefore, the Companies Act, 2013 makes certain that any person appointed as an independent director is qualified to identify any mismanagement in the company, making the role of independent directors very critical in safeguarding the interests of a company. This mandates independent directors to exercise a high level of commitment and due-diligence in the discharge of their statutory obligations.

Present Framework for Removal of Independent Directors

The process of removal (and appointment) of independent directors is in the hands of majority shareholders. Section 169 of the Companies Act, 2013 lays down that an independent director can be removed by way of an ordinary resolution requiring a simple majority (at least 50%). This essentially means that independent directors can be removed on the whims of controlling shareholder (promoters), and thus makes it untenable for independent directors to perform their duties in an independent and honest manner which resultantly defeats the purpose of their appointment in the first place.

Although CA, 2013 provides that the Independent director sought to be removed, shall be given a reasonable opportunity of being heard. The absence of any rule requiring a sufficient cause for removal effectively makes this requirement redundant. It is also interesting to note that in the case of re-appointment of an independent director, the shareholders are required to move a special resolution requiring a special majority (at least 75%).These lacunae in the framework governing the functioning of independent directors call for urgent reforms in order to mitigate the influence exercised by the majority shareholders in the process of appointment/removal/re-appointment of independent directors.

TATA Boardroom Battle and Case of Nusli Wadia

Mr. Nusli Wadia, who had been an independent director (in some of Tata Group Companies) was removed by Tata Sons (which is a dominant shareholder) after Mr. Wadia voiced his support for Mr. Cyrus Mistry, who had been thwarted from the position of Chairman of Tata Group. Under the present framework, Tata Sons has every right to seek removal of any director on board including an independent director. But the manner and surrounding circumstances which lead to the ouster of Mr. Wadia raise a very important question i.e. whether independent directors be able to discharge their duties while questioning management and ensuring good governance in the company? The emphatic answer is, No.

Although, in the case of Tata Group, the cause for the ouster of independent director is the support shown for the ousted chairman who does not enjoy the support of majority shareholders but the larger concern is that, If independent directors can be removed at whims and fancies of controlling shareholders, then their role will be reduced to that of ‘yes men’ which would prove counterproductive to the objective sought to be achieved by the formalisation of the role of independent directors under the Companies Act, 2013.

Suggestions for Reforms

The role of an independent director is that of vigilant gatekeeper of the company activities. In addition to their obligation to monitor the actions of company management, they also have a fiduciary duty towards all the stakeholders (including employees, and minority shareholders). Therefore, independent directors must be truly independent of management.

The following suggestions are to ensure that independent directors remain outside the influence of controlling shareholders and are able to perform their duties without any bias:

1. Appointment of some of the independent directors shall be made by minority shareholders and majority shareholders shall not be allowed to vote in the election of such independent directors. Furthermore, on approval of appointment by minority shareholders, the majority shareholders shall be precluded from the process of removal of such independent directors for a specified time period;
2. Both majority shareholders as well as minority shareholders shall elect the rest of independent directors based on the system of proportionate voting in the proportion of their respective shareholding in the concerned company; and

Sufficient cause must be shown for the removal of an independent director which should be explicitly defined by the company in its bye-laws and removal should be approved by a special majority (at least 75%).

Conclusion

The Companies Act, 2013 imposes a high level of responsibility on independent directors and makes them liable in cases of failure. Further, independent directors are expected to be independent of the management and act as the trustees of minority shareholders.  This essentially requires independent directors to be fully aware of the decisions taken by the company management and raise red flags wherever any mismanagement is detected. But the scheme of the Act fails to protect independent directors if they fall out of favours with the majority shareholders.

Therefore, in order to mitigate the influence of majority shareholders, a stricter regime governing appointment/removal of independent directors needs to be introduced that creates a fair balance between the interests of a diversified shareholder group and protects the sanctity institution of independent directors.