Digital Personal Data Protection Act, 2023 : a comprehensive analysis

By

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November 2, 2023

This article has been written by Prasenjeet Sudhakar Kirtikar and edited by Shashwat Kaushik pursuing a Diploma in Corporate Litigation from LawSikho. In this article, we will discuss the measures taken by some countries to handle data protection and how India made a provision to protect the digital personal data of its people by enacting the Digital Personal Data Protection Act 2023. We will discuss the scope, nature, salient features, and drawbacks of the Act, along with its effect on Indian society, administration, and e-commerce.

It has been published by Rachit Garg.

Table of Contents

Introduction

Every human being living in a society has personal information such as his name, age, address, profession, income, marital status, educational qualification, his likings and dislikings, where he goes, and what he does. Also information about his family, like the number of family members and their individual personal information. This set of personal information about an individual can also be termed personal data about that individual. In a modern society, every citizen has the expectation that his or her personal data should not be made public without his or her consent. On the other hand, state agencies and business entities require the personal data of individuals to understand the needs and interests of individuals and society in order to achieve socioeconomic growth.

The inception of the revolution in information technology at the beginning of the 21st century has brought the world closer together to form a big, giant global village where information of all kinds is exchanged. With the rise of social networking, digital marketing, and other similar concepts, information about people has also been shared and controlled by both government agencies and business entities.

In this era of digital socio-economic growth to protect the privacy of people and to avoid use of their personal data without their consent, the need for statutory control over such digital data transactions has been opinionated even at the international level.

Background

The impact of globalisation and the emergence of the information technology revolution gave rise to complexity in business transactions across the world beyond imagination. Along with the expansion of online business sectors like digital marketing and digital advertising, they exploded like never before.

Nowadays, this business growth in digital form also demands marketing and advertising to amass the vast personal information of individuals to synthesise and understand the trends pertaining to their likes and dislikes. This disclosure of digital personal information on various online business platforms gives rise to a universal concern to safeguard the privacy of individuals. Even state agencies can misuse this digital data for their own good, giving a blow to the process of democratisation.

The issue of protecting the personal information of individuals in digital form has given heads up to various international organisations as well as countries across the globe. Therefore, in order to create a perfect shield to protect the digital personal data of citizens, various countries enacted laws and made stringent provisions to punish the wrongdoer for non compliance.

As per the report of the United Nations Conference on Trade and Development (UNCTAD), 137 out of 194 countries (71%) have enacted legislation in some form to protect digital data and the privacy of their people. In Europe, 44 out of 45 countries; in the Asia Pacific region, 34 out of 60 countries; in Africa, 33 out of 54 countries; and in America, 26 out of 35 countries have enacted laws to protect the data privacy of their citizens.

In 2018, the European Union (EU) enacted and implemented the General Data Protection Regulation, which proved to be a significant guideline for other organisations and countries. Another important framework for data privacy was framed by the United States in the form of the California Consumer Privacy Act (CCPA) in 2018, which came into force in 2020 after a few amendments. The Asia Pacific Economic Cooperation (APEC) also developed data privacy principles known as the APEC Privacy Framework in December 2005. Moreover, some of the significant global organisations, like the Organisation for Economic Cooperation and Development (OECD), also developed Guidelines for Personal Data Protection in 1980, which were later updated in 2013, which proved to be a benchmark for other international entities, like the International Energy Agency (IEA).

The Singapore government enacted the Personal Data Protection Act (PDPA) in 2012, which came into operation in 2021, addressing the need for the protection of digital personal data of its citizens. The Act regulates the collection, use and disclosure of personal data by organisations and has a very special provision for the Do-Not-Call (DNC) registry, in which information is registered for customers/citizens who do not want to be called by a business agency for marketing. The Personal Information Protection Law (PIPL) passed by the People’s Republic of China is its first comprehensive law enacted to protect personal digital data. The PIPL is mostly inspired by the guidelines showcased in the GDPR of the EU. In the case of Canada, BILL C-27 is an act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts. Also, the United Kingdom has enacted the Data Protection Act 2018 by simply following the directions of GDPR. The Act also provides for the transfer of personal data to third countries and defines six different data protection principles. It is important to mention here that enactments like CCPA, GDPR, PIPL and others proclaim anonymized data as non-personal data. The anonymization of data means “ the process by which personal data is modified in such a way that the person to whom it belongs can no longer be identified directly or indirectly, either by the data controller alone or in collaboration with any other party”. In other words, the privacy of the person is completely protected.

In coordination with international policy and business affairs, India has realised the need to enact a data protection act for its people.

Also, being an emerging superpower, our country is attracting various kinds of global businesses trying to get established in the vast Indian market. In the process of conducting online business, the personal data of Indian citizens remains at stake. To safeguard the privacy of the Indian masses and to understand the scope of privacy law, the Government of India appointed a committee of experts under the chairmanship of Justice B.N. Srikrishna. In December 2010, the committee submitted its report, “A Free and Fair Digital Economy Protecting Privacy, Empowering Indians,” which eventually paved the way for the enactment of the Digital Personal Data Protection Act, 2023 (the Act) in India.

Now let us discuss the commencement, scope, important definitions and salient features of the Digital Personal Data Protection Act 2023.

Digital Personal Data Protection Act, 2023

Commencement

As per Section 1(2) of the Act, the Central Government of India is vested with the power to decide on what date the provisions of the Act will take effect. It is the discretion of the central government to notify the implementation of different provisions on any date it deems fit by publishing the same in the official gazette. Since the Act has retrospective effect, such provisions will help the responsible stakeholders set up a mechanism to adhere to the rules and regulations as per the Act. Also, as per Section 17(5), the Central Government has the power to declare non application of any provision of this Act to any data fiduciaries for a specific time. This power can be exercised within five years of the commencement of the Act, not after that.

On September 28, 2023, Rajiv Chandrasekhar, India’s Minister of State for Electronics and IT, gave around a one year time period to big giants like Google and Meta to set up a framework for compliance with the Act and also announced that the process of setting up the Data Protection Board would start within a month.

Scope

Judicial scope

The Act ensures the synthesis of digital personal data in such a way that it protects the right to privacy of the citizens of India. Once consent is given, it can be withdrawn anytime by exercising the right to withdraw consent under Section 6(4); the person can exercise the right to access information about his personal data under Section 11(1); the right to correction, completion, updating and erasure of such data can be exercised under Section 12(1); the right to grievance redressal is provided as per Section 13(1); and the Act also offers a unique feature of the right to nominate under Section 14(1).

All the above rights are guaranteed by the Act, which forms part and parcel of the right to privacy, which further falls under the right to live and personal liberty enshrined in Article 21 of the Constitution of India.

In Justice K.S. Puttaswamy (Retd.) and Anr. vs. Union of India and Ors. (2017), the Supreme Court held that the right to life and liberty also includes the right to privacy. Therefore, the Act very well safeguards the right to life and personal liberty by prohibiting the leakage of digital personal information.

General scope

As per Section 9 of the Act, it is applicable to children and persons with disabilities, and their right to privacy can be protected through their guardians. The section also prohibits child behavioural monitoring and targeted advertising.

As per Section 3(a), only the personal data that is in digital form and the personal data taken in non form but digitised later fall within the ambit of the Act. However, it is difficult to find out whether a non digitized data is digitised later or not.

As per Section 3(b), the digital personal data of the citizens living in India, though shared outside India, also falls under the purview of this Act.

It is also important to understand that, as per Section 3(c) of the Act, if any citizen discloses his own data voluntarily, then the Act does not apply. For example, while commenting on any post on Facebook or Twitter, the name and profile of the person can be seen by others. Such disclosure of identity will be the sole responsibility of the person.

This law is applicable to all kinds of digital business entities (data fiduciaries), all kinds of agents (data processors) and the state synthesising the digital personal data of Indian citizens.

Some important definitions

The Act has introduced a few new concepts to engulf the roles of different stakeholders related to the transaction of digital personal data. Below are some of the concepts as defined in the Act.

Data principal: As per Section 2(j), a data principal is a person whose personal data is at stake. It includes children and people with disabilities.

Data diduciary: As per Section 2(i), all kinds of business entities have the custody of digital personal data of other individuals for a specific purpose.

Data processor: As per Section 2(k), a person acting on behalf of the data fiduciary and playing an important role in synthesising digital personal data.

As per Section 2(l) of the Act, a data protection officer is a person appointed by a significant data fiduciary. The Act has also defined the Data Protection Board under Section 2(c) and its consent manager under Section 2(g), who will help the data principal manage, review and withdraw his consent. The Act also has the unique feature of addressing a person as “she” instead of “he” as per Section 2(y), irrespective of their gender. According to Section 2(t), personal data can be any data with the help of which the person can be identified and as per Section 2(n), digital personal data can be any personal data available in digital form.

Salient features of the Act

In coordination with other major international statutes like GDPR, the Act provides for special features to protect the right to privacy of the Indian masses. Let us discuss and understand some of the essential features of the Act.

Data security: It helps to strengthen India’s digital economy and its ecosystem by trying to achieve balance between ease of doing business and protection of people’s privacy.
For the first time in the Indian parliamentary law making process, “she” is used instead of “he,” recognising the addressee as a woman.
Definitions: That provides for different names for different stakeholders in the transaction of digital data, for example, “data fiduciary” for business entities, “data principal” for a person to whom the personal data relates, “data processor” for an agent of data fiduciary who is processing personal data of other people, etc.
Application: As per Section 3, the provisions of the Act are applied to personal data only if it is in digital form or in non digital form if digitised later within India or outside India for a person living in India. However, any provision of this Act will not apply when the data principal himself discloses his personal data on any digital platform, e.g., disclosing your name and profile by commenting on any post on Facebook, Twitter or any similar social networking platform.
Notice: As per Section 5, a notice must be served to the data principal to inform about the manner and purpose for which her digital personal data is going to be used.
Consent: As per Section 6(1), a consent provided by the data principle must be free, unconditional and clear to agree on using her personal data for any specific purpose. It is also important to note that if any consent taken from the data principal violates any provision of the Act, then such consent will be invalid. E.g., if any consent is taken saying that the data principal will not approach any authority to file any complaint against the data fiduciary, such consent will be invalid. Moreover, the data principal will have the right to manage, review and withdraw her consent with the help of a consent manager registered with the Data Protection Board established as per the Act.
State`s powers: As per Section 1(2), the Central Government will decide the dates for the implementation of different provisions of the Act. The state and its agencies have been given rights under Section 7(b) to process digital personal data for the purpose of subsidy, benefit and other similar services as per government policies. The state also has the power to use the personal digital information of citizens in the interest of the sovereignty and integrity of India. As per Section 7, digital personal data can be used for some legitimate purposes, such as responding to medical emergencies like pandemics, epidemic, ensuring the safety of people during social disturbances, etc.

A very significant provision of the Act lies under Section 16(1), which grants the Central Government the power to restrict the transfer of personal data to any country outside India. Similarly, Section 40 provides power to the central government to make rules pertaining to various provisions of the Act and Sections 42 and 43 give the Central Government the power to amend the schedule and remove difficulties in the practical implementation of the Act respectively.

Obligations on data fiduciaries: The Act imposes huge responsibility on data fiduciaries and data processors working on behalf of data fiduciaries in terms of serving notice, taking consent, and ethical use of digital personnel data. It also mandates the data fiduciary to report to the Data Protection Board about leakage of personal information.

As per Section 10(2), it is an obligation of the significant data fiduciary to appoint a data protection officer and to conduct a Data Protection Impact Assessment and other relevant audits from time to time.

Rights and duties of data principal: Chapter 3 of the Act provides for various rights of the data principal, such as right to access his digital information, right to correct and erase his data, right to file a complaint with an appropriate authority, right to nominate and also provides for duties of the data principal, such as not to commit any kind of fraud or legal mistake pertaining to the provisions of this Act or any other law.
Exceptions: However, it is also important to understand that the rights provided under this act for the protection of digital data of Indian citizens are not absolute and, as per Section 17, certainly bear some exceptions, such as:

processing of personal data by any court or tribunal is valid.
processing of personal data of an insolvent to decide his assets and liabilities.

The Central Government has been almost exempted from any obligation with regard to the synthesis of digital personal data of citizens under the Act and is free to use such data in the name of research and development. It is also empowered to decide on the application of any provision of this Act to any class of data fiduciaries within the five years of implementation of the Act.

Data Protection Board of India and Appellate Tribunal: The board will have perpetual succession and members can be reappointed; they are also protected for any action taken in good faith. The board is empowered to inquire into any breach of information security, can direct any remedial action, impose a fine on the wrongdoer and also has powers similar to those of a civil court to conduct proceedings. And also, there is a provision for an appeal to the Tribunal against any order passed by the Data Protection Board.
Punishments: The task of protecting the digital personal information of citizens has been taken very seriously by the Indian parliament, which has enacted stringent punishments for infringements of the right to privacy. For example, if a data fiduciary violates his obligations as per the Act, he will be liable for a fine of Rs. 250 crore (Rs. two hundred and fifty crore).

A few more important features:

The Act prohibits child behavioural monitoring and targeted advertising.
The complaints can be resolved with the help of the Alternative Dispute Resolution (ADR) system.
All sectors and business segments functioning digitally are under the purview of this Act.

The conscience behind enacting the Act was to address issues related to the protection of the privacy of people for healthy socio-economic growth. However, the present Digital Personal Data Protection Act, 2023, showcases some concerns that need to be addressed in the near future. Let us try to understand some major concerns pertaining to the provisions of the Act.

Concerns

Unlimited power and zero liability of the state: The Central Government has power to decide the dates for the implementation of different provisions of the Act. The state also has power to use personal digital information of citizens in the interest of sovereignty and integrity of India, which can be misused by government agencies in the name of national security. Similarly, Sections 40, Section 42 and 43 give the Central Government the power to make rules related to various provisions, the power to amend the schedule and the power to remove difficulties in the practical implementation of the Act, respectively, which can be misused for political gains by controlling large public information.

Also, the Central Government has been given the power to regulate and exempt significant data fiduciaries without any liability to provide a reason for the same. In the same way, the Central Government can appoint and reappoint members of the Data Protection Board as per its will.

Definition of child: A person below the age of 18 years is considered a child as per the Act. But it is necessary to see if someone of that age really needs to be taken care of when it comes to the protection of private information.
Application: The Act is applicable to digital data and non-digital data if digitised later. But how will a person know that the information he has provided by filling out a form as a hard copy is digitised or not digitised by the data fiduciary? If he is not aware of that, subsequently, how will he exercise his other rights as per the Act. Also, there is no provision for any data submitted in non-digital form.
International guidelines: the Act failed to follow the international guidelines and even the provisions of previous drafts to include the provisions related to “sensitive personal data” and “anonymisation of data.”
Data Protection Board of India: The Data Protection Board of India is expected to be one of the most independent and powerful institutions as it protects privacy of the entire nation. Unfortunately, it is completely controlled by the Central Government.

Also, it has a perpetual nature and reappointment of members is allowed, which will result in corruption and unethical practises.

Classification of offences: The Act failed to classify different types of online offences and extent of offences. For example, a data fiduciary steals digital personal data for financial gain and another data fiduciary steals to commit a more serious crime. Will they be punished in a similar way?

Impact of the act on Indian society, business and government administration

Indian society

Impact on Indian society:

Need to spread awareness: Just like other statues, for effective implementation of the Act, the active participation of people is very important.
More safety: Upon implementation of the Act, the individuals will feel more secure as they will not receive any unwanted calls or unexpected flashing advertisements while watching their favourite programme on any online platforms.
Exercising rights as per the Act: They can question any private business entity about their personal data and can complain to the Data Protection Board to ask for details.

Business

The major obligations under the Act lie with business entities. It is going to be a challenging task for online businesses to adhere to the provisions of the Act. They will have to develop mechanisms for consent management, to fulfil data principals` rights and for data breach notification. They will also have to conduct data privacy impact assessments and audits. They will need to prepare for a data inventory, plan to limit third party access to digital data, and implement a few more technical safeguards and training programmes. This entire process will add additional one time cost and recurring costs to the business.

Government administration

Impact on government administration:

Role of protector: The state enters into the role of protector of data with increased responsibility towards data privacy. After the implementation of the Act, the state will be accountable for breaches of information, among other responsibilities. It will have to monitor information transactions even outside of India.
Credibility: As the Act provides the Central Government with vast powers and exempts its officials from any kind of punishment, it becomes the duty of the State to prove its credibility by avoiding any unethical practises.
Efficiency: The state will have to set up a strong digital infrastructure to check online data leakages and frauds. Since data protection is going to be a new area of adjudication,the Data Protection Board and related offices must respond to complaints from the public more efficiently.

Heads up for the common man:

Though the implementation of the Act will take some time, it is important for a common man to understand his rights and duties as per the Act. Let’s discuss a hypothetical situation:

As a customer, when you visit a showroom to purchase a car, you will be asked to fill out a form as a visitor. It is your right to reject it if you don’t want to fill it. That will make sure if you have consented to the sharing of your information or not. Further, if you are filling out that form, it is your right to know for what purpose and until what time in the future it is going to be used. Also, make sure that you receive all the information about the use of your personal data and about your rights under the Act from the business entity, i.e., the data fiduciary.

This is applicable wherever and whenever you provide your personal information to any person, representative or business group in the name of a survey, data collection, providing facilities, giving attractive offers or any other activity.

Conclusion

India has now joined the club of countries, which shows a concern for the protection of the privacy of their citizens. By following significant guidelines provided by the majority of the acts at the international level, India also expressed its progressive view by enacting the law on data privacy. However, the Act showcases some concerns pertaining to the role of the Central Government. Though private entities are well monitored by the provisions of the Act, the central government remains almost outside its purview.There is no provision in the Act to curb the wrongful action committed by government authorities. On the contrary, they are exempt from any kind of punishment in the name of “action taken in good faith”. Thus, it can be clearly observed that the Act mostly focuses on private entities and gives a free hand to the state to handle the personal data of individuals at its will.

Though there are many loopholes in the present, the lawmakers also made a provision in the Act to amend any provision to fulfil the ultimate purpose of digital personal data protection of citizens of India.

In what possible way and within how much time will the state implement the Act ? How will the business entities set up an efficient framework in response to the Act ? And most importantly, how will the Indian masses exercise their rights and duties to protect their own personal data on all kinds of digital platforms? Time will answer.

References

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Major data protection statutes in the world : a comparative analysis

By

Sneha Mahawar

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November 1, 2023

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This article has been written by Prasenjeet Sudhakar Kirtikar pursuing Diploma in Corporate Litigation and edited by Shashwat Kaushik. This article will provide a glimpse of a few significant enactments in the world and compare those with the Digital Personal Data Protection Act 2023 of India.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The revolution in information and technology has given rise to concerns related to the protection of personal data by people around the world. The personal data that is filled up online for purposes like online shopping, business, travel, government schemes, and programmes can be accessed for any other purpose against the wishes of the person. This ultimately causes a breach of privacy for that individual. The protection of the personal information of individuals must be guaranteed by the implementation of statutes in every country. Accordingly, most countries have enacted laws to support data privacy policies and made provisions for stringent punishments for any breach.

United Nations Conference on Trade and Development (UNCTAD)

As per the report of the United Nations Conference on Trade and Development (UNCTAD), 137 out of 194 countries (71%) have enacted legislation providing security to their citizens from any breach of personal data. In the European region, 44 out of 45 countries; in the Asia Pacific region, 34 out of 60 countries; in Africa, 33 out of 54 countries; and in the American region, 26 out of 35 countries have enacted laws to protect the data privacy of their citizens.

European Union (EU)

The General Data Protection Regulation (GDPR) was adopted on April 14, 2016 by the European Parliament and became effective on May 25, 2018. It is directly binding and applicable to the European Union (EU) and the European Economic Area (EEA), and it also governs the transfer of personal data outside the EU and EEA.

Salient features of GDPR:

The regulation has proved to be a remarkable guide for the entire world to draft and implement data protection policies. The regulation became a model for many other laws around the world, including in Turkey, Mauritius, Chile, Japan, Brazil, South Korea, South Africa, Argentina, Kenya, etc., as it addressed the need for privacy protection in the digital world.
The regulation applies if the data controller (whether in the EU or not), processor (an organisation that processes data on behalf of a data controller like cloud service providers), or data subject (person) is based in the EU and also applies to organisations based outside the EU if they collect or process personal data of individuals located inside the EU.
The regulation does not apply to the data shared by a person for a personal purpose or to the data used for national security or law enforcement. The personal data disclosed voluntarily is the responsibility of the person who discloses it and does not fall under the purview of this regulation. Also, the use of personal data for national security and integrity purposes is legitimate.
For the first time, it defines terms such as “personal data”, “processing”, “data subject”, “controller”, and “processor” with the perception of data protection. Before the enactment of this regulation, no terms were officially in place to address the stakeholders in digital affairs, and defining certain roles in this area has generated a greater sense of responsibility among the players.
Every member state is to establish an independent supervisory authority (SA) for investigations and sanctions pertaining to data breaches and the European Data Protection Board (EDPB) to coordinate with all SAs. Such a unique organisational structure binds the entire Europe together for more cooperation and coordination among countries to safeguard online businesses and punish wrongdoers.
The consent of the individual has been marked as the most significant factor for lawful data disclosure. As a part of the fundamental rights of human beings, every person must be asked for his consent for every action affecting his life in any possible way. Women and children, being vulnerable groups of society, will be protected by such vital provisions of the regulation.
Various rights are provided to the individual whose personal data is at stake, such as the right to access his personal data, the right to know the purpose of data processing, with whom it is shared, how it was acquired, the right to erasure of his personal data, etc.
The GDPR recognises and implements the concepts of pseudonymization and anonymization of the personal data of individuals.

“Pseudonymization” is a data management and de-identification procedure by which personally identifiable information fields within a data record are replaced by one or more artificial identifiers. This helps to hide or keep personal data wholly secured. “Anonymization” is the process of removing personally identifiable information from data sets so that the people whom the data describe remain anonymous.

Minors under the age of 16 need parental consent. The smartphone’s features and web content have created too much attraction among children. The natural mentality of a curious child to explore things can neither be ignored nor prohibited. Thus, just like other hazardous things, they must be supervised and protected by their guardians/parents while dealing with the internet and its demand for personal information. The regulation even advises its member states to lower this age limit as per their social and cultural needs.

United Kingdom (UK)

The Data Protection Act 2018 (DPA) was enacted by the United Kingdom by simply following the directions of GDPR. Below are some of the salient features of the act.

The EU’s GDPR and the UK’s DPA are primarily based on similar principles of data protection and privacy management. The DPA recognises the right to privacy and the right to know for what purpose the information is used as fundamental rights. It classifies and explains personal data and sensitive personal data in detail. Similar to the GDPR, the DPA has also included the right to erasure (‘right to be forgotten’) as a statutory right of the person. The minimum age of consent for processing a person’s data is 13 years old in the UK under the DPA and 16 years old under the GDPR.
The Information Commissioner’s Office (ICO) regulates all data protection in the UK and also cooperates with data protection authorities in other countries, including the European Data Protection Board. The role of supervisory authority under the GDPR is being allotted to the ICO in the United Kingdom, which undertakes the responsibility of coordination with other EU member countries as well as dealing with internal data breaches within the UK.
It is the right of every sovereign country to have complete control over its security by whatever means it pleases. Thus, the DPA exempts application of the GDPR in some cases to safeguard national security or for defence purposes.

United States of America (US)

The California Consumer Privacy Act 2018 (CCPA) and its amendment by the California Privacy Rights Act 2020 (CPRA) set the standard in the U.S. for consumer privacy and data security regulations.

Salient features:

It secures the privacy rights of citizens, such as the right to know about the purpose and mode of processing their information, the right to opt out of personal information, etc. The right to notice makes business entities compulsory to inform citizens of any collection and/or use of personal information prior to such collection and/or use.
Business entities are under obligation to respond to the inquiry regarding personal data and must furnish information as per the provisions of the act. A service provider is an entity that processes personal information for business purposes as per a written contract, and a “contractor” is a person to whom a service provider provides a consumer’s personal information for business purposes as per a written contract. These terms are different from the concepts of “controller” and “processor” mentioned in the GDPR.
As compared to GDPR, CCPA defines “sensitive personal data” broadly as personal information that reveals social security, driver’s license, state identification card, passport number, account log-in, financial account, debit card, credit card number in combination with any required security or access code, password, precise geolocation, racial or ethnic origin, religious or philosophical beliefs, union membership, contents mail, email, messages, and genetic data, etc.
Business entities cannot share the personal information of a consumer who is under 16 and require consent from the guardian of a consumer under 13. Here again, the children are well protected for their privacy, and businesses must seek their parents/guardians’ permission well before using their personal data. They are also under obligation to inform their parents/guardians of the purpose, extent, and duration of such use.

Singapore

The Personal Data Protection Act 2012 (PDPA) came into effect in July 2014, and its main purpose is to protect the privacy rights of citizens of Singapore and regulate how personal data can be collected and used by private sector organisations.

Salient features:

Similar to the GDPR, the PDPA only protects the privacy of living individuals. The PDPA grants individuals several rights over their personal data, including the right to access, correct and delete data, etc. However, the right to consent is more flexible in the PDPA, as implied consent suffices as the requisite for data processing in some cases.
Unlike GDPR, the PDPA uses the term “data users” to refer to business entities that are accessing the personal data of others. The business entities are under obligation to report data breaches to concerned authorities, and non-compliance with the guidelines provided in the act results in heavy penalties.
Do-Not-Call (DNC) Registry: It has proven to be a unique feature of the PDPA, as it gives citizens the facility to add their names and contact numbers to the DNC registry if they don’t wish to be called by telemarketers. Registration with the Do Not Call (DNC) Registry is free and simple. A citizen should expect to stop receiving unsolicited telemarketing messages on telephone numbers within 21 calendar days of being registered with the DNC.

China

Like most of the statutes on data privacy, China’s Personal Information Protection Law (PIPL) also shares similarities with the GDPR, which has proven to be a universal guideline for countries enacting data privacy laws. However, PIPL is not just a copy-paste of GDPR and certainly has some modifications supporting Chinese cultural and administrative needs.

Let us understand the salient features of PIPL:

PIPL talks about “sensitive information” and excludes anonymized personal information, whereas GDPR explains a “special category” of information. The role of business entities is defined as data controller in GDPR, but in PIPL it is defined under the term “Personal Information Handler,” and the term data processor is not defined clearly.
The PIPL stipulates more requirements for consent based on the sensitivity of the personal information and the scenario in which the processing is conducted; however, it allows the processing of personal information for news reporting. Both the GDPR and the PIPL require companies to assess the potential risks to individuals before they can process their personal information in certain cases.
Punishments for violations of provisions of the PIPL include not only penalties but also other consequences such as suspending a licence, denying access to any specific data system, and barring particular business activities.

Now, after reviewing the features of major international acts for privacy protection, let us analyse the extent to which the Digital Personal Data Protection Act 2023 (DPDP Act) of India is in line with these acts and how far it’s following the guidelines practised around the globe.

India

In an era dominated by digitisation and interconnectedness, the need for robust legislation to safeguard personal data has never been more pressing. So to battle these modern day threats, the Digital Personal Data Protection Act, 2023—a landmark piece of legislation designed to redefine and fortify the protection of our digital identities—has been introduced by the government.

Features of the Digital Personal Data Protection Act, 2023:

Similar to GDPR and statutes of other countries, the DPDP Act also defines basic concepts to identify the owner of digital data, business entity, and agent as data principal, data fiduciary, and data processor, respectively. The Act is applicable to personal data only if it is in digital form or in non-digital form if digitised later within India or outside India for a person living in India.
A notice must be served to the data principal to inform him of the manner and purpose for which his digital personal data is going to be used. This right is part of almost every statute enacted for data privacy across the world. Also, the consent provided by the data principle must be free, unconditional, and clear to agree to use his personal data for any specific purpose. The DPDP Act also provides the right to nominate a person in case of death or medical issues to take care of their data privacy.
The Central Government has been given tremendous powers related to the implementation of the provisions of this act, the appointment of members of the Data Protection Board, and giving exemptions to “significant data fiduciaries” with regard to any provision of the act. There are provisions for stringent punishments for infringement of the right to privacy up to Rs. 250 crore.
Unlike GDPR, CCPA, PIPL, and other acts, the DPDP Act defines the person below the age of 18 as a child and vests the powers of data protection with their guardians. It also has the provision of the appointment of a guardian in the case of a person with a disability, which is missing from other counties’ statutes.
The concepts of “pseudonymization” and “anonymization” of personal data, which find a significant place in GDPR, are missing from the DPDP Act. Also, the act has failed to distinguish sensitive data from ordinary personal data. Since these concepts are not included in the act, it has a limited scope in order to mitigate the risk of data breach.

Conclusion

The lawmakers in India have analysed the international scenario before providing a digital personal data protection mechanism for the masses. The rights of citizens, obligations of business entities, the duty of the state for efficient monitoring, and punishment for breach of data privacy are a few of the most significant features drafted in accordance with international regulations such as GDPR, DPA, CPRA, etc.

However, the DPDP Act failed to define a few concepts such as “sensitive data”, “pseudonymization” and “anonymization”. A person below the age of 18 is considered a child and needs a guardian for the protection of his privacy, which is a bit irrelevant. Also, the Central Government has been given too much power as per the act, which might make the act ineffective to some extent.

Though the Act has some lacunas, it surely is an endeavour to make our country a safer place to protect individual privacy while becoming a global digital economy.

References

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General principles affecting jurisdiction of courts and the extent of exclusion

By

Sneha Mahawar

-

November 1, 2023

0

This article has been written by Prasenjeet Sudhakar Kirtikar pursuing Diploma in Corporate Litigation and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The court of law has been assigned powers to deal with the cases before it. Different powers are given to different kinds of courts or judicial bodies; e.g., the civil courts have the power to decide only on cases of civil nature. Such powers of a court of law to deal with matters are also called the jurisdiction of the court. Thus, the jurisdiction of a court is the power of that court to hear and determine the subject matter in controversy between the parties to the suit.

It is important to note that the court of law is conferred with such jurisdiction only according to a statute; e.g., the jurisdiction of the civil court is as per Section 9 of the Code of Civil Procedure of 1908, to try all suits of civil nature.

This article discusses how to interpret statutes that confer jurisdiction on the courts and the principles related to the interpretation of such statutes.

Meaning of jurisdiction

Jurisdiction means the authority or power by which a court can decide a matter as per the provisions of statutes. If a court declaring a judgement for any dispute does not have jurisdiction over such a dispute, then its judgement is null and can be ignored.

Types of jurisdictions

The jurisdiction can be of many types, as follows:

Territorial jurisdiction: It defines the area within which the court of law can exercise its powers. For example, the High Court of Bombay has territorial jurisdiction over the states of Maharashtra and Goa.
Pecuniary jurisdiction: It explains the extent of the amount of money involved in a dispute that a court can handle. E.g., a court of the Civil Judge Senior Division can handle cases with valuations up to 10 lakhs.
Subject matter jurisdiction: This assigns specific matters to be dealt with by a court. E.g., civil cases must be handled by the civil courts only.

In addition to the above types, superior courts also exercise original jurisdiction, advisory jurisdiction, and appellate jurisdiction.

The jurisdiction of courts can be interpreted with the help of a few basic principles, which talk about the exclusion of jurisdiction, the jurisdiction conferred by common law, and specific statutes.

General principles affecting jurisdiction of courts

Exclusion must be explicitly expressed or clearly implied

This is the first and foremost principle related to the interpretation of the jurisdiction of courts. It simply means that if there is any exclusion or negation pertaining to the jurisdiction, then it must be very clearly explained in the provision and no ambiguity related to such an exclusion can be allowed.

Therefore, the exclusion of the jurisdiction of civil courts and conferring jurisdiction on tribunals for specific matters must be strictly construed.

E.g., Section 8 of the Family Courts Act of 1984 excludes the jurisdiction of civil courts when there is a family court.

In the case of H. H. Maharajadhiraja Madhav Rao … vs. Union of India (1970), the Supreme Court of India held that the people have a right, unless expressly or impliedly barred, to insist on free access to the courts of general jurisdiction. Also, the rule against exclusion of jurisdiction is applicable only when two or more constructions are possible and not where the legislative intent is clear.

Three classes of cases

It is the power of the legislature to confer the jurisdiction of civil courts partly or wholly on any other tribunal for the purpose of addressing specific subject matter.

Such legislative power can be exercised by enacting specific statutes for assigning jurisdiction to any particular tribunal by completely keeping aside or in parallel to the jurisdiction of civil courts conferred by the common law.

According to Willes J., there are three classes of cases in which liability might be established, founded upon the statutes.

When the liability is affirmed by a statute that provides a special form of remedy but is different from the remedy provided in the common law, unless the statute contains words that expressly or by necessary implications exclude the common law remedy, the parties suing have the option to pursue either of the remedies.
When the statute gives the right to sue only and provides no remedy, then the party can only proceed as per the common law to avail of any possible remedy.
In other words, it simply means that between the statute and the common law, if only the common law is providing the remedy, then the party can proceed with the common law and thus, there will be no confusion. When no liability exists under the common law but is created by a statute that also provides for special remedy, then such remedy by the statute must be followed.

In the case of The Premier Automobiles Ltd. vs. Kamalakar Shantaram Wadke (1973), the Supreme Court of India held that if an industry dispute relates to the enforcement of any right or an obligation under the Industrial Disputes Act, 1947, then the only remedy available is to get adjudication under this Act and not any other act.

Cases of breach of statutory duties

Whether a statutory duty gives rise to a private law cause of action depends upon the construction of the relevant statute. The Supreme Court of India has accepted the rule that where a specific remedy is provided, it deprives the person who insists upon any other remedy. For example, if a penalty is provided for a breach of statutory duty as per a statute, then it may be regarded as the only way of enforcing the duty.

The general principle is that the remedy provided by the Act that creates obligations is exclusive and is not without exception. Out of general rule and exception, which will prevail in a particular case depends on the scope and language of the act.

In the landmark case of Black v. Fife Coal Co., Ltd. (1908), the House of Lords held that the penalty clause of the Coal Mines Regulation Act, 1887, does not take away the rights of injured persons as per the Act and they can also enforce civil liability against the employer.

Let us try to understand how to interpret the extent to which the exclusion of jurisdiction can occur and what elements can be helpful in such interpretation.

The extent of exclusion

The extent of exclusion can be interpreted with the help of the following three elements:

Construction of exclusionary clauses

The court of law must refer to the clause specifically talking about the exclusion without any ambiguity. Any other construction contrary to the clause would lead to nullity.

In the case of United Bank of India vs. Debts Recovery Tribunal and Ors. (1999), it was held by the Supreme Court of India that with the object of speedy adjudication of certain matters that are widely defined, the jurisdiction is conferred on tribunals and the jurisdiction of normal courts is excluded, so the wide language used can’t be narrowly construed.

Cases of nullity

This basically talks about the cases in which an order passed by a tribunal can be held null. This issue was addressed by the Apex Court in Smt. Ujjam Bai vs. State of Uttar Pradesh (1961). The Supreme Court of India held that an adjudication by a tribunal is void if:

Action is taken under an ultra vires act.
The subject matter is beyond its competence and it has no authority to pass the order.
Jurisdiction is assumed by wrongly deciding jurisdictional questions of law or fact.
Adjudication is in violation of fundamental principles of judicial procedure.

Rule of conclusive evidence

The legislation has the power to enact a statute to declare something as conclusive proof to such an extent that it becomes a non-justiciable matter.

E.g., if a legislative enactment proof of A is made conclusive evidence of B, then the court is bound to consider the existence of B the moment it realises the existence of A. Such evidence cannot be questioned in court as it becomes conclusive evidence.

In the case of Lilavati Bai vs. The State of Bombay (1957), the Supreme Court of India held that the Bombay Land Requisition Act empowers the state government to requisition any building if the owner or tenant is not residing in the building for a continuous period of six months and the state government can make a declaration for such a requisition. In this case, the declaration so made is conclusive evidence.

Along with the above conditions, it is also pertinent to understand some presumptions as to the jurisdiction of courts when encountering international regulations.

Presumptions regarding the jurisdiction of courts

In the process of interpreting any municipal law, if it is found that such interpretation is in conflict with any international law, then the court will not give it such an effect.

In the case of Kesavananda Bharati.. vs. The State of Kerala and Anr. (1973), the Chief Justice of India, Sikri, observed that according to Article 51 of the Constitution of India, we must foster respect for international law and treaties.

There is a presumption that an Act of Parliament generally applies within its territory only unless provided otherwise. However, in the case of A.H. Wadia vs. Commissioner of Income Tax (1948), the Bombay High Court held that in the case of a legislature, the question of extra-territoriality of enactment can never be raised in the municipal court as a ground for challenging its validity. The legislature may not recognise the rules of international law, but these are the questions of policy with which domestic courts are concerned.
The jurisdiction of superior courts is conferred by the Constitution of India and not by any statutory enactment. Hence, it cannot be taken away by simply enacting a statute. It is also important to note that the appellate and revisional jurisdiction of superior courts should not be mistaken for being excluded simply because the subordinate courts enjoy special jurisdiction.

Conclusion

In India, there are various statutes in operation to decide on the jurisdiction of various courts and tribunals, e.g. Family Courts Act for Family Court, Income Tax Act for Income Tax Tribunal, etc. Due to the complexity of the judicial system, it has become necessary to interpret the statutes with care not to offend the jurisdiction of other authorities and also to avoid nullity.

The efficient observance of principles for interpreting the jurisdiction of courts will definitely help avoid loss of time and money. Moreover, it is also important to understand the jurisdiction of superior courts as conferred by the Constitution of India and one must not confuse it with the exclusion of jurisdiction.

References

Principles of Statutory Interpretation” a book by Justice G. P. Singh.
“Interpretation of Statutes” a book by Prof. Bhattacharya.
https://blog.ipleaders.in/rules-interpretation-statutes/
https://taxguru.in/corporate-law/rules-interpretation-statutes.html
https://www.everycrsreport.com/reports/97-589.html

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

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

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Section 133 of Companies Act, 2013

By

Vanshika Kapoor

-

November 1, 2023

0

This article has been written by Diksha Paliwal. The article comprehensively analyses Section 133 of the Companies Act, 2013 and the relevant rules and regulations formulated by the Central Government in relation to this Section. It begins with explaining crucial terms like financial reporting, accounting, etc., which hold significant importance for having a better understanding of this topic.

It has been published by Rachit Garg.

Table of Contents

Introduction

A company invests Rs. 50,000 in a renowned dairy business. A month later, it gained a profit of Rs. 95,000. Also, an amount worth Rs. 20,000 is spent on behalf of the company for regular checkups and medicines of the farm animals. Naturally, the company would want to keep track of all the economic activities or financial transactions that it has made. Keeping records of such transactions and other events, along with maintaining track of adequate information pertaining to all the necessary economic activities aids in decision-making. This is when accounting or other financial reporting methods come into the picture.

Not only this, the stakeholders of any business require a condensed overview of the performance of a company, especially its financial status. It is very crucial that such information must be presented in a uniform, standardised manner, making it easy for the end users to comprehend and analyse the financial data along with aiding in comparison with other entities. Therefore, formulation of a standardised financial reporting and accounting procedure is paramount.

Financial reporting plays a significant role in maintaining the overall growth and development of the economy of a country. Now, the question that pops up in our mind is, what does the term financial reporting mean, and how is it related to the scope of this article? The simple meaning of the term ‘financial reporting’ is, a certain standard or set of guidelines stating how financial information is to be recorded, exhibited, and disclosed by companies, businesses, and other entities. Moving to the term ‘accounting’, it is a procedure of financial reporting. The next relevant term for this article is ‘accounting standards’. It is a set of uniform guidelines by which the accounting is to be done.

The scope of this article, i.e., Section 133 of the Companies Act, 2013, which mainly talks about the power of the government to prescribe accounting standards. These standards are designed to maintain consistency, authenticity, reliability, and equivalence of financial statements across the country.

Some definitions necessary for the understanding of Section 133

Section 133 of the 2013 Act predominantly talks about the accounting standards that the government is supposed to prescribe in consultation with Institute of Chartered Accountants of India (hereinafter referred to as ICAI) and the National Financial Reporting Authority (hereinafter referred to as NFRA), as discussed in the later part of the article. To comprehend this section, it is pertinent to learn certain terms, which are defined as follows:

Financial reporting

In simple terms, financial reporting is a method of producing financial statements for a business, a company or any entity. It is a method of disclosing the financial status of the concerned entity to its stakeholders, investors, creditors, and other concerned regulatory agencies. Financial reporting is done with the aim of supplying financial data of the concerned entity that is being reported on. It thus makes it convenient for the prospective investors, creditors, and lenders in decision making relating to the allocation of resources to the entity.

To learn more about financial reporting, refer to the below-mentioned link- – https://resource.cdn.icai.org/67241bos54140cp1.pdf.

Accounting

According to the Black’s Law Dictionary, accounting is an act of incorporating, forming or settling of accounts. The ICAI defines accounting as a way or art of keeping records. The institute further states that the purpose of accounting is to meet the needs of rational and sound-decision makers. It is a process through which financial transactions of companies or businesses are recorded. It is a business language that communicates financial results of an entity to its stakeholders, investors, and other concerned parties.

The definition laid down by the American Institute of Certified Public Accountants is, “Accounting is the art of recording, classifying, and summarising in a significant manner and in terms of money, transactions and events which are, in part at least, of a financial character, and interpreting the result thereof.”

In order to maintain uniformity, reliability, consistency, and comparability in the accounting or in the financial statements, the Central Government prescribes certain standards known as ‘accounting standards’.

To know more about accounting, refer to the below-mentioned link- https://resource.cdn.icai.org/74599bos60479-fnd-cp1-u1.pdf.

Accounting standards

Generally speaking, accounting standards are basic policy documents that the government issues after consultation with the concerned authorities (as prescribed under the law). Section 2(2) of the 2013 Act defines ‘accounting standards’ as the standards of accounting formulated for companies or class of companies as enunciated under Section 133 of the 2013 Act. In India, the accounting standards are the written policy documents issued by the Central Government. The government issues these accounting standards after seeking advice from the concerned regulating authorities like the Ministry of Corporate Affairs (hereinafter referred to as MCA) and the NFRA.

While formulating or issuing such accounting standards, the government and other regulating authorities are obligated to keep in mind the below mentioned points relating to the financial transactions, namely;

the recognition or acknowledgment of financial events;
the measurement of financial transactions;
transparency in presentation of financial statements and events in such a way or manner that it is easily intelligible to the reader; and
disclosure in accordance with necessary provisions. These disclosures must be in a way that the stakeholders, the general public, and the potential investors are able to comprehend and get an insight on the financial statements. This is so, so that it facilitates an informed decision by the concerned persons.

The objective is to facilitate the circulation of valuable financial data to the potential investors, stakeholders, and other interested parties who are concerned with the company’s economic performance. Setting up such standards eliminates the chances of depending upon other alternatives of accounting in preparation of financial statements within the ambit of reasonableness. This also facilitates easy comparison of financial statements of various enterprises.

J.K. Industries Limited and anr. v. Union of India and ors. (2007)

In the case of J.K. Industries, it was held that accounting standards are basically issued policy statements and documents formulated by the ICAI. These standards establish rules relating to recognition, measurement, presentation, and disclosure of financial statements, which in turn ensures that enterprises follow a standard set of accounting policies. These are true, fair and transparent. Based on a number of accounting principles, they aim to arrive at the true accounting income.

The institute aims to shift the old traditional method of matching to the fair value principle. This ensures the determination of true income. This sole purpose of formulating accounting standards is shifting from traditional accounting methods to fair valuation. With the advent of globalisation, the standard accounting principles seek to reconcile the accounts of Indian companies with that of their foreign partners associated with their ventures. The purpose is to bridge the gap between the Indian Accounting Standards (Ind AS) and the International Financial System (IFS). Formulation of methods like deferred tax accounting, segment reporting, etc. are some of the methods brought by the institute and the government for bridging this gap.

Benefits of setting up of accounting standards

The issuance of such a written policy document, covering the aspects of recognition, measurement, presentation and disclosure of accounting transactions in the financial statements, has certain benefits that play a very crucial role in standardising diverse policies of accounting. These standards up to a great extent eliminate the possibility of non-comparability of financial statements and prescribe a standard set of accounting policies. This improves the reliability of the financial statements.

In crucial areas, often the concerned law does not require disclosing certain necessary information. Setting up of accounting standards may call for disclosure beyond what is prescribed in the law. This requirement for additional disclosure helps the readers to understand the accounting treatments done in the financial statements.

Also, setting up such standards helps in comparing the financial statements of companies situated across various parts of the country and the world. Accounting standards increase the credibility and alleviates comparability, along with minimising the scope of creative accounting.

Section 133 : an overview

According to Section 133 of the Companies Act, 2013, the central government has been given the power to prescribe accounting standards. This government is empowered to prescribe standards of accounting based on the recommendations, advice, or suggestions given by the ICAI, and the same is done after consulting with the NFRA. The suggestions given by NFRC are examined, along with the recommendations made by ICAI, and thereafter the government prescribes accounting standards.

The government prescribes such accounting standards by giving due consideration to the economic and legal environment of the country, along with an aim to converge with the International Financial Reporting Standards (hereinafter referred to as IFRS). The copyright for the same is held by the foundation of IFRS.

A proviso clause was added to the section by the Second Order dated 29th March 2016 which states that until the NFRA is constituted under Section 132 of the Companies Act, 2013 the government may prescribe the standards as recommended by the ICAI which is formed under Section 3 of the Chartered Accountants Act, 1949 . The same shall be done after consultation and examination of the advice and suggestions given by the National Advisory Committee on Accounting Standards constituted under Section 210A of the Companies Act, 1956 .

Rules relating to the Section 133 of the 2013 Act

Apart from Section 133 of the Companies Act, 2013 the central government has also formulated certain rules for governing and regulating the accounting standards in India. Mostly, these are in accordance with the international standards of accounting. Let’s have an overview of the rules applicable on the accounting standards in India.

Companies (Accounts) Rule, 2014

The 2014 Rules were formulated by the central government in pursuance to the powers conferred on them by Sections 128(1) and (3), 129(3), 133, 134, 135(4), 136(1), 137, 138 read with Section 469 of the 2013 Act. Also, in replacement of the Companies (Central Government’s) General Rules and Forms, 1956 and any other rules in existence formulated under the Companies Act, 1956 for this subject matter.

Rule relating to accounting standards

Rule 7 of the 2014 Rules lays down the provision relating to “transitional provisions relating to accounting standards”.

Rule 7(1) states that unless new rules, regulations, and guidelines are formulated in relation to accounting standards as per Section 133 of the 2013 Act, the prevailing standards shall be as laid down under the Companies Act, 1956.

Rule 7(2) states that until the constitution of the NFRA (under Section 132 of the 2013 Act), the Central Government can lay down accounting standards as recommended by the ICAI. Also, consultation must be done with the National Advisory Committee on Accounting Standards (made under Section 210A of 1956 Act), and after examining the formulated guidelines for the standards of accounting.

Other provisions

Rule 3 of the 2014 Rules states that the books of accounts along with other relevant paper books must be kept in electronic records. Also, these must be available in India for easy access, when and where required. Also, it is important that the originality (format in which these were noted) of the concerned books of accounts and other books must be maintained.

Rule 4 provides provision pertaining to the conditions relating to maintenance and inspection of financial information by the directors. It states that the books of accounts of the companies which are kept and maintained outside the country are supposed to be sent to the registered office at the scheduled intervals. These records shall be kept open for inspection by the directors. By an amendment made in 2015 (Companies (Accounts) Second Amendment Rules, 2015) a few forms were amended and added which contained the formatting and other information relating to keeping of financial statements.

Further, Rule 5 provides for the format of statement which has certain salient features of financial statements of subsidiaries. As per the rule, the financial statements must be in a manner specified under Form AOC-1. Whereas, Rule 6 provides for the manner in which consolidation of accounts shall be done. The same shall be done in accordance with Schedule III of the 2013 Act and the accounting standards. In the provision of the rule it is provided that since the companies covered under Section 129(3) are not required to formulate financial statements under the standards of accounting, compliance with Schedule III of the 2013 Act is sufficient. Further, an amendment in the Rule 6 was done by which a proviso was added to the Rule, which categorically states regarding the non applicability of this provision in certain situations. (amendment in proviso to the Rule 6)

Further, Rule 8 lays down provisions with respect to what details and information are to be included in the board’s report. Details like conservation of energy, technology absorption, Foreign exchange earnings and Outgo, and other details specifically mentioned in the rule are supposed to be a part of the Board’s report. The particulars that a board report shall include are enunciated under Form AOC-2.

Further as per Rule 9 the disclosure of the Corporate Social Responsibility Policy (CSR Policy) in the Board’s report and on the website of the company (if any) is mandatory.

Rules 10 and 11 of the 2014 Rule provides for further essential information regarding the financial statements’ performance and certain fees relating to it. As per this rule the concerned contents shall be as specified in Form AOC-3.

Rule 12 provides for the filing of financial statements with the registrar, which shall be in the manner specified in Form AOC-4. It also provides for the fees that are to be paid in relation to this.

Rule 13 provides for the mandatory appointment of an internal auditor by the companies. It provides a detailed description of which companies are required to appoint an internal auditor.

To read the latest version of the amended rules (as amended on June 2022) of the above 2014 Rules, refer to this link- https://www.aubsp.com/companies-accounts-rules-2014/

Companies (Indian Accounting Standard) Rules, 2015

The Central Government has made these 2015 Rules in regards to the power conferred to it by virtue of Section 133 of the 2013 Act and 210A(1) of the 1956 Act. These rules have been formulated by the Central Government in consultation with the National Advisory Committee on Accounting Standards.

The enforcement date of the rule as mentioned in Rule 1 is 01.04.2015. The second rule of the 2014 Rules lays down the definitions of certain important terms like ‘accounting standards, entity, act, annexure, etc., for clearing the ambiguity in interpreting the language and meaning of the rules.

Applicability of accounting standards

Rule 3 of the 2015 Rules lays down provisions pertaining to the applicability of the Indian Accounting Standards.

Clause 1 states that the standards of accounting as mentioned in the Annexures to this rule shall be termed as ‘Indian Accounting Standards’. Further, it states that it shall be applicable to the companies specified in Rule 4.
Clause 2 states that the companies other than the ones mentioned in these rules shall have the accounting standards as specified in the Annexures to the Companies (Accounting Standards) Rules, 2006.
Clause 3 states that the concerned companies as specified or listed in these rules in the Annexure shall mandatorily stick to these accounting standards only.
Clause 4 clarifies that the companies which will not follow these accounting standards as specified in the annexures, shall specifically comply with standards of 2006 Accounting Standard Rules.

Obligation to comply with the Indian Accounting Standards

The mandatory obligation for the compliance of the Indian Accounting Standards (Ind AS) by the concerned authorities is dealt with under Rule 4 of the 2015 Rules.

Clause 1 of the Rule 4 provides for certain manners and guidelines which the companies and their auditors are supposed to follow while preparing the financial statements and the books of accounts as per the Indian Accounting Standards. Following are the manners and guidelines set as per the clause 1:

Any company may follow the Ind AS for preparing of the financial statements for the accounting period starting on or from 1.04.2015 with the comparatives for the term ending on 31.03.2015, or thereafter;
A list is provided of the companies that shall follow the Indian Accounting Standards for the accounting period starting on or from 1.04.2016 with the comparatives for the term ending on 31.03.2016, or thereafter;
A list is provided of the companies that shall follow the Indian Accounting Standards for the accounting period starting on or from 1.04.2017 with the comparatives for the term ending on 31.03.2017, or thereafter;

The Indian accounting standards as amended from the year to year basis in regards to the 2015 Rules can be accessed by clicking on the below mentioned link. https://www.icai.org/post.html?post_id=12125.

Companies (Accounting Standards) Rules, 2021

The concerned authority of the Central Government, i.e., the Ministry of Corporate Affairs released the notification of these 2021 Rules on 23.06.2021. These rules shall come into force with respect to the commencement of the accounting period commencing on or after 1.04.2021.

Rule 1 and 2 of the 2021 Rules talk about the commencement date, title and important definitions for the rules, respectively.

Accounting Standards

Rule 3 of the 2021 Rules lays down that the Central Government categorically mentions Accounting Standards 1 – 5, 7, and 9 – 27 as recommended by the ICAI. These standards are specified in the annexure to these rules. These standards will come into force in respect of the standards of accounting starting on or after 1.04.2021.

Obligation to comply with the Indian Accounting Standards

These standards shall be applicable to every company except the ones as notified under the 2015 rules, i.e., the Companies (Indian Accounting Standards) Rules, 2015. The auditors of the company shall mandatorily comply with these accounting standards.

Qualification for exemption or relaxation to the small and medium sized companies

Rule 5 talks about the qualification for exemption or relaxation to the small and medium sized companies. The exemption as granted under this rule is not available to those small and medium sized companies which previously did not fall in the category of small and medium sized companies. However, the ones who have been a small and medium sized company consecutively for two accounting periods.

A comprehensive compilation of the Indian Accounting standards as per these rules can be accessed through the below mentioned link. https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks/accounting-standards.html.

Conclusion

In conclusion, accounting standards are applicable to any entity or enterprise (be it in organised sector, cooperative, corporate or any other forms). It is applicable to the entities engaged in any commercial, business, or industrial activity, irrespective of the fact that they are profit oriented or not or they are a religious or charitable trust. Communication of the financial statements of any company or entity holds significant importance. In the absence of there being non uniformity in the accounting standards chances are that there may arise a problem in the evaluation of the financial statements. Also, the financial statements may due to the lack of uniformity and proper set of guidelines turn out to be misleading, tendentious, and may disrupt the originality of the statements.

The Central Government keeping in view the dire need of having a standard accounting system and to increase the reliability, adequacy, consistency, and comparability of these standards have formulated certain manners and rules in pursuance of which the Indian Accounting Standards formulated. The same is done in regards to the power conferred by virtue of Section 133 of the Companies Act, 2013, as discussed in detail in the article.

Frequently asked questions (FAQs)

What is the meaning of ‘Generally Accepted Accounting Principles’ (GAAP) ?

GAAP connotes a common set of accounting principles, standards, and procedures that are widely accepted methods of reporting of the financial activities of any entity or business. Every business or entity is required to follow these principles while financial reporting. It is a combination of authoritative standards which are set by concerned policy boards and widely accepted methods of recording and reporting accounting information. While talking about the international level these principles are called ‘International Financial Reporting Standards’. In India, these generally accepted principles are called Indian Accounting Standards.

Which are the important accounting events that the accounting standards deal with?

The accounting standards as issued by the Ministry of Corporate Affairs in consultation with ICAI and after the examination of the recommendations made by the NFRA deal with four major accounting events, namely;

recognition,
measurement,
presentation, and
disclosure of financial statements

What are some significant objectives that the government wishes to achieve by formulating standard accounting principles (Indian Accounting Standards) ?

Elimination of the issue of non-comparability of financial statements and thus, increasing reliability.
Providing a standard set of accounting policies, requirements for disclosure, and valuation norms.
Reduction of use of alternative methods for accounting.
Also, to facilitate proper, adequate, and reliable circulation of valuable financial data to the potential investors, stakeholders, and other interested parties, who are concerned with companies’ economic performance

What are some limitations of setting standards of accounting?

It becomes difficult to choose between different prevalent and reliable accounting methods, as every method may have its own uniqueness and reliability. Thus, often there arises difficulty in choosing between different alternative accounting treatments.
It is pertinent to note that accounting standards can never override the statute. Hence, setting up of accounting standards must be done within the ambit of the prevailing law.

Is there any list provided by the Central government relating to the Indian Accounting Standards?

The Central Government in consultation with the concerned authority and ICAI establishes certain standards which are to be followed by every company or any entity while preparing the financial statements. Also, these are usually in consonance with the generally accepted accounting principles.

List of Accounting Standards

No. of Accounting Standard (AS)	Title of Accounting Standard
AS-1	Disclosure of accounting policies
AS-2	Valuation of inventories
AS-3	Cash flow statements
AS-4	Contingencies and events occurring after balance sheet date
AS-5	Net profit or loss for the period, prior period items and changes in accounting policies
AS-7	Construction contracts accounting
AS-9	Revenue Recognition
AS-10	Property, Plant and Equipment
AS-11	The effects of changes in foreign exchange rates
AS-12	Government grants accounting
AS-13	Accounting for investments
AS-14	Accounting for amalgamations
AS-15	Employee benefits
AS-16	Borrowing costs
AS-17	Segment reporting
AS-18	Related party disclosures
AS-19	Leases
AS-20	Earnings per share
AS-21	Consolidated financial statements
AS-22	Accounting for taxes on income
AS-23	Accounting for investments in associates consolidated financial statements
AS-24	Discontinuing operations
AS-25	Interim financial reporting
AS-26	Intangible assets
AS-27	Financial reporting of interests in joint ventures
AS-28	Impairment of assets
AS-29	Provisions, contingent liabilities and contingent assets

List of Indian Accounting Standards

No. of Indian Accounting Standard	Title of Indian Accounting Standard
Ind AS 101	First time adoption of Ind AS
Ind AS 102	Share based payment
Ind AS 103	Business combination
Ind AS 104	Insurance contracts
Ind AS 105	Non-current assets held for sale and discontinued operations
Ind AS 106	Exploration for and evaluation of mineral resources
1Ind AS 07	Financial instruments: disclosures
Ind AS 108	Operating segments
Ind AS 109	Financial instruments
Ind AS 110	Consolidated financial statements
Ind AS 111	Joint arrangements
Ind AS 112	Disclosure of interests in other entities
Ind AS 113	Fair value measurement
Ind AS 114	Regulatory deferral accounts
Ind AS 115	Revenue from contracts with customers (applicable from April 2018)
Ind AS 116	Leases (Applicable from April 2019)
Ind AS 1	Presentation of financial statements
Ind AS 2	Inventories
Ind AS 7	Statement of cash flows
Ind AS 8	Accounting policies, changes in accounting estimates and errors
Ind AS 10	Events occurring after reporting period
Ind AS 11	Construction contracts (omitted by the Companies (Indian Accounting Standards) Amendment Rules, 2018)
Ind AS 12	Income taxes
Ind AS 16	Property, plant and equipment
Ind AS 19	Employee benefits
Ind AS 20	Accounting for Government grants and disclosure of government assistance
Ind AS 21	The effects of change in foreign exchange rates
Ind AS 23	Borrowing costs
Ind AS 24	Related party disclosures
Ind AS 27	Separate financial statements

References

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Development of international environmental conventions and its impact on Indian Environment Law

By

Sneha Mahawar

-

October 31, 2023

0

This article has been written by Prasenjeet Sudhakar Kirtikar pursuing Diploma in Corporate Litigation and edited by Shashwat Kaushik. In this article, we will discuss a few important conventions organised internationally to briefly understand the rationale behind them, their essential features and how our country, India, being a signatory, has taken steps to follow the guidelines of these conventions to formulate an environmental protection plan in the country.

This article has been published by Sneha Mahawar.

Introduction

The development of international environmental conventions has played a pivotal role in shaping and influencing environmental laws around the globe, including in India. These conventions serve as frameworks for countries to collaborate in addressing shared environmental challenges and promoting sustainable practises. In the context of India, the impact of these international agreements on environmental law has been significant.

During the second half of the 20th century, a sense of responsibility for the protection of the environment was developed at the international level. It’s not that there was no human consciousness paying attention to the balance of the ecosystem before that. However, the togetherness of nations to protect the environment can be observed from various conferences held at the global level in the later part of the 20^th century.

Development of international environmental conventions

Stockholm Conference, 1972

The United Nations Conference on Human Environment (UNCHE) was held in Stockholm, Sweden, from June 5 to 16, 1972. It was the first major attempt to solve global problems related to the environment through international agreements between various countries. There were 26 principles agreed upon and declared by the participating states, which are known as the “Magna Carta on Human Environment”. The first few principles helped formulate the concept of “sustainable development” to be achieved to safeguard the interests of the future generation of mankind.

The main contributions of the conference are as follows:

The Declaration of Human Environment

It is divided into two parts. The first part discusses the truths about man and his relationship with the environment, and the second part lays down 26 principles in terms of the rights and obligations of human beings towards nature.

The first part talks about how the environment plays a significant role in the livelihood and intellectual, social and spiritual growth of human beings. The second part explains the fundamental right of man to enjoy a healthy environment and his responsibility to protect and improve the environment for present and future generations. It also explains the responsibility of the state to prevent pollution of any kind and provide a healthy environment for all living beings and it is also an obligation to the state to cooperate in the development of international law related to pollution and environmental issues.

The Action Plan for the Human Environment

The Action Plan was divided into three parts:

To identify problems in the international environmental crisis;
Environmental management;
Supporting measures such as education and training.

World Environmental Day

It was unanimously agreed by all the signatories that World Environment Day will be observed on June 5th every year.

Resolution on Nuclear Weapon Tests

A resolution was adopted by the Conference to prohibit and condemn nuclear weapon tests, which are specifically carried out in an open atmosphere.

Resolution on Institutional and Financial Agreements

It was decided that there will be a Governing Council for the implementation of environmental programmes, an Environment Secretariat to coordinate such programmes and advise international organisations, and an Environmental Coordination Board to achieve efficient coordination of the United Nations Environmental Programme (UNEP). There will be a voluntary Environmental Fund established for the implementation of environmental programmes.

Nairobi Declaration on Human Environment, 1982

The United Nations convened a conference in Nairobi from May 10th to May 18th, 1982, to celebrate the 10th anniversary of the Stockholm Conference held in 1972. Some important declarations of the conference are as follows:

The relevance and importance of the Stockholm Declaration were reaffirmed.
Poverty and misuse of natural resources are two main reasons for the deterioration of the environment.
International cooperation and guidelines are paramount to individual countries in framing their environmental policies.
There is a need to initiate concrete measures to prevent damage to the environment.

In addition to the above initiatives, there were various conventions held by the United Nations for environmental protection, such as:

UN Convention on the Law of the Sea for regulation of use of seas, harbours and marine resources
Vienna Convention on Ozone Layer Protection, 1985, to have systematic research to understand the effect of ozone diffusion on environment & economic changes.
Montreal Protocol on Substances That Deplete the Ozone Layer, 1987, proved to be a legally binding treaty determined to protect the Ozone Layer by taking precautionary measures by controlling total global emissions of substances causing depletion of Ozone Layer.
The Brundtland Commission Report, 1987, the Commission presented its report under the title “Our Common Future,” emphasising on the concept of “sustainable development.” As per the Commission, “sustainable development is the development which meets the needs of the present without compromising with the ability of the future generations to meet their own needs.”

However, out of all the conventions held globally, the Stockholm Conference and the Brundtland Report laid the groundwork for the United Nations Conference on Environment and Development (UNCED), also known as the Earth Summit or Rio Summit, held in Rio de Janeiro, Brazil, in June 1992.

The Earth Summit, 1992

The Rio Summit or Earth Summit was particularly inspired by the Brundtland Report of 1987, which forced individuals and organisations to rethink emerging environmental problems from the perspective of sustainable development.

The Earth Summit-1992 made remarkable achievements in the form of the following important documents:

The Rio Declaration on Environment and Development, which framed the rights and obligations of the state signatories for environmental protection.
Agenda 21 is a blueprint for global action to adopt sustainable development for the protection of the environment.
The Convention on Climate Change aimed to prevent global climate change to avoid environmental degradation.
The Convention on Bio-diversity emphasises the conservation of ecosystems.
Forest principles to support sustainable management of forests.

In support of the guidelines provided by the Earth Summit-1992, below are a few steps taken by the United Nations:

UN Commission on Sustainable Development, 1993: The main objective of the Commission was to ensure effective follow of the principles laid down in the Earth Summit-1992 and enhance international cooperation. The commission was also to examine the progress of the implementation of Agenda 21 and submit its recommendation to the UN General Assembly.
Intergovernmental Panel on Climate Change (IPCC): The Panel was to make periodic assessments of the scientific, technical and socio-economic impacts of climate change and suggest measures for improvement.
The Earth Summit-1997: It was a special session of the UN Assembly to check on the progress of the responsibilities of the signatories assigned to the Earth Summit-1992. It is also known as Rio+5, as it was held five years after the 1992 Rio Earth Summit-1992.

The Second Earth Summit, 2002

It was held to solve problems identified at the Earth Summit-1992 by fighting against poverty, overpopulation and climate change. It mainly focused on collective strength of member states and their cooperation, women’s empowerment, access to basic requirements, etc.

Below are a few more developments after the Second Earth Summit, 2002:

The Kyoto Protocol of 2005 was another effort made by the UN to protect the global environment from pollution.
The Copenhagen Accord of 2009, inspired by the Bali Action Plan of 2007, resulted in effective international responses to climate change.
The United Nations Climate Change Conference in Cancun, Mexico, was held in Cancun (Mexico). The signatories decided to lower the industrial carbon emission level. The summit successfully managed to resolve the disputes between the countries in relation to its objectives.
To discuss the achievements and failures of the roadmap framed in the Earth Summit-1992, another Earth Summit was held in 2012, i.e., after 20 years, which is called the UN Environmental World Summit on Sustainable Development, 2012, also known as the Rio+20 Summit.

The UN Environmental World Summit on Sustainable Development, 2012 (the Rio+20 Summit)

It was attended by 172 government officials, heads of countries, many NGOs and environmental experts from different countries. It thoroughly discussed the documents of previous conventions and also made legally binding documents open for signature.

India, though it supported all the resolutions and upheld the principles of the conventions, expressed greater cooperation from developed countries to developing countries to achieve socio-economic growth for their populations.

The UN Framework Convention on Climate Change (UNFCCC)

It was held in Paris to achieve a binding and universal agreement to reduce the emission of greenhouse gases and the global warming effect. The organising committee expected an agreement to set up a goal of limiting global warming below 2 degrees Celsius and further below in the upcoming years. The commitments of the conference were estimated to limit global warming to 2.7 by 2100.

Impact on Indian Environmental Law

Let us try to understand how India has responded to a few of the major international conventions mentioned above.

Stockholm Conference, 1972

The conference inspired the Indian Parliamentary System to enact the Water (Prevention and Control of Pollution) Act-1974, the Air (Prevention and Control of Pollution) Act-1981 and the Environment (Protection) Act-1986 to curb water, air and environmental pollution, respectively. These acts were formulated as per the guidelines provided in the conference, e.g., the formation of prevention and control boards at various levels and providing them with vast powers to punish the polluter.

The Forest (Conservation) Act-1980 was enacted to control deforestation and gave powers to appeal to the National Green Tribunal established under the National Green Tribunal Act- 2010.

The concept of Environment Impact Assessments (EIA) plays a very significant role in the protection of the environment and economic growth. This concept was formulated at the Stockholm Conference in 1972 and introduced in India in 1978 for a complete assessment of the environment by using various criteria before implementing government projects. It is mandatory for the government to conduct EIA before starting projects like mining, river valleys, thermal power, atomic power, airports, new towns and infrastructure.

The Brundtland Commission report, 1987

The report very specifically points out the importance of achieving every kind of growth together. It mainly focuses on the concept of “sustainable development.”.

The Supreme Court of India, for the first time in Vellore Citizens Welfare Forum vs. Union of India and Ors. (1996), has discussed the concept of sustainable development as being accepted as a part of the law of the land and given its decision in this case as per the “precautionary principle” and “polluter pays principle” of sustainable development. Thereafter, in various cases, the importance of sustainable development was emphasised by the Apex Court, such as the Bichhri Village case, Pradeep Krishen vs. Union of India and Ors. (1996), and the Bhopal Gas Disaster case. Also, the Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, was enacted to protect the rights of aborigines living on forest produce.

The concept of sustainable development inspired Indian legislation to enact the Public Liability Insurance Act, 1991, to provide immediate relief to persons affected by accidents due to hazardous substances. It also paved the way for designing the Coastal Regulation Zone (CRZ) as per the notification of 1991 to protect coastal areas and ocean resources from pollution.

The Earth Summit, 1992

The Wild Life (Protection) Act, 1972, was amended in 2002 to meet the guidelines provided in Earth Summit, 1992 for the protection of wildlife in the reserved area as per the Rio Declaration on Environment and Development.

The Biological Diversity Act, 2002, was enacted by the Indian Parliament to provide conservation of biological diversity, sustainable use of its components and fair and equitable sharing of benefits arising out of the use of biological resources and knowledge. The Act was to conserve and use biological diversity, to respect and protect the knowledge of the local community, to share the benefits with local people,and to protect and rehabilitate threatened species.

The Protection of Plant Varieties and Farmers Rights Act, 2001, was enacted by the Parliament of India to recognise the contribution of private breeders as well as farmers in plant breeding activity, thus supporting biological diversity and helping to build a healthy ecosystem.

UNFCCC, 2015

India, being a signatory to the Paris agreement, submitted its new action plan to the Convention. The document Intended Nationally Determined Contribution (INDC) talks about India’s plan to prevent the average global temperature from rising by about two degrees Celsius and measures to be taken by the Republic of India.

Let us discuss some of the landmark judgements given by the Indian judiciary that are in line with international norms related to environmental protection to achieve sustainable development.

In Indian Council for Enviro-Legal Action vs. Union of India and Ors. (1996) (popularly known as the BICHHRI village case): A toxic slug out of the plant percolated deep into the earth, polluting water in the wells and streams and rendering it unfit for human consumption. The Supreme Court directed the government to issue remedial measures, asked villagers to claim for damages and also closed the plant with immediate effect.

This landmark judgement followed the “polluter pays principle” and emphasised the duty of the state to take care of public health.

In Tarun Bharat Sangh, Alwar vs. Union of India and Ors. (1993), the Supreme Court rejected the plea of the state government to allow private agencies to carry out mining operations inside areas notified as Sanctuary, National Park and other protected forests. Thus acting on the international regulations provided in the Earth Summit, to which India is a signatory.

India has been tirelessly working on the protection of the environment and formulating its national policies in accordance with the guidelines provided in further conventions such as the World Summit in 2002, the Kyoto Protocol, and the Rio+20 Summit in 2012.

In M. C. Mehta and Anr. vs. Union of India and Ors. (1987) (Oleum Gas Leakage Case), the oleum gas leakage case involved a fertiliser plant, Shriram Food and Fertilisers Ltd., in the densely populated area of Delhi. The plant emitted hazardous substances, posing a threat to the health of around 200,000 people residing nearby. As per the polluter pays principle, it was the strict liability of the company to pay for damages.

In M.C. Mehta vs. Union of India and Ors. (1996) (Taj Mahal Case), the Supreme Court directed the industries operating in the Taj Trapezium Zone causing harm to the Taj Mahal and surrounding area to relocate and also protected the right to livelihood of the workers of such industries. Thus practising the principles of sustainable development.

Conclusion

India, being an emerging superpower, has always acted responsibly towards its obligation to curb environmental protection issues. The Republic of India, through its organs like the judiciary, parliament and bureaucracy, strives hard to match international guidelines with Indian culture. It ensures that while coordinating with the international conventions, the traditional, social and cultural spirit of the Indian masses remains undisturbed.

India has also played a significant role in initiating international conventions and guiding the world to achieve the goal of sustainable development. While achieving socio-economic growth and protection of the environment, India strongly advocates protection of the interests of developing nations on every international forum. However, achieving the ultimate goal of socioeconomic growth as well as environmental protection still has a long way to go.

References

https://www.indiacode.nic.in/
https://indiankanoon.org/
Environmental Law: a book by P. S. Jaswal and Nishtha Jaswal
Environmental Law: a book by Dr. V. N. Paranjape
https://www.redalyc.org/journal/7039/703973419004/html/
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1144&context=ijli

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An overview of concept of business liaisons in companies

By

Sneha Mahawar

-

October 31, 2023

0

This article has been written by Kanishka Singh pursuing Diploma in Intellectual Property, Media and Entertainment Laws and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Introduction

Liaison is often defined as cooperation among different entities or organisations. It is also referred to as the exchange of information among various organisations. In the corporate world, a business liaison is regarded as a trained professional who performs a variety of duties. These duties include maintaining and building relationships, exchanging information and promoting operations. These are the individuals who are appointed by the company to act as a point of contact outside or inside the company. Liaisons happen in both medium and large companies because direct communication from the top management is not practically possible. Communication often refers to imparting or exchanging information either by speaking, writing, or using some other medium. It plays an integral role as it helps to transmit information, ideas, thoughts, and emotions. Therefore, effective communication is a must to establish a successful business.

Meaning of business liaison

Business liaison is one of the most commonly used methods in the corporate world. It helps to maintain and build relationships between the organisations and their external partners. It also aids in maintaining relationships between internal departments. With the advancement of technology, the scope of business liaison has also been expanded. It is done through equipment such as acquisitions, setting up for trade shows, outsourcing of data storage, designing an in-house end-user tool, etc. The other responsibilities of business liaison include negotiating contracts with Clients, securing new Opportunities for the Company, Communicating with customers related to changes in products, services, rates, and policies, Coordinating events such as trade shows, conventions, or seminars, assisting in developing market strategies, etc.

Business liaison and government

Business liaison is not limited to the corporate world. It has also expanded to the government sector. These days, business liaisons are working with government agencies. They act as representatives of corporations, business associations, and commercial organisations. They often coordinate activities with other departments, such as compliance, public relations, and business development. This led to the establishment of strong relationships with the businesses. It has happened because of regular face-to-face interactions, which help foster support as well as encourage participation. The main role of business liaisons in the government sector includes:

Developing and executing effective government strategies that are business-friendly in nature.
To establish a productive and cordial relationship with government officials.
To monitor and analyse the policies, legislation, and regulations of the state.
To identify the government funding, grants, and partnerships that are aligned with the company’s objectives.

Even India has taken steps to interlink business liaison and government. The country has established an office to act as a communication channel between the parent company, which has settled abroad. Moreover, foreign companies also started to register themselves in India to explore and support the business opportunities in the country.

Business liaison and IT

With the rise of technology, business liaisons have also integrated their approach with the IT sector. This has enabled the team to provide integrated support and services to the shareholders. The inclusion of IT has helped clients and partners understand, explore and acquire new technological solutions. Moreover, it also aids in the management and monitoring of budget allocations, as well as the preparation and finalisation of major purchase orders.

The interconnection between Liasion and IT has helped the companies understand the business strategy as well as identify technologies that would help enhance the organization’s business goals. With the advancement of society, the inclusion of IT has become a necessity. One of the primary responsibilities of the corporate technology liaison is to represent the needs and requirements of the company. Aside from this, it is also used to track and trend software licencing, compliances, etc., as well as create and edit executive proposals for the leadership meetings. Moreover, it has been a great aid for nontechnical people to understand technology constraints in a simplified manner.

Business liaison and health care

Business liaision has expanded its scope in the health care sector too. It has helped in developing and maintaining cordial relationships with the partners, hospital system, and technology vendors. It is used as consultative support as well as to create value and identify effective solutions by managing research data. It also helped to maintain and build relationships with current and prospective healthcare clients. This encourages maximising revenue as well as a business relationship. Serving as intermediaries and admitting new patients or medical facilities are other roles for the business liaison. Aside from all this, liaisons assist in scheduling appointments, treatment, and follow-up with patients.

Overview of board of liaison

For effective liaison within the organisation, there has been the establishment of a board of liaisons. It also facilitates the work of the Committee/jury as well as aids in communicating with the other members. It is responsible for facilitating effective communication between the CEO and the board of directors. The board of liaisons works directly with the CEO and Chief of Staff and reviews their day-to-day functions. It also coordinates with the CEO related to public board meetings and holds direct communications with the board related to CEO initiatives and priorities.

Functions of the board of liaison

Some of the functions of the board of liaisons are:

Attending board meetings, Sub meetings, and CEO meetings on a regular basis. It also includes other meetings that are requested by the CEO.
Information, questions, and feedback happened between the two parties as per their request.
To coordinate and facilitate strategic brainstorming as well as to prepare problem-solving sessions.
To prepare presentations and metrics for strategic invitations.
Communicate with the members as well as look at their progress throughout the year.
To work closely with the executive director, executive leadership team, and development department on board communication and planning.

Members

The Board of Liaisons often comprises a committee, jury, advisory board, or task force (staff liaisons). They are appointed by the President and elect and maintain a connection between the Board of Directors and the Board of Liaisons. The committee assists in the preparation of the agenda as well as its distribution among the committee members. It also plans the agenda for meetings or conference calls and consults with the executive board liaison. The committee is handled by the committee chair, who works closely with the co-chair and vice chair. While the staff liaison assists in setting up conference calls or webinars. It acts as a support for the board liaison. Moreover, it reviews and updates committees or juries related to charges.

Executive managers

Executive managers are defined as senior leaders whose main responsibility is to supervise the company’s developmental, strategic, and financial decisions. It helps to meet departmental goals as well as focus on implementing policies and procedures. It assists in managing contracts and negotiations. It supervises departmental operations and activities as well as ensures that they run smoothly. The other responsibilities include cooperation with other managers, reporting to upper management, etc. To be appointed as an executive manager, a person needs to have at least 5 years of experience as well as a Master of Business Administration.

Executive managers and board of Liaison

Executive managers and the Board of Liaison work together in order to meet the organization’s objectives. They help to maintain communication and relationships between the board, committee, and staff. They are responsible for maintain confidential administrative support for Board and Executive directors, as well as provide administrative support by managing calendars, appointments, conference calls, etc. It also researches, drafts, edits, and compiles documents for the board. By providing High-level coordination, it ensures effective planning and coordination among the President, Ceo, and Board of meetings. Moreover, executive managers process invoices and cash advances as well as coordinate with executive travel and arrange logistics for a wide range of events.

Liaison officers

Liaison officers are considered employees whose main responsibilities are to build relationships and maintain mutually beneficial relationships, facilities, and communications. It also coordinates various activities with agencies or organisations. They are generally part of the public relations team and act as company representatives. They streamline operations as well as handle public communications and coordinate efforts by scheduling meetings for the organisations. They also act as technical or subject matter for a person, agency, or organisation.

Types of liaison officers

Liaison officers are often found working in both the public and private sectors. They are employed in various sectors such as education, government, law, enforcement, militaries, and large organisations. They help to build and maintain relationships between two or more companies or organisations. They are responsible for coordinating multiple agencies. For instance, in the military, liaison officers are responsible for acting as a commanding officer’s personal representative and acting as a communication bridge between the commander and other liaisons, commanders, and staff officers.

Responsibilities

Liaison officers often work in high pace environments. Some of the responsibilities of the liaison officer are mentioned below:

Acting as a contact point for all agencies, organisations.
Acting as mediator.
Monitoring the status of investigations as well as ensuring they are completed on time.
To conduct interviews and investigations related to alleged abuse or neglect cases.
Facilitating meetings and conferences among the agencies.
Identifying the problem and conveying it to the groups where the dispute has arisen.
Providing information during major events or emergency situations.
Writing records as well as maintaining records of relevant information.

HR as liaison officer

Human resource managers act as a communication link between human resources and the company. They often coordinate with human resource activities as well as create a welcoming environment for new employees. They are responsible for other functions such as processing employees, time of the request, timekeeping, benefits enrollment, position descriptions, recruitment, hiring, onboarding, new hire orientation, training, performance management, etc. They also ensure hiring procedures, make checklists, and provide valuable resources to assist in the recruitment and hiring process. Human Resource Managers assist employees or supervisors with regard to the immigration process as well as help the new employee avail benefits from enrollment. They also redirect employees to gain appropriate benefits related to retirement, death and disability, and other personal insurance/benefits issues.

Middle managers as liaison officers

Middle managers are the people who are between the top management and the lower management. They are accountable for reporting to the top managers as well as guiding the lower management. Some examples of Middle managers are Factory Managers, division Managers, heads of Departments, etc. They hold responsibility for business functions within the company. They oversee the department administration and how lower management carries out the plans they have planned. They are responsible for making strategies at the departmental level that are based on organisational plans. They also interpret and inform organizational policies to the lower management. Moreover, they are the ones who deal with individuals, employees, and workers. They also monitor employees’ performance and assign them specific tasks. They are responsible for ensuring that processes and procedures are as per the organisational guidelines.

Conclusion

Liaison deals with the facilitation and communication between agencies, organisations, and external partners. It also deals with communications within the internal part of the organisation. It plays an important role as it helps the organisation ensure effective administration through effective communication among individuals, agencies, clients, and organisations. It ensures that the company’s objectives are met. The article tries to explore the overview of executive liaisons and how they help companies, organisations, and agencies. It also observed the roles and functions of other actors, such as liaison officers and the board of liaison, and highlighted their importance in today’s corporate world. The role of other actors, such as human resources and middle managers, enhances the meaning of executive liaison.

References

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

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

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An overview of criminalising marital rape

By

Vanshika Kapoor

-

October 31, 2023

0

This article has been written by Rupsa Chattopadhyay, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Table of Contents

Introduction

There is an existing debate about marital rape and its implications on the society we live in. On one side, there is a perception that marital rape is to be criminalised if we are to live in a civilised society where women are granted basic autonomy over their bodies.On the other hand, there is a vehement opposition to the criminalisation of marital rape. In the article, the attitude towards marital rape as well as the pervasive reluctance to criminalise it are discussed.

What is marital rape

Marital rape is rape committed within the institution of marriage. That is to say, it is the rape of one spouse by the other. Marital rape is an unwanted sexual intercourse by a husband on his wife by the use of force or when consent is not freely given. It is a disgrace to society that has scarred the trust and confidence of women in the legal system. There exists a huge population of people who are adversely impacted by the failure to criminalise marital rape. Marital rape is considered an aspect of domestic violence. Domestic violence is violence committed against a person by a person living in the same household.

Section 3 of the Protection of Women from Domestic Violence Act, 2005 states that acts of “sexual abuse” as well as “verbal and emotional abuse” are included in domestic violence. Marital rape is clearly covered by both.

According to the World Bank, over 100 countries have criminalised marital rape. India is among the 36 countries that have not criminalised marital rape. Though the rape laws of India have been amended several times, marital rape remains an exception to the definition of rape under Section 375 of the Indian Penal Code, 1860.

Historical perspective of marital rape

Marital rape is a gross violation of basic human rights. Historically, women have been considered the chattel of men. In several parts of the world, the rape of women was seen as a vandalization of men’s property.

The doctrine of coverture explains the attitude towards the identity of married women. The doctrine of coverture was a legal doctrine in which a married woman‘s identity was considered the same as that of her husband, and there was no distinction. After marriage, the legal rights of a woman are covered by her husband. A married woman had basically no separate legal existence.

Legal perspective

Section 375 of the Indian Penal Code, 1860, covers the provisions of rape, including gang rape and rape by employer. However, marital rape has been exempted under Exception 2 of Section 375. It states that sexual activities by a man with his wife are not considered rape as long as the wife is not under fifteen years of age.

In 2013, the Justice Verma Committee, formed after the Nirbhaya rape case, recommended criminalising marital rape. However, the following argument were given for the rejection of the idea: –

The criminalisation of marital rape will destabilise the institution of marriage.
Marriage gives implied consent for sex.
The burden of proof on man for proving his innocence becomes colossal.

The Bharatiya Nyaya Sanhita, 2023 has been introduced as a Bill in the Lok Sabha. Some changes have been introduced in the Bill that promise progress. Section 63, which defines rape, still exempts marital rape, though the age has been increased to 18 years. This shows that even in 2023, the need for criminalisation of marital rape is not felt by the Parliament.

The case of Independent Thought v. Union of India and Anr. (2017) was filed in the form of a civil writ petition. In this case, Independent Thought, a child rights organisation, challenged the validity of Exception 2 to Section 375. The Supreme Court held that sexual intercourse between a man and his wife between the ages of 15-18 without consent would amount to rape. Thus, the age of consent was increased from 15 to 18. However, no substantial change was brought about related to marital rape; only the age of consent was changed.

In the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018), it was reiterated that it is not possible for a husband to be prosecuted for the offence of rape under Section 376 of the IPC. This is because Section 375 of the Indian Penal Code, 1860, does not cover marital rape. Exception 2 to Section 375 states that the sexual activities of a man with his wife, not under the age of 18, do not amount to rape.

In the case of Khushbu Saifi v. Union of India and Anr. (2021), the Division Judge Bench of the Delhi High Court passed a split verdict on marital rape. One of the judges, Justice Rajiv Shakdher, held Exception 2 to Section 375 unconstitutional.

Justice C. Hari held that a distinction between married and unmarried couples cannot be made as there is a lack of rational nexus with the object of protecting a woman from sexual acts to which she does not consent.

The exception to marital rape fails to meet such a nexus. Here, the perpetrator is protected merely because of his relationship to the victim. There is an arbitrary distinction made between nonconsensual sexual acts against women simply based on such a relation. Justice Hari reiterated that the exception clause for marital rape violates Article 14 of the Constitution of India.

The failure to criminalise marital rape causes discrimination against women based on their marital status. Hence, marital rape violates Article 15 of the Indian Constitution.

Aside from this, Justice Shakdher mentioned that Section 375(2) is violative of Article 19(1)(a) of the Indian Constitution, which grants freedom of expression to every citizen of India. Such rights include the right to sexual autonomy as well as agency.

An unmarried woman who is a victim of rape can make a complaint under the criminal laws. However, a married woman who is a victim of marital rape lacks such a right. This is blatantly unjust. The offence remains the same, irrespective of the perpetrator. A woman’s right to withdraw her consent at any point in time is part of her right to life and personal liberty. This shows that marital rape is a violation of Article 21 of the Constitution of India as well. He mentioned that it is unjust that sex workers have the right to refuse sexual acts, but a married woman lacks such a right. Marital rape, which is given under Section 375(2), has to be called out. This will reflect that society does not condone the unconsensual sexual acts of a husband against his wife under the garb of marriage.

On the other hand, Justice C. Hari felt that the criminalisation of marital rape is not feasible now; several other factors are to be considered, and the criminalisation has to be done by the Legislature.

Justice Rajiv Shankar ruled against the criminalisation of marital rape. He observed that, as per the Indian Penal Code, there can be no rape within a subsisting marriage. There is no discrimination when non-consensual sexual acts within marriage are treated differently from those outside marriage. The exception 2 to Section 375 of the Indian Penal Code is based on a rational nexus that the Code seeks to achieve. Thus, it does not violate any right granted under Part III of the Indian Constitution. According to the Hon’ble Judge, the Court lacks the right to ascertain whether the object justifies such a distinction. A writ pertaining to the query would violate the boundaries of authority under Article 226 of the Indian Constitution.

Thus, from the split verdict passed by the Division Bench of the Delhi High Court, it appears that there are different views regarding marital rape in society.

The case is to be heard in the Supreme Court in Hrishikesh Sahoo vs. State of Karnataka (2018) by a three-judge bench. One of the judges hearing the matter is the Chief Justice of India- Justice D.Y. Chadrachud, the Chief Justice of India. The other judges are Justice P.S. Narasimha and Justice J.B. Pardiwala. In this case, the Apex Court is to give a verdict on whether the exception clause to marital rape is constitutional.

Perception of marital rape by society

In India, women are still considered the property of men. They are considered the property of their fathers or brothers, and after their marriage, their husbands. Women are entrusted to the care and protection of their husbands after their nuptials. Common folks think that marriage is a licence to sexual intercourse between a husband and wife and find it difficult to perceive that consent is required in such sexual intercourse. The same view is upheld by legislators and several judges.

Why marital rape is not criminalised

There are several reasons why marital rape has not been criminalised. Following are some of the reasons in India:

Lack of awareness

In India, there is a lack of understanding about the concept of consent. Sexual intercourse between a man and his wife is considered to be inevitable. The requirement of such consent is considered a mere formality and of no value. Hence, the need for the criminalisation of marital rape is not understood.

Difficulty in proving

Crimes like domestic violence and marital rape are committed within the confines of the home. It is difficult to collect evidence for conviction. Even if the victims wish to speak up, they are often persuaded to keep it to themselves and compromise. It becomes difficult to collect evidence and prove that such offences were committed.

Weapons of harassment

Section 498A of the Indian Penal Code, 1860, was considered to be a progressive law that upholds the rights of battered women. However, it was misused in several cases. It became a tool in cases of divorce to harass men and their relatives. It became a tool for vengeance against estranged husbands. It is feared that marital rape will become a similar tool in the hands of women to penalise them and make false allegations against them.

In Sushil Kumar Sharma vs. Union of India (2005), the Supreme Court held that there have been several instances where false cases of domestic violence have been filed with an ulterior motive. The acquittal in such cases fails to remove the black mark of accusation. Hence, some preventive measures are to be taken to prevent the misuse of Section 498A. The legislators have to find a way to ensure that false complaints are appropriately dealt with.

In Manju Ram Kalita vs. State of Assam (2009), the Supreme Court held that to lodge a complaint under Section 478A , the woman concerned must be subjected to cruelty for a consistent duration or immediately preceding the complaint. Mere quarrels do not amount to cruelty.

Reasons to criminalise marital rape

The following are some arguments in favour of criminalising marital rape:

Women considered chattel of men- If marital rape remains an exception to rape, the view that women are merely property of men will be upheld. This view will be damaging to the views of equality and gender justice. It is also a regressive notion about the existence of women. To reject such a view, criminalisation of marital rape is required.
Violation of Article 14- Rape is an offence under Section 375 and punished under Section 376 of the Indian Penal Code, 1860. However, marital rape is exempt. This leads to separate treatment of married and unmarried women. Married women are discriminated against and lack the remedy available to unmarried women in the face of the same offence. Such discrimination becomes violative of the right to equality granted under Article 14 of the Constitution of India. The husband being the perpetrator of the crime should not be a ground for exemption.
Violation of Article 21- Article 21 of the Constitution of India provides the right to life and personal liberty. This includes the right to live with dignity. Marital rape violates the rights of women. It leaves them stripped of basic dignity and respect. It forces them to live a life of utter degradation.

Conclusion

At present, there is a pervasive reluctance towards the criminalisation of marital rape. There are some valid reasons for scepticism about marital rape, particularly its misuse. Aside from it, there is a lack of awareness about the need for criminalisation of marital rape. There are archaic notions regarding the identity of married women and marriage being a licence for sexual intercourse.

However, failure to criminalise marital rape will have far reaching effects on the victims of marital rape. It causes systematic discrimination against married rape victims and unmarried ones.

The dilemma of the criminalisation of marital rape is a complex one. Awareness has to be spread at the societal level about the separate identity and individuality of married women. Men are to be taught about the concept of free consent and that marriage does not provide licence to sexual relations at whim.

Individuals are to be taught that baseless allegations of crime are not to be made. Such allegations weaken the credibility of the actual victims. Citizens are to be made vigilant about the implications of false accusations of crime.

There is a need for vigilance and education. Simply changing laws does not make an impact. However, laws are also needed to make social change. The criminalisation of marital rape has to come with such antecedents.

References

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Talaq : all you need to know

By

Vanshika Kapoor

-

October 30, 2023

0

This article was written by Mohammed Zafari, pursuing a Diploma in Corporate Litigation from LawSikho and edited by Koushik Chittella.

It has been published by Rachit Garg.

Introduction

Before we discuss the concept of talaq, we need to first understand what a marriage under Muslim law is. Nikah is an Arabic word that means “to unite”. According to the Hans Wehr dictionary of modern Arabic, it defines “nikah” as a marriage, marriage contract, or wedlock. The origin of Nikah is quite famous. In ancient times, nikah took place against the will of either marrying parties, but it changed as time progressed.

If a Muslim male wants to marry, the consent of the bride is mandatory. It is done in the presence of two male witnesses. If this is not done, the nikah is considered void. Nikah is nothing but a religious ceremony that is made to unite the Muslim man and woman in holy matrimony, i.e., it is otherwise meant to make that marriage contract official through that Nikah ceremony. The nature of marriage under Muslim law is the same as a civil contract. It was observed by the Court in the case of Abdul Kadir vs. Salima (1866).

Sunni and Shia Muslims

Sunni Muslims constitute more than 80% of the Muslim population, and they follow Sunni law. They hold a strong belief in Allah and his prophet; they believe that the prophet is the messenger of God; belief is mandatorily required to enter paradise. Whereas Shia Muslims constitute the other 10-20% of the Muslim population. Shia Muslims believe that the Prophet publicly designated Hazrat Ali, his son-in-law and cousin, to lead the community after him, but Sunni Muslims do not accept this claim. In contrast, Sunnis maintain that the Prophet did not appoint any successor whatsoever and that the Muslim community had the right to elect its leader. This disagreement led to a schism between the two branches of Islam that persists to this day.

Conditions for a valid Muslim marriage

There are some conditions for a valid Muslim marriage; they are:

Capacity to Marry
Ijab (Offer) and Qubul (Acceptance)
Consent
Mehr
It should not amount to unlawful conjunction, i.e., via consanguinity (marrying blood relations like mother, daughter, grandmother, etc.), fosterage, or affinity.

Another condition that might affect the validity of the marriage is the case of marrying a woman who is undergoing iddat.

What is Talaq

Talaq is an Arabic word that means freeing or undoing a knot (which was tied during marriage). Whereas, in the eyes of the law and the jurists, it is a dissolution of marriage or the cancellation of its legality by pronouncing the word “Talaq” to his wife. Talaq was considered sinful in Islam. Allah encourages the marriage and discourages the discontinuation of the marriage. The Quran provided for “Talaq” as a remedy for the dissolution of marriage.

Who can pronounce Talaq

Only a husband can pronounce talaq, and the wife cannot pronounce it to her husband. If the wife wants to get separated from her husband, she has to follow the other modes of talaq instituted by the wife.

Conditions for a valid Talaq

There are two conditions required for talaq, i.e., capacity and free consent.

Capacity

Every Muslim who has attained the age of puberty is competent to pronounce talaq. If the husband is of unsound mind, then his guardian (who should be of sound mind) on behalf of him can pronounce Talaq. If the husband doesn’t have a guardian, Qazi or the judge has the right to dissolve the marriage in the interest of the husband.

Free consent

Except for Hanafi law, all other laws require the husband who is giving talaq to have free consent. Under Hanafi law, the husband can pronounce talaq under compulsion, coercion, undue influence, voluntary intoxication, etc., which is valid, and it can dissolve the marriage if talaq is pronounced under any of these conditions.

What is Iddat

Iddat/ Idda is an Arabic word meaning a period of waiting that falls under the purview of a wife alone. Here, the wife has to wait for a specified period before she remarries. It is of three types. They are:

Iddat in the case of talaq: In case of talaq, a mandatory period of 3 lunar months or 3 menstrual cycles has to be followed by the wife, where she can’t remarry or have a sexual relationship with other Muslim men.
Iddat in the case of the death of the husband: In case of death of the husband, the period of iddat is 4 lunar months and 10 days.
Iddat in the case of pregnancy: In the case of pregnancy, the iddat period has to be observed until she delivers the child.

Why is Iddat important

The reason behind women observing the Iddat period after every talaq is to ascertain whether the woman is pregnant, to check the certainty of paternity, and to avoid confusion about the parentage. The Iddat period also serves as an important aspect of property division and inheritance. If the wife is pregnant at the time of talaq, the child is considered to be the child of the former husband, hence having a right to inherit property from his or her father. If the wife is not pregnant, the property division is finalised at the end of the Iddat period, and the parties are no longer considered husband and wife.

Types of Talaq

Muslim law provides for different types of talaq. A dissolution of marriage can be done by the pronouncement of talaq by the husband or wife, through mutual consent, or through legal procedure.

Talaq by the husband

Talaq-ul-Sunnat

This form of talaq is considered to be the most acceptable form of talaq because the divorce doesn’t become final when talaq is pronounced, and there is always a possibility to compromise and reunite. This form of talaq is recognized by both Sunnis and Shias. This talaq is further classified into two types:

i)Talaq-e-Ahsan

ii)Talaq-e-Hasan

Let’s understand both of these types.

Talaq-e-Ahsan

In this form of talaq, the husband pronounces talaq to the wife once—a single pronouncement. Once the talaq is pronounced, a period of abstinence, or the period of iddat, has to be followed by the wife. A period of iddat is 90 days (3 months). If consummation (sexual intercourse) takes place during this period, it is implied that the talaq or divorce is revoked. But if no consummation takes place since talaq is pronounced, the marriage is dissolved, and the talaq cannot be revoked or becomes irrevocable.

Talaq-e-hasan

In this form of talaq, the husband pronounces talaq to his wife in three turns, i.e., three times, with a specified time gap of one month between the pronouncements. Thus, the duration of these three consecutive pronouncements is called the period of abstinence (iddat). If consummation or sexual intercourse happens during the period of abstinence or during the period of iddat, the talaq becomes void. This type of talaq is called the best practise of talaq as it doesn’t become final at once or in a single go but extends to a longer period, giving the couple a chance to revoke the divorce and live together again.

Talaq-e-Biddat

Unlike talaw-ul-sunnat, this form of talaq is entirely different. It is popularly known as triple talaq. Here, the talaq is pronounced three times in a single go, at once, or in a single breath, which is irrevocable. The Apex Court banned the practise of triple talaq in the case of Shayara Bano vs. Union of India (2017).

After the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, Section 3 of the Act declared the pronouncement of triple talaq, or talaq-e-biddat in words or in any other manner as illegal. The punishment for the same is mentioned as imprisonment for a period that can be extended up to 3 years and shall be liable to a fine.

Ila

Under this form of divorce, the husband declares that he will not have sexual intercourse with his wife. The wife observes iddat, and if the husband cohabits with the wife after such a pronouncement, Ila stands revoked. Once the period of iddat is over, the divorce becomes irrevocable.

Zihar

If the husband compares his wife with the prohibited relationship of his family, i.e., comparing his wife with his mother or sister and telling her that you are like my mother or sister, if he utters these words/comparisons to his wife, he frees her. This type of divorce is no longer in practise. He can cohabit with her within the 4 months period, provided he observes fasting for 2 months or provides food for at least sixty people.

Talaq by mutual consent

Divorce through mutual consent is done in the following ways:

Mubarat

There are many ways of divorce followed in many religions. Mubarat is a practise where the divorce is mutually agreed upon by the parties. Either of the parties can initiate this type of divorce. Here, one party has to propose the will of divorce, and the other has to accept it. After which, the wife has to observe iddat, which is 3 lunar months.

Khula

Khula is an Arabic word that literally means to “put off a thing or to take off clothes”. It is believed that spouses are like clothes to each other. When Khula is pronounced, it means to get rid of each other. Thus, the word itself can relate to the marital life to put off. It is a divorce initiated by the wife. She pays the consideration amount to her husband, and the husband must accept that consideration to make Khula valid. The consideration can be anything, including the paying back of the mehr (the amount paid to the bride by the groom during marriage). When the husband accepts the khula, it becomes irrevocable.

FAQs about Khula

What happens if Khula is not accepted by her husband?

In this case, the wife has to approach the court for judicial separation

What is the difference between Khula and Mubarat?

In the case of Shahadabi M. Isak v. Abdul Ajij Abdul Latif (1996), the Court gave a clear distinction between Khula and Mubarat, as “a mubarat divorce like Khula is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife and she desires a separation, the transaction is called Khula. When the aversion is mutual and both sides desire a separation, the transaction is called mubarat. The offer in a mubarat divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is incomplete (sic) and it operates as a talak-i-bain as in the case of Khula”.

Talaq by the wife

A Muslim wife can institute a divorce via talaq-e-tafweez.

Talaq-E-Tafweez

The word Tafweez here means “delegated”. The wife, through the delegated powers given by the husband, pronounces talaq to herself. The husband here delegates the power to either his wife or any third person to talaq if he doesn’t fulfil the promise made to his wife. Even if the husband delegated the power to others before, he wouldn’t lose his power to talaq his wife from his side. The most popular type of talaq-e-tafweez is “Ikhtiyar”, where the husband delegates the authority of pronouncing talaq to the wife.

Talaq by judicial decree

Lian

If the husband makes false charges of adultery against his wife, the wife has the right to seek divorce on the basis of this false allegation. If the wife hurts the husband’s feelings and the husband hits her back with allegations of infidelity against her, it cannot be used as a ground for divorce by the wife because it’s a meagre exchange of words between them. This was held in the case of Nurjahan Bibi vs. Md. Kazim Al (1976).

Faskh

Faskh means cancellation or annulment. According to this, when the wife needs to dissolve her marriage, she can approach Qazi and plead for the dissolution of marriage, which falls under the doctrine of faskh. Earlier, before the Dissolution of Muslim Marriages Act, 1939, came into force, only Sharia laws were available for Muslim women to plead for the dissolution of the marriage. So, she used to approach a third person called Qazi. As of now, Muslim women can dissolve or end their marriage through four modes:

Talaq-e-tafweez
Khula
Mubarat
Faskh

Grounds for divorce under Dissolution of Muslim Marriages Act, 1939

Under Section 2 of this Act, the grounds for divorce available to the wife are:

Failure to maintain the wife for a period of two years
Unheard or the whereabouts are unknown for four years.
The husband is sentenced to imprisonment for seven years or more.
The husband is impotent.
The husband has failed to perform marital obligations for a period of three years or more.
The marriage was solemnised before she attained the age of fifteen.
The husband has treated her with cruelty.
The husband is suffering from a venereal disease or has turned insane.

Conclusion

Thus, these are the types of talaq and the rules and explanations related to them. The main objective of talaq is to find the most possible ways for the husband and wife to live together, not to end their married life. It gives ample time for the couple to resolve the matter. There is a saying, “Time will answer everything, and time is the best solution to solve the problem.”

References

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

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

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Unravelling recent developments in children’s digital freedom regime in the USA

By

Sneha Mahawar

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October 30, 2023

0

digital- (1) — Image source - https://bit.ly/3kbZfDi

This article has been written by Kajal Arora and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The world is currently witnessing one of the most exhilarating phases of technological evolution ever. With the imminent rise of artificial intelligence, chatbots, voice recognition, robotics and the like, we are progressing into uncharted territories. With no law to regulate these impending developments, the issue of privacy is assuming its long-pending attention.

Even though technological advancements are comparatively new occurrences enthralling nations across the globe, these nations started taking stern action a long time ago in the age-old battle for securing privacy. This article delves into recent technological advancements and laws enacted to protect privacy in the United States.

Children’s Online Privacy Protection Rule (COPPA)

In a recent development, the tech giant Microsoft was fined up to 20 million dollars for violating the provisions of the Children’s Online Privacy Protection Act of 1998 by collecting the children’s data from their Xbox gaming system without the unequivocal consent of their parents. This upshot holds more importance than it seems prima facie, as it establishes the norm that the act preserves the privacy of children, which would also mean including their digital avatars, biometrics, health and other data. As per the act, for children aged below 13 years, any information ought to be collected after obtaining verifiable parental consent.

The Children’s Online Privacy Protection Act (for brevity, ‘COPPA’) is one of the very few legislations across the globe that exclusively aims to safeguard the online privacy of children. The Act defines a child as under 13 years of age. (Section 6501 of COPPA) It interdicts the owners of websites or online services from collecting any personal information about children. The term ‘personal information’ as defined under COPPA refers to the name, address, e-mail, phone number, social security code or any other sort of information that allows a virtual or physical way to contact the child.

As per the provisions of COPPA, every website or service provider is bound to make a comprehensive privacy policy that outlines the kind of information that the site collects, how it collects and store that information, the purpose of gathering this data, if it shares the information with any third parties, etc.

Even though the act has been in place for a long time, it is reported that more than 50% of apps in the USA do not comply with the basic requirements of COPPA. Whereas, 33% of apps do feature a privacy policy but make no disclosures whatsoever about COPPA.

COPPA 2.0

To address the fact that COPPA is still deemed inadequate to confront the intensifying battle over the privacy of children, COPPA 2.0 was recently reintroduced in the US Senate. The act intends to cover vulnerable children in the age group of 13-17 and teens within its ambit. It intends to expand the definitions under the act and covers websites and services that are reasonably likely to be used by minors. It directs them to follow fair information practises principles and it also bans targeted advertising on children and allows the users an extra layer of control over their information. Moreover, the improved version of COPPA gives the AG of the state power to enforce compliance with the act if a resident of that state has been ‘adversely affected’ by the actions of that website.

Kid’s Online Safety Act (KOSA)

Other than COPPA 2.0, the other bill awaiting clearance is the Kids Online Safety Act. The Kid’s Online Safety Act of 2022 (KOSA) is aimed at taking hold of the increasing suicide rates of children across the USA. It directs websites to stop displaying any self-harming content. It obligates users to set the strictest privacy settings for minors and also grants parents the right to control what their child sees and for how long.

California Consumer Privacy Act (CCPA)

California took the lead in this battle to protect privacy by enacting the California Consumer Privacy Act of 2018 (CCPA). The Act has been recently expanded by the enactment of the Consumer Privacy Rights Act (CPRA). The Act is effective from July 1, 2023, and fills a lot of lacunae left by COPPA. It increases the age of data consent to 16 and widens the scope of personal information. It increases privacy protection for ‘sensitive personal data’. It grants users elaborative control over their data.

California Age Appropriate Design Code Act (CAADCA)

Other than this, California recently enacted the California Age Appropriate Design Code Act (CAADCA), which goes into effect on July 1, 2024. It specifically regulates the collection, storage, processing and transfer of the data of children under the age of 18. It requires the websites to provide clear instructions for children to understand how their data is processed and in what manner. It imposes more obligations on the websites covered under the act and mandates them to conduct data protection assessments and estimate the age of their users.

In the discussion on privacy rights in the USA, it would be unfair not to state the possible emergence of the American Data Protection Privacy Act. It is federal legislation that aims to safeguard the privacy of citizens. It requires websites to publish a privacy policy that delves into detail about the collection, storage and transfer of data. It grants a bunch of rights to the users to ensure that they have control over their data. The bill doesn’t specifically deal with children, so the blog doesn’t deal with the legislation in detail but it’s a highly significant bill set to change the privacy regime in the USA for every citizen, major or minor.

Other developments

The United States Federal Trade Commission, under the leadership of Ms. Lisa Khan, has been actively playing the role of saviour whenever the privacy of people has been attacked. E-commerce giant Amazon was also fined up to $25 million by the US Federal Trade Commission for breaching children’s privacy by keeping their Alexa voice recordings. It was reported that Amazon retained the voice recordings even after repeated requests from the users to delete them.

Amazon’s other gripping device that boasts a smart way of securing the solitude of our homes is its Ring security camera. Recently, the Ring had to face a penalty of $5.8 million for mishandling its customer’s videos. It was reported that Ring gave its employees the unhindered right to access these videos. As part of its agreement with the US FTC, Ring has been commanded to disclose its privacy policy elaborately and inform users about the limits of access the company possesses to their data.

Last year, Epic Games was also fined heavily as its video game ‘Fortnite’ illegally collected the personal information of children and matched them with strangers using manipulative techniques. In the deal that was termed historic in the entire gaming industry, Epic Games agreed to pay $520 million as a fine to settle the accusations levelled by the FTC.

In 2019, in the most notorious breach ever, Google agreed to settle the FTC’s allegations of illegal data harvest from children on YouTube by paying over $170 million as a penalty. In another recent case, the FTC proposed a ban on Meta as it infringed on the privacy of children by misleading parents about the control of the Messenger Kids app.

Even though the blog here focuses on the regime in the USA, it must be noted that the cognizance of children’s privacy isn’t parochial. The Irish data protection commission penalised Instagram because it failed to protect the privacy of children and led to the publication of their personal data. Such developments can be noticed in the UK as well, where the information commissioner’s office imposed a huge penalty on TikTok for breaching GDPR by allowing minors to sign up for the app.

Conclusion

The impact of technological advancements on data protection can’t be abnegated. With the ease and convenience of these devices and technology, people have become accustomed to the succour provided by these tools and apps in their strenuous lives. However, what we fail to realise is that, with the comfort of the services they provide us with, they take hold of our personal data. Our personal information, when in the hands of any company without our explicit consent, grievously impacts our right to privacy. As technology marks its steps in the future, it’s significant that there are laws to regulate these newly found developments. We need to proceed with caution to ensure that, as the world goes forward, no one risks their privacy in the name of technological development.

Though a serious effort has been made via these laws to guard the privacy of children, they end up putting up more restrictions for them. In this socially developing world, we can’t treat children as oblivious kids who seem indifferent to changes taking place around them. The children of today are far more mindful of their rights and responsibilities. In such a situation, shackling their liberty and privacy and offering reins absolutely to the parents seems like another hurdle in their battle for privacy. Every individual, regardless of their age, should be entitled to digital freedom as an inherent right.

References

Schools of Muslim Law

By

Diganth Raj Sehgal

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October 30, 2023

0

Islamic-Law-Law-of-the-Muslim-World-eJournal.-June-14

This article is written by Suryansh Singh and updated by Gautam Badlani. This article mainly discusses the various schools of Muslim law.

It has been published by Rachit Garg.

Introduction

The Muslim Law is based on the teachings of the Quran and Prophet Mohammad. In all the circumstances where the explicit command is provided, it is faithfully provided but there have been many areas which are not covered by these sources and as a result, the great scholars had themselves devised their interpretation of what should be done in such a situation.

As these scholars provided their interpretations (Qiyas) regarding the Muslim Law, it led to various opinions among many of them and out such difference, different schools of Muslim Law originated. Each school has its own explanation and reasons for their interpretation and it often leads to conflict in judgments.

In the absence of express rules, it cannot be said that one school is better or higher positioned than other school and thus all the schools have been accepted as valid and if a person follows any of these schools, he is considered to be on the right path.

The Muslim personal law has a rich jurisprudential history because it is based on many admirable and revolutionary concepts. It introduced the concept of inheritance rights for women and was the first to recognize divorce by mutual concept. Many of these concepts have now been incorporated in the modern day legal systems.

Historical development of Muslim Law

The development of the Muslim Law can be largely classified into 5 different period. These are

622 to 632 AD

This period, also known as the Hazira era, refers to the last 10 years of Prophet’s life. This period began when the Prophet and his followers left Mecca and moved to Madina. The Prophet made divine revelations during this period and legislations were made based on these revelations.

632 to 661 AD

This period is also known as the Caliphate period. This period covers the 30 years after the death of the Prophet. During this period, first 4 Caliphs of Islam were elected. During this period, the divine communications of the Prophet were collected and organized into the holy book, Quran.

661 to 900 AD

The Islamic jurisprudence developed during this period. Two important developments during this period were that the office of the Caliph was made hereditary and the seat of Caliphate was shifted to Damascus.

900 to 1924 AD

During this period, the Shia and Sunni schools were established. This period witnessed scientific development of Islamic jurisprudence. The 4 Sunni schools were founded during this period. However, at th later part of this phase, the development of jurisprudence was stagnated. Law was framed on the basis of Ijtihad, that is, the collective interpretation of the jurists.

1924 AD to the present

In 1924 AD, the office of the Caliphate was established and the period after 1924 constitutes the fifth phase of the historical development of Islamic law. During this period, law was developed by Muftis, Moolah and Maulvis. In many Islamic countries, attempts have also been made to codify the Islamic law.

Shia and Sunni division

After the death of the Prophet, there was a dispute regarding the manner in which his successor should be chosen. One group was of the opinion that the successor of the Prophet should be elected. This sect is known as the Sunni sect. Abu Bakr was elected as the first Caliph and was chosen to head the Muslim community. The Sunni sect supports the election method on the ground that the Prophet had himself suggested that hisssuccessor would be chosen by election.

However, some people, including the Fatima, the daughter of the Prophet, believed that the successor of the Prophet should be based on succession. This group constituted the Shia sect. This group declared Ali, the son-in-law of the Prophet to be the first Imam.

Schools under Muslim Law

In Islam, the people have been divided into two sects having different views regarding certain aspects of Islam. Thus, the schools of Muslim law can be broadly classified into two categories:

Sunni Schools
Shia Schools

Sunni Schools

There are 4 different schools under the Sunni sect. These schools are based largely on the same principles and differ only on minor aspects. There are 4 sources of Muslim law. These 4 sources are the Quran, Ijma, Sunna and Qiyas. The differences in the 4 schools emerged because of the difference in the degree of reliance placed on the different sources. However, all the schools recognize the relevance and importance of all these 4 sources. The different schools of the Sunni sect are:

In Sunni sect, there are four major schools of Muslim law which are as follows;

A. Hanafi School

Hanafi School is the first and the most popular schools in Muslim law. Before being named Hanafi, this school was known as Koofa School which was based on the name of the city of Koofa in Iraq. Later, this school was renamed as Hanafi School based on the name of its founder Abu Hanafee.

The Prophet had not allowed his words and traditions from being written, the Hanafi School relied on the customs and decisions of the Muslim community. Thus, Hanafi School codified the precedent which in prevalence during that time among the Muslim community.

The founder of this school Abu Hanafee had not written any book for laying down the rules of this school and therefore this school had grown through his two disciples- Imam Muhammed and Imam Abu Yousuf. Both of them gave to the Juristic preference (Isthi Hasan) and codified the Ijma’s of that period.

This school became widely spread in various territories, as a result, the majority of Muslims in countries such as India, Pakistan, Syria, and Turkey belong to Hanafi School. In India, since the majority of Muslims are from Hanafi School, the Courts decide the case of a Sunni Muslim as per the Hanafi School unless it is specified that they belong to other schools.

In Hanafi School, Hedaya is the most important and authoritative book which was created over a period of 13 years by Ali bin Abu Baker al Marghinani. This book provides laws on various aspects except for the law of inheritance. Lord Warren Hasting tries to translate the Hedaya to English. He appointed many Muslim Scholars to translate the book.

But the Sirajiyya is considered as the authoritative book of the Hanafi Law of Inheritance. The book is written by the Sheikh Sirajddin, and the first English translation is written by Sir William Jones.

Under the Hanafi School, children are have an obligation to maintain their parents. Under indigent circumstances, the parents have the right to claim maintenance from their children. Similarly, the grandparents can also seek maintenance from the grandchildren. However, it is pertinent to note that the mother has a better title than the father when it comes to claiming maintenance from the children.

Custody of children

Under the Hanafi school, the custody of a son lies with the mother until the son attains the age of 7 years. In case of a daughter, the mother has the custody till the daughter attains puberty. However, once the son attains 7 years of age or the daughter reaches puberty, the father is considered to be the natural guardian.

In Abdul Kalam v. Akhtari Bibi (1987), there was a dispute relating to the custody of a minor son. The parties were governed by the Hanafi School of Mohammedan Law. The mother claimed the custody of the child under Section 25 of the Guardians and Wards Act, 1890. Section 25 states that when a child is removed from his guardian’s custody and the court finds that the welfare of the child lies in him being restored to the custody of the guardian, the court may make an order to this effect.

The appellants had pleaded that since under the Muslim personal law, the father is considered to be the natural guardian of the Child, Section 25 of the Guardians and Wards Act does not apply to a Muslim Child.

Rejecting this argument, the Orissa High Court held that the interest of the child is of paramount consideration while deciding the issue of guardianship. The Court held that the Guardians and Wards Act applies to Muslims as well and thus, the mother was entitled to claim guardianship of the minor child under Section 25 of the Act.

Legitimacy of child

Both the Sunni as well as Shia schools provide that if a child is born within a specific time period from the dissolution of the marriage, then he would be considered valid. However, this time period varies from school to school. Under the Hanafi school, the child is considered to be legitimate if it is born within a period of 2 years from the dissolution of marriage.

B. Maliki School

This school gets its name from Malik-bin-Anas, he was the Mufti of Madeena. During his period the Khoofa was considered as the capital of Muslim Khaleefa where Imam Abu Haneefa and his disciples flourished with Hanafi Schools. He discovered about 8000 traditions of Prophet but complied only about 2000 of them. When the disciples of Imam Abu Haneefa codified their law based on Ijma’a and Isthihsan.

The maliki school gives the importance to the Sunna and Hadis whereas the Hanafi school gives the importance to the people and Isthihsan. As per Maliki School and Law, they rarely accept the Ijma’a. As per the Law, the person gave Fatwa challenging the sovereign authority of Khaleefa, he faced enmity and of lack of support from Muslim governments. Thus, this Maliki school did not get much popularity.

In India, there are no followers of this school but when the Dissolution of Muslim marriage act 1939 came in the picture, some of the laws and provision of this school was taken in account as they are giving more rights to the women than any other school. In Hanafi School, if the women not get any news of her husband, she has to wait till 7 years for Dissolution of the marriage, whereas in Maliki School the women have to wait 2 years for Dissolution of the Marriage.

Mu-atha of Imam Malik is considered as the most authoritative book of the Maliki School. This book is also the first book written on the Hadis in Islam and this book is considered as the authority over all Muslims in the World.

Unlike the Hanifi school, the Malike school believes that traditions are the most important source of law. This school emphasizes that the rules of law should be based on traditions.

Imam Malik-ibn-Anas

Imam was a lecturer on traditions and he was also a jurist. He is recognized as one of the most brilliant minds and he had vast knowledge of Sunna or traditions. Malik as well as other propounders of this school were also judges and solved the day-to-day problems of the people. Thus, the approach of this school was to make the law more practicable.

Imam relied on the traditions and usages of the Prophet to interpret the law. He also belived on the concept of muslahat which means public welfare.

Legitimacy of child

Under the Maliki school, a child born after the dissolution of the marriage is considered legitimate if it is born within a period of 4 years from the dissolution of the marriage.

It is interesting to note that Section 112 of the Indian Evidence Act, 1872 also deals with the legitimacy of a child born after dissolution of marriage. Under the Evidence Act, the child would be considered legitimate if it is born within a period of 280 days of the dissolution of marriage. Moreover, the mother should be unmarried at the time of the birth of the child. Thus, we see that there may be a situation where a child may not fulfill the criterion of legitimacy laid down under the Evidence Act, but might still be recognized as legitimate under the Maliki school.

C. Shaffie School

The Shaffie School gets its name on the name of Muhammad bin Idris Shaffie, his period was between 767 AD to 820 AD. He was the student of Imam Malik of Madeena. Then he started working with the disciples of Imam Abu Haneefa and went to Khoofa.

He conclude the idea’s and the theories of Hanafi School and Maliki School in a friendly manner. The Imam Shaffie was considered as one of the greatest jurist of Islam. He created the classical theory of the Shaffie Islamic Jurisprudence.

According to this school, they considered Ijma’a as the important source of the Muslim law and provide validity to the customs of the Islamic people and follows more methods of Hanafi School. the main contribution of Shaffie School is the Quiyas or Analogy.

The Al-Risala of Imam Shaffie was considered as the only authoritative book of Islamic Jurisprudence. In that book they discuss and interpret the Ijma’a (Consensus), Quiyas (Analogy), Ijthihad (Personal reasoning) Isthihsan (Juristic preference) and Ikhthilaf (Disagreement) in separate chapter in his book Risala. His other book Al-Umm is the authority on Fiqh (science of way of life).

The followers of Shafie School are spread in Egypt, Southern Arabia, South East Asia, Indonesia and Malaysia.

D. Hanbali School

The Ahmad bin Hanbal is the founder of the Hanbali School. He found the Hanbali school in 241 (AD 855). He is the disciple of Imam Shaffie and supports Hadis. He strongly opposed the Ijthihad methods. He introduced the theory of tracing the root of Sunna and Hadis and try to get the answer all his question. His theory was to return to the Sunna of the Prophet. When the Imam Shafie left for Baghdad, he declared that the Ahmad bin Hanbal was the only one after him who is the better jurist after him. The followers of Hanbali school found in Syria, Phalastine and Saudi Arabia.

Imam Abu Abdullah Ahmed-Ibn-Hanbal

Imam Abu Abdullah Ahmed-Ibn-Hanbal established the Hanbali school. He was born in Baghdad. He was a rigid tradtitionalist and have utmost importance to the traditions. He considered traditions to be more important than the other sources.

Even though he rigidly relied upon the traditions, he interpreted the traditions in a liberal manner.

Shia Schools

As per Shia Sect, there are three schools of law. Shia Sect is considered as the minority in the Muslim world. They enjoy the political power only in Iran though they don’t have the majority in that state also.

A. Ithna-Asharis

These schools are based on the following of Ithna-Ashari laws. The followers of these schools are mostly found in Iraq and Iran. In India also there is the majority of the shia muslim who follows the principles of the Ithna-Asharis School. They are considered political quietists. This school is considered as the most dominant school of the shia muslims. the ja’fari fiqh of the shias in most cases indistinguishable from one or more of the four sunni madhahib, except mutah is considered as the lawful marriage. The people who follow the Ithna Asharis school believe that the last of the Imams disappeared and to be returning as Mehdi(Messiah).

B. The Ismailis

According to Ismailis school, in India there are two groups, the Khojas or Western Ismailis represents the followers of the present Aga Khan, who they considered as the 49th Imam in this line of Prophet, and the Bohoras i.e. the Western Ismailis are divided into Daudis and Sulaymanis.

The Bohoras and Khojas of Mumbai are considered as the followers of this school. It is considered that the follower of these schools has special knowledge of religious doctrine.

C. Zaidy

The followers of this school are not found in India but are maximum in number in South Arabia. This sect. of the shia school is the most dominant among all in Yemen. The followers of these schools are considered as political activism. They often reject the twelver shia school philosophies.

Other schools

Besides the schools under Shia and Sunni sects, there are some other schools which are also present which are:

Ibadi School

Ibadi is a school which belongs neither to the Shia nor Sunni sect and this school claim that its history traces back to the times of 4th Khaleefa Ali. The Ibadi school gives more preference to the Quran and they do not give the Sunna much importance. This school has its followers in Oman. One of the most important points about this school is that besides the Quran, it has provided principal consideration to Ijtihad (personal reasoning) which has been partially accepted by the Sunnis and has been completely rejected by the Shias.

Ahmadiya School

The followers of Ahmadiya school claim to be Muslims but they do not follow Prophet Muhammed. This school has a recent origin and they are followers of one Ahmed who was alive in the 19th century.

This school is said to have a British-Indian origin and Mirza Ghulam Khadiani is the founder of this school, who served the British Government. Even though this school claims to be a follower of Islam, none of the Muslim Government has accepted them as Muslims because they believe this school’s faith is completely against the faith of Muslims.

The Khadiyan village which is situated in Punjab in India is said to be the birthplace of Ahmed and thus it is their holy place and the followers are also known as Kadhiyani. There is no authoritative book of this school and because its origin is also recent, it has no recognition by the other authoritative books of Islam.

There are many differences between the Ahmadiya School and Muslims therefore, they are not regarded as part of Islam. The major points of difference between them are as follows:

The Muslims believe that Prophet Mohammad was the Messenger of God on Earth and he was the last Prophet who had spoken with God. Thus, his teachings are an important part of the lives of Muslims but the Ahmadiyas believe that God still communicates with his holy servants even after Prophet Mohammad.
The Ahmadiyans claim that the list of Prophets before Mohammad includes Buddha, Krishna, Zoroaster and Ramchandra and they claim it is according to the Quran but the non-Ahmadiyans do not accept such claims and refuse to acknowledge them as Prophets.
Unlike the Muslims, the Ahmadiyans do not accept the claim of the Sultan of Turkey as the Caliphate and they claim that every Muslim person should remain loyal to the Government of their country.
While Muslims believe that Mahdi will have a holy war or Jihad and Islam will be spread by the sword, the Ahmadiyas believe that it will be spread by arguments and heavenly signs and not through violence.

Conclusion

Muslim law is governed by the teachings of the Quran and the Prophet Mohammad. There have been many different schools which follow their own interpretations of these teachings on points on which the Quran is silent. While the major schools of Muslims can be divided under the two sects of Shia schools and Sunni schools, even the schools under these sects have been further divided into various schools.

Each school has its own beliefs and practices and because is no set rule regarding the matters on which the Quran is silent, one school cannot be said to be better positioned than the other schools and thus even though there are many schools in Muslim law, they all lead to one path. Thus, the teachings of these schools can be compared to different paths which all lead to the same destination.

Frequently Asked Questions (FAQs) (to be added after conclusion)

What is the Mahr and what is the amount of Mahr prescribed under the various schools?

Mahr is the sum of money which a wife receives, under Muslim law, from her husband upon getting married. The different Schools provide for different value of Mahr. Under the Hanafi law, the minimum amount of Mahr is 10 dirhams. Under the Maliki Law, the minimum amount is 3 dirhams. Shia law does not prescribe any minimum amount of Mahr but the maximum Mahr cannot excel 500 dirhams.

What are the primary sources of Muslim law?

The primary sources of Muslim law are the Quran, Ahadis, Qiyas and Ijma.

Quran is the holy book of the Muslims. Ahadis refers to what was said by the Prophet.

Ijma refers to the consensus of the Muslim jurists. After the death of the Prophet, the jurists had to reach a consensus to solve the problems whose answers could not be found in the principles of the Quran or the Sunna. The consensus reached by the jurists is known as Ijma.

Qiyas refers to a process of analogical deduction. All the Sunni schools agree that if any matter has not been provided in the Quran, Sunna and the Ijma, then such matters have to be determined by analogical deduction of what has already been provided in the three sources.

References

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1996514

https://www.sciencedirect.com/topics/social-sciences/islamic-law

https://hhi.harvard.edu/files/humanitarianinitiative/files/introduction_to_islamic_law.pdf?m=1614967781

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