All you need to know about share certificates and duplicate share certificates

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October 9, 2023

This article has been written by Apeksha Choubey, pursuing a Diploma in US Corporate Law for Company Secretaries and Chartered Accountants from LawSikho and edited by Shashwat Kaushik. In this article, we will learn about share certificates, how they work, and duplicate share certificates from the perspective of India.

It has been published by Rachit Garg.

Table of Contents

Introduction

The stock exchange is a place where public companies list their stock in the primary stock market and buyers and sellers meet at this place to trade on the listed stock in the secondary market. It provides a transparent and regulated marketplace for investors to buy and sell securities. These stock exchanges play a crucial role in the world economy as they allow companies to raise capital, provide liquidity to investors and help capital allocation in the most productive way.

As a process, these public companies issue share certificates to shareholders who invest in their companies. Therefore, a share certificate is a certificate that establishes ownership of a specific number of shares in a company. It is a key legal document that serves as evidence of ownership and is usually issued by a company to its shareholders.

Share certificate contents

A share certificate usually contains the following information:

Company’s name,
Corporate Identification Number (CIN) of the company,
Company’s registered office address,
Share certificate folio number,
Name of the shareholder,
Number of shares held,
Class of shares,
Date of issue, and
Amount paid on share (value of shares).

Process to be followed for issuing share certificate

The process to be followed for issuing a share certificate:

Requirement and time frame: The Securities and Exchange Board of India (SEBI) has prescribed the companies to issue share certificates within a time frame of two months from the date of incorporation.
Share allotment: First, a board meeting is held to decide the allotment of shares, in which an allotment committee has been formed consisting of directors. This committee will submit a report for the allotment of shares, which the board should approve. Afterwards, the company secretary will share a letter for allotment with the respective applicants, specifying the number of shares allotted.
Members of register: The company secretary prepares a register of members, which contains shareholder details along with shares allotted to them.
Preparation of share certificate and print: It is duty of the company secretary to prepare a form of share certificate as mentioned in the Articles of Association and get these printed with the details as required by law with help of the application received and allotment of shares document.
Intimation and dispatch of share certificates: In next step, the company secretary issues intimation to shareholders in the form of public notice that share certificates are prepared and will be delivered in exchange for an allotment letter issued previously and a bank receipt for payment of money paid during application process.

Penalty of non-issuance of share certificate

There is a penalty provision enacted by SEBI for the company and the defaulting officer to breach in the issuance of a share certificate to shareholders. Therefore, if a company fails to comply with the share certificate provisions, a penalty is levied on the company with a minimum amount of INR 25,000 and could be extended to INR 5,00,000. Additionally, the defaulting officer can also be liable to pay a minimum fine of INR 10,000 and a maximum amount of INR 1,00,000.

Duplicate share certificates

Till now, we have a fair idea about what a share certificate is, its content and the issuance process. Thus, it is a significant document for the shareholders and hence, it is necessary to keep its share certificates safe. But it may be possible that it gets lost or destroyed due to a situation not under the control of shareholders. Therefore, provisions have been made in the laws in Section 46 of the Companies Act, 2013, Rule 6 of the Companies (Share Capital and Debentures) Rules, 2014 and Section 6 of the Indian Stamp Act, 1899. If a share certificate is lost or destroyed, the shareholder will need to obtain a duplicate share certificate.

So, a duplicate share certificate is a certificate that is issued to a shareholder in case of loss/damage to the original share certificate. To obtain a duplicate share certificate, the shareholder is required to contact the company’s registrar and submit the necessary documents.

It is very important to note that a duplicate share certificate is a replacement certificate and hence does not replace the original share certificate. In any case, if the original share certificate is found in the future, it should be submitted back to the company for cancellation.

In the coming sections, we will look at cases, steps to be taken, documentation and processes to be followed for the issuance of duplicate share certificates.

Cases for issuance of duplicate share certificate

Either one of the below two cases specified in the law in which a duplicate share certificate will be issued is:

The share certificate is lost, destroyed or misplaced
The share certificate is defaced, mutilated or torn

Steps to be followed for both cases

Different procedures need to be followed by both shareholders and the company in case a share certificate is lost, destroyed or misplaced.

By the shareholders: The shareholder must inform the company immediately about the lost, destroyed, misplaced, defaced, mutilated or torn, as the case may be, through a written letter to the company’s address or official email. The letter should include all the details of the loss/damage, registered name, folio number, registered address and share certificate number.

By the company: Upon receiving a written letter from shareholders, it must freeze the share transfer process for at least 30 days to avoid any illegal or fraudulent transfer requests. As a next step, the company should inform shareholders about documents to be furnished for the issue of duplicate share certificates.

A list of documents to be furnished for the issuance of a duplicate share certificate:

Indemnity bond on non-judicial stamp paper of INR 100.
A copy of FIR contains the following information about lost share certificate:
- Share certificate number,
- Share certificate folio number,
- Name on the share certificate,
- Class of shares.
An affidavit on non-judicial stamp paper should be attested by the notary public.
Identity and address proofs of shareholders.
Advertisements published in any newspaper about loss or misplacement.

Process to be followed for issuing a duplicate certificate

The process to be followed for issuing a duplicate certificate is as follows:

A signed application should be made by the shareholder along with the required documents mentioned above to issue a duplicate share certificate.
Once an application is received, the company will initiate a process to issue duplicate share certificates and obtain approval from the Board of Directors.
The board of directors will provide their consent post passing resolution with respect to the facts of charging a fee for the issue of a duplicate share certificate (the fee must not exceed INR 50 per share certificate) and any other out-of-pocket expenses involved in scrutinising the request.
After receiving consent from the board of directors, the company will examine the documents submitted and issue the duplicate share certificate.
Below is the time frame prescribed for issuing a duplicate share certificate:
1. For a listed company, it should be issued within 45 days of submitting documents to the company
2. For an unlisted company, it should be issued within 3 months of submitting documents to the company
Upon issue of a duplicate share certificate, entry must be made in ‘Register of Renewed and Duplicate Share Certificate’ kept in Form SH-2 in the prescribed format covered under Companies (Share Capital and Debentures) Rules, 2014.
The company should maintain a register, namely “Register of Renewed and Duplicate Share Certificates,” and keep it along with “Register of Members” at registered office or any other place as prescribed by the BOD.

Current scenario in India

The current situation is changing at a fast rate across the globe in the financial market and physical possession of securities is totally discarded. Some countries have completely shut down the process of physically issuing shares to shareholders rather than starting to issue shares in electronic form, which is considered the easiest and quickest way to comply with laws and regulations and proved to be the safest method as well.

The Indian government has commenced the process of dematerializing shares, i.e., converting physical share certificates into electronic form, which is a safe and easy method and does not involve risk of being lost, misplaced, damaged, torn, etc. Moreover, there will be no need to issue duplicate share certificates in this case. The electronic buy or sell transaction can be performed easily and holdings will be reflected in shareholder accounts within a short period of time. In this way, the chances of fraud and error are also minimised, promoting less use of paper, which in turn reduces many formalities and paper requirements. The dematerialisation process is facilitated through a depository system, which is governed by the Depositories Act, 1996.

SEBI has published an important circular to shareholders holding shares in physical form in which they are required to complete their KYC (Know Your Customers) and furnish the required documents before April 1, 2023. Hence, physical share certificates have no value after April 1, 2023 and are considered to have zero value with zero return unless converted into dematerialised (electronic) form. Shareholders cannot encash their physical share certificates.

Conclusion

Investors can open a demat account with a depository participant (DP) to hold their electronic shares and trade them on stock exchanges using a trading account. Dematerialization offers several advantages over physical shares and is mandatory for trading in most securities on stock exchanges in India.

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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Section 21 of Arbitration and Conciliation Act, 1996

By

Rachit Garg

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October 9, 2023

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This article is written by Monesh Mehndiratta. The article explains Section 21 of the Arbitration and Conciliation Act, 1996 which deals with the commencement of arbitral proceedings and requests to refer a dispute to arbitration. This article explains the significance of issuing notice under Section 21 of the Act, its objectives, and important case laws.

It has been published by Rachit Garg.

Table of Contents

Introduction

Have you heard about outside court settlements? Do you know that parties to a suit can settle their disputes without getting involved in long court proceedings?

Yes, it’s correct. There are various methods by which parties can resolve their disputes without going to the courts. These are known as alternative dispute resolutions (ADR) and help to reduce the burden of courts. Arbitration, conciliation, mediation, negotiation, etc. are some of the ADR processes. Each and every method has its own process and stages of resolving the dispute and differs from each other in some way or the other. These mechanisms run parallel to the court system and do not involve interference from the court.

The present article deals with the meaning of Arbitration, the kinds of arbitration, and its proceedings. Like every other ADR mechanism, arbitration has its own procedure consisting of the existence of an arbitration agreement, commencement of proceedings upon issuance of a notice, statements of claim, hearing of parties and so on. The article specifically deals with Section 21 of the Arbitration and Conciliation Act, 1996 which deals with the commencement of arbitral proceedings, its significance in the entire process of arbitration, ingredients of the section, issuance of notice prior to commencement of proceedings and important case laws related to it.

The 1996 Act is enact with the purpose to speed up the justice delivery system by promoting ADR mechanisms. It was enforced on 22 August, 1996 and covers all the aspects of domestic and international arbitration along with foreign arbitral award. Let us understand the significance of Section 21 of the Act.

Commencement of arbitral proceedings

Section 21 of the Act deals with the commencement of arbitral proceedings. The section provides that the arbitral proceedings commence from the date the request to refer the dispute to arbitration has been received by the respondent unless the parties themselves have agreed upon a particular date. This means that informing the respondent through a legal notice regarding referring the dispute to arbitration is one of its essential ingredients. This also implies that the process of arbitration is based on the consent of both parties. The provision of Section 21 is taken from Article 21 of the UNCITRAL Model law.

Essentials of Section 21 of Arbitration and Conciliation Act, 1996

Section 21 of the Act deals with commencement of arbitral proceedings. In order to understand the provision, it is necessary to understand its essentials. In the case of M/S D.P. Construction v. M/S Vishvaraj Environment Pvt. Ltd. (2021), the court referred to various judicial precedents with respect to Section 21 of the Act and requirement of notice before commencing the procedure and held that:

The notice which is given under Section 21 of the Act must be clear and reflect the intention of the party to refer a dispute to arbitration by calling and informing the other party and further proceeding with the appointment of arbitrators.
Another important thing to note and unless a request is made by one party to a dispute to refer a dispute to arbitration, mere setting out the claims and issues would not be enough and cannot be used to refer a dispute to arbitration.
The question of failure does not arise if the parties failed to adhere to the agreed procedure mentioned in the arbitration clause for referring a dispute to arbitration. This only means that the pre-condition for invoking the jurisdiction under Section 11 of the Act is not fulfilled and thus, invokes the jurisdiction of the court to look into the matter.
The court also observed that it has been mentioned in various judicial precedents that once a notice is issued according to Section 21 of the Act, there are legal consequences which also include computation of limitation period.

Particulars to be mentioned in the notice

The following particular must be mentioned in the notice issued under Section 21 of the Act:

Names of both the parties.
Address of parties.
Relationship and commercial interactions existing between the parties.
Facts of the case.
Issues pertaining to the dispute.
Responsibilities to be performed by the opposite party.
Mention the arbitration clause which was used to refer the dispute to arbitration.
Provide a time period within which the opposite party has to send the reply.
In case the arbitral tribunal is to be established, ask the opposite party to nominate arbitrator or arbitrators.

In the case of Smt. Veena W v. Seth Industries Limited (2010), the Bombay High Court observed that even though the notice issued under Section 21 of the Act does not contains the claims of the party referring a dispute to arbitration but it must contain the dispute or facts leading to dispute between the parties along with the subject matter for which the arbitration clause has been invoked and the case is referred to arbitration.

Significance of issuing notice under Section 21 of the Act

One question that might arise in our minds is whether giving notice under Section 21 is mandatory. It can be said that notice under this section is mandatory due to the following reasons:

It is important that the party against whom claims are made in the arbitration agreement know about such claims and that it has been referred to arbitration. It is also possible that as a response to the notice, the respondent accepts some claims and denies others.
Issuing notice under this section gives an opportunity to the respondent to represent his side of the story and verify if the claims asked are time barred or barred by estoppel or whether the dispute in hand can be referred to arbitration or not.
The notices also help in identifying the process that has to be adopted during arbitration like the seat of arbitration, law applicable, the appointment of arbitrators etc. According to Section 11 of the Act, it is necessary that both the parties together appoint the arbitrators and if they are unable to do so, then only they can seek the help of courts and designated institutions. This is only possible when both parties are aware that the dispute has been referred to arbitration.
If one party appoints an arbitrator by itself without the consent of the respondent, he has a right to raise an objection and the person appointed as an arbitrator may be disqualified from the process of arbitration for that particular dispute. Thus, issuing a notice under Section 21 facilitates an important aspect of arbitration i.e., the consent of both parties.

Objective of Section 21 of Arbitration and Conciliation Act, 1996

The primary objective of arbitration and conciliation is to reduce the burden of courts by reducing the pending cases and delivering quicker justice to the parties. Section 21 of the Act facilitates the purpose of enacting the Act. It deals with commencement of arbitral proceedings. It also makes sure that the principles of natural justice are complied with by issuing a notice to the respondent informing him about the dispute being referred to arbitration.

In the case of Alupro Buildings System Pvt. Ltd. v. Ozone Overseas Pvt. Ltd. (2017), the Delhi High Court interpreted the Section and provided clarity on its object and significance. The court held that issuing notice under Section 21 is mandatory in nature and is an act precedent to the initiation of arbitral proceedings. It was further held that a person cannot file a claim before an arbitrator without complying with the requirement mentioned in the Section.

Arbitral process under Arbitration and Conciliation Act, 1996

The process of arbitration under the Act is divided into the following stages:

Arbitration agreement

Arbitration agreement is one of the essential elements of arbitration. The process of arbitration is based on mutual consent of both parties which can be shown through an agreement signed by them. According to Section 7 of the Act, the arbitration agreement must be made in writing. It can be contained in a contract or a separate agreement or as a clause. One question that has been dealt with by courts very often is whether it is mandatory to sign the arbitration agreement. The Supreme Court in its recent judgement in the case of M/S Caravel Shipping Services v. M/S Premier Seafoods Exim Pvt. Ltd (2018) held that it is not mandatory to sign the arbitration agreement however, it must be in writing.

Notice under Section 21 of the Act

It is important that the party who refers the dispute to arbitration informs the other party against whom the claim is sought regarding the reference of dispute to arbitration so that the consent of both parties is available. This also provides the respondent or other party an opportunity to present his side of the story. This is similar to the issuance of summons to defendants in a civil case after which he is required to appear and file a written statement. Section 21 of the Act facilitates this purpose and advances the further process of arbitration.

Appointment of arbitrators

Arbitrators are mutually appointed by both parties. According to Section 10 of the Act, the parties are free to appoint any number of arbitrators but the number of arbitrators appointed must be odd. The appointment of arbitrators is done according to the procedure mentioned in Section 11 of the Act. If the parties fail to appoint the arbitrators by themselves, they can approach the high court in case of domestic arbitration or the Supreme Court in case of international commercial arbitration or designated institutions for the same.

Statements of claim and defence

After the appointment of arbitrators and the formation of an arbitral tribunal, the claimant is required to file a statement of claim while the respondent is required to file a statement of defence. According to Section 23 of the Act, the claimant must provide relevant facts supporting the claim, issue at hand and relief or remedy sought and the respondent can file his defence with respect to these particulars. He can also file a counter-claim or claim set off which may be decided by an arbitral tribunal if it falls within the ambit of the arbitration agreement. These statements of claim and defence must be filed within 6 months from the date the arbitrators received notice regarding their appointment.

Hearing of parties

After the statements of claim and defence are filed by both parties, they are heard and given the opportunity to present their case in front of the arbitral tribunal. Based on these, the arbitral tribunal adjudicates the matter.

Arbitral award

After the hearing of the parties and presentation of required evidence, the arbitral tribunal issues an arbitral award which is binding on both parties, same as the decree passed by a court. Once an arbitral award is passed in favour of one party, the other party has a time period of 90 days to challenge the award according to Section 34 of the Act. During this time period, the award passed cannot be executed. The arbitral tribunal is also empowered to award an interim relief if necessary during the arbitration proceedings according to Section 17 of the Act.

Important case laws

M/S D.P. Construction v. M/S Vishvaraj Environment Pvt. Ltd. (2021)

Facts of the case

In this case, the Nagpur Municipal Corporation contracted the work of the pipeline to Vishvaraj Environment Pvt. Ltd (respondent) who further engaged D.P. Construction (applicant) for the same through a work order. This work order also had an arbitration clause to resolve the dispute. When a dispute arose between the parties, the applicant issued a notice to the respondent regarding claims and reference of the dispute to arbitration. When the respondent repudiated the claim as a reply to the notice, the applicant made an application to the court seeking help for the appointment of arbitrators.

Issues involved in the case

Whether the arbitrators be appointed by the court in this case.
Whether the notice issued to the respondent was in consonance with Section 21 of the Act.

Judgement of the court

The respondent in this case argued that the arbitration clause contained a two-tier process for resolving the disputes and the applicant moved to the second procedure without exhausting the first and so the application under Section 11 must not be maintainable. He further argued that the notice issued did not qualify the requirements of Section 21 of the Act as it neither referred to the arbitration agreement nor provided that the dispute was being referred to arbitration.

The Bombay High Court examined the application under Section 11 and observed that the applicant had exhausted and complied with all the requirements of the first-tier of arbitration clause and then moved to the second-tier. Dealing with the issue of notice under Section 21 of the Act, the court observed that in order to commence the arbitration proceedings, a request to refer a dispute to arbitration must be made by a party. Referring to various judicial decisions, the court held that:

The notice which invokes the option of arbitration must be clear and there must be an intention to refer the dispute to arbitration and call the opposite party for the same.
It is necessary that there is a request to refer a dispute to arbitration from one party. Mere setting out the dispute and claim does not help the parties avail the option of arbitration.
In order to invoke the jurisdiction of the court under Section 11 of the Act, it is necessary that the parties have triggered the agreed procedure as set out in the arbitration clause. This also acts as a pre-condition for invoking the jurisdiction of court for appointment of arbitrators.

The court in the present case held that the notice issued by the applicant to the respondent was not a valid notice as it must be under Section 21. However, the right applicant to initiate arbitration was reserved by the court upon issuance of fresh notice under Section 21 and filing a fresh application under Section 11 of the Act.

West Bengal Power Development Corporation Limited v. Sical Mining Limited (2023)

Facts of the case

In this case, there was a coal mining agreement between the parties which contained an arbitration clause for the resolution of disputes. A dispute arose between the parties and the Additional Chief Secretary of the Power Department appointed the sole arbitrator which was challenged by the respondent under Section 14 of the Act. An application was filed by the applicant seeking assistance from the court in the appointment of an arbitrator. This application was, however, opposed by the respondent on the ground that no notice was issued under Section 21 of the Act.

Issues involved in the case

Whether the application for appointment of an arbitrator, in this case, be granted.

Judgement of the court

The Calcutta High Court in the case refused to appoint arbitrators and dismissed the application filed under Section 11 of the Act as the requirement of notice under Section 21 of the Act which is considered as a pre-condition for filing application under Section 11, was not complied with. The court further held that a notice under Section 21 must be issued before filing an application for appointment of arbitrator under Section 11 of the Act.

Alupro Buildings System Pvt Ltd v. Ozone Overseas Pvt. Ltd. (2017)

Facts of the case

In this case, the petitioner is a company which is based in Bangalore and had placed four purchase orders with the respondent for which full payment was done. The petitioner after sometime, received a notice from the sole arbitrator appointed by the respondent for the recovery of money for goods sold by him to the petitioner. The petitioner contended that the appointment was done without issuing any notice under Section 21 of the Act and so the respondent cannot proceed with the arbitration.

Issues involved in the case

Whether the arbitration proceedings be initiated in this case.

Judgement of the court

The Delhi High Court in this case while observing the importance of issuing notice under Section 21 of the Act observed that the party against whom any claim is made must know what the claim is. Further, it is also possible that such a party may accept some claims while denying others. Another important aspect of issuing notice under Section 21 is that the other party is given an opportunity to raise objections on the claims raised based on whether the claims are time barred, barred by estoppel or file counter-claims if any. Also, where the parties have agreed upon a particular procedure for the appointment of arbitrators, it is not possible to identify whether the said procedure was followed or not in the absence of such notice.

The court also observed that an arbitration clause does not contemplate the unilateral appointment of arbitrators by either of the parties. Even if the clause allows one party to appoint the arbitrator, it is necessary to inform the other party about the appointment. Issuing notice under Section 21 helps in avoiding wastage of time which may occur if such notice is not issued as it provides an opportunity to the other party to point out any kind of defect in the claim or procedure adopted.

The court in this present case held that the arbitration proceedings cannot be commenced on mere filing an application under Section 34 of the Act. Issuance of notice under Section 21 is an important aspect for referring the dispute to arbitration and commencement of arbitral proceedings and hence, the award passed by the arbitrator in this case was set aside.

Malvika Rajnikant Mehta v. Jess Construction Pvt. Ltd. (2022)

Facts of the case

In this case, a deed of conveyance was executed by the three applicants in the favour of the respondent. According to the deed, the respondent was under obligation to construct a new building on the property and hand over the same within a period of 42 months. If in case he fails to do so, he would be liable to pay the interest and liquidated damages every month from the date of expiry of the above-mentioned period. The time period was, however, modified to 34 months. The deed also provided that in case of dispute, the case will be referred to arbitration presided by a sole arbitrator, Mr. Kirti K. Shah.

The respondent failed to fulfil his obligations and so the case was referred to arbitration. The respondent, on the other hand, argued that the sole arbitrator was ineligible and had personal relationship with the petitioners as a result of which the sole arbitrator rescued himself from the arbitration. Multiple efforts were made by the parties to decide the arbitrator but failed to do so. Finally, an application under Section 11 was filed in the court to appoint the arbitrator to which the respondent argued that the applicants failed to follow the prescribed procedure as they did not issue any notice under Section 21 of the Act.

Issues involved in the case

Whether the applicants adopted the correct procedure to refer the case to arbitration.

Judgement of the Court

The Bombay High Court in this case observed how arbitration must be invoked and what is the intention behind issuing a notice under Section 21 of the Act. Issuing such notice to the opposite party provides a nature of claims asked by the party requesting to refer a dispute to arbitration. It provides an opportunity to the other party to accept or reject the claims and to raise any objections with respect to appointment or impartiality of the arbitrator. The date of receipt of notice is necessary to determine the date of commencement of arbitral proceedings. It cannot be inferred that parties waived notice merely because they had named the arbitrator. The court held that the respondent also invoked arbitration when he himself suggested the name of arbitrator thus providing the existence of arbitration agreement, dispute between the parties and arbitrability of the dispute and so the issue at hand was only the appointment of arbitrator and nothing else.

Conclusion

ADR mechanisms are other alternative ways of resolving the disputes between the parties wherein they settle the dispute with the help of a third party or without any third party by themselves. Arbitration is one such mechanism and is used commonly by people to resolve their matters. The award passed by the arbitral tribunal is binding on both parties and has the same effect as a decree passed by a court. However, in order to initiate the proceedings of arbitration, it is necessary that a request is made by one of the parties and the other is informed about the same through a proper notice under Section 21 of the Act.

Through various judicial decisions and precedents, it is clear that the issuance of notice under Section 21 is also an important aspect of the appointment of arbitrators under Section 11 of the Act. Where the parties fail to appoint the arbitrators by mutual consent, they can file an application in the High Court seeking assistance for the appointment in case of domestic arbitration and to the Supreme Court in case of international commercial arbitration.

Frequently Asked Questions (FAQs)

How many arbitrators can be appointed by the parties?

According to Section 10 of the Act, parties are free to agree upon the number of arbitrators however, it must not be an even number. If the parties fail to agree upon a particular number of arbitrators then a sole arbitrator will be appointed.

Can the parties decide a particular language to be used in the arbitration proceedings?

According to Section 22 of the Act, the parties are free to determine a particular language that must be used in the arbitration proceedings. However, if the parties fail to decide on the language to be used, the arbitral tribunal will do so.

Is the issuance of notice under Section 21 mandatory?

Yes, it is mandatory to issue a notice under Section 21 in order to commence the arbitration proceedings and refer a dispute to arbitration.

Is Section 21 of the Act prospective in nature?

Yes, Section 21 of the Act is prospective in nature and cannot be applied retrospectively. The same was held in the case of Bhai Sardar Singh & Sons v. Delhi Development Authority, 2002.

Is an application filed under Section 8 of the Act amounts to notice under Section 21 of the Act?

No, an application filed under Section 8 of the Act does not amount to a notice under Section 21 which is required for the commencement of arbitral proceedings. It was argued in the case of Cash and Gain Finance v. Manjula Uday Shankar (2008) that the application filed under Section 8 of the Act is a notice required under Section 21. But the court rejected the argument stating that the two provisions operate in different circumstances. Section 8 deals with the power of courts to refer parties to arbitration in case there exists an arbitration agreement. While section 21 with commencement of arbitral proceedings after a request has been made by either of the parties to refer a dispute to arbitration.

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.

An analysis of mandatory and voluntary ADR systems

By

Sneha Mahawar

-

October 9, 2023

0

This article has been written by Arati G pursuing Certificate Course in Content Strategy and Article-Writing and has been edited by Oishika Banerji (Team Lawsikho).

This article has been published by Sneha Mahawar.

Introduction

“Discourage litigation. Persuade your neighbour to compromise whenever you can. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be enough business.”

-Abraham Lincoln

In June 2021, the Chief Justice of India, Shri. Nuthalapati Venkata Ramana, during the inaugural address of India-Singapore Mediation Summit, “Making Mediation Mainstream: Reflections from India and Singapore”, gave a clarion call in his keynote address, which, in the process of promoting mediation, prescribed it as a mandatory first step for resolution of every allowable dispute. This call also extended to other forms of Alternative Dispute Resolution (“ADR”) such as conciliation. The above clearly reflects the importance that ADR has been given for dispute resolution in various jurisdictions across the world which is struggling to give justice to all its citizens. The ADR system refers to various kinds of processes instituted by the judiciary systems across the world, to help settle disputes in an effective, amicable, and quicker way between the opposing parties, outside the traditional courtroom. The territory of ADR encompasses familial, civil, commercial, industrial, and other disputes that can be settled peacefully, and the opposing parties can have the opportunity to shake hands and depart harmoniously and congenitally from their dispute. This mechanism involves a mediator, who acts as a neutral facilitator and mediates between the two opposing parties to help negotiate and arrive at a mutually acceptable settlement. In India, there are different kinds of ADR mechanisms such as mediation, arbitration, conciliation, mediation-arbitration, mini-trial, private judging, final offer arbitration, court-annexed ADR, Lok Adaalats or people’s courts, and summary jury trial. In other countries, such as the United States of America, we can find other techniques in this mechanism, such as settlement conferences and neutral evaluation. This article explores and analyses the concepts of mandatory as well as voluntary mediation of the ADR processes in the world. It also seeks to understand the pros and cons of the two systems and tries to find solutions from the learnings.

Mandatory ADR in commercial cases

Mediation as an alternative dispute resolution mechanism in commercial transactions, has gained increased significance, both within India and at a global level, as global commercial transactions have increased manifold along with disputes related to it. Mandatory arbitration/mediation, in any country, is that which makes it mandatory, by a court order or law, for the litigants to sincerely attempt a dispute settlement through arbitration or mediation, out of the court. It is only when this attempt fails, that the litigants can proceed towards the court, asking the respected judges to settle the disputes.

In India, for example, in the Patil Automation Private Limited v. Raheja Engineers Private Limited (2022) case, the Supreme Court has confirmed that pre-litigation mediation is mandatory under Section 12A of the Commercial Courts Act, 2015, to the extent that a suit cannot be filed before a commercial court by the opposing parties until they exhausted exploring the chances of resolution of their dispute through a mediation process.

In other words, a suit cannot be filed before a Commercial Court unless the parties have already attempted to resolve the dispute via mediation. Further, failure to do so would also attract pecuniary jurisdiction which is currently INR 3 lakhs. The main intention for setting up this process was to:

Facilitate ‘ease of doing business’ to attract foreign capital into the Indian economy.

To relieve courts from the burden of overwhelming court cases pertaining to commercial disputes in the era of “docket explosion”.
To secure greater compliance with the agreement arising from the mediation process, given the process’s inherent capacity to foster a mutually beneficial outcome. It basically provides a sense of a ‘win-win situation’ for both the parties involved.

Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 : an insight

To bring clarity to the process and to set a timeframe to settle the disputes in mandatory ADR, the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, were developed in the year 2018. Its goal is to define the stepwise process on how to go about the process of pre-institution mediation and most importantly, it clearly defines the time frame within which the exploration of pre-institutional mediation and settlement is to be completed.

These Rules define as to how the mediation process is to be initiated, the venue, the time frame within which the process should be completed (it is typically within three months and can be extended depending on the circumstances at the time), role of the mediator, how the parties can or are to be represented, procedures for the mediation, the attitude and ethics that the litigant parties should have and display while appearing for this process, the confidentiality of facts that may come to light during the mediation process, the fee for the process, ethics to be followed by the mediator and it also contains the forms to be filled by the litigants to initiate the mandatory ADR process.

Example of mandatory ADR in a commercial case

Section 12A of the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018, makes it mandatory for litigants to exhaust all remedies of pre-institution mediation before they can file a suit. In the lawsuit of Ganga Taro Vazirani v. Deepak Raheja (Ganga Taro) (2021), in the Bombay High Court in the year 2021, a single judge, while interpreting this section, held that there is no absolute prohibition against filing a suit before the parties attempt pre-institution i.e mandatory mediation. The single judge contended that this provision is only procedural and not mandatory if it seems that one of the parties has a compelling case against the other.

Later, based on an appeal filed by the defendant before a divisional bench of the same court against the order of the single Judge, the verdict of the latter was reversed. The divisional bench contended that the provision for exploring mandatory pre-institutional remedies was mandatory when urgent interim relief was not seen to be asked in the original suit.

Mandatory ADR in Indian Family Law

The modern family in India is witnessing increasing disputes of a commercial and matrimonial nature. Marriage Relationship Counselling is now a specialised area and is being increasingly used to save families from new generation problems such as forced marriages, matrimonial disputes, matrimonial divorce cases, adoptions, inter-country adoptions, complications arising from surrogacy, etc. These problems could not be even imagined or comprehended in the initial stages of framing of family-laws in our country.

As our courts are already burdened with large numbers of pending cases with new ones being added, it has become imperative to try out new out-of-court settlements / pre-institutional mediation to settle these disputes so that the litigants get a speedy and satisfactory solution to their grievances.

Example of mandatory ADR in family disputes

In the example of the divorce case of Jagraj Singh vs. Birpal Kaur (2007), the Supreme Court of India, in its judgement, contends that matrimonial matters are much above rituals. The disputes in such cases can be and must be tried to be repaired by sewing and patchwork. The court has given the highest importance to human relationships and bonding and says the same should be given a chance through settlement and prefers not to see them being litigated in courts.
In the mutual consent divorce case of Amardeep Singh vs. Harveen Kaur (2017), we find the following fundamental grounds that are mandatory for settling the same:

The couple needs to live separately and independently from each other for one year and six months before initiating the divorce petition. This is mandatory under Section 13B (I) of the Hindu Marriage Act, 1955.
All disputes concerning child custody, alimony, shared property, and other issues have been amicably settled.
The couple should have attempted alternative ways of resolving their conflicts and only after they failed to reach an amicable solution and do not foresee living together again as spouses.
If the above-mentioned requirements are met, the court may waive the waiting period at its discretion.

Mandatory ADR on the global stage

The United States of America (USA)

In the United States, legal professionals such as lawyers, local, federal, and American Bar Associations, and other judicial organisations have been very enthusiastic in adopting and promoting the process of mandatory mediation. They were all of the singular opinion that this process would reduce the strain on the judicial system which was at the point of collapse and in turn, could be misused by litigants. Although ADR was introduced in the USA in the late 1960s as an after-effect of civil rights movements and legal reforms.

Thereafter, it became thoroughly professionalised by the mid-1980s, when their lawyers and State Bar Associations developed and set into motion mediator training standards, provided training in mediation to their legal professionals, prescribed ethical standards to be followed by the lawyer, and advocated in their role as mediators. This, in turn, made mediation a part of their general law practice. As this practice was institutionalised by the judicial institution, the lawyers rightfully did not fear losing business to mediation and this helped the widespread use of the mediation process.

Thus, the United States of America has today, the world’s most robust and advanced successful systems for settlement of disputes outside the formal legal system through mechanisms of mediation and arbitration. While there is no consistent nationwide policy on mediation in the USA, various courts and federal agencies in the country have implemented mandatory mediation programs.

The European Union

The European Union’s general stand basically questions the process of the effectiveness of mandatory ADR. The European Mediation Directive underscores that voluntariness is essential for any mediation process and it should allow parties and mediators to terminate the process at any time. At the same time, it grants its member states the discretion to introduce and practise compulsory mediation at their convenience, provided they continue with the current guarantee to allow access to justice.

The member states of the European Union exhibit varying stances on mandatory mediation. The English-speaking countries prefer the model being followed by the United States of America, where mediation has been made mandatory along with cost allocations for the same. The other European countries have been cautious with their approach to the subject and have seen very limited instances of mandatory mediation.

However, the case of Italy in this regard is worth studying. Its hard-earned success in this respect is being hailed across the world today. Their difficult journey started approximately in the year 1990 and until the year 2016, they experimented with quite a few different models of voluntary and mandatory mediation and ultimately, they settled for their current ‘opt-out’ model. In the year 2015, when Italy saw a drastic fall in the number of mediations (including voluntary mediations), the country introduced mandatory ADR by an Act of Parliament. In the same year, when there were 17,48,384 new cases lodged in their courts, 8% of them were subject to mandatory mediation, and the remaining 92% were allowed voluntary mediation. The country thus saw a total of 19,624,714 mediations. There were 81.6% mandatory mediation cases which saw a success rate of 44% whereas 8.3% were voluntary meditations which saw a success rate of 60%.

This success was actually facilitated by the ‘opt-out mediation model’. Under this law, in certain types of cases pertaining to banking contracts, medical, real estate, and some other specified cases, the plaintiff, even before he or she files a suit in the court of law, is first required to convene the defendant in front of a registered mediation organisation which also should be accredited by the Ministry of Justice. In case the plaintiff fails to do so, the court action will stop. In case the defendant refuses to attend this first mediation session, he/she will have to face negative consequences along with financial penalties. It is important to note that this first meeting is not just an information session or a formality. It is the start of the actual mediation itself. It is also pertinent to note that either of the parties can ‘opt-out’ of this process in case it is not to their liking or convenience without any negative fallout at the court trial.

Thus, we see that this Italian experience re-imposes the claim that introducing an easy ‘opt-out’ model of mandatory mediation is likely to substantially increase the number of both mandatory and voluntary mediations and would highly reduce the burden on the traditional judiciary system. This is what the entire world and more importantly, the Indian judicial institutions desperately need.

Australia

The journey of mandatory ADR in Australia has been similar to that of the United States of America wherein, it was introduced in the thought process and experimentation started in the 1980s. Legislation to this effect was introduced in the mid-1990s in cases pertaining to small businesses, building disputes, residential and retail tenancies, franchising, farm debts, etc. They were widely accepted by the stakeholders in the judiciary system viz the lawyers, advocates, and judges as it helped them in dealing with the large number of pending cases, as is the usual case all over the world. The data on the success of this process is not available in Australia due to its complex federal polity, where the process is more decentralised. It is however noted that mandatory ADR in retail tenancy disputes saw a success rate of 80%. Thus, we see that the experiences of Italy and Australia are different due to different political systems and domestic factors.

A critical analysis of mandatory alternative dispute resolution process

Advantages of mandatory ADR

They are successful in reducing the number of cases pending in the court, thus lessening the burden on the judiciary which is already reeling with short staff and judicial stakeholders.
It is cost-effective i.e. less expensive than a normal court trial. Long pending court cases have proven to be a drain on the litigants. This has had an effect on the general public who often get discouraged from going to court with their grievances and compromise without gain in their situation.
ADR gives faster justice to the opposing parties or litigants and ensures that the right to justice as given to all citizens of this country and similar rights in the rest of the world, is being upheld. A slow pace of justice is equal to justice denied. Mandatory ADR helps the country uphold this right of its citizens.
Quick and effective justice ensures social-economic-political trust and faith of the citizens in their country’s institutions.
Quick and effective justice ensures more confidence in foreign institutions encouraging their involvement with the country in various fields of commerce, etc.
Mandatory ADR helps overcome the ‘first-to-blink’ syndrome – especially in a country like India, where ‘not-fighting-it-out-in-court’ is seen as a sign of weakness both by the opposing parties and the lawyers.
It gives a chance to the opposing parties to cooperate and determine the terms on which their disputes can be resolved, and this often ends in a less hostile and amicable manner.

Disadvantages of mandatory ADR

There is an absence of a robust cadre of professional mediators in India and many other countries, unlike the USA, who can take up the role of mediation effectively when the same is mandatory.
Mandatory mediation or ADR does not fit all situations even if they look alike from the surface. Not all opposing parties in all cases are willing to sit and talk with a mediator in between as they feel they might lose control of their narrative of the situation. Some of the parties come with the desire to punish the other party through litigation.
Involvement of a pecuniary cost for not attending mandatory ADR sessions, in situations where the litigants do not want mediation, may result in grievance against the judicial system itself.
The lawyers suggesting these methods may lose clients who are unwilling to go for such mediation. This fear is what prevents lawyers from suggesting this process to their clients in the first place.
The power balance or equation of the two opposing parties may be different and this may lead to the less powerful party feeling disadvantaged and thus, the outcome may not be to his/her satisfaction. These cases may give the impression that the legal system has failed the litigant and has the potential to erode public confidence in the system.

Voluntary ADR

Voluntary arbitration involves two opposing parties who voluntarily agree to settle their disputes outside of the traditional court or judicial system through a third-party mediation. This process is mostly utilised by contracting parties where a clause for settlement of disputes by mediation is added to the contract (mostly seen in commercial contracts) in its initial stages itself. However, the parties can also agree and accept to settle any arising dispute through a third-party mediation after the contract is signed, where any kind of initial clause pertaining to dispute settlement is absent.

The reason for preference of voluntary arbitration or mediation is that it is less costly, primarily aims to reduce bitterness between the two parties and makes the atmosphere more conducive for peaceful dialogue, the confidentiality of the process, faster than the traditional judiciary process, and lastly, the final solution is not binding on either of the parties and the latter is still free to approach the traditional judicial institutions for final settlement of the dispute.

Mediation bills

There are specific mediation bills passed in India that we need to consider while we discuss Voluntary mediation. Voluntary ADR in India can be cited in the following Acts:

The Arbitration and Conciliation Act, 1996 – This Act aims to cover all domestic and international commercial arbitrations and conciliations. It makes provision for fair, efficient, and effective arbitral procedures. It permits the utilisation of mediation, conciliation, or other non-traditional judicial procedures through an arbitral tribunal to encourage settlements of disputes. These settlements can however be enforced in the way as if they were awarded by the traditional judiciary courts.
The Mediation Act, 2018 – This Act, which came into force on January 1st, 2018, established a legal framework for handling civil dispute proceedings. It allows for settlement of disputes through mediation, provided the litigants voluntarily accept the mediation. The mediator can only facilitate the negotiations, but the final decision on the settlement of the dispute or even foregoing the mediation is left to the opposing parties.

The Mediation Bill, 2021– Made pre-litigation mediation mandatory. The bills suggested a timeline of 180 days to complete the mediation process and an extension of an additional 180 days was allowed in case the mediation was proposed to be extended by both the parties.

However, the requirement of mandatory or compulsory mediation became a point of concern as it goes against the very nature of mediation – i.e. voluntariness. This is against the principles of free consent.

“Making pre-litigation mediation mandatory was akin to taking the horse to the water. It did not necessarily lead the horse to drinking the water.” – Vijayendra Pratap Singh, Partner, AZB and Partners.

Hence, The Mediation Bill, 2023 came into effect.

The Mediation Bill, 2023 – This bill was built upon the preceding bill The Mediation Bill, 2021, where pre-litigation mediation was made mandatory. In The Mediation Bill, 2023, the core principles of mediation viz voluntariness in all aspects of the process and confidentiality were safeguarded. It allows for mediation to be provided either free or at a minimal cost. Moreover, the time limit for completing the mediation process has been reduced to 180 days (120 days for the first instance and allowing for a 60-day extension of the same) unlike 360 days (180 days for the first instance and allowing for another 180 days extension of the same as envisaged in The Mediation Bill, 2021. It further extended mediation to the virtual world i.e. online digital platform which has proved to be more cost-effective. This has thus, helped in giving access to more of its citizens to exercise their right of access to justice.

A marked feature of this bill, as compared to The Mediation Bill, 2021, is that it talks about the establishment of the Indian Mediation Council. The role of the Council is to recognize and register mediators and mediation service providers as well as the creation of a robust panel of mediators through training and certifications.

Example of voluntary arbitration in a commercial case

In the case of Vinod Bhaiyalal Jain & Ors. vs. Wadhwani Parmeshwari Cold Storage Pvt. Ltd (2019), the appellant, Vinod Bhaiyalal Jain & Ors was unhappy with the reward of the arbitrator as it came to light that the arbitrator had already acted as a lawyer to the respondent Wadhwani Parmeshwari Cold Storage Pvt. Ltd in a previous case. The appellant refused to abide by the reward and fought his case in the High Court and Supreme Court which upheld the contention of the appellant. Hence, this case shows that the parties can challenge the arbitration process at any time of its performance and that it is not binding on them.
In the case of Moti Ram TR LRS And Anr vs. Ashok Kumar And Anr (2010), the court while deciding on confidentiality of information in the mediation process, said in one of its statement: “In the case of court referred mediation under Section 89 of the CPC, the court can refer disputes for mediation and if, even after that, the dispute has not been resolved the matter will return to the court where it will be adjudicated upon. Kindly note that Section 89 of the CPC itself emphasises on the voluntariness of the parties to take part in mediation. It clearly says: “Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for…..”

As most of the kinds of Alternative Dispute Resolution systems are voluntary by the system’s very core nature and principle, almost all arbitration, mediation, and other kinds of pre-dispute and post-dispute agreements are voluntary in nature and can be contested in courts if any of the litigants or the opposing party is not happy with the process at any part of its performance.

A critical analysis of voluntary ADR process

Advantages of voluntary ADR

The first principle of free consent in mediation /conciliation/negotiation and similar ADR systems is met when they are accepted voluntarily by the opposing parties.
It is non-coercive and hence, the litigants can sit across the table and negotiate from a position of strength knowing fully well that they are free to disagree with any part of the negotiation. This leads to less bitterness in the negotiating atmosphere.
It is cost-effective as the parties do not have to hire advocates and any third-party mediator can be appointed with a minimal fee for the mediation process.
It ensures justice in a faster way (similar to an extent to Mandatory ADR).
It leads to a lessening of the burden of caseloads on the courts as seen in Mandatory ADR.
The opposing parties, if they wish so, are free to opt-out of this process and knock on traditional judiciary institutions any time after that.

Disadvantages of voluntary ADR

The parties are not bound to accept such a mechanism and hence, it will be very difficult for the judicial stakeholders to convince the parties to consider the process and lessen the burden on the judiciary.
As seen in mandatory ADR, the absence of a well-trained professional workforce in mediation hampers the process of any kind of ADR, including voluntary ones. Hence, the quality of arbitration may suffer resulting in dissatisfaction and ultimately failure of the arbitration process.

Conclusion

ADR mechanisms have been proposed to provide quick and congenial justice to the citizens of all countries of the world. However, the absence of infrastructure that can take the concept forward is seen as the first challenging factor to its success.

The second challenge it seems to face is the acceptance of this system by the general populace, which has entrenched beliefs regarding ‘honour’, ‘unmanliness/weakness’, and the like when it comes to fighting court cases out of the traditional judicial systems. This has become problematic for the judiciary which is doing its best to deal with the huge number of pending cases (approximately 5.02 crores in all high courts, district and subordinate courts in India, with approximately 70,000 cases in Supreme Court of India, as on the 1^st of July 2023) along with the exponential number of new cases being filed every day.

Hence, the following recommendations can be looked into, for effective implementation and success of ADR leading to upholding of Article 14, Article 21 & Article 39A of the Indian Constitution which gives every person equality before law in the Indian territory and the Right to Access to justice.

It is, first and foremost, extremely important to build a strong system of well-organised institutions that help in implementing any form of ADR. This includes well-trained professionals, mediator organisations, NGOs, and other kinds of manpower, who can attain expertise in mediation and are willing to take up mediation as a lifetime profession/career.
The parties or litigants should be properly educated and made aware of the existence of this mechanism and how they would be helping themselves by helping the judiciary by agreeing to ADR.
The costs of availing the ADR should be low to ensure that the right to free, fair, and equal access to justice, as per the constitution is upheld.
ADR should be tailored as per the country, society, and community’s needs (ensuring it adheres to the constitution at the same time).

A gradual embrace of these recommendations, coupled with continuous monitoring, checks, and upgrades, would contribute to the development of a more egalitarian and harmonious system that facilitates access to justice for the citizenry. This system should be designed to adapt automatically to the evolving dynamics of our changing environment especially in this era of accelerating globalisation.

References

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All about provisions for payment in court under CPC

By

Rachit Garg

-

October 9, 2023

0

This article was written by Suhana, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho and edited by Koushik Chittella.

It has been published by Rachit Garg.

Table of Contents

Introduction

The law that governs the procedure and practise of civil courts is the Code of Civil Procedure, 1908, also commonly referred to as the CPC. One of the crucial aspects of civil litigation is the payment of costs and interest by the parties involved in the suit. The provisions for payment in court were given under Order 24 of the Code of Civil Procedure, 1908. There are four rules under this order. It talks about the provisions of payment in court by the defendant to the plaintiff’s claim or suit. This article briefly covers Order 24 and the rules contained in it.

Features of Order 24

The features of Order XXIV can be summarised as follows:

Under this order, payment is made by the defendant to the plaintiff’s claim. This rule is not applicable to the plaintiffs.
Payment into court is an attempt to reach a compromise rather than a defence. It means that payment made by the defendant to the plaintiff’s claim is to dispose of the claim, not admission about the merit of the cause of action of the suit.
The defendant may at any time deposit the amount in satisfaction of claim as soon as an appearance has been filed and until a decree or judgement has been passed.
A payment into court is simply an offer to dispose of the claim on terms.
A notice shall be given through the court by the defendant to the plaintiff after the deposit of the amount. This rule applies to all claims related to recovery of debts or damages.
If a payment is made/deposited into court during the final argument stage by the defendant only to save the interest amount, the application can be rejected.

Provisions for payment in a court

Payment into court is governed under Order XXIV of the Code of Civil Procedure, 1908. Whereas the security for such costs is covered under Order XXV of CPC, 1908. The provisions under Order 24 are Rules 1, 2, 3, and 4.

Rule 1: Deposit by defendant

Under this rule, the payment to the court is made by the defendant to satisfy the plaintiff’s claim. The suit is to receive or recover debts or damages. It is open to the defendant to deposit the amount at any stage of suit but before passing any decree or judgement. The amount can be deposited as much as he considers a satisfaction of his full claim.

According to this rule, it’s only applicable to the defendant, not to the plaintiff. This defendant is eligible to deposit the amount to the suit for debts or damages by the plaintiff. In the case of a deposit at the stage of the final argument, the application of such a sum of deposit can be dismissed.

In the case of Digipulse India Pvt. Ltd. vs. J.K. Corp. Ltd. (2004), the plaintiff made an application under Order 24 Rule 1 read with Section 151 of the CPC, seeking directions to the defendant company to pay or deposit the claim amount into court. Here, the Delhi High Court stated that the provisions of Order 24 Rule 1 CPC are in fact meant to be used by the defendant and not by the plaintiff. Order 24 Rule 1 CPC applies to the defendant. Hence, the application without merit has to be dismissed.

In the case of Vasanthakumari vs. Sarojini (2007), the High Court of Kerala stated that “Order 24 makes provision to enable a deposit or payment into court being made and to stop the accrual of future interest.”

Rule 2: Notice of deposit

Under this, a notice of deposit shall be given through the court by the defendant to the plaintiff. The deposit amount shall be paid to the plaintiff on his application (unless the court otherwise directs).

In this case, the plaintiff shall apply for acceptance of the deposit amount. Such a deposit must be unconditional; here, unconditional means not subjected to any other conditions.

Rule 3: Interest on the deposit after the notice

Accordingly, a notice of deposits shall be given by the defendant to the plaintiff through the court. After the issuance of such notice, no interest shall be available to the plaintiff. The plaintiff is eligible for interest on his claim before the issuance of such notice, but after such notice, the plaintiff cannot claim for the same. The plaintiff has the right to claim for the remaining amount of interest before the issuance of such notice. Whether the deposited sum is in full or short of the claim, it means that when a defendant deposits the amount, whether in full or short, there shall be no interest from the date of notice.

If the amount is deposited at the final stage of argument only to save payment of interest, the application of the defendant for such a deposit can be rejected. The plaintiff has the right to receive interest from the date of the institution of such a suit.

Rule 4: Procedures

Procedure when the amount deposited accepted as in part of his claim

Where the plaintiff accepts such an amount as satisfaction in part of his claim, he may continue the suit for the balance. If the court considers that the deposit amount by the defendant was the full satisfaction of the plaintiff’s claim, then the court may decide the suit on its merits. If the plaintiff is not satisfied with the deposit, he may continue the suit and shall pay the costs of the suit pursued after the deposit and the costs pursued previously to that, so far as they were caused by excess in the plaintiff’s claim.

Procedure when he accepts it as full of his claim

Where the plaintiff accepts the amount as satisfaction in full of his claim, he shall present to the court a statement to that effect. The statement shall be filed by the plaintiff as he is satisfied with the amount deposited by the defendant. The court shall pronounce judgement accordingly and shall direct the parties by whom the costs of each party are to be paid. The court shall consider which of the parties is most to blame for the litigation.

According to Rule 4 of this order, if the plaintiff accepts the deposit amount as full, then the court shall record his statement and pronounce judgement accordingly. On the other hand, if the plaintiff accepts such an amount as half of the claim, he may prosecute the suit for the remaining amount, but if it’s found that the deposit amount was in full satisfaction of the plaintiff’s claim, then he will have to pay the costs incurred by the defendant after the amount of the deposit. If the amount offered by the defendant is accepted by the plaintiff and the dispute is settled through a compromise, it can be withdrawn by the plaintiff.

To summarise the provisions, Rules 1 and 3 of Order 24 are as follows; Order 24, Rule 1, provides that the defendant in any suit for the recovery of debts may deposit in court such money as he considers satisfaction in full of the claim, and Rule 3 of Order 24 mentions that no interest shall be allowed to the plaintiff on the deposit of the sum by the defendant from the date of notice issued through the court by the defendant.

Order 24 of CPC is meant to be used by the defendant and not by the plaintiff.

Illustrations

Ram owes Shyam a sum of Rs. 10,000. When Shyam asked for the repayment of the same, no reply or answer was given by Ram. Shyam filed a suit for non-payment. After the institution of the suit, Ram immediately deposited the amount with the court under Order 24. Shyam accepts the amount as full of his claim. The court should also give Shyam his cost of suit, as the conduct of Ram has shown that the litigation was necessary.
Mr. Rohan owes Rs. 20,000 to Mr.Sohan and is ready to pay him that amount without any suit. Mr.Sohan claims Rs. 25,000 and sues Mr.Rohan for that amount. In the suit being filed by Mr.Sohan, Mr. Rohan pays Rs. 20,000 into court and argues that he is not liable to pay the remaining Rs. 5000. Mr.Sohan accepts the Rs. 20,000 in full satisfaction of his claim. The court should order him to pay Mr. Rohan’s cost of suit.
Raj owes Paras Rs. 4000. There was no demand for the payment made by Paras, and he filed a suit against him. Raj immediately pays the amount into court, and Paras accepts the amount as full of his claim. Still, the court may not allow him any cost, as the suit has been filed without making any demand to the defendant, and the litigation is groundless on the part of Paras (plaintiff).

Problems afflicting costs under CPC

In India, civil litigation is growing at alarming rates. The awareness regarding litigation is better for the nation, but however, there are equally higher chances for a party to file a frivolous and vexatious suit in court due to various reasons, including the personal vendetta against the other party, and it might also be the inefficiency of the court to impose proper and adequate costs on the party making false claims and wasting the precious time of the court. The provisions of CPC related to costs are not exhaustive enough for the current period and need changes. The major problems afflicting costs highlighted by the 240th report of the Law Commission are:

The cost doesn’t generally follow the event.
The cost awarded is very different from the actual, realistic cost.
The current cost imposed doesn’t curb frivolous and vexatious litigation.

Amendments made to CPC by the Commercial Courts Act, 2015

The Commercial Courts Act, 2015, brought some changes to the Code of Civil Procedure, 1908. These changes were related to the costs under Section 35 of the CPC. These provisions were made applicable to commercial disputes of specified value. The substitution of Section 35 was done as a result of the fact highlighted by the Law Commission in its 240th report. provided for a general rule for the payment of costs by one party to another. It also mentions that the Court can determine whether the costs are payable or not, the quantum of the costs, and when they are to be paid. The costs include the fees and expenses of the witnesses, legal fees, and any other expenses incurred by them in connection with the proceedings. If the Court is deviating from this general rule, it has to record the reasons for the same in writing, as per the amendment brought by this Act. The Act also amended Section 35A of the CPC and omitted sub-section 2.

Conclusion

Payment into courts is defined under Order 24 of the CPC, 1908. There are four rules under this order. This order applies to all suits instituted to recover debts or damages. the payment under this order made by the defendant of the amount in satisfaction of the plaintiff’s claim. The payment under this order can be made at any stage of the suit but before the passing of a decree or judgement. If it is found by the court that the payment made by the defendant at the stage of the final argument was only to save payment of interest, then the application for deposit of such an amount can be dismissed by the court.

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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Conveyance deed vs sale deed

By

Rachit Garg

-

October 8, 2023

0

Agreement-for-sale-versus-sale-deed-Main-differences-FB-1200x725-compressed-1200x725 — Image source: https://housing.com/news/agreement-sale-versus-sale-deed-main-differences/

This article has been written by Manya Manjari. This article briefly discusses conveyance deeds and sale deeds. It also discusses in detail the difference in the laws they are governed by, landmark cases, the procedure to draft these deeds, and their key focus in India.

Table of Contents

Introduction

Imagine a situation where ownership of a property is transferred; it may be a city apartment or a nice cottage in the countryside. This procedure calls for formal papers or ‘deeds’. Black’s Law Dictionary defines it as “a sealed instrument, containing a contract or covenant, delivered by the party to be bound thereby, and accepted by the party to whom the contract or covenant runs.”These documents are more than simple paperwork; they have the legal authority to ensure that the transfer of property ownership is done lawfully.

Deeds are essential in determining who legally owns any significant item, including real estate, buildings, and other types of property.

However, if they are not completed properly—for example, if necessary paperwork, registration, or notarization are not included—they will lack enforceability in the eyes of law.

One may be familiar with terminology like ‘sale deed’ and ‘conveyance deed’ when it comes to real estate transactions. Despite the fact that they appear to be the same, they stand for various aspects of property transfers.

The scope of this article is restricted to conveyance deeds, sales deeds, and the difference between the two. In order to understand how these legal papers affect the process of transferring of property ownership, let’s understand the difference between the two terms.

Key differences between conveyance deed and sale deed

Meaning and Definition

Conveyance Deed

Black’s Law Dictionary defines conveyance as “Conveyance includes every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity, except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands.” This definition was also relied on by the Supreme Court of Minnesota in the case of Shraiberg v. Hanson (1917). A conveyance deed is a document which essentially transfers the ownership of movable or immovable property. It is a broader term that includes the ownership transfer of any gift, mortgage, lease, or exchange. It does not always require consideration. It is not limited to just sale transactions as it also includes transferring property in several other manners as well.

Sale deed

“The transfer of ownership of real estate for money is referred to as sale” under Section 54 of the Transfer of Property Act 1882. A sale deed is a legal document used to transfer a real estate property’s rights, title and ownership from one party to another. A sale deed is generally executed in cases of immovable property. A sale deed always requires consideration. It is only made in case of sale transactions. It is a document showing that the sale is successful and that the property belongs to the buyer.

Origin

Conveyance deed

The origin of the conveyance deed can be traced back to Anglo-Saxon England. Between the 8th to 11th centuries, people began documenting the information relating to the ownership of land. In this period, ownership documents were executed on vellum or parchment to record land transactions. Eventually, people started relying more on this method of transfer of land ownership. Around the 16th century, due to the legal safeguards offered to the parties, the conveyance deed became a more reliable option for the execution of contracts. With the passing of time, it became a widely accepted mode and gained official recognition from the government, thereby ensuring transfers’ security and establishing clear ownership of property.

Sale deed

The sale deed has its origin from the deed of conveyance itself. However, in India, the concept was officially recognised after the commencement of the Transfer of Property Act, 1882. The sale deed is new, as it only covers a few topics that are dealt with exclusively in sale transactions.

Governing laws

Conveyance Deed

A conveyance deed is governed by two major laws, namely, the Indian Registration Act, 1908 and the Indian Stamp Act, 1899. Registration of a conveyance deed is mandatory. When the transfer is made permanent in the public records and it is signed by two witnesses, the process of the conveyance deed is completed. It can also be notarised.

Sale deed

A sale deed, on the other hand, is governed by the Sale of Goods Act 1930, the Transfer of Property Act 1882 and the Indian Registration Act for registration purposes. It is absolutely necessary to have a sale deed registered, and anything that costs more than 100 rupees must be registered for its execution as per Section 17 of the Indian Registration Act, 1908.

Features

Conveyance deed

A conveyance deed is an important document. Its main characteristics are that it serves as evidence to show that an individual owns the property. It is proof of ownership of the concerned property. It helps transfer property rights and claims arising from said property.

Sale deed

Similar to a conveyance document, a sale deed’s key features include establishing the buyer’s ownership right. It transfers ownership from the seller to the buyer in return for some for consideration. One distinct feature is that it clearly lays down the monetary transactions and schedules of the consideration. It is a document enforceable in the eyes of the law. Once the sale deed is registered, the buyer reserves all the rights of the concerned property.

Applicability

Conveyance deed

A conveyance deed is applicable not just to sale transactions but also to gifts, leases, mortgages, wills and any other kinds of property transfer.For instance, A might draft a gift deed to formally transfer ownership of his property to his son B as an act of goodwill. This legal document attests to the transfer of the property without consideration for money, hence serving as a good example for conveyance deeds.

Sale deed

A sale deed becomes applicable only to those transactions where there is a sale particularly. Sale, which is the transfer of ownership of a property from one person to another in return for a consideration, is governed by the provisions of Section 54 of the Transfer of Property Act 1884. For instance, A sale deed would be used if A decided to sell his property to someone else, let’s say C, for a specific amount of money in order to verify the ownership was transferred legally.

Definite demarcation of property boundaries
Information on power of attorney (if any)
Details of property handover
Titles of both parties
Signatures of buyer and seller
Clearly stated terms and conditions
Details of encumbrances (if any)
Details and signatures of witnesses
Method of property delivery
Specific dates of transfer

The date and time of conveyance have to be followed with utmost care.

In the case of Smt. Jaswant Kaur v. Harpal Singh (1977), issue was raised concerning inheritance and gift deeds. A man had executed a will transferring his property to his wife, which would pass on to Major Harpal Singh after her death. The wife, after receiving the property, further started dividing it by making gift deeds. This was contested by the appellant, Major Harpal Singh. It was decided by the Punjab and Haryana High Court that even if the deed were executed after the death of the husband several years later if the deed clearly mentions that the property will be transferred on a specific date, it would be considered as if the transfer happened on that date and in the way which is mentioned in it.

Sale deed

A sale deed generally contains the following information-.

A sale deed contains the property’s location, address, and description.
It includes crucial information about stamp duty and its payment details.
The sale deed also outlines the terms and conditions agreed upon by the parties involved.
The sale deed is considered legally binding with the acceptance through signatures from both parties.

Essential elements

Conveyance deed

The below-mentioned points are the essential elements; in the absence of these, a conveyance deed will not be treated as complete.

Details of parties

Like any other agreement, a conveyance deed requires the details of the parties involved in the execution of the deed. These details contain the name, address, and information regarding the execution, as mutually decided by the parties. Since a conveyance deed also includes gift deeds, wills, mortgage deeds and many others, the details vary from case to case basis.

Recitals

Recitals contain the reason behind the contract that is being entered into by the parties. It is the preamble clause, or generally, it begins with ‘Whereas’. These clauses must be clearly laid down so that the objective behind the agreement is clear.

Transfer details.

This clause contains all the details of the purchase mandatorily, along with the kind of transfer that is being made through the conveyance deed. If it is a gift deed, then there will be no consideration, and if it is a mortgage deed, it will contain all details of the property being mortgaged and the other necessary details. In the mortgage deeds, the mortgagee holds a right if the mortgagee has not repaid the loan. Also, as per the terms mentioned in the mortgage deed, the property mortgaged is used as a security for the repayment of the loan.

Clauses

A conveyance deed has several clauses depending on the type of transfer. Clauses are drafted depending on the facts and circumstances of each case. Other essential clauses like the dispute resolution clause, jurisdiction and warranty clause are also present in every kind of conveyance deed.

Notary or registry details

A conveyance deed should be registered or notarised. It can be notarized by the notary office at the place where the contract is being formulated or at the office of the sub-registrar.

Attestations

Conveyance deeds have to be signed by the people who are parties to the contract. Along with that, the signatures of the witnesses are also very important to ensure that the transaction was initiated with the parties’ free will.

Sale deed

A sale deed generally begins with the details regarding the date and time of execution, along with the names of the parties, details of any representations that are to be made and thereafter, the necessary clauses are mentioned in accordance with the concerned law. The necessary clauses are mentioned under:-

Stamp details

The top part of a sale deed format has a stamp and seal of the registrar and sub-registrar. The stamp fees and seal will depend upon the value of the property being sold and also the local laws of each state.The amount and the party making the payment on the stamp paper for the deeds are determined by Sections 28 and 29 of The Indian Stamp Act of 1899. Stamp duty is imposed based on whichever is greater than the circular rate (stamp duty rate )or the actual value of the property. Stamp duty may range from 3 to 10%, depending on the state. In Delhi, for instance, the rate of stamp duty is 6% for men, 4% for women, and 5% for joint ownership.

Parties in a sale deed

The details of both the buyer and seller are significant in a sale deed. This consists of name, age, father’s name, address and so on. Any information about the power of attorney, or legal representation or any other information by which they are expressing their willingness to enter into a contract for sale. The person should be a juristic person; it cannot be any unregistered firm or a fictitious person.

Description of the property

The details regarding the property boundaries on all sides, along with details as to any encumbrances or any mortgage, are mentioned. The nature of the property, i.e., whether the property is a plot, or a house, a building or a commercial property, should be clearly laid down. The exact location, address and house number, along with carpet area and rooms, should preferably be mentioned. The approved map and photos are also attached for the convenience of the parties.

Consideration and payment details

Clauses containing the details of consideration and payment schedule are mentioned. Consideration is the price that is paid in return for the property. The method of payment, be it check, cash, demand draft, instalments, online mode of payment or through a loan, is mentioned in that clause. The date of handing over of original property documents are also mentioned. If there is to be any advance payment, there should be an acknowledgement slip attached to it. Any faults or defects in the property should also be reported in this clause.

Transfer title

The transfer of title clause contains the relinquishment of the title of the previous owner and gives the new owner all the right to enjoy the property.

Other clauses

A few important clauses like the indemnity clause in case of a defect by a party, the witness of the sale, the clause containing the rights of the parties, the warranty clause of the property, and dispute resolution clause containing the method by which disputes would be resolved are also present in the sale deed.

Annexures

The last part of the deed is that it should have the details of identification, photos, payment slips, maps, etc. The annexures can be presented as evidence of the details and facts mentioned in the clause.

Registration

A deed can be executed only after it has been registered. So it becomes necessary to register a deed. Registration is done by the provisions provided under Section 17 of the Indian Registration Act 1899.

Conveyance deed

The rules and regulations of the state in which a conveyance deed is executed will govern its registration.

Declaration and Signatures: In some states, a certified advocate and the person who wrote the conveyance deed must sign a declaration attesting to the accuracy and authenticity of the deed before it is finally executed. Furthermore, the unregistered document needs to have the token number that the relevant body granted to the deed attached to it.
Proof of Payment: Unless the conveyance deed is a gift deed, the conveyance deed must be accompanied by valid consideration for the registration fees and any relevant taxes.
Identity Proof: All participants in the transaction, including the witnesses and the transferor and transferee, must provide valid and verifiable identity proofs.
Draft of the Deed: The conveyance deed must include all pertinent information about the transfer of property, including-

a) The method of property transfer must be clearly stated.

b) The agreed-upon specific transfer dates by the parties.

c) Any other necessary formalities that need to be completed in the allotted time limit.

Original Documents: the original documents for the property being transferred must be presented. This contains all previous certifications and records pertaining to the asset. Furthermore, legitimate documentation must be shown to demonstrate that the property is free of liens and disagreements.
Witnesses: In order to verify that the deed was executed correctly, witnesses from both parties involved should ideally be present.

Sale deed

Document Preparation: A sale deed must be correctly written and printed in order to be registered.
Original Documents: The sub-registrar’s office must receive the following information:

Agreement to sell: Legal agreement to sell the property is called an agreement to sell, which was offered initially by the seller.
Allotment Letter: The property’s initial allocation letter.
Title Documents: The property owners’ duly executed and legal title documents are required to register a deed.
Registered Agreements: Copies of all earlier registrations that the seller made in relation to the property must be presented at the time of registration.
Tax Receipts: Tax receipts of the original tax for the property must be presented at the time of registration.
Most Recent Amenities Bills: Copies of the most recent bills for the property’s amenities must be attached along with the other documents for registration.
Association Certificate: It is required for selling or reselling an apartment or flat. It is given by the apartment association. Association certificates must be obtained beforehand and presented for registration.
Identity Proof: Appropriate identity proof must be provided by the witnesses and the people engaged in the deed.

A Non-Objection Certificate (NOC): NOC is a document issued by the municipality, society (in case of the sale of flats) or any other relevant authority, as the case may be. It must be presented at the time of registration for clearance of the deed.
Any other Relevant Documents: Any further documents that the state’s local regulations in the area where the sale is occurring mandates must be presented to the registrar.
Verification and Registration: The verification and registration process of the sale deed requires the completion of all required procedures and the approval of the attached documentation mentioned above.
Expenses of Registration: The charges can be borne by either of the parties. They have to pay the following:

Stamp duty
Registration costs at the registrar’s office.

Overlapping aspect

There exists a few differences between a sale deed and a conveyance deed. However, there are some overlapping aspects too. Conveyance deed is a wider term, and it includes all types of deeds for transfer transactions. A sale deed is also a type of conveyance deed, which means that every sale deed is a conveyance deed, but not every conveyance deed is a sale deed.

Difference between a conveyance deed and a sale deed

Sale deeds and conveyance deeds are interchangeably used in any kind of real estate transaction. However, there are distinct differences between these.

Serial no.	Basis	Sale deed	Conveyance Deed
	Nature	Transfer of property ownership from one person to another in exchange for monetary consideration.	Property ownership is transferred from one party to another, which may not necessarily involve monetary consideration. It can also be through gifts or exchanges.
	Consideration	involves selling through money or exchange for a sale price, which the buyer pays the seller.	Does not necessarily involve monetary consideration. It depends upon the type of conveyance.
	Governing laws	It is governed by the Sale of Goods Act 1930, the Transfer of Property Act 1882, the Indian Stamp Act 1899 and the Indian Registration Act 1908.	It is governed by the Indian Registration Act 1908, The Transfer of Property Act 1882 and the Indian Stamp Act 1899.
	Registration	Must be mandatorily registered as per the Indian Registration Act, 1908.	Generally requires registration, or it becomes an imperfect deed. Wills may or may not be registered.
	Types	It is specifically used for immovable property.	It has a wider category of transfers, including sales, gifts, exchanges, leases, warranties and so on.
	Purpose:	It is made for sale transactions specifically.	It is made for transfer purposes.

Landmark cases

Narinder Singh Rao v. Avm Mahinder Singh Rao (2013)

Facts

In this case, a property belonging to Narinder Singh Rao was in dispute. The property in question belonged to Rao Gajraj Singh, and he executed a document that stated whosoever among his wife and him would survive shall inherit the property. This was attested by only his sister and one witness.

After the demise of Rao Gajraj Singh, his wife, Sumitra Devi, became the owner of the property. She went on to construct several shops on it and gave it on rent. Before her demise, she executed a will and bequeathed all the property to one of her eight children, Narinder. The other four surviving siblings challenged this in court. The lower and high courts held that the will was valid, so the matter went before the Apex court.

Issues

The issue, in this case, was whether the will executed by Sumitra Devi and Rao Gajraj Singh was valid.

Judgment

It was held by the Supreme Court that the will executed by Sumitra Devi was valid. However, the will executed by her husband, Rao Gajraj Singh, was not as it did not have proper attestation and had only one witness’ signature. So the property share of each person was determined as 1/9th, and the 1/9th share of Sumitra Devi was given to Narinder Singh additionally. This case highlighted the importance of attestation in conveyance deeds and laid down that any deed is incomplete without two signatures.

Kewal Krishnan v. Rajesh Kumar and Others (2021)

Facts

In this case, certain property was owned jointly by Kewal Krishnan (Appellant) and Sudarshan Kumar (Respondents). A Power of Attorney was executed by the appellant in favour of the respondent so that all the transactions could be dealt with by him on his behalf. The respondents fraudulently executed two sale deeds in favour of his son and his wife for the jointly owned property, which also equally belonged to the appellant. This matter was first taken up before the Trial Court, but the appellants did not get any relief. The matter was again taken up before the District Court, wherein the sale deeds were set aside, and so the respondents went to the Punjab and Haryana High Court, where this decision was reiterated. So a final appeal was filed before the Supreme Court.

Issue

The issue raised in this case was whether the sale deeds were executed without any consideration, and if yes, will it be void?

Judgment

It was held by the Supreme Court that Sudarshan Kumar had failed to present any proof showing that the sale deeds were executed in exchange for any consideration, as neither his wife nor his children were working, and there can be no sale without any consideration. They also failed to show that there was any intention to pay the consideration as it was not even due to be paid at later dates. In addition to that, it was also held that the sale deeds be ignored as they are void, and the appellant would still have his undivided share over half of the property. This is one of the landmark cases regarding the sale deed, which highlights that there can be no sale without any consideration, and if any sale deed is made as a result of a sale like that, it will have no effect.

Syed Afsar Pasha Quadri v. The State Of Telangana (2021)

Facts

In this case, anticipatory bail was sought by the petitioner, and one of the conditions was to cancel the registration of the sale deed and return the consideration amount to the respondents. This bail petition was in front of the Telangana High Court, which ordered him to cancel his sale deed. So, the petitioners went before the Apex Court, challenging this condition of the bail.

Issues

The issue was whether the condition of cancelling the sale deed was valid or not.

Judgment

Bail was granted to the petitioner on the promise of cooperating with the police, and it was held that the condition was not valid as “a registered sale deed cannot be cancelled unilaterally by one party to the said document in purported compliance of the direction given by the Andhra Pradesh High Court and thereby adversely affecting the rights of the purchasers, who are not a party before the High Court.”

Damodhar Narayan Sawale (D) through LRs v. Shri Tejrao Bajirao Mhaske & Ors (2023)

Facts

In this case, two defendants sold a piece of land to the plaintiff. After the plaintiff had taken possession of the land, the second defendant started disturbing the plaintiff’s possession, which led to a legal dispute. The lower court initially dismissed the case, which stated that the sale deed was void. The dispute revolved around the transfer of 2 acres and 20 guntas of a property. An acre of land was divided without the District Court’s necessary permission, according to the sale deed. According to Section 8 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947, this division is deemed to be unlawful fragmentation. According to this, the sale deed was rendered void under Section 9 of the aforementioned Act and declared as a sham document. This decision was reversed by the first appellate court, which favoured the plaintiff. The case further went to the Bombay High Court, which ruled in favour of the defendants, as the defendants claimed that the sale deed was given to the plaintiff only as a security for mortgage purposes. Finally, the matter came before the Supreme Court.

Issue

The issue was whether the sale deed was valid and if it is, what is the significance of a sale deed in the sale transactions.

Judgment

The Supreme Court allowed the Plaintiff’s appeal, upholding the First Appellate Court’s decision and setting aside the Trial Court and Bombay High Court’s orders. It was held by the Apex court that the primary goal of Section 54 of the Transfer of Property Act, 1882, along with Section 17 of the Indian Registration Act, is to register the sale of an immovable property valued at over Rs. 100/- to clarify ownership rights. The parties’ desire to complete a sale is apparent, given that the sale of the property in question was accomplished through a properly prepared and recorded sale document, making the deal legitimate. A selling deed automatically implies legitimacy and implies a genuine and bona fide transaction.

Conclusion

Sale and conveyance deeds are both essential documents in property transactions. A conveyance deed makes it easier for parties to transfer ownership of property to one another, whereas sale deeds are typically used in sales transactions. For both deeds, careful preparation and proper registration are necessary to prevent future issues. In conclusion, the careful implementation of these documents is critical to safeguard the rights of all stakeholders in the property transfer procedure.

Frequently asked questions

Who prepares the conveyance and sale deeds?

The preparation of a conveyance deed and a sale deed is usually done by an experienced lawyer or advocate or a deed writer. They have expertise and experience in drafting these deeds.

Can a sale deed be executed online?

No, a sale deed is not executed online. It is mandatory to visit the sub-registrar office for registration of the deed. One can get e-Registration done and make an appointment ahead of time to avoid any problems and ensure hassle-free registration. It also depends on the rules of the states. Some states, like Maharashtra, have allowed online registration.

What to do if a conveyance or sale deed is lost or stolen?

If a conveyance deed or a sale deed is lost or stolen, one must lodge a First Information Report (FIR) at the nearest police station. After this, a notice must be given in the newspaper, one of which must be in vernacular language. The next step is to prepare an affidavit on stamp paper and attach it with a copy of the FIR and advertisement. The last step is to visit the sub registrar’s office and submit the documents and pay the fees for obtaining a duplicate sale deed, and after verification, a new deed would be issued.

Can a deed be challenged in court?

A deed can be challenged in court if its validity or legality is questioned. A deed can be challenged if it is entered or executed under fraud, undue influence, mistake, non-compliance with legal requirements, ownership disputes, or in contravention of law. The deed can only be challenged by the parties involved in the transaction of the deed. So, it includes the seller and the buyer. The rule of locus standi “a person who is stranger to a disputed matter cannot be allowed to interfere in the judicial proceedings” appears here as well, and only the parties that are affected by the deed can challenge the deed. No one else has the power, not even the registrar, but a registrar can lodge a complaint against the persons and institute a criminal case if the parties have registered the deed based on false information to challenge or cancel any deed under Section 68 of the Indian Registration Act 1908.

Can a conveyance deed and a sale deed be cancelled?

A registered deed cannot be cancelled. It can only be cancelled by order of the court. Section 31 of the Specific Relief Act, 1963 states that a deed can be cancelled if there is an apprehension that the deed will inflict injury on one of the parties. Section 32 states that a court can allow the cancellation of a deed in part or whole if the deed has been registered under the provisions of the Indian Registration Act, 1908, and then a notice is also sent to the sub-registrar’s office to cancel the deed. Section 33 lays down the compensation to be provided for the cancellation of the deed.

References

An overview of Sustainability Reporting Maturity Model (SRMM)

By

Sneha Mahawar

-

October 7, 2023

0

This article has been written by Apeksha Choubey pursuing Diploma in US Tax Compliance and Paralegal Work and edited by Shashwat Kaushik. This article provides an overview of the Sustainability Reporting Maturity Model (SRMM).

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Sustainability reporting has become a prominent pillar for companies in the past few years due to an increase in awareness among consumers and investors to prioritise it in their purchasing and investment decisions. To help companies assess and improve their sustainability reporting practises, the Sustainability Accounting Standards Board (SASB) has developed the Sustainability Reporting Maturity Model (SRMM). This board aims to build strong reporting standards to ensure companies disclose material and relevant information to investors to make investment decisions. In this way, SRMM came into the picture and gained worldwide recognition in a short period of time.

Defining Sustainability Reporting Maturity Model (SRMM)

SRMM is a useful framework that requires companies to disclose, evaluate and improve their sustainability reporting practises. With the help of this model, companies can identify strengths and shortcomings, which further establishes a roadmap for improvement. It is very valuable for investors and other stakeholders interested in the company’s sustainability performance and reporting practises. It provides a structured approach for companies to assess and enhance their sustainability reporting practises, focusing on four key areas: governance and strategy, sustainability management systems, sustainability impacts, and sustainability reporting.

Levels of Sustainability Reporting Maturity Model (SRMM)

It is divided into three levels on account of maturity foundational, intermediate and advanced. Each level is explained briefly below:

Foundational level: At the very first level, a basic sustainability reporting programme is the main focus for companies, which includes identifying critical issues, setting goals and designing reporting processes. The qualitative data or basic metrics, are being considered for this analysis initially.

Intermediate level: At this level, companies have a more robust sustainability reporting programme in place with the help of more advanced metrics and Key Performance Indicators (KPIs) to track their performance and are reporting on a wider range of sustainability issues that ultimately impact the decision making of stakeholders.

Advanced level: Here, companies have integrated sustainability systems into their overall business strategy and are using data to make informed decisions across the organisation. Significant numbers of sustainability issues are included based on their materiality.

Benefits of using SRMM

The benefits of using the Sustainability Reporting Maturity Model (SRMM) are:

Increased transparency and better accountability: Sustainability reporting is a successful way for companies to communicate their environmental, social, and governance (ESG) performance to stakeholders. It ensures reporting must be accurate, reliable and transparent, which can enhance their reputation and build trust with stakeholders.
Enhanced stakeholder engagement: It emphasises stakeholder engagement as a key feature of sustainability reporting. With involvement of stakeholders in this reporting process, companies are receiving greater support and valuable input to improve their sustainability performance and priorities.
Improved performance: This tool is used for improved and continuous improvement as it helps in identifying areas for improvement and tracking progress over some time. This can help them demonstrate a commitment to sustainability and drive long-term value creation.
Risk management: Managing both external and internal risk for the companies in the current challenging environment is utmost important to survive in the market. With the help of SRMM, companies can easily identify and evaluate risk factors. Risk can be mitigated if identified at an early stage.
Greater recognition: Better decision-making, stakeholder engagement and improved performance with help of sustainability reporting, etc. directly contribute towards increase in recognition and goodwill in the market and society at large. It creates a positive environment and shows a boom in share prices on the stock exchange.
Improved credibility: It helps companies identify gaps in their sustainability reporting and improve the quality of their disclosures. This can increase the credibility of the companies with stakeholders, investors, customers and regulators.
Compliance with standards: SRMM is based on international reporting standards, such as the Global Reporting Initiative (GRI) and the Sustainability Accounting Standards Board (SASB). Using the SRMM can help companies align their reporting with these standards and improve comparability with peers.
Better decision making: It helps in taking more informed decisions through transparent sustainability reporting. Gap analysis and risk assessment improve the outcome, which subsequently allows stakeholders and investors to make better decisions.

ICAI releases SRMM version 1.0 in India

The Institute of Chartered Accountants of India (ICAI) regulates the chartered accountancy profession in India. ICAI set up a board called the Sustainability Reporting Standards Board (SRSB), which is working to develop a culture of accurate and reliable reporting of non-financial information about companies and build reporting metrics and disclosure requirements. Consequently, the Sustainability Reporting Maturity Model (SRMM) Version 1.0 has been developed as the foundation for benchmarking the sustainability reporting of Indian companies. It incorporated Sustainable Development Goals (SDGs), which encourage companies to endeavour towards developing their mechanisms with the help of SRMM and provide assurance that these standards have been complied with. Further in this section, we will see details of SRMM version 1.0.

SRMM version 1.0 is a self-assessment tool developed based on Business Responsibility and Sustainability Reporting (BRSR) formats and scoring mechanisms issued by the Committee on Business Responsibility Reporting of the Ministry of Corporate Affairs (MCA). As per this maturity model, four stages were defined to achieve the objectives of SRMM. Level 1 (Formative Stage), Level 2 (Emerging Stage), Level 3 (Established Stage), Level 4 (Leading by Example) of sustainability maturity for companies have been allotted definite scores based on total scores obtained by a company in any financial year as per the BRSR scoring mechanism.

Formative stage: In this initial stage, the BRSR score is up to 25% of the total score. Companies are involved in the process of identifying and meeting the requirements of SRMM in their businesses and strive to make systems to collect data and agree on disclosure formats.

Emerging stage: Here, the BRSR score is defined as >25% and up to 50% of the total score. In this stage, companies will set up mechanisms for accurate and reliable reporting and start the process of finalising policies for the same in a formalised way. It also built a robust internal control system to measure data and report in the required format.

Established stage: The BRSR score is fixed here as >50% and up to 75% out of the total score. In this stage, attention is more focused on the implementation part, where formal plans and policies are chalked out and placed in the system and align with the regular activities of business as part of the objectives set. Additionally, more stress is given to the compliance part and the qualitative aspects of reporting and the collection of data for the same.

Leading by example: The BRSR score is >75% out of the total score. In this stage, companies will put in all efforts to achieve the aim of having policies and systems that are operational and working as required and establishing themselves as market leaders. Leadership indicators have been given prime importance here by allocating a score of 75 to motivate companies towards target achievement.

At this point in time, it is very important to understand how the BRSR score mechanism is finalised. With the intention of stimulating companies to evaluate their sustainability maturity in every financial year, SRMM version 1.0 has been prepared in a straight forward way with moderate expectations. This scoring mechanism has defined various parameters and indicators for companies with different scaling and scoring methodologies. Different categories are defined, namely, A, B, C, and D, for scoping sectors in the SRMM purview and further created are two indicators; essential and leadership, with scores allotted. A small disclosure is mentioned below to showcase the BRSR scoring mechanism with an indicative list.

Section A: General disclosures- It will include general information about company, location of offices, employee categories, women employees, differently abled employees, CSR applicability, net and average profits of last 3 financial years, etc.

Section B: Management and process disclosures- It will contain disclosures related to companies policies and procedures, value chain partners, details of directors who are responsible for implementation of business responsibility policy, independent assessments of internal and external policy, channels to communicate with stakeholders, etc.

Section C: Principle wise performance disclosure- It will consist of the following principles:

Principle 1- Businesses should conduct themselves and govern themselves with integrity in a manner that is ethical, transparent and accountable.

Principle 2- Businesses should provide goods and services in a manner that is sustainable and safe; life cycle assessment for any 3 products/brands, actions taken to mitigate the advance; R&D and capital expenditure in technologies, etc.

Principle 3- Businesses should respect and promote the well-being of all employees, including those in their value chains, the percentage of employees covered under health and accident insurance, the percentage of employees covered by day care facilities, provident funds, gratuities, compliant resolution, etc.

Principle 4- Businesses should respect the interests of and be responsive to all their stakeholders.

Principle 5- Businesses should respect and try to protect and restore the environment. Companies have strategies to address global environmental issues, waste management policy, environmental risks, etc.

Principle 6- Businesses, when engaging in influencing public and regulatory policy, should do so in a manner that is responsible and transparent.

Principle 7- Businesses should promote inclusive growth and equitable development.

Principle 8- Businesses should engage with and provide value to their consumers responsibly; develop a system to resolve consumer complaints, data privacy, etc.

Conclusion

In conclusion, the SRMM is a significant tool for companies to assess and improve their sustainability reporting practises to stay competitive and meet stakeholder expectations. It provides a clear roadmap for continuous improvement and helps organisations align their sustainability reporting with global best practises and standards. It can help with better-informed decisions and drive continuous improvement in their sustainability performance.

From the perspective of India, SRMM Version 1.0 is a major step to measure and produce greater impact by companies on the environment and country. This roadmap will definitely ensure the attainment of Sustainable Development Goals (SDGs) at a higher speed. Further, SRMM Version 2.0 is in progress to build a stronger reporting mechanism based on the inputs received from companies after implementing SRMM Version 1.0.

References

https://www.ifac.org/knowledge-gateway/preparing-future-ready-professionals/discussion/icai-releases-sustainability-reporting-maturity-model-srmm-version-10
https://resource.cdn.icai.org/69633srsb55592.pdf
https://www.cdsb.net/sustainability-accounting-standards-board-sasb#:~:text=The%20Sustainability%20Accounting%20Standards%20Board%20(SASB)%20is%20an%20independent%20non,decision%2Duseful%20information%20to%20investors
https://icai.org/new_post.html?post_id=17221#:~:text=SRMM%20(Sustainability%20Reporting%20Maturity%20Model,companies%20with%20other%20international%20companies.
https://taxguru.in/corporate-law/icai-releases-sustainability-reporting-maturity-model-version-1-0.html

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All you need to know about trademarks

By

Rachit Garg

-

October 7, 2023

0

This article has been written by Ushnish Moitra, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho and has been edited by Oishika Banerji (Team Lawsikho).

It has been published by Rachit Garg.

Table of Contents

Introduction

Trademark signifies registration of any unique name, design, word, phrase, brand, logo, tagline or slogan. In simple terms trademark registration gives an unique identification to any name, brand, logo, tagline or slogan, which helps the consumers to distinguish your product with others and the limits of trademarks are not only limited to these above-mentioned spheres but also there are various numbers of unconventional trademarks such as trademarking of a unique smell, sound or taste. Trademarks give exclusive rights to the trademark holder. There are various classes of trademarks, for eg, if A wants to trademark his coffee/tea/spices products then he has to register it under Class 30. Now take another example, suppose Z wants to trademark his education business then he has to register it under Class 41. This article serves as a guide concerning trademarks for readers in general.

Evolution of trademarks

The Central Government for the first time circulated the trademark bill for public opinion in 1879. Then in the 19th century there was an urge to establish trademark practice and procedure in India, which made room for the Trademark Act 1940. Since many changes were required in the Trademark Act 1940, Trademark Act 1958 came into place, which was later overruled by the Trademark Act 1999 which still persists.

Essentials of a trademark

It must contain a mark
It must be easy for the consumers to speak or to remember.
It should not be lengthy.
It should not be barred under the trademarks act under the prohibited classes of trademarks.

Things that can be registered as a trademark

Business name
Product name
Logo or label
Symbol or design
A product package.

DID YOU KNOW :- the duration of a trademark is ten years and that can be renewed for a further period of ten years on payment of prescribed renewal fees. This means there is no fixed tenure for how many you can trademark your above mentioned things.

Expansion in scope of trademark

Domain name system

Having a domain name in cyberspace creates an identity of the product or the services rendered. Both big as well as small businesses have web pages to create a relation between the producer and the consumer. Having a web page under a domain name of a business dedicated solely for its own purpose creates a distinct identity and helps them to grow in the business. If any business does not have a domain under their name then it will become difficult for the consumer to identify the producer and hence there will be loss of business.

The World Intellectual Property Organisation (WIPO) Arbitration and Mediation Centre has been resolving domain name cases using online arbitration since 1999. The process is conducted by ICANN (Internet Corporation for Assigned Names and Numbers), a non-profit organisation responsible for IP address allocation, protocol agreement and DNS management.

Smell mark

This is an unconventional trademark and there are specific rules of codifying its distinctive character. It is very difficult to register this type of trademark as there is no graphical representation. In some countries smell is registered as a trademark if they can provide a graphical representation to show its peculiarity. Smell trademarks are often protected under copyright law.

Shape mark

M Porter has said that differentiation is the key to competitiveness in today’s dynamic customer driven market. The shape of an object can be registered as a trademark if

The shape does not provide a superior function.
The shape has been associated in the minds of the purchasing public with the manufacturer.

Sound mark

Sound cannot be visually represented but can be represented in the form of graphs and notes. In India sound marks started to register after the new Trademark Act 1999 which came into force in 2003. Sounds like Netflix and Nokia are registered. A sound can be registered only if the sound is unique and distinguishable in every possible way.

How to conduct a trademark search

Making a trademark search report is a very basic and important step before registering any trademark. It involves searching the pre-existing trademark in trademark databases to identify if any potential conflicting marks may create further legal issues. The following are the steps on how to conduct a trademark search report:

Determining the scope of the search- Before registering any trademark you need to decide the geographical scope and industry to be covered. Trademarks are registered in specific countries or regions and are categorised based on their industry type, product type.
Using online trademark search tools- There are various paid online trademark search tools which allow to search existing trademarks by owner name, brand name, keywords or by any other relevant criteria. Examples of such tools include the United States Patent and Trademark Office (USPTO) search database, the World Intellectual Property Organization (WIPO) Global brand Database, and google patent search.
Check national and regional databases- These databases assist you in searching regional and national databases and can be accessed through their respective websites.
Review relevant industry publications and directories- It guides you to check if there are any pre-existing trademarks or not that could conflict in future with your intended mark.
Consult with a trademark attorney- It is always recommended to consult with a trademark attorney to conduct a comprehensive search and review the search results.An attorney can guide you in the search results and help you determine whether your intended mark is available for use or not.

All you need to know about trademark infringement

Direct infringement

According to Section 29 of the Trademarks Act, 1999, if any unauthorised person uses someone else’s registered trademark then the trademark holder can bring legal action against that unauthorised person.

A trademark is infringed if a registered trademark is used by anyone other than the person under whose name it has been registered without his permission, for the trade name of his business concern dealing in goods or services in respect of which the trademark is registered.
If there has been any advertising of a registered trademark and for such advertising the advertiser takes unfair advantages to its own gain then there has been an infringement of a trademark.

Indirect trademark infringement

Where a person is not directly involved in a trademark infringement but intentionally abets(motivates) another person to infringe a trademark for his own gain through an agent is called indirect infringement.

For Eg:- B tells A to make medicines and suggests printing it under the name XYZ. B knows that there is trademark registered under the name of XYZ but does not tell it to A.Here B commits indirect infringement

Penalties for trademark infringement

Types of penalties in trademark infringements.

Civil proceedings
Injunction

Temporary injunction
Permanent injunction

Claim for damages,
Claim for profits.
Destruction of goods and services
Stop import and export
Recover the cost of legal proceedings.

2) Criminal proceedings

In case of criminal proceedings, where the victim can file a FIR for infringing his trademark and the accused person can be even sent to custody imposing a fine starting from Rs 70,000/-(Rupees seventy thousand) to 2,00,000/-(Rupees two lakhs).

DID YOU KNOW– you cannot sue a person for using your trademark if that person uses your trademark for research purpose or for just a mere representation where that person is not gaining any unfair advantage or profits.

Judicial precedents in trademark

The Coca Cola Company vs Bisleri International Pvt Ltd (2009), the impugned precedent was for the infringement of the trademark of “MAAZA” where there was an assignment for the name clubbed with the rights so associated with the know-how, intellectual property rights, goodwill etc for the drink so known as “MAAZA”. However the rights so sold were only limited to the jurisdiction of India. In 2008, the plaintiff filed an application for registration of such a trademark in Turkey and they were also inclined towards selling the mango drink to Turkey. However the situation got undesirable for the plaintiff and therefore Coca-cola claimed for permanent injunction as well as claimed for damages or compensation for the passing off and infringement of the trademark. The Hon’ble Delhi High Court, adjudged in favour of the plaintiff and held that exporting of goods from a country would be very well constituted as the sale of goods within that particular country from where the goods are exported.

In the case of Clinique Laboratories LLC and Anr vs Gufic Limited and Anr (2009), the issue was between the registered trademark of the plaintiff and the defendant. The plaintiff had registered the trademark “CLINIQUE”. On the other hand the defendant filed for the trademark of ‘CLINIQ’. The plaintiff filed for infringement of trademark as it would cause confusion in the mind of the consumers and also the distinctiveness of the trademark of the plaintiff will be hampered. The Hon’ble Court adjudicated that the defendants marks are similar as to that of the plaintiff such that it would result in deceiving the minds of the consumers. Hence the court granted a temporary injunction in the favour of the plaintiff till the disposal of the suit by competent authority.

Conclusion

To gain a distinctive character in the market, to gain customers’ trust and build a relation with them, trademark is required. If there is a trademark registered by the producer then it would help the business to grow. If we take the example of Paranthe Wali gali in Chandni Chowk it would be next to impossible for any consumer to visit each and every shop and decide which one is the best, but on the contrary if the original paranthe wala dhabe would have registered a trademark then it would have been very easy for the consumers to distinguish between others and the original one. Trademark not only gives a distinct reputation to any business but also gives right to them. There are various grounds on which the plaintiff under whose name the trademark has been registered can take legal actions against the defendants.Iit not only empowers the trademark holder but also gives a sense of security to them. It is advisable to conduct a thorough trademark search before registering any as any infringement of a trademark attracts both civil and criminal sanctions and obtain legal advice before adapting a new trade name or brand to avoid any future problems, legal disputes and sanction.

References

https://www.altacit.com/trademark/evolution-of-trademark-laws-in-india/

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Role of media in Indian elections

By

Rachit Garg

-

October 7, 2023

0

This article has been written by Trupti Kokane and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Table of Contents

Introduction

The media plays a significant role in a democratic country like India. The country is considered one of the largest democratic countries across the globe in the 21^st century. Indian media is working to create awareness about the democratic rights of individuals as well as provide important information to citizens of the country. Sometimes the media also works as a representative of the country. The Indian media holds the power to create a specific image of a particular political party or government among common citizens. Different platforms of media are popular as pillars of the respective Indian Government. The media can use societal and political forces to influence the opinions of people regarding the current ruler, political party or opposition party. Due to freedom of expression, Indian media platforms can provide any information to people. In India, the Internet, along with television, radio and newspapers, are the major forms of contemporary media channels. It is the responsibility of the Indian media to store and disseminate proper information among the people. However, these media platforms can easily manipulate the opinions of people, which may influence the final results of Indian elections. The Indian media also works to educate people so they can select their potential leaders. Apart from that, different political parties can also use various media platforms to reach a large number of voters in order to provide information about the party’s agenda and future plans, as well as implement propaganda campaigns. According to the World Bank, approximately 60% of the total Indian population is currently living in rural areas where limited modes of communication are available. In such areas, political parties can use newspaper or radio platforms to educate people and promote the party to influence voters. This article will focus on understanding the role of the Indian media in elections.

History of Indian media

The British arrival era was marked as a turning point that helped to improve the role of Indian media in educating people as well as disseminating information about the agendas of different parties. The Bengal Gazette was the first Indian newspaper that was published in the 1780s by James Hickey. In the 17^th century, Britishers used newspapers as a medium for communicating with Indian people. In the 19^th century, the Indian media worked to support social reform movements by publishing newspapers in regional languages. People who worked for independence used various regional newspapers to create awareness of the worse or more troublesome practices of the British Government. This strategy helped freedom fighters establish unity among people who belonged to different religions. In the pre-independence era, the Indian press played a significant role in creating a negative image of the British government among Indian citizens. This is how the Indian media influenced the population of the country and turned them against the British government. After independence, the Indian Government established the Press Council of India in order to protect the freedom of different media channels as well as maintain ethical standards while managing critical issues. Radio broadcasting and television began in the years 1927 and 1959, respectively. Doordarshan was the first television channel that the Indian government launched in 1959. These two channels served as a source of information and entertainment for a specific period of time. Technological advancement and liberalisation were promoted in the Indian media. Due to the privatisation of Indian media, various private news and radio channels were launched after the year 2000. Nowadays, various online news portals, along with social media platforms, have gained popularity because of increasing Internet as well as technology awareness and accessibility. Currently, political parties are focusing on using modern media channels and platforms to create awareness about election propaganda, especially among young people.

Importance of Indian media in elections

The importance of Indian media in elections:

During elections, Indian media acts as an important resource that provides information about candidates along with party manifestos, promotional campaigns of political parties, and future propaganda of specific candidates or parties. Voters can use this information to make decisions about the selection of a particular candidate. Following are the key roles that the Indian media plays during elections:
The media play a significant role in influencing public opinion by providing information about specific candidates or parties. Most of the time, opinion columns as well as TV debates are conducted to create a negative or positive image of a specific party or candidate before the elections. Personal interviews with candidates or political leaders help people or voters understand the perception of that specific leader or party. This could influence the decisions of voters.
During elections, the Indian media plays the role of a watchdog. Exposing corruption activities, malpractices and misuse of power by a specific candidate or party can be investigated by journalists before the elections. These activities of the media have helped to improve transparency as well as accountability, which could be essential for improving the integrity of the Indian elections. It could also help voters select the right candidate or leader by using voting rights in Indian democracy.
Various Indian media channels prefer to conduct exit polls to predict the future results of elections. Exit polls could influence voter behaviour by providing information about real-time political trends. Apart from that, supporting voters to stay updated with the election process is another role that Indian media is playing during Indian elections.
Indian media organise campaigns to promote the importance of election participation among the general public. Different media channels are focusing on motivating and encouraging Indian citizens to actively participate in elections. In some regions of the country, voters are not aware of their rights or the importance of their votes. Indian media uses various mediums or strategies to communicate with eligible voters and motivate them to use their democratic rights to select a specific candidate or party.
Hosting debates and discussions on different media platforms helps voters understand the perspective of future political leaders. On the contrary, through debates and discussions on media platforms, common people can also share personal opinions and suggestions with existing governments, leaders or future governments for developing policies and strategies in the future. Gaining insights from common people helps the government or political leader make various decisions for the social well-being and development of the country or region.
Indian media platforms also provide information about public issues or needed actions to the current government and future candidates. This information can be used by different political parties and candidates to develop future development plans. With the help of future development strategies or plans, different political parties or candidates would be able to attract voters during elections.
Different media platforms also provide a place for political parties to implement promotional campaigns as well as campaigns to influence voters. These strategies could help political parties create a positive impact on voters, which is essential for winning the elections.

Rules framed by the Election Commission of India for media platforms

In order to maintain equality and fairness during elections, the Election Commission of India (ECI) has developed specific rules and regulations, especially for Indian media platforms. These regulations also provide guidance to media channels while covering the election process and other political activities. ECI can make changes in rules and regulations as per the situation while conducting elections across the country.

Paid news: Paid news can be defined as any paid promotional activities that have been done by political parties by using different media channels, including print and digital mediums. The media certification and monitoring committee is the authority that has been developed by the Election Commission of India for monitoring the actions of media and political parties while publishing paid news. It is the responsibility of this committee to scrutinise all media channels for monitoring political news coverage as well as take essential actions against respective candidates. This committee works at the district and state levels to examine paid news from various political parties across India. In 2017, the ECI disqualified the minister of Madhya Pradesh, Narottam Mishra for the next three years because he did not publish expenses on the paid news during the 2008 assembly elections.
Provide equal opportunity: As per ECI guidelines, media platforms should provide equal opportunities to all political parties across the country to disseminate messages and information about current and future plans to the public. Through this rule, political parties equally use media platforms for implementing promotional campaigns. In 2003, the government made an amendment to the Representation of the People Act of 1951 to provide equal broadcast time to national and recognised state parties. This scheme is applicable to Doordarshan and AIR. As per this Act, a base time of approximately 45 minutes is allotted to all national and recognised state parties for broadcasting their messages on government-owned media.
Facilities to media persons: Media passes as well as media centres are the major facilities that the Election Commission of India provides to media persons during elections. These facilities help media personnel effectively cover and present election information. However, a valid authority letter, which is issued by ECI, is essential for media persons to enter polling stations for coverage purposes. Media centres can be defined as places with the overall facilities to successfully disseminate information about Indian elections among citizens of the country. In media centres, various facilities, such as telephones and fax machines, as well as appropriate furniture and other facilities, are made available for media personnel. At this place, media persons are able to access statistical reports on the election and important documents for reference purposes.
Exit polls: An exit poll is one of the methods used for predicting the future results of elections. In order to predict election results, media personnel conduct research by collecting information from voters. It is completely different from opinion polls. Private media channels generally conduct opinion polls before elections to understand political trends across the country. The ECI has provided various guidelines and rules for controlling the use of exit polls during Indian elections. As per ECI guidelines, exit polls need to be conducted during a particular period of time. It should not be conducted during the voting period. Apart from that, ECI also ensures that the results of exit polls cannot be published on any media platform before the voting period across the country has ended. All media platforms that are taking active part in exit polls need to register with the election commission as well as follow the regulations. This activity helps to conduct exit polls in a fair and unbiased manner.

Conclusion

In conclusion, various media platforms play a very important role in the overall Indian election procedure. With the help of media platforms, different political parties and candidates can influence voters by organising and implementing various promotional campaigns. The media also works to disseminate important information to the general public. Due to technological advancement and increased Internet awareness, the scope for modern media channels such as online news portals and social media platforms has increased. Political parties can refer to media coverage to understand the exact needs and issues of common people. This information needs to be considered when developing effective promotional campaigns and development strategies for attracting voters during Indian elections. However, the Election Commission of India has established regulations and guidance for media platforms and political parties. ECI also works to monitor and control the actions or activities of media platforms and political parties during the election process. The commission has provided specific guidelines related to paid news, along with broadcasting opportunities, facilities for media, and rules for exit polls.

References

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Career opportunities in Technology Law

By

Ramanuj

-

October 7, 2023

0

Lending Startups — Image Source: http://www.intheblack.com/~/media/intheblack/allimages/technology/2018/blockchain-infographic.jpg

This article has been written by Ashutosh and edited by Vanshika Kapoor (Senior Managing Editor, Blog iPleaders). This exhaustive article talks about various career opportunities and paths available in technology law for tech lawyers. This article will also provide several other essential pieces of information to technology lawyers who want to know about all the career opportunities in the field of technology law.

Table of Contents

Introduction

The world is moving ahead, and so are we, human beings, who have grown a lot in the field of technology when compared to any other field. Similarly, in the field of law, technology law is one such field that is growing every day. Every day there is a new invention coming out in the world and because of the increase in technology, the need for lawyers in the field of technology law is also increasing.

Nowadays, a lot of cyber crimes and other similar crimes are happening with the help of technology. Hackers are hacking into the systems of others and committing crimes online. Crimes such as phishing, piracy, identity theft, cyberstalking, and cyberbullying, have become very common all around the world. Because of all this, the demand for technology lawyers is increasing every day. Currently, in the present scenario, there are many career opportunities present for all the technology lawyers, so if someone is experienced in the field of technology law and has a decent amount of knowledge about technology laws, then that person can explore various career opportunities in this field. If you are also interested in being a technology lawyer and want to know about all the career opportunities in this field, then keep reading this article.

Brief overview of Technology Law

Technology law primarily regulates the utilisation of technology and examines its relationship with legal matters. As we all know, technology and technology law are increasing rapidly every day, and because of this, issues and offences related to technology law are also increasing at the same speed. So to keep a check on all the crimes and offences that are happening in the field of technology, the demand for technology lawyers is also increasing.

Currently, in India, there is a huge demand for technology lawyers. Many IT firms and several other law firms are hiring technology lawyers to deal with matters relating to technology law. Companies such as Netflix and Alibaba hire technology lawyers to resolve their legal issues. The field of technology has expanded a lot during the time of the pandemic, and due to this, everything has shifted online and people have started to enter into all kinds of contracts and agreements through online technology. All of these things resulted in increasing the demand for technology law and technology lawyers in India.

Who is a technology lawyer

Technology lawyers are legal professionals who specialise in technology law, assisting their clients in overseeing the services they have created and ensuring compliance with relevant regulations. A technology lawyer is someone who advises his clients about their rights and what they can and can’t do. Technology lawyers also draft all kinds of contracts and agreements related to technology law.

Other than the above mentioned things, a technology lawyer is also responsible for ensuring compliance with and adhering to the policies and legislations which are made by Indian policymakers that would affect the products and services of their clients. A technology lawyer also offers suggestions and other advice to their clients for improvement in their products and services.

What does a technology lawyer do

There are various roles and responsibilities that a technology lawyer needs to perform once he is hired as a technology lawyer by IT firms, law firms, or any other client. Here we have mentioned some of the main roles and responsibilities that a technology lawyer needs to perform. Go through these roles and responsibilities to know more about the work of a technology lawyer.

Technology lawyers perform both advisory and transactional work to help their clients deliver their services.
Technology lawyers need to draft various contracts and agreements for their clients that are related to the technological aspect.
Technology lawyers give advice to big businesses and firms about their rights.
Technology lawyers deal with issues such as outsourcing transactions, Intellectual Property Rights, licences, cyber security, and data monetisation.
Technology lawyers make software services agreements
Technology lawyers advise their clients on how to reduce risk in business and how to stay on the correct side of regulators.
Some of the technology lawyers also check the tech policies that are made by policymakers.

Career opportunities for technology lawyers in India

There are multiple job opportunities available for technology lawyers in India, and because of this, there is a huge demand for tech lawyers. Since there is a huge demand for technology law in India, let us look at some of the best career opportunities a law student or lawyer can pursue under technology law. Read below to know all about the multiple career opportunities available for technology lawyers in India.

1. Startups

This is the era of startups. No matter how rich or poor you are, if you have the right product/service, your startup can boom. Shows like Shark Tank have made us realise the power of startups. There have been many examples of startups that have been started by former lawyers and are now successes. Ned Gannon, a law graduate from Harvard Law School, started a startup named EBrevia, through which he provides services such as contract review, abstraction, etc. There are many Indian lawyers as well who are giving up their careers to start their own startup. But there are a few skills required to get into this field. Keep reading to learn more about startups as a career opportunity.

Kinds of work required

Let us read about the work a technology lawyer needs to perform under this career opportunity.

Making drafts of contracts and agreements
Doing negotiation on behalf of their clients
Reviewing all the legal documents of the startup

Skill set required

You must have the following skills if you want to start your own business as a technology lawyer:

Negotiation skills – Negotiation is a skill that is not only required to start a business but also as a lawyer. Lawyers usually need to negotiate on behalf of their clients with the other party, but negotiating as a business owner is very different. Startup owners have to negotiate more often than lawyers, be it for hourly rates, contracts, etc. So working on negotiation skills will help a lot if someone wants to start a business.
Assessment of risks – As a startup lawyer, it is very important that one must possess the skill to assess any potential legal risks of the business. Apart from this as a technology lawyer, you must also be able to form strategies regarding how to manage such risks. These skills require an in-depth knowledge of law as well as technology.
Communication – As a startup owner, one will have to learn to clearly communicate with clients. It helps build strong relations and also develops trust between the lawyer and the client.

Pay scale

The earnings from a startup depend on its size. Any startup that is in its initial stage provides around 8-10 lakh rupees per annum to the technology lawyers. But once the startup gets established, they can earn anywhere from 15 lakh to 20 lakh per annum.

2. Drafting work opportunity

Among the various career opportunities in the field of technology law, one such opportunity that is highly in demand is legislative and drafting work. Here, the technology lawyers are required to frame several drafts of contracts, agreements, documents, agreement formulations, and various other legal documents on behalf of the tech company they work for. Several law firms also hire technology lawyers who have experience filing and drafting agreements and contracts related to technology law.

Various technology companies need technology lawyers during any legal proceedings, and during those time periods, the need for technology lawyers is mostly felt because these things include a lot of paperwork, including numerous drafts of agreements and contracts. Now let us go through some more information on this career opportunity.

Kinds of work required

Let us read about the work a technology lawyer needs to perform under this career opportunity. Here we have listed some of the important works.

Fine-tuning of agreements
Maintaining the details of the client and opposite parties
Determining all the parties in an agreement and contract
Preparation of all kinds of legal documents
Formulation of an agreement
Managing the transactions on behalf of the company
Drafting of confidentiality clauses, employment agreements, and non-disclosure agreements related to partners and employees of the company
Drafting and negotiation
Work on registrations related to intellectual property rights, trademarks and patents

Required skills

Here we have mentioned some of the skills that a technology lawyer must possess in order to make a career under this career opportunity.

A technology lawyer must know how to create and maintain template agreement
He/she must know to review contracts and agreements which are drafted
Should have at least a basic knowledge of all the draftings in technology law
Should know how to improvise all the legal drafts which are done between the company and the clients
They must know how to use all the word processor software.

Benefits and perks

These are some of the perks and benefits that a technology lawyer will get to enjoy when he works under this opportunity.

Most of the drafting is done in the office so there’s less fieldwork
A good amount of salary.

Pay scale

The initial salary of a person who starts contract drafting is somewhere around Rupees 2-3 thousand per draft. But with experience and better skills, the salary for contract drafting increases to Rupees 8-10 thousand per draft. Employees of companies that do contract drafting earn salaries ranging anywhere from INR 15 lakh to INR 47 lakh per annum.

3. Dispute resolution and litigation

Technology companies often get into disputes with other companies on several matters, and with the increase in disputes between companies, there is a need for lawyers who are experienced in dispute resolution and litigation.

All aspiring technology lawyers can represent the interests of their clients and help them negotiate with the other party. Under this career opportunity, technology lawyers will have to perform negotiation, arbitration, and mediation as an alternative method of legal proceedings so that they can resolve the disputes of their clients outside the court.

A technology lawyer who wants to build a career in despite resolution must be good at communication and negotiation because these are the two main things that every technology lawyer should possess in order to be a successful dispute resolution technology lawyer. Now let us go through some more information on this career opportunity.

Kinds of work required

Let us read about the work a technology lawyer needs to perform under this career opportunity.

Providing legal advice to the partners and employees of the company.
Provide consultation to the clients, understand their needs, and provide solutions according to their needs for solving disputes through dispute resolution.
Handle negotiations and mediations on behalf of the client.
Thinking about the best interests of the client and negotiating according to their needs.
Handling all the legal documents and paperwork related to dispute resolutions.
Should remain updated with all the regulations and laws and with other best practices in the field of dispute resolution.
Educate clients about all the mediation and negotiation options.
Representing their clients in all the negotiations and mediations and helping them make sensible decisions.
Reviewing and drafting all kinds of mediation, settlement agreements, and several other legal documents related to dispute resolution.

Required skills

Here we have mentioned some of the skills that a technology lawyer must possess in order to make a career under this career opportunity.

The technology lawyer must know how to negotiate with the other party.
The technology lawyer must possess excellent communication skills.
The technology lawyer must have enough knowledge about dispute resolution.
The technology lawyer must know how to draft and review legal documents for dispute resolution.
The technology lawyer must have exceptional advising skills.

How to apply for these career opportunities

There are multiple dispute resolution opportunities available online. To apply for these opportunities, all you need to do is keep yourself active on platforms such as LinkedIn. And you need to look for job posts and vacancies for dispute resolution lawyers in technology law.

If you get any such opportunity, then all you need to do is keep your CV ready and send your CV along with an application to the concerned person. There is no technical thing you need to do to apply for these jobs, and if your application is selected, you will get a call for an interview round from the recruiter’s end.

Pay scale

The initial salaries for lawyers in technology law litigation and dispute resolution can range anywhere between 10,000-30.000 rupees per month. And experienced lawyers can earn anywhere between 15 lakhs – 20 lakhs rupees per annum. This salary range can differ if the lawyer works at a law firm, where the initial salary in litigation or Dispute Resolution is around 6-10 lakh rupees per annum.

4. Writing and legal research work opportunity

There is a lot of legal research and writing work to be done in the field of technology law. And because of this greater need, technology lawyers can choose the career opportunity of legal research and writing in the field of technology law.

If you are a technology law enthusiast and love to do research and write on topics related to technology law, then you must take advantage of this career opportunity. All you need to do is read more and keep yourself updated with all the latest rules and regulations that are framed by policymakers. You can make your own personal blog and start writing blogs related to technology law. Centre your research around all the trending topics in the field of technology law and start writing blogs.

You can also join any journal or any other website that publishes legal articles or blogs. Currently, there are numerous topics that are trending in technology law like data privacy, cybersquatting, etc. So, use this advantage and start researching and writing articles that are mostly searched for.

Kinds of work required

Let us read about the work a technology lawyer needs to perform under this career opportunity. Here we have listed some of the important work.

Write articles and blogs on the trending topics of technology law, such as cryptocurrencies, NFTs, virtual realities, and other technical areas.
Content creation on various topics of technology law.
Content management and moderation of all the articles.
Researching various topics of technology law and finding the best title for your article.
Proofreading all the articles.
Publishing all the articles after they are proofread.
If you have a personal website and you publish all your articles on it, then you will also have to work to get your channel monetised.

Required skills

Here we have mentioned some of the skills that a technology lawyer must possess in order to make a career under this career opportunity.

Must have knowledge of all the word processor Software such as MS Word, Google Docs etc.
Must have a good typing speed. All the writers who want to work on this career opportunity should develop the skill of typing at least 70-80 words in one minute.
They must know how to use research tools.
They must have the skill to research and compare the materials available on the internet.

Benefits and perks

These are some of the perks and benefits that a technology lawyer will get to enjoy when he works under this opportunity.

Most of these works are done from home or are remote.
This is the most flexible work opportunity any technology lawyer can have.
A good amount of money.
Development of exceptional writing skills

Pay scale

The salary for legal writing and research work can range anywhere from 1 lakh to 7 lakh rupees per annum. This salary is subject to increase with the quality of work and experience.

5. Fintech Law opportunity

Nowadays, the trend of cashless transactions is gaining popularity, and almost everyone of us also uses applications that support cashless transactions. And because of the huge growth of cashless transactions and digital money trading, the current financial industry is being changed by technology.

Most people who use cashless transactions don’t know much about them and thus become victims of cybercrimes and various other online crimes. To protect those people from cyber crimes, the technology lawyer plays a very crucial role by providing fintech advisory services. A technology lawyer can provide valuable advice to individuals so that they can protect themselves from cybercrime. With the increase in online crimes, the need for lawyers who provide fintech advisory services is in great demand.

Thus, if you are someone who is interested in becoming a technology lawyer who provides fintech advisory services, then this is the best career opportunity that you can pursue. Read below to know more about this career opportunity and the kind of work a technology lawyer needs to perform under this opportunity.

Kinds of work required

Here we have listed some of the important work a technology lawyer will need to perform as a fintech advisor.

Making multiple contracts with clients related to various contracts and agreements
Managing all the user transaction problems and representing the company in all such disputes
Providing financial advice to the head of the company
Implementing and providing several necessary trainings regarding model clauses, review of contracts and agreements, and negotiation techniques on important matters
Conducting all the important annual general meetings, board meetings, extraordinary general meetings, and corporate social responsibility meetings.
To provide advice to the company on the usage of funds
Appear before all the competent authorities for show cause notice, inspection, and other judicial proceedings when needed.

Required skills

Here we have mentioned some of the skills that a technology lawyer must possess in order to make a career under this career opportunity.

The technology lawyer must have a deep understanding of all the privacy laws.

The technology lawyer providing fintech services must possess strong skills in negotiation and contract drafting to help clients with efficient contracts and agreements.
He/she must be able to assess all the regulatory and legal risks.
The technology lawyer providing fintech advisory services must have a problem solving attitude and be able to provide solutions for each tech problem.
He/she must be able to maintain healthy relationships with all the clients of the company.
He/she must have sufficient knowledge of technology law, and he or she must also know about all the latest rules and regulations framed under technology law.
The technology lawyer providing fintech advisory services must have a good understanding of all the data protection laws, Intellectual Property Rights, and financial regulations.

Pay scale

The salary of technology lawyers working in Fintech companies can range anywhere from INR 19 lakh to INR 34.5 lakh per annum.

6. Cyber laws and data privacy

With the increase in cyber crimes and breach of privacy, the importance of data privacy and cyber security has also increased. And technology lawyers are one such group of lawyers who specialise in matters of data privacy and cybersecurity. Technology lawyers work with different organisations and law firms and help them make strategies to protect their clients from cyber crimes.

There are basically three main types of cyber crimes namely crimes done against a human being, crimes done against any property, and crimes done against the government. To keep cyberspace protected from any such crimes, cyber laws have been developed as a cure to put an end to these kinds of cyber crimes.

The major challenges that technology lawyers or cyber lawyers face while protecting cybersecurity are copyright, privacy, jurisdiction, patents, trade secrets, defamation, contracts, and domain disputes.

Kinds of work required

Here we have listed some of the important work a technology lawyer will need to perform as a cyber lawyer.

The cyber lawyer has to report all the technical difficulties and other notable incidents to the concerned members of the company.
The cyber lawyer must make sure that all the required equipment and paperwork is in excellent condition.
The cyber lawyer is required to provide legal advice to clients on the issues of data privacy and cybersecurity
The cyber lawyer has to protect all the digital rights of their clients, such as privacy, Intellectual Property Rights, information security, etc.
Cyber lawyers create various policies and contracts related to data protection and cybersecurity.
It is the duty of cyber lawyers to make sure that their clients work in compliance with current regulations related to the usage of the internet.
The cyber lawyer is responsible for identifying and avoiding all the cyber risks, such as data confidentiality breaches and cyberattacks.
The cyber lawyer is also responsible for verifying that all the legal documents comply with current legal rules and regulations.

Required skills

Here we have mentioned some of the skills that a cyber lawyer must possess in order to make a career under this career opportunity.

He must be able to understand all the important technological concepts such as privacy and data, cryptography, computer security, intellectual property, data protection, cookies, etc.
He must stay updated with all the new regulations and policies that are framed under cyber laws.
He must have sufficient knowledge of remote work tools such as Google Meet, Slack, Discord, etc.
He must have the ability to interpret data within the legal world.
He must have the ability to identify all the associated risks and legal implications.

Top recruiters

Here we have listed some of the top recruiters of cyber lawyers. Take a look at these names and see if you want to work in any of these places.

These are some of the big recruiters that hire cyber lawyers.

Salary of cyber lawyers

There is a great scope for cyber lawyers in India, and they are paid a huge salary from organisations and firms in which they work. Cyberlaw is one such stream that is growing at a great speed and has great potential. The average salary of an Indian cyber lawyer is around 10-18 lakh rupees per annum in India if he is working for a tier 1 or tier 2 law firm. The salary of cyber lawyers also depends on the organisations and firms in which they work.

7. In-house counsel

In-house counsel works as lawyers for companies. Working as an in-house counsel is one of the most secure jobs that a tech lawyer can find. With the advancement of technology all over the world, many tech companies have come up and been successful. These companies prefer tech lawyers over lawyers who are not equipped with the technical world. In-house counsels of a tech company have many responsibilities, including but not limited to contract drafting, Intellectual Property Management, litigation, etc.

Most lawyers have found work as an in- house counsel to be less hectic than a firm job. But to land a job at a tech company, it is important that you possess certain skills in addition to those of a lawyer. Keep reading to understand more about the job of an in-house counsel in a tech company.

Kinds of work required

The work of an in-house counsel involves various types of responsibilities, from contract drafting to managing legal deals. The different kinds of work that an in-house counsel for a tech company might be required to do have been listed below:

Contract drafting and vetting– Whether you work as an in-house counsel, in a firm, or start your own startup, you will have to work on contracts. There are several types of contracts that an in-house counsel might have to work on; these include employment agreements, software development agreements, shareholder agreements, and intellectual property licensing agreements. It is important that a lawyer have good drafting skills so that the terms of the contract are favourable for the company.
Compliance– In-house counsel for tech companies might be required to assist with the company’s compliance program. Fintech companies are subject to RBI regulations and in-house counsel is needed to comply with those regulations
IP management– A tech company owns several intellectual properties. It is the job of the in-house counsel to regularly keep a check on these intellectual properties and make sure that there are no illegal claims on the IPs.
Litigation– Litigation is part and parcel of a lawyer’s life. Even while working as a lawyer for a tech company, an attorney will have to visit court for cases.
Other work– Apart from the legal work, tech in-house counsel might also be required to work with the tech team of the company and curate policies for the company.

Required skill set

In order to be an in-house counsel for a tech company, a person must possess the following skills:

Technological know-how– He must have technical knowledge, especially of the area his company deals with. He must be good with technological tools and must learn upcoming legal technology.
Creativity– Ordinarily, lawyers are not required to be creative, but if one wants to become a tech lawyer, especially an in-house counsel, he must have the ability to think outside the box. The problems faced in a tech company are not typical legal problems and require a modern or new solution; thus, tech lawyers must be creative with their work.
Flexibility– As in-house counsel in a tech company, a technology lawyer has to manage both the legal and technical aspects of the business. Thus, one must be ready to tackle such problems.
Soft skills– It’s important to have soft skills for someone who wants to establish a career in the corporate world. And tech companies are an important part of the corporate world. Some of the most important soft skills include active listening, communication skills, working under pressure, emotional intelligence, and approachability.
Basic legal skills– Apart from the skills listed above, an in-house tech lawyer must possess basic legal skills such as drafting, good communication skills, etc.

Pay scale

The average salary of in-house counsel working in tech companies is around 12 lakh rupees per annum. And the top tech lawyers earn anywhere between 35- 40 lakh rupees per annum as in-house counsel.

8. Academia

We have discussed several career opportunities above in this article, and one thing that was common in all those career opportunities was the rapid increase of jobs under those opportunities. But that is not the same when we talk about the academic career opportunities in technology law. There are very few teachers and professors who teach technology law, and because of this, there are many law students and lawyers who don’t know much about technology law.

Now is the best time to become an academician of technology law because there is very little competition. And if you are someone who has high expertise in the field of technology law, then you can simply create a wonderful career in this line. You can become a teacher or lecturer at any institute and earn a good salary. You can also start your own institution and build a personal brand by providing classes to law students.

Kinds of work required

Here we have listed some of the important work an academician of technology law will need to perform.

Providing lectures on all trending topics of technology law, such as non-financial tokens and cryptocurrencies.
Writing various research papers, articles, and books on technology law.
Providing guest lectures and being a part of seminars of technology law in educational institutions
Doing research and finding out new methods to teach efficiently.
Providing guidance and giving advice to law students who want to work with technology laws.

Required skills

Here we have mentioned some of the skills that a cyber lawyer must possess in order to make a career under this career opportunity.

An academician of technology law must have good communication skills
Good research skills
Ability to interact with students
Dealing with the doubts of law students in an effortless manner

Pay scale

The annual salary of a technology law professor varies from college to college, but the average salary of technology law professors in India can range anywhere between 6- 15 lakh rupees per annum.

International career opportunities for Indian technology lawyers

Indian technology lawyers are not only in great demand in India but they are also required all across the world as technology infrastructure across the world is more or less very similar and hence it has similar problems. Companies of foreign countries that trade with India or with Indian companies hire technology lawyers from India to make sure that they do all transactions in compliance with the laws and regulations of India.

If you want to work as a technology lawyer in foreign countries and don’t know much about the career opportunities that are available in those countries, then keep reading further, because further in this article we will be discussing the career opportunities for Indian technology lawyers abroad. Check below the list of career opportunities available for Indian technology lawyers in foreign countries.

1. Protection of intellectual property

There is a lot of scope for Indian technology workers in the field of intellectual property. Foreign companies and associations create various intellectual properties, and to protect them, they need technology lawyers who are skilled in intellectual property laws.

You can easily land a job in foreign companies that create intellectual properties if you have enough expertise in IPR laws, and if any country has any kind of interest in India with regard to the product they are creating in India or with its intellectual property rights in such cases, there is also a high demand for Indian technology lawyers in foreign countries. The Indian technology market is growing at an immense speed; thus, many big foreign technology companies want to create a market in India, and for this purpose, they need the help of technology lawyers for certain trademark and patent registrations.

Now let us read more about these intellectual property lawyers and the duties they perform.

Kinds of work required

Here we have listed some of the important work an Indian technology lawyer needs to perform as an intellectual property lawyer.

Helping foreign companies file trademark and patent registrations
Providing guidance to foreign companies and ensuring that everything is done in compliance with the Indian Intellectual Property laws.
Preparing and managing all the legal documents of the company, such as contracts, registration documents, agreements, etc.
Assisting foreign companies in negotiations.
Resolving all the matters related to the domain names to protect the online reputation of their company.
Managing and handling the intellectual property portfolio of the company

Required skills

Here we have mentioned some of the skills that an Intellectual Property lawyer must possess in order to make a career under this career opportunity.

An intellectual property lawyer must have exceptional communication skills.
An intellectual property lawyer must also have very good negotiation skill
An intellectual property lawyer must be well versed in all the Intellectual Property laws and cyber laws.

2. Cybersecurity lawyer

If you are a technology lawyer and have enough knowledge about cyber crimes and data privacy, then you can become a cybersecurity lawyer in foreign countries. Cybercrime and data breach has become one of the major issues that everyone is facing, and thus, every person now needs the help of a cybersecurity lawyer to protect themselves from cyber crimes.

The cybersecurity lawyer deals with all kinds of cyber crimes against individuals, companies, and governments. These lawyers have exceptional knowledge of internet activities, the latest information technology, and cryptocurrencies.

Kinds of work required

Here we have listed some of the important work an Indian technology lawyer needs to perform as a cybersecurity lawyer.

Navigating cyber threats and providing solutions to prevent them.
Making drafts and helping the client with negotiation proceedings.
Providing legal advice to clients on matters related to cyber crimes
Protecting the privacy and data confidentiality of their clients.
Checking all the legal documents and making sure that they are in compliance with all the laws and regulations.
Representing their clients in all the legal proceedings.
Creating various policies related to data protection and cybersecurity.

Required skills

Here we have mentioned some of the skills that a cybersecurity lawyer must possess in order to make a career under this career opportunity.

He must stay updated with all the new regulations and policies that are framed under cyber laws.
He must have sufficient knowledge of remote work tools such as Meet, Stack, Discord, etc.
He must have the ability to interpret data within the legal world
He must be able to understand all the important technological concepts such as privacy and data, cryptography, computer security, intellectual property, data protection, cookies, etc.

3. Global tech companies

Global tech companies such as Netflix hire technology lawyers to resolve disputes related to publishing rights and other piracy crimes. As an Indian technology lawyer, you can also work for big global tech companies. These companies often hire a team of professional technology lawyers to deal with their legal disputes and several other legal matters.

Kinds of work required

Here we have listed some of the important work an Indian technology lawyer needs to perform for global tech companies.

Making drafts of contracts and agreements.
To make sure that all the work of the company is produced in compliance with the rules and laws of technology.
Handling all the court proceedings.
Making settlements on behalf of the companies.

Required skills

Here we have mentioned some of the skills that a technology lawyer must possess in order to make a career under this career opportunity.

Sufficient knowledge of Intellectual Property laws.
Negotiation skills.
Communication skills.
Skill to conduct smooth settlements.

Freelance work opportunities for Indian technology lawyers

Freelancing has become very popular nowadays, and even lawyers are choosing to go with this option rather than working continuous shifts with companies or law firms. The reason behind the popularity of freelance work among lawyers is the flexibility of the work, handsome pay, and work-life balance, all of which might not be possible with a company or law firm. If you are aspiring to become a technical lawyer and want to have a flexible job, you can also explore the world of freelance work. There are many jobs available for a technical lawyer on platforms such as Upwork, Fiverr, Freelancer, etc. Here is a list of freelance jobs that technical lawyers can try out:

1. Drafting/vetting agreements

Contract drafting is one of the golden skills that one can learn as a lawyer. No matter which field of law one works in, this one skill can make a lawyer earn loads of money. A technology lawyer might find different types of freelance work as compared to an ordinary lawyer. There are many technology lawyers on LinkedIn who work as freelancers and earn about 5,000 rupees per project.

Types of Freelance Contract Drafting Work available for technology lawyers

There are different types of contract drafting freelance work available on different websites, but there are some drafting tasks that can be specifically done by technology lawyers only. While one can choose from a plethora of work available online, here are some of the contract drafting tasks for technology lawyers:

Contract drafting for the web development program.
Drafting legal documents for data breach lawsuits.
Drafting documents for IP registration.

2. Legal research and writing

Lawyers or law students who are good at writing can find a number of freelance legal writing works related to technology law on various freelance platforms. Many law firms or even individual practitioners who have a website outsource legal freelancers for writing their blogs/articles. Nowadays, tech companies are also hiring permanent freelance legal writers to post blogs on their websites.

Pay scale

The pay varies from company to company or firm to firm, but if you are just starting as a legal tech writer, you might get paid somewhere around 20-40 paisa per word, and once you create a good portfolio and become a good writer, the payment can range anywhere from 60 paise to 1 rupee per word. This means you can easily earn 25,000 rupees per month, even when you start.

Types of legal writing jobs available for tech lawyers

Patent writing– The job responsibility would include drafting a patent application for an innovative product of the company.

Figure 1– Image showing the freelance work opportunity of a patent writer available on the Upwork website.

3. IP related freelance work

Intellectual Property is one of the most prevalent parts of Technology law. Although Intellectual Property law is in itself a different field of law, it also falls under Technology law. When Tech lawyers work in the IP field in companies or law firms, their work is to manage the overall Intellectual Property owned by the company or to look over all sorts of IP matters in a firm. But as a freelancer, a tech lawyer can choose whatever work he/she wants to do, be it related to trademarks, copyrights, patents, etc.

Types of work

There are many jobs available for a tech lawyer related to IP matters. Here is a list of the top IP freelance work for tech lawyers:

Trademark legal assistance– This job requires the candidate to review a proposed trademark and foresee any potential conflicts.

Figure 3 – Image showing the freelance work opportunity of trademark legal assistance available on the Upwork website.

Assistance in Trademark Registration- The selected candidate will have to register a trademark and patent for the client.
Contract Reviewing– The job responsibility includes reviewing a contract related to Intellectual property of the client. The contract is a Non-Disclosure Agreement.
Content writing related to Intellectual Properties for an IP firm

Pay scale

The pay scale of IP related freelance work can vary from project to project and company to company. However, the payment for a trademark or patent filing ranges from $50- $200 per filing. The payment under Intellectual Property content writing is more or less the same as for tech law content writing.

4. Lawyer for trade associations

A trade association is a collection of different companies and corporations that share the same interests in the market and are not made just for the purpose of making profits but also to increase opportunities and to speak on behalf of their members.

These trade associations hire technology lawyers to assist them in making sure that they do all their work in compliance with the rules and regulations. There are various other works that a technology lawyer performs under trade associations.

Kinds of work required

Here we have listed some of the important work an Indian technology lawyer needs to perform as a lawyer for a trade association.

Monitoring the activities of the trade association and ensuring that everything is done in compliance with all local and international laws.
Negotiate on behalf of the trade associations.
Prepare multiple drafts of contracts and agreements for trade associations.
Protecting the intellectual property rights of trade associations such as logos and trademarks.
Assisting the trade associations in filing disclosures and several other reports.
Staying updated with all the rules and regulations of other countries.
Analysing the policies.
Helping the trade associations in decision-making and strategic planning.
Assisting the trade associations by reviewing their contracts and doing negotiations on their behalf.

Required skills

Here we have mentioned some of the skills that a trade association lawyer must possess in order to make a career under this career opportunity.

These lawyers must have in-depth knowledge of all the regulatory compliances.
These lawyers must have exceptional negotiation and communication skills.
They should know how to draft different contracts and agreements for trade associations.
They must know how to review the contracts made by the trade associations.
They must possess the skill of analysing the policies made by the trade associations.
They should work as team members and assist the heads and members of the association in making decisions and protecting their interests.

Frequently Asked Questions (FAQs)

What is Technology Law?

Technology law deals with the statutes related to IT, computers, etc. It deals with topics such as hacking, identity theft, trade secrets, etc.

Is Technology Law in demand?

As of now, the demand for technology lawyers in the industry is growing, and it is expected to increase even more in the near future because of the digitization of upcoming services and products in the market.

Are Cyber Law and Technology Law the same?

No, technology law and cyber law are not the same, but it can be said that these two topics are closely related or similar. On the one hand cyber law strictly deals with the legal aspect of the Internet world, whereas Technology law covers a number of topics related to technology, such as intellectual property, e-commerce products and services, cybersecurity, etc.

Do firms in India hire Technology Lawyers?

Yes, there are several Indian law firms that hire technology lawyers due to their growing demand. Some of these firms include Trilegal, Khaitan, Cyril Amarchand Mangaldas, etc.

What is the pay scale of a Technology lawyer in India?

The average starting salary of technology lawyers in India is approximately INR 35000 to INR 40000 per month. But this is subject to increment with experience.

How do I find freelance work related to Technology Law?

First of all, in order to find freelance work related to technology law, you must be well-equipped with drafting skills. Once you have gathered enough knowledge of Technology laws, you can start approaching various international law firms through email for work. You can use tricks like cold mailing or approaching the targeted person/firm on LinkedIn in order to get work.

What subjects will I have to study for Technology Law?

There are multiple subjects that a technology lawyer needs to study; some of the main areas include Intellectual Property laws, Information Technology Act etc.

Can I become a Technology Lawyer after doing Btech?

While Btech helps a lot to get well-versed with technology and its different aspects, doing LLB after BTech is necessary if one wants to pursue a career in technology law.

How can I apply for Technology Law jobs at law firms?

To apply for a job as a technology lawyer in a law firm, you must get a list ready of all the firms you want to apply to and those that have technology law practice. Once the list is ready, you can apply for a job there, by sending a mail to them, including your area of interest.

Do tech companies also hire Technology Lawyers?

Most companies have a team of in-house counsel. And if the company is a tech one, they do hire technology lawyers as legal advisors or legal managers for their company.

What is the scope of Technology Law outside India?

In countries like the USA, technology law is booming, and the main reason for this is the advancement of technology. There is a lot of scope in technology law in various other countries because technology is booming worldwide and creating ample opportunities in the field of technology law.

How can I find a job related to Technology Law outside India?

You can search for technology law jobs online on platforms like LinkedIn and Indeed. These platforms have a plethora of job opportunities for law students

What are the top tech companies that hire Indian Technology Lawyers?

The top tech companies that hire Indian technology lawyers are Netflix, Alibaba, Google, Microsoft, etc.

What is the salary of Technology Lawyers employed by global tech companies?

There is no exact figure. The salary of these technology lawyers depends upon the company they are employed by and the prior work experiences of the candidates.

Is an LLB degree necessary to become a Technology Lawyer?

Yes, a degree of LLB from any recognized college is an essential requirement for all individuals who want to pursue their dream of creating a future in technology law.

What are the most important skills required in a Technology Lawyer?

Some of the most important skills that a technology lawyer must have are:

Communication skills
Negotiation skills
Arbitration skills
Dispute resolution skills
Drafting contracts
Reviewing contracts
Policy analysing

Which one is a better course if one wants to become a Technology Lawyer, B.A. LL.B. or BBA. LL.B.?

It does not matter whether you do B.A. LL.B. or BBA. LL.B. to become a technology lawyer. You should have a law degree from any recognized college, and you should have in-depth knowledge of technology laws.

Is Technology Law drafting different from normal civil drafting?

Yes, technology law drafting is totally different from normal civil drafting. Because in technology law, drafting is done for technology related matters. And these drafts mainly revolve around data protection, intellectual property, etc.

What kind of cases can one expect while working as a Technology Lawyer?

There are numerous cyber crimes and offences occurring all around the world, but some of the most common cases that a technology lawyer deals with are cases of privacy breaches, hacking, cybersquatting, etc.

How can I approach foreign law firms for a job as a Technology Lawyer?

To work in law firms as a technology lawyer, all you need to do is submit your CV along with your application to their HR’s official email address and contact any of the associates who are currently employed there, seeking some help.

Can I work as a Technology Lawyer for a foreign law firm after studying law in India?

Yes, you can easily become a technology lawyer in any foreign country in the world after studying law in India. But you must have enough knowledge about all the technology laws, policies, and regulations of the country in which you want to get a job.

Which act in India deals with cyber crimes?

The IT Act 2000 deals with all kinds of cyber crimes and provides several guidelines and methods to deal with them.

What are the top cyber crimes that occur in India?

There are several cyber crimes that take place in India, but some of the most common ones are internet fraud, identity theft, hacking, cyberstalking, and harassment.

Why technology law is probably the most attractive area of practice for lawyers and techies of tomorrow

Technology is changing the world. The largest companies in the world today are tech companies. Naturally, opportunities for lawyers and other professionals are drastically increasing in this sector. Cash-flush technology companies offer better packages, perks and work environment. Compared to stagnant manufacturing or services industry, technology companies are both better clients and better employers.

Mix with that the thrill of working on things that are changing the world before our eyes, from Artificial Intelligence to Smart Contracts. Who does not want to work on these things? Cryptocurrencies have created hundreds of new billionaires in the last three years. Fortunes were made and lost on crypto exchanges, and hundreds of millions are still getting stolen from crypto wallets. The government in every country is grappling with issues and policies to deal with these new generation businesses. New and exciting laws and policies are being created every day around the world that keep tech lawyers busy. From net neutrality to data protection, technology law is undoubtedly the most happening legal sector today, and every lawyer dreams of being a part of this action.

With the technological advancement, laws and contracts have become more complicated. Sometimes you not only need to know the prevalent laws in India but comply with laws across the globe. This is also happening because technology businesses easily enter new geographies, sometimes without even having to set up offices in another country. As a tech lawyer, it is often not enough to know the laws of the country where you operate, but understand the global legal framework around issues like data protection, cloud contracts, cross-border tech-enabled crime, technology contracts, content restrictions, international transactions, breach of cyber security and emerging government policies.

Many of the exciting startups are technology-based and massively rely on technological advancements. Every known industry like media and press, telecom, FMCG, food, retail, farming, defence, education and anything else you can imagine is being or is about to be disrupted by technology companies. Companies which fail to embrace new technologies are being assigned to the dustbin, as seen from the epic downfalls of companies like Kodak and Xerox which used to be mighty empires that fell due to lack of focus on technology.

In the times where everything is going digital, there are innumerable laws and regulations that govern everything from operations, contracts, and transactions. Companies are increasingly in desperate need of professionals who understand these laws and regulations, and even the government policies behind them, so that they can protect their significant business interests and extract maximum advantage in the marketplace.

Amidst the data privacy issues, cyber threats, increasing fintech and transparencies, you need to be able to keep up with technology and laws. You need to be one step ahead of the curve.

Should I invest time, money and energy into learning technology law?

If you are a law student or a young lawyer looking for an area to specialise in, technology law is probably a very wise choice. If you are a techie, technology manager or founder who is thinking of investing in understanding the rules that define this game, then you are making a very wise choice too. This investment is likely to pay very rich dividends over the years in your life as the technology frontier is pushed further and more value is generated by the tech industry to support a global population of over 7 billion people and growing.

However, how can you develop a deep understanding of technology laws, contracts, regulations and fast developing government policies? Reading the sections and case laws is grossly inadequate, and anyway, that’s something you could google at a moments notice.

So what should you learn to become an outstanding technology lawyer or a shrewd strategist as a techie or founder?

You need to know how to identify the possible vulnerabilities in your client’s business model and dealings. You need to be able to strategize and structure deals to create safeguards against those vulnerabilities. You also need to be able to foresee the potential threats and risks. You’ll need to draft technology contracts like Software License and Assignment Agreements, IT Services Agreements, Cloud Services Agreement, Content Licensing Agreements, terms and conditions for platforms, e-commerce vendor agreements etc. You need to be able to review the contracts and negotiate the best deal for your clients. You need to be aware of regulations developing around the world, and predict how things may shape up in India and other key markets of your company. You need to know what to ask and what to give up during a negotiation. You need to know to learn about risk management and introduce best practices in your organisation or client’s business.

You need to develop astute thinking and understanding around technology and law. Rather than knowing sections, you need to understand how business is done, what are various interests at loggerheads, and how the law can be used to win the day or protect your skin.

What are the essential skills for a technology lawyer?

While the skill set for specialised lawyers may vary based on their industry, there remain certain essentials which cannot be amiss in a technology lawyer.

For the employers, it is cost-efficient to hire a technology lawyer who is already competent in technology, rather than training them on the job. The specialised skill sets are much easier to acquire than it seems. If you are aiming for a good package and role, it is far better to acquire these skills before you start working and in the 2nd best case, you must work on them while you are working as a tech lawyer to progress faster in career.

You need the practical skills like technology related contract drafting, risk assessment, risk management, strategising, policy-making and implementation, negotiation and last but not the least, ability to speak in the language of your clients i.e. techies! If you can’t explain complex laws to them simply in their language, you will find it difficult to progress in tech law.

– Knowledge of emerging technologies

Although a technical degree is not a requirement, there needs to familiarity with the technological advancements. You don’t need to be a techie to be a technology lawyer, but you must be able to understand the mechanisms, parlance and terminology of the technology world.

For a technology lawyer these terms hold much significant value when they converge with law. For instance, in a clarification to Section 31D of the Copyright Act, 1957, Department of Industrial Policy and Promotion (DIPP) clarified that the term ‘broadcasting’ shall include internet broadcasting as well, it created confusion as to which companies fall under the purview of ‘internet companies’. This raised questions like whether streaming applications like Gaana and Saavn are essentially internet-enabled companies or internet companies? A technology lawyer would need to understand the mechanism of streaming music as well as its definition in the light of internet company.

Also, these days many a law firms and companies want to create a virtual version of their organisation through cloud computing and knowledge management systems. There are even Decentralized Automated Organizations (DAO) which would be implemented across many sectors. There are areas like e-discovery, automated documentation processes, usage of artificial intelligence to make routine decisions. These process altogether save valuable time and thereby costs for the organisation. The technology lawyers competent in such operations are high in demand in companies that deal with these technologies. Apart from knowing the law, you must understand what the technology does and sometimes even how it does whatever it does.

A tech lawyer need to stay in touch with emerging areas of technology because very often that is where legal and policy issues and disputes arise. Legal and policy issues are arising in India right now in domains such as drone licensing and civilian use of drones, cryptocurrency, big data collection and storage, space and defence technology, cloud computing, emerging e-commerce practices, payment gateway debacles, cyber security, net neutrality, biotechnology etc. If you do not understand the underlying technology, how things are being done and where it is all headed, practicing technology law is very difficult only by knowing legal provisions.

– Technology Contract Drafting & Negotiation

Contract drafting is one of the most quintessential skills for any lawyer. The art of drafting contracts which safeguard the client’s interests and provides for a more comprehensive layout of dealings is an inherent part of the job for lawyers.

For a technology lawyer, this skill has to be taken a step further. These lawyers need to know about contracts which are more relevant to tech companies on a daily basis such as Standard Distributor Licensing Agreement, Cloud Computing Agreement, Outsourcing Agreement, Software Licensing Agreement, etc. Even with respect to more commonplace agreements such as NDAs, non-compete agreements, employment agreements, investment agreements, vendor agreements etc., you need to learn to draft improvised versions that are more suited to technology industry.

There are things you need to do beyond obvious drafting and negotiation work too, which is strategizing deals. Imagine, what would happen if your counter party finds out that you are using someone else’s patented technology in the middle of negotiating a deal. There cannot be any worse timing than this to lose leverage in a negotiation. To avert any infringement and thereby costs to the company, you need to apply for necessary permissions and licensing, and get the paperwork right in time!

The technology lawyers are present throughout the way, right from the launch of the product, to getting the necessary licenses and permissions, to managing the intellectual property portfolio and disputes arising out various contracts. They need to negotiate and draft the best possible deal for their companies.

If you do not know how certain contracts are drafted or best practices in the industry, it will be a significant disadvantage.

– Managing the IP Portfolio

The primary product of any technology-based company or client is their intellectual property.

There are product companies and services companies. Product companies develop technology which is usually their core product, and must protect their proprietary technology from getting copied. Sometimes this means getting patent protection, and at other times simply ensuring that non-patentable proprietary technology is not leaked to competitors or exploited by ex-employees. Think of the ‘slide to unlock’ technology on your smartphones. Apple and Samsung got into the smartphones patent wars by filing about 50 lawsuits for various patents, trademarks infringement, around the world and claiming billions of dollars between them! Service companies on the other hand, develop technology for other companies. The terms of the services contract define whether they retain any rights on the technology developed by them or not.

The noteworthy thing about technology is that more than one party could be working on the same technology, at the same time. If the intellectual property if your client is not adequately protected or it overlaps with existing technology, the lawyers have to ensure that the damage is mitigated while protecting their client’s interests.

As a technology lawyer, you have to manage the IP portfolio more diligently than your counterparts as the existence of your company may depend on preventing others from copying or replicating the technology! In media related technology companies, the IP battle may be to stop your content being pirated on the world wide web. To do this successfully over a period of time, tech lawyers have to introduce company-wide policies and implement them in time. They have to educate the various departments and management regarding the risks and help them mitigate the foreseeable risks and costs.

They need to apply for the necessary trademark, patents, copyright registrations and enter into trade secret and non disclosure agreements where necessary. In case of an overlap of technology, it has to be mitigated by procuring third-party licenses, or finding flaws in the oppositions filed against them. The IP portfolio management is one of the critical functions of a technology lawyer.

– Risk Assessment & Management

A good lawyer has to have forethought about possible risks. There is no point in digging up a well when there is fire; it has to be done beforehand. There are risks in every business across industries. However, a lawyer has to ensure that they don’t come back to bite you.

From this perspective, it is important to know the history of an industry, and even correlate what happened in other tech industries and be able to predict the way things may shape up for your client. One has to have a grasp of evolving government policies, judicial developments as well be keyed into technological developments.

Sometimes risk management is a simple matter of doing a prior art search, and at other times it is all about advising the CEO about where the next regulatory roadblock may come from.

– Policy Making & Implementation

It is not enough to merely assess the risks and potential complications. There has to be a system or policy to ensure such risks are averted in a systematic manner. The lawyers while ascertaining the risks have to come up with systems that help the organisation to manage their risks and adhere to necessary compliances. For instance, the privacy policy on any website like say Google, is to increase transparency and minimise their intermediary liability. If you are a media platform, you may want to ensure that you are counted as an intermediary – and certain steps may have to be taken so that you are not hit by unforeseen copyright claims or getting sued for violating child porn laws due to users misusing your platform. If someone wants to complain about copyright violation to your platform, is there an effective way to do so? The lawyer may have to ensure that even though that’s not strictly legal work, but falls well within definition of policy making and implementation. Tech lawyers frequently need to take care of such things.

But policy-making itself doesn’t ensure its effective implementation. Even the best of policies, if improperly executed lead to a bigger mess. Just look at Aadhar unique id. In spite of having the government, technology and plan on their side, the callous manner of implementation of said policy led to multiple lawsuits!

– Litigation and dispute resolution in tech

Tech litigation is on the rise along with global growth of tech industry, as well as increasing complexity and regulation of this sector in every corner of the planet. From IP disputes to co-founder conflicts, from data theft to class action suits for malpractice, tech litigation is never as hot as it is now. We can only predict that this will continue to increase. Specialized tech litigators stand to make the most money as high profile and high stake tech battles reach arbitration chambers and courtrooms with increasing frequency.

The biggest challenge for the technology lawyers in litigation, is usually explaining the technology to the judges or arbitrators with no technology background. The skill of communicating the dense and complex technical manner in the simplest manner in order to convince the judges is much desired. It requires highly strategic thinking and personal grasp of the subject matter.

Imagine explaining complex algorithms that determine logistical efficiency in food delivery by drones, robots built using nanotechnology or cryptocurrency regulations to a judge. This is the challenging task for tech litigators often get paid in millions.

One thing is sure beyond any doubt; there are new grounds to break for technology lawyers with the passage of time. We now have a lot of technology that used to be unthinkable a decade back. Who knows what kind technology will be imagined and realised next? We can, however, not imagine a technology space without tech lawyers making the wheels roll.

So buckle up technology lawyers of the future! This is a very exciting and profitable time to become a tech lawyer.

Basic structure doctrine

By

Rachit Garg

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October 6, 2023

0

This article is written by Arya Mittal from Hidayatullah National Law University. The article aims to discuss the basic structure doctrine – its concept, evolution, criticism and its reflection in other countries.

Introduction

Recently, the Former Chief Justice of India, Mr. Ranjan Gogoi, who is currently a Rajya Sabha member, remarked that the basic structure doctrine has “a debatable, a very debatable, jurisprudential basis”. Gogoi referred to the basic structure doctrine while the members of the Rajya Sabha were discussing the Delhi Services Bill, 2023 (now the Government of National Capital of Delhi (Amendment) Act, 2023) to control the administration and civil servants in the National Capital Region. This led to the long-standing debate on the validity of the basic structure doctrine.

In India, the basic structure doctrine has been promulgated through a series of judgments, including the renowned case of Kesavananda Bharati. Thus, the basic structure doctrine does not have a limited scope. The application of the doctrine has evolved only through the judicial interpretation of the Constitution. The Hon’ble Supreme Court and the High Courts, through their writ jurisdiction, intervene and interpret the Indian Constitution to impart its true meaning. However, the question that needs a proper response is whether the doctrine provides the judiciary an overhauling power over the legislature? A brief overview of the doctrine along with the timeline of cases discussing the doctrine, and the presence of such provisions under the Constitutions of other democratic countries forms the scope of the present article and has been discussed hereafter.

Brief Overview of “Basic Structure Doctrine”

In simple terms, the basic structure doctrine suggests that certain parts of the Indian Constitution form the core, have intrinsic value and hence, they cannot be altered or removed from the Indian Constitution. Such parts form the basis and reflect the principles of the makers of the Constitution. Not only that, they also throw light on the basic tenets of constitutionalism in India and hence, referred to as the basic structure. The doctrine has been formulated by the Indian judiciary through various cases as elaborated below.

Shankari Prasad v. Union of India (1951)

The case of Shankari Prasad is among the initial cases of the Hon’ble Supreme Court evolving the basic structure doctrine in India. Here, the Court was concerned with the constitutional validity of the First Amendment Act, 1951 which restricted the fundamental right to property. Upholding the amendment, the Supreme Court opined that the Parliament had the power under Article 368 to modify any part of the Indian Constitution by way of constitutional amendment, including the fundamental rights. Thus, the position of law after this judgment was that the State had the power to take away/restrict the fundamental rights of people through a constitutional amendment and such an amendment would not be even nullified by Article 13 of the Indian Constitution.

Sajjan Singh v. State of Rajasthan (1965)

During the advent of agrarian reforms in India, the Parliament passed the Constitution (Seventeenth Amendment) Act, 1964 to further amend Article 31A and bring a number of statutes within the ambit of the Ninth Schedule. Petitioners in this case, being affected by the amendment, raised an issue challenging the constitutional validity of the amendment, contending that a fundamental right could not be amended by way of Article 368. Upholding the validity of the constitutional amendment and following the judgment of Shankari Prasad, the majority view held that fundamental rights could also be amended by the Parliament, both prospectively and retrospectively by virtue of its power under Article 368 of the Indian Constitution. Nevertheless, giving the dissenting view, Justice Mudholkar and Justice Hidayatullah opined that the nomenclature of the term ‘fundamental rights’ indicated that these rights were inherent and fundamental to every citizen and hence, should not be allowed to be amended or modified.

Golak Nath v. State of Punjab (1967)

In the landmark I.C. Golaknath judgment, the Constitution (Seventeenth Amendment) Act, 1964 was once again questioned after the Punjab Security and Land Tenures Act, 1953 restricted the petitioners from holding more than thirty acres of land. The Petitioners held the statute to be violative of Article 14 and Article 19(1)(g) since they were not allowed to hold additional land and resultantly, were unable to rent out this additional land causing them economic loss. This was the first case where an eleven-judge Constitutional Bench was made to adjudicate the issue. In a ratio of 6:5, the majority view held that the fundamental rights could not be amended in any manner. In the words of the Court, “Fundamental rights are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner he likes best. Our Constitution, in addition to the well-known fundamental rights, also included the rights of minorities and other backward communities in such rights. The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament.”

Kesavananda Bharati v. State of Kerala and Anr. (1973)

The Kesavananda Bharati case turned out to be the longest judgement in the history of the Indian legal system and also laid the foundation of one of the most imperative doctrines, i.e., the basic structure doctrine. Here, the petitioner was the leader of Edneer Mutt, a religious sect in the state of Kerala. He held some of the land of the sect under his own name. Government sought to acquire a part of such land. Immediately after the Golaknath case, the 24^th Constitutional Amendment Act was passed to nullify the effect of the judgement. The Amendment provided that the Parliament had the power to amend or modify any provision of the Indian Constitution without being hit by Article 13. Thereafter, a series of amendments basis the 24^th Constitutional Amendment were also passed to nullify the Golaknath verdict. Hence, petitioner approached the Hon’ble Supreme Court contending violation of Article 25 and Article 26 which deal with right to practice and propagate religion and right to manage religious affairs respectively. While the petition was still pending, the Kerala Land Reforms (Amendment) Act, 1971 was passed making amendments in the Kerala Land Reforms Act, 1963 and brought within Ninth Schedule. Thus, the said law was also challenged.

The case saw the largest Constitutional Bench of thirteen judges to decide upon the matter. Pursuant to 68 days of hearing, the verdict of the case was passed with a ratio of 7:6. The Court opined that the wide powers of the Parliament under Article 368 of the Indian Constitution were subjected to the basic structure doctrine. Any component forming part of the basic structure was not open to amendment by the legislature. Justice S.M. Sikri states as follows:

“The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government.

(3) Secular character of the Constitution;

(4) Separation of powers between the Legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.”

The Court also said that Preamble was an intrinsic part of the basic structure as it is the basis of the Indian Constitution and envisages the fundamental rights for all the people. The Court also established the golden triangle consisting of Article 14, Article 19 and Article 21 of the Indian Constitution and held that the same bounds the Indian legal system.

The judgement acted as a cornerstone of the Indian Constitution which secured the rights of the people and ensured that the amending powers could not be usurped by the Parliament to get political gains. It reserved the essence of Indian democracy and ensured that constitutionalism continues to exist in the country.

Indira Nehru Gandhi v. Raj Narain (1975)

Kesavananda Bharati case had already laid down the foundation of basic structure doctrine in India by holding that certain parts of the Constitution cannot be amended in any manner. Just two years later, another issue in the form of the case of Indira Gandhi v. Raj Narain came up before the Court. The facts were such that the Allahabad High Court had invalidated the petitioner’s election owing to corruption and malpractices. As a consequence, the Parliament passed the 39^th Constitutional Amendment Act to invalidate the judgment. The Amendment provided that the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha could not be subjected to the judicial review, thereby nullifying the effect of the Allahabad High Court judgment. Eventually, the Amendment was constitutionally challenged contending whether it was permissible to nullify the effect of the judgment and also affect the procedure concerning elections. The Supreme Court held that free and fair elections form part of the basic structure doctrine and hence, the clause was held to be invalid. Further, the Court added a few more elements to the doctrine, one of which was democracy implying free and fair elections. Other elements included judicial review, rule of law and Article 32 empowering the Supreme Court.

Minerva Mills v. Union of India (1980)

In Minerva Mills Ltd. v. Union of India, the issue before the Hon’ble Supreme Court was the constitutional validity of Sections 4 and 55 of the Constitution (Forty-Second Amendment) Act, which transgressed the limitations of amending powers of the Parliament. The Parliament, by way of the 42nd Amendment, introduced clause (4) and clause (5) to Article 368, which, in essence, excluded the amendments to the Constitution from being subject to the judicial review, and provided the Parliament an unrestricted power to amend the Constitution.

The Supreme Court held that in India, the supremacy of the Constitution is the most crucial aspect. The power to amend the Constitution provided to the legislature, thus, cannot be an absolute one, and it must respect the basic structure of the Constitution. If an absolute power is granted, the amendments would be outside the scope of judicial review, in which case, Article 13 would be a dead letter, as the legislature would escape the scrutiny of the Courts. However, judicial review was viewed as a part of the basic structure of the Constitution, and the amendment could not bypass the powers of the Courts to scrutinise laws, including the Constitutional amendments. The Court also held that harmonising the Fundamental Rights (Part III) and the Directive Principles of State Policy (Part IV) is also a part of the basic structure.

Madras Bar Assn. v. Union of India (2014)

In Madras Bar Association case, the issue before the Hon’ble Supreme Court were threefold: firstly, the constitutional validity of the NCLT and NCLAT on the grounds that it violated the basic structure of the Constitution; secondly, the prescription of qualifications including term of their office and salary allowances etc. of president and members of the NCLT and as well as chairman and members of the NCLAT; and lastly, the criteria for selection of the committee for appointing the members of both the tribunals. The Supreme Court did not accept the contentions of the Petitioner. It was held that the NCLT and NCLAT are compliant with the basic structure of the Constitution, as it was in consonance with the separation of powers, judicial review, and independence of judiciary. The Parliament is empowered to create a law which transfers a judicial function on a specific subject to any tribunal, given that the tribunal shall follow the principles of natural justice and the provisions of the Constitution. Additionally, the jurisdiction of the courts can be shifted to tribunals if it would abrogate the pendency and delay. Thus, NCLT and NCLAT were held to be constitutionally valid.

Supreme Court Advocates-on-Record Assn. v. Union of India (2016)

One of the very recent cases on basic structure doctrine is the NJAC case or famously called the Fourth-Judges case. By virtue of the 99^th Constitutional Amendment, the Parliament replaced the then mechanism of selection of judges with the National Judicial Appointments Commission (NJAC). The initial composition of NJAC was thought to be comprising of Chief Justice of the Supreme Court along with four senior-most judges of the Supreme Court. However, at the time of enactment of the NJAC Act, the commission was composed of the Union Minister of Law and Justice and two eminent persons, alongside Chief Justice of India and two senior-most judges. Resultantly, petitions were filed challenging the constitutionality of amendment and NJAC Act raising the serious concern that the impugned law affected the independence of judiciary and caused lack of transparency and accountability. By a ratio of 4:1, the majority view held that the said Amendment and Act were violative of the basic structure doctrine since it affected the independence of judiciary by including the executive in selection process of judges. The Court was of the view that the impugned law goes against the judicial precedents set in Kesavananda Bharati and Minerva Mills case. The only dissent i.e. Justice Chelameswar opined that the present collegium system which is full of defects could have been corrected by the constitution of NJAC. He stated, “NJAC could have acted as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches.”

Criticism around the Basic Structure Doctrine

The basic structure doctrine is often criticised for the reason that it does not find its roots in the Constitutional text. No provision of the Constitution, neither expressly nor impliedly, discusses the basic structure. The critics believe that the Constitutional value of sovereignty of the people is the supreme power, which vests with the democratically elected government. Any judgement overturning such power of the people shall thus be against the spirit of the Constitution. The Constitution emphasizes on the separation of powers among the functionaries established thereunder. As much as the legislature does not have the power to pen down the verdict of a case, the judiciary also does not have the power to declare any Constitutional amendment void.

The NJAC Case

The NJAC Case discussed above has been a very recent case in the history of basic structure doctrine. However, the judgement is much criticised at various instances. The argument made by the critics related to the fact that NJAC Act did not affect the independence of judiciary. Moreover, a question is raised in this regard on how the collegium system is necessary for the independence of the judiciary. Referring to the 2015 verdict which had invoked the basic structure theory, Jagdeep Dhankar, the Vice President of India, addressing the 83^rd All India Presiding Officers’ Conference, remarked that the scrapping of the NJAC Act was “a scenario perhaps unparalleled in the democratic history”. According to him, Parliamentary sovereignty and autonomy cannot be permitted to be compromised by the executive or judiciary.

Another aspect on which the basic structure is criticised is that the structure is not defined properly. The way the basic structure functions can be referred to as the ‘Ex-Post Review Mechanism’. Under the mechanism, since the contents of the basic structure are not defined or fixed, it comes to picture as a review mechanism after the amendment is implemented. This is because the function of the basic structure is to keep a check on the impact of the amendment rather than the contents of the amendment. Thus, the Court takes into account the socio-economic and political circumstances of the given time at which the amendment comes into effect. As a result, the basic structure excludes the legislative and executive functions from its scope, giving space to ambiguity, and raising an important question – whether the basic structure should be confined to the amendments to the Constitution only?

Apart from the aforementioned criticisms, the critics also question the judicial power to impose its philosophy over a democratically elected government. More specifically, the question is related to judicial overreach, as the Constitution does not empower the judiciary to abrogate any legislative action.

Is the Basic Structure still intact in India

Time and again, the High Courts as well as the Hon’ble Supreme Court have held that the basic structure of the Constitution is one of the most crucial aspects in the largest democracy of the world. It ensures that nothing in the country is above the Constitution and the Constitution is indeed the Suprema Lex. The non-definite structure of the doctrine provides the judiciary an opportunity to apply the Constitution in its true sense.

After Kesavananda Bharati, the basic structure of the Constitution has been kept intact by various Courts. In Vemireddy Pattabhirami Reddy v. Yendapalli Srinivasulu Reddy and Others (2002), while the Andhra Pradesh High Court was deciding whether the non-disclosure of criminal cases by an electoral candidate would render the election result as void, the basic structure of the Constitution was resorted to. It was held that a ‘free and fair’ election is a basic feature of our democracy, and hence, the basic structure of the Constitution.

In All India Judges Association v. Union of India & Ors. (2023), the Hon’ble Supreme Court has reiterated that the independence of the judiciary is a part of the basic structure of the Constitution, and it includes the independence of the district judiciary as well.

In State (NCT of Delhi) v. Union of India (2023), the issue before the Hon’ble Supreme Court was the asymmetrical federal model of governance in India, especially in the case of the National Capital Territory of Delhi. The issue was the constitutional validity of Article 339AA(3)(a) of the Constitution. The Constitutional bench of the Hon’ble Supreme Court held that an interpretation of Article 239AA(3)(a) in an expansive manner would further the basic structure of federalism.

Thus, it can be seen that not only the basic structure is still intact in the current times, the doctrine is still evolving and is construed to incorporate as many crucial aspects of the Constitution as the contemporary times deem fit.

Basic Structure Doctrine in Other Countries

The basic structure doctrine can be explained as that part of the Constitution which cannot be amended by the Parliament. The doctrine, in India, evolved through various cases and was finally spelt out in Kesavananda Bharati, as discussed above. However, the doctrine can be found in various countries. This section shall discuss the provisions of the countries where the doctrine can be found. These include, inter alia, Germany, France, Greece, Portugal, and Pakistan.

Germany

The German Constitution, known as the Basic Law for the Federal Republic of Germany, is one of the prime examples of the Constitutions which include the doctrine of basic structure. Article 79(3) (Amendment of the Basic Law) states that the “Amendments to this Basic Law affecting the division of the Federation into Länder, their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”The Constitution has defined the basic structure under Article 1 and Article 20, and has safeguarded the same by excluding it from the scope of amendments. Article 1 of the Basic Law provides that the human dignity shall be inviolable, and the German people shall have inalienable human rights. Moreover, it is the duty of the State to protect the human rights of the people. Article 20 provides that the Federal Republic of Germany shall be a democratic and social federal state.

The German Constitution laid down the basic structure in express terms only after the Nazi rule ended in 1945, in order to avoid any similar situation again. The Federal Court of Justice (the Apex Court in Germany) recognized the provisions envisaged under Article 79(3) and referred to it as the “constitutional identity” in the renowned Solange I and Solange II judgements. Thus, the basic structure in Germany is now known as the constitutional identity of Germany.

France

Similar to the German Constitution, the Constitution of France expressly limits the powers of the government to amend the Constitution. Such limitation is expressed under Article 89 of the Constitution of France, 1958. The provision, apart from the procedure for amendment, states that “The republican form of government shall not be the object of any amendment.”Thus, the structure of the republican form of government is the basic structure provided under the French Constitution, and is protected from any amendment by the Government.

Greece

The Greek Constitution also expressly protects the basic structure like the German and the French Constitution. Article 110 of the Constitution provides for the procedure of revision. It states that “The provisions of the Constitution shall be subject to revision with the exception of those which determine the form of government as a Parliamentary Republic and those of articles 2 paragraph 1, 4 paragraphs 1, 4 and 7, 5 paragraphs 1 and 3, 13 paragraph 1, and 26.” Thus, the basic structure of the Greek Constitution is provided under these provisions, and are safeguarded by Article 110.

Portugal

The Portuguese Constitution also provides explicit provisions for protection of the basic structure of the Constitution. Article 288 enlists 14 limitations on the Constitutional revision. These include the national independence and unity, republican form of government, separation of powers, citizen’s freedoms, rights and guarantees, independence of judiciary etc.

Pakistan

Pakistan has followed the steps of India while promulgating the basic structure doctrine. In Pakistan, the question regarding limitations on amendments to the Constitution were raised after Kesavananda Bharati, but to no avail. However, the question was revisited by the Supreme Court of Pakistan in Mahmood Khan Achakzai v. Federation of Pakistan (1997). In this case, the issue before the Court was the constitutional validity of the amendment allowing the President to dissolve the National Assembly. This provided an opportunity to the Apex Court to pen down the basic structure doctrine in Pakistan. This decision, however, was overruled by a larger bench within a year. The question regarding the basic structure was again raised before a 12-judge bench in 2015, which held by a majority of 8:4, in the case of District Bar Association & Ors. v. Federation of Pakistan (2015), that “This Court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features. It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the Salient Features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.” Thus, the Court held the Democratic and Parliamentary form of government, along with the Judiciary as a part of the basic structure of the Constitution of Pakistan.

Conclusion

Although it is true that the basic structure doctrine provides an overhauling power to the judiciary, it is pertinent to note that the Indian Constitution has been drafted with a pious and sacred intent. The makers of the Constitution endowed the responsibility of protecting the true values of the Constitution upon the judiciary. Thus, the judiciary has to protect and uphold the true values of the Constitution above everything surrounding it. If these values themselves are amended by the legislature, it would be detrimental to the spirit of the Constitution. These values are what form the basic structure of the Constitution.

However, the biggest problem faced while protecting the basic structure is that it has not been clearly defined. As discussed above, the basic structure is also found in various other democracies. Since the scope of the basic structure is defined in these countries, the scope of criticism is limited. Thus, a definite basis of the basic structure is the need of the hour.

References

Indian Constitutional Law, M.P. Jain (2018).
Constitution of India, V.N. Shukla (2022).
Constitutional Law, Mamta Rao (2021).
Karim, F.: Judicial Review of Public Actions: A Treatise on Judicial Review (Karachi, Pakistan Law House 2006), 1254–76.

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