In this blogspot, Kamakshi Gupta, law student, University of Petroleum and Energy Studies, Dehradun, writes about the gender discrimination which is prevalent, and analyzes as to how‘Pinjra Tod’ a movement by the students is trying to eliminate that. She also goes on to write about the legality of the movement.

Recently a campaign had been organized by the students of Delhi University. All the students came together under the banner of ‘pinjra tod’ that means ‘break the cage’ which was against the regressive hostel rules and all policies that have been made for women’s hostels and dormitories across the country. Now day’s women’s hostels in India have been means of imprisoning girls and women. These hostels are seen as an extension of homes, it acts as a home far away from home, but having so many restrictions is a violation of basic human rights. Typically, wardens those who manage the inmates of such hostels impose certain restrictions regarding the timings and especially the night outs, and such restrictions are not reasonable. These hostels then become jails for the inmates.

VIEW OF THE INSTITUTIONS

It’s not only about the rules and the restrictions but the attitudes of the authorities of such institutions. The authorities give reasons for such restrictions stating that these restrictions have been made for the safety of women, and they do not have any other intentions. On the other hand, they contend that women run amuck if are let out. Due to the lack of clarity of thought behind imposing such restrictions, it comes across as double standards people have and these restrictions make such standards evident. The rules forbidding women from staying out late, leaving the college premises alone or to take leave on weekends and such restrictions are just a way to police them. No doubt the authorities have a responsibility towards ensuring the well-being of the students as they are far away from homes, but imposing unreasonable restrictions is not the right way.[1]

WHO’S PROTECTING THE MEN?

Why is it that such restrictions are not imposed on men, there is no such institution barring men from going out nor are any kinds of codes of conduct or curfew hours prescribed for men. If we look into the acts like ragging and bullying, these are practiced in boys hostel to a large extent and is much more than it is practiced in the girls hostels, but still no restrictions are imposed on them.

LEGALITY OF THE CAMPAIGN- INFRINGEMENT OF FUNDAMENTAL RIGHTS.

We all know that Constitution of India is the supreme law, but our educational institutions are at times guided by the fairy tales to model their policies. But such curfews inspired by the Cinderella’s stories applied on women are against the constitution and violates the right to equality and freedom of movement. This campaign is an urge to young women to free themselves from unreasonable restrictions on their freedom.

Recently Narendra Modi said that women should not be shut behind the doors.[2] Article 15 of the Indian constitution clearly states that government shall not discriminate any citizen on the grounds of sex.[3] Though article 15(3) makes a special provision enabling the state to make special laws for women but above all, the constitution imposes a fundamental duty on every citizen through articles 15(A) (e) to renounce the practices derogatory to the dignity of women. As women are not allowed to go out and move freely  according to their conveniences, then this again is a violation of article 19 of the Indian constitution which specifically states that every citizen has a right to freedom of movement regardless of the gender. Specifying the time for women and not allowing them to go out in the night is just a way to restrict their movement. The university officials argue that these curfews are necessary to secure the students from the crimes such as gang rape, dangers faced by women especially at night while using public transport. The pinjra tod campaign denied all such arguments saying that the solution to these problems can’t be by locking girls inside. In fact, such an act of the institutions give men freedom to do whatever they want to do.

THE DEBATE ON GENDER EQUALITY

Such cases bring upon the debate regarding gender inequality. Even after so many advances and progress our country has made, gender inequality is still prevalent in the society. Apart from this incident, there have been other cases wherein, gender inequality has been quite visible and still there has been no action.

In the case, Indian cricketer Amit Mishra[4]; a fatal gang-rape of a medical student stunned the capital in December 2012. The cricketer got bailed after a few months. These are the reasons that encourage people to commit crimes, as they do not fear the law. If we really want to make the city safe for women, we need to make strict laws and make sure these laws are implemented well. This will not give a reason to institutions to lock women inside the 4 walls.

There was another case of blind Muslim teacher[5] there was a blind Muslim teacher who was barred from being rented a flat in India.  One thing demanded by students was that at least the curfew be half an hour after the library closes or at before the last metro so that women don’t feel they are being trapped or locked out of public places, and even they have right to access. There have been petitions filed by the students in this campaign which was addressed to the Delhi Commission for women and collected about 1200 signatures. This shows that more and more are against such inequalities.

AUTHOR’S VIEWS

If we critically analyze this scenario and look into all the aspects, the universities state they are concerned with the safety of women and these rules are important for keeping woman safe as if something goes wrong the university authorities will be blamed in the first place. So if students want to enjoy their freedom, they need to negotiate this with their parents at the initial stage.[6] These statements just do not seem logical. What if there are few people who are open to giving freedom to their daughters will the authorities be willing to remove such restrictions for them?

No doubt restrictions are good as it helps in maintaining discipline, but such restrictions should be reasonable enough. All women have the right to decide where they want to go, till what time and with whom. Instead of imposing such restrictions, all should strive to make the country a safer place to live in so that even women can move freely according to their will and choice.

[1] http://www.thequint.com/women/2015/10/12/pinjra-tod-breaking-the-shackles-of-protection

[2] http://gendermatters.in/2015/10/pinjratod/

[3] Constitution of India.

[4] http://tribune.com.pk/story/995112/indias-women-students-rebel-against-university-curfews/

[5] http://tribune.com.pk/story/995112/indias-women-students-rebel-against-university-curfews/

[6] http://www.youthkiawaaz.com/2015/10/pinjra-tod-womens-hostel-curfews/

In this blogpost, Saumya Agarwal, student, Amity Law School, Delhi  writes about why we need an alternative to Section 66A of the IT Act

INTRODUCTION

Much has been written about Section 66A of the IT Act, 2000 already. With the landmark judgment given by the Supreme Court in the Shreya Singhal case last year, most of the citizens wonder whether the internet has become a free domain to express their views and opinions. Is an alternative to Section 66A really needed?

BRIEF OF SHREYA SINGHAL’S CASE

Shreya Singhal is a 21 year old girl who had just returned after completing her astrophysics course in UK’s Bristol University. Being a fifth generation lawyer herself, she knew she could approach the Supreme Court directly. She filed a PIL for striking down the draconian Section 66A based on the arrest of two girls from Mumbai for questioning the shutdown of Mumbai on the death of Shiv Sena chief Bal Thackeray. One girl posted her views as to the need for shutting down Mumbai while the other one simply liked her view.

The Supreme Court held that Section 66A was poorly drafted and vague. The Court held that it is ‘unconstitutional.’ While defining the word “grossly offensive” in the section, ASG said that the interpretation of the section is arbitrary. According to him, “what is offensive for me may not be offensive for you and it is a vague term.”[1] He said in court, “I can give you millions of examples but take one burning issue with respect to conversion. If I post something in support of conversion and some people, not agreeable to my view, filed a complaint against me then what will happen to me?”

The main contention argued by the defendant Tushar Mehta was that just because there is a possibility of its “abuse,” the Supreme Court should not “quash” the Section.

He also said there was a need for a mechanism to put checks and balances on this medium because the internet doesn’t “operate in an institutional form.” “Considering the reach and impact of the medium, leeway needs to be given to legislature to frame rules. On the Internet every individual is a director, producer and broadcaster and a person can send offensive material to millions of people at the same time in a nanosecond just with a click of button.”

To this Supreme Court argued that “The information disseminated over the Internet need not be information which ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the Indian Penal Code at all.”

WHAT HAPPENED TO THE CASES WHICH WERE BOOKED UNDER SECTION 66A?

The police said that it cannot be expected from them to go to every person against whom the cases were filed and ask them to withdraw their application. However, it said that the people against whom the cases are filed can approach the court and file for withdrawal of the case in the light of the Shreya Singhal judgment.

NEED FOR AN ALTERNATIVE TO SECTION 66A

As has been argued by ASG Tushar Mehta, internet doesn’t “operate in an institutional form.” There is a need for a new law which is not vaguely drafted and is not misused by the politicians and the police to harass the people. Most of the people use the internet to advocate their views or as a platform for discussion, but there are some miscreants who use it to defame others. There is a need for the people to be booked under the IT laws in case any violation happens. We also have to look at the fact that the law is not over-regulatory and curbs our fundamental right to freedom of speech on the internet. There is a greater need to draft a law under the IT Act to deal with such cases.

POINTS GOVERNMENT SHOULD CONSIDER BEFORE DRAFTING THE NEW SECTION

The new law should not repeat the old laws’ deficiencies; the new law should not duplicate the old law. The old law was misused by the politicians for their own benefits. Care should be taken while drafting the new law. The government should take into consideration the future of the new law along with the security and privacy of the users, which is a crucial point. The new law should be more carefully drafted which should not be struck down.

The government should ensure that people use the internet with responsibility, to post information, to share their views, photos and videos. But there are a few users who use the internet to malign it by sharing morphed photos, videos and other materials which are likely to spread communal violence. So to prevent all this, it is necessary that there should be a proper law.

The government should take reference from other legislations of the world and also not repeat the mistakes present in the old law. The government should consult experts like privacy groups, judges, lawyers, police and other prominent citizens in the relevant arena before drafting the new law. The MPs should debate on the draft before passing the new law in the Parliament.

It should be more participative and should not curb the freedom of speech of the citizens in any way. It should be more citizen friendly and not favoring the government and the politicians. The most important of all is that the law should not be to harass people and must not be misused by the politicians.

CURRENT SITUATION

Presently, after striking down the Section, the complainants are using Section 499 and 500 of the IPC to book people.

Section 499, IPC describes defamation and Section 500, IPC prescribes its punishment.

Section 499, IPC-

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Section 500, IPC-

Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Under Section 66A, police had to interpret whether the material is defamatory or not, on this basis the police could arrest a person. The Section gave the police sweeping powers. The kind of law we need should be where the police books the case, investigates it and reports it to the court and it will be the court’s discretion in deciding the period of sentence. When the court is completely satisfied that the material is defamatory in nature then only will it pass judgment.

Hence in light of the above situation, there is a need that the legislature must come up with an alternative to Section 66A to ensure that a person enjoys his fundamental right to speech and at the same time, understands the responsibilities attached to it.

[1] http://www.firstpost.com/india/victory-for-free-speech-as-sc-strikes-down-section-66a-of-it-act-heres-all-you-need-to-know-2169787.html

In this blogpost Shivam Anand, a  3^rd year student of DSNLU, Vishakhapatnam, writes about Business going public, pre- requisites for a company to be eligible to opt for IPO and the steps involved in opting for IPO in India

Understanding “Initial Public Offering.”

It can be referred to as the first sale of stock by a private company to the public.[1] A private company is not listed on any exchange and thus it’s difficult to raise capital as it is completely dependent on private funding. The main advantage of a public company over a private company is that they can harness the financial market by selling up their equity and bonds to raise capitals in the case of urgency. A private company is not liable to file disclosure agreements or disclose the financial information which is mandatory in case of a public company as it trades stock on the stock exchange.

Benefits for private companies in issuing IPO:

• Raising Capital- One of the most beneficial aspect of IPO is raising fund through issuing of more stocks. The very purpose of raising capital may vary from the expansion of the company to paying off the existing debts.
• Getting listed on the stock exchange create a sense of trust in the company as a private company has to comply with various disclosure agreements and are answerable to their shareholders thus it helps them to attract various investors like the hedge funds which further helps them in attracting more capital.
• Exit Strategy for venture capitalist- Many a time venture capitalist invest in a private company, which may turn out to be million or billion dollars worth company in future, but it’s not easy to sell shares when a company remains private as compared to a public company. Thus, IPO becomes an exit strategy for such venture capitalist to have access to their wealth.

Disadvantages of issuing IPO

• Disclosures are most important aspects in issuing IPO because it helps the investor to make informed investment decisions. But many a times the information or disclosures provided in the IPO prospectus may not be adequate and may be selective disclosure which can be used by the insiders of the company to make money, jeopardizing the public investment.
• The burden of extra cost for the company to look into the accounting, auditing, preparing of Draft Red Herring Prospectus, Also, the burden to keep in account assuring that all the information so provided in the prospectus are true, as strict penalties may be charged by SEBI.

In a recent case, DLF was charged Rs. 85 crores for not disclosing certain material information and facts in its IPO document.[2] In another case, SEBI cleared telecom tower firm Bharti Infratel’s public offer only after adequate disclosures were made in its IPO prospectus to address the issues raised by the market regulator itself and in the complaints received with regard to the offer.[3]

PRE-REQUISITES FOR A COMPANY TO BE ELIGIBLE TO OPT FOR IPO WITH RESPECT TO SECURITIES EXCHANGE BOARD OF INDIA:-

Under SEBI Disclosure and Investor Protection Guidelines 2009, guidelines have been provided that regulate the public issues by unlisted companies. For unlisted companies in order to opt for Initial Public Offerings:

An issuer may make an initial public offer, if:

(a)  They have a net tangible assets of at least three crore rupees in each, of the preceding three full years (of twelve months each), of which not more than fifty percent are held in monetary assets ( A monetary asset is an asset whose value is stated in or convertible into a fixed amount of cash. Thus, the term can be more tightly defined to exclude any assets that cannot be readily converted into cash such as long-term investments or notes receivable[4]) also provided that if more than fifty percent of the net tangible assets are held in monetary assets, the issuer has made firm commitments to utilise such excess monetary assets in its business or project;

(b) it has a track record of distributable profits (which is portion of company’s accumulated realized profits, net of realized losses that are available for dividend distribution) in terms of Section 205 of the Companies Act, 1956 (Section 123 of the Companies Act 2013) which deals with dividends to be declared or paid by a company for any financial year only out of profits, for at least three out of the immediately preceding five years: Provided that extraordinary items shall not be considered for calculating distributable profits;

(c) It has a net worth of at least one crore rupees in each of the preceding three full years

(of twelve months each);

(d) The aggregate of the proposed issue and all previous issues made in the same financial year in terms of issue size does not exceed five times its pre-issue net worth as per the audited balance sheet of the preceding financial year;

(e) If it has changed its name within the last one year, at least fifty percent of the revenue

for the preceding one full year has been earned by it from the activity indicated by the new name.[5]

STEPS INVOLVED TO OPT FOR IPO

The major steps for Initial Public Offering(IPO) are of given below in brief:-

• Appointing a Merchant Bank:-

A bank that deals with international finance, long term loans for companies and underwriting. These banks do not provide regular banking services to the general public. It should have valid SEBI registration to be an eligible merchant banker. There are other intermediaries such as registrar to the issue who provides administrative support to issue process, bankers to the issue who do a collection of application forms and money and broker to the issue who provide marketing support, underwriting support and help with the investors.

• Registration of Offer Documents

For registration, 10 copies of the draft prospectus should be filed with SEBI. The draft prospectus filed is treated as a public document. Any amendments to be made in the prospectus should be done within 21 days of filing the offer document. Thereafter the offer document is deemed to have been cleared by SEBI.[6]

• Marketing of issue:-

Proper evaluation of timing of issue should be done. Many a time during recession public would be unwilling to invest in the IPO so it may be a business of loss for the company.

• Other Activities

Last but not the least after the closure of the subscription list, the merchant banker should inform, within 3 days of the closure, whether 90% of the amount has been subscribed or not. If it is not subscribed up to 90%, then the underwriters should bring the shortfall amount within 60 days. In case of over-subscription, the shares should be allotted on a pro-rata basis, and the excess amount should be refunded with interest to the shares holders within 30 days from the date of closure.[7] Also there are several rules and regulation which should be adhered to with respect to disclosures as provided by SEBI. It should be complied with for successful completion of the intial public offering.

CONCLUSION:

With the enhancement of various laws on the basis of making India reach the epitome of “Ease of doing business” rank list of countries IPO for unlisted private companies has become a good option for raising capital. This article focused on the understanding the basics of making your business public and opting for IPO.

[1] http://www.investopedia.com/

[2] http://www.blog.sanasecurities.com/drhp-and-ipo-procedure-in-india/

[3] http://articles.economictimes.indiatimes.com/

[4] http://www.accountingtools.com/monetary-asset

[5] Chapter iii provisions as to public issue, ICDR regulations of SEBI, 2009

[6] www.themanagementor.com/EnlightenmentorAreas/finance/fm/IPOProcess.htm

[7] Ibid. 7. Pg 4

In this blogpost, Mayuri Khandelwal, a student of IInd year, Hidayatullah National Law University, Raipur, writes about the procedure which needs to be followed before filing a complaint against any content which has been broadcasted, and also mentions various forums under which such complaint can be filed.

Media owners aim to drive revenues through sensationalizing content to draw more and more viewers from the buying class of the society. They have self-regulation instead of state control. But a user should know that his powers are not restricted to switching over to another TV channel or tune into another radio station if you find content provoking or inappropriate to be shown on national television. You can legally file a complaint against that media content.

Grounds on which complaint can be filed

1. To file a complaint, the user has to be sure that the content, against which the complaint is being filed, should fall under the following categories of violations:

• Child Abuse: This includes child maltreatment like physical, mental, sexual or emotional abuse of children. Child marriages are also covered under this head.
• Violence against Women: This category deals with offences which are gender specific.
• If the user finds anything which contains anything obscene or nudity or sexual conduct which is not appropriate for children.
• Broadcasting anything which creates superstition in the minds of the viewers.
• Any content which creates a communal disturbance or promotes violence, it can be in the form of any speech, statement or any video. Also, the content which is against the law and order the country.
• Excessive usage of drugs, alcohol and solvent abuse.
• Coarse and offensive language or the content which contains explicit scenes of violence.
• Content which contains criticism of friendly countries.
• Criticizing any particular religion or a particular caste or tribe in the country.

However, it is to be noted that this list is not exhaustive.

2. Then the user needs to record that piece of content which according to him is objectionable; this can be done either electronically or by making notes.
3. Another important thing to be kept in mind is that the user must always note the name of the show in which such objectionable content is being shown with the name of the channel and the date and time of the broadcast.

Time period for filing the complaint

A complaint should be made to the broadcaster, within 7 days from the date of the first broadcast of that particular episode or news or the show, which is broadcasting such content, and the time period shouldn’t exceed more than that.

Procedure for filing the complaint

1. Immediately record the biased segment or message. Note the basic 5W’s: who, where, what, when, why and how. Then write down clear details, also try to describe in detail what was said or shown and in what context. Make sure to write down the correct name of the show, the channel responsible for the segment, along with the exact date and time.
2. Mention the objection first then use a constructive approach for more strategic reasons. A polite and moderate tone projects an image of reason, firmness and seriousness. Try to avoid being emotional and using the words which suggest insults, threats or overreaction. Remember that your main goal is to get a public apology, and prevent further bias and mobilize public support for your viewpoint. Using antagonistic and negative approach often makes people more defensive, and this stops them to take any suggestions or demands for change.
3. Always communicate directly to authority- For practical purposes, you may find it more persuasive and effective to send your complaint to EMCC and also to the concerned channel. And it’s very important that you always keep a copy of your complaint for future references and records.

Various laws applicable on the operation of cable television

In the year 1995, in the famous “Airwaves” case wherein the Hon’ble Supreme Court said that “the broadcasting media should be under the control of the public and distinct from the Government”. But there are certain acts for the regulation of media.

The Cable Television Networks (Regulation) Act 1995- This act aims to provide a basic framework to regulate the operations of cable television broadcast across the Indian Territory. According to this Act, channels on TV and radio are bound to adhere to advertising and programme codes prescribed by the Law. And the non-adherence to the standard codes can lead to legal proceedings under the Criminal Procedure Code.

This Act was further amended in the year 2000, and 2002, to include new developments in broadcast media, such as Direct-To-Home services. Apart from this, The Cinematographic Act, 1952, also gives powers to government nodal agencies to regulate content in films and video productions.

Emcc – ELECTRONIC MEDIA MONITORING CENTER

EMMC has the authority to monitor broadcasters and cable operators with reference to the quality of the content they are broadcasting. If something is of mediocre quality and has content that many may find violating the ethics of society, or any guidelines and any Law of the Government of India, then viewers can file a complaint.

Bccc – broadcasting content complaints council

Broadcasting Content Complaints Council (BCCC) is the self-regulatory body for non-news, general entertainment channels (GECs) set up by the Indian Broadcasting Foundation (IBF) in consultation with the Ministry of Information & Broadcasting (MIB). BCCC has so far, issued ten advisories relating to the necessary restraint on the content of television shows. The advisories issued by the committee headed by Justice AP Shah are Portrayal of women, Treatment and Sexualisation of children along with their health and safety, Telecast of award functions, Treatment of animals/wildlife, TV comedy shows, Telecast of content on children’s or cartoon channels, Telecast of content sensitive to minorities and Showing acid attacks on TV.

News Broadcaster Association (NBA)

This is another agency which seeks consumer complaints against unlawful reporting. It is an industry consortium for news broadcast channels and aims to promote self-regulation in news reporting. It mainly deals with the news channels.

Zee broadcasting

Zee Corp. has taken an initiative under which any complaint relating to the content of TV channels of Zee Media Corporation Ltd can be registered under the Code of Ethics & Broadcasting Standards and News Broadcasting Standards (Disputes Redressal) Regulations of News Broadcasters Association (NBA) to the person appointed by the Company[1].

There are some complaints registered against TV shows like:-

• Jodha Akbar telecasted by Zee TV;
• Nach Baliye 7 telecasted by Star Plus
• Balika Vadhu telecasted by Colors TV.

In April last year, the Council had even issued an advisory to all channels asking them to ‘refrain from airing any content that may amount to misuse or wrong depiction of the national flag, national emblem, national anthem and map of India’. The body has sent the advisory to all the channels and reiterated the points stated in the document.

Guidelines one can refer to while filing a complaint against a TV show or NEWS channel

• Self- Regulatory Content Guidelines for non-news and current affairs television channels.[2] The guideline can be accessed at http://www.ibfindia.com/sites/default/files/pdf/Self%20Regulatory%20Guidelines%20for%20non-news%20%26%20current%20affairs%20programmes.pdf

• A Guide to the Complaints Process of the News Broadcasting Standards Authority[3] (NBA).The guidelines can be accessed at http://nbanewdelhi.com/pdf/final/NBA_Viewers-and-Complaints_Guide_English.pdf
• Guidelines to shield children on television[4]

Though it is the responsibility of the Government to regulate the electronic media but ultimately viewers play a very significant role in regulating the media and this can be done by raising their voices which will ultimately benefit the society and secure our values and ethics.

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/joinchat/J_0YrBa4IBSHdpuTfQO_sA

[1] http://zeenews.india.com/disputes.html

[2] http://www.ibfindia.com/

[3] http://www.nbanewdelhi.com/

[4] http://www.telegraphindia.com/

In this blogpost, Haridya Iyengar, a student of IIIrd year, Jindal Global Law School, makes a critical analysis of the NJAC Judgment and the need to introduce a more transparent system unlike the collegiums system which has its own flaws.   

There was recently a landmark judgement which declared the National Judicial Appointment Commission unconstitutional. I will approach two aspects with regards to this judgement. First, whether the collegium system will be revived? Second, whether the NJAC violates the basic structure of the constitution?

Doctrine of Revival

When an ordinary statute is repealed, it means that the statute never existed in the first place. Therefore, when an amendment is struck down it does not revive the pre-amendment version of the act. However, there are three exceptions to this rule which are collectively known as the “doctrine of revival”.

The first exception is when an act is struck down due to legislative incompetence. An act is said to lack legislative competence when it is not within the purview of the constitutional framework. In such instances, the amending act is considered to be “still born” or not to have come into existence.

The second exception is when an act violates fundamental rights under the Constitution.

The third exception is when an amendment is struck down because it violates the basic structure of the Constitution. This exception was first seen in the Keshavananda Bharati case. The Supreme Court held that the Parliament is barred by Article 368 of the Constitution from altering the basic structure and framework of the Constitution[1]. Therefore even if an amendment act violates the basic structure of the constitution and not just a specific provision, it will be held to have never come into existence.

The court held that the NJAC violates the basic structure of the Constitution so, Article 124 as it stood prior to the amendment will be restored. In Keshavananda Bharati case, it was held that if a constitutional amendment is invalid, then the pre-amendment provision would revive.

Key Holdings in the Judgement

The key holding of the majority are – First, judicial appointment is the basic facet of judicial independence which is a part of the basic structure. Second, judicial primacy during the selection process is also a part of the basic structure. Third, the collegium allows for executive participation while maintaining judicial primacy through the collegium. Finally, the NJAC violates the basic structure by doing away with judicial primacy through its veto provisions.

It also held that judicial independence can only be achieved when there are institutional safeguards to limit outside influence. This was due to the discomfort the court felt with political appointees charged with the task of appointing ‘committed’ judges. There was also the concern that the statute stipulated there would be no recommendation if any two persons disagreed with the appointment. However, the court did make it clear that while judicial primacy and judicial independence are vital in the appointment process, the collegium system is not. Therefore, another system can be placed as long as it complies with the principles set out in the judgement. The majority also mentioned how the civil society can be included in the appointment procedure through a non-binding consultation procedure.

Justice Khehar described the collegium system of appointment as an unhealthy practice. The dissenting opinion suggested presenting a list of candidates for each of the two nominees to a vote of the judges in the Supreme Court. This was to prevent a bipartisan compromise between the political parties.

Opposing Arguments

It has been argued that NJAC does not affect the independence of the judiciary. It must be noted that the judgement never explained why judges controlling the judicial appointment is a necessary component of judicial independence. Furthermore, the court assumes that judicial appointment affects judicial independence. This assumption rests on a narrow definition of judicial independence.

In other democracies, political figures control judicial independence with no detriment to judicial independence. In the United Kingdom, the President and the Deputy President sit on behalf of the Supreme Court, but the Lord Chancellor must approve any candidate recommended by the commission. In the United States, federal judges are appointed by the President with the consultation of the Senate. In Canada, the Governor-General is empowered by the Constitution with consultation from the Privy Council. In South Africa, the Judicial Service Commission recommends judicial nominees for the President who, after consultation with the Chief Justice makes the final appointment. This shows that none of these countries feel that the collegium system is essential to have an independent judiciary. They strike a balance between the legislative, executive and judicial branch during the selection process. The court held that judicial independence can only be achieved without outside influences. However, judicial independence is more likely to emerge when there is a consultative process of selection. Since this involves different and many times competing institutional interests.

There is also an issue of the definition of “independence of judiciary”, taken by the court in the NJAC judgement. The definition does not take into account the external pressure and bias after judges have been selected. So, even the most robust judicial selection process will not guarantee impartial judgement when deciding a case. It makes little difference whether the NJAC or the collegium system selects judges if they lack the temperament to issue impartial and legally sound decisions.[2]

The biggest issue in this judgement is that the Supreme Court casts aside the standard process of constitutional review. The court usually follows three stage process – First stage, it decides whether or not a law is valid when ordinarily interpreted. Second stage, it considers whether it can be interpreted in compliance with constitutional requirements. This is to give the court flexibility of protecting the Constitution while limiting the exercise of democratic power as little as possible. Third stage, if the law cannot be so interpreted, it is struck down. However, in the present judgement the court jumped directly from the first stage to the last. The court could have tackled many concerns if it had proceeded to the second stage. For instance, it could read down the veto power to apply only to judges of the NJAC. It could have also conferred veto power on the Chief Justice while appointing an ‘eminent person’.[3] However, the court failed to do so.

Conclusion

The Supreme Court, therefore, needs to move beyond the institutional formulation of judicial independence. It should focus on creating a well-qualified pool of judges who will produce independent judgements regardless of the selection procedure.

[1] Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461

[2] Rehan Abeyratne, Judicial Supremacy, not Independence, Upheld in NJAC Judgment, Int’l J. Const. L. Blog, Oct. 23, 2015, at: http://www.iconnectblog.com/2015/10/judicial-supremacy-not-independence-upheld-in-njac-judgment

[3] Chintan Chandrachud, Collaboration, Not Confrontation:  The Indian Supreme Court on Judicial Appointments, Int’l J. Const. L. Blog, Oct. 16, 2015, at: http://www.iconnectblog.com/2015/10/collaboration-not-confrontation-the-indian-supreme-court-on-judicial-appointments

In this blogpost, Apoorv Singh, Student, NALSAR, Hyderabad, writes about the problems that are being faced by industries, despite there being the MSMED Act to tackle such problems, and further suggests as to what steps can the Government Authorities take to get the Act implemented in its true essence.

The central government is planning to introduce ‘Framework for Revival and Rehabilitation of MSMEs’ due to the critical condition of the industry, but before that let’s look at some of the provisions of the Micro, Small And Medium Enterprises Development Act, 2006(hereinafter referred as MSMED Act), that were introduced long ago but there is non-compliance by the state and due to this inactiveness of many State Governments and Union Territories these industries are suffering from delayed payment problems which has been their biggest challenge. If the MSMED Act’s provision for setting up facilitation council was duly followed, then the industries would not have fallen sick.

The Act and the industries under MSME

The MSMED Act lays down a lot of rules for the welfare and protection of these industries. There are a lot of facilities provided to these industries in the Act. If we look into the brighter side of the Act, we can find some really good schemes that provided MSME with the kind of support that they actually need for their survival in the competitive world. In order to understand the provisions of the act, and to penetrate further into the discussion as to how the state government delayed in implementing certain provisions of the act, we need to understand the definition of MSME industries.

The Government of India has enacted the MSMED Act, 2006, under which the definition of micro, small and medium enterprise is different for industries involved in the production of goods and the industries that are involved in the production of services.

• Enterprises engaged in the manufacture or production, processing or preservation of goods as specified below a micro enterprise is an enterprise where investment in plant and machinery does not exceed Rs. 25 lakh;
• A small enterprise is an enterprise where the investment in plant and machinery is more than Rs. 25 lakh but does not exceed Rs. 5 crore;
• A medium enterprise is an enterprise where the investment in plant and machinery is more than Rs.5 crore but does not exceed Rs.10 crore.

In the above-mentioned enterprises, investment in plant and machinery is the original cost excluding land and building and the items specified by the Ministry of Small Scale Industries.

 Enterprises engaged in providing or rendering services and whose investment in equipment (original cost excluding land and building and furniture, fittings and other items) not directly related to the service rendered or as may be notified under the MSMED Act, 2006 are specified below.

• A micro enterprise is an enterprise where the investment in equipment does not exceed Rs. 10 lakh;
• A small enterprise is an enterprise where the investment in equipment is more than Rs.10 lakh but does not exceed Rs. 2 crores;
• A medium enterprise is an enterprise where the investment in equipment is more than Rs. 2 crores but does not exceed Rs. 5 crore.

 Non- usage of Micro and small enterprises facilitation council

The MSMED (Micro, Small and Medium Enterprise Development) Act by Ministry of Law and Justice, under Chapter V Section 18 (1), lays down the setting up of facilitation councils in cases, where the dispute is regarding the amount due for any goods supplied or services rendered by the supplier. The requirement is that the supplier should come within the jurisdiction of the court, and the buyer can be anywhere in India. The facilitation council’s main aim was to provide Alternative Dispute Resolution. The courts also do not have the power to entertain any of the appeals from the facilitation council unless the appellant has paid 75 percent of the amount as ordered by the council.

The idea of setting up this arbitration council was to facilitate trade and to bring in a body that can resolve issues of these industries so that they can function properly. The reason behind this is to prevent these industries from being subjected to prolonged court proceedings which require a considerable amount of money, and these industries do not usually have such amount. According to the data available on the website of MSME, there are not even 10 States where these facilitation centre are functioning properly. There are some states where there are no Micro and Small Enterprises facilitation council. In states where it is functioning, like Kerala and Uttar Pradesh, there are a large number of cases which are registered every month and are simultaneously disposed of in a large number. So this raises a serious question that if these facilitation councils are proving to be successful then why the other states are not implementing the rule of setting up facilitation council to arbitrate the matter between the supplier and the buyer. According to the data present on MSME website, there are a number of cases that are registered in the facilitation council in the state of Uttar Pradesh whereas states like Gujarat have no complaints registered in the month.  The reason cannot be that there are no disputes it is probably that the facilitation councils are not working properly.

The MSME sector has over 5 lakh sick units, according to a report by the RBI.[1] This clearly indicates the type of difficulty the industry is facing. As per the data, Gujarat is the second state Uttar Pradesh being the first that has the maximum number of sick MSMEs, but still the cases registered under MSME are insignificant in number. In May this year, the Ministry of MSME has already notified a framework, but to what extent these would be implemented is a big question. According to this report, the major problem faced by the MSME industry is delayed payment. To deal with this problem, the MSME ministry came up with the idea of setting up facilitation council so that these small traders get their payment fast. This provision was made to facilitate the payment to MSME. The central government has to follow up timely and coordinate with the state government to monitor that whether or not the state is disposing the cases in time. Developed states like Gujarat and Delhi have not implemented this facilitation reform, and the Central Government has also not taken any appropriate steps to ensure that the states comply with the provisions of MSME.

The MSME industry contributes around 8% of the GDP of the country and can contribute even more if they are taken care of by the government, but if this situation prevails that is conflicts between the buyer and seller and delayed payments the industries will not be able to cope-up and would be forced to shut down.

[1] Provisional data compiled by RBI in March 2015

In this blogpost, Priyanka Kansara, a law student from National Law University, Jodhpur writes on the applicability of civil procedure code 1908 in arbitration & conciliation act 1996.

Aim of the Arbitration Law in India

To attract the confidence of Foreign Business Institutions and to enable the parties to resolve the matter out of the Court are the key factors for the Arbitration Law in India. The importance of Arbitration Law was also mentioned in the case of Konkan Railway Corporation vs. Mehul Constructions Co.[1] That,

“ to attract confidence of International Mercantile Community and the growing volume of India’s trade and commercial relationship with the rest of the World after the new Liberalization Policy of the Government, Indian Parliament was persuaded to enact Arbitration and Conciliation Act in 1996 (hereinafter the Act 1996) in UNCITRAL Model. The Arbitration Law endeavours to settle the dispute amicably by negotiating between the parties.”

Relationship between Civil Procedure Code and Arbitration Law

It is the general perception that the Arbitration Law is a separate Law and complete in itself, but the Civil Procedure Code is applicable in the Arbitration Matters referred before the Civil Courts under the Arbitration and Conciliation Act 1996.

Section 19 of the Act 1996 states that Arbitration Tribunal shall not be bound by the Civil Procedure Code 1908 (hereinafter the Code 1908) or the Indian Evidence Act.

However, Civil Procedure Code provides an exception to Section 19 of the act. Section 39 (2) of the act, states that on the refusal by the Arbitration Tribunal to deliver the award except on payment of the costs demanded by it, the court may, on an application in this behalf, order that the arbitral tribunal shall deliver the arbitral award to the applicant, on payment into court by the applicant of the costs demanded, and shall, after such inquiry, in any, as it thinks fit. The court can, further order that out of the money so paid into Court there shall be paid to the arbitral tribunal by way of costs such sum as the Court may consider reasonable and that the balance of the money, if any, shall be refunded to the applicant; though this is not the only exception. For the conduct of Arbitration Proceedings, the parties may agree to make the tribunal rely on specific provisions of the Code.[2] Furthermore, a party may, before, or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court under the provisions of the Code, 1908, for certain matters; such as

• for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
• for an interim measure of protection in respect of any of the following matters, namely:

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is a subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the court to be just and convenient, and the court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

Further sub-section (3) of Section 37 of the Act 1996 denies the right to second appeal against the order passed under sub-sections (1) and (2) of the Act, which does not fulfil the objective of section 115 of the Code, 1908.

It was held in the case of Anup kumar Biswas vs. Baul Kumar Biswas[3] that,

Unless a specific provision is provided for a specific procedure to be followed, a normal procedure of a High Court or Forum to which the appeal lies becomes applicable, and the jurisdiction of the Court concerned to deal with such appeal is a procedure under which it is governed, and the same cannot be excluded.

Order 41 rule 11:

The application of Order 41 rule 11 of the Code, 1908 cannot be excluded in respect of an appeal preferred under s. 37 (1) (a) of the Act 1996.

In India, the Code of 1908, governs the execution of decrees[4] whether foreign or domestic. If the award is not performed by the losing party, the successful claimant can enforce it ‘in the same manner as if it were a decree of the court[5] under the CPC. This provision includes the enforcement in the case of Arbitration award also.

In India, the courts do not review the merits of an award in arbitration, unless it is at the request of a party and only if it is under restricted grounds of challenge laid down in the Act 1996.

The Code of 1908, laid down that cases must be encouraged to go in for ADR under section 89(1)[6]. There are various schedules in the Code that places duty on the court to provide for settlement between the parties,

Under the First Schedule, Order XXXII A, Rule 3 a duty is cast upon the courts to make an endeavour to assist the parties in the first instance, in arriving at a settlement in respect of the subject matter of the suit.[7]

The second schedule is related to arbitration in suits while briefly providing arbitration without the intervention of a court. Order I, Rule 1 of the schedule says that where in any suit, all the parties agree that any matter in difference between them shall be referred to arbitration, they may, at any time before judgment is pronounced; apply to the court for an order of reference. This schedule, in a way, supplemented the provisions of the Arbitration Act of 1899. The general principle is unquestionable that the arbitration is governed by the law of the seat of arbitration.[8]

Applicability of Judicial finding and Part I of the Arbitration Act in Arbitration Matters

The provision contained in s 2 (2) of the Act 1996 provides, that part I shall apply where the place of arbitration is in India and does not expressly exclude its applicability to arbitrations held outside India. Subsection (2) of s. 2 contains an inclusive definition and does not exclude the applicability of Part I to those arbitrations which are not being held in India.[9]

Though in the judgment given by the Supreme Court in case of Bharat Aluminium Corporation[10], the Court has reversed the ratio given in the case of Bhatia Case[11]; it was clearly stated in the former case that, ‘most importantly, these findings of the Supreme Court are applicable only to arbitration agreements executed after 6 September 2012. Thus all disputes pursuant to arbitration agreement entered into up to 6 September 2012 shall be decided by old precedents irrespective of fact that according to the Supreme Court such rulings were incorrect and have been reversed.’

It was also held in the same case that no interim injunction simplicitor would be maintainable in India on the basis of an International Commercial Arbitration with a seat outside India.

Conclusion

The provisions of part I of the Act, deals with all the arbitral proceedings including International Commercial Arbitration. The parties are bound by these provisions unless they  want to exclude the same. It would be necessary for them to expressly or impliedly mention such in the contract

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[1] 2000 (7) SCC 201.

[2] Section 19 (2), Arbitration and Conciliation Act, 1996 (hereinafter the IACA 1996).

[3] (2004) 1 Arb LR 183.

[4] Saurabh Kalani v Tata Finance Ltd., 2003 (Supp) Arb LR 217, 238 (Bom).

[5] The IACA, 1996, § 36.

[6] The Code of Civil  Procedure (Amendment) Act, 2002 Act N. 22 OF 2002 (May 23, 2002) (hereinafter the CPC 1908).

[7] O. XXXII A r. 3, the CPC 1908.

[8] Brace of Daoune Wind Farm vs. Alfred McAlpine Business Services,  [2008] EWHC 426 (TCC); the Court also referred the case in Shashoua vs. Sharma  (2009) EWHC 95.

[8] Bhatia Trading vs. Bulk S A& Anr., (2002) 4 SCC 105

[9] Dominant offset . Ltd. vs. Adamovske Strajirny AS, (1997) 68 DLT 157

[10]Civil Appeal No. 7019 of 2005 (SC); (2012) 9 SCC 552.

[11].Supra Note 8.