3 Reasons Why A Lawyer Needs To Understand The Client’s Business

By

-

October 4, 2015

Top 3 Reasons Why A Lawyer Needs To Understand The Client's Business Strategy.

Let’s say you are one of the lucky lawyers who is consulted by actual businessmen who make money. Lucky because not all lawyers can independently generate business. Only some do.

Smart businessmen will usually come before they get into trouble – they will also pay better because they care more about protecting their business than saving a bit of money by going to an ineffective lawyer. They can also afford to pay better, as they take good care of their booming business and do not have to pay out big-buck judgment day compensations and/or bribes here and there (we certainly hope so).

They can also focus on their actual business rather than running after ten regulatory bodies, banks and investors trying to save their neck for non-compliances. Those are the clean, smart, focused, well paying sophisticated entrepreneurs – every lawyer’s dream clientèle. If you see them, help them with everything you have. An important thing to note here: entrepreneurs are mostly frustrated after initially trying to work with a majority of lawyers and now stay miles away from the average Indian lawyer. They use their trusted networks to find the ones who understand their business and provide startup friendly services.

I know most of my readers are from sophisticated law schools, some of you are fancy mooters and great debaters, and maybe toppers read this blog too? Well, how many of you understand the basics of business? Even the simplest concepts like revenue models discounted cash flow, burn rate, or project management is not understood! Talk about vocational studies – despite all your knowledge of takeover code and contract act – you can’t even join in a conversation between a couple of new age (or old age) CEOs talking about their business strategy.

To top that, business models and processes have changed like crazy. The new age businesses, where the real growth seems to be happening, carry out very different sort of activities. If you are their lawyer, you’d have to protect them in the course of those businesses. If you don’t understand their world by stepping into their shoes, and you are trying to draft their contracts, End User License Agreement or website usage policy, may the universe have mercy on the soul of your client.

Well, the smart clients figure out quickly – and move on. Even if you are in a firm that advises businessmen, you could be the star just if you knew how businessmen think, what value they seek, and what they want you to understand. If you can speak their language too, then there’s nothing like it.

Traditionally, this is the example cited to explain why lawyers need to understand business strategy. Think of a business making low-cost products, on thin margins, and with lots of competitors – it will need more legal support to protect it from product liability suits, finetuned distributor agreements, strong trademark protection. Think of another business, with a niche and patented product, not much competition – it will spend more on Intellectual Property creation and enforcement.

Here are some reasons why a business lawyer in this day and time can’t afford to not learn how business is done:

Reason #1

Clients don’t trust lawyers who don’t have understanding of their industry – this is why experience is highly valued

(c) Museums Sheffield; Supplied by The Public Catalogue Foundation

He has come to you so that you can protect his business. If you don’t get how this business is done, he will never trust you. Everyone wants God and lawyers to understand things without having said anything. If you don’t know how business is done, you wouldn’t even ask the right questions.

Quick tip: before talking to your client at length about the services he wants, figure out how business is done in his domain or industry. Talk to those who may have some idea. Tell him what he has not thought of or doesn’t know. And remember that every good businessman knows some law.

Reason #2

In the beginning of your career, you need to establish your expertise with every client

Heck, some clients will even take pride in knowing more than you. If you let them get away thinking that way, you are screwed. Your bills are even more screwed.

They need to understand that you are the expert – and the only way they’ll understand this is if you can tell them how the law you are talking about is connected to their business. That is the job of a lawyer – to explain to him how his business realities interact with the law. If you don’t get the business part, you will simply not be effective.

Quick tip: Listen to your client – before paying money to come to you, he or she is most likely to have thought of some strategy. If you don’t get that out first and deal with it, it will come in the way of what you need to do eventually.

Reason 3#

This is how you compete with more experienced lawyers and brand names – by having superior understanding of a niche

There would always be more experienced lawyers. You are competing with them for clients. More experienced lawyers are not preferred because they know more law! The laws are the same for all the lawyers. It is just that because they have been around for long, they understand a business better. People in the business find it easy to work with them.

However, something has changed over time – as I said earlier, there are some very different sort of new age businesses around these days – and even the most of the rest are also being forced to change the way they do things quite rapidly. E-commerce, for example has shaken traditional business models across geography and business size. Many young lawyers are taking advantage of the rapidly changing business scenario, by building in-depth understanding of profitable business niches. We saw this happening in Regulatory Litigation in the last decade. This happened with startups, this is still taking place with cyber crime practice. Now we have law firms specializing in education, and startups focusing just on business registration and licenses! Some lawyers have built empires just by doing labour law compliances.

If you are a young, enterprising lawyer – that’s your market. Take an emerging area and become an expert at that.

5 things we learnt while working on Lawtoons

By

Guest Post

-

October 4, 2015

0

This article was contributed by Kanan Dhru and Kelly Dhru, two lawyer sisters from Ahmedabad who are working on improving law and governance in India for several years now. They started Lawtoons, a cartoon series about the laws of India, with the goal of making laws and individual rights easier to understand and fun to learn for children (how coool is that?!). By illustrating laws in a series of interesting and inspiring comics, they hope to create a more empowered society in a fun way. Over to Kanan and Kelly.

kanan-kelly-dhru-lawtoons — The Dhru sisters, Kanan and Kelly write on iPleaders blog experts’ column

So we have been working on Lawtoons, a comic series to make laws interesting and fun to learn for kids! Since we crowdfunded to make it happen, the project has been growing from strength to strength! We are super excited to be on this innovative and super creative journey and here’s what we think we have learnt along the way!

~ Kanan and Kelly, two sisters who happen to work together, well!

Lesson#1: There is a fundamental need to make laws simplified and fun!

“If ignorance of law is not an excuse, how can our laws be so complex?”

Does law, by its very definition, have to be so technical? Don’t you think that the laws and rules that govern us have to be simple, so that more people can understand them? Is it possible to talk about legal concepts in any manner other than jargon-filled complex black and white letters?

Even before creating Lawtoons, we have been working with school kids to talk to them about the ideas around laws, rights and democracy! We saw how children lite up the moment we used stories and interactive ways to communicate. But the same information, when it was presented to them in their civics curriculum, they found it dull and boring. How tragic it is, that the information that can make our citizens more informed and empowered, is presented in a way that they don’t even like to read?

Lesson#2: Law can be simplified.

We took on the challenge to create children’s stories that can educate kids and grown-ups about fundamental legal concepts, and touch wood, we have succeeded!

Einstein was right – if you can’t simplify, you don’t understand it well enough!

Those wigs and coats that can intimidate, can also create beautiful stories that can touch the hearts of people. Concepts of law emerge out of day-to-day situations, and the nav-rasas can indeed be blended with the Jurisprudentia. And what’s more – there’s a little bit of a magic that we invite you to come and read! 🙂 After all, the language of visuals and graphics has been with us since the very beginning of human civilization!

Lesson#3: It is all about finding a narrative!

And storytelling is way more complex than you can imagine!

It all started from telling a story – a story that was fun and interesting, for the kids of 10 to 14 years! We had to build the characters that they would like and create a world they would love to play in!

We realized that the best way was to talk to people from different disciplines and most importantly, the kids themselves, who can refine our way of looking at the world from the perspective of a 12 year old!

“Who will explain the laws to Pugloo?” “What should the solution be?” “Who is the antagonist anyway?” “Will people understand these nuances?” And the questions were endless, as we went along finding the right narrative.

Realization # 1: stories are all around us. Realization # 2 : For all stories that sound just about great, there’s a compelling story in opposite direction and has an equal force! Realization # 3: As Buddha said, find a middle path! Between thesis and anti-thesis, there is always the synthesis!

Lesson#4: Cartoonists and illustrators live in a world of their own!

And we love working with them… or we love who we are when we work with them!

Lawtoons was our entry into the world of comics and animation! We did our background readings – looking up comics from different parts of the world, it saw us attending festivals to be able to tell what makes a good graphic novel to even spending time discussing the very idea of what is a ‘comic’, has changed us so much!

We’ve had so much fun getting our right brains working overtime! The creative minds working with us have exposed us to an alternative way of looking at life, to be correct!

During the process of creating Lawtoons, one and a half of the two of us have realised that she is more of an artist than a lawyer! And as Frost said, that has made all the difference.

Lesson#5: When you are working on a good cause, people will support you!

crowdfunding success — Look at all the crowdfunding they got!

“Sometimes I’ve believed in as many as six impossible things before breakfast”

And for Lawtoons, it has been incredible to see all of them come alive! What began with a simple idea started getting great support from people all around us. Be it in the form of design support from NID to the media support to even encouragement from beyond borders to replicate our work in their local languages! And to top it all, the overwhelming response to the crowdfunding campaigns to make the very idea possible has honestly, kept the khushi ke aansoo (tears of joy) rolling down our cheeks!

Every time, almost every time, the very mention of our work on Lawtoons got the heads nodding! The statements like: “Oh this is extremely important work” or “Children must know what their rights are and what better way than cartoons!” or “Can elders read Lawtoons too?” constantly make us humble and make us realise how powerful the medium of comics is to communicate the essential knowledge of law!

How to prepare for a law firm interview

By

Abhyudaya

-

October 3, 2015

1

Nervous About Day Zero? Five Tools For Turbocharging Your Law Firm Interview Preparation

Is the thought of appearing in a law firm interview on Day Zero making you panic? Are you clueless about what will be asked in a written test or a telephonic interview for a top Indian law firm? There is a lot at stake, since a top tier law firm job could fetch you a pay package of INR 15 lakh upwards in a year, whereas a 3 tier law firm won’t pay more than INR 3 lakh per annum to freshers! Well, don’t worry – now I am going to tell you how to prepare for interviews at top tier law firms and absolutely nail it so that the hiring partners will remember your name for a while!

While most students have a fair amount of time to prepare for their recruitment interviews or written tests, they are in a state of mental frenzy, tension and agony all the time. Irrespective of how much time you spend preparing, somehow the anxiety never abates until the interview is over. The reason this happens is probably because many students do not realize what to prepare, and when they do realize it, they are completely lost with respect to how to prepare. The necessary mix for success appears to be scattered in corporate law books, news articles and a myriad set of regulatory law, all of which is extremely difficult to fathom all at once.

What many students often do not realize is –

There are a finite number of tools, accessible to all, which can help you learn the necessary information for success in a law firm interview.
This post mentions four tools you can use to give a quick power boost to your interview preparation.

#1 – Master Circulars from RBI

Banking and financial activity in India is very heavily regulated by the Reserve Bank of India (RBI). As a corporate lawyer you will often be referring to regulations, circulars, notifications and guidelines issued by RBI on various banking-related issues – situations where you are required to refer to the Banking Regulation Act or the Reserve Bank of India Act will be very few.

Tracing various policy developments on an issue through numerous circulars and notifications of the RBI can be a tedious task – to simplify this exercise, RBI releases consolidated instruments numerous banking-law related issues on an annual basis. These are called “Master Circulars” and contain a coherent collection of RBI’s directions on specific topics. The master circulars are available on the following link:

http://mastercirculars.rbi.org.in

The most important master circulars to read are:

Master Circular on Foreign Investment in India (see here)
This is extremely useful (along with the FDI Policy, see below) while dealing with investment and M&A transactions, which are the bread and butter of law firms.

Master Circular on External Commercial Borrowings and Trade Credits (see here) This is extremely useful while dealing with foreign loan transactions (a lawyer working in the “Banking and Finance” practice in a law firm needs to know this inside out).
Master Circular on Direct Investment by Residents in Joint Venture (JV)/ Wholly Owned Subsidiary (WOS) Abroad (see here)
This is extremely useful while dealing with overseas investments made by Indian companies, a trend which is increasing with Indian companies investing in or acquiring foreign businesses.

#2 – Website of the Department of Industrial Policy and Promotion

The Department of Industrial Policy and Promotion (DIPP) is responsible for releasing the regulatory policy (and updates) pertaining to foreign direct investment in India. The Consolidated FDI Policy (which is now released once every year) released by the DIPP is a commercial lawyer’s bible to M&A and investment-related transactions (the current FDI Policy for 2013 is available here. Any subsequent developments to the policy in a particular year are covered by way of “Press Notes”. For example, the developments on FDI in retail were covered under various Press Notes in 2012 (links to the Press Notes can be obtained from the DIPP website.

#3 – Regulations on SEBI website

Capital markets, M&A and the General Corporate practice in a law firm frequently deal with various SEBI Regulations from time to time. The two most commonly used regulations are the Issue of Capital and Disclosure Requirements Regulations (you can at least go through the definitions) and the Takeover Regulations.

For advanced reading: Other regulations you could go through are the Mutual Funds Regulations, Stock Brokers and Sub-Brokers Regulations, Alternative Investment Funds Regulations and the Investment Advisers Regulations.

#4 – RSS feed updates from RBI and SEBI

Once you know the basics, how can you stay updated on the latest developments in banking and securities laws?

The best way is to subscribe to RSS feeds in a reader. Subscribing to RSS feeds also enables you to follow issues as they evolve and hence develop a deeper understanding, which is much more helpful as compared to last minute preparation. The feed addresses for updates from RBI and SEBI are listed below:

Latest press releases from RBI – http://www.rbi.org.in/pressreleases_rss.xml
Latest notifications from RBI – http://www.rbi.org.in/notifications_rss.xml
Latest updates from SEBI – http://www.sebi.gov.in/cms/sebi_data/sebirss.xml
Copy-paste the following links into your reader – you can use Google Reader till June 30, 2013, after which it will no longer be available as Google plans to withdraw the application.

#5 – The Holy Trinity of blogs and websites for business law enthusiasts in India

Knowledge of international (and Indian) M&A, capital markets and financial transactions can be quite important – if used correctly in an interview, it can demonstrate awareness of contemporary business developments and a deeper understanding of the issues at hand.

Where should you look for the important developments? Reading business newspapers (‘pink newspapers’) can be quite inefficient – While business newspapers are useful for senior officers and industry professionals, an uninitiated law student may need to track them continuously for months before he or she can start making sense of things in a way that is useful for a corporate lawyer. The internet is fairly unstructured, and not knowing what to look for or where to look is one of the biggest problems faced by law students.

Fortunately, there is a simpler and more organized method of acquiring relevant knowledge of commercial developments – all you need to do is to follow 3 websites.

1. The New York Times Deal Book (for international transactions)

Knowledge about contemporary international transactions – the scale, number and variety of the transactions can enable you to substantiate the motives of commercial actors and regulators with appropriate examples in an interview. The New York Times DealBook enables you to know about the latest cross-border M&A transactions in US, EU and the UK in an instant. Some of the descriptions are extremely simple and easy to grasp. It is also my personal favourite for cross-border transactional information.

2. Moneycontrol (for Indian commercial developments)

Moneycontrol is a great site for updating yourself on news pertaining to commercial and regulatory developments (in commercial law) in India. It has a special component, called The Firm (also aired on television) which essentially contains interviews with senior partners of India’s largest law firms and general counsels of blue-chips on regulatory developments affecting businesses. Unless you have relatives in multiple law firms or a journalist covering legal news on a daily basis, The Firm is a great place to read about the impact that specific regulatory developments have had on businesses.

3. Indian Corporate Law

So far, what was demonstrated was the ability to understand and keep track of regulatory developments. What about displaying some analytical skills? How can you demonstrate the ability to (constructively) argue and think as a lawyer? How can you show depth in your understanding of commercial laws (not constitutional law)? Are these skills important? Many students are aware of latest developments, and some can analyse constitutional law or criminal law provisions fairly well. However, when it comes to framing an argument on a provision in commercial law (say, the Companies Act or the Income Tax Act), most students flounder, which is largely owing to lack of initiation and prior training in the subjects. While the domain “The Firm” of Moneycontrol contains a practical analysis, the Indian Corporate Law blog is a great way to start sharpening your ability to analyse and understand provisions of commercial law.

Optimizing your usage of Indian Corporate Law

The Indian Corporate Law Blog frequently contains a critique of various judgments and orders of regulatory authorities. The posts on the Indian Corporate Law blog can be fairly technical (if you are uninitiated) and often law students stop following the blog systematically very soon. Hence, knowing how to use the blog is very important.

At a law firm, you will usually NOT engage in exercises which debate the quality of judgments/ orders, but will be more considered about the existing position of law on a particular issue, and whether there is consistency in the legal position in different parts of the country. For this inquiry, I recommend using the Indian Corporate Law blog for information about updates and new developments. You need not follow each and every line of argument in a post. After reading the article, it may make sense to read the actual case, or some simpler articles to understand the basics. You may read the post in greater detail (and you could even participate in discussions with authors, who are all very helpful) if you feel interested, but it is not necessary from the point of view of interview preparation.

How much preparation time do you need? What all do you need to learn?

Unfortunately, utilizing the tools mentioned above effectively is a very different task from, say, reading the whole of Avtar Singh, because the information on the New York Times DealBook blog is not easily measurable in finite terms. At the same time, you should remember that you are using the tools not to learn about each and every transaction that has taken place in the world, but ‘to get a hang of’ commercial transactions, which is a demonstrable attribute in an interview. If you start reading materials on the above tools carefully, you should start noticing a significant difference in your understanding of commercial law in as little as two weeks.

Did you find this article helpful? If yes, you can share it with your friends.

Do you wish to share stories of how you prepared for a law firm interview?

Is there anything else you would like us to address on this blog with reference to interview preparation?

You are encouraged to leave your comments on the same below.

Also, don’t forget to sign up on this blog for regular legal and career updates that you can read in your mailbox. Make sure you drag and drop the first mail you receive from us from promotions (it is not promotion!) to primary inbox and even mark it as important, to ensure you get all the awesome information where you will actually read it and use it.

All the best!

The Human DNA Profiling Bill

By

Guest Post

-

October 3, 2015

0

This article is written by Anushka, a second year BBA LLB student from Delhi Metropolitan Education,IP University

“DNA is like a computer program but far, far more advanced than any software ever created.” (Bill Gates)

How is DNA profiling done?

Deoxyribonucleic acid (DNA) is present in all living organisms and contains genetic information. It is the main constituent of chromosomes and owing to this, every person has a different identity; every single person is different from each other because of the DNA present in their blood. DNA not only creates a person’s identity but is also a great tool for solving cases and convicting criminals for their wrong doings. The STR (short tandem repeat) technique can make a DNA profile using saliva on a glass etc. The following steps show how it works:

Collecting the sample: Scientists extract the DNA from the forensic samples like saliva, hair blood or semen.

Multiplying DNA segments: Scientists then make more replicas of the DNA sample collected from the tiny one. It is done using a special enzyme that binds to the DNA.

Fragmentation: During the process, makers add 13 areas of STRs which are later analyzed. Then a machine called electrophoresis cuts DNA into fragments at specific base points.

Genetic code: DNA is a double helix structure in which the backbone is made of sugar and phosphate and information is stored as a code made up of four chemical bases: adenine (A), guanine (G), cytosine (C) and thymine (T). The genetic code is made up of the sequence of the bases on the two strands.[1]

STR markers: Human DNA consist about 3 billion bases, and more than 99% of those DNA are the same in all people. There are certain areas in DNA with short repeat units called STRs. The number of STRs are different in different people, and these are the areas that are analyzed to match DNA profiles.

Match: Based on the picture produced by a computer, the repetition of patterns is detected and samples are finally matched.

DNA profiling can be a very useful tool, but if it gets misused it can create severe problems.

Features of DNA Profiling Bill

Human DNA Profiling Bill seeks to create a National DNA Data Bank in India which would be administered by a DNA database manager. Every data bank will have six categories under which it will work. These are crime scene index, suspects’ index, offenders’ index, missing persons’ index, decreased persons’ index, volunteers’ index, and such other DNA indices as may be specified by regulations made by the Board.[2] The profiling board has the power to include more categories.

An index of individuals whose relatives have gone missing will be created to help them and these would be distinct from the index of volunteers whose DNA profiles are used for further knowledge of marker allete frequencies in different Indian sub populations. The first index would be of volunteers for the specific purpose of identifying missing individuals and unidentified bodies. The second index would be created for research underlying the effective application of DNA profiling technology and this includes DNA profiling in cases relating to murder, miscarriage (abortion), dowry death, sexual assault and paternity suits. DNA profiles of individuals can be shared with other countries for matters related to terrorism, narcotics, illegal human organ sale etc.

The bill provides for storing the DNA data in national and state banks; however, there exist possibilities of leakage and misuse. It is also possible for the data to be used for non-forensic purposes and this can lead to deciphering information such as medical history, ancestry and family history. The criminal section has a column for “caste” which could lead to profiling of certain population groups and castes. The government has biometric information of all Indians in the UID database. If the government in the future decides to link the UID database with DNA database, the government and its agencies would have access to all the personal information of millions of individuals. The second index that would be created for research underlying effective application of DNA human technology, the samples of citizen that would be collected for this purpose need the consent of the individuals. Without the proper consent it would be a gross violation to privacy and human rights.

Why there is a need for DNA profiling?

DNA profiling has been used widely around the world. More than 60 countries have built a DNA database, which stores the DNA of convicted criminals. It not only helps to deter repeat offenders but also improves the accuracy. In most of the countries, DNA data is collected for criminal investigation, but in India, it is collected for additional purposes such as to identify the missing person or unidentified bodies, to solve civil disputes, identification research etc. Such provision allows the government to force the citizens to provide DNA data. When DNA data is collected, the person will also have to provide their name, caste, gender and address. India does not have a limit on how long the DNA of a person would be kept. In the UK, DNA data of a person is stored only for six years. Kuwait enacted a law that makes it mandatory for its citizens and foreign nationals living in the country to provide DNA profiling. If anyone refuses to furnish the request, he or she would be held liable and may be jailed for a term of up to seven years. This means the Indians living there also have to furnish their DNA that would be kept in the government custody which is excessively harsh and severe. It is therefore a violation of privacy and human rights.

How credible is DNA profiling?

When it comes to reliability, there are circumstances that have proved that DNA data may not be reliable. DNA is mostly present in cell nucleus of the body, but it is also found in the cell mitochondria in case of bones and teeth. If a person has had blood transfusion or bone marrow transplant, they will have someone else’s DNA for some time in their body. There are cases where an individual possess multiple genomes. The DNA data recovered from the crime scene sometimes may not be enough to produce a correct match for algorithms. False incrimination can take place when more than one person’s DNA gets mixed and this may result in mislabeling, contamination and wastage of time. For instance, in the Aarushi Talwar murder case, forensic experts failed to remember which samples were collected at the scene of the crime. Additionally, in 1995, the United Kingdom set up its DNA database which carries all the genetic information of anyone who has been arrested. Millions of innocent people were on the board, including a grandmother who didn’t return the ball to the children who kicked it into her garden.[3] DNA profiling had sowed the seeds for success when the first case in the United Kingdom was solved where two girls were found raped and murdered in Nar borough, Leicestershire in 1983 and 1986 (the same person was responsible for both the murders). Alec Jeffreys, who had developed a technique for creating DNA profiles, helped solve the case using his technique which showed that the prime suspect the police had was innocent. Eventually, the murderer was found and his DNA profile matched with the one at murder scene.

DNA profiling in India

India is a densely populated country and taking DNAs of individuals is a very difficult task. The issue that arises is whether the government will be able to protect the privacy of individuals considering the fact that DNA not only helps in criminal investigation but also tells individual personal details such as their medical and ancestor history. In India, it is necessary to have such a database as it may help in stopping frauds such as the voter ID card fraud, ration card fraud etc. In Uttar Pradesh, the state government makes sampling for DNA fingerprinting mandatory in case of dead bodies. India’s Prime Minister Narendra Modi wants to ensure that the technique be used more widely to convict criminals in the country. This shows the seriousness with which the government of India is considering DNA profiling.

In 2007, a draft of Human DNA Profiling Bill was made public and it was followed by criticism from the opposition, NGOs and activists; consequently, it was not introduced in the parliament. Then, the government asked the Department of Biotechnology and Centre of DNA Fingerprinting and Diagnostics (CDFD) Hyderabad, to update the 2007 Bill. In 2010, the Tamil Nadu state government amended the Identification of Prisoners Act, 1920 thereby facilitating a DNA database for prisoners. In 2012, Uttar Pradesh state government made sampling of DNA profiling of dead bodies mandatory. The new version of the Bill was leaked and was sent to various Ministries for their comments and feedback. CBI also wrote a letter to the government to quickly pass the Bill.

Other criticisms of DNA Profiling Bill

The preamble of the Bill states that, ‘DNA analysis of body substances is a powerful technology that makes it possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead with any doubt.’

It may be noted that while some argue that DNA can establish the relationship between two individuals without misleading and also the DNA database will considerably increase the conviction rate, in reality the exact number of accurate convictions result from DNA is unknown, as millions of people will be falsely accused of what they have not done. The Department of Biotechnology’s information for CDFD where it states:

“…The DNA fingerprinting service, given the fact that it has been shown to bring about dramatic increase in the conviction rate, will continue to be in much demand. With the crime burden on the society increasing, more and more requests for DNA fingerprinting are naturally anticipated. For example, starting from just a few cases of DNA fingerprinting per month, CDFD is now handling similar number of cases every day.”[4]

DNA profile is different from DNA sample which can be obtained from bodily substances. A DNA profile is a record made on the basis of DNA samples. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be matched with the existing DNA samples. Matching DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.[5] It should be noted that there is a need for quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridisation of the blot to obtain distinct bands with appropriate control.[6]

DNA profiling has shown its worth in many cases. For example, there is a case of ‘40 year Nazi Hunt’ in which after 40 years of searching for a Nazi prison doctor who escaped from the Allies after World War 2, the police received a tip that Mengele had drowned and was buried in Brazil. DNA samples were taken from the decomposed remains and blood samples from Mengele’s wife and son were used to confirm his identity. Similarly, in another case, after the attack on the World Trade Centre in New York City on 11 September 2001, DNA profiling techniques were used to identify body parts belonging to more than 2000 people who died in the attacks. DNA profiling has also been used for the identification of victims after the tsunami in 2004 and in the 2013 Uttarakhand floods.

Conclusion

In conclusion, India could benefit from having national and state DNA databases. The current draft of the Bill is a step in the right direction, and an improvement from the 2007 DNA Profiling Bill. The 2012 draft draws upon best practices from US and Canada, but it could also take practices from countries like Scotland. When it comes to privacy, the government should take necessary steps to safeguard the privacy of an individual and protect human rights. This can be done by limiting the scope of the DNA database and collect the samples from a crime scene for serious crimes and not petty offences. The DNA sample of an individual should not be kept for more than six years. For research purposes, DNA samples should be collected with the individuals consent and an individual must be given the right to appeal.

[1] http://www.ghr.nlm.nih.gov.in

[2] 2014SCC online SC 1104

[3] http://www.quora.com/Whats-the-DNA-Profiling-Bill-Why-should-or-shouldnt-it-be-passed

[4]Department of Biotechnology. DNA Fingerprinting & Diagnostics, Hyderabad. Available at: http://dbtindia.nic.in/uniquepage.asp?id_pk=12

[5] Section 53 Code of Criminal Procedure, 1973

[6] Pantangi Balarama Venkata Ganesh v. State of A.P (2009)14SCC(cri)190

Central Bureau of Investigation

By

Guest Post

-

October 1, 2015

6

This article is written by Chitransha Mishra. She explains the origin and history of CBI, how it evolved to be the choice of investigation agency, and whether you can get CBI to investigate your case..

So, CBI has again partaken in the investigation of what is currently the most sensational scam in India and Sheena Bora’s murder case. Yes, the scam I am talking about is VYAPAM. Why is it that we always need to call this badass when our local police fail? Why is it that this agency always works on the most talked about cases in the country? How did this agency come into existence? I am sure we didn’t just look at America’s FBI and think “Okay, they’re cool. We definitely need something like this in our country too and it must rhyme.” But most importantly, are they really entitled to interfere in the matters that are not of national interest? Are they permitted to investigate the matters that only concern private parties? Can we, as sufferer s or victims, call them to investigate upon our issues? If yes, how? And what functions do they take up that makes them so special? I think, as a citizen of this country, this is something that each of us should know. For, ignorance isn’t always bliss.

How was CBI created

Let us first discuss what made our country even consider forming such an investigative agency. This takes us back to the time of the Second World War. The Special Police Establishment was formed during the World War II when a huge amount of funds were being used in the war and there emerged astronomic potential of corruption between the officers dealing with the supplies. This gave room for doubts and made the government of India pass an Executive Order in 1941 to form Special Police Establishment under the DIG in the department of war. But, not surprisingly, the corruption and bribery did not see an end and neither did the need for the central government agency to investigate such cases. Therefore, The Delhi Special Police Establishment Act came into force in 1946. The superintendence of SPE was transferred to the Home Department and its functions were broadened to cover all the Departments of the Government of India. It exercised its power over the union territories and could be extended to the states with the consent of the concerned states. The SPE was then put under the charge of the Director of Intelligence Bureau. It was in 1948 that a post of Inspector-General of Police, SPE was created and the agency was placed under his charge. The mighty CBI was named on 1-4-1963 by the Home Ministry of the Government of India (See, Resolution No. 4/31/61-T/MHA). This was done to broaden the concerning fields of investigation like the breach of the Central fiscal laws, frauds in Government Departments and PSUs and other serious crimes. In 1987, two divisions were created in the CBI known as Anti-Corruption Division and Special Crimes division. Due to the enormous workload related to bank frauds and economic offences, a separate Economic Offences wing was created in 1994. Since then, the CBI has three investigation divisions, namely, Anti- Corruption Division, Special Crimes division and Economic Offences Division. So, that’s how the present day CBI came into existence and this is what the agency is in a nutshell.

How does the CBI function

Now, let us move on to how it works; its functionalities and proceedings. They all start with one thing—Complaint. The complaints may come by any means and should shed some light on corruption, malpractices or misconduct on the part of public servant(s). Complaints can come from various sources, be it an administrative authority, intelligence gathered by the CBI and by Police authorities and the complaints received by them, Departmental inspections and stock verification surveys, annual property returns, scrutiny of transactions reported under the conducted rules, routine audit of accounts, audit reports of accounts of government, PSUs and other corporate bodies, reports of parliamentary committees, Public accounts Committee and the Committee on the PUs, Proceedings of the two houses of Parliament. Complaints can be in writing or verbal. Even the news that appears in newspapers or any other media can be considered as a complaint. The Central Vigilance Commission established under the CVC Act, 2003 has been exclusively empowered with the superintendence over the functioning of CBI especially in connection to the offences performed under the Prevention of Corruption Act, 1988 with respect to certain categories of officers mentioned. It is the designated agency of the government to receive such complaints.

Any action that is to be taken upon the complaints depends upon the nature of the complaint. Depending on their nature, it may be ordered for the departmental investigation, it may be ordered to file or drop the complaint without further query, and matter may be handed over to the CBI if the cases are of grave nature.

Three wings of CBI

(I) GOW (General Offences Wing): It looks after cases involving allegations under the Prevention of Corruption Act, 1988, possessing assets more than what your income allows, allegations involving inquiring from the non-official persons or examination of non-governmental records, cases of complicated nature involving questions of law and facts. This department is also entitled to initiate criminal proceedings in certain cases.

(ii) EOW (Economic Offences Wing): It deals with cases that include violation of various economic/ fiscal laws. Bank frauds, financial frauds, and import-export and foreign exchange violations, large-scale smuggling may be included in economic crimes.

(iii) CCIC (Cyber Crimes investigation cell): This wing started functioning smoothly in 2005 and it investigates cybercrimes for they have been increasing day by day and sometimes the nature of such crimes is extremely serious thereby demanding some specialised attention.

The complaints registered are usually transferred to these divisions based on the nature of such complaint.

In fact, they’ve even started investigating the crimes of conventional nature. This includes murder, terrorism, kidnapping etc. This also includes special crimes of sensational homicides, crimes committed by the mafias and the underworld etc.

Can you demand CBI investigation into a matter about which you care?

Now we consider the question previously posed in this article. Are we or are we not entitled to call them for investigation in our personal matters. If yes, how? This takes us back to 2001. On 4^th January, 2001, Abdul Rahman Mondal, along with many workers of a political party had been staying at several party camps set up by their party at Garbeta in Midnapore district of the State of West Bengal. Some of the workers and Abdul decided to go to their homes from one such camp. When they reached Abdul’s house, some men, 50 or 60 in number, attacked them with firearms and explosives, which resulted in many casualties. Abdul managed to escape from the place of occurrence of the heinous attack, hid himself, and witnessed the whole event from where he was hiding. He lodged a written complaint in Garbeta Police Station on 4^th January, 2001 itself but the FIR was registered only on 5^th January, 2001. On 8^th January, Director General of Police, West Bengal ordered CID (Crime Investigation Department) to take over the investigation of the case. A writ petition was filed in High Court of Judicature at Calcutta by the Committee for Protection of Democratic Rights, West Bengal stating that, although 11 persons died that night and 3 months have passed since the incident, yet, except 2 persons, no other person name in the FIR has been arrested and that no serious attempts have been made to identify the victims. In fact, till that time, the police have not been able to find out if the missing persons are dead or alive. They alleged that the police was influenced by the ruling party of the state and were hence compromising with the proper investigation. Their demand was to transfer the case to the Central Bureau of Investigation, an independent agency.

The High Court, after hearing the facts stated above, decided that it had a strong reservation about the state police regarding the impartiality and fairness of the investigation and also, considering the seriousness of the matter, it should be handed over to the CBI. State, aggrieved by the decision of the High Court, asked for special leave to appeal before this Court. The leave was granted in September, 2001. When the matter came up to a two-judge Bench on 8^th November, 2001, it was of the opinion that the matter is of great importance to the public and shall be placed before the Chief Justice of India for the passing of reasonable orders and thereby directing the matter to be placed before a much larger bench. When the matter came before a three-judge bench headed by the Hon’ble Chief Justice of India, they decided to place the matters of this nature before a Constitution Bench. The state counsel appearing on behalf of West Bengal asserted that there is a complete restriction on parliament’s legislative power in ratifying any law allowing police of one state to investigate an offence committed in the other state, without the permission of that state. He also suggested that separation of power between the three organs of the state requires each one of these organs to margin themselves within the areas entrusted to it by the Constitution and not act against the violation or opposite to the spirit of the Constitution. He also pressed that if the parliament was to pass a law that allows police of one state to investigate in the area of other state without its consent, such a law would be invalid. So, the federal structure demanded that the Constitution not be disturbed by doing any such thing. CBI, being an outsider and formed under the DPSE to investigate in the matters related to Delhi and the Union States is considered as a police of another state. Long story short, The Solicitor General of India appearing on behalf of the union government tried to convince the Bench that rights stated under the Constitution are not valid when they are directly in contradiction with a person’s fundamentals rights. Hearing both parties, the Bench came to the following conclusions.

The fundamental rights, stated in part III of the Constitution, are intrinsic and cannot be eliminated by any constitutional and statutory allocation. Any law that abridges or abrogates such rights will infringe the basic structure dogma.
According to Article 21, the state has a duty to impose the human rights of a citizen providing for fair and unbiased investigation against any person accused of a cognizable offence, including its own officers.
A regulation by the High Court, in employ of its jurisdiction under the Article 226 of the Constitution, to the CBI to investigate a cognizable offence stated to have committed under the territory of a state without the consent of that state will neither hit upon the federal structure of the constitute nor will it violate the concept of separation of the powers. The Courts and High Courts have not only the power but an obligation to protect the fundamental rights devotedly.
When the DPSE act itself provides that it can investigate in the issues of another state when subjected to its consent, the court can also exercise its constitutional power of judicial review to direct it to take up the investigation within the jurisdiction of the state. The power of Article 226 of the Constitution cannot be overshadowed by Section 6 of DPSE Act. Also, the power of judicial review in no way infringes the federal structure of the state.

Considering these conclusions, it is established that we can call CBI for investigation in our personal matter when the state police fails to be competent. But we cannot call them for our petty matters and just on the basis of doubt or because we are not impressed by the way our local police are investigating.

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

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

How to incorporate your new business

By

Guest Post

-

October 1, 2015

0

Incorporation Can Kill: The Pros and Cons of Incorporating While Starting Up Your New Business?

My encounters with the start-up community in India has been quite enriching. Most of the people looking to start-up are dreamers, great strategists, good communicators, focussed. The ones that do not understand business initially prove to be quick learners in most cases. Almost all of them give up lucrative jobs to give a shape to their own dreams, to build their own companies. On the other hand, every now and then I come across entrepreneurs with faulty or no planning to protect legal interests of their business, bad business organisation, no understanding of dispute resolution systems.

They either have not thought of tax planning or are under the impression that this is too early to think about tax. Well, hello, it is probably too late! If you incorporate without clear understanding of how your revenue is going to be taxed, probably you are overestimating your revenues by up to 33%. Maybe you can start a partnership or organise the cash flow in such a way that you can save the entire amount from being taxed! And do I need to explain how important that is at a start-up stage?

Well, incorporation is not the first thing that you need to do when you are starting a new company. You may have come up with some sort of a rudimentary business plan, then working out the details over time. If you are bootstrapping, things will naturally remain a bit informal initially. If you are taking funding from someone, probably you already have a business plan in place. In both cases, you need a clear understanding of the nature and consequences of incorporation.

Tip: Don’t incorporate till you start getting some revenue or until you are hitting up investors to raise money. Keep 2 months in hand to incorporate. Much before incorproation, you should get a co-founders agreement in place.

How to go about incorporation: do you need to incorporate as a company?

First of all, not every business needs to be run in the form of a company. There are certain benefits of running a business as a company.First of them is the limited liability of the owners. If the company fails or accumulates unforeseeable debt that it can not pay off from its funds, the same can not be recovered from the shareholders. Liability of a company is not the liability of the shareholders. Shareholders at a maximum may lose their investment in the company, but not more. Compare this to a partnership business. If the business fails and accumulates debt, all of it will be the partner’s personal liability. Debtors will sue the partners directly if they need to.

A company has a legal personality independent of promoter, directors and shareholders

A company is a separate entity from its owners, it can own property, can sue others and be sued in its own name, enables sharing of risk amongst different shareholders at their own comfort level, and the best of all.Change of ownership does not change the existence or business of the company, the new owner just fits into the old shoes. Makes selling easy. The company does not have to renegotiate all its previous contracts like supply contracts etc. with third parties everytime ownership changes.Professional management is another benefit of companies. Ownership and management can be separate in a company. Naturally, everyone who has invested in the company does not get a say in how the company is run.Do these usual benefits of a company make any significant difference for you? For example, if you are planning to carry out a business in an area where the likelihood of legal suits is very high, incorporation is a must. For instance, if you are using an intellectual property that another person may claim to be proprietary, and there may be copyright infringement or patent infringement suits against you, you must start the business in the name of an incorporated company. If you have plans to get venture capital, you must incorporate before you can get the investment.

However, you must also take into account the disadvantages of incorporating. If you incorporate too early and you are not going to raise investment in near future, that can be very damaging to the lifecycle of the business and cause substantial loss of revenues.

Taxation of Companies

Biggest disadvantage will be taxation. The income of the company will be taxed once, and once the money comes to your hand as salary, you shall pay income tax on the same. The corporate taxation rate is very high in India compared to taxation rate applicable to individuals. First the company will be paying 33.99% tax on its profit no matter how much it earns. That means one-third of the profits, if you make any, will go straight out of the companies coffers. While making your business plan, or deciding pricing, have you taken this factor into account? If you are planning to bootstrap this is especially important because you are going to aim to be cash positive!

Taxation on salary of co-founders

Most Start-up entrepreneurs earn from the salary paid by the company to him for his position as a CEO/ manager/ officer/ director of the company. This salary will be subject to further income tax applicable to individuals.
If money is taken out in the form of a dividend, still dividend distribution tax will be applicable on the same. Your earning may not be as high you are expecting to be if you have not considered the tax angle.
3. Also, you shall be taking up a lot of compliance liabilities by incorporating. Compliance is costly and hazardous. You shall inevitably have to hire lawyers and chartered accountants. You shall have to file annual reports and a bunch of other reporting. You shall be on the radar of labour law enforcement agencies of the government. Are you ready to spend time and money on such things? Don’t open a company otherwise.

There is a reason everyone who engages in business doesn’t open a company. Are you going to reach the scale soon that makes incorporation sensible? If scaling up is years away, why waste energy and money in incorporation? Are you bootstrapping? Or planning to raise funds only after you have finished development of a product which is still going to take months? Is what you are doing is actually a consultancy sort of business.

Do you have a good initial funding that can cover legal and compliance costs of making a company? If the answer to any of the last four question is ‘yes’, it may be unwise to start a company right away.

For a start-up company taking venture capital or seed funding, the ideal time to incorporate is as late as possible but just before taking outside funds. For bootstrappers, it is unadvisable to form a company till they reach a large scale of the operation that justifies incorporation. It is possible to reduce compliance costs by opening a Limited Liability Partnership or LLP instead. It may also make sense to organise the business in such a way so that the risky part of the business is incorporated but the relatively riskless part of it, if severable and cash generating, is carried out by individuals or partnerships and is provided as a service to the original company.
A little strategic approach to incorporation can go a long way in saving a lot of money is tax and a lot of time and energy that you can direct towards making of a profitable business.

Competition Commission of India and TRAI – India’s regulators

By

Guest Post

-

October 1, 2015

1

The Dark Secrets of the Recession Revealed - Competition Commission of India

We are republishing this very old post from A First Taste of Law.

This regulator is the guardian of the free-market and protects it from any abusive practices. Naturally, it protects consumer interest, by checking unfair market practices. You can thank the other regulator for the cheap phone calls, cheaper roaming tariffs and the DND service that saves you from being hounded by millions of telemarketers. As government withdrew from the market, it was entrusted with the mighty task of maintaining a semblance of fairness in the free market jungle. Here come two vanguards of twenty-first century India.
Competition Commission of India (CCI)
The formation of the Commission was subject to a constitutional challenge before the Supreme Court, and the Competition Act has become operational in 2009, a good 7 years after its initial enactment. It is modeled along the lines of competition laws of the European Union. Since its constitution, the Competition Commission has never missed a second of action. This post charts out the activity in the nascent field of competition law in

India, as the Competition Commission of India dawns its mantle.

The war of the Stock Exchanges
The CCI has commenced investigation against the National Stock Exchange (NSE) pursuant to a complaint by the MCX Stock Exchange (MCX-SX) when NSE waived its transaction fees on currency derivatives transactions. MCX-SX alleges that this amounts to predatory pricing, that is, selling below cost price in order to reduce or eliminate its competitors.
The IPL Brouhaha
The Indian Premier League (IPL) has clearly been the most important event of the first quarter of this year – it has swallowed its own creator. With the resignation of Lalit Modi and Minister of State for External Affairs – Mr. Shashi Tharoor, who had in the past contested for the post of UN Secretary General, and who has written a lot of interesting books on Indian culture, Competition Commission has also propelled itself into feverish activity in this controversy.
The Government was considering referring the matter to the Commission in respect of bid-rigging for the auction of the Kochi team. Big-rigging is prohibited under competition law, and its disastrous effect is self-evident – when two or more bidders collaborate to keep bid prices in an auction low, a product can never generate its true market price. Of course, it might be alleged by fans of other sports that the Indian market has overhyped and overpriced cricket. Possibly true, but if this stance is maintained for cricket, nothing can be done if in future, there is an auction conducted for another sport – say, an auction of broadcasting rights to TV Channels of Formula One event in New Delhi. That auction would also fetch lower than market price because of bid-rigging, thus harming the promotion of another sport as well.
A lot rests on the Competition Commission, in terms of how it decides to crystallize and apply the relatively general terms of the Competition Act. It will be required to pass a host of sector-specific regulations on various aspects of the law to deal with different categories of anti-competitive prices, much like its European counterpart. Next, the implementation of the law is largely dependent on the skill-sets of the experts it hires. This also justifies the recent rush by Indian law firms to hire foreign qualified professionals who have experience in competition law.
Lifting the veil on Raavan
The Karnataka Film Chamber of Commerce (KFCC), a body whose role is to promote Kannada films, issued a ban against the release of the Hindi and Tamil versions of the movie ‘Raavan’. The reason for the ban was that Reliance Big Entertainment Limited had released it in more theatres than it had previously agreed to, violating KFCC’s norms. The CCI ordered an interim stay of the ban and asked the Director General to commence an investigation into whether the ban was an abuse of dominant position by the KFCC. KFCC approached the High Court against the interim order passed by the Competition Commission, which it later withdrew.

Department of Telecom (DoT) and Telecom Regulatory Authority of India (TRAI):

Mobile Number Portability, a much awaited service which makes it easier for customers to switch mobile service providers as they can retain their previous numbers, was planned to be introduced by 31st March 2010, but the deadline for the same has now been extended to 30th October, 2010. Further, it has been in the news for a host of regulatory requirements in relation to security clearances, which contain stringent conditions as regards the manufacture of telecom equipment domestically. Such a requirement has obstructed the growth plans of Chinese equipment manufacturers such as Huawei and ZTE. Even Research in Motion, the manufacturer of the famous business phone BlackBerry, has not been able to steer clear of the DoT’s security concerns over its corporate e-mail and Blackberry chat functions. Next, the auction of 3G, which was projected to generate Rs. 35,000 crores, far exceeded expectations, fetching Rs. 67,000 crores and the Broadband Wireless spectrum (BWA) fetched Rs. 35,000 crores, making it easier for the Government to cut fiscal deficit. As a downside, it caused a liquidity crunch for banks in the short term, as funds were earmarked to be released for the spectrum winners. To ease the crunch, the Government decided to buy back bonds amounting to Rs. 20,000 crores totally.

Endgame: Looking for a super-regulator?
While India does not have a super-regulator such as the Financial Services Authority of the

UK (which, incidentally, is scheduled to be abolished under the Cameron regime), discussions for the same have been on. More recently, in light of the spat between SEBI and IRDA over Unit Linked Insurance Products outlined above in this post there has been debate on whether there should be an independent body to decide disputes between regulators themselves, in areas where there seems to be some conflict of jurisdiction amongst them. An ordinance issued on June 18 this year, called the Securities and Insurance Laws (Amendment and Validation) Ordinance, 2010 empowers a joint committee headed by the finance minister to decide on all regulatory disputes between SEBI (Securities and Exchange Board of India), IRDA (Insurance Regulatory and Development Authority), RBI and the Pension Fund Regulatory and Development Authority (PFRDA). It remains to be seen whether the ordinance will be passed by the Parliament in its monsoon session which commenced on July 26. Reports of the move in greater detail are available here, here, here and here).

At the end of the day, healthy regulatory competition is an important goal to be achieved, and this series of posts has covered major regulatory moves for that purpose. We let readers decide who’s had the strongest impact on India, and whether the innovations introduced have been progressive or retrogressive.

Legality Of Selling Medicines Online In India

By

Guest Post

-

September 30, 2015

5

laptop and stethoscope — stethoscope lying on keyboard of a laptop

Is it legal to sell medicines online in India? This article is written by Ekalvya Malvai, a student of Amity Law School, Noida.

What are Online/ e-Pharmacies?

As the name suggests, “e-Pharmacies operate over the internet to provide customers with an option to buy medicines online, hence making them easily available at their doorstep through the mail or shipping companies.”

e-Pharmacies in the recent past have come under the limelight by the virtue of making medicines available to its customers easily, creating a large customer base and providing quality drugs, yet time and again various questions have been raised about their functioning and their legality in India in context of providing prescription drugs online.

The legality of these e-Pharmacies has often been questioned as the Drugs and Cosmetics Act, 1940 only talks about pharmacies to be set up in brick and mortar, hence creating a legal vacuum when it comes to regulating online sale of drugs.

In the recent past, the food and drugs administrations of various states filed a legal complaint against e-Pharmacies, one such pharmacy being Snapdeal[1], which was put under scanner by the Maharashtra FDA for selling prescription drugs online alongside over-the-counter (OTC) drugs. This shall be further explained below:

Prescription and Over-the-counter (OTC) drugs

Prescription Drugs[2]: These are the type of drugs which are only prescribed by a doctor, for the use of only one individual, and cannot be bought without a valid prescription. These drugs can only be sold by a Registered Medical Practitioner (RMP).

These drugs are mentioned in the various schedules of the Drugs and Cosmetics Act, 1940.

Over-the-counter (OTC) Drugs: These are the type of drugs which do not require a doctor’s prescription and can also be sold at any retail and grocery store.

The basic argument about the viability and legality of the e-Pharmacies has been about selling Prescription Drugs. Prescription drugs, as described above, require a valid prescription by a doctor which can be only be sold to an individual.

Perhaps, how can one buy prescription drugs online?

Many e-Pharmacies have resorted to the method where customers have to upload a virtual copy of their prescription, i.e., an e-Prescription, which is then verified by the e-Pharmacy website and then accordingly provided to the customer. The prescription can only be used once to buy the prescribed drug and hence cannot be re-used.

There are various ambiguities in the law regarding online pharmacies, and hence it has been interpreted in the following manner and divided into the following 3 categories,

Green Zone:

Where the medicines can be sold only by a registered pharmacy having a registered pharmacist on a payroll.
The orders to be taken from areas only where the retail license is valid, forg., if the retails license is for Delhi, orders shall can be only entertained for Delhi.

Grey Zone:

Every state has a drug department that grants licenses for the sale of medicines only in that state.
There is ambiguity in relation to shipping medicines to other states, as there is no provision for an inter-state license for selling medicines.
There is also ambiguity regarding collection of money prior to delivery of medicines, hence questioning the legality of the credit/debit card payment option on the website, where one can pay prior to delivery of the medicines.

Red Zone:

Selling Prescription Drugs without a prescription is prohibited.
Selling drugs at a right higher than the maximum selling price (MRP) is a crime.

Various e-Pharmacies in India adopt the procedures under the Green Zone, yet, these zones are just mere interpretations of the law and the government does not explicitly mandate the setting up of e-Pharmacies.

Inquiring from one of the State Drugs Control Department about operating such e-Pharmacies, I was told that “these are not mandated by law, and if you choose to set-up one, it would be at your own risk”. Keeping this in mind, I have further done my analysis, keeping in mind the next best alternatives of interpreting the law.

This brings me to our next question,

Are e-Prescriptions valid for selling medicines online?

The validity of e-Prescriptions has been a grey area of the law, and hence, these e-Pharmacies accepting e-Prescriptions have been under the scanner for supplying prescription drugs against such a prescription.

Section 4 of the Information Technology (IT) act provides for “Legal Recognition of electronic records

Section 5 of the IT act which provides for “Legal Recognition of electronic signature”

The prerequisites required for the satisfaction of Section 5 are,

a) A law should require that information, matter or document shall be signed or bear the signature of a person;

b) An electronic signature is affixed in place of such signature;

c) The electronic signature is affixed in a manner prescribed by the central government.

Rule 65 of the ‘The drugs and cosmetic rules, 1945’ mentions that a prescription shall:

· Be in writing and signed by the person giving it with his usual signature and be dated by him.

After analysing the above table, we can clearly conclude that Section 4 and 5 of the IT Act, 2000 read with Rule 65 of the Drugs and cosmetic Rule, 1945 satisfy the legality of a prescription written and signed electronically.

Hence, keeping the above analysis in mind, the scanned copy of a prescription should be valid and enforceable in the eyes of the law.

The Drugs control authority has been somewhat arbitrary in interpreting laws and putting certain e-Pharmacies under scanner, hence defying the basic principles of the ‘rule of law, i.e., ‘No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms to certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems.’

According to the Pharmacy Practise Regulations of 2015 declared by Pharmacy Council of India in January 2015,

“Prescription” is defined by regulation 2 (j)[3] ‘means a written or electronic direction from a Registered Medical Practitioner…….’

Hence, a doctor can prescribe medicines to his patient via an electronic prescription as well, but the underlying contention being, whether it can only be used for buying drugs only from a physical pharmacy, or can be used to buy drugs online as well.

Drugs and Cosmetics Act, 1940 and its hindrance to e-Pharmacies and selling medicine online

The DCA is a pre-colonial act, which obviously could not have anticipated the online sale of drugs, vis-à-vis e-Pharmacies.

The DCA is silent on various aspects which in turn has hindered the growth of the Pharmaceutical industry in India, access to healthcare and medicine keeping in mind the population of our nation.

Since the act is silent about functioning of e-Pharmacies, and its licensing, many such websites have taken the licenses mentioned under the DCA for running pharmacies in brick and mortar and hence, have harmoniously constructed it to be legal per se.

The need of the hour is to devise a new legislation which clearly lays down the provisions and guidelines for setting up of an e-Pharmacy for selling all kinds of scheduled drugs.

With the number of counterfeit production of medicines, there is a need to maintain a system of checks and balances, verification of a prescription, and whether payment for the drugs can be made prior to the delivery of the drugs.

The pharmacy regulations of 2015, regulation 9.1 (h) mentions that the prescribed drug shall only be delivered to the patient/ carer, though, the definition of a ‘carer’ is unclear.

Conclusion

In this era of digitalisation, various companies are looking to invest in such ventures which provide easy accessibility and a large consumer base, and India is a hotbed for investors and has emerged as World #1 for making investments, beating China and the USA. India till now has lost investment worth millions of dollars, as investors are sceptical to invest their money in a market where there lies a risk and un-certainty to get returns.

The Drugs and Cosmetics Bill of 2013[4] is also pending in the Parliament, which lays down key provisions, but is still silent in addressing the issue of e-Pharmacies.

Hence, after taking into account all provisions, functioning of an e-Pharmacy is a slippery slope with the present set of laws, though one needs to take extra precautionary steps, but may fail to do so as something or the other might be in contradiction of the laws and the arbitrariness of the authorities to interpret the same.

[1] http://www.raps.org/Regulatory-Focus/News/2015/09/08/23158/India%E2%80%99s-CDSCO-Looks-to-Crack-Down-on-Online-Drug-Sales/

[2] Schedule H, H1 and X.

[3] http://www.pci.nic.in/Circulars/Pharmacy%20Practice%20Regulations.pdf

[4] http://www.prsindia.org/uploads/media/Drugs%20and%20Cosmetics/drugs%20and%20cosmetics%20bill.pdf

7 reasons why people from HR/IR background take up the NUJS business law diploma course

By

Ramanuj

-

September 30, 2015

0

While the primary audience of the Online Legal Education initiative by iPleaders National University of Juridical Sciences, Kolkata has been lawyers and entrepreneurs, recently we have seen a spike in HR Managers and Industrial Relations professionals doing our online courses. So much so that we created a special page for HR managers looking for legal courses here.

In the last 3 years, we already had a few HR managers doing the MA in Business Laws course, or even the Diploma in Entrepreneurship Administration and Business Laws course, and most of the takers of the Certificate Course in Labour Laws are in fact HR managers, but in the last 3 months there has definitely been a spike in the sheer numbers we are seeing. Is there a sudden waking up to the potential of legal knowledge in the HR manager community? When we investigated the matter, basically called up a few of the enrolled students as to what made them interested about the course in the first place, we discovered some pretty interesting insights.

There are primarily 7 reasons why most of the HR/IR professionals were interested in an online law/regulation course from NUJS. I am listing them below:

Reason 1#

They want to learn more about the new sunrise industries and get relevant skills

In India, for a long time, the mainstay of HR/IR professionals in India was working in labour heavy factories and manufacturing companies, which employed the biggest number of employees and needed HR/IR professionals in large numbers. However, over time the focus of the industry is shifting to a completely different kind of companies. Today companies like Infosys, Flipkart, Snapdeal, Uber etc, and even BPO companies, employ much more people than the manufacturing sector. There is also a burgeoning start-up sector, which is enigma to most HR and IR professionals. These new companies are better paymasters, have much more money to spend compared to the manufacturing sector and treat their employees in a completely different way. The rules of success in this new world is different, and the smartest HR/IR professionals in India are trying to get a quick insight into this new world through courses like this. Quite a few of the HR professionals I spoke to also mentioned that they are doing courses on platforms like edX and Coursera as well, but they find Indian courses to be much more relevant and specific to Indian context.

A good example here will be that of CSR. Many HR managers are shifting to CSR, and getting a qualification from a top National Law University in CSR taught by some of the best-known names in CSR definitely helps.

Reason 2#

They want a better understanding of employment contracts and how to enforce them

While every HR/IR professional is familiar with employment contract templates and even Standing Orders or employment policies, they don’t have expert legal knowledge of matters like non-compete agreement, non-solicitation, intellectual property protection, sweat equity and ESOP / ESPS, sexual harassment laws and such other matters.

One good example would be of attrition management. Sky high attrition is the reality in a lot of the fast-paced industries like IT industry, BPOs, software start-ups etc. Legal tools for attrition management are many, but there are many illegal practices in the industry which often backfire on the HR professionals unfairly. Also, attrition brings many risks with it for the organization – such as what if employees take valuable data and join a competitor with the same? A good example of this is a recent legal spat between Zostel and OYO Rooms – a matter which is being litigated at Delhi high court. It is now up to the HR managers to ensure that provisions like non-solicitation, which means after leaving the company the employee should not solicit the clients of the erstwhile employer for a certain period, or non-compete, under which employees may be prevented from joining a competitor, can be enforced.

Another example of changing employer-employee relationship is that now shared employment, use of consultants and deputation of employees is very common. All of these have legal implications and usually HR/IR professionals are asked to take care of all legal and regulatory requirements regarding this. This is where some extra credentials regarding law and regulations go an extra mile.

Reason 3#

The nature of employee incentives is changing and they want to learn about best practices

Which company used to give away its highly valuable stock to all levels of employees earlier? In this age, however, giving stock options has come into fashion, and has become a very essential incentive to retain best employees in the long run. The pioneer in this area was Infosys, which gave away ESOPS which were later on valued at millions of dollars – and made its top 100 employees millionaires. However, even the other employees made fairly good money, and it was an important lesson for many Indian employees that stock options can be a valuable asset that one must not ignore. After that, many companies, big MNCs included but especially start-ups have started to go down the road of giving large chunks of stock options to all employees. However, there is a big challenge – there are few people who understand or can administer stock option schemes. For this reason, employers often have to hire outside experts and pay them a lot of money to draw up an effective stock option plan. What if there could be in-house expertise on structuring ESOPS and ESPS? Smart HR professionals have recognized the opportunity and are acquiring the skills needed to administer and even structure ESOP schemes.

Another interesting area is planning of sweat equity, which is completely different from stock options but is becoming increasingly common as an employee incentive tool, especially for the top echelon like CEO/CXO and important directors. HR managers are rewarded when they are able to handle such things.

Reason 4#

Better understanding of legal regulation of employment and labour makes them stand out

Employers always appreciated when HR/IR professionals had an additional law degree, it worked like the icing on the cake, making such professionals more valuable and reliable for the employer. Many HR and IR professionals pursue LLB courses for this reason till date. However, there is a problem with LLB courses in India – it is that one learns precisely little from this course because of an extremely dogmatic and theoretical curriculum. Most HR/IR professionals cannot connect the legal lessons learnt from LLB course to actual real life scenarios they face at work at all although it takes years of studies to get a legal degree.

The NUJS Diploma program is a one year program comprehensively covering Employment and Labour laws (see Module VII in the syllabus) in a way that addresses issues that HR and IR professionals face at work on an everyday basis. For example, what would be the difference in the kind of employment agreement one should enter into with the CEO, white collar executives and blue collar labourers? What clauses would be substantially different? The course is also a good opportunity to refresh one’s knowledge about labour law compliances, and it also supplies relevant checklists one can actually use at work, which is an added advantage.

Reason 5#

HR/IR Professionals eventually want to become directors and sit on boards of companies

What is the ultimate career ambition of most HR/IR professionals? They do not want to remain in the same profile for the entire duration of their career managing employees for others. They want to climb the corporate ladder and see themselves in ultimate decision-making positions, driving key business decisions, and for that they need to become a member of the board of directors or a CXO. Many former HR professionals, later on occupy COO, CIO and even CEO positions. However, they need to acquire a special skill set if they are ambitious to get into the board or top management. One such obvious skill is good grasp of corporate governance, which corporate employees often learn by observation to an extent. However, structured learning about both compliance and management strategy aspects of corporate governance does not harm either!

Amongst these special skills expected from executives in top management are also the abilities to raise money for the company, in form of debt or equity, negotiate key business contracts, land cushy government contracts, structure a business vertical, and even identify key business and legal risks.

Reason 6#

They want to enhance their professional profile and resume

It never hurts to get a full-fledged recognized business law diploma from one of India’s top National Law Universities. How important an institution is NUJS Kolkata? Here is something to illustrate that: The Chief Justice of the Supreme Court of India is ex-officio Chancellor of only two Universities in India. One is NLS Bangalore, and the other is NUJS Kolkata. If you are looking to add an important qualification that you can add to your resume, then this is as prestigious as it gets. By doing this one-year online course, which usually takes 3-4 hours of time every week, you can add a very prestigious, industry-recognized diploma to your resume.

Reason 7#

Most HR/IR professionals secretly want to start their own company

Additionally, many HR professionals want to start independent consultancies, even HR services companies. This is natural, as demand for HR services is at a historical peak as start-ups are coming at a very fast speed, and MNCs are investing billions of dollars in India. The requirement for services like talent acquisition, workplace harassment consultancy, contract labour, payroll management, labour law compliance management, outbound training and such other services is at an all-time high. This demand is expected to grow at a rapid pace in the future keeping pace with rest of the economy. Enterprising HR/IR professionals are seeing great opportunity in this boom and are becoming entrepreneurs themselves! Some of them also just want flexible work options so that they can find more time for themselves or their family and consultancy is most suitable for this. These people also see the NUJS Diploma course as a unique opportunity to learn about entrepreneurship, that would serve them in a big way in their journey to establish independent consultancies.

—————————

Are you an HR/IR professional? If you are interested in the NUJS diploma course, simply call Ramanuj at 8377972123 and have a chat about how online legal courses can help in your career specifically. He can also connect you with other HR/IR professionals who have already done this course so that you can check with them how these courses really helped them!

Is corporate law what you think it is? 6 realizations about missing skills

By

Abhyudaya

-

September 29, 2015

0

If I heard corporate law, I used to think I need to know about Companies Act inside out.

If heard someone say M&A, I thought about how I can master Companies Act provisions of mergers and amalgamations.

Following my gut, I learnt everything about Companies Act that I could get my hands-on.

I got the first big blow when I did my first internship. Corporate law and M&A meant something completely different. I completed four internships in India’s best corporate law firms, but I did not even realize how my work related to anything corporate.

The full import of what it is to be a corporate lawyer in today’s world only hit me when I started working as an associate in a law firm. In fact, I noticed how my mistaken notion of what corporate law is was at the root of things as I resisted learning optimally from my internships. I had to reinvent myself as an associate to perform the task of being a corporate lawyer. It was time-consuming and difficult for me. I was resisting the fact that certain skills (which I thought were not knowledge-related) are more important. Had I been prepared for this, my work would have been easier, as I would have focussed on my overall performance as a corporate lawyer, instead of looking for appreciation that I knew corporate law.

Where was I mistaken? What are these skills that I am talking about? What is the notion of a corporate law that I wish I had earlier?

Corporate law was everything that could help a business tackle or facilitate legal issues it was facing. Knowledge of Companies Act was only about 5 per cent of it. What about the balance 95%?

Here’s a quick list of realizations that hit me:

#1 – There is little scope for conceptual arguments and mapping out risks is important – As a lawyer, you may often need to point out the risks – which could be regulatory or contractual. Learning how to express them is quite a challenge. We are used to finding out positions that are black or white through case law research. Where there are doubts, we create arguments to take a stand, but these argumentative stands are of no value because it can put millions of dollars in limbo. Most clients want to avoid litigation as far as possible.

May be a government regulator will initiate legal proceedings against your client, despite not having a sustainable case. You may be able to anticipate that in such a situation your client will win hands down, but you still need to point it out if you can smell it. It makes a world of difference for your client if you can smell possible adverse action and warn your client against it.

If there is only one High Court decision supporting your interpretation, you need to point that out. If the law supports what your client wants but the procedural framework to implement the same is missing, it is important that the client knows it. At the same time, it is important you don’t blow the risk out of proportion and scare the client. My first task about an advisory opinion around Indian insolvency laws and their application to their business (just one transaction took about three weeks – almost the length of an entire internship!). I was given the feedback that my memo could make the client panic, and in some cases my suggestions to handle certain situations they would fear were too imaginary or unpredictable. I had to strike a delicate balance. I realized that becoming a successful corporate lawyer is a game of effectively expressing legal unknowns and also enabling the client to take a pragmatic decision in connection with its business.

#2 – Research and interpretive tasks are very different from what was done in law school

In moots we found out about the real meaning or interpretation of legal provisions. As a transaction lawyer, you will be speaking to many commercial business participants (banks, brokers, stock exchanges) or regulators (RBI or SEBI’s helpdesk) and asking them about their interpretation of the provision. This does not make any sense to a law student as we have grown up learning to recognize the supremacy of case laws and regulators. However, commercial tasks are dependent on certain operational details, which are often left to the interpretation of such participants. We don’t typically end up challenging the interpretation of such participants. In my stint as a corporate lawyer, I was frequently calling up bankers, stock-exchange staff and regulators to understand how they interpreted tricky provisions and what the common practice was.

#3 – Writing and communication skills aren’t the same

I was extremely familiar with writing skills, through my experience of writing projects, conference papers, articles and moot court memorials. Note that the writing was argumentative and concept-based. Procedural provisions of statutes and regulations were largely ignored (except for civil and criminal procedure code) in law school teaching or writing activities.

As an associate, communication was largely centred around the procedural details. Making easily understandable lists and clear graphical charts was extremely important. I had to learn how to track the slightest regulatory updates and send an action point to the client, when to send a reminder or when to follow-up. Otherwise what is the difference from the search results that Google throws up? A lot of work is required to translate raw data into meaningful information for clients, and it is not about simply paraphrasing search results.

I had to keep a mental note of the different points in time when the commercial understanding changed and how that impacted a document. I was not used to such work at all, despite my prior experiences of writing. These were critical tasks, the value addition for which a top law firm can charge the stratospheric rates that it does to clients. The precision and consistency of communication required was an eye-opener for me.

#4 – Overlapping regulations, multiple systems of law and working with external lawyers

Contract drafting is no longer limited to thinking merely of what terms work for the parties. You will need to think of competition law, intellectual property statutes or tax provisions while negotiating a contract, even if you are a corporate lawyer. If you don’t have the answers, you will still be the person expected to spot the issue and forward it to an expert in that area. I had to be careful to spot competition or tax issues in deal structures and forward those to subject matter experts. Over time, it also helped if I could learn to recognize a certain structure as tax inefficient, even if I did not provide professional advice on it.

For large domestic transactions, you will have to work with lawyers in other cities or engage local lawyers who practice in district courts who can arrange for smaller tasks (title search, litigation search, filing caveats, etc.) to be done. I realized that my past connections and seniors I interned with were able to help out with such tasks. Having a resource base of lawyers who can help with such tasks is extremely helpful. In cross-border transactions, you may need to liaise with lawyers practising in other countries. Suitable managing communications and handling conflict of opinion is important in such situations.

#5 – The focus is on yours doing the work, not on your learning

We tend to think that corporate lawyers work on the most exciting, high-profile or news-breaking matters, and that we will be put on such matters from the day we set foot in the law firm. We think that we will learn a lot while doing such work, and that others are interested in ours learning from the work.

This is a mistaken view – most news-breaking transactions are performed in huge teams and you won’t be taking lead. Your job may be relatively mechanical (preparing tables, reviewing hundreds of simple agreements, formatting and proof-reading documents, setting up conference calls, etc.). What matters most is if you can do the work that was required. In fact, unless you ask the right questions to your seniors you may not even get the big picture of what you are doing unless some months pass. I realized that learning is incidental (although important for my development and role in future transactions), and that others expect me figure out how to learn on my own.

#6 – Time is the only reliable test of fool-proof advice

It’s difficult to say how law will be interpreted in future. The loopholes in your advice can show up later. Merely acquiring a new client and being remunerated for the work is not good enough. If your advice turns out to be faulty or inconsistent later on, the client will know and it may cost you the client and your hard-earned reputation. Your seniors will not be able to stand up for you and protect you if you make mistakes. If you want to retain the client and create a reputation for yourself, be prepared to provide fool-proof advice. No matter how good you are in law school, it takes time to beef up this aspect.

I worked in banking & finance, M&A and general corporate team at Trilegal, and work on contract drafting, advisory opinions for clients, briefing notes for senior advocates and dispute resolution work all had these issues. Almost all the work that I did as an associate was of this nature.

What happened when I realized this?

I was completely blown away. I was living in a fool’s paradise, focussing on the wrong skillsets. My prior knowledge was hardly of much relevance.

What corporate law meant in reality was completely different from I had imagined it (from business books, newspapers and reading). This realization made me disillusioned and dampened my enthusiasm. The corporate law world was not as exciting or nice as I thought it to be (without anyone’s fault except mine), and I was upset that a lot of my earlier work went waste (for some time, I even resisted building these skills in revolt to the realization!)

Had I not proceeded on the basis of unverified assumptions, I would have been much better prepared. My output and contribution would have been far greater. I don’t want anyone to make the same mistake as I did.

My questions for you

I am really glad that you are working hard on improving your knowledge and obtaining good internships to develop a sense of what is required to obtain and perform well at a corporate law firm job. Just remember that this process has limitations, and there is a cost to going in a direction which does not correspond to reality.

Most online courses provide only knowledge. How can you develop the right skills systematically?

Despite being from a family of corporate lawyers, I did not really know what it was to be a corporate lawyer. How can you ensure that your current notions correspond to real world corporate law practice?

Have you spoken to at least 5 different people who are where you want to be and asked them what’s important for you to know? Do you have a mentor who can help you with this?

Do you have a system for developing real-world skills even when you are not interning? How would it contribute to your skillsets and future recruitment prospects if you could create such a system?

Can you have a portfolio of work with enough examples to demonstrates to recruiters that you can perform the above tasks with ease?

Everyday for our business law course students, we strive to understand their career needs and how we can help them bridge the gap. You can see how our students have used the course in their careers here. To know more or to schedule a 15 minute consultation session, write to [email protected].

Reason #1

Clients don’t trust lawyers who don’t have understanding of their industry – this is why experience is highly valued

Reason #2

In the beginning of your career, you need to establish your expertise with every client

Reason 3#

This is how you compete with more experienced lawyers and brand names – by having superior understanding of a niche

Lesson#1: There is a fundamental need to make laws simplified and fun!

Lesson#2: Law can be simplified.

Lesson#3: It is all about finding a narrative!

Lesson#4: Cartoonists and illustrators live in a world of their own!

Lesson#5: When you are working on a good cause, people will support you!

#1 – Master Circulars from RBI

#2 – Website of the Department of Industrial Policy and Promotion

#3 – Regulations on SEBI website

#4 – RSS feed updates from RBI and SEBI

#5 – The Holy Trinity of blogs and websites for business law enthusiasts in India

1. The New York Times Deal Book (for international transactions)

2. Moneycontrol (for Indian commercial developments)

3. Indian Corporate Law

Optimizing your usage of Indian Corporate Law

How much preparation time do you need? What all do you need to learn?

How is DNA profiling done?

Features of DNA Profiling Bill

Why there is a need for DNA profiling?

How credible is DNA profiling?

DNA profiling in India

Other criticisms of DNA Profiling Bill

Conclusion

How was CBI created

How does the CBI function

Three wings of CBI

Can you demand CBI investigation into a matter about which you care?

How to go about incorporation: do you need to incorporate as a company?

Taxation of Companies

Taxation on salary of co-founders

What are Online/ e-Pharmacies?

Prescription and Over-the-counter (OTC) drugs

Perhaps, how can one buy prescription drugs online?

Are e-Prescriptions valid for selling medicines online?

Drugs and Cosmetics Act, 1940 and its hindrance to e-Pharmacies and selling medicine online

Conclusion

Reason 1#

They want to learn more about the new sunrise industries and get relevant skills

Reason 2#

They want a better understanding of employment contracts and how to enforce them

Reason 3#

The nature of employee incentives is changing and they want to learn about best practices

Reason 4#

Better understanding of legal regulation of employment and labour makes them stand out

Reason 5#

HR/IR Professionals eventually want to become directors and sit on boards of companies

Reason 6#

They want to enhance their professional profile and resume

Reason 7#

Most HR/IR professionals secretly want to start their own company

Allow notifications

If the modal does not open automatically, then follow these steps.

How Can Experienced Professionals Become Independent Directors

Register now

Thank You for registering with us, you made the right choice!