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Schedule II of Companies Act, 2013

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Companies Act

This article is written by Ms. Sushree Surekha Choudhury, a law graduate from KIIT School of Law, Bhubaneswar. The article talks about the Schedule II of the Companies Act, 2013 and its role in calculating depreciation and amortisation which is essential for any company or business.

It has been published by Rachit Garg.

Introduction 

Anywhere you read or anyone you ask will tell you that depreciation refers to the “loss in the monetary value of an asset.” Well, because it is true (smiles). Since you hear it almost everywhere, I think you already know this term and its meaning. So, how about we make an attempt to understand the concept in an easier and more fun way? Fun ways and practical explanations go hand in hand when it comes to law. Therefore, let us assume a situation. A situation where you are a multimillionaire. You regularly buy, possess and sell different assets, both for business purposes as well as for personal uses. Now let us suppose you buy an asset recently. It can be anything. Let us go with the example of a mobile. You buy the latest version of your favourite mobile series. You use it for, say 4 years, and then update it with the newer version of it. It might seem like a normal mobile buying and exchanging procedure, no? But have you thought about why you do it? There can be plenty of reasons. You may have bought the newer version because, with its launch, the older version seems to have lost its value. It may also so happen that your old mobile is no longer useful due to different technical or other problems that have started occurring. Therefore, deciding to acquire a new mobile and let go of the old one. 

Now, in this very example, let us understand the concept of depreciation. When you bought your mobile 4 years ago, it was in its best condition and supported by the latest technology. It possessed high value due to these factors. Over the period of time in which you used it, it started depreciating in its value due to wear and tear, usage over a period of time and finally with the launch of an updated version of it. Therefore, at the time when you exchanged this mobile, it was sold at a much cheaper value than what you bought it for. Sounds about right? The price at which you bought this mobile is its “initial or original cost.” The period over which it gradually depreciated in value is known as its “useful life.” The total amount depreciated in its value is its “depreciable amount” or “salvage value.” When the depreciable amount is computed and deducted from the initial cost of the asset, what remains is known as its “residual value.” Thus, the mobile depreciates in monetary value over a period of time due to different factors and this is known as “depreciation.” 

Schedule II of the Companies Act, 2013 provides guidelines on the useful life of assets for calculating depreciation. The data in Schedule II specifies the duration for which assets can be economically used and outlines minimum depreciation rates based on different asset categories. Certain other provisions of the Companies Act, 2013 are relevant in computing depreciation under Schedule II, such as Section 123 and Section 198 of the Act. The calculation of depreciation is crucial for any company or business in order to determine its financial statement and find out whether the company has gained profits or incurred losses in a given financial year. Depreciation also helps in understanding the revenues generated by an asset or class of assets as compared to the cost incurred in its acquisition and maintenance over a specified period of time. While depreciation determines the loss in the monetary value of tangible assets, it is also necessary and possible to do so for intangible assets. This process of calculating the loss in value of intangible assets is known as amortisation. Similarly, depreciation is calculated for all kinds and forms of assets, such as tangible and intangible assets, movable and immovable assets, etc. 

In this article, we will learn everything about depreciation, amortisation and all the relevant concepts. Most importantly, we will learn about the Schedule II of the Companies Act, 2013 in detail and understand how the schedule is used in the calculation of depreciation and amortisation using different methods and formulae.

What is depreciation

Depreciation, in simple terms, refers to the decrease in the monetary value of an asset over a period of time which is called the ‘useful life’ of that asset. The term is used frequently in businesses, factories, industries, and even corporate offices where different kinds of assets form part of everyday use. These assets can be long term or short term, tangible assets or intangible assets, etc. Short term assets are those which the company acquires for a limited period of time, for instance, a machinery for a specific assignment or project. Contrarily, long terms assets are held by the company for indefinite period of time, until their value depreciates or needs replacement. When assets are used over a period of time, their monetary value decreases or in other words, depreciates. This depreciation is due to different factors like wear and tear of the asset, declining demand or usefulness of it, repairs, etc.

Calculating depreciation is essential for any company or business as it helps in obtaining accurate numbers when it comes to understanding the financial statements of the company. Running a business comes with different added costs such as operating costs, distribution and sales, logistics, etc. Depreciation in value of assets includes periodic additions and deductions in the operating cost of the company. It is important to remove expenditures that a company makes every year in the form of payment of interests, loans, taxes, depreciation, and other expenses in order to assess the actual profits made or loss incurred by the company or business. Cumulative depreciation is calculated by clubbing individual depreciation of each asset, and the whole is deducted from the revenue or EBITDA (Earnings Before Interest, Taxes, Depreciation, and amortisation) of the company to obtain an accurate profit or loss statement. 

Deducting depreciation is necessary to calculate the net income of the company for each financial year. Only after calculating the net income the profit or loss statement can be estimated accurately. For accuracy in numbers of net income, it is important to deduct variable as well as fixed expenses and depreciation from the gross revenue in each financial year. The Companies Act, 2013 provides a systematic regulatory framework to govern and calculate depreciation. Different provisions of the Act help in the calculation of depreciation using the useful life of assets as mentioned under Schedule II of the Act. While calculating depreciation, a ‘fair proportion value’ of the original value, meaning a proportion from the total value of the asset at the beginning of its purchase is taken into consideration. This proportion value is then deducted from the initial value of the asset to obtain the depreciated value of the asset. While calculating these values, the useful life of an asset is taken into consideration and the calculation is made accordingly.

For instance, an asset is brought for Rs. X, the calculation of its depreciation shall be done at the end of its useful life. The computed depreciable amount will be a ‘fair proportion’ or fragment of Rs. X, which is calculated using the methods of computing depreciation.

For example, suppose a mobile was purchased for Rs. 60,000/- Its depreciation over the useful years will be computed and the amount (suppose Rs. 20,000/- in this case) will be calculated. This amount will be deducted from the initial cost to obtain the cost of the asset at the end of its useful life. This amount that is deducted from the initial cost is known as its ‘fair proportion value.’ Depreciation in the value of different assets at the end of their useful lives is considered as ‘business expenses.’ This includes tangible assets like furniture, machinery, vehicles, etc., as well as intangible assets like patents, copyrights, and trademarks. Depreciation exists and is calculated for both, movable objects like cars, furniture, etc., as well as for immovable property like land and building.

What is amortisation

Amortisation is similar to depreciation in accounting terms as it can be said to be the calculation of ‘depreciation for intangible assets.’ Depreciation is calculated to determine the loss in monetary value of an asset or class of assets that are tangible due to use. Similarly, amortisation is calculated to determine the loss in monetary value of intangible assets. In accounting terms, it is referred to the technique which is used to decrease the book value of a loan or an intangible asset (or class of assets) over a period of time. Therefore, amortisation is used twofold, first, for payment of debts and the accounts thereby, and secondly, in calculating the reduction in the value of intangible assets over a period which is known as their useful life.

Amortisation, helps in determining the accurate profit or loss statement of a company by deducting the amortised value of assets. This also helps in decreasing the tax liability for accounting purposes. Amortisation is relatively more complex to be determined. Amortisation determines the gap between the cost of the asset and the revenue it generates over a period of time. This is measured in reference to the use or consumption of an intangible asset over a period of time which is its useful life. The useful life of any asset is determined as the number of years for which an asset will be and can be used (till the time it produces revenue or other forms of economic benefit), or the total number of units that the asset can produce.

 In amortisation, the cost of an asset is written off in value terms over the years as the assets are expensed or used. The useful life of these assets varies depending upon the kind of asset used. The useful life of intangible assets is usually taken to be 10 years in accordance with AS 26. AS 26 is the regulatory norm that sets accounting standards for intagile assets. This data is used in computing amortisation of these assets. However, it can exceed 10 years as well depending upon the use of the asset over a period of time after which its usage decreases or stops. This is also associated with the economic benefits of these assets. An intangible asset’s useful life is till the time it continues to generate revenue or give economic benefits. 

Typically, amortisation is calculated as,

Amortised expenses = [(historic cost of acquiring an intangible asset – residual value) ➗ useful life of the asset].

Here, 

  • The cost of an asset includes the expenses incurred in acquiring and maintaining the asset.
  • Residual value refers to the value of the asset at the end of its useful life after periodic written down values.

Guidelines for different types of assets: Schedule II of Companies Act, 2013

Schedule II of the Companies Act, 2013 is an essential part of the calculation of depreciation. Schedule II of the Act talks about the useful life of different assets and classes of assets. This estimated and predetermined data of the useful lives of assets are used in the calculation of depreciation. Thus, Schedule II of the Act talks about the “useful lives to compute depreciation.” The schedule is divided into three parts, namely, Part A, B, and C. Before understanding these parts, it is important to learn about the other relevant provisions of the Companies Act to gain a systematic understanding of the concept.

Companies Act, 2013: relevant provisions 

The Companies Act, 2013 talks about depreciation through its different provisions. Section 198 and subsequently, Section 123 of the Companies Act, 2013 are the provisions directly related to computing depreciation by using the Schedule II of the Act. 

Section 198 of Companies Act, 2013

Section 198 of the Companies Act, 2013 talks about calculating the profits of a company in a given financial year. As we have discussed earlier, calculating the revenue statement is necessary for any company and business in order to understand their profits or loss statement made during the particular year. As per Section 198 of the Act, the profit or loss statement can be calculated and obtained by making certain inclusion and deducting expenses wherever required.

Section 198, sub-section 4 talks about all such deductions that are needed to be done in order to obtain the profit or loss accounts. Sub-section 4 talks about the following deductions like working charges, special taxes paid by the company, contributions made by the company under Section 181, etc. Sub-section (4) clause (k) talks about Depreciation as per Section 123. Thus, Section 198, sub-section 4, clause (k) talks about depreciation as a deduction to obtain the profit or loss accounts of the company in any given financial year. This clause states that depreciation shall be calculated as per the provisions of Section 123. Schedule II of the Act, too, guides us to refer to Section 123 of the Act first. Therefore, we must learn about this section before moving further with understanding Schedule II of the Act.

Section 123 of Companies Act, 2013

Section 123 is like the binding atom that binds all the relevant provisions under the Companies Act, 2013 in the calculation of depreciation. Sections 123 and 198 are greatly interconnected in the way that Section 123 talks about the declaration of dividends and the mandatory calculation of profits or loss statements in doing so. While Section 198 guides in calculating the profits made or losses incurred by the company or business in a given financial year by taking into account certain additions and deductions, Section 123 focuses on such calculation of profit or loss accounts in order to declare dividends.

Once the profit or loss statement is obtained, the company can declare dividends for a particular financial year. All these provisions ultimately lead to the most essential part of our topic in hand, i.e., Schedule II for computing depreciation. Section 123 sub-section 1 states that dividends shall be distributed by the company only when the company has made profits. In determining so, we calculate depreciation to deduct from the total revenues. Section 123 sub-section 2 states that for the purpose of this section and all others, depreciation shall be calculated using Schedule II of the Act. 

Schedule II of Companies Act, 2013

Schedule II, where Section 123 kept directing us to, talks about computing depreciation using the useful life of different assets and classes of assets. The schedule is divided into three parts talking about the computation of depreciation. 

Part A

Part A of the schedule is like a basic introduction to the concept of depreciation and its calculation. Part A describes depreciation as the “systematic allocation of the depreciable amount of an asset over its useful life.” As already discussed, the depreciable value of an asset refers to the reduction in its price over a period of time and it is obtained by deducting the residual value of an asset at the end of its useful life from the initial cost of the asset.

For the purposes of this part and Schedule II, depreciation also includes the calculation of amortisation. For computing amortisation, the Indian Accounting Standards (Ind AS) are followed. In cases where the Indian Accounting Standards are not applicable, the Companies (Accounting Standards) Rules, 2006 and the accounting standards therein are followed and applied. Exceptions are provided for toll roads in any form of public-private partnership routes (road projects). 

Further, Part A specifies that for computing the depreciation in value of assets, the useful lives shall be taken as it is mentioned in Part C of this schedule. It also specifies that the residual value for any asset shall not exceed 5 per cent of the cost of its initial cost. If any company or business chooses to use the information from elsewhere and calculate the useful life of assets or residual value in any other manner, such company or business must disclose such information in their annual financial statement. Such disclosure must be accompanied by technical support and evidence. 

Part A also specifies the modes of computing the rate and amount of amortisation for the purpose of toll roads exception under this schedule and the calculation of depreciation for the same. In these cases, the amortisation rate and amortisation amount can be calculated as:

Amortisation rate = (amortisation amount ➗ cost of the intangible asset) ✖100, and

Amortisation amount = cost of intangible asset ✖ (actual revenue of the year ➗ projected revenue from the intangible asset).

Here,

  • Cost of intangible assets refer to the cost incurred for the intangible asset as per the accounting standards.
  • Actual revenue refers to the revenues (toll charges) generated by the intangible asset in a given financial year.
  • Projected revenue refers to the promised or warranted future revenues by the project lender in the financial agreement or closure.
  • The whole of the amortised amount shall be taken into consideration over the concession period. 

Part B

Part B of Schedule II gives overriding powers to government norms. It states that even though the Companies Act, 2013 specifies useful lives under this schedule and provides a mode for the calculation of depreciation. The government can specify the useful life for certain assets or classes of assets when they feel the need to do so, and every company or business in possession of those assets shall use the government specified useful lives instead of the useful lives specified under Schedule II of the Companies Act, 2013 or any other rules for that matter. Therefore, any Regulatory Authority of the Central Government or established by an Act of Parliament can specify the useful lives or residual value for certain assets, notwithstanding any provision of Schedule II of the Companies Act, 2013 or any other provision.

Part C

The most talked part of Schedule II, Part C, talks about the useful lives of different assets and classes of assets. Part C of the schedule makes a list of the following nature of assets and their specific useful lives:

ParticularsUseful life
Buildings (NESD)
Buildings with RCC frame structure 60 years
Buildings without RCC frame structure 30 years
Factory buildings 30 years
Fence, wells, tube wells5 years
Others 3 years
II. Bridges, culverts, bunders, etc. (NESD)These assets are estimated to have a useful life of 30 years.
III. Roads (NESD)
Carpeted roads
(i) With RCC10 years
(ii) Without RCC5 years
Non-carpeted roads 3 years
IV. Plants and machinery (NESD)
(i) General plant and machinery
Other than continuous process plants15 years
Continuous process plants25 years
(ii) Special plant and machinery 
Used in motion films 
Cinematographic films 13 years
Projecting equipment in film exhibitions3 years
Used in glass manufacturing 
Regenerative glass melting furnaces13 years
Moulds (NESD)8 years
Float glass melting furnaces (NESD)10 years
In mines and quarriesPortable machinery used underground or those used in open cast mining have an estimated useful life of 8 years.
In telecommunications 
Towers18 years
Telecom network equipment like transceivers, switch centres and others 13 years
Ducts, cables and optical fibres 18 years
Satellite 18 years
In oil and gas industry
Refineries 25 years
Oil and gas assets (including wells), processing plants and facilities 25 years
Petrochemical plants 25 years
Storage tanks25 years
Pipelines 30 years
Drilling rigs 30 years
Field operation tools like drilling tools, well-head tanks and others 8 years
Loggers 8 years
In power industry 
Thermal/gas/combined cycle power generation plant40 years
Hydro power generation plant40 years
Nuclear power generation plant40 years
Network assets like transmission lines and cables40 years
Wind power generation plant22 years
Electric distribution plant35 years
Gas storage and distribution plant30 years
Water distribution plant and pipelines 30 years
In the manufacture of steel
Sinter plant20 years
Blast furnace20 years
Coke ovens20 years
Rolling mill in steel plant20 years
Basic oxygen furnace converter25 years
In the manufacture of non-ferrous metals
Metal pot line (NESD)40 years
Bauxite crushing and grinding section (NESD) 40 years
Digestor section (NESD)40 years
Turbine (NESD) 40 years
Calcination equipment (NESD)40 years
Copper smelter (NESD)40 years
Grinder40 years
Soak pit 30 years
Annealing furnace30 years
Rolling mills 30 years
Scalping, slitting equipment (NESD)30 years
Miners, dozers 25 years
Copper refining plant (NESD) 25 years
For medical purposes
Electrical machinery, x-ray apparatus and accessories, diagnostic equipment like cat-scan, ECG monitors, ultrasound machines and others13 years
Other equipment 15 years
In the pharmaceutical and chemicals industry
Reactors20 years
Distillation columns20 years
Drying equipment/centrifuges and decanters20 years
Storage vessels/tanks20 years
In civil constructions
Road making equipment 12 years
Heavy lift equipment 15 to 20 years
Tunnelling equipment (NESD) 10 years
Earth moving equipment 9 years
Others (NESD) 12 years
In salt works 15 years
V. Furniture and fittings (NESD)
(i) general furniture and fittings10 years
(ii) other furniture and fittings (usually used in hotels, restaurants, schools and other educational institutions, libraries, welfare centres, etc., or lent out for functions like marriages, etc.)8 years
VI. Motor vehicles (NESD)
Motor cycles, scooters and other mopeds 10 years
Motor buses, lorries, cars, taxies (used in businesses or run on hire) 6 years
Motor buses, lorries, cars, taxies (used other than in businesses or run on hire)8 years
Motor tractors, heavy vehicles and harvesting combines8 years
Electrically operated vehicles like battery powered vehicles or fuel cell powered vehicles8 years
VII. Ships (NESD)
Ocean going ships
(i) Bulk carriers and liner vessels25 years
(ii) Crude tankers, product carriers and chemicals carriers (with or without conventional tank coatings)20 years
(iii)(a) Chemicals and acid carriers with stainless steel tanks 25 years
(iii)(b) Chemicals and acid carriers with other tanks20 years
(iv) Gas carriers (liquified) 30 years
(v) Conventional large passenger vessels (also used for cruise)30 years
(vi) Coastal service ships (all categories) 30 years
(vii) Offshore vessels for supply and support 20 years
(viii) High speed ships and boats like catamarans 20 years
(ix) Drill ships25 years
(x) Hovercrafts 15 years
(xi) Fishing vessels10 years
(xii) Ships used for dredging purposes 14 years
Inland water running vehicles
(i) Speed boats13 years
(ii) Other vessels28 years
VIII. Aircrafts or helicopters (NESD)These assets are estimated to have a useful life of 20 years.
IX. Railway sidings, locomotives, rolling stocks, tramways and railways used by concerns, excluding railway concerns (NESD)These assets are estimated to have a useful life of 15 years.
X. Ropeway structures (NESD) These assets are estimated to have a useful life of 15 years.
XI. Office equipment (NESD)These assets are estimated to have a useful life of 5 years.
XII. Computers and data processing units (NESD)
(i) Networks and servers6 years
(ii) Desktops, laptops and other end user devices3 years
XIII. Laboratory equipment (NESD)
(i) General laboratory equipment10 years
(ii) Laboratory equipment used in educational institutions5 years
XIV. Electrical installations and equipment (NESD)These assets are estimated to have a useful life of 10 years.
XV. Hydraulic works, pipelines and sluices (NESD)These assets are estimated to have a useful life of 15 years.
Note: This data is extracted from Schedule II of the Companies Act, 2013. 

All these assets’ useful lives are estimated as a general rule, for ‘one shift’ of use. However, certain assets may be used for extra shifts. NESD refers to “no extra shift depreciation.” Assets which are put under the NESD category do not depreciate in their useful lives when used for extra shifts. Thus, no extra shift depreciation is calculated for those assets when such extra shifts are applicable.

Important points about Schedule II

While calculating depreciation as per the provisions of Schedule II of the Act, the following pointers are to be kept in mind:

  • For the purpose of this schedule, “factory buildings” does not include ‘offices,’ ‘godowns,’ or ‘staff quarters.’
  • At times, it may so happen that an asset is bought and added or sold, discarded, demolished, destroyed, or given away in between a financial year. This means that the asset did not complete a full financial year cycle. In these situations, the depreciation for those assets will be calculated on a pro-rata basis. A pro-rata calculation of depreciation computes the depreciation of any asset on the basis of ‘portions’ or ‘proportions.’ Thus, depreciation for these assets will be calculated from the date on which it was added or till the date on which it was sold/destroyed/demolished/discarded. For instance, company A added a new machine in their factory in the month of October 2020. They use it until May 2023 after which the company decides to sell the machine. In this case, the depreciation will be calculated in a pro rata basis from the month and year it was added up till the month and year it was used. This is different from an usual financial year which begins in the 1st of April of every year and ends on the 31st of March in the next year. 
  • Disclosure requirements are mandatory while declaring the financial statements of a company or business. A company is mandated to comply with all the disclosure requirements as per the Act and other regulations. When the depreciation is computed and used in obtaining the financial statement, it is mandatory to disclose details about the same in the financial statement made by the company. The financial statement must provide information such as the mode or method of computing depreciation used by the company or business. It shall also disclose the useful lives taken into consideration for any or all of the assets if that information differs from the useful lives as provided by Schedule II of this Act.
  • Where Part C specifies the useful life of certain assets, it does so for the whole of that asset. Sometimes assets are combined together to form another asset. These portions or assets that form part of the whole can be significant assets with specific useful lives of their own. When such assets exist with significant useful lives, their useful lives are separately considered for the purposes of calculation of depreciation.
  • Depreciation calculated using the useful life of assets as per Schedule II is specific to a single shift use of those assets. Anytime when an asset is used for more than one shift, the depreciation shall be calculated accordingly. For instance, when an asset is used for two shifts (double shift depreciation), the useful life and rate of depreciation of that asset will be increased by 50% for that specific period. Similarly, depreciation will be increased by 100% in case the asset is used for three shifts (triple shift depreciation). The only exception to this general rule is when an asset is specifically classified as “NESD” or the “no extra shift depreciation” category. In this case, the useful life or rate of depreciation will not be increased even when an asset is used for extra shifts. 
  • For the purposes of this schedule, “continuous process plant” refers to a plant which is designed in a manner for operating 24 hours a day and is also required to do so. 
  • Schedule II of the Companies Act, 2013 is always read along with Section 123 of this Act. 

Calculation of depreciation using Schedule II of Companies Act, 2013

Now that we have understood the necessary parameters and factors for calculating depreciation, it is essential to understand how it is done. The useful lives of assets provided under Schedule II are used to calculate depreciation in the manner and using the methods that we will discuss in this segment of the article. Certain steps are followed in the process of calculation and deduction of depreciation. First, the sum-total of all the money made by the company is calculated. This is known as the gross revenue and is calculated as the total units of products sold multiplied by the price of each unit or the services provided and the price charged for each service.

I.e., Gross revenue = units of products sold ✖ price of each unit, or

Gross revenue = services provided ✖ price of each time of service.

When gross revenue is calculated, the next step is to calculate net revenues. Returns and discounts are deducted from gross revenue to get net revenue. Returns refer to the products returned to the company or services that were cancelled for any reason. Discounts are given by the company at different stages of sales. 

I.e., Net revenue = gross revenue – returns – discounts.

Therefore, net revenue is the total revenue generated by the company before deducting business expenses like depreciation, amortisation, taxes, interests and other expenses. This is the EBITDA of the company. Depreciation and amortisation are deducted from this value to obtain the EBIT of the company. Hereafter, taxes and interests are paid, any pending loans or EMIs are paid, and all other expenses are paid off. The amount which is obtained after the payment of all these expenses is the net profits or loss of the company. If after making the deductions, the remainder is a positive value, the company has made profits in that financial year. If this value is on the negative side, then the company has incurred losses in that particular year. 

I.e., EBIT = EBITDA – (depreciation + amortisation), and

Net profit/burn = EBIT – (interests + taxes).

Method of calculating depreciation 

There are commonly used methods of calculating depreciation, such as the straight line method (SLM), the written down value (WDV) method, the units of production (UOP) method, the sum of the years’ digits depreciation method, and the double declining balance method. Each of these methods uses different variables like the cost of an asset, the scrap value, the useful life, the book value of assets, etc. To learn more about these methods of calculating depreciation, kindly visit Depreciation as per Companies Act, 2013 – iPleaders.

The Companies Act, 2013 prescribes the calculation of depreciation using the ‘useful life assets. This can be used in calculation using the straight line method or the written down value method as well. The newly framed “Units of Production” (UOP) method takes into consideration the ‘units’ of an asset used or produced for determining depreciation instead of using their useful life as a period of time. The units of production method uses the number of units produced over a period of time to determine depreciation. As used in the other two methods, the useful life of assets as mentioned in Schedule II of the Companies Act, 2013 to calculate depreciation is considered. This method is used to calculate the depreciation in value of an asset over a period of time which is known as its ‘useful life.’ 

Straight line method (SLM)

The straight line method calculates depreciation as,

Depreciation = (cost of an asset – salvage value) ➗ useful life of that asset.

Here, 

  • The cost of an asset is the price at which the asset was purchased.
  • Salvage value refers to the value of the asset at the end of its useful life.
  • Useful life refers to the useful life of any particular asset as mentioned under the Schedule II of the Act.

Written down value (WDV) method

Written down value method calculates depreciation as,

Depreciation = (cost of an asset – salvage value) ✖ rate of depreciation.

Here, 

Rate of depreciation = [ 1 – (salvage value ➗ initial cost of the asset) ^ 1/n ] ✖ 100

  • The cost of an asset is the price at which the asset was purchased.
  • Salvage value refers to the value of the asset at the end of its useful life.
  • Useful life (n) refers to the useful life of any particular asset as mentioned under the Schedule II of the Act.

Double declining balance method

Depreciation is calculated using this method as,

Depreciation = 2 ✖ SLDV ✖ BV.

Here, 

  • SLDV or straight line depreciation value refers to the depreciation amount obtained using the straight line method.
  • BV refers to the book value of an asset at the beginning of a financial year.

Sum of years’ digit depreciation method

The sum of years’ digit method can be used to calculate depreciation as,

Depreciation = (number of useful years ➗ sum of useful years) ✖ depreciable amount.

Here, the sum of useful years is obtained by totalling the number of useful years. For instance, if the total useful life is 4 years, the sum of useful years will be 4 + 3 + 2 + 1 = 10.

Units of production (UOP) method

This method uses the data of the total productive capacity of an asset to calculate depreciation. Using the units of production method, depreciation is calculated as,

Depreciation = depreciable value ✖ (units produced during the year of use ➗ estimated total production).

Here, depreciable value = initial value of an asset – salvage value of the asset.

Conclusion 

Computing depreciation can be tricky but it is also crucial. A company or business can choose any method for calculating depreciation. The Companies Act, 2013 recommends calculating depreciation using the useful life of assets as provided under the Schedule II of the Act. However, a company can choose any other means of data on the useful lives of assets for calculating depreciation as long as they disclose it in their annual financial statements. A company owns many assets in different classes and categories. These can be tangible assets like furniture and fittings, or intangible assets like trademarks, patents, etc. They can also be immovable properties like land and building or movables like cars, machinery, etc. Irrespective of their classes and categories, all these assets lose monetary value over a period of time known as their useful lives and thus, depreciation is calculated for each asset individually. These depreciation values are then clubbed together. This clubbed value is then deducted from the revenue statements of the company, which helps in determining the profit or loss statements. 

We began this article with a simpler example of a mobile (tangible asset, movable asset) to understand the concept of depreciation. Now that we have understood the concept in detail and learned computing depreciation using the data provided in Schedule II, let us conclude with a rather complex example. As we already know, depreciation is also calculated for intangible assets and immovable assets. These calculations can be tricky. Let us take an example of a building which is an immovable asset and understand the depreciation of this asset using all the knowledge we have gained so far. A company, business or an individual can own a building for different purposes. This building will depreciate in value over a period of time. As per the data provided under Schedule II, the useful life of a building is 60 years. We also have to take into consideration the land on which the building exists. For calculating the depreciation of this building, we take two factors into consideration – the useful life of the building and the number of years after it is constructed. This number of years after construction is divided by the useful life of the building. This is the depreciable amount which is deducted from the initial cost of acquiring the building to calculate depreciation and residual value. Finally, the price of the land is added to this value to obtain the actual price of the asset at the end of its useful life. 

Let us understand it with an example. Let us assume you own a building and plan to sell it after 10 years of possession. Let us calculate depreciation for the same:

  • First, the price of land at the time of purchase was 40 lakh INR.
  • Further, the cost of constructing the building was 20 lakh INR. 
  • Thus, the appreciated value of the property after construction is 60 lakh INR.
  • Useful life as per Schedule II is 60 years. Thus, the depreciable value is years after construction divided by the useful life, i.e., 10 years / 60 years = 1/6
  • This value is deducted from the amount used in constructing the building, i.e., 20,00,000 – (1/6 of 20,00,000) = 20,00,000 – 3,33,333 = 16,66,667 INR.
  • Finally, the appreciated value of the property is added to this depreciated value to obtain the price of the property at the end of 10 years, i.e., 16,66,667 + 60,00,000 = 76,66,667 INR. 

Therefore, the market value of the property at the end of its desired life in the case of this immovable property is 76.67 lakh INR. This example was crucial because of the complexities involved in the case of immovable properties like land and buildings. Even though in usual cases, the value of any asset depreciates over a period of time, additional costs are added in the case of land and buildings (the appreciated value due to the constructions made in this case) which can increase the overall market value over a period of time. A bit off the context, but this is also why traditionalists believe that real estate is one of the best forms of investment as even with market factors and fluctuations, the investment gives rewarding profits after a period of time. 

Frequently Asked Questions (FAQs) 

Is it mandatory to follow Schedule II of the Companies Act, 2013 for all companies? 

No, companies are not mandated to follow Schedule II for the useful lives of assets to calculate depreciation. However, when they use data from elsewhere, they need to disclose the same in their annual financial statement supported by technical evidence for doing so. 

What are the exceptional situations where one can use regulations other than Schedule II?

A company can decide not to use the data provided under Schedule II in the following cases:

  • In the case when a Regulatory Authority established under any Act of Parliament or the Central Government specifically prescribes different useful lives for any asset or classes of assets.
  • In the case of intangible assets where Ind AS are followed.
  • Where a company decides to use other data and discloses the same in its financial statements. 

Do you need to wait for a new financial year to begin calculating depreciation for an asset?

No, one does not need to wait for a new financial year to begin to start calculating depreciation for any asset. When any asset is added or removed in the middle of a financial year, the depreciation for such asset shall be calculated on a pro-rata basis from the date it was added or till the date it was used.

What is a standard rule for the estimation of residual value?

The standard rule and general provision is that the residual value of any asset should not be higher than 5 per cent of the initial cost of that asset. However, if and when companies decide to increase this value, they must disclose the same in their annual financial statement.

References 


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Section 294 IPC punishment

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Section 120A

This article is written by Srushti Khule, a student of NALSAR University of Law, Hyderabad. Apart from discussing an offence under Section 294 of the Indian Penal Code, 1860, the article extensively discusses punishment and essential case laws.

It has been published by Rachit Garg.

Introduction 

Do you know that recently the members of a parliamentary panel have told executives of several OTT platforms, such as Netflix, Disney+ Hotstar, Prime Video, etc., to abstain from showing obscene content and using abusive language in the content shown by these OTT platforms? Don’t you wonder why it asked them to respect the country’s cultural sensitivities? Why is it so essential to preserve morality and decency in society? What will happen if freedom of speech and expression is allowed to use without reasonable limits?        

We live in an age where society is part of our everyday lives. The aspect of decency and morality in a society is precious and vital for maintaining well-being. If not preserved, society may fall into a ditch of chaos and vulgarity. A single act of immorality, indecency, or lewd behaviour can affect the conscience of society at large. It may negatively impact vulnerable individuals, such as children, or those easily influenced by explicit content. It may hamper the growth of society in a decent and civilised direction. It can destroy social norms and standards. Thus, the force of the law is required to prevent and punish such acts or behaviours. But one should also be mindful that the right to freedom of speech and expression should not be compromised to prevent obscenity.

Section 294 of the Indian Penal Code, 1860, is one such provision that punishes the act of obscenity. The maximum punishment under the provision is three months, but is it enough for this kind of offence remains a question. This article will examine the essentials, nature, and punishment of offence under section 294 IPC. It will also give the reader a comprehensive understanding of the topic of obscenity through various judicial pronouncements and tests used for determining it.   

Essentials of crime under Section 294 IPC

It falls under the specific category of a public nuisance, coming under Chapter XIV (Offences affecting public health, safety, convenience, decency, and morals) of the Indian Penal Code, 1860. To constitute the offence under this provision following ingredients must be followed-

  1. A person shall do any obscene act in public, or 
  2. A person shall sing, recite or utter obscene songs, ballads, or words in or near any public public
  3. This act must cause annoyance to others. 

What is meant by ‘obscene’ is not defined under the IPC because it changes from time to time as society changes. In simple terms, it means offensive to the public sense of decency or morality, especially in the sexual sense. The Supreme Court of India and various high courts have given different inferences about the definition of obscenity. They have not been able to set a precedent because what may be obscene today may not be in the future. 

Illustrations

  • While standing in a crowded market, a person loudly sings a vulgar and sexually explicit song that contains offensive and obscene language. His actions cause discomfort and annoyance to the people present in the locality. If reported and proven, he can be charged under Section 294 for singing an obscene song publicly. 
  • During a religious procession, a group starts chanting and reciting obscene and offensive words, mocking religious figures, and using derogatory language. Their actions disturb the peace and hurt the religious sentiments of the people participating in the procession. They can be charged under Section 294 for uttering obscene words in or near a public place if caught and proven. 

Nature of the offence under Section 294 IPC 

The offence is cognizable, meaning police can arrest a person without a warrant or prior court permission. It is bailable and triable by any Magistrate as a summons case. According to Section 320 of the Code of Criminal Procedure, 1973, it is a non-compoundable offence, meaning the offence is of such a nature that a trial must be conducted, and no out-of-court settlement is possible between the victim and the accused.

Tests for obscenity 

Hicklin test 

It was given by Lord Cockburn in the case of Regina v. Hickin(1968). In this case, Benjamin Hicklin distributed pamphlets containing information about some unethical practices by the church and abuse done towards women during confession. He was convicted for publishing obscene material irrespective of his intention to do the same. Hicklin’s test was established that defined obscenity as anything that tends to deprave and corrupt the minds of people open to such immoral influences and into whose hands such material or publication may fall.

Miller test 

This is the primary legal test used in the United States for determining obscenity. It was developed in the US Supreme Court decision of Miller v California(1973). In this case, Marvin Miller mailed five unsolicited letters to the restaurant manager and his mother. Those letters contained pictures and drawings of men and women engaged in sexual activities. He was prosecuted for distributing obscene material, and three prongs test was established. 

  1. An average person applying community standards would find that work as a whole appeals to prurient interest. 
  2. The work describes or depicts sexual conduct patently offensively. 
  3. The works lack serious literary, artistic, political, or scientific value when taken as a whole.    

Community Standards test

This is the primary legal test applied in India for determining obscenity. According to this test, any art, or gesture, or content is obscene if it opposes contemporary community standards if the dominant theme is taken as a whole. 

Punishment of crime under Section 294 IPC

The provisions of punishment include the following- 

  • A term of imprisonment that may extend to 3 months; or 
  • Fine; or 
  • Imprisonment and fine, both; 

The amount of the fine is not mentioned. It depends upon the severity of the offence in each case. In some earlier cases, a punishment of 3 months was considered severe, but this view is obsolete now. Instead, the prevalent view is that more than three months of the maximum sentence is needed in the context of events happening nowadays. The judiciary has even advised the legislature to amend Section 294 IPC. 

The essential requirements constituting the act shall be fulfilled to punish the offender. An obscene act shall be done, or any song, ballad, or word shall be spoken. It shall be committed publicly and cause annoyance to the victim and others witnessing it. Some of the judicial pronouncements are mentioned below to understand the ingredients comprehensively.   

What does ‘obscene’ mean?  

The Madras High Court in the case of Zahir Hussain v State Reps(2021) had observed that the definition of obscenity is not given under Section 294, but as the offence is in continuation of the same subject matter, the definition of “obscenity” under Section 292(1) of the IPC can be applied in a prosecution under Section 294(b) of the IPC. Therefore, to punish, the alleged words must be lascivious, appeal to the prurient interest, or deprave and corrupt persons.

In Prabhakran V.V. v. State of Kerala (2022), the accused filed the petition to quash all the proceedings including Section 294(b) issued against him. The allegations were that the accused used abusive and obscene words towards the respondent. The Kerala High Court observed that unless words can arouse sexually impure thoughts to its hearer, the offence under Section 294 would not be attracted. In this case, the accused had not used such words to arouse sexually impure thoughts. Accordingly, it accepted the petition and quashed all further proceedings.

The Supreme Court in the case of N.S. Madhlagopal v. K Lalita (2022) held that abusive or defamatory words are not necessarily obscene and are not punishable under Section 294(b) of the IPC. It said it could not consider every humiliating word obscene. In this case, the accused is the landowner of the complainant. The incident occurred when work of laying PVC pipes was being carried out. He was alleged of using unparliamentary language towards the complainant when they enquired about ongoing work. The offence was not found under Section 294 IPC.

Acts shall be done in a public place or near a public place

In another case, the Bombay High Court has said that an offender cannot be penalised if the act is done privately. In the said case, a journalist complained about the annoyance caused to him by playing loud music from a nearby flat. Further, half-clothed dressed women were seen dancing from his window. The men present there were seen showering money on them. The Bombay High Court held that a private person owned the flat for personal use and thus was not a public place. It further said that a public place means a place where the public has free access and the right to enter. 

In the case of Dr. Ramchandran v. Sub-Inspector of Police (2022), the accused filed a petition in the Kerala High Court to quash proceedings against him initiated by the respondent. The accused is a paediatrician, and the respondent is the mother of the patient of the accused. The allegation was that the accused while attending the respondent’s child in his consultation room, showed obscene actions with his finger and uttered obscene words against the respondent. The Kerala High Court observed that the doctor’s consultation room could not be termed a public or near public place. Further, the words utter must arouse sexually impure thoughts in hearers’ minds. The case was not made alleging that the petitioner aroused sexually impure thoughts. Thus necessary ingredients of Section 294(b) were not fulfilled, and proceedings were accordingly quashed.

Act shall cause annoyance to others 

One of the important judgments in this respect is of the Bombay High Court in the decision of Narendra H. Khurana vs. Commissioner of Police (2004). In this case, a complaint was filed against the restaurant that a cabaret dance was going on, and girls exposing private parts of body were found in it when the raid was conducted. The Bombay High Court held that mere obscene acts or behaviours are insufficient, and there must be some proof of annoyance caused to the victim and person hearing it. The question of obscenity per se do not arise until and unless it is proved that person witnessing an obscene act at the given time was actually annoyed or not. 

Some judicial pronouncements in which the accused was convicted and punished  

Zafar Ahmed Khan vs. State (1962)  

In this case, the accused followed the auto of two stranger girls and stopped following when the auto of the girls stopped. He then addressed them with the words, “Ao meri jan merry rickshey per baith jao main tumko pahucha doonga main tumhara intizar kar rha hu,” This happened in the presence of the auto driver and many other people gathered around. The FIR was filed and he was convicted under Section 294 of IPC. The Sessions Judge, Lucknow gave him a rigorous imprisonment of three months. In an appeal, Allahabad High Court observed that the girls were young and belonged to a respectable family. They were strangers to the accused, and such words suggested an illicit sexual intention. It was considered that such words must have caused a moral shock to the victim and the person hearing them. Thus, the punishment given by Session Judge Lucknow was deemed appropriate and non-arbitrary. 

Sadan Prasad vs. State of Bihar (1969) 

In this case, the accused approached a girl of 12-13 years old while she was going to school. He uttered the words, “Rani Ban Than Kar Kahan Ja Rahi Ho”. It was further discovered that he teased and vexed her often by using vulgar and obscene language. He was punished under Section 294 of IPC and sentenced to one month of simple imprisonment. The Session Court in the case noted that the nature of teasing schoolgirls is becoming more common. The Patna High Court pointed out that courts cannot disregard such events.

Patel H.M. Malle Gowda vs. The State Of Mysore (1972)

In this case, the accused used abusive and vulgar words against a medical doctor in front of nearly a hundred people and dragged the doctor’s wife into the bargain. The Karnataka High Court observed that annoyance may not be proved by direct evidence and can be inferred from the facts and circumstances of the case. Here, the fact that the doctor and people were complaining was considered a sufficient indication of the annoyance caused. The contention that using such words is common in rural areas was rejected, keeping in view the social position of the doctor. He was convicted under Section 294 of the IPC and sentenced to pay a  Rs. 30/- fine.    

Some recent controversies on obscenity

Rehana Fatima a social activist controversy over her semi-nude body art

Rehana Fatima women’s rights activist posted a video on her social media platforms showing her two minor children painting her semi-nude upper body with the hashtag ‘Body Art and Politics.’ The havoc was caused in public, alleging her of obscene and vulgar acts. The Kerala Court recently discharged her of all charges and set aside lower court order convicting her. It reiterated that a picture of a nude or semi-nude woman could not be called obscene unless it tends to arouse feeling or reveal an overt sexual desire. It further held that nudity should not be tied to sex. The depiction of the nude body of a woman cannot be per se obscene, and the same should be determined in context. The context here was that accused wanted to break the stigma of society related to women’s bodies. It was a political expression of the accused and not any sexual act. 

The Ekta Kapoor controversy over ‘XXX uncensored’ TV show

An FIR was filed against Ekta Kapoor in Madhya Pradesh that episode of the series ‘XXX, uncensored’ shown on the ALT Balaji platform, was obscene and caused annoyance to the complainant. She filed a petition in the Madhya Pradesh High Court to quash FIR and other proceedings. The Madhya Pradesh High Court in Ekta Kapoor v State of Madhya Pradesh, 2020 observed that if the material is obscene, it does not matter if the watcher is of adult age. If the material is against public decency and morality, the freedom is curtailed under Article 19(2). The contention that the series is only available to subscribers and not in public space was rejected. It held that the series is shown on a platform accessible to the public and thus constitutes a public place. The petition was rejected by the Madhya Pradesh High Court on these grounds. After two months of this case, Supreme Court granted interim protection from arrest in the above FIR. 

In 2022, a second FIR was filed against her, and the Bagusarai court in Bihar issued an arrest warrant. She moved to the Patna High Court to quash the arrest warrant but, fearing that her case would not be heard in a reasonable time, moved Supreme Court. The Supreme Court remarked that something has to be done against such content. She is polluting the minds of the younger generation of our country. It questions what kind of choice is available to the people when content is available to all. Accordingly, it dismissed her petition and said next time, it would put a cost if such a petition were filed again.

Recently, the Patna High Court stayed proceedings and granted relief against the arrest warrant issued by the Bagusarai court.        

Conclusion

The terms like obscene or public place are not defined under IPC or other statutes of our country. Thus, it is crucial to refer to various judicial pronouncements to comprehensively understand the topic. While discussing the punishment for Section 294 IPC, one may wonder and question why the courts have even penalised offenders with a meager amount of Rs 30 in some cases. Nowadays, the majority of people can pay such a meager amount, but the aim is not to make offenders responsible for the required amount. The intention is to make them guilty of acts of obscenity so that they do not repeat those mistakes again. They are punished because maintaining decency and morality in society is of utmost importance. At last, it is also important to strike a balance between the right to freedom of speech and expression and the decency and morality of the society. Obscenity is a very serious crime that hampers any civilised society thus punishing the offender becomes very important.           

Frequently Asked Questions (FAQs) 

What can be considered as a public place under Section 294 IPC?

A public place, as defined under Section 294 IPC, refers to any place to which public has access.It can be streets, parks, markets, public transportation and other similar areas.  

Where is obscenity defined under the Indian penal Code? 

Obscenity is not defined under the IPC or any other law of the country. Instead, it has varying definitions according to the different cultural, religious, and ethnic values of society. It is an act or behaviour, especially in a sexual sense, that goes against public morality and decency. 

What is the difference between obscenity and vulgarity?

These terms are not explicitly defined under Indian law, resulting in varying judicial interpretations. In standard terms, vulgarity arises from feelings of disgust and detestation but does not necessarily corrupt minds. On the other hand, obscenity is mainly in the sexual sense and corrupts the minds of people likely to be influenced by it. 

Is Section 294 IPC a bailable offence?

Yes, it is a bailable offence. 

Which type of offence is Section 294, compoundable or non-compoundable? 

It is a non-compoundable offence, which means a trial must be conducted, and no compromise can be entered between the victim and the accused. 

Can Section 294 IPC be invoked for online/offline obscenity?

Section 294 of the IPC primarily pertains to obscenity in public places. However, using obscene words or acts online or offline can fall under other areas of the law, such as Section 67 of the Information Technology Act, 2000, which deals with electronic publication or transmission of obscene material.

References    


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Preference share vs equity share : an analysis

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Share company

This article has been written by Shailaja Mishra pursuing Diploma in Corporate Law & Practice: Transactions, Governance and Disputes and has been edited by Oishika Banerji (Team Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

Like every human being requires food and water to survive, the same way every company requires certain funds for its growth and day to day requirements. These funds basically come from long term and short term borrowings and hence long term financial sources are decided by a proper capital structure. In the current scenario the middle class investors have shown a huge interest in shares and stock market, which was earlier restricted to the rich and powerful investors. The concept of investing in shares has made investors realize how to gain more wealth through investment. Shares and stocks are the gateway to it. Economy and technology also play a vital role for making it way to invest in shares. Although investment in the stock market can lead you to high profit it can equally be financially risky. As it is rightly said “NO PAIN NO GAIN” because investment does not happen without taking some amount of risk but these risks vary in all kinds of investment. This article aims to discuss the concept of preference shares vis a vis equity shares. 

Basic concept on capital structure

Capital structure of a company is basically debts and financial instruments which consists of the company’s financing of assets. It is a permanent source of financing which consists of long term debts , preferred stock, & net worth. It is thus the elimination of short term borrowings. Although there are certain factors which affect the capital structure of the company:cash flow position,high rate of interest,low rate of interest,cost of equity,floatation cost,risk consideration and stock market condition.

Shares : smallest unit of share capital

As mentioned in Section 2(84) of the Companies Act 2013, company’s share capital is divided into small fragments which are known as shares. Each share forms a unit of ownership of the company and shareholders are entitled to profits that company may earn in the form of dividend in the future. Shareholders are both the loss bearer as well as the maximum portion of profit of the company. In simple words the shareholder is entitled for certain percentage ownership in the company equivalent to the share acquired by him.

Salient features of shares

  1. A share is basically a right which specifies the amount of the share capital of the company, which holds rights and liabilities. 
  2. As mentioned in Section 44 of the Companies Act, 2013 share shall be movable and transferable property as provided in the Article of Association. 
  3. Share is the right to participate in the profit making of the company. 
  4. Share in India is known as goods and goods according to the Sales and Goods Act,1930 refers to any movable property. 
  5. As mentioned in Section 45 of the Companies Act, 2013 each share in the company has a share capital which is further differentiated by the different numbers but this provision does not apply to the shareholders. 

Types of shares 

Equity shares 

Equity shares are those small portions of the company that are bought by the investors in anticipation of future profits. When someone owns a stock as equity shares are also known as stock they eventually become the shareholder of the company which as a result makes them liable of all the profits and losses of the company.

Shareholders also have the right to vote in all the major and important decisions of the company besides the profit which they receive out of appreciation in value. Equity shareholders also may receive the dividend in the form of bonus from the company. Typically these bonuses are given by the company which is financially strong and which earns regular profits in the accounting year. 

Classification of equity shares 

On the basis of definition 

1. Bonus equity share – It refers to additional stocks issued free of cost to the existing shareholders as bonus. 

2. Rights equity share – It is a new share provided to the existing shareholders at a particular price and time before trading it in the stock market. 

3. Sweat equity shares – it refers to the reward granted to the employees for their exceptional service towards the company. 

On the basis of share capital 

  1. Authorized share capital – Every company needs to prescribe the maximum amount of capital which can be raised by issuing equity shares in its Memorandum of Association. It can further be changed from time to time. 
  2. Issued share capital – It refers to a company’s specific portion of share capital which is offered to investors through issuance of equity share.eg, suppose value of one share is priced 100 and the company issues 10000 equity shares, then the issued share capital will be 1 lakhs. 
  3. Subscribed share capital – It is a part of the issued capital upon which investors apply and agree to accept. 
  4. Paid up capital – It refers to the portion of subscribed share capital which the investors have made the payment of. These may be paid in different calls i.e.,application allotment , 1st call, 2nd call, final call. 

Preference shares 

Preference shares are also known as preferred stocks. These shares are thus those which give the preferential right of receiving the dividend over the equity shareholders. At the time of deciding to payout the investors preference is always given to preference shareholders first. These shares are released to procure the capital for the company which is called as preference share capital. During the time of winding up of a company due to loss the preference shareholders receive the payment first over the equity shareholders. 

Types of preference shares

  1. Cumulative preference share – These shares have the right of receiving arrears of dividend before payment made to equity shareholders. 
  2. Non-Cumulative preference shares – These shares do not have the right to receive arrears out of the dividend. 
  3. Participating preference shares – As per mentioned in Article of Association after the payment made out of dividend to the equity shareholders, preference shareholders can participate in remaining profit. 
  4. Non participating preference shares – These are those preference shares which do not participate in the remaining profit. 
  5. Convertible preference share – These preference shares can be converted into equity shares. 
  6. Non-Convertible preference shares – These preference shares cannot be converted into equity shares. 
  7. Redeemable preference shares – These preference shares can be redeemed by the company at a particular time which cannot exceed 20 years from the date of issue of repayment. 
  8. Irredeemable preference shares – During the time of winding up a company the amounts received by the respective holders is known as irredeemable preference share. 

Differences between preference shares and equity shares

As per Companies Act, 2013 in India companies have no rights of issuing Irredeemable preference shares. On the basis of above mentioned types shares we arrive at the following differences : 

  1. Equity shareholders are the co-owners as of which they enjoy the right of participation in the management of the company whereas there is no such right given to preference shareholders. In other words equity shareholders represent the ownership whereas preference shares represent the payment of dividend. 
  2. Equity shareholders receive dividend payout after the payment is made to preference shareholders. The preference shareholders have the fixed rate of dividend whereas in case of equity shareholders it fluctuates on the basis of profit. 
  3. At the time of liquidation equity shareholders are the last to receive the capital repayment whereas preference shareholders receive it before equity shareholders. 
  4. Equity shares cannot be converted into preference shares whereas preference shares can be converted into equity shares. 
  5. Equity shareholders have the right to vote and be part of the decision making process of the company whereas preference shareholders do not have such right as they are the outsiders to the company and do not have any claim over the company’s assets. 
  6. Payment of equity dividend is optional whereas payment of preference dividend is must. 
  7. Equity shares are best preferred for long-term investment financing whereas preference shares are the best way of investment in short and medium term of financing. 
  8. Investors who have the desire of great risk should go for investment in equity shares whereas investors with desire for low risk can invest in preference shares. 
  9. For companies it is a must thing to issue equity shares whereas in case of preference shares it is not mandatory to issue preference shares for all the companies. 
  10. Equity shareholders receive bonus stocks whereas preference shareholders do not receive bonus stocks. 
  11. Equity stocks are irredeemable whereas preference shares can be redeemed at a certain point of time or when the company achieves its goal. 
  12. Chances of over capitalisation is higher in case of equity shares whereas there is less chance of over capitalisation in case of preference shares.
  13. The cost of equity shares is low because of which any small investor can easily have access to it whereas prices of preference shares is high because of which only medium to big investors can have access to it. 

Key points to be kept in mind while investing in shares: 

If the purpose is gaining the ownership one should always be an equity shareholder as they have the right to vote in the company’s major decision. Preference shareholders receive the fixed amount of dividend over the equity shareholders because of their preferential rights. It is also much safer than equity shares. 

These 2 are general investments in the market with just one point of difference i.e., both of these shares have their own distinctive financial goals which further makes them recommendable by different investors. One needs to decide the time horizon before investing in shares as it plays an important role in deciding which stocks to buy. 

Various ratios help us understand the fundamentals of investment in stocks i.e, price to earning ratios, debt to equity ratio etc.  A new investor should also check how the shares have performed in comparison to the shares of the other companies.  The dividend history is also a key factor for deciding which shares to choose. The investors who are looking to generate a high level of income should look at the company’s dividend declaration which is expressed as a percentage. The stocks with high levels of volatility will rise quickly when the share market is on a boom while they fall like a sand castle when the market is performing not so well,so investment should be made considering the market situation as well as the volatility of the stocks. 

Conclusion

Before trading in any stock market one should first acquire complete knowledge of the same. Although there are noteworthy points of distinction between preference shares and equity shares. Regardless of the fact that these shares are the key essentials for any company inclined to raise funds through the general public or the investors. Such investments are of much higher risk but at the same time they also have high profitability rates,perks and bonuses are also high particularly when investment is made in equity shares.  One of the most important points to always remember before purchasing the stocks or shares is that they should be bought when the market value is down and be sold off when the prices of shares hike. Any investor should always go for long term investment because the share market is subject to fluctuations. Therefore in the long run better returns can be gained. Economy is the important barometer in investing in the stock market as stocks are volatile ,prices fluctuate as per the need of supply and demand. Further, the important factor that dominates the prices is the networth of the company. 


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

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

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Difference between industrial dispute and individual dispute as per Industrial Disputes Act, 1947

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This article is written by Sukhmandeep Singh, a law student at the Guru Nanak Dev University, Amritsar. In this article, we aim to clarify the distinction between industrial disputes and individual disputes, as well as explore the underlying causes of such disputes. Additionally, we will discuss the circumstances in which individual disputes can escalate into industrial disputes, the process of filing these cases, and the situations where the Industrial Disputes Act, 1947, may not apply.

It has been published by Rachit Garg.

Introduction

The exploitation of the labour forces has been going on for a long time. Labourers and their unions have been fighting against exploitation for years now. Prior to 1947, the Trade Disputes Act, 1929 was applicable in cases of industrial disputes and thus helped in resolving them. This Act had a number of flaws that became apparent over time. In order to remove these flaws, the Industrial Disputes Bill, 1947 was proposed in the Legislature. The Industrial Disputes Bill, 1947 was eventually adopted to lay down investigation provisions and also to find some solutions to industrial disputes while providing certain safeguards to the workers. The  Industrial Disputes Act, 1947 is broken into seven chapters and contains 40 sections. It was passed to establish a legal framework for resolving disputes between employers and employees in the country.

To promote the growth and development of industries, it is crucial to promote a harmonious environment within them. In order to achieve this, companies and industries employ various methods, commonly referred to as employer-worker interactions, to maintain positive relationships between management and employees. In India, these types of efforts are made to promote the highest possible level of satisfaction with the community’s economic demands.

The Industrial Disputes Act, 1947, which was amended in 2020 by the Ministry of Labour and Employment to the Industrial Relations Code, 2020, also provides for the successful maintenance of these partnerships.

Applicability of the Industrial Disputes Act, 1947

This Act of 1947 is applicable across the whole of India to every industrial institution engaged in any kind of business, production, or distribution of products and services, etc., regardless of the number of workers employed. Every worker who is either a contractual labourer, apprentice, or part-time worker or a worker who does any kind of manual, clerical, skilled, unskilled, technical, operational, or supervisory work is covered under this Act.

This Act, however, does not apply to persons primarily in a managerial or administrative capacity or to those who are in a supervisory capacity or performing managerial functions; it also does not apply in the instances where Army Act, 1950, Air Force Act, 1950, and the Navy Act, 1957 apply, as well as to those in the police service or officers or employees of a prison.

Who is considered a “workman” under the Act

An industrial dispute can be raised by either a “workman” or an “employer.” The idea of a “workman” is important to the concept of an industrial dispute. Since the Industrial Disputes Act of 1947 is a useful piece of legislation, the courts have expanded its scope and applicability by giving a broad meaning to the term “worker.”

A “workman” is defined in Section 2(s) of the Industrial Disputes Act, 1947 as any person, including an apprentice, who might be employed in any industry to do any type of manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, whether the terms of employment are express or implied, and includes any such person who has been dismissed, discharged, or retrenched in connection with, or as a result of, a dispute. It excludes all members of the army, navy, air force, or police, as well as those primarily employed in management or administrative, supervisory capacities, and those earning more than INR 6500 per month.

The Supreme Court of India ruled in Reserve Bank of India and Others v. C.N. Sahasranaman and Others (1986) that the employees are completely covered by the definition of the term “workman,” which is given in Section 2(s) of the Industrial Disputes Act.

In the case of Ved Prakash Gupta v. M/s Delton Cable India (P) Ltd (1984), it was decided that a person hired in a management or administrative position is not considered a worker.

The courts have gone through this definition many times, and with its various interpretations, they have determined some elements that would help in deciding whether a person is a “workman” or not. Some of the components are as follows:

  • Whether or not a master-servant relationship exists.

It was held in the case of Chintaman Rao v. State of Madhya Pradesh (1958) that there must be the existence of a contractual relationship between a master and servant, i.e., the workman must be under his master’s supervision, direction, and control.

  • When an individual performs a number of functions that share characteristics with other functions, the nature of the primary function for which the claimant is engaged should be considered in determining whether the person is a worker or not.

In the case of John Joseph Khokar v. Bhadange B. S. and Ors. (1997), it was held that while determining whether a person is a workman or not, the court must always try to look at the main or major work for which that person is hired. The designation of the individual or any connected work cannot exempt the individual from the provisions of the Act.

  • Work is either manual, skilled, unskilled, technical operational, clerical, or supervisory in nature; simply because it does not fall within the exception does not make a person a workman.
  • Manual and operational labour, both skilled and unskilled.

The courts have not clarified who is regarded as being engaged in “manual and operational work.” Manual or operational jobs may be described as requiring no particular skills. It is commonly associated with manual labour. The courts have made an exemption for works that need an imaginative or creative component. A work that necessitates training implies that the job is of a unique type and needs a specific mental application. It is not classified as a manual, clerical, operational, or technical job. In a few situations, however, the courts have diverted from the strict interpretation and excluded supplementary creative activities while assessing the term “workman”, for example, when an individual is hired on a contractual basis to provide specialised services, and the contract specifically states that they are not an employee of the company.

A person who suggests strategies to boost sales is employing inventive thinking and so falls beyond the scope of this definition. A person carrying out such ideas by distributing pamphlets or participating in door-to-door publicity, on the other hand, will be classified as a “workman” under the Industrial Disputes Act.

In the case of Chandrasekhara Sharma v. C. Krishnaiah Chetty Jewellers Private Limited (2012), it was held that a salesman may use a number of strategies to persuade customers, but this would not constitute the application of creative or imaginative faculties, and such a salesperson, even if he goes through training to learn about the product, is not excluded from the description of a worker.

  • Supervisory and managerial responsibilities 

A person operating only in a management or supervisory position is not considered a worker under the Industrial Disputes Act. However, when a person performs many duties, the nature of the primary role must be reviewed to establish if the individual is a “workman.” A person’s classification is not conclusive in determining the type of activity.

In the case of Delta Jute and Industries Ltd. Staff Association and Ors. v. State of West Bengal and Ors (2015), it was held that the burden is on the employer to prove that the individual identified as a supervisor truly holds the position of a supervisor. 

What is considered an industrial dispute

According to Section 2(k) of the Industrial Disputes Act, 1947, if any conflict or differences arise between employers and employers, between employers and workers, or between workmen and workmen that are associated with any person’s employment or non-employment or related to terms of employment or with the working conditions of the employee, it is referred to as an “industrial dispute.”

Parties involved in the conflict may be:

  • Employers and employees;
  • Employers and employers;
  • Workers and workers.

There should be a point of contention and not just a mere difference of opinion in order to constitute a dispute. It must be endorsed in writing by the union at the beginning of the dispute. Subsequent endorsements will not validate the reference. As a result, the date when the conflict was argued is very important. It impacts the interests of not just one worker but multiple workers as a class who work in an industrial enterprise. The debate might be about any worker or workers, or about any other individual in whom they have an interest as a group.

In Jadhav J. H. v. M/s. Forbes Gokak Ltd (2005), it was held that a dispute involving a single worker can be considered as an industrial dispute if the dispute is supported by the union or a group of workers, regardless of whether the union supporting the worker’s cause is not the majority of the union.

What is considered an individual dispute

An individual dispute is one that is raised by a single employee only. If we want to consider an industrial dispute, a disagreement must be raised by a registered trade union. Individual disputes become collective industrial disputes when community interests are added to them or when they are backed by workers themselves or their union or federation on their behalf. 

Section 9C of the Industrial Disputes Act, 1947 deals with the creation of grievance redressal bodies and the transfer of certain individual disputes to such bodies. According to this Section, if a company has 50 or more workers, they need to set up a group of people to help solve problems between the company and individual workers. This group is called a Grievance Settlement Authority, and they follow certain rules made by the government. The goal is to solve any disagreements or arguments between individual workers and the company in a fair and just manner.

What are the underlying causes of industrial dispute

Industrial disputes develop as a result of workers’ entitlement to collective bargaining. In order to qualify as an industrial dispute, it is necessary that there be a demand made by workers or employees about employment or non-employment that is refused by the person to whom the demand is made, resulting in the disagreement between them. 

In the case of Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal (1967), the Supreme Court held that if the workmen do not have any kind of disagreement with the management, then every request they make to the government is seen as merely a demand. A simple demand to the government without a conflict with the management cannot become a labour dispute.

The expression “industrial dispute” has been extensively defined in the case of Workmen employed by Hindustan Lever Ltd v. Workmen of Hindustan Lever Ltd. (1984), and according to this case, any disagreement or conflict that may arise between an employer and its workers is included under this term. Hence, regardless of the nature of the conflict, it cannot be barred from being classified as an industrial dispute.

The court held in Shambu Nath Goyal v. Bank of Baroda (1983) that even if the demand was not previously made before the management and rejected by them but was brought during referral or conciliation processes, the disagreement may be referred to as an “industrial dispute.”

The reasons for dispute can be economic grounds such as unhappiness with remuneration such as earnings, promotions, bonuses, allowances, and other perks, or working circumstances such as working hours, leave, and holidays without pay, unfair layoffs and retrenchments, dismissal disputes, and so on.

There can be non-economic issues as well that could cause disputes, such as worker victimisation, ill-treatment by coworkers, sympathy strikes, political considerations, indiscipline, and so on. Non-economic causes of industrial disputes can be classified as psychological causes, which include personality clashes, worker demands for self-respect and recognition, the nature of administration, etc. There are some institutional causes too, such as non-recognition and non-registration of trade unions, issues with collective bargaining, unfair trade and other practices, etc., and the denial of workers’ legal and other rights.

When an individual dispute becomes an industrial dispute

To declare an individual conflict as an industrial dispute, the following elements must be met:

  • A body of labourers, trade unions, or a significant number of workmen must be proven to have made common cause with the individual workmen.

In the case of Newspaper Ltd., Allahabad v. UP State Industrial Tribunal (1960), it was decided that when a group of workers, either through their union or otherwise, sponsored a worker’s complaint, it became an industrial dispute, provided, however, that the assistance or sponsorship gained must come from the employees of the employer being sued.

The Bombay Union of Journalists, of which the Workers Union was a member, initiated a workers’ dispute in the case of Bombay Union of Journalists v. The Hindu, (1961). In this case, the Bombay Journalists Union represented all personnel in the Bombay journalism sector, rather than just one job. The Supreme Court ruled that the dispute was personal rather than industrial.

  • Another criteria for considering an individual dispute as an industrial dispute is that it was taken up or sponsored by the workers as a body of trade union or by a huge proportion of them prior to the date of reference. The Indian Express journalists had no union in the case of Workmen of Indian Express Newspapers Ltd. v. Management Indian Express Newspapers, (1968), thus their issue was taken up by the Delhi Union of Journalists, an external union. That union represented just a small percentage of the Indian Express’s working journalists. The Delhi Union of Journalists was found to have a representative character by the court in this case. This is because the journalists worked with the Indian Express, and the debate escalated into an industrial dispute.

Thus, for an individual dispute to be considered an industrial dispute, it must be supported by the trade union of the workers, or if there is no trade union, by the majority of the workers, or it must meet the conditions of Section 2A of the Industrial Disputes Act, 1947.

According to Section 2A of the Industrial Disputes Act, 1947, if an employer terminates the services of an employee, including by discharging, dismissing, or retrenching them, due to a dispute or differences between the worker and their employer, the resulting disputes will be termed as an industrial dispute. In such a situation, whether any other worker or any union of workers is a party to the dispute or not doesn’t matter.

After three months have passed since an application was filed with the conciliation officer, any worker may make an application directly to the labour court or an industrial tribunal for determination of such a dispute. The appropriate government has the power to appoint any number of persons as it thinks fit to be conciliation officers. Powers of mediating and promoting the settlement of industrial disputes are present. A conciliation officer can be appointed for a specified region, for some specific industries in a specified area, or for one or more specified industries. The government has the power to appoint these officers either permanently or for a limited period of time. This process is present to avoid unnecessary delay in the dispute resolution process. However, the application must be submitted within three years after the date of dismissal, discharge, retrenchment, or termination of employment.

The court will then move forward to proceed with the case as if it had been referred to it under Section 10 of the Industrial Disputes Act, 1947.

Relevant cases

In the case of Express Newspapers (Private) Ltd. v. First Labour Court, West Bengal and Others (1958), it was held that a dispute is said to be an industrial dispute even if it is supported by an unregistered union, but the trade union is required to be related to the employer or the industry in question.

Any delay in filing an industrial dispute does not necessarily prevent it from being heard in the court. In the case of Guest, Keen, Williams Pvt. Ltd., Calcutta v. P.J. Sterling (1959), the Supreme Court stated that if a dispute arises after a significant delay that is not reasonably explained, the tribunal would definitely take this fact into account when dealing with the merits of the dispute.

How an individual worker may file an industrial dispute

There are some ways in which individual workers may file an industrial dispute:

Through trade union

Sections 15 to 28 of the Trade Unions Act, 1926 provide the rights and duties of registered trade unions. A trade union is allowed to make submissions on behalf of an employee or individual dispute if the employee grants written authorization to that union to represent him or her. With that kind of authority, a trade union gets the power to make submissions before any consolation officer, industrial court, or labour court. A recognised trade union is a legal body that can also sue the employer or anyone else if necessary. The union may plead under its own name or on behalf of its members before any labour court, authority, or court.

Through the labour courts

Industrial disputes can be resolved through labour courts as well. One or more labour courts may be established by the competent authorities. The role of these labour courts is to resolve industrial disputes involving any of the items listed in the second schedule.

According to Section 10(1)(c) of the Industrial Disputes Act, 1947, as per the subjects stated in the Third Schedule, disputes that involve a number of workers up to 100 can be addressed by the labour court. According to Section 10(2), if any party to an industrial dispute seeks the government’s permission to refer the disagreement to the labour courts, if the government is satisfied, then only they can submit that referral to the labour courts. As per Section 10(6) of the Industrial Disputes Act, 1947, no labour court or tribunal shall have jurisdiction to hear any case before the National Tribunal.

Through the grievance settlement authorities

Under Section 9(c) of the Industrial Dispute Act, 1947, the employer is under a duty to provide grievance settlement authority as per the regulations established in that name under this Act in respect of each industrial establishment employing or having employed fifty or more workers on any day during the preceding twelve months.

Each company or industrial establishment that employs twenty or more people must have one or more grievance resolution committees to settle conflicts originating from individual grievances. The grievance redress committee may conclude its proceedings within 45 days after receiving a written request from or on behalf of the aggrieved party.

The employee who is dissatisfied with the grievance redressal committee’s decision may file an appeal with the employer, and the employer must dispose of the decision within one month of receiving the appeal.

Kinds of disputes that are not subject to the Industrial Disputes Act, 1947

Section 2(j) of the Industrial Dispute Act, 1947 defines industry, which was later expanded upon by the Supreme Court of India in the case of Bangalore Water Supply and Sewerage Board v. R. Rajappa (1978). The phrase “industry” has been broadened under this case, and this ruling overturned numerous previous judgements. The court decided:

Any activity will be classified as industry provided it meets the ‘triple test,’ which is as follows:

  • Activity that is systematic and organised;
  • Activity that is done through the cooperation of employers and employers;
  • Activities in which whether or not capital has been invested in the production and delivery of goods and services.

These are the basic tests that cover the activities covered by the industries. Some pointers to remember are as follows:

  • It makes no difference whether or not there is a motive for profit or capital.
  • If an organisation is a trade or company, it does not cease to be one because of any philanthropic acts done by it, animating the triple test; hence, it cannot be excused from the scope of the concept of industry under the meaning we are referring to here.
  • The dominant nature test means if there is a complex of activities going on, then the dominating nature of services and the integrated nature of departments would be the test. Any departments that are connected with the industry would also be considered an industry.

Types of disputes that are not entertained under the Industrial Disputes Act, 1947 are:

  • Casual activities are not covered under the Act because they are not systematic.
  • Small clubs, co-operatives, research labs, and gurukuls are mostly of a non-employee nature, so they are also not entertained under the Industrial Disputes Act.
  • A single-door lawyer who seeks assistance from a clerk, but in this case there is no organised labour and hence not covered under the Act.
  • There are many volunteers who do selfless humanitarian acts such as providing free legal or medical services, which are not covered under the act.
  • There are many sovereign functions that are precisely defined as maintaining law and order, legislative functions, and judicial functions.

Charitable organisations are classified into three types:

  1. Organisations that generate revenues but are not used for charitable purposes.
  2. Organisations that earn no profit but engage workers like in any other business, but the goods or services that are produced in the process are provided at a cheap or no cost to the impoverished poor.
  3. Organisations that are centred on a humane goal are carried out by men who do labour not with the motive to get paid, but because they share a love for the cause and receive job pleasure.

The first two categories (A and B) as mentioned above are industries, but category C is not an industry, because they entail collaboration between employers and employees.

In National Union of Commercial Workers v. M.R. Meher (1962), it was determined that a solicitor’s firm is not an industry, even if it is formed as an industrial concern. 

The major activity of the hospital in the case of Dhanrajgirji Hospital v. The Workmen (1975) was imparting nursing training, and the beds in the hospital were designed for their practical training. It was ruled in this case that it was not an industry since it did not engage in any type of economic activity resembling commerce or business.

Conclusion

So it can be concluded that there is no distinction between an industrial dispute and an individual dispute. Industrial conflicts will encompass all disagreements, whether they are presented individually or collectively. 

However, according to Section 2A of the Industrial Disputes Act, 1947, not all conflicts must be addressed by an industrial tribunal. It is only when a disagreement involves a discharged, fired, retrenched, or terminated worker that it is considered an industrial dispute. As a result, for issues pertaining to bonuses, gratuities, and other interest issues, only a collective dispute will become an industrial dispute if it was simply an individual dispute and was taken up by the union or a considerable body of workers. 

In this context, collective bargaining does not imply that the disagreement must be supported by a recognised union or that all or a majority of the workers in an industrial facility must be parties to it.

References


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Different kinds of paralegal work in Tech Law

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This article has been written by Amulya (Team Lawsikho).

This article has been published by Sneha Mahawar.​​ 

Introduction

The work in tech law is very diverse and dynamic in nature. The scope of work in tech law is only limited by the developments in technology. This article discusses some of the various jobs and freelancing works available in tech law on some of the most popular professional and work platforms.

Upwork 

  1. Outer Space Administrative Assistant

This is the job for you if you are interested in outer space. The icing on the cake is if you are also well-versed in legal writing. Become an Administrative Assistant for Space Law and Ethics. Legal researchers and Paralegals with an interest in International business, law, and technology are recommended for this position.

The necessary experience for this job is:

  • A flair for legal writing
  • Proficiency in Microsoft Office
  • Experience as an administrative assistant or any related field for over 2 years
  • Ability to effectively communicate and adhere to timelines

The application process is as follows:

  • Submit a brief essay enunciating your interest in the job as well as your interest in the subject matter of the job essentially outlining what makes you the best candidate for the job.
  • Upload the result of your first attempt at an online typing test which can be taken at https://www.typing.com/student/typing-test/1-minute.
  1. Creating Startup SaaS Terms of Service, Privacy Policy, Cookie Policy, Acceptable use policy

This is a SaaS marketplace for freelancers and companies. They are registered in the UK but work internationally with clients all over the world. They require a trusted person to prepare the legal documents for their upcoming project. The work would revolve around technology law with aspects of anti-money laundering and employment law.

Skills necessary for the role:

  • Experience in Corporate Law;
  • Knowledge of Technology Law;
  • Flair in legal writing;
  • Basic Tech and IT Consulting;
  1. Crypto Company Registration.

The requirement of the company is an initial consultation to get the company registered in the field of cryptocurrency. The working hours would be less than 30 hrs/week and the duration of the project is less than a month.

The necessary skills to apply for this role are:

  • The applicant must have basic knowledge of Cryptocurrency.
  • The applicant must be well-versed in Contract Law and Legal Entity Structuring.
  • There must be experience in Data Privacy Laws and awareness of the Privacy Act as well property law.
  • The applicant should excel in Tech and IT Law and should know the International regulations related to blockchain.
  1. Privacy Policy, Terms of Use, Cookie Policy – for website

The position is open to applicants across the globe. The company is engaged in the activity of developing multiple apps for e-commerce businesses worldwide. Their requirement is an individual who can draft the privacy policies, terms & conditions and cookie policy page for their website.

The following skill sets are required for this position:

  • The applicant must be well acquainted with data privacy laws and data protection and management.
  • The applicant must understand and be versed in legal writing as well as policy drafting.
  • Basic knowledge with respect to Tech and IT law is a mandate.
  1. New C-Corp: Add 4th co-founder, Customer Contract, Terms of service and Privacy policy

The company is engaged in the business of working with content creators to sell AI bots to their fans. The business charged the content creators via Stripe for such service on a minute basis. The company is in need of legal assistance in the following matters:

  • The company wishes to add a fourth co-founder. They require recommendations as to what would be a better option, to add a co-founder to the existing business or dissolve and re-do with the fourth person.
  • They already have a contract to hire influencers to allow them to use this platform. They need a person to review the contract so as to remove any liability that the company may have with regard to the AI-Bot and limit such liability to the influencer. Furthermore, the contract needs to include terms and conditions regarding payment and revenue share.
  • With respect to the contract, they want it to be appealing to attract the fans as well.

Linkedin

  1. Paralegal Associate at Anuation Research and Consulting LLP

Anuation is a Research & Consulting firm that diversifies through multiple legal domains including Intellectual Property Services, Research Services, IT Services. They have a team of patent agents, technology experts, engineers and support staff, and are covering a plethora of technical fields such as HITECH sector, ITC sector, Engineering sector and Biotech Domain. 

They require a paralegal associate who would be required to handle the patent applications as well as file them. The applicant will have to adhere to all deadlines and follow up with the clients to enable smooth functioning.

The necessary skill set for the position is as follows:

  • The candidate must be well-equipped to work on MS Office.
  • The candidate should have above-average knowledge of all patent-related documents.
  • Any prior experience working with patent applications would be preferable.
  • The candidate must also have basic awareness of IP docketing and should be flexible in working on manual docketing and auto-docketing software.
  1. Data Privacy Protection Client Data Protection Architect in Accenture

Accenture is a leading global professional services company with specialisation in digital, cloud and security. The company offers Strategy and Consulting, Technology Consulting, and Technology & Operation services. 

The company requires a ‘Client Data Protection Architect’ who would be required to understand, assess and establish Client Data Protection controls and parameters to reduce the business risk faced by the company as well as the clients of the company. Key responsibilities include partaking in the Client Data Protection Support team based in India and working and managing controls as mentioned in the security contracts.

The experience necessary to apply for this position is as follows:

  • Basic knowledge of the structuring of a contract including the main terms of a contract.
  • Experience working in information security frameworks.
  • Candidates must have a legal contracting background along with knowledge of the tech aspects.
  • Understanding of cross-border data protection rules.
  • Problem-solving and analytical skills.
  1. Legal Manager at CRISIL Ltd. 

CRISIL is an Indian analytical company that provides ratings, research, and risk and policy advisory services and is a subsidiary of the American company S&P Global. The company is looking for a legal manager who would have the following job responsibilities:

  • Drafting, reviewing, negotiating and executing contracts of the company which includes RFP’s, Non-Disclosure Agreements, Master Service Agreements, Statement of Works, Licensing Agreements, IPR-related documents and any other legal documents pertaining to CRISIL.
  • Providing assistance in the implementation of the contractual process as well as carefully monitoring all contracts.
  • Be involved in mediation and dispute resolution by actively participating in all the claims, disputes, etc and taking note of the same referring to the contracts of the company.
  • The candidate will also be required to provide assistance and guidance with reference to more complex legal arrangements, for example, regulatory matters or employment issues.
  • Maintaining consistency of the contracts of the company and their timelines, both regionally and globally.
  • Advisory position with respect to Intellectual Property Rights and Data Protection.
  1. Assistant Legal Counsel at HSBC

HSBC is a banking and financial services organisation operating in more than 60 countries. The company is currently on the lookout for an experienced professional for the role of Assistant Legal Counsel.

The following are the responsibilities associated with this role:

  • Take ownership of the negotiation and execution process for Traded Market Documents, including ISDA Master Agreement, CSA, AFMA, GMRA, GMSLA, CDEA, Compensation Agreements, Guarantees, FX Give Up notices and related documents.
  • Ensure end-to-end management of the negotiation and execution process for these documents.
  • Conduct a thorough review of the constitutional documents for each counterparty, considering their jurisdiction and the applicable laws in various global regions.
  • Assess the constitutional documents to ensure compliance with relevant legal requirements.
  • Ability to work in a team to ensure efficient completion of work across the team.
  • Timely update of the internal databases and entry into the system is a mandate.
  • Ability to adhere to tight deadlines and deliver quick turnaround times.
  • Utilize legal and analytical skills to perform comprehensive research and analysis.
  • Enhance the research process to ensure accurate and informed decision-making.
  1. Paralegal for Dunzo

Dunzo is an Indian company that is engaged in the business of delivering groceries, essentials, fruits, meat, and pet supplies to customers at the click of a button. It uses a bot based system to interact with the customers and provide enhanced services. The company wants to hire a paralegal. This position shall include the following job responsibilities:

  • Managing and organising the repository of all legal documents making a system for efficient document storage and maintaining their integrity and confidentiality.
  • Proofreading all legal documents and verifying all details as the business is tech-savvy in nature.
  • Managing the vendor and invoice and maintaining accurate records for the same.
  • Compiling information and preparing statistics, charts, graphs, and other summaries is another responsibility which will help present this data in an appealing manner.
  • Assisting the legal team with their requirements on a timely basis is an important aspect of the role, which may include drafting contracts for the use of AI as well as conducting research.
  • Proficiency in Microsoft Office Suite, particularly Excel, Word, Outlook, and PowerPoint, at an intermediate to advanced level is essential for carrying out the responsibilities efficiently.

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

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

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Chinnaya vs. Ramayya : an analysis

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This article has been written by Vibhuti Thakur, pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution, and has been edited by Oishika Banerji (Team Lawsikho). 

It has been published by Rachit Garg.

Introduction

The case of Chinnaya vs. Ramayya (1882) that appeared before the Madras High Court deals with the concept of privity of consideration. Considered to be an English doctrine, privity of consideration says that consideration cannot be paid by a third party, who is not a party to the contract. Thus a stranger to the contract is completely barred from paying the consideration. However, in this landmark case, it was finally laid down that in India this rule is inapplicable and consideration may  move from a stranger to the contract. For example: ‘A’ goes to a car showroom to buy a car. But the consideration is to be moved by A’s father. Father being a stranger to the contract should not have the right to move consideration on behalf of A as per the rule of privity of consideration. But in India there is no bar to such a transaction. Father may move the consideration on behalf of the son. This article discusses the concept of privity of consideration in light to the case of Chinnaya vs. Ramayya (1882).

Relevant provisions surrounding privity of consideration

In the Indian Contract Act, 1872, consideration is clearly defined under the interpretation clause (Section 2(d)). This section outrightly declares that consideration can be moved by “the promisee or any other person.” The express wordings of this section makes it clear that the intention of the legislature is to not follow the English doctrine of privity of consideration and that any stranger to the contract can pay the consideration in a contract.

One of the relevant examples of this transaction is, trust, under the Indian Trust Act, 1882, where one person creates a legal body called, trust, for the benefit of another person called the beneficiary. But the title of the property is with a third party called the trustee who works for the benefit of beneficiaries. Here the consideration is moved by the trust settlor to the trustee. But the benefit is received by a third party.

Development of privity of consideration before Chinnaya vs. Ramayya (1882)

Before delving into the case in hand, it is necessary to get an overview about the concept of privity of consideration by means of several landmark decisions that had appeared in this regard before the 1882 case had seen the daylight. 

Dutton vs. Poole (1688)

The facts of this case were that for the marriage of the daughter, the father was about to sell timber from a part of his estate.  But his son (brother of the soon to be bride) promised to bear the marriage expenses and suggested the father not to sell the timber. The father on this promise did not sell the timber and relied on the son to fulfil his promise. Later on the occasion of the marriage the son refused to pay the amount to the daughter. She filed a suit claiming the same.

The son contended that the agreement was between the father and the son, the daughter was neither a party to the suit nor she was paying any consideration to the son. Hence her suit cannot be maintained.

It was held that the daughter could maintain an action against the son on his promise to the father, though she was neither a party to the contract nor was she paying any consideration to the son. The consideration and promise to father could be extended to her. This judgement did not acknowledge the rule of privity of consideration. However, in 1861 another judgement came which gave the principle of privity of consideration. 

Tweedle vs. Atkinson (1861)

The facts of this case were that the fathers of the husband and wife contracted that both will pay a certain amount of money to the husband. And after the death of the parties the executors will pay the sum of money. In the terms of contract they added that the husband will have the power to sue for the amount if unpaid. During the lifetime of both the fathers no issue arose as to non payment of the decided sum. After the death of both the fathers the executors refused to pay the sum on grounds of privity of consideration. The husband sued  the executors for payment.

The court said that the husband’s contentions are not maintainable and gave the rule of privity of consideration which means that consideration cannot be moved by a third person who is a stranger to the contract.  It was held that there must be privity of contract as well as privity of consideration.

  • The decision in Dutton vs. Poole (1688) was overruled in this landmark judgement. It was vehemently said that there is privity of consideration as well as privity of contract.
  • This is a rule under English law only, but in India this rule is not followed. Rather Indian law allows the consideration to be moved from a stranger to contract. Therefore, the decision in Dutton vs. Poole (1688) is still followed in India.

Chinnaya vs. Ramayya (1882)

Facts of the case 

A woman gifted her property to her daughter (defendant) through a registered gift deed. The consideration being payment to Rs.653 /- every year to the woman’s sister (plaintiff). The property was gifted to the defendant and an agreement for the fulfilment of the payment of the annual amount was made and executed. But later the defendant refused to pay the agreed amount resulting in the plaintiff suing the defendant.

Contention raised by the parties

There were three parties in this whole transaction.

Plaintiff

The plaintiff contended that the defendant is not paying the agreed annual amount for which there was an agreement.

Defendant

The defendant took the defence that the plaintiff is not paying any consideration to the defendant so the agreement is void and unenforceable. The property gifted by a third party is not a consideration under the rule of privity of consideration.

Issue raised 

Whether the rule of privity of consideration applies in this case or not, i.e., whether the defendant is liable to pay an annual amount to the plaintiff against the gift of property by a third party?

Judgement delivered

The Hon’ble Court observed in this case that since the original contract was between the old lady and her daughter and the plaintiff is a stranger to this contract. But in this case the consideration was indirectly paid by the mother to the daughter through the gift of the property, the daughter is liable to pay the agreed annual sum of money to the sister of her mother. The Court followed the old English case Dutton vs. Poole (1688) and held that since in India there is no privity of consideration, strangers to the consideration can sue for the enforcement of contracts. The Court also interpreted the Section 2(d) of the Indian Contract Act,1872 which expressly declares that the consideration can be paid by the promisee or any other person. Hence, the defendant was directed to pay the annual sum to the plaintiff. The case was decided in favour of the plaintiff.

Criticism received by the judgement

Jurists like Pollock and Mulla gave two important criticism of this judgements:

  • They were of the view that this judgement sidelines the Sections 2(a), 2(b), 2(c) of the Indian Contract Act, 1872 and only gives importance to the Section 2(d) of the Act.
  • This rule gives a stranger to contract a right to sue. It can cause unnecessary implications in proper cases.
  • The contract cannot be enforced by the third party until the acceptance is made to the proposal.

Conclusion

This case laid down that India does not follow the rule of privity of consideration. Thus, consideration can only be paid by a person who is a party to the contract. Although the plaintiff had not paid any consideration to the defendant but since the consideration was indirectly moved by the defendant’s mother it is considered valid and the defendant is bound to perform her part of the contract. This case lays down that “consideration may be moved by a stranger to the contract”.  However, changes have been suggested in this rule by the Law Commission Report due to unnecessary interference of third parties who paid consideration. It is suggested that only such cases must be made maintainable where the third party’s interest is involved in the case.

References


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Career opportunities and job responsibilities of a tech lawyer

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This article has been written by Amulya (Team Lawsikho).

This article has been published by Sneha Mahawar.​​

Introduction 

“AI will replace you!”- With the skyrocketing advancements in technology, it is not outside the realm of possibilities that AI could one day replace basic legal work. This fear has only snowballed with the recent news of a chatbot’s ability to outperform most law school graduates on the bar exam in the United States. One field of law that will become even more relevant with such digital developments is technology law, making the role of tech lawyers more important than ever before. This article primarily focuses on the work that a tech lawyer does and the possible career opportunities available in this field. 

What is technology law and who is a tech lawyer

Technology law governs the use of technology and its association with law. As ever evolving technology continues to shape the world, technology law covers a plethora of legal issues associated with such virtual advancements such as dissemination of information in the digital space, development of rules and regulations against hacking, digital copyright protection, etc. The post Covid-19 world, more specifically, has led to a substantial shift to online platforms and has exponentially expanded the scope of technology law across the globe, making the role of tech lawyers essential in the 21st century. 

A tech lawyer ideally has a deep understanding of legal as well as technological concepts, and is most importantly able to connect the two. Merely understanding the importance of a tech lawyer without the work they do is like constructing a building but no knowledge of what you are building. 

Career opportunities and job responsibilities of a tech lawyer

Protection of Intellectual Property

As businesses and art are flourishing in the digital arena, a common concern herein is protection of intellectual property such as copyrights, trademarks and patents to protect the originators of such IPs. This is where the role of a technology lawyer comes into play; they have wide job responsibilities as far as intellectual property is concerned. Some of them are:

  • Registering copyrights and defending copyright infringement claims. 
  • Working on DMCA and other takedown and content-infringement notices.
  • Handling trademark issues on e-commerce and social media platforms.
  • Assist companies in determining if they have rights against a competitor using a similar mark and enforcing such rights.

Companies/Firms: Maheshwari and Co., IndusLaw, Nishith Desai Associates etc.

Policy drafting

Laws are mandatory to regulate fair conduct within a society and the same is the case with technology. This includes assisting the government to inculcate new policies with respect to the growth in technology. For example, the Information Technology Act, 2000 came into being due to a switch to electronic transactions. Similarly, with furtherance in technology associated with artificial intelligence and data science, there is a need to monitor its scope. The role of a tech lawyer includes the following:

  • Drafting of privacy policies for compliance with European Union General Data Protection Regulations (GDPR) or other data protection laws.
  • Enforcing a set standard of terms and conditions to be followed by individuals and corporations while engaging in the digital space.
  • Incorporating laws to prevent any kind of harassment in the digital space.
  • Analyse the need for fresh rules and regulations for upcoming technology.

Companies/Firms: IDinsight, Centre for Policy Research etc.

FinTech, EdTech, MedTech, etc.

Commonly known as the tech family, terms such as FinTech, EdTech etc., are used to coin new activities and models in the business world. Wherever there is technology, a tech lawyer would be required to safeguard against any legal issue. Indian tech startups are now operating globally, creating opportunities for tech lawyers.

For example, FinTechs have adopted new digital technologies to change the face of financial and banking services by offering an array of amenities such as quick method of payment, personalised chatbot, security against transactions, etc. With all business models where the business has an interplay with technology, a tech lawyer is required to do the following work:

  • Identification of regulatory barriers to new technology.
  • Constantly working with companies to ensure compliance with laws.
  • Drawing necessary commercial agreements, for example, developing the legal framework for electronic transactions and payment services in FinTechs.
  • Providing advice, assistance and support in creation of structures and environment for ethical and legal compliances.

Companies: PhonePe, Byju’s, Vatech India Pvt. Ltd. etc.

Digital Media Companies

The emergence of content creation has led to a rise in the work of digital media companies. Content creation is not merely a byproduct of the digital age but varied factors such as the lockdown and community support have led to a boom in online content creation. The world of influencers and online content, such as OTT platforms, is the future and since after the pandemic, it has dominated headlines across the globe. From contract drafting to regulation of content, a tech lawyer would have the following responsibilities when working with digital media companies:

  • Drafting of commercial contracts and terms and conditions for web apps, services, e-commerce portals and other websites as well as online marketing and promotion agreements.
  • Drafting of a variety of technology agreements pertaining to development and evaluation of software, website development, master services agreements.
  • Regulation of the content uploaded online and its adherence with the existing laws.
  • Assisting new-age influences in negotiating contracts with high-end brand.
  • Preparing e-commerce and OTT specific agreements with specific OTT platforms.

Companies: Growth Hackers Digital, IProspect, Webchutney etc.

Decentralised Finance (DeFi) Companies

This is nothing but emerging trends around revolutionising the finance industry which is currently deeply embedded in the banking system. These eliminate the role of banks and the charges taken by them for their services. Blockchain and cryptocurrency are core technologies of decentralised finance which offer people innovative ways to manage their funds. In this regard, some of the works that a tech lawyer can do are:

  • Drafting of new policies and recommendations to regulate decentralised finance companies.
  • Drafting of contracts and ensuring compliance in this money-making field that most people know very little about.
  • Investment policies for jurisdictions across the globe to attract individuals and corporations to invest in their DeFi Companies.

Companies: Defi Dash, iBex Pay, Hashcash Consultants etc.

Data Management and Privacy Concerns

Every company has certain secrets which, if go out, could shake the well-being of their business. Data privacy and management revolve around governing who shall have access to data and also incorporating the necessary tools and policies to ensure that such data remains protected. In this industry, tech lawyers would be required to carry out the following responsibilities:

  • Determining database access and taxation on the sale of softwares.
  • Advising and monitoring transfer of data between different data jurisdictions. 
  • Performing legal risk audits and IP-related diligence on software or digital services platforms.
  • Lodging complaints and finding legal remedies against cyber offences.
  • Reporting and responding to data breaches. 
  • Negotiating key terms such as indemnities. 

Companies: STR, Privitar, BigID etc.

Artificial Intelligence and Data Science

From AI being able to create pictures of people who don’t exist to students now using ChatGPT to finish their homework, AI is certainly taking over the world. However, its regulation still remains a grave concern due to possible privacy breaches and overarching power of those with access to such technology. Tech lawyers are not only important but necessary, given the development of AI and the rising concerns regarding its use. A tech lawyer would have the following roles to play in managing AI and data science:

  • Formulation of the laws that govern the scope of use of AI.
  • Drafting of commercial contracts for the use of technologies such as ChatGPT by other companies.
  • Regulation of use of AP technology to ensure that the privacy of persons remains intact.

Companies: DataRobot, People.ai, AKASA etc.


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

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

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Is the British prerogative a critical section of the British Constitution : an analysis

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British

This article has been written by Randeep S Rana, pursuing Diploma in Legal English Communication – oratory, writing, listening and accuracy, and has been edited by Oishika Banerji (Team Lawsikho). 

This article has been published by Sneha Mahawar.​​ 

Introduction

British prerogative or in simple words Royal prerogative is a birthright accorded to the Royal families under the British Constitution. Under the same, a King/Queen/Monarch can act on his/her own will without any approval/assent of the Parliament of a Nation and no question can be raised upon his/her Majesty’s act before a court of law. It is a noteworthy constituent of the British Constitution. A prerogative warrants a person to deploy forces, declare wars, grant pardons, regulate civil services, sign treaties, to grant honours and awards among many other privileges. This article discusses whether the British prerogative is to be considered as a critical section of the British Constitution or not. 

Historical perspective on British prerogative

Royal prerogatives were established in a time when the monarch had absolute power, which was considered to be derived from God. The roots of the Royal Prerogative goes to the middle ages where the King had the supreme authority of the Kingdom and as a prerogative, a King could not be made answerable in his own court. It was based on the principles that a “King can do no wrong”, “a King never dies” and  “a King can not be bound by statute unless the statute said so” and statues were made by a King. In those times, the king was both the feudal lord and the head of the kingdom, at the same time. The king had a residual power to deliver justice and there was no court where a king could be prosecuted/sued, the king himself with his council of acts as a court and delivered justice and the decision of the King shall be final and cannot be challenged anywhere. 

Two eminent jurists of their time Blackstone and Dicey had different views upon the Royal prerogatives. While Blackstone claimed the Royal prerogatives can be applied to the rights which a King/Queen can relish alone and not in common among the kingdom, Dicey had a view that prerogative is a residue of an arbitrary and discretionary command which was legally handed in the hands of a King/Queen/Monarch. However, from long ago, Royal prerogatives were considered an embarrassment or a disgrace to the British Constitution because of their unquestionable authority and against the rule of law. 

Soon questions started arising upon these discretionary and arbitrary powers of kings and the main shift was caused after Magna Carta 1215 when these discretionary powers were limited which were absolute prior to this time. Later then came the Statute of Proclamations 1539 which added more hindrance in the Monarch’s powers. And after Bills of Rights 1689 parliament started opposing and questioning the absolutism of the Monarch’s power.

With time, it became established that the bulk of prerogative powers could be exercised only through and on the advice of ministers responsible to Parliament. Although the monarch retained formal power of appointment and removal of ministers and ministries, the development of collective ministerial responsibility made it increasingly difficult for the King or Queen to exercise such power freely against the wishes of the Prime Minister and Cabinet. However, the ability of ministers to rely on prerogative powers continues to give rise to problems of accountability.

Present scenario

The Royal Prerogatives these days are considered to be the quintessential source of the British Constitution. The role of Parliament nowadays is increased and Royal Prerogative no longer can be said as discretionary power. However, Monarch is a nominal head of the Government. All functions are exercised by the council of ministers but under the name of the Monarch. In present times powers of the Monarch are very limited and they are strictly subject to common law, freedom of citizens and any statute and Monarch can longer be the absolute authority of power and rights of citizens and law comes before the discretion of the Monarch. The majority of these Royal prerogatives are exercised by ministers in the name of the crown and they can act without any concurrence of the Parliament.

Types of royal prerogatives

These prerogatives can be exercised either personally or politically.

Personal prerogative

  1. No criminal proceeding is maintainable in the name of Monarch in person, it is based on the belief that a King can do no wrong. However, civil immunity of the Monarch had been removed by “The Crown Proceedings Act of 1947 (UK)”. 
  2. The Monarch always remains; only the person holding the Monarch is changed, it is believed that the “King never dies”.
  3. King cannot be an infant and a King is not bound by any statute unless it is expressly declared by that particular statute.

Political prerogatives 

Political prerogatives can further be detailed in subclasses

  1. Administrative Prerogative – The monarch is responsible for the appointment of the Prime Minister (Leader of the Majority) and other members of the cabinet. Monarch is also the head of the Armed forces and the members of the Armed forces are also recruited by Monarch.
  2. Legislative Prerogative – The monarch can summon or dissolve the Parliament with the consent of ministers, however legally he can do so without the consent of ministers but the act would be unconstitutional. Also, a bill, in order to become an Act, needs the approval of the crown.
  3. Judicial Prerogatives – This is also termed as mercy prerogative which further be divided in two parts: –
  1. Grant of Pardon – Pardon can be granted with or without imposing any conditions thereon. The Crown can grant pardon on the advice of the Home Secretary and it is subject to the judicial review as held in case of “Council of Civil Services Union versus Minister of Civil Services- The GCHQ Case [1985] AC 374, [1985] ICR 14”.
  2. Grant of nolle prosecui – It means stopping of legal proceedings against a person but it does not result in acquittal rather the accused can be later on charged for the same charge. The Attorney General of England and Wales can act in the name of the crown while exercising this power.
  3. Foreign and Other Prerogatives- Declaring war and peace, signing of treaties, recognising the status of foreign countries, etc are some of many foreign prerogatives. Apart from this Crown also appoints Bishops in church on advice of the Prime Minister, grant of awards on the advice of the executive, etc. 

Judicial impact of British prerogative on their constitution 

In Lord Advocate v. Dumbarton District Council [1990] 2 AC 580, Lord Keith restated the immunity provided to the Crown and these immunities also apply to Crown’s servants undertaking certain activities of the state.

In R v. Secretary of State for Foreign Affairs, ex p Lord Rees-Mogg [1994] QB 552 the court was unwilling to question the use of the prerogative power to sign and ratify the Treaty of the European Union. The European Union Act, 2011 created a justiciable right to a referendum and consequently, the denial of a referendum could have been challenged via the courts.

In  De Keyser’s (1920) (UK), and Fire Brigades (1995) (UK) it was suggested that when a statute is created and put in the dominating position the prerogatives’ powers will automatically be docked. 

Conclusion

In toto it can be analysed that Royal prerogatives are still in a dominating position and the supremacy of the Crown/Monarch cannot be omitted when we discuss its prevalence in the British Constitution. However, the degree of arbitrariness and discretion is not as much reflected as it was seen in the medieval period when the King was considered to be the fountain of Justice and the guardian of peace. The British Constitution needs a reforming amendment pertaining to the Royal Prerogative but every strong building stands needs a strong foundation to stand tall and small steps towards it would ultimately result in the reformation of the British Constitution where the citizen’s rights would have more privileges than of the Crown.

References 


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

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

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Skills needed to become a successful tech lawyer

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This article has been written by Oishika Banerji (Team Lawsikho). 

It has been published by Rachit Garg.

Introduction

In today’s “Go Virtual” era, the need for a technology lawyer stands immense. Tech laws are meant to look after both private and public usage of technology and therefore, a tech lawyer does have a lot of responsibilities resting on their shoulders. 

You can be a successful tech lawyer too. All you need to have is a set of primary skills that will help you master your work easily.

Let’s get started!

Knowledge about laws and offences in the tech world

Technology is a wide field and therefore, knowledge about both the laws governing it and the laws that can govern it in the coming future must be present with a tech lawyer. Knowledge cannot be only confined to the governing laws, but also to the offences that can take place in the tech world. Some of them are provided hereunder: 

  • Phishing: A method for attempting to obtain sensitive data, like bank account details, through a bogus email or website solicitation.
  • Ransomware: Through infected emails, messages, and malicious websites, a ransomware assault acquires access to a victim’s device and encrypts the data there.
  • Malware attacks: Malware attacks are frequent cyberattacks in which the victim’s system is compromised by malware, which is typically a malicious software.
  • Cyber defamation: When someone is unjustly accused of something in an online medium, such practice is referred to as cyber defamation or online defamation.
  • Sextortion: Sextortion can be considered as a form of blackmail which involves threats to release explicit text, images, or videos about someone who has been wrongly framed by their partners or sex rackets.
  • Revenge porn: Distributing pornographic or sexually explicit images or films of someone without their consent is a kind of sexual abuse and is often done by disgruntled exes.

Drafting 

Drafting is one of the foremost skills of all lawyers. The following drafting skills are assets for any tech lawyer:

Drafting a cyber complaint

For drafting a cyber complaint, the following things need to be kept in mind: 

  1. Knowing the jurisdiction of the offence and which cyber cell to register the complaint. (although as per the Information Technology Act, 2000, a cyber crime comes under the purview of global jurisdiction).
  2. Clearly providing the details of the aggrieved party (name, contact details, and address for mailing).
  3. Knowledge about the offence caused to seek redressal accordingly. 
  4. Drafting should be done with precision and without ambiguity. 
  5. Only material facts are to be mentioned and not the law. 

Drafting of legal notice for action against cyber defamation

Legal notice must be drafted in the prescribed format with the following essentials: 

  1. Should be drafted on the letterhead of an advocate, which is to be specific and properly structured.
  2. Address and contact details of the advocate must be present.
  3. Date of issuing the legal notice along with name, address, and contact details of the defendant person. 
  4. The name and requisite details of the client should be mentioned as well. 
  5. Description of the incident giving rise to the cause of action has to be mentioned.
  6. The relief for the client should be clearly claimed. 
  7. A specific direction to the opposite party alongside the limitation period has to be provided.  
  8. The notice must be signed (with date) by the advocate.

Drafting of development agreement 

Some of the important clauses of the development agreement that has to be taken into consideration are:

  1. Determining the parties of the agreement.
  2. Software development services to be availed.
  3. The statement of work that is to be executed by means of the agreement.
  4. Obligations of the customers availing services.
  5. Fees to be paid to the developer of the software.
  6. Confidentiality clause.
  7. Customer ownership of work products.
  8. Background of the technology developed.
  9. Consequences and scope of infringement.

Drafting of master service agreement 

Drafting of master service agreement is another key skill that tech lawyers must be aware of in order to:

  • Work with E-commerce companies.
  • Maintain customer relationships, resolve disputes between the customers and vendors and IP disputes.

Drafting notification requirements in the event of a cyberattack 

This is necessary to make the governing cyber cell immediately aware about the cyberattack taking place. Such notification should generally consist of:

  1. Location of such offence.
  2. Alerting the aggrieved party.
  3. Name of the party and other requisite details such as phone number and address. 

Safeguarding trade secrets by Non-Disclosure Agreement (NDA)

Usage of NDA in companies is not new to safeguard confidential information. With the coming of tech lawyers, the need for the following has increased: 

  • How to draft NDA
  • Basics and meaning of trade secret 
  • Scope of NDA
  • Clauses to be mentioned in a NDA.

Registering a cyber complaint 

Reporting cyber fraud involves the following:

  1. You can visit the National Cyber Crime Reporting portal (Helpline Number -1930) to register any complaint about cyber crime, including cyber fraud. 
  2. The nearest police station can be contacted as well to file your complaint. 
  3. Complaints can also be filed by email to the cyber cell of the state.

Filing a complaint on the National Cyber Crime Reporting portal involves the following: 

  1. Open web page https://cybercrime.gov.in.
  2. Click on ‘File a complaint’.
  3. Accept the terms and conditions on the next page.
  4. Following this, “Report other cybercrime” option has to be resorted to.
  5. Select the ‘citizen login’ option, thereby entering requisite details. 
  6. Enter the OTP sent to your registered phone number.
  7. Enter the details of cyber crime on the next page. 
  8. After reviewing, the ‘submit’ option has to be clicked.
  9. After being directed to the incident details page, mention the supporting evidence of the crime and click on ‘Save and Next’.
  10. The following page needs the details of the alleged suspect if you have any.
  11. Verify the information and click on the ‘Submit’ button.

The above is an example of registering a cyber complaint within Indian jurisdiction. Different nations have their own set of rules and guidelines for doing the same. 

Reporting customer data breach

Tech lawyers must be aware about the procedure required to be followed to report customer data breach. This helps the firms connect with their clients in a better manner. 

Creating content for businesses

Creating content for businesses is a skill required for tech lawyers because:

  1. Content marketing is considered to be essential for any law firm that is looking to generate more traffic and leads online.
  2. Content creation is considered to be an ideal marketing strategy for firms to grow
  3. Ranking high in search and reaching users actively.
  4. Attract authority-boosting backlinks to the website, which offers strong signal to Google, therefore informing the firm to be reputable. 
  5. Web content that has been optimized by search engines helps firms know about the frequently used keywords by people to search about firms. 

Carrying out legal risk audits in digital platforms offering services 

It is the process of internal audit that helps to assess tomorrow’s risks today, and therefore is considered to be one of the key areas in the organisation’s use of technology. Tech lawyers are vested with this responsibility and therefore need to be efficient in the same. 

Carrying out IP due diligence for software companies

Before going for licensing, assignment or franchising, it is essential that due diligence for intellectual property to be transferred be done. Checks and balance to the licensee company’s activities are a necessity. Tech lawyers should be equipped to handle such tedious processes. 

Creating milestone-based deliverables in development contracts

Necessary elements tech lawyers should know in regard to this are:

  • How to write milestone-based deliverables in development contracts.
  • What all to specify while writing milestone-based contract.
  • Mentioning of which information is required or giving effect to such contract. 
  • Possible remedies for breach of such contracts.

Advising a client on the change in the applicability of laws 

Tech lawyers should be skilled enough to effectively advise a client on changes in laws applicable to them when they intend to automate some parts of their manufacturing processes.

Advising on copyright and trademark infringement of online platforms

Violation of intellectual property rights in digital platforms is a common sight in today’s time. It is either software infringement or domain name violation. In both cases, both copyright and trademark rights are said to be violated. Tech lawyers should be skilled in carrying out the following:

  • Compliance with laws like GDPR and DMCA
  • Knowledge about the possible remedies and actions to be taken in cases of infringement to provide relief to the aggrieved party. 

Hand in cyber forensics and the law of evidence across different jurisdictions

Computer forensics investigators follow cohesive and consistent methods when extracting and analysing digital evidence in order to prevent legal issues when presenting that evidence in a court of law. This is because many legal systems throughout the world are founded on precedents. Knowing about such methods and applying the same is an important skill for tech lawyers to win a case. 

Advising tech businesses

Tech lawyers are vested with the responsibility of advising tech businesses in the following major areas: 

  • Rights and liabilities of tech businesses and platforms at times of infringement or breach of their data.
  • Intermediary liabilities.
  • Legal remedies available to the aggrieved party.
  • Transfer of data between two different jurisdictions.

Performing legal work on Bitcoin and other cryptocurrencies advice across jurisdictions

One of the prime advantages of Bitcoin and other cryptocurrencies is that third parties and intermediaries, such as banks, can be avoided when two individuals are willing to transact money with each other, thereby making it possible by means of public and private keys. 

The two individuals can be in different jurisdictions, and therefore performing legal work in consonance with the same effectively is essential. 

Idea and interest towards emerging technologies

To be an avid tech lawyer, knowledge about fundamental concepts of technology and being updated about emerging technologies (AI, Robotics, Drones, SpaceTech, Augmented Reality and Autonomous vehicles) stands must. 

Knowing various modes in which technology can be transferred

Knowledge and clarity about the modes of technology transfer are required, and the tech lawyers need to be well-versed with: 

  1. Licensing: The licensing agreements are considered to be legally binding contacts by means of which the licensor (technology owner) gives permission to use such technology to the licensee. The ownership is not transferred in the same. 
  2. Assigning: In case of assigning, the ownership is transferred. This is what makes it different from licensing as well. 
  3. Franchising: In case of franchising, the recipient gains the ability to produce goods independently that are on par with those made by the technology supplier in terms of quality. The franchisor has stricter control over the franchisee as compared to licensors have over licensees. 

Understanding taxation on sales of software

This skill is required for two reasons, as have been provided hereunder: 

  1. As there lies no standards or guidelines for recognising software as tangible property, there is some confusion when taxing software for sales tax purposes. 
  2. Software sales frequently entail transmitting standardised, prewritten software to the consumer. In this situation, it will be crucial to track and divide the expenditures of the software and consulting services.

While the above-discussed skills are some of the most significant ones that a tech lawyer must possess, they are not limited to the same. As technology evolves, skills evolve along with the same.

If you have these skills already, you are on your way to becoming a successful tech lawyer, and if you do not have them, it is never too late to learn.

All the best!


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

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

https://t.me/lawyerscommunity

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

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Effects of cybercrimes on the US Economy

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Cybercrime

This article has been written by Anjan Bandyopadhyay pursuing Diploma in Corporate Litigation and has been edited by Oishika Banerji (Team Lawsikho).

This article has been published by Sneha Mahawar.​​ 

Introduction 

The United States is one of the leading countries that is pushing the world towards the digital age. Innovation of computers, software, and the internet gave immense support to the US economy to grow at a rapid pace. The development of the software industry contributes to the US economy as well as helps almost all services have a digital presence be it e-commerce, banking, education, etc. People are habitual to accessing, storing, copying, changing, and transmitting information much faster and easier than it used to be through the internet. The rapid growth in the software industry and access to the internet also brings a new set of challenges such as security threats, privacy concerns, spam, identity theft, personal data breaches, phishing attacks, DDoS attacks, infringement of intellectual property, etc. The limited intellectual property protection can hamper the growth of research and development and the financing of small firms.  This makes the United States one of the most targeted countries and incurs huge economic losses. According to the Federal Bureau of Investigation’s annual Internet Crime Complaint Center (IC3) report the cybercrime complaints were 8, 47,376 in 2021 up from 7,91,790 in 2020 which indicates a 7% increase. If the loss is considered in terms of money, it went up too from $4.2 billion to $6.9 billion in 2021. This article provides a detailed analysis about cybercrimes in regards to the United States. 

Cybercrime in small and medium-sized businesses during the pandemic

Small and medium-sized businesses are the main pillar of the US economy. It garners two-thirds of new jobs in the workforce and accounts for 44% of US economic activity.  Most companies scrambled to shift operations online during the pandemic. The increase in remote work means personal devices i.e. laptops, smartphones, and tablets have access to sensitive companies’ information. It has been seen for the last three to four years that rapid extensions in remote and online work fetch small and medium size businesses more vulnerable to cyber-attacks. Therefore, Covid induces lockdowns have paved the way for new challenges for companies to spend more money to protect companies’ sensitive information.

Suddenly, demand for security software and in-house security professionals rose which was insufficient as per increasing demand. This situation further weakens the cyber security infrastructure that postulates hacking. Barracuda Networks, a cloud security firm, has mentioned that small businesses are three times more prone to be attacked by cybercriminals. The RiskRecon, which assesses companies’ cyber security risk, estimated that the incidence of cyber-attacks will increase by 150% in 2020-21.

Cybercrime attacks through the supply chain

Large organisations collaborate with small companies in the US. In 2014 PwC reports explained that cybercriminals often target small and medium-sized companies where the security budget is nominal. Cybercriminals gain a foothold on the interconnected business of large organisations with which they partner. If cyber attacks are fed into supply chains then big businesses are also affected. Cybercriminals using legitimate credentials can blend in with regular network traffic. Additionally, small businesses are forced to move their products from supply chains and spend money on investigations, legal fees, and regulatory filings. Furthermore, small businesses suffer irreparable economic losses and are forced to close permanently. This leads to another significance, which is, increasing the rate of unemployment thereby, also, affecting the US economy.

State-sponsored cyber warfare against the US economy

The US’s strong economic prowess and extensive international soft power keep its position unchallenged. The prime threat to the US economy comes in the form of cyber attacks, avail through the lack of stringent rules and punishment. China and Russia have emerged as the two major hegemonic challengers to the United States. For the past decades, these states have competed with the U.S. for hegemonic superiority and adopted a planned strategy to steal and copy US technologies and trade secrets. They get success to some extent to establish tech companies in the same domain which are now justifiably competing with US tech companies in both innovation and market capitalization. Most of the manufacturing industries shifted from the US to China and the trade deficit in goods with China was approximately $2.4 trillion from 2003 to 2012. With the rising economic strength with proper cyber security policy, China extends and strengthens its ties with a large number of developing countries and erodes American hegemonic status globally.

DDoS attack

It is evident that China’s cyber warfare is properly planned; focused and continuously active targeting US companies and gradually weakening corporate networks. China does substantial harm to the economic interest of the US by targeting consumer-centric organisations with mandatory internet presence for Distributed Denial of Service attacks. A DDoS attack impedes an organisation’s online operations by overloading systems with requests, causing a loss of revenue during the period of interruption. So the customer does not get any online service and is compelled to switch to a competing organisation. In addition, such an attack can tarnish the organisation’s brand value, diminishing its future revenues and business opportunities.

IP theft

Over the last two decades, intellectual property theft is rampant in the US while companies working in research and development, such as high-technology companies, are more likely to be targeted for IP theft. If the company’s intellectual property has been stolen, the company no longer has a monopoly because the stolen secret potentially is utilised by a competing company. It is very difficult to find the perpetrator who is held responsible for IP theft. The legal process is still not sufficient to bring them behind the bar especially if the IP was stolen by a foreign national. As a result, the company is actually undersized and gradually shut down.

There is substantive evidence of IP theft in the US. In 2012, SolarWorld AG, a German solar energy company, started legal action against a Chinese solar manufacturer alleging that the Chinese company dumped products in the USA at prices below fair value. The SolarWorld network was also targeted for IP theft. In 2014, a federal court confirmed five Chinese nationals’ theft of trade secrets and hacking of the networks of six US companies including US subsidiaries of SolarWorld AG. Due to this cyber theft, SolarWorld AG lost 35 percent of its marketplace.

Business email compromise

Cybercriminals often hack the company email accounts of business leaders and CEOs. Attackers fetch important data such as names of the executives, travel plans, and other business credentials then use spoofed email accounts to trick them. It is also known as spear phishing and uses a targeted attack. Cybercriminals collect such secret information and supply it to rival companies in exchange for money. Cyber intrusion for purposes of stealing trade secrets, proprietary technology, and sensitive business information has been making the news. According to the FBI, the BEC scam was amounting to $1.8 billion of reported losses.

Ransomware attacks against companies

According to the Treasury’s Financial Crimes Enforcement Network, a report indicates that ransomware is an increasing cyber threat to US businesses. It was reported that $600 million was paid to cyber criminals for ransomware-related attacks. Ransomware is a malicious program that prevents access to one’s own data and files. Cybercriminals block computers and demand ransom in exchange for returning the computer data. Now it is really difficult to handle this type of cyber attack. US officials connected with companies and advised them not to pay the ransom to the cybercriminals as it fuels even more hacks to company resources.  But few companies have no other option but to pay off the attackers who hold their sensitive information hostage.

Intimidation of business software

Technology companies are more vulnerable as cybercriminals exploit inadequately protected devices to launch external attacks against a third party. Devices that work with the Internet of Things are more prone and insecure as manufacturers aim to adopt it by cutting costs of security protection. Software is also vulnerable as cyber attackers often inject code and capture the system of companies. Innocent coding errors may make a program vulnerable to software exploits. This type of cyber attack happens in the IT industry as a system with minimal error is produced at several times the cost of ordinary software but ultimately will hopefully pay off through increasing software vulnerabilities. In addition, the different case study proves that in some cases open-source software is less secure than commercially licensed software. But most companies like to work with open-source software because it reduces the operating costs of the companies.

Effect of cybercriminals on the capital market and financial sector

Cybercrime affects the capital market as well and could impose substantial losses on the economy. If investors could no longer trust the securities on online transactions, financial assets would lose their attractiveness. Additionally, companies would no longer be able to view the stock market as a reliable source of raising capital. Consequently, the cost of capital would increase, reducing economic growth. Investors, having a foray into other investment assets, would likely incur higher costs associated with information gathering, and would lose the benefits associated with liquidity and risk sharing made by well-functioning capital markets.

The Defense Advanced Research Projects Agency, a division of the UN department of defence, recognized several areas of concern posed by cybercriminals to the financial sector. One of them is Flash Crash, named after the 2010 Flash Crash. The flash crash occurs when the sell order is manipulated to cause a rapid decline in the stock market index. It makes an economic loss for market participants because wealth is being redistributed among traders in an arbitrary manner. Investors are losing trust in the stock market due to this manipulation by cyber criminals. If a flash crash happens occasionally, big traders could not participate in the stock market resulting in low liquidity levels.

The problem of insufficient data causes financial loss

It has been reported that cybercrime incidents are inundated by insufficient data. Most companies have a decadal approach to reporting cybercrime incidents because companies face a negative aura that affects their market value when they approach relevant authorities. Cybercrime incidents could be minimised if data on past trade secret theft and cyber attacks were more readily shared across companies. 

It is true that many cyber attacks go unreported by companies. The Center for Strategic and International Studies (2014) published that 3000 U.S. companies had been hacked in the US. The report further stated that Google was hacked in 2010, at the same time 34 other large organisations in the US were also hacked but only one of these companies reported officially that it had been the victim of a cyber attack.

It is difficult to estimate the financial loss of companies due to malicious cyber activity extending beyond the direct losses. It also affects economically linked companies, corporate partners, customers, and suppliers. Sometimes cybercrime goes undetected or even when it is detected is mostly unreported. Cyber insurance companies are possibly in the best position to collect proper information about cyber breaches. But insurance pricing data are considered its own and are not available publicly. Growing incidents of cybercrime compel companies to increase budgets on cyber security.

Finally, cybercriminals also steal the personal information of individuals from corporate entities and government offices. This happened multiple times in the US. It causes a negative impact on households that rely on the services provided by both corporate entities and the government. Sometimes individuals are direct targets of cybercrime committed through the internet and email.

Measures taken to control cybercrimes

Cybercrime at its core the US Government must protect its economy and information infrastructure by enhancing its security. If any of the aforementioned types of cyber crimes happen, then this can cause havoc on the economy. Cybercrime is a growing industry now with a wide range of services and techniques for criminals. These techniques are social engineering, distributed denial of service, malware, etc. Hacking tools and technical support become more widely available. As a result, cybercrime attacks have both broadened and deepened at the same time. Cyber fraudsters often flee to the dark web, where Tor and escrow payment methods hide their identities, escaping from law enforcement action.  

While the US has been the focus of recent cybercrime activity, the Government has an important role in protecting the nation. The Government should invest in cyber security research, be well aware of the latest changes happening in this field, and increase cyber defence potentials by acquiring the necessary technology needed to combat crime. The government should include cyber security in the course curriculum so that students get interested in cyber security education and gradually become cyber security professionals. Doing so will protect the country from an economic loss that might result from cybercrime. Government is also responsible to protect essential infrastructures such as the power grid, weather forecast system, traffic control system, etc from malicious cyber attacks. Attacks on infrastructure can damage the entire economy. 

A proper surveillance system with a dedicated department should be deployed in order to restrain the infrastructure from any cyber attack happening. A new cyber law and regulations should be framed that must comply with vigour. Banks, financial institutions, technology companies, and other small and medium-sized business establishments are subject to regulatory checks that include a review of their safeguards for protecting assets from cyber threats. The regulations will also impose on US-based organisations dealing with foreign clients. Companies subject to this regulation must inform their customers and other affected parties of cyber attacks. 

The crime must be disclosed to the government, customers, and controllers within a certain time of the company’s becoming aware of the cyber attack. This new law will further increase the number of publicly reported cyber crimes. The lack of data makes it impossible to properly determine losses incurred by the US economy and further ascertain whether more active government involvement is required to limit cyber threats.

Another key concern is that organisations are reluctant to invest in cyber security or cut down the budget on cyber security. A strong cyber attack can cause a total revenue loss of business. Expenditure on information security could potentially have protected the business from any cyber threats. The company can spend money to buy security software and hire an information security professional who can identify the threats and correct them. The expert can spread cyber security awareness among the employees.

Technology companies should secure their products and software from any IP theft or code manipulation. Companies should run a test to check the security standards before it is delivered. During the test, creators should rectify any defects. These tests should be repeated until the product or software meets the proper security standards. Companies should be responsible for providing technical support and offering updated services to keep their product up to date and secure from any vulnerabilities after the product’s release.

Conclusion

Cybercrime is manmade and not solved fully by framing relevant law; it’s also necessary to grow human morality and ethics in a proper manner. However, the ever-shifting nature and scope of cybercrime suggest that constant effort is essential to mitigate it. To be precise, defending the US economy is not solely on the shoulders of government, corporate entities, and general citizens; it is a combined effort that all must participate in together to protect the US economy from cyber threats.

References


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