The article is written by Ansruta Debnath, a law student of National Law University Odisha. This article is on the sudden exit of Lionel Messi from Barcelona and details as to why the contract between the two could not be signed.
The name, Messi, has been a common household name for decades all over the world. This Argentinian professional football player, who also captains the national team for Argentina has been sometimes known to be the best player in the world for his unparalleled skills. In fact, he is also considered one of the greatest footballers of all time.
But Messi and Argentina are not the only two terms that go hand in hand. In the world of professional football clubs and leagues, Messi has been intrinsically linked with the Spanish, Catalan club, FC Barcelona, having been part of that club for almost two decades. However, in one of the most shocking events of 2021, especially for professional club football fans, Messi and Barcelona parted ways with the latter because they were unable to afford Messi. This article gives you the reason for the sudden termination of the long-standing relationship between Lionel Messi and Barcelona.
Messi and Barcelona
Football giant Lionel Messi and FC Barcelona had a relationship that spanned for almost 20 years. Messi signed his very first contract on a napkin with this club in the year 2000 at the young age of 13 as he entered the Barcelona Academy. Since then, he made his senior debut in 2003 and consequently played 778 games for the Catalan club, collecting or scoring almost a whopping 672 goals. He went on to win 35 trophies for Barcelona and six Ballon D’Ors while in the club, trophies that commemorate only the best football players in the world.
As Messi stated in the final press conference he did on behalf of Barcelona, this club had been family to him and he attributed almost all his professional growth and success to it. Thus leaving Barcelona was neither easy for him, nor was it easy for his fans. Messi completely broke down in the press conference while announcing the heart-breaking news and subsequently received a standing ovation.
Why did Messi leave Barcelona for PSG
Lionel Messi’s exit from Barcelona came as a shock to all. Certain reports claimed that Messi’s contract with Barcelona fell through because he was asking for a 30 per cent increase in his salary. But in the emotional press conference that Messi held for announcing his departure from Barcelona, he categorically stated that those reports were false and that in fact, he had offered to reduce his salary by almost 50 per cent. The reason why Messi could not remain in Barcelona was because of the financial and organizational woes of the club, the La Liga rules and Spanish law, all of which have been discussed in depth below.
La Liga Financial Fair Play Rules
The Financial Fair Play Rules and Regulations were established in 2009 to prevent professional European football clubs from overspending from their budget. Overspending was expected to happen if the club was caught up with the need for success and overestimated its capabilities. This is what Barcelona fell victim to. Barcelona had been facing extreme financial losses for a long time, which got particularly exacerbated by the pandemic and subsequent lockdown which drastically affected its turnover rates.
As per the La Liga Financial Fair Play rules or the La Liga Economic Control (established in 2013 in consonance with the UEFA rules), Barcelona’s wage-to-turnover percentage has to be 70 per cent. That is, all teams are subject to a variable salary cap, which limits player salaries and acquisition expenditures to 70% of club earnings. For Barcelona, its losses amounted to 578 million dollars with the club being in debt for upwards of 1.39 billion dollars. Consequently, numbers showed that the wage to the turnover percentage for Barcelona was coming at around 105-110%, which was a gross violation of the rules. Thus, La Liga could not have allowed the contract to be signed.
Messi could not have played for Barcelona even for free. Without signing him on, the wage to the turnover percentage for Barcelona would have been 95 per cent which was still much more over limit anyways. To sign on Messi, Barcelona had to shed at least 200 million dollars in salaries only, something which became very difficult to do because of the low and limited player transfer activity all across Europe.
It is important to note that Messi is one of the reasons behind Barcelona’s current predicament. His previous contract was for 555 million euros (652 million dollars) over four years, the most of any athlete, and included 115 million euros (135 million dollars) merely for signing the contract and 78 million euros (91 million dollars) as a “loyalty bonus.”
By extension, other players were highly compensated in order to maintain some semblance of parity within the team. Marc-Andre ter Stegen, Gerard Pique, Jordi Alba, Samuel Umtiti, Sergio Busquets, Miralem Pjanic, Philippe Coutinho, Sergi Roberto, Frenkie de Jong, Antoine Griezmann, Ousmane Dembele, and Francisco Trincao all have contracts for more than €100,000 a week. Barcelona’s payroll cost for 2019-20 was 671 million euros (786 million dollars) at its peak.
Spanish Contract Law
However, there is another reason why Messi could not have played at a reduced salary or even, hypothetically, for free. According to Spain’s contract law, any new contract must involve at least 50 percent of the wage as given in the previous contract. This rule was done to avoid any kind of financial manipulation from the salary-giver. Thus, Messi could not have played for free for Barcelona anyways. He could have played for a 50 per cent cut in salary but it wasn’t a viable option for the club itself.
Speculations
After breaking away from Barcelona, Messi joined Paris Saint-Germain FC. As is accompanied by all major events, even this was not free of speculations and controversies. On the forefront, it has been speculated that Barcelona leadership already knew they would not be able to sign Messi for a long time. This entire series of events was apparently an attempt to liberalize La Liga Financial Rules. Recently, there have been rumours that Messi might return back to Barcelona. This would cement the fact that all this was indeed an elaborate football strategy.
Some media houses have speculated that the false hope (of Messi joining Barcelona) created weeks before the shocking announcement was a PR strategy to help club management navigate the fan backlash that was sure to come with the forced departure of Barcelona’s greatest player. That is, Barcelona deliberately waited until a week before the season to announce it, putting the blame squarely on La Liga and its rules. In the eyes of the public, club officials demonstrated that they at least gave it their all.
Conclusion
Till now there is no concrete news of Messi returning to Barcelona and it seems unlikely he will return back unless La Liga relaxes its rules. While Paris Saint-Germain has, after signing Messi, created a dream team consisting of some of the world’s best football players namely Messi, Mbappe, Neymar and so many more. But, Barcelona without Messi does not seem like Barcelona at all.
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.
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Perceiving digitalization as a transformational energy
“The future of Healthcare is Digital – not just in Digitally enabled care delivery such as telehealth and Remote monitoring, but in the use of data as a Strategic Asset”
~ ECG Management Consultants
Digitalization is Transformational – it’s not just about making existing data digital but also harnessing the ability of digital technology to capture and collect data, process it, establish insights and trends, make better business decisions, and also enable new business models (Digitization, on the other hand, is a process of converting existing data and processes from analog to digital). Digital Technologies are used to alter and change a business model to increase revenue and find new value-producing opportunities.
The larger objective or the long-term idea of digitalization is to enable automation processes, increase data quality, efficient collection, and being able to structure all types of data such that the application of advanced technology can create better and smarter software infra and systems.
Understanding digitalization in healthcare
With the emergence of Digitalization, traditional processes of collecting data were no longer viable. Simply put, no one wanted to use a long manual register to make data entry with a pen anymore. Digitalization therefore invented easy processes that made every organization’s “burden of maintaining data” easy. The privilege is not just limited to data-collection, rather it extends to every cohort that uses data for one or the other purpose – storing, retrieving, accessing, transferring etc.
Processes powered by digitalization are like a backbone to service sectors, especially in a country like India. Medical sector is one such service vertical where digitalization can create wonders. As a trillion-dollar industry, the medical sector houses hospital care, clinical services, dental care, nursing homes, home healthcare, medications, pharmacy, research and development to say the least. And in many ways, digitization is already enabling medical practitioners and experts from all these areas to reach out to people in need with authentic information – may it be consultation, service, creating awareness etc. Infusing social media channels with proper medical information and enabling doctors to connect with their current and potential patients goes a long way in creating an efficient and affordable healthcare system. To say the least, it can potentially make healthcare accessible to remote places free of cost.
Benefits of such a digitized health care system are priceless
In an overview –
It establishes better coordination between health care professionals and patients. Patients no longer have to carry a booklet of their medical history with them wherever they go. Simply uploading them on to a drive or a cloud can help any professional get access to their health condition.
A patient’s willingness to comply with a protocol influences recovery and well-being. In the long run, this will reduce healthcare costs as well.
With wearable medical gadgets, access to vital information such as a person’s heart rate and physical activity such as walking can be tracked. All these gadgets are connected to a smartphone which is then connected to the internet. All this vital information is connected to a cloud, and/or be routed to your doctor in real time. Therefore, digitization has made it easier to monitor progress and identify alarming situations proactively.
All these applications and more are for sure a boon to mankind. But healthcare data is largely real-time with a short retention span. For example, a man’s abnormal heartbeat today can cost him his life in a matter of hours. A diabetic person’s chronic illness can be managed efficiently only if he gets access to medical information at the right time. From such examples it is easy to understand that ‘Time’ and ‘data,’ are crucial for the success rate of a digital healthcare management system. However, access to these two can probably expose patiens’ s data to risk, compromising their privacy.
Understanding health data
Health data that contributes to the above includes – inpatient-outpatient history, pharmacy-related data, enrollment details (name, address, age, dob, email, telephone number), financial transaction through payments, investments made through insurances, recovery time, most-suitable medicines, most purchased medicines, interests and preferences, brand affinity, ethnicity, gender, most visited departments and so on.
All these data sets are categorized as PII [Personally Identifiable Information] or in other words are classified as Sensitive Information that can identify a person. In the Health care sector, this is otherwise called as patient’s Protected Health Information [PHI].
In the wrong hands, data of this type can be exploited for commercial purposes.
Impact of breach in health data
Hackers usually target such PII for financial and insurance information. Using the two, anyone can commit financial identity theft (stealing money from someone else’s account) or medical identity theft (for example, a drug trafficker might use fraudulent insurance information to purchase prescription drugs or someone may use this information to submit fraudulent claims to Medicare and other health insurers without your authorization, disrupting your medical care.
In some instances, fraudsters mine this data to understand the preferences and demand of certain brands and medicines. Knowing this can lead a manufacturer to establish monopoly, kill competition and charge exorbitant amounts of money for a generic drug which may be in demand.
Alternatively, specific consent is required for fair use of non-routine and non-healthcare purposes. The information can be disclosed without the patient’s consent when
a) there is a reporting of notifiable or communicable disease mandated by law,
b) by court order and
c) if it is totally anonymized data.
Privileges provided to patients include inspection and access to their records without any time limit, restricted access to and disclosure of individually identifiable health information and a need to provide explicit consent to allow access and disclosures, which will be audited.
Accessing and mitigating risks of Electronic Health Records [EHR]
Inaccurate or incomplete information about a patient can potentially lead to misdiagnosis of a condition. This can severely impact a patient’s life. Provision to update data within the existing digital process (or EHR) should be made.
Cost is another major factor- Creating a digital system can be expensive. Digitalization is not only about installing software that can collect and store data. It is about creating an infra that supports interoperability, privacy, authorization, security, and encryption. A lot of service providers do not invest in data privacy due to its cost. Investing in a digital solution which supports both operations and security can save an entity in the long run.
The Department of Health and Human Services [HSS] in India does not recognize Health data privacy Acts like HIPAA (Health Insurance Portability and Accountability Act) directly, but indirectly derives many aspects/elements from it such as Privacy, Security, and Breach Notifications. HIPAA compliance addresses operations like (1) Self-audits (2) Gap identification and remediation (3) Policies and procedures (4) Employee training (5) Business associate management (6) Incident management. Therefore, it may not be a bad idea to develop a software system bearing all the above compliance programs in mind.
Data privacy regimes in India
Electronic health records (EHR) were first heard of in the 1960s. Although it was in an ideation phase, the intent was to have records that could hold details like patient history, diagnosis, laboratory results, allergies, details of immunization, treatment etc. in digital format.
The Ministry of Health & Family Welfare (MoH&FW) first issued guidelines for Electronic Health Record in September 2013 based on the recommendations of the EMR Standards Committee. The guidelines were revised and re-introduced in December 2016. The guidelines contain instructions related to ownership of the data recorded. To that extent, the healthcare provider is identified as a trusted party who holds the data for the patient. The medium of storage or transmission of such records is also owned by the healthcare provider.
The collection, transfer, recording and holding of Sensitive Personal Data or Information (SPDI) in electronic form is detailed out under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011. It is a set of rules formed under the Information Technology Act 2000. These rules apply to any corporate organization or entity dealing with SPDI of a person.
In 2018, the Parliament introduced the Digital Information in Healthcare Security Act, 2018 (DISHA), for promotion and adoption of e-health standards in India. It is a legislation which aims to provide better data privacy, confidentiality, security and standardization. The idea extends to create regulatory authorities both at central and state level, the National Electronic Health Authority (NeHA) and the State Electronic Health Authority (SeHA).
In 2019, the Personal Data Protection Bill or PDP Bill was also introduced by the Parliament. It applies to processing of personal data where such data has been collected, disclosed, shared or otherwise processed in India and processing of personal data by the State, any Indian company, any Indian citizen or any person or body of persons incorporated or created under Indian law. The scope is wide enough to also apply to foreign companies processing personal data in connection with any business carried on in India, or any systematic activity of offering goods or services to data principals within the territory of India.
Conclusion
The rise of digital health data has opened up various avenues for third parties who want to abuse it. In many countries there are laws and regulations issued in order to provide data privacy for digital health and to prevent health records being misused and stolen. However, in India, both the bills, DISHA and the PDP, have not been passed by the Parliament as of yet and await enactment. NITI Ayog (National Institution for Transforming India) formulated a plan called ‘National Health Stack’ with an aim to create digital health records of all the citizens by the year 2022. It will be interesting to see how this concept evolves in India.
“The future of Healthcare is Digital – not just in Digitally enabled care delivery such as telehealth and Remote monitoring, but in the use of data as a Strategic Asset”~ ECG Management Consultants
Perceiving digitalization as a transformational energy
Digitalization is Transformational – it’s not just about making existing data digital but also harnessing the ability of digital technology to capture and collect data, process it, establish insights and trends, make better business decisions, and also enable new business models (Digitization on the other hand is a process of converting existing data and processes from analog to digital). Digital Technologies are used to alter and change a business model to increase revenue and find new value-producing opportunities.
The larger objective or the long-term idea of digitalization is to enable automation processes, increase data quality, efficient collection, and being able to structure all types of data such that the application of advanced technology can create better and smarter software infra and systems.
Understanding digitalization in healthcare
With the emergence of Digitalization, traditional processes of collecting data were no longer viable. Simply put, no one wanted to use a long manual register to make data entry with a pen anymore. Digitalization therefore invented easy processes that made every organization’s “burden of maintaining data” easy. The privilege is not just limited to data-collection, rather it extends to every cohort that uses data for one or the other purpose – storing, retrieving, accessing, transferring etc.
Processes powered by digitalization are like a backbone to service sectors, especially in a country like India. Medical sector is one such service vertical where digitalization can create wonders. As a trillion-dollar industry, the medical sector houses hospital care, clinical services, dental care, nursing homes, home healthcare, medications, pharmacy, research and development to say the least. And in many ways, digitization is already enabling medical practitioners and experts from all these areas to reach out to people in need with authentic information – may it be consultation, service, creating awareness etc. Infusing social media channels with proper medical information and enabling doctors to connect with their current and potential patients goes a long way in creating an efficient and affordable healthcare system. To say the least, it can potentially make healthcare accessible to remote places free of cost.
Benefits of such a digitized health care system are priceless
In an overview –
It establishes better coordination between health care professionals and patients. Patients no longer have to carry a booklet of their medical history with them wherever they go. Simply uploading them on to a drive or a cloud can help any professional get access to their health condition.
A patient’s willingness to comply with a protocol influences recovery and well-being. In the long run, this will reduce healthcare costs as well.
With wearable medical gadgets, access to vital information such as a person’s heart rate and physical activity such as walking can be tracked. All these gadgets are connected to a smartphone which is then connected to the internet. All this vital information is connected to a cloud, and/or be routed to your doctor in real time. Therefore, digitization has made it easier to monitor progress and identify alarming situations proactively.
All these applications and more are for sure a boon to mankind. But healthcare data is largely real-time with a short retention span. For example, a man’s abnormal heartbeat today can cost him his life in a matter of hours. A diabetic person’s chronic illness can be managed efficiently only if he gets access to medical information at the right time. From such examples it is easy to understand that ‘Time’ and ‘data,’ are crucial for the success rate of a digital healthcare management system. However, access to these two can probably expose patiens’ s data to risk, compromising their privacy.
Understanding health data
Health data that contributes to the above includes – inpatient-outpatient history, pharmacy-related data, enrollment details (name, address, age, dob, email, telephone number), financial transaction through payments, investments made through insurances, recovery time, most-suitable medicines, most purchased medicines, interests and preferences, brand affinity, ethnicity, gender, most visited departments and so on.
All these data sets are categorized as PII [Personally Identifiable Information] or in other words are classified as Sensitive Information that can identify a person. In the Health care sector, this is otherwise called as patient’s Protected Health Information [PHI].
In the wrong hands, data of this type can be exploited for commercial purposes.
Impact of breach in health data
Hackers usually target such PII for financial and insurance information. Using the two, anyone can commit financial identity theft (stealing money from someone else’s account) or medical identity theft (for example, a drug trafficker might use fraudulent insurance information to purchase prescription drugs or someone may use this information to submit fraudulent claims to Medicare and other health insurers without your authorization, disrupting your medical care.
In some instances, fraudsters mine this data to understand the preferences and demand of certain brands and medicines. Knowing this can lead a manufacturer to establish monopoly, kill competition and charge exorbitant amounts of money for a generic drug which may be in demand.
Alternatively, specific consent is required for fair use of non-routine and non-healthcare purposes. The information can be disclosed without the patient’s consent when
a) there is a reporting of notifiable or communicable disease mandated by law,
b) by court order and
c) if it is totally anonymized data.
Privileges provided to patients include inspection and access to their records without any time limit, restricted access to and disclosure of individually identifiable health information and a need to provide explicit consent to allow access and disclosures, which will be audited.
Accessing and mitigating risks of Electronic Health Records [EHR]
Inaccurate or incomplete information about a patient can potentially lead to misdiagnosis of a condition. This can severely impact a patient’s life. Provision to update data within the existing digital process (or EHR) should be made.
Cost is another major factor- Creating a digital system can be expensive. Digitalization is not only about installing software that can collect and store data. It is about creating an infra that supports interoperability, privacy, authorization, security, and encryption. A lot of service providers do not invest in data privacy due to its cost. Investing in a digital solution which supports both operations and security can save an entity in the long run.
The Department of Health and Human Services [HSS] in India does not recognize Health data privacy Acts like HIPAA (Health Insurance Portability and Accountability Act) directly, but indirectly derives many aspects/elements from it such as Privacy, Security, and Breach Notifications. HIPAA compliance addresses operations like (1) Self-audits (2) Gap identification and remediation (3) Policies and procedures (4) Employee training (5) Business associate management (6) Incident management. Therefore, it may not be a bad idea to develop a software system bearing all the above compliance programs in mind.
Data privacy regimes in India
Electronic health records (EHR) were first heard of in the 1960s. Although it was in an ideation phase, the intent was to have records that could hold details like patient history, diagnosis, laboratory results, allergies, details of immunization, treatment etc. in digital format.
The Ministry of Health & Family Welfare (MoH&FW) first issued guidelines for Electronic Health Record in September 2013 based on the recommendations of the EMR Standards Committee. The guidelines were revised and re-introduced in December 2016. The guidelines contain instructions related to ownership of the data recorded. To that extent, the healthcare provider is identified as a trusted party who holds the data for the patient. The medium of storage or transmission of such records is also owned by the healthcare provider.
The collection, transfer, recording and holding of Sensitive Personal Data or Information (SPDI) in electronic form is detailed out under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011. It is a set of rules formed under the Information Technology Act 2000. These rules apply to any corporate organization or entity dealing with SPDI of a person.
In 2018, the Parliament introduced the Digital Information in Healthcare Security Act, 2018 (DISHA), for promotion and adoption of e-health standards in India. It is a legislation which aims to provide better data privacy, confidentiality, security and standardization. The idea extends to create regulatory authorities both at central and state level, the National Electronic Health Authority (NeHA) and the State Electronic Health Authority (SeHA).
In 2019, the Personal Data Protection Bill or PDP Bill was also introduced by the Parliament. It applies to processing of personal data where such data has been collected, disclosed, shared or otherwise processed in India and processing of personal data by the State, any Indian company, any Indian citizen or any person or body of persons incorporated or created under Indian law. The scope is wide enough to also apply to foreign companies processing personal data in connection with any business carried on in India, or any systematic activity of offering goods or services to data principals within the territory of India.
Conclusion
The rise of digital health data has opened up various avenues for third parties who want to abuse it. In many countries there are laws and regulations issued in order to provide data privacy for digital health and to prevent health records being misused and stolen. However, in India, both the bills, DISHA and the PDP, have not been passed by the Parliament as of yet and await enactment. NITI Ayog (National Institution for Transforming India) formulated a plan called ‘National Health Stack’ with an aim to create digital health records of all the citizens by the year 2022. It will be interesting to see how this concept evolves in India.
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:
In the date of structuration and virtualization of businesses, it’s necessary that anywhere you invest time and money is secured, and the other party won’t back down on their promises. In order to enforce these promises, the contract helps to create a set of binding terms & conditions. The contract creates a right for enforcement of the contract if one party backs down.
Say, Magan goes to a renowned e-commerce website to purchase the latest phone. He pays the amount to the vendor and receives an affirmation that the phone will be delivered to his house in 10 days. After 9 days he receives a package at his doorsteps, but inside that package is an Apple (fruit). In this scenario, the vendor has not fulfilled his part of the contract and now it can be enforced against him for the delivery of the Phone.
The above scenario shows how a contract can be used by the aggrieved party to make sure that the terms and conditions of a contract are fulfilled. So this is a contract, but how is it different from Commercial Contracts?
What are commercial contracts?
Commercial Contracts are a type of contract that is mostly used in businesses that are connected to buying and selling of goods and services and these parties include customer suppliers, partners, distributors, entrepreneurs, etc. Commercial contracts are mostly drawn up by a lawyer or a person of legal background, as it contains a complex set of terms and conditions which can not be identified by a normal person. This set of terms and conditions is carefully drafted so that the other party can’t use any loophole or ambiguity in the contract for their benefit.
Here is an example of a terrible contract: in the year 1980, IBM entered into a contract with Bill Gates’s Microsoft to develop software (MS-DOS) to be used in their computers at $75,000, but out of ignorance, they let Microsoft keep the copyright of the software. Later the same software became the main software for computer applications during the Desktop revolution. If IBM would have kept the rights with them they would have received billions out of it. This is what terrible contracts affect people.
In India, these contracts are governed under the Indian Contract Act, 1872, which governs every business activity. A contract can be made either verbally or written, a written contract is preferred as it has all the clauses and detailed information about the promise and a written contract is easily enforced in the court of law. Commercial contracts are agreements regulating business relationships between individuals and are usually in writing, but they can also be verbal.
Different types of commercial contracts
NDA (Non- Disclosure Agreement)– This agreement creates an obligation on a party/parties to not disclose any particular information which should remain confidential for the survival of a business or any other reason. Example- Coca-Cola Secret Recipe is something that if it were to go out in public would destroy the entire company within a night.
Key terms: Duration of Agreement, Obligation to Disclose, Return of Information.
Employment Agreement– When a new employee joins a company this type of agreement is formed to ensure the rights and liabilities of the employee. Employee agreement is traditionally used in the corporate world while a new Employee is joined to a company.
Key terms: Salary, Benefits, Work Schedule, Vacation Allotment, Confidential Information.
Settlement Agreement– These agreements are formed for the settlement of a dispute among the parties by coming to an agreement. In this agreement the parties agree to an outcome of a dispute between them. This is done to save time and not to get stuck in long court cases which may go on forever.
Co-Founders Agreement– When a startup is formed, this contract is formed so that the founders of the startup may determine their ownership & responsibility in the company. This safeguards the rights of founders as everything is predetermined so there is less scope for any dispute that may cause loss to other founders.
Key terms: Share vesting, Responsibilities, Changes in duty when the company grows, investment to be made.
Loan Agreement– In case you take a loan from a bank this agreement is formed to ensure the repayment of the loan. It includes the terms and conditions under which the financial institution has made the loan available to the borrower. Before the loan is granted it is ensured that the person is in need of the same.
Key terms: amount borrowed, terms of repayment & interest, Security for the loan, Action in case of default of loan.
Franchise Agreement– To set up a new franchise, the Franchisor and Franchisee enter into an agreement for the formulation of their duties during the institution of the franchise and thereafter. Under this agreement the Franchisor grants certain rights to operate a business within the name/ face provided by the Franchisor in exchange for some royalties or interest in the business.
This type of contract is most commonly used throughout the world as no company has enough funds to open up their shop/office in every city. Therefore, these companies look for franchisors to invest in their company and open a franchise. Companies like McDonald’s, KFC, Starbucks, BurgerSingh, etc. use similar contracts to open up stores.
Key terms: Royalties, place of shop, equipment assistance, professional training, initial investment.
Corporate Lease Agreement– It is used to rent your property to another individual. It determines the term of the lease and other necessary information. This ensures the right of both parties as it’s a common practice that the lessor exploits the lessee in terms of unlawful financial demands. The agreement is an important piece of information for both parties. Key terms: duration of Lease, information of tenant & landlord, rent, guarantor.
Advisor Agreement– When a company hires an advisor for work, this contract is put in place to establish the advisor’s services and lay out the terms and conditions of the agreement.
Key terms: equity given to advisor, services given, limit of powers of advisors, term of agreement.
Share Subscription Agreement– When it is established that the company has agreed to sell a specific number of shares to an individual/person at a certain price. The purchasers become shareholders of the company. This is the first set of documents that a company issues to the investor, by which the investor gets affirmation of the allotment of shares.
Key terms: control of investor, return on investment, valuation of shares, confidentiality, indemnity.
Shareholder Agreement– These types of agreements are much more complex & wider in comparison with a share purchase agreement. It is formed between a shareholder and an investor. When an investor invests in a company this contract ensures his rights and authority in that company. It also helps in resolving any dispute that may arise in future and ensures that no shareholder is treated unfairly.
Key clauses of commercial contracts
Preamble/Recitals– This is not a clause in a Contract but it plays an important role in the interpretation of the contract. This is placed at the beginning of the contract explaining the purpose behind the contract.
Term Clause– Duration for which the parties are entering into the contract is stated in this clause, It states from exactly what date the contract is enforced and till which specific day it will remain intact
Termination Clause– This type of clause states the condition under which the contract may be terminated by any of the parties. This clause also guides the parties to the process after the termination of the contract.
Dispute Resolution Clause– Due to any uncertain work or breach of contract the parties may refer the matter to dispute resolution (ADR, Negotiation, Mediation, etc.). As the Courts already have enough burden of other cases, a matter would take years to solve, therefore, dispute resolution will make sure that both the parties work their way out themselves.
Confidentiality Clause– When parties share any confidential information during the process of a contract, this clause ensures that no party discloses that information to any party outside the contract.
Breach of commercial contracts
The most common remedy for breach of contract is monetary damages which are also known as “compensatory damages.” These Compensatory damages can include both “expectation” damages, i.e. what the non-breaching party expected to make on the deal, as well as consequential damages along with any additional losses occurring as a result of the breach. In certain circumstances, parties can also seek specific performance, injunctive relief and rescission of contracts in case of a breach.
Conclusion
Each word that goes into a contract carries some importance and even a single sentence or word can lead to any unwanted loss to a party. While the formulation of the contract is done everywhere in this world, parties need to refer to a lawyer before rectifying the contract, because legal terminologies are complex and require specialization. Commercial contracts are required in today’s world as the parties to determine the liability of parties as a legally binding contract may help the parties to not suffer unreasonably, and it is therefore that the understanding of a contract is important.
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:
Before understanding what is “Big Data”, first we need to understand where this term has come from and what it has replaced. Earlier, we had the term “Data” only, which we now call small data. But to be clearer, there is no such term as Small Data, it’s just the Data. But now when we have a new term i.e. Big Data, we use the term Small Data so that we can compare these two just by their names.
Before big data, generally, we used to talk about traditional data or traditional databases. And the actual story of Big Data starts in the 1970s. In 1970, the scientist E. F Codd designed the whole database and also made huge evolutions in Relational Database (RDBMS). If we talk about RDBMS, in this we store the data in the form of structure data. It means that before storing the data we had to make a structure. So in RDBMS, we use tables, and through these tables, we used to make a structure and then store the data in it.
Structured data means the data for which a proper or standard format is available. But the problem is that the most structured data is not used in the present time.If we talk about all the data which currently exists in the world, only 10% of the total data is structured data and the rest 90% is in an unstructured format. Unstructured data contains photos, videos, etc. for example if we look into a website, some websites contain only photos, some websites contain only videos, and some websites contain a mixture of both and text also. What it means is that we have the data but in unstructured form and we don’t make any structure for that data and it’s not even possible now to make a structure for this huge amount of data that we have now.
So we can say that for unstructured data the term which we use is Big Data and for structured data, we have the term “data” which we now call Small Data.
What is big data
Here in the term Big Data, the word “Big” stands here for nothing but the size of the Data.
So, Big Data means a huge amount of data that is so large that no traditional data management tools can store it or process it efficiently. And it is not the end of this; the Data is now growing exponentially with time.
3 Vs of big data
Volume
All the structured data that we have generally started in KBs, MBs, and maximum in GBs or TBs. Now the data which we have is not in terabytes but it is present in thousands of Terabytes (Pet bytes) and Exabytes (1000 PBs). Now we use these units because the size of the data which is present is so huge.
Let’s understand this with a simple and relatable example.
Facebook generates 4 Pet bytes of data daily. Billions of photographs, billions of likes, around more than 2 billion users it has. So all the data which is being created daily is created on what basis? The answer is that they have proper storage available to store this data.
Velocity
Velocity talks about the speed at which the data is increasing. If we talk about the small data or structured data, it is increasing gradually. Whereas Big data is increasing exponentially. It means that the data which is generated on a daily basis is increasing so fast.
If we have a look at Facebook only, more than 350 million photos are being uploaded on a daily basis and the total number of photos till now is around 300 billion. If we talk the number of likes that Facebook receives in a day is more than 4 million. So, all this data that is being created at this velocity is itself a challenge.
Let’s understand this with a simpler example, suppose the total amount of data that is present in the world till now is ‘X’. Then 90% of this data X has been created in the last 4-5 years. From this, you can easily conclude how fast the data is being created.
Variety
Variety refers to the different types or nature of data that is present; it could be both structured and unstructured. In earlier days, the sources of data that were considered by most of the applications were in the form of spreadsheets and databases. Nowadays, data in the form of photos, monitoring devices, audio, emails, videos, PDFs, etc. are also being considered in the analysis applications. This variety of unstructured data poses certain issues for storage, mining, and analyzing data.
Storage of data
Small data is stored generally in a centralized format, for example, the data of universities or colleges are mostly present in structured forms like data of attendance, library. To save this data we can use the centralized environment which means that your data is present locally to you.
But big data cannot be stored in one place. Like facebook cannot store its data in one place. They have data centers all over the world and they keep everything distributed at different places at different centers. It means the data is present globally; the reason behind this is that if all the data is kept in one place then a single point of failure could occur and all the traffic would be at one place.
Software used
For structured data we were using SQL servers of Microsoft, Oracle, all of these software were designed to deal with, manage and store structured data. But when this data becomes Big Data, then all this software cannot be used for that because everything like processing power, storage capacity got increased. That’s why now we use technologies like Hadoop, Spartz, etc.
Big data and increasing cyber crimes
There has been an exponential increase in the frequency and type of cyber attacks with the rapid growth of the internet. Cybercriminals are exploring various new ways to commit cybercrimes and to get access to computer systems and networks illegally. The question is that is there any role of Big Data in it.
Nowadays corporations are allowing their partners and customers to access data in different ways to facilitate collaborations but this is helping the cyber attackers by making the networks more vulnerable to cyber-attacks.
There has been a corresponding increase in the hacking skills of cyber attackers with the advent of Big Data. The evading of traditional security measures such as signature-based tools is now a thing of the past.
Global cybercrime continues to increase at a rapid pace and effective chief information officers need to get better at anticipating criminal behavior to provide effective and efficient risk management. As both information risk and cyber security threats increase, organizations need to move away from reacting to incidents and towards predicting and preventing them. While organizations don’t always need to understand how the attack works from an in-depth technical perspective, they do need to understand how the attacker gets past their defense wall.
In a recent information security forum held in 2016, big data was stated to be one of the five major global security threats.
The large data sets if aggregated, stored and processed without security measures then could make a huge amount of information vulnerable to cyber attacks.
Goodman (2015) stated that big data is more prone to cyber-attacks and that too with an ensured sense of causing bigger damage to a large number of people at the same time, creating a chaotic situation.
Big data and India
On the other hand, if we look at the bright side, big data can also be used as a tool to strengthen cyber security. The same has been recognized by the Data Security Council of India by emphasizing the need for managing big data to develop a framework of cyber security at the national level. Big data has already been used in cyber security in terms of locating weak links in cyber security walls, real-time surveillance, fraud detection, and guarding vulnerable areas in social media.
Laws on data privacy in India
After learning all the possibilities of your personal data being at risk, you must be thinking or worried about the laws of our country to prevent such kind of data leak. Unfortunately, there isn’t any comprehensive and dedicated data protection legislation in India. However, we have the Information Technology Act, 2000 in which there are some provisions related to Data theft, etc.
Information Technology Act, 2000
Section 43A- Compensation for failure to protect data
Under this section, it is clearly stated that if any corporate possesses or handles any data of any person which is sensitive in nature and it fails to maintain and provide rational care and security procedure because of negligence on its part and because of that the person suffers any damage then, in that case, the corporate shall be liable to compensate that person for such damage, which may not exceed five crore rupees.
Section 66- Computer Related Offenses
Under this section, the punishment is mentioned for a person who fraudulently indulges into an act which is referred in Section 43, the punishment under this section is for imprisonment up to three years or with a fine which may go up to rupees five lakhs or both.
Section 66C- Punishment for identity theft
Personal and unique information like digital signatures is the most targeted area by cyber attackers. This section somewhat can be seen as a step of protection by inducing fear of being punished. According to this section, whoever knowingly and dishonestly tries to copy and use unique identification details of a person for example digital signature or password shall be punished with imprisonment for a term up to 3 years and fine which may go up to 1 lakh rupees.
Section 72- Breach of confidentiality and privacy
This section states that if any person has gained access to any type of electronic record such as a book, register etc and has disclosed the information of such electronic records without the consent or knowledge of the owner of such record shall be punishable with imprisonment up to for a term of two years, or fine up to one lakh rupees, or both.
The Honorable Supreme Court in Puttaswamy (Retd.) & Anr Vs Union of India and Ors., held that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India.
The IT Act of 2000 is not enough to be treated as data privacy or information protection legislation. There is an urgent need of specific law in India for data protection that will ensure privileges of information which will restrict the utilization of the data collected and information gathered for such other purposes other than for which it was collected. IT law is totally focused on electronic signatures, e-governance, key infrastructure and cybercrimes.
Example of a cyberattack using big data
If we look at Big Data in cyber crimes, Hackers are targeting big targets with a bigger impact on common people’s lives. The size and tendency of cyberattacks are increasing. To understand its magnitude here is an example: in November 2016 in one of the biggest ‘ Denials of Service Attacks’ in the US, hackers targeted databases with citizens’ valuable information and forced many websites ( including Twitter and Netflix) to go offline. The attack led to 1.2 terabytes of data being transferred to the victim’s computer forcing the server to go off-grid.
Prevention from data breaches
With the rise in instances of cyber crimes, the measures to tackle them effectively have also evolved. For example, Palantir- is a cyber security mechanism used by the US Military against threats of cyber terrorism. This was an example of an organization building its security mechanism, however, there are other organizations (usually private business organizations) who hand over their data to a third party to store securely in ‘cloud storage’.
One such example of cloud storage-based data security is ‘Assure Cyber’ by BT security which is a British-based organization that examines possibilities of cyber threats, scans for perceived attacks and prevents data loss due to cyber-attacks.
With the rapid growth of technology and data produced, big data analysis is going to be the next big thing.
Big data analytics need to be carried on with a strategy by all organizations uniformly to reach optimal levels of cyber security. The data platform needs to have proper administration over the security of the data. In addition to that, there has to be a scrutinizing mechanism that could process a huge amount of unsaturated data as well.
It is also important that experts from the different departments in the company meet on a regular basis and update each other about ways to tackle possible breaches for emerging threats.
Conclusion
A recently held study by KuppingerCole and BARC based on purposive sampling from over 50 countries found that 94% of companies are exposed to cyber threats and 62% of respondents believe that the number of cyber threats in the past year has increased. In terms of Information and Technology trends, the majority of companies take big data as an effective solution to cybercrime (88%) in the future. This shows that companies do understand the importance of big data analytics. However, at the moment, only 20% of companies are using big data analytics as a cyber security tool.
The large-scale implementation of big data analytics is yet to take place. It was also found that the reasons for lack of implementation are due to certain reasons which are poor awareness or seriousness about data security or high cost involved in the initial phase of implementing big data analytics or companies not collecting relevant data or maybe lack of technical experts in the area of big data analytics.
Our lives are entangled in a matrix of big data which is being continuously created in cyberspace. The lives of citizens are stored in the form of information in cyberspace and there is every possibility that this data could be attacked by cybercriminals if they tend to breach the security wall. It is now evident that to protect big data the best tool would come from the big data itself. Big data analytics is the need of the hour and the sooner the companies and government realize it, work for it and implement it, the better it is for our security.
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On November 4, 2020, the Indian Government introduced the Arbitration and Conciliation (Amendment) Ordinance. On March 11, 2021, the ordinance was repealed and replaced by the Arbitration Conciliation Act (Amendment) of 2021 (hereinafter called “2021 Amendment”). This article primarily intends to analyse the new amendments added to the Arbitration and Conciliation Act., 1996 (hereinafter called “Act”). It seeks to amend the scheme of the Arbitration and Conciliation Act, 1996. The Act contains provisions to deal with domestic and international arbitration and defines the law for conducting conciliation proceedings. Through this article, the author seeks to discuss the changes brought about by the new amendment.
Changes brought by the 2021 amendment
Amendment to Section 36 for enforcement of awards
Section 36 (3) of the Act provides for stay of the operation of awards if the courts are satisfied with the facts and conditions. The 2021 Amendment added a second proviso which says that the courts can allow unconditional stay for the awards if satisfied that a prima facie case is made out that the arbitration agreement or the main contract on which the award is based is induced by fraud or corruption. The amendment can be applied to all arbitral proceedings and court proceedings arising out of them commenced prior to or after the date of the 2015 Amendment Act. (i.e., 23.10.2015).
It is pertinent to be noted here that the 2015 Amendment had already added that the arbitral award can be set aside if its making is induced/affected by fraud/corruption. (Section 34 (2) (b)(ii) Explanation 1(i)). But the 2021 Amendment has now allowed stay if either the making of the award, or the arbitration agreement, or the main contract is induced by fraud/corruption. Such an amendment was necessary owing to the doubts and questions that had arisen on the arbitrability of issues involving fraud/corruption which then took a longer time. The unconditional stay of awards will now allow the courts to give a better look into the cases as required.
Background
The case laws mentioned hereunder provide a better understanding to this.
N. Radhakrishnan v. Maestro Engineers
In, N. Radhakrishnan v. Maestro Engineers, the two-judge bench of the Supreme Court held that the matters involving allegations of fraud and serious malpractices cannot be referred to arbitration.
Facts
In this case, the disputed parties were partners in a partnership firm. The appellant had alleged malpractice, fraud, collusion (between respondents) to syphon the firm’s money, and forging of the firm’s accounts for personal gain. He held the respondents responsible for the same and offered to retire from the firm once he gets his salary and share of profits with respect to his investment in the firm. In other words, his retirement was contingent upon the settlement of dues and he disagreed on treating that offer as final.
But the respondents did not agree on the quantum claimed by the appellant, went on and with reconstituted the partnership, and filed a suit to obtain a declaration that the appellant was no longer a partner in the firm. According to them, the appellant’s retirement offer was unequivocal and thus accepted.
The appellant questioned upon the validity of the reconstituted partnership and held that the partnership clauses of the original deed would continue to apply. The appellant thus filed a Section 8 application referring the dispute to arbitration since the partnership agreement had an arbitration clause. Respondents denied the same as the original partnership agreement was no longer applicable after reconstitution and thus the arbitration clause in it could not be used for referring the dispute to arbitration. It was also contended that since the appellant’s contentions involved the allegations of fraud and malpractice and were “serious” involving “substantial questions of law”, it required “detailed evidence” for which arbitration would not be a competent process.
Issues
Whether the dispute was within the jurisdiction of the arbitrator?
Whether an arbitrator was competent to decide disputes involving “serious allegations” requiring “substantial evidence”?
Decision
The Supreme Court expressed clearly that even though the subject matter was within the jurisdiction of an arbitrator, the matter had to be tried in a court of law since it was a “complicated matter.” The reason behind it was that fraud, financial malpractice and collusion are allegations with criminal repercussions. The arbitrator, being a creature of the contract, had his jurisdiction limited to the corners of the contract. Whereas, the courts were guided by the exhaustive Evidence Act, Codes of Civil and Criminal Procedures making them more equipped to adjudicate the matter and offering wider reliefs.offer
Current status
The decision in N. Radhakrishnan was recapitulated in several judgements including A. Ayyasamy v. A. Paramasivam and Ors. In this case, the disputed parties were partners in running the hotel. The respondents, after certain disagreements, filed an injunction suit before a court to prevent the appellant from managing the enterprise’s affairs. The respondent resisted arbitration relying on the contention that acts of fraud were involved. The Supreme Court, on the other handheld that while matters involving allegations of serious fraud were not arbitrable, matters involving “mere” allegations of fraud were arbitrable. A mere allegation of fraud being enough to not refer parties to arbitration would be misleading and the burden of proof (to show that the matter of dispute was inarbitrable) would lay upon the party not interested in arbitration (i.e., the party who prefers court proceedings).
But the Apex Court in Swiss Timing Ltd. v. Commonwealth Games 2010 Organising Committee found out that the N. Radhakrishnan decision was per incuriam and was not reliable enough. In Swiss Timing Ltd. v. Organising Committee, Commonwealth Games, the petitioner (Swiss Timing Ltd.) had entered into an agreement with the respondent (Organising Committee, Commonwealth Games) to provide supporting services for the conduct of the 2010 Commonwealth Games held at New Delhi. Once the Commonwealth Games was completed, the petitioner raised the invoice but the respondent refused its payment on some unjustified grounds.
The Court rejected the Respondent’s objections to reference to arbitration which said that arbitration was not a competent process there because of the allegations of fraud against the petitioner which laid the contract void ab initio. But the Court undertook the view that such allegations could be decided by an arbitral tribunal, relying on the principles of separability and competence.
N. Radhakrishnan v. Maestro Engineers thus stood overruled.
Avitel Post Studioz Limited and Ors. v. HSBC PI Holdings (Mauritius) Limited and Ors.
Facts
In this case, the appellant (Avitel Post Studioz) and the respondent (HSBC Holdings) entered into a share subscription agreement. Pursuant to it, the respondent undertook an investment of 60 million USD so as to acquire a certain percentage of the appellant’s paid-up equity capital. The respondent invoked arbitration and filed a criminal complaint along with it, as he discovered that the appellant’s representation on contract with a British corporation was fraudulent. The same was set up only to induce the respondent into executing the share subscription agreement. Interim awards (by emergency arbitrators) passed permitted the respondent to freeze appellant’s accounts. The respondent then filed a Section 9 application seeking a deposit of the security amount (60 million USD) which was allowed by the courts.
The Ld. Division Bench held that-
Allegations of fraud were in the context of Sections 17 and 18 of the Indian Contract Act, 1872, i.e., the disputes are of civil nature and are thus arbitrable.
A security deposit of 30 million USD was to be maintained in the appellant’s account (difference between the respondent’s price paid for acquiring the shares and received (to-be) on reselling the shares).
The decision was appealed before the Supreme Court.
Issues
Whether the Section 9 application seeking a deposit of 60 million USD should be allowed against the appellant since allegations of fraud were raised by one of the parties to the arbitration agreement?
Decisions
The Court held that serious allegations of fraud arose can be determined only if either of the followings tests of arbitrability of fraud were satisfied-
Whether the plea permeates the entire main contract and the arbitration agreement, rendering it void?
Whether the allegations of fraud touch upon the parties’ internal affairs inter se having no implication in the public domain?
Holding the dispute to be arbitrable, the Court stated that the allegations of fraud did not vitiate the arbitration agreement and the fraudulent actions were related to the internal affairs of the parties only with no implications in the public domain.
The measure of damages for the fraudulent misrepresentation was not different between the respondent’s price paid for acquiring the shares and received (to-be) on reselling the shares (as held by the Division Bench). But it should be measured by putting the respondent in the position as if the contract had never been entered into. It necessitated the deposit of 60 million USD as a security deposit.
This was the landmark judgment that cleared the cloud of doubts regarding arbitrability of fraud. The Supreme Court referred to its own judgments in Swiss Timing Ltd v. Organizing Committee, Commonwealth Games 2010, Delhi and A. Ayyasamy v. A. Paramasivam & Ors. (even though they couldn’t be considered as binding precedents) and reiterated that only matters involving very serious fraud allegations can be considered inarbitrable and be passed on to courts. In allegations of fraud simpliciter (i.e., simple allegations of fraud), the tribunal need not nullify the arbitration clause and can rule on the issue as under the Principle of Kompetenz-Kompetenz (i.e., the jurisdiction of the arbitral tribunal to rule on its own competence).
Substitution of new section for Section 43J and the omission of Eighth Schedule
Justice BN Srikrishna in the Committee Report of 2017 had noted that the accreditation of arbitrators was a necessary reform required to improve on the process of institutional arbitration in India since various stakeholders had started losing faith in Indian domestic arbitration. This was because we were lagging behind as compared to the ADR hubs like Singapore and London. Indian arbitral institutions have to be on par with the international arbitral institutions in all means. It was suggested that the arbitrators had to be encouraged to get accredited from bodies established in India like the Chartered Institute of Arbitrators (CIArb).
Some of its recommendations included the following:
An APCI (Arbitration Promotion Council of India) may be set up to recognize professional institutes that provide for accreditation of arbitrators
Such accreditation may be preferable for
international commercial arbitrations seated in India;
other arbitration proceedings with a seat in India where the value of the claim is more than or equal to 5 crores.
Central and State governments may stipulate that only accredited arbitrators may be appointed during arbitration disputes involving government contracts.
In view of the same, the Arbitration and Conciliation (Amendment) Act, 2019 established the Arbitration Council of India (by inserting Part IA to the Act). It also inserted Section 43J which stated qualifications, eligibility criteria and other norms for accreditation of the arbitrators. 43J had then been directed to the Eighth Schedule. The Eighth Schedule was added into the Act to enlist the qualifications, experience, and general norms applicable on an arbitrator.
The criticisms against the schedule majorly included its restrictive approach which limited India to be an arbitration-friendly nation. It had debarred foreign nationals from being appointed as an arbitrator in Indian seated arbitration.
The qualifications to be an arbitrator as per Eighth Schedule were as below:
An advocate with 10 years of experience
A chartered accountant with 10 years of experience
A cost accountant with 10 years of experience
A company secretary with 10 years experience
An officer of the Indian Legal Service
An officer with a law degree having ten years of experience in legal matters in the government, autonomous bodies, PSUs or at a senior level managerial position in the private sector
An officer with an engineering degree having ten years of experience as an engineer in the government, autonomous bodies, PSUs or at a senior level managerial position in the private sector or self-employed
An officer having senior-level experience of administration in the Central Government or State Government or having experience of senior-level management of a PSU or a Government company or a private company of repute;
A person having an educational qualification at degree level with ten years of experience in scientific or technical stream
There were also some 8 general norms the arbitrator had to adhere to which included being fair and impartial, being able to understand general contractual obligations in civil and commercial disputes, and so on and so forth.
The whole of these qualifications and norms were necessary so as to qualify as being an arbitrator before the 2021 Amendment. Even though they were broad, it did have some loopholes which had to be covered. This section, among other things, had also limited the ability of qualified foreign lawyers from acting as arbitrators in India. This was seen as a significant hurdle when compared to arbitration-friendly states like France.
Section 3 and 4 of the 2021 Amendment Act states on the substitution of Section 43J of the Act and deletion of the Eighth Schedule. By deleting the Eighth Schedule, the scope of qualifications has been extended to a greater level by ensuring the inclusion of different individuals with expertise in different fields. Section 3 of the 2021 Amendment Act (i.e., Section 43J (amended) of the Act) states that the qualifications, norms and accreditation of the arbitrators will be as specified in the ‘regulations’. Regulations, as per Section 2 (1)(j) are the regulations specified by the Arbitration Council of India under the Act.
The aim behind such a transformation may be that granting such a power to the Arbitration Council of India rather than enlisting the qualifications and other norms in the Act would widen the scope of the appointment of arbitrators not limited to lawyers, but extended to experts across various fields. Foreign arbitrators can also be backed up with such an amendment.
Conclusion
The Indian ADR system’s development is pretty evident from the fact that back-to-back amendments are notified year after year. Many amendments and bills have been proposed in these past years to make our country more and more arbitration-friendly. These new changes and modifications are applauded as well as criticised by scholars in one angle or the other. Some view this as changes for better international support and involvement, but some see it as a mere interest to tackle the goals of Alternate Dispute Resolution.
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This article is written by Abanti Bose, studying from Amity University Kolkata, India. This article provides an exhaustive understanding of the Protection of Women from Domestic Violence Act, 2005.
It has been published by Rachit Garg.
Table of Contents
Introduction
Women form the largest group of victims of domestic violence since time immemorial and violence against women still continue even in the 21st century. Women from every social background irrespective of their age, religion, caste, or class fall victim to domestic violence. However domestic violence is not just limited to women; men, children and elderly people can also be victims of it. Domestic violence occurs at all levels of society and in all population groups.
In India, 30% women have experienced domestic violence at least once from the age of 15, and around 4 percent of pregnant women have even experienced spousal violence during pregnancy.
Domestic violence: a social evil
The offence of domestic violence is committed by someone in the victim’s domestic circle. It includes family members, relatives, etc. The term domestic violence is often used when there is a close cohabitating relationship between the offender and the victim. The various forms of domestic violence include senior abuse, child abuse, honour-based abuse such as honour killing, female genital mutilation, and all forms of abuse by an intimate partner.
In the 21st century, various steps are incorporated to address the social issue of domestic violence. Governments all across the globe have taken proactive measures to eradicate domestic violence. Furthermore, the media, politicians and campaigning groups have aided people to acknowledge domestic violence as a social evil.
In India domestic violence is governed by the Protection of Women from Domestic Violence Act, 2005 and it is defined under Section 3, which states that any act, commission, omission or conduct of a person harms or injures or endangers the health or safety of an individual whether mentally or physically it amounts to domestic violence. It further includes any harm, harassment or injury caused to an individual or any person related to that individual to meet any unlawful demand would also amount to domestic violence.
Objectives of the Domestic Violence Act, 2005
The objectives of the Protection of Women from Domestic Violence Act, 2005 is to serve the following purposes:
To identify and determine that every act of domestic violence is unlawful and punishable by law.
To provide protection to victims of domestic violence in the cases such acts occur.
To serve justice in a timely, cost-effective, and convenient manner to the aggrieved person.
To prevent the commission of domestic violence and to take adequate steps if such violence occurs.
To implement sufficient programmes and agendas for the victims of domestic violence and to guarantee the recovery of such victims.
To create awareness among the people about domestic violence.
To enforce harsh punishment and must hold the culprits accountable for committing such heinous acts of violence.
To lay down the law and govern it in accordance with the international standards for the prevention of domestic violence.
Essential provisions of the Domestic Violence Act, 2005
Appointment of Protection Officers
Protection Officers are appointed by the State Government. The number of Protection Officers may vary from district to district depending on the size and necessity. The powers and duties which are to be exercised by the Protection Officers are laid down in confirmation with the Act. The Protection Officers must be women as far as possible and shall possess requisite qualifications and experience as may be prescribed under the Act.
Powers and functions of Protection Officers
The powers and functions of Protection Officers include the following:
To assist the Magistrate in order to discharge their duties in accordance with the Act.
To make a domestic violence incident report to the Magistrate after receiving any such incident of domestic violence and must also forward the copies to the police officer in charge of the police station having jurisdiction over the incident.
To make the application in the prescribed order to the Magistrate if the aggrieved person claims relief for issuance of the protective order.
To maintain a detailed list of all the service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate.
To get the victim medically examined, if she has sustained any bodily injuries and forward such a report in the prescribed manner to the Magistrate and the police station having jurisdiction.
To find a safe available shelter home for the victim if she requires and send the details of her lodging in the prescribed manner to the Magistrate and the police station having jurisdiction.
To ensure that the order of monetary relief to the victims is complied with under this Act.
Powers and functions of service providers
Section 10 of the Act, lays down the functions and duties of service providers. Service providers are defined under the Act as any voluntary association registered under the Societies Registration Act, 1860 or a company that is registered under the Companies Act, 1956 which aims to protect the rights of the women lawfully by providing legal aid, medical, financial or other assistance. The powers and duties of service providers are mentioned below.
A service provider has the authority to record any incident of domestic violence and forward it to the Magistrate or Protection Officer having jurisdiction where the incident of domestic violence took place.
The service provider must get the aggrieved person medically examined and forward such a report to the Protection Officer, Magistrate and the police station within the local limits where the domestic violence took place.
It is also the responsibility of the service providers to provide a shelter home to the victim if they require one and forward the report of lodging of the victim to the police station having jurisdiction.
Duties and functions of police officers and Magistrate
Section 5 of the Protection of Women from Domestic Violence Act, 2005 lays down the duties and functions of police officers and Magistrate. It states that when a police officer, service provider or Magistrate receives a complaint of domestic violence, an incident of domestic violence is reported to him or he is present at the scene of occurrence of domestic violence then they should take the following steps:
They are required to inform the victim about her rights to make an application for receiving relief by way of protection order, order for monetary relief, custody order, residence order, compensation order, etc.
They should inform the victim of the accessibility of services of the service providers.
The victim should be informed about the services and duties of the Protection Officers.
They should also inform the victim about her right to free legal services under the Legal Services Authorities Act, 1987 and her right to file a complaint under Section 498A of the Indian Penal Code, 1860.
Duties of shelter homes and medical facilities
If any victim of domestic violence requires a shelter home then under Section 6 of the Act, the person in charge of a shelter home will provide suitable shelter to the victims of domestic violence in the shelter home.
Further Section 7 of the Act lays down that if an aggrieved person requires medical assistance then the person in charge of the medical facility will be providing such assistance to the aggrieved person.
Duties of the Government
The Act further lays down certain provisions stating the duties and functions of the Government. Such duties include;
The provisions of this Act must be given wide publicity through public media so that the citizens of our country are well aware of such provisions.
Both the Central and State Governments officers such as the police officers and the members of the judicial services must be given periodic sensitization and awareness training regarding the provisions of the Act.
Both the Central and State Governments must also ensure that the protocols for the various Ministries concerned with the delivery of services to women under this Act are diligently followed.
Application to the Magistrate
The aggrieved person, the Protection Officer of that locality or any other person on behalf of the aggrieved person shall make an application to the Magistrate claiming one or more reliefs under this Protection of Women from Domestic Violence Act, 2005. The application must contain all the necessary details as prescribed by the Act.
The Magistrate will fix the date of hearing which shall not extend more than three days from the date of receiving the application. Furthermore, the Magistrate must also aim to dispose of all the applications made under Section 12 of the Act within a period of sixty days from the date of its first hearing. Moreover the Protection of Women from Domestic Violence Act, 2005 authorises the Magistrate to grant the following orders and reliefs.
Monetary reliefs
While disposing of the application the Magistrate may ask the respondent to pay monetary relief to meet the expenses incurred and the losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include the loss of earnings of the victim, medical expenses, the loss caused due to damage or destruction of any property, the maintenance of the aggrieved person and her children as required under Section of the Criminal Procedure Code.
The monetary relief granted must be fair and adequate and must be in accordance with the standard of living of the aggrieved person.
The Act authorises the Magistrate to grant a fitting lump sum payment or monthly payments of maintenance as required by the aggrieved person.
The Magistrate shall direct the copy of the order for the monetary relief to the in charge of the police station having jurisdiction.
The respondent must pay the monetary compensation to the victim within the stipulated and if they fail to do so then the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the victim or deposit with the court a portion of wages, salaries, or debt due to the respondent and the amount could be adjusted at the end of the completion of monetary relief.
Section 22 of the Act also stipulates that the respondent will be liable to pay compensation to the victim for causing any damage or injury including mental torture and emotional distress as directed by the Magistrate.
Custody orders
Under Section 21 of the Protection of Women from Domestic Violence Act, 2005 when the Magistrate receives an application concerning domestic violence, he has the authority to direct the custody of any child or children to the victim or the person making the application on behalf of the victim.
Protection orders
If the Magistrate is satisfied that domestic violence has taken place then they may pass a protection order in favour of the aggrieved person to prevent the respondent from committing any acts of domestic violence or abetting any acts of domestic violence. The Magistrate may also prevent the respondent from contacting the aggrieved person, entering the place of employment of the aggrieved person or causing violence to the dependants or relatives of the aggrieved person.
Residence order
Under Section 19 of the Act if the Magistrate is satisfied that domestic violence has occurred then the Magistrate may pass a residence order restraining the respondent from disturbing the possession of the aggrieved person from the shared household, or to withdraw himself from the shared household restraining the respondent or any of his relatives from entering the shared household and prohibiting the respondent from repudiating his rights in the shared household.
Jurisdiction and procedure
The court of Judicial Magistrate of the first class or the Metropolitan Magistrate of the area has the jurisdiction to hear cases under this Act. However, Section 27 of the Act states the following factors;
The aggrieved person permanently or temporarily resides or carries out business in that area.
The respondent resides, carries on business or is employed within the local limits of the area.
The competent court will be liable to grant protection orders or any other orders as the case may be.
Legislative intent of the Domestic Violence Act, 2005
The legislative intent of enacting the Protection of Women from Domestic Violence Act, 2005 has been meticulously discussed in the case Indra Sarma v. V.K.V.Sarma. It was stated that the reason for the legislation to enact such an Act is to provide protection of rights of women who are victims of violence of any type occurring in the family. This Act safeguards women from facing violence within the four walls of their home.
The Madras High Court in the case, Vandhana v. T. Srikanthfurther stated the Protection of Women from Domestic Violence Act, 2005 “is an Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto”.
Conclusion
The Act plays a critical role in the Indian legal system vis-a-vis protecting the rights of the women, so that they can feel protected and safe within the comfort of their own house. It is an exhaustive piece of legislation as it lays down the powers and duties of the various authorities, reliefs available to the victims, steps to filing a complaint regarding domestic violence, assistance provided to the victims of domestic violence, power and extent of the Indian Judiciary and the power of the Central Government to make rules. The Act provides civil remedies to the victims of domestic violence. And prior to the enactment of the Act, the victims of domestic violence sought civil remedies such as divorce, custody of children, injunctions in any form or maintenance only by taking recourse to civil courts. Therefore, the Act brought about necessary changes in the Indian legislature.
Although the Act has incorporated essential steps to safeguard women from domestic violence it fails to provide any remedies for the male members of the family and it also fails to recognize the cohabiting and marital relationship between the members of the LGBTQ+ community. Hence, these must be included in the Act to totally eradicate domestic violence as a necessary evil from Indian society.
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This article is authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. The article discusses important provisions of the Right to Information Act, 2005 including objectives of the Act, right to information and obligations of public authorities, constitution of Information Commissions, powers and functions of Information Commissions, appeal and penalties etc.
Every citizen of India has a right to free speech and expression under Article 19(1)(a) of the Constitution of India. This right does not only cover the communication of information but also the receipt of information since without adequate information, a person cannot form an informed opinion. Thus, the right to know and seek information is an integral part of the fundamental right enshrined under Article 19(1)(a). The Hon’ble Supreme Court has also held that the right of the citizens to know, and to receive information regarding matters of public concern is a fundamental right flowing from Article 19(1)(a).
The right of a citizen to question the government on its various policies and measures forms the very essence of a democracy. In order to exercise this right and to hold the government accountable for its actions, the people must have access to the information regarding the affairs of the government. This is what RTI does. It informs the citizen regarding the affairs of the government and thereby ensures the active participation of a citizen in the working of the democracy at all times and not just once during voting. RTI is an index to measure the growth and development of a country.
In this article, the author has discussed the important provisions of the Right to Information Act, 2005 which sets out the practical regime for implementation of right to information in India.
Right to Information Act, 2005: brief background
The first central legislation dealing with the right to information in India, namely, the Freedom of Information Act, 2002 was passed on December 4, 2002, but was not notified. In 2004, the UPA (United Progressive Alliance) government appointed a National Advisory Council (NAC) which had recommended some changes in the Freedom of Information Act, 2002.
The amended act known as “The Right to Information Act, 2005” was passed on 11th May 2005 and 12th May 2005 by the Lok Sabha and Rajya Sabha respectively. The President of India gave his assent to the Act on 15th June 2005 and it came into force on 12th October 2005.
Objectives of the Right to Information Act, 2005
The objectives of the RTI Act, 2005 are as follows:
To provide for a practical framework that allows the citizens to access the information under the control of public authorities.
To promote transparency and accountability in the working of governments and their instrumentalities.
To provide for the constitution of Information Commissions at state and national level for discharging the functions and exercising the powers under the Act.
To develop an informed citizenry.
To contain corruption.
To lay down the exemptions to disclosure of information when such disclosure is likely to conflict with other public interests and to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.
Important definitions in the Right to Information Act, 2005 : Section 2
Section 2 of the RTI act, 2005 defines various important terms, some of which are dealt with as follows:
Appropriate Government [Section 2(a)]
Section 2(a) of the Act provides for the definition of “appropriate government”. Appropriate government means the government in relation to a public authority dealing with the right to information. Such authority is established, constituted, owned, controlled or substantially financed by the Central Government, union territory administration or the State Governments.
Thus, in case of a public authority associated with the central government/union territory administration in the aforesaid manner, the appropriate government is the ‘Central Government’. Whereas, in the case of a public authority associated with the state government in the ways mentioned above, the appropriate government is the ‘State Government’.
Competent authority [Section 2(e)]
Section 2(e) of the Act provides for ‘competent authority’. Competent authority is the authority in charge of the autonomous institutions functioning under the provisions of the Constitution. Such authority has the ultimate responsibility for the enforcement of the RTI Act in those institutions. For example, in the case of the Supreme Court of India, the Chief Justice of India is the competent authority. Competent authority means:
Speaker of Lok Sabha
Chairman of Rajya Sabha
Speaker of Legislative Assembly of a State/UT
Chairman of Legislative Council of a State
Chief Justice of India in the case of the Supreme Court
Chief Justice of a High Court
President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution
Administrator appointed under Article 239 of the Constitution
Information [Section 2(f)]
Section 2(f) provides for the kinds of information which can be accessed under the right to information. Information means any material in any form including:
Records (written details including any map, drawing etc. of any act, policy or decision pertaining to a public authority)
Documents (a part of a record or an independent document or a piece of information containing details on a particular subject or decision of public authority)
Memos (these may be in the form of a correspondence or a note on a particular subject)
E-mails
Opinions (opinions of a government department or government officials conveyed in official dealings forming part of official record)
Advices (advices on official matters forming part of official record)
Press releases (press briefings or press notes on official matters when released in official capacity)
Circulars (circulars notifying a particular decision or policy of government/public authority circulated in official capacity)
Orders (any order issued by public authority in official capacity)
Logbooks (documents containing details, measurements, data of a particular project of public authority)
Contracts (official contracts entered into by the public authorities and the details thereof)
Reports (reports regarding official matters including test reports, inquiry reports, expert reports on a particular subject)
Papers (papers regarding official proceedings)
Samples (samples from materials to be purchased/consumed in connection with government affairs)
Models (models of programmes and projects to be undertaken)
Data material held in any electronic form (data stored in computer, pen drives, CDs)
Information relating to any private body that a public authority can obtain under any other law for the time being in force.
Public authority [Section 2(h)]
Section 2(h) defines “public authority”. Public authority is an authority or body or institution of self-government which is directly or indirectly related to the government. Such authority may be related to the government in any of the following ways:
It is established or constituted by or under the Constitution
It is created by an Act of Parliament
It is created by an Act of State Legislature
It is established or constituted by a notification issued or order made by the appropriate government
The public authority also includes:
any body owned, controlled, or substantially financed;
any NGO substantially financed,
directly or indirectly by funds provided by the appropriate government.
Record [Section 2(i)]
As provided under Section 2(i) of the Act, a record may include any:
Document: It may refer to any piece of information or a set of papers containing information on a particular subject.
Manuscript: It may denote the original form of a handwritten document, map or drawing.
File: Collection of papers or connected documents on a particular subject.
Electronic documents in the form of microfilm, microfiche, and facsimile copy.
Electronic documents reproduced in the form of images.
Any other material produced or generated through a computer or any other device.
Right to information [Section 2(j)]
Section 2(j) defines “right to information”. It means the right to obtain the information accessible under the RTI Act which is held by or is under the control of any public authority. Such right includes:
Right of inspection
This refers to the right to look and scrutinise closely the documents, works and records. Here, no document or its copy is obtained in any form and the information is simply seen and scrutinised.
Right of taking notes, extracts etc.
Taking notes or extracts means noting down certain information from the documents. Here, important information is noted down from the documents and even original extracts from the documents can also be copied. The right also permits the taking of certified copies of documents or records.
Right to take certified samples of material
A citizen has a right to obtain certified samples of material purchased or used by the government.
Right to obtain information in electronic mode
Where the information sought is stored in a computer or any other electronic device, the RTI Act permits the citizen to obtain information in electronic form such as in the form of tapes, video cassettes, floppies, diskettes etc or in the form of printouts as well.
Salient features of the Right to Information Act, 2005
Right to Information and Obligations of public authorities: Chapter II
Section 3 of the Act provides for the right of the citizens to obtain information subject to the provisions of the Act.
Obligations of public authorities: Section 4
Section 4(1) lists the following obligations of public authorities:
Maintenance of records: Every public authority is required to maintain all its records duly catalogued and indexed. In order to facilitate access to its records, the public authority shall ensure that all the records that are appropriate for computerisation are computerised and connected through a network across the country on various systems within a reasonable time frame and according to resource availability.
Publication of certain matters: Every public authority is required to publish certain particulars within 120 days of the enactment of the Act, some of which are enumerated below:
the particulars of its organisation, functions, and duties;
the powers and duties of its officers and employees;
the procedure followed in the decision-making process, including channels of supervision and accountability;
where any arrangement exists for public representation or public consultation in matter of policy formulation or implementation of policy of public authority, the particulars of such arrangement;
Employee directory of such public authority
Monthly salary given to employees and officers
Details of budget allocated to its agencies
Details regarding manner of execution of subsidy programmes
Details regarding information held in electronic form
Particulars of facilities available to citizens for obtaining information
Names and designations of the Public Information Officers etc.
While formulating key policies or decisions that affect the public, a public authority must publish all the relevant facts regarding the same.
Every public authority shall provide reasons for its judicial or administrative decisions to those affected by it.
Suo-moto furnishing of information: Section 4(2)
Section 4(2) provides for the obligation of the public authority to make efforts for providing information suo moto to the public at regular intervals using various modes of communication.
Dissemination of information: Section 4(3) and 4(4)
Section 4(3) provides for wide dissemination of information in a manner that is easily accessible to the public.
Section 4(4) provides that the dissemination of information has to be done after considering the following factors:
cost-effectiveness,
local language of an area, and
the most effective method of communication in a particular local area.
Designation of Public Information Officers: Section 5
Section 5(1) provides for the designation of Central Public Information Officers (CPIOs) and State Public Information Officers (SPIOs) by every public authority within 100 days from the enactment of this Act. Such officers have a duty to provide information requested under the Act.
Section 5(2) provides for the designation of Central Assistant Public Information Officer or a State Assistant Public Information Officer at each sub-divisional level or other sub-district level. Such officers shall receive applications for information or appeals under the Act for forwarding the same to the CPIO/SPIO or the senior officer specified under Section 19(1) or the Central Information Commission or the State Information Commission, as the case may be.
Duty/Function of public information officers
Section 5(3) provides for the following duties of CPIOs and SPIOs:
To deal with requests from the person seeking information, and
To provide reasonable assistance to the person asking for information.
Request for obtaining information: Section 6
Manner of making a request for information
Section 6(1) provides for the manner of making a request by a person who desires to obtain any information under this Act.
Manner of making requests: In writing or through electronic means.
Language: English/Hindi/official language of the area in which the application is being made.
Any fee: Such application shall be accompanied by the prescribed fee.
To whom application is made: To the CPIO/SPIO of the concerned public authority or to the Central Assistant Public Information Officer/State Assistant Public Information Officer.
Contents of application: Particulars of information sought by the applicant.
When the request cannot be made in writing
The proviso to Section 6(1) deals with a case where the applicant has made an oral request for information. It states that where a person cannot make a written request, the CPIO/SPIO shall assist such person to reduce his request in writing.
Applicant need not give his details
As per Section 6(2), a person seeking information under the Act need not disclose any reason for such request or his personal details except such information that might be required for contacting him.
When the information requested is held by another public authority, etc.
Section 6(3) deals with the case where an application is made to a public authority requesting information that is held by another public authority, or the subject matter of which is more closely related with the functions of another public authority. In this case, the public authority to whom the application is filed must transfer the application, or the concerned portion of it, to that other public authority and notify the applicant of the transfer as soon as possible. The section provides for a maximum of five days for transferring the application.
Disposal of request: Section 7
Period within which information to be furnished
Section 7(1) provides for expeditious disposal of the request for information by the CPIO/SPIO. The CPIO/SPIO shall within thirty days of receiving the request, either:
Accept the request which means providing information after the fee prescribed has been paid, or
Reject the request for reasons as specified under Section 8 and Section 9.
Thus, a 30 day period is provided for responding to the request.
An additional period of five days is allowed in computing the period for response in the following cases:
When the application is received through the Assistant Public Information Officer.
When the application is received by way of transfer.
Also, the information sought has to be provided within 48 hours of receiving the request where the said information concerns the life and liberty of a person.
Failure to decide within 30 days deemed as a refusal
Section 7(2) provides that the failure of the CPIO/SPIO to decide on the request for information within the prescribed period shall be deemed as a refusal of the request.
Decision regarding fee
Section 7(3) deals with the case where the applicant is required to pay a further/additional fee. The sub-section states that where a decision is made to provide information on payment of any further fee representing the cost of providing the information, the CPIO/SPIO shall send an intimation regarding the same to the person making the request. Such intimation must provide to the applicant:-
Information regarding the details of such additional fees as determined by the CPIO/SPIO along with the calculations made to arrive at such an amount. The intimation shall also request the applicant to pay such additional fee;
Information regarding the right of the applicant to ask for a review of the decision regarding fees or form of access. The details of the appellate authority, the time limit, the process of review, etc. are also required to be intimated to the applicant.
Access to information
Section 7(4): The CPIO/SPIO shall provide assistance to enable access to the information where the person seeking such access is sensorily disabled.
Section 7(5): The applicant is required to pay such fee as may be prescribed for access to information in the printed or electronic format. According to the proviso attached to this sub-section, the fee charged under the Act must be reasonable. Also, no fee can be charged from those living below the poverty line.
Section 7(6): Failure of the public authority to provide the information within the prescribed time limit entitles the applicant for access to such information free of any charge.
Section 7(7): Before making a decision regarding furnishing of information or rejection of a request, the CPIO/SPIO has to consider the representation made by a third party under Section 11.
Rejection of request under sub-section (1)
Section 7(8) deals with the rejection of requests for information. In case, the CPIO/SPIO rejects a request, he is required to communicate the following particulars to the applicant:
reasons for such rejection;
the period within which he can file an appeal against the rejection;
the details of the appellate authority.
Form of information
Section 7(9) provides that generally, the information asked for under the Act has to be provided in the form in which it is sought, except where:
It would lead to disproportionate diversion of the resources of the public authority, or
It would prejudice the safety or preservation of the record in question.
Exemption from disclosure of information: Section 8
Section 8(1) lists the categories/types of information which is exempted from disclosure under the RTI Act. There is no obligation to disclose such information to any citizen. The categories of information so exempted include:
Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
Information, publication of which has been expressly forbidden by Court or tribunal;
Information, disclosure of which may amount to contempt of court;
Information, the disclosure of which would cause a breach of parliamentary privilege
Information including trade secrets, commercial confidence or intellectual property, the disclosure of which would jeopardise a third party’s competitive position. Such information can be furnished if the competent authority determines that it is necessary to disclose such information in the public interest.
Information accessible to a person in his fiduciary relationship. Such information can be furnished if the competent authority determines that it is necessary to disclose such information in the public interest.
Information received in confidence from foreign government;
Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
the information that would obstruct the process of investigating, apprehending, or prosecuting offenders etc.
Regardless of anything in the Official Secrets Act of 1923 or the permissible exclusions under sub-section (1), a public authority may allow access to information if the public interest in disclosure outweighs the harm to protected interests.
Grounds for rejection to access in certain cases: Section 9
Section 9 provides that a CPIO/SPIO may reject a request for information where it would lead to infringement of copyright owned by a person other than the State.
Severability: Section 10
Section 10 provides that if a request for access to information is denied because the disclosure of the information is prohibited by the Act, access may be granted to that part of the record:
that does not contain any exempt information, and
can be reasonably separated from any part that contains exempt information.
Thus, Section 10 deals with the furnishing of information after severance of non-exempt information from the information that is exempted.
Section 10(2) states that when access is granted to a part of a record under sub-section (1), then the CPIO/SPIO shall give notice to the applicant, informing him:
that only a part of the record requested is being provided after severing the information that is exempted from disclosure;
of the reasons for the decision;
name and designation of the person who made the decision;
the details of the fees required to be paid by the applicant; and
of his or her right to file for a review of the decision of non-disclosure or regarding fee or the form of access provided and the particulars of the authority competent to review.
Third-party information: Section 11
Section 11 contains the provision regarding the disclosure of information related to a third party.
Under Section 11(1), a third party has to be notified in writing when the CPIO/SPIO intends to disclose:
any information which relates to, or has been supplied by the third party, and
such information is treated as confidential by that third party.
Such written notice has to be given within five days of the receipt of the request. The notice shall:
inform the third party of such request and
inform the third party of the fact that the CPIO/SPIO intends to disclose such information and
invite the third party to make a submission as to whether the information should be disclosed.
Such submission shall be taken into consideration while taking a decision regarding the disclosure of information.
The proviso to Section 11(1) states that such disclosure may be permitted if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such a third party. However, the proviso shall not be applicable to trade or commercial secrets protected by law.
Section 11(2) provides that the third party shall be given an opportunity to make representation against the proposed disclosure within 10 days from the date of receipt of notice under sub-section (1).
According to Section 11(3), the CPIO/SPIO has to make a decision regarding disclosure within 40 days of the receipt of a request under Section 6, if the third party has been given an opportunity of making representation under the previous sub-section. The notice of the decision has to be given to the third party in writing by the CPIO/SPIO.
The notice given under Section 11(3) must state that the third party is entitled to file an appeal against the decision.
Central Information Commission and State Information Commission: Chapters III and IV
Information Commissions constituted under the RTI Act are the supreme authority and the highest decision-making body under the Act. Information Commissions have been constituted at both the central and state level, known as Central Information Commission(CIC) and State Information Commission(SIC) respectively.
Sections 12-14 of the Act contain the provisions regarding the constitution, membership, etc. of the Central Information Commission, whereas, Sections 15-17 deal with the provisions relating to the State Information Commission.
CENTRAL INFORMATION COMMISSION (CIC)
STATE INFORMATION COMMISSION (SIC)
Constitution
SECTION 12 Constituted by: Central Government. Membership: CIC consists of the following members:-Chief Information CommissionerCentral Information Commissioners(Maximum no. of Central Information Commissioners is 10.) Who shall appoint the members of Commission: President on the recommendation of a Committee consisting of:Prime Minister(Chairperson of the Committee)Leader of Opposition in Lok Sabha; andA Union Cabinet Minister nominated by the Prime Minister. Role and responsibilities of the Chief Information Commissioner:Power of general superintendence and direction and management of the affairs of CIC. The Chief Information Commissioner shall be assisted by the Information Commissioners.He has the authority to exercise all the powers and do all acts which may be exercised or done by the CIC. Qualification of members: The Chief Information Commissioner and Information Commissioner shall be persons of eminence in public life with wide knowledge and experience in law, science, technology, social service, management, journalism, mass media, or administration and governance. Prohibition on membership: The Chief Information Commissioner and the Information Commissioners shall not: be an MP or MLA, orhold any other office of profit or connected with any political party or engage in any business or profession. Headquarters: The headquarters of CIC shall be in Delhi. However, the CIC may establish offices at other places in India after taking approval from the Central Government.
SECTION 15 Constituted by: State Government. Membership: SIC consists of the following members:-State Chief Information CommissionerState Information Commissioners (Maximum no. of State Information Commissioners is 10.) Who appoints the members of the Commission: Governor on the recommendation of a Committee consisting of the following members:Chief Minister(Chairperson of the Committee)Leader of Opposition in Legislative Assembly; andA Cabinet Minister nominated by the Chief Minister. Role and responsibilities of the State Chief Information Commissioner:Power of general superintendence and direction and management of the affairs of SIC.The State Chief Information Commissioner shall be assisted by the Information Commissioners.He has the authority to exercise all the powers and do all acts which may be exercised or done by the SIC. Qualification of members: The State Chief Information Commissioner and Information Commissioner shall be persons of eminence in public life with wide knowledge and experience in law, science, technology, social service, management, journalism, mass media, or administration and governance. Prohibition on membership: The State Chief Information Commissioner and the Information Commissioners shall not: be an MP or MLA, orhold any other office of profit or connected with any political party or engage in any business or profession. Headquarters: The headquarters of SIC shall be at such place in the State as specified by the State Government by way of notification in the Official Gazette. However, the SIC may establish its office at another place in the State with the previous approval of the State Government.
Term of Office and conditions of service
SECTION 13 Term of office of Chief Information Commissioner: As prescribed by the Central Government. Whether the Chief Information Commissioner is eligible for reappointment: No Chief Information Commissioner shall not hold office after attaining the age of 65 years. Term of office of Information Commissioners: As prescribed by the Central Government or till he attains the age of 65 years, whichever is earlier. Whether the Information Commissioner can be reappointed as an Information Commissioner: No. However, an Information Commissioner may be appointed as the Chief Information Commissioner, after vacation from his office. Tenure of the Information Commissioner appointed as the Chief Information Commissioner: Maximum 5 years in aggregate as the Information Commissioner and the Chief Information Commissioner. Resignation of members of Commission: The Chief Information Commissioner and the Information Commissioner(s) may resign from the office by writing under his hand addressed to the President. Section 13(6) provides for assistance to the Chief Information Officer and the Information Officers by way of officials required by them for the efficient performance of functions entrusted to them under the Act.
SECTION 16 Term of office of State Chief Information Commissioner: As prescribed by the Central Government. Whether the State Chief Information Commissioner is eligible for reappointment: No. No State Chief Information Commissioner shall hold office after he has attained the age of 65 years. Term of office of State Information Commissioners: As prescribed by Central Government or till he attains the age of 65 years, whichever is earlier. Whether a State Information Commissioner can be reappointed as a State Information Commissioner: No. However, he is eligible for being appointed as the State Chief Information Commissioner, after vacation from his office. Tenure of the Information Commissioner appointed as the State Chief Information Commissioner: Maximum 5 years in aggregate as the State Information Commissioner and the State Chief Information Commissioner. Resignation of members of Commission: The State Chief Information Commissioner and the State Information Commissioner(s) may resign from the office by writing under his hand addressed to the Governor. Section 16(6) provides for assistance to the State Chief Information Officer and the State Information Officers by way of officials required by them for the efficient performance of functions entrusted to them under the Act.
Removal of members of Commission
SECTION 14 The power to order the removal from office of the Chief Information Commissioner or any Information Commissioner vests with the President under Section 14(1). Grounds for removal under Section 14(1): Proved misbehaviour or incapacity. Manner/process of removal: The President sends a reference to the Supreme Court for inquiry into the alleged misconduct. If after such inquiry, the Supreme Court comes to the conclusion that the charges of misbehaviour are proved and recommends the removal of such a member in its report, the President shall remove such member. Interim suspension: The President has the power to: suspend such member in respect of whom reference is made to Supreme Courtprohibit such aforesaid member from attending the office during enquiry, until the President has passed orders on receipt of the report of the Supreme Court on such reference. Disqualifications: Notwithstanding anything contained in sub-section (1), the President of India has the power to remove the Chief Information Commissioner or the Information Commissioner if he is guilty of any of the following acts: Declaration of insolvency Conviction for an offence involving moral turpitudeEngagement in paid employment outside official dutiesInfirmity of mind or bodyAcquisition of such financial or other interest which might affect prejudicely his functions as such member
SECTION 17 The power to order the removal from office of the State Chief Information Commissioner or any State Information Commissioner vests with the Governor under Section 17(1). Grounds for removal under Section 17(1): Proved misbehaviour or incapacity. Manner/process of removal: The Governor sends a reference to the Supreme Court for inquiry into the alleged misconduct. If after such inquiry, the Supreme Court comes to the conclusion that the charges of misbehaviour are proved and recommends the removal of such a member in its report, the Governor shall remove such member. Interim suspension: The Governor has the power: to suspend such member in respect of whom reference is made to Supreme Court to prohibit such aforesaid member from attending the office during enquiry, until the Governor has passed orders on receipt of the report of the Supreme Court on such reference. Disqualifications: Notwithstanding anything contained in sub-section (1), the Governor has the power to remove the State Chief Information Commissioner or the Information Commissioner if he is guilty of any of the following acts: Declaration of insolvency Conviction for an offence involving moral turpitudeEngagement in paid employment outside official dutiesInfirmity of mind or bodyAcquisition of such financial or other interest which might affect prejudicely his functions as such member
Powers and functions of the Information Commissions, appeal and penalties: Chapter V
Powers and functions of Commission: Section 18
Section 18(1) provides for the duty of the CIC/SIC to receive and inquire into a complaint from any person on the following grounds:
Where a person has been unable to submit a request to the CPIO/SPIO:
Owing to the non-appointment of CPIO/SPIO, or
Due to the refusal of the Central Assistant PIO or the State Assistant PIO to accept his or her application for information or appeal under the Act for forwarding the same to the CPIO/SPIO, as the case may be.
Refusal of access to any information requested under the Act.
Violation of time limit for providing information under the Act.
Where the fee required to be paid is considered unreasonable.
Providing incomplete, false, or misleading information.
With regard to other matters relating to obtaining access to records under the Act.
Power to inquire [Section 18(2)]
Section 18(2) provides for the power of the Commission to initiate an inquiry. The Commission is not bound to inquire into every complaint received by it. The CIC/SIC may initiate an inquiry if it is satisfied that there are reasonable grounds for the same.
Powers of the Civil Court to vest in the Commission [Section 18(3)]
Section 18(3) states that while inquiring into any matter under Section 18, the CIC/SIC shall have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908. Those powers are:
Power to summon and enforce the attendance of persons and compel them to give evidence on oath and to produce the documents or things;
Power of discovery and inspection;
Power to receive evidence on affidavit;
Power of requisition of public record etc.;
Power to issue summons for examination of witnesses or documents; and
Any other matter which may be prescribed.
Power to summon record [Section 18(4)]
The CIC/SIC has the power to summon and examine any record to which this Act applies and which is under the control of any public authority. Also, such records cannot be withheld from the Commission on any grounds.
Appeal: Section 19
First Appeal under Section 19(1)
Grounds of filing the appeal:
The applicant has not received the decision on his application within the time specified under Section 7(1) or 7(3)(a) of the Act, or
The applicant is aggrieved by the decision of the CPIO/SPIO.
Period for filing of an appeal and condonation the delay:
The appeal has to be filed within 30 days from the expiry of the response period or the receipt of the decision of CPIO/SPIO. An appeal may be admitted after the expiry of 30 days if the First Appellate Authority is satisfied that the appellant was prevented by a sufficient cause from filing the appeal in time.
To whom appeal filed:
The appeal is to be filed to such officer who is senior in rank to the CPIO/SPIO in each public authority (First Appellate Authority).
Appeal by a third party [Section 19(2)]
This sub-section deals with the filing of appeals by the third party who has suffered an adverse order under Section 11. A third party aggrieved by the decision of the CPIO/SPIO to disclose third party information under Section 11 may prefer an appeal within 30 days from the date of the order to the first appellate authority.
Second appeal [Section 19(3)]
Appeal to Commission against the decision of the first appellate authority: A Second appeal shall lie to the CIC/SIC against the decision of the first appellate authority made under Section 19(1).
Period for filing an appeal: The Second appeal has to be filed within 90 days from the date on which the decision should have been made or was received. An appeal may be admitted after the expiry of 30 days if the CIC/SIC is satisfied that the appellant was prevented by a sufficient cause from filing the appeal in time.
Opportunity of hearing to a third party[Section 19(4)]
Where the order against which the appeal has been filed pertains to information of a third party, the concerned Commission shall give a reasonable opportunity of being heard to that third party.
Onus to justify denial on the PIO
Section 19(5), provides that burden to prove that a denial of a request was justified shall be on the CPIO/SPIO who denied the request.
Time limit for disposing of the appeal [Section 19(6)]
The appeal under Section 19(1) or 19(2) has to be disposed of within 30 days of the receipt of the appeal. However, in exceptional circumstances, an extended period of a total of 45 days from the date of filing may be provided for reasons to be recorded in writing.
Supremacy of the Commission
Section 19(7) states that the decision of the CIC/SIC shall be binding.
Orders to be passed by the Commission
Section 19(8) provides for the power of the CIC/SIC to give the following orders in its decision:
Requiring the public authority to take steps for complying with the provisions of the Act, including:-
Providing access to information, if so requested, in a particular form
Appointing PIOs
Publishing certain information or categories of information
To make required changes to its practices regarding maintenance, management, and destruction of records
Enhancing the provision of training on the right to information for its officials
To submit an annual report to the Commission in compliance with Section 4(1)(b)
Require the public authority to award compensation to the complainant for any loss suffered by him
Impose any of the penalties provided under the Act
Reject the application
Notice [Section 19(9)]
The CIC/SIC shall give notice of its decision, including any right of appeal, to the complainant and the public authority.
Penalties: Section 20
While deciding a complaint or an appeal under the Act, the CIC/SIC has the power to impose penalties on the CPIO/SPIO for the deliberate violation of the provisions of the Act. Before any decision regarding imposition of penalty is taken, the concerned CPIO/SPIO shall be given a reasonable opportunity of being heard. The burden to prove that he acted in a reasonable and diligent manner lies on the concerned CPIO/SPIO only.
GROUNDS
PENALTY IMPOSED
SECTION 20(1) Refusal to receive an application for information without reasonable cause. Information not furnished within the time limit prescribed under Section 7(1). Denied the request for information malafidely. Knowingly gave incorrect, incomplete, or misleading information. Destroyed the information requested by the applicant. Obstructed in any manner in furnishing the information
At the rate of Rs. 250 per day till the application is received or information is furnished. However, the total amount of penalty shall not exceed Rs. 25,000.
SECTION 20(2) deals with the persistent default/failure of the CPIO/SPIO. Persistent default or failure of the CPIO/SPIO to receive an application for information or in providing information without any reasonable cause or malafidely denying the request for information or knowingly furnishing false, incomplete, or misleading information or destroying the information requested.
The commission shall recommend that disciplinary action be taken against the concerned CPIO/SPIO under the service rules applicable to him.
Conclusion
The Right to Information Act, 2005 is a significant statutory measure for realisation of the citizen’s right to access of information. The Act mandates timely response to the citizen’s requests for government information. Citizens can file RTI applications for the public authorities under the Central Government by visiting https://rtionline.gov.in./ which is an initiative of the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension. With regard to public authorities under the State Governments, an RTI application can be filed by visiting the RTI portal/website of the particular state.
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:
This article is written by Khusboo Kharbanda a 5th year BA LLB student at Savitrbai Phule, Pune University. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).
Competition refers to a situation in a marketplace in which firms/ entities or sellers independently enter and compete for attracting a potential group or population of buyers in order to achieve a particular business objective, such as profits, sales, or market share. Competition is not an end unto itself, rather it is a means to achieve economic incentives and welfare objectives. A market can only flourish if there exists free and fair competition. Therefore, competition has become a driving force globally as well for international trade and commerce.
The Indian economy is on a developing path which has helped it in attracting a lot of investments from foreign nations as well. . Recently, the Indian economy has been one of the strongest competitors in the world. However, it has not benefited from its fullest potential which means it could develop further in the coming future. Maintaining an equal level of competition acts as a catalyst in unlocking the potential in many areas of the economy as well as circumstances, which has been held back by certain restrictions, on competition and collaboration in various forms. This pandemic is one such situation that has accelerated the process of Atma Nirbhar Bharat or self-reliant India.
However, due to the pandemic, businesses have been disrupted globally. While the companies which suffered major setbacks and losses had to shut down, the others may look for a way of combinations or mergers to survive this time but they needed to be within the guidelines or relaxations given by the CCI. Companies selling essentials tend to make a profit out of this situation by increasing prices or resorting to unfair trade practices. Due to this, the CCI and other global bodies are closely keeping tabs on the market. Companies need to be aware that the Competition Act,2002, is applicable to all irrespective of the pandemic.
Many relaxations have been provided in various sectors of the Indian economy ranging from the Reserve Bank of India to the Securities Exchange Board of India in view of the downfall of the economy which resulted in unemployment, an increase in loans, financial crisis, etc. Many countries like the United Kingdom, Sweden, etc had already provided relaxations and were keeping a close eye on the competitive activities by them in order to protect the consumers.
This article extensively deals with changes brought by the Competition Commission of India in the given pandemic situation, new hurdles in the market, anti-trust acts, exploitation of the consumers, whether prices could be increased at the whims of the companies, pharmaceutical industries, and steps taken by the Competition Commission of India (CCI).
Competition law – a brief
Before the Competition Act, we had the Monopolies and Restrictive Trade Practices Act,1969 (MRTP Act), which dealt with restrictive trade practices in the market. The main motive of this act was to decentralise the economic power from a handful of people. Even after the implementation of several amendments in order to cope with the changing market situation, this act failed to meet the requirements. Thus, keeping in mind the economic development of the country, a new act was enacted.
The main objective behind the existence of competition in markets is that it boosts the economy and helps it to flourish. It helps in maximum utilisation of resources to their optimum capacity which in turn attracts a large number of consumers who get the products at the best competitive prices and the government generates revenue through it. It is a cycle and one cannot exist efficiently without the other. Due to this the Competition Act, 2002 was enacted keeping in mind all the needs and thus implemented.
With the advent of liberalisation, privatisation, and globalisation, the Competition Act was the need of the hour. This is because many companies and industries were developing in the country together and even attracted foreign investments which led to an increase in unfair trade practices. Industrialists started dominating the market which led to the exploitation of the economy, price and consumers.
The main essence of this Act lies in:
Anti-competitive agreements
This provides that no enterprise or persons shall enter into agreements that can likely cause an appreciable adverse effect on the competition. A recent example of this is the Make My Trip case which entered into an agreement with Oyo to exclude Treebo and Fab hotels from its website.
Abuse of dominant position
No enterprise is allowed to use its position in the market to manipulate it which reduces the competition. Dominant position basically means that the enterprise operates independently of the competitive forces of the market and affects its competitors or market in its favour. Coal India Case is a classic example of this which was fined rupees 1773 crore.
Combination
If two or more enterprises combine due to which there is an effect on competition in the market, the CCI’s role comes into play. Such combinations are void in nature.
Regulation of combinations
Mergers, Amalgamation, or acquisitions of enterprises are dealt with under this section by CCI. Section 29 provides for the investigation of combinations. Section 3 and section 4 of this act are prohibited whereas combinations are regulated.
CCI is the watchdog of such activities in the market and there is an extensive system of penalties that are imposed on such acts by CCI in accordance with the Act. The Competition Act has stopped a lot of unfair practices such as:
Bid-Rigging;
Price- fixing;
Resale price fixation;
Exclusive dealing.
Under Section 7, the Government of India has been empowered to establish a commission called the Competition Commission of India. Its head office is in New Delhi. The main functions of CCI include:
To restrict anti-competitive agreements;
Ensure fair trade practices;
Protect the interests of the consumers;
To promote and sustain competition.
To eliminate practices that affect the market.
Pandemic and its effect
With the advent of technology and development, not even scientists in this 21st century had anticipated that the human race would be in the middle of such a crisis whose solution would be so difficult and time-consuming to tackle. COVID-19 has led the economy to its greatest downfall globally. It has shaken the roots of every country not only in terms of health but also in wealth. The sudden collapse of the economy was unexpected and there arose a situation in which it was easy to take advantage of the situation. . The first nationwide lockdown in India was announced on 23rd March which lasted for several months but even after the unlock phase the effect of the pandemic has lingered in the economy.
Largest GDP contraction ever in Q1 (April–June) FY 2020–2021 at -24%;
The COVID-19 pandemic has shaken the roots of societies and economies across the globe. It has resulted in a health crisis but has also resulted in 53% of businesses suffering immense loss and having to shut down due to coronavirus. Not only the government, but the entire society has been challenged at every stage of how we live, interact, and engage in trade and commerce. The pandemic has brought to light the weaknesses of our markets, supply and demand chains, raised some serious questions about the competition in the market and also the existing laws that govern it.
This pandemic has led to the loss of millions of lives across various countries which makes it difficult for everyone to recover in comparison to the fatalities of the Great Depression. It is completely uncertain as to how long this recession would last. It mainly depends on the demand and supply chains and the conditions prevalent in the market. These include the unlock phase of the businesses and mainly upon the availability of the vaccine. Otherwise, like the United Kingdom which is suffering from the second wave of this virus, other countries may be compelled to undergo complete lockdown again. The above factors account for the GDP evaluation of the year. The IMF, World Bank and OECD forecasts for the global GDP contraction in 2020 are in the range of 3.0–7.5%, and the forecasts for the ensuing global GDP increase in 2021 range from 2.8 to 5.8% (World Bank 2020; IMF 2020; OECD 2020). On March 11, 2020, the World Health Organization (WHO) characterized COVID-19 as a pandemic, pointing to over 3 million cases and 207,973 deaths in 213 countries and territories.
Changes in the system
In light of the given situation, it is possible that the businesses and enterprises may take or adapt steps to overcome their losses which are against the law and which would directly or indirectly affect the market and overall the consumers due to which CCI and other such bodies are on their toes globally. In several countries like European Union, the United Kingdom the United States of America, Spain, France, and South Africa an announcement was already made that they are keeping a close tab on the functioning of companies during these tough times so as to equalise competition in the market and protect consumers interests.
During this pandemic, the CCI has proved its diligence and responsibility by being active and catering to the changing needs of the situation via circulars and public notices.
The first circular was issued on March 17, 2020, as a precautionary measure by CCI.
It had further suspended all fresh merger filling, consultation requests, any filling against existing antitrust cases, and any new case related to anti-competitive practices till March which was extended till April 2020.
Oral hearings related to competition matters were suspended.
On March 30, 2020, CCI issued a notice which permitted the parties to file the notice related to combination matters under the ‘Green Channel’.
Under notification of April 20, 2020, it permitted that the information against the anti-competitive agreements and the abuse of dominance can be filed via e-mail to the competent authority. The same process was applicable for filing combination notices.
The CCI widened its scope for combination matters by allowing video conferencing in the case of pre-filing consultation, which was earlier suspended by the Public Notice dated March 23, 2020.
On April 19, 2020, CCI issued a notice which highlighted the in-built safeguards of the Competition Act. As per the said advisory, coordination between the businesses involving certain activities is allowed to enhance efficiency, especially of the essential commodities and healthcare products and services. Such cooperation was only provisional and limited to meeting the present necessity. Enterprises or groups were not allowed to indulge in any collaboration or cooperation amongst their competitors if it was non-essential or adversely affected the market.
The CCI did adapt itself but no such relaxations were provided to the enterprises, only preventive measures were taken by it to do damage control. It informed the entities through its circular to avoid taking such advantage of the situation and to adhere to the competition laws. It warned the businesses that the pandemic had not caused any suspension of the act and bid-rigging, anti-competitive agreements, abuse of power and position would lead to violations of the act. The merger regime continues to function in the same way and without the approval of CCI where required, such business cannot be merged.
Scope of exploitation
This is the worst side of the pandemic where consumers may be economically exploited at the whims of businesses. CCI had suspended all its fillings till in view of resource constraints and lockdown of offices except for essential ones. The whole market chain got disrupted due to which there was a sky-high increase in prices of essentials due to lack of supply which is also a signal to allow new entry for production, this brings the CCI to intervene and regulate such activity. Enterprise could seek benefits by
Forming a cartel and indulging in practices such as price-fixing, allocation of customers, limiting or controlling the supply of products, etc;
Abusing their dominant position by over-charging or by refusing to deal with any person in respect of essential commodities;
Hoarding of essential commodities;
Discriminatory practices.
Any of the above acts were prohibited by the Act under Section 3 and Section 4 and accordingly punishable. While collaborations could be regulated, exploitive agreements and acts would be tracked and punished.
Relaxations given
Competition Commission of India has issued an advisory to businesses that clarify that only such conduct of businesses that is necessary and proportionate to address concerns arising from COVID-19 will be considered. Businesses are cautioned not to take advantage of COVID-19 to contravene any of the provisions of the Act. Against the backdrop of the Competition Law and the CCI Business Advisory, CII has listed a few Guidelines for compliance by companies to ensure they are on the right side of the law. Some of these include:
For co-operation with competitors, principles to keep in mind for companies to understand what companies can do and cannot do to deal with the current crisis from a competition law perspective – Scope of the collaborations;
Detailed documentation;
Firewalling to prevent the exchange of CSI;
Ex-ante review by legal counsel.
Companies must carefully evaluate their business operations during the COVID-19 period, especially if their business operations might require close collaboration with their competitors.
The crisis has led to the formation of new ventures like Marico Limited and food technology platforms, Zomato and Swiggy. Moreover, the cab-aggregators are offering their fleets to Flipkart and Spencer’s Retail. This is mainly due to relaxations of adverse effects on competition provided by April 19, 2020 notification of joint ventures in the supply of essentials and health services.
CCI also issued an advisory to cope with significant changes in supply and demand patterns arising out of this extraordinary situation, businesses may need to coordinate certain activities, by way of sharing data on stock levels, timings of operation, sharing of distribution network and infrastructure, transport logistics, R & D, production, etc. to ensure continued supply and fair distribution of products (e.g. medical and healthcare products such as ventilators, face masks, gloves, vaccines, etc. and essential commodities) & services (e.g. logistics, testing, etc.).
According to the circumstances, CCI is on high alert with respect to the increase of prices and combinations so as to avoid any such malpractices but is giving certain liberty in terms of essentials and health care facilities.
ANTITRUST CONCERNS
CCI is imperatively scrutinising business conduct and has also issued various notices and notifications which are now important for enterprises to be aware of it and follow them. It has taken all necessary steps to bridge gaps between the forces of the market. For instance, the government took prompt action to correct the increased prices and low availability of protective face masks and hand sanitizers by amending the schedule of the Essential Commodities Act, 1955 and issuing an advisory under the Legal Metrology Act, 2009. Similarly, the Ministry of Consumer Affairs, Food & Public Distribution, vide its notification addressed the demand-supply gap of sanitizers in the markets. The notification provides that Ethyl Alcohol/ Extra Neutral Alcohol/ Ethanol, which is the most essential component of sanitizers, would be made available to the sanitizer industry by industry associations such as the All-India Distilleries Association (AIDA) and Indian Sugar Mills Association.
The government of the United Kingdom was the first to take steps to provide relaxation to competition laws so that supply could meet the demand. Even European Union had permitted to coordinate the supply of essentials. The USA also issued guidelines in terms of anti-trust procedures for the protection of the health of its citizens.
Price gouging
This is a situation where businesses may unanimously increase the price of their products or services without any justifications just to increase their profits. Such acts are criticised by CCI because it exploits the customers. This concept is not clearly defined in the act but can be read under the umbrella of anti-competitive. For instance, an increase in the price of sanitizers, masks, etc attracted the provisions of the Competition Act. When an enterprise has a monopoly in the market or there is some crisis, it may charge different prices from different sets of consumers for the same product, this is known as differential pricing. Such acts are prohibited under Section 4 that no enterprise shall abuse its dominant position in the market. Thus, prices cannot be charged arbitrarily, it has to be fair and just.
Combination matters
The crisis has compelled the business to make drastic changes as it has led to a shortage of FMCG, medical and essential supplies but they should bear in mind the provisions of the act because that had not been terminated by CCI. Businesses may together determine prices known as cartelization, due to which anti-trust is enforced to regulate such activities. But such cartels may be permitted to cooperate and work for production and distribution purposes to fight the effects of COVID-19 but it cannot be done without CCI’s approval. It has streamlined its e-filing with physical fillings in light of the situation.
For instance, in the pharmaceutical sector, resources have been dedicated to manufacturing vaccines. It is possible that competing enterprises may jointly engage in research and development agreements to speed up this process but this also leads to tensions that they might reduce or control the supply in order to dominate the markets. However, relaxation will be provided keeping in mind the needs of society.
During this period, the CCI has approved several notifications such as the formation of a Joint Venture between Adani Green Energy Limited and Total S.A., in the solar power generation business in India, approval of the acquisition of 100% shareholding of GMR Kamalanga Energy Limited by JSW Energy Limited, approval of the proposed acquisition of 80.1% stake by Hitachi Limited in the power grid business of ABB Limited. These approvals were made during CCI’s meeting held through video conferencing.
Pricing of essentials
Due to this crisis, the Essential Commodities Act, 1955 has come into a role that prohibits hoarding of essential products. This helps in ensuring that the market does not run short of supply and protects consumers from price gouging. However, this act did not explicitly include anti-competitive practices issues due to which Competition authorities and the Act have played a very important role in this crisis. Sanitizers and masks were included under essential categories by the Central Government. CCI has been more vigilant than ever and pharmaceuticals industries that are dedicated to the procurement of vaccines and medical supplies for COVID-19 are under constant surveillance. Businesses may be allowed to combine but all such relaxations will be provided by CCI only after close scrutiny.
Conclusion
The Competition Commission of India wielded significant power in this crisis in the economy which added responsibility to its shoulders to act with utmost caution and care so that no enterprise could exploit the customers. A lot of relaxations have not been provided by CCI during the pandemic but it is constantly adapting to the ever-changing needs and requirements of the market. It has facilitated online functioning as well which is technically important in the coming future. It has maintained check and balance in the market so that no anticompetitive acts can be done to exploit the customers at large. However, the effects of the pandemic have not vanished from the market, it is still a long road ahead for the economy to get back to its feet.
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:
This article is written by Ishan Arun Mudbidri from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the concept of matrimonial relief and its bars mentioned under various enactments in India.
It has been published by Rachit Garg.
Table of Contents
Introduction
“When you change the way you look at things, things you look at change.”
– Wayne Dyer
Marriages are a lifetime worth of promises, trust, commitment, patience, love, honesty, and much more. These above-mentioned words describe a good marriage but many times circumstances are such that marriages just become intolerable. When both the wife and the husband have separated, there’s always a question of what will I get from the divorce? Will I get compensated or not? Yes, in most cases you will. This compensation will be in the form of matrimonial relief.
The concept of matrimonial relief
In India, a marriage is considered an eternal bond between two people. In the Hindu culture, the wife was seen as a Dharampatni, without whom the husband couldn’t perform certain duties or yajnas (sacrifices). As societies developed, the mindset of the people started changing. Marriage was considered a contract rather than a union of two souls. In the latter half of the 19th century, the concept of divorce was also introduced. In 1955, the Hindu Marriage Act was introduced, which defined marriage as a contract between two people that can be terminated at the will of either of the parties or mutually, subject to certain conditions. These conditions are known as matrimonial relief. This means that there are certain remedies available to both parties if the marriage goes sideways. However, these remedies have certain legal restrictions or bars.
Causes for matrimonial disputes
The Hindu Law lays down certain theories of divorce, one of which is called the ‘fault theory’. This theory states that a marriage can be terminated if either of the spouses commits a matrimonial offence. So what makes the spouses commit an offence that may end their marriage? Mentioned below are some of the basic and common causes for matrimonial disputes.
Intimacy
Intimacy or romance is one of the most important factors leading to a successful marriage. The desire for sex is natural, and if that’s missing in a relationship then one may feel unloved and the connection tends to break.
Control
Controlling the relationship is bad. Yes, there are many things which you might agree with and your partner might not but that doesn’t give you a right to make things go your way by controlling him/her.
Communication
The power of conversation can speak volumes about your marriage. How open you are with your partner does matter. Yes, time is a factor but you can always adjust for your loved ones.
Infidelity
Loyalty is an important factor in a marriage. You might get attracted to someone other than your wife or husband, but everything in this world has certain limits.
Trust
Lack of trust between spouses can lead to misunderstandings and in the end, divorce. So always trust your partner.
Matrimonial remedies in India
The Hindu Marriage Act, 1955(HMA) and the Special Marriage Act, 1954(SMA), are perhaps the two most important legislations governing marriage and divorce in India. Section 9 to Section 13 of the HMA and Section 22 to Section 27 of the Special Marriage Act, 1954 talk about certain matrimonial remedies which are as follows:
Restitution of conjugal rights
Section 9 of the HMA and Section 22 of the SMA state that when either the wife or the husband, without reasonable excuse decides to withdraw from the society of his/her spouse, he/she may apply by petition for restitution of conjugal rights and if the court is satisfied that there is no legal ground on why the application should not be granted it may pass a decree for the restitution of conjugal rights to such party. Hence, this simply means that the person who has withdrawn from society without any reasonable excuse shall have to prove his/her withdrawal.
The ingredients of this provision are:
The withdrawal of the respondent from the company of the petitioner.
Such withdrawal is without any lawful ground.
The Court must be satisfied with the statements made in the petition.
The basic rule of matrimonial law is that the spouse is at the comfort of the other spouse. The court must grant a decree for restitution of conjugal rights after either spouse has abandoned the company of the other spouse. The wife can apply for restitution of conjugal rights if the husband deserts her or fails to perform his marital obligations.
How to apply for restitution of conjugal rights
The decree for restitution of conjugal rights can be granted to either the husband or the wife. The process to be followed by the spouses is as follows:
The aggrieved party shall file a petition for restitution of conjugal rights to the District Court, which will later be transferred to the High Court.
Both parties must attend the counseling gatherings of the Court which will be held for a duration of 4 months.
The Court then decides whether to grant the provision for restitution of conjugal rights to the aggrieved party after examining the counseling sessions and the statements produced by the parties.
On what grounds will the court not pass the order for restitution of conjugal rights
The court cannot pass the order for grant of restitution of conjugal rights if:
A reasonable excuse was given by the petitioner for withdrawal from society.
Any ground on which the respondent could have asked for nullity of marriage, judicial separation, or divorce.
In the case of Sushila Bai v. Prem Narayana(1985), the husband had deserted his wife. As he had withdrawn from society, the wife filed for restitution of conjugal rights which was allowed by the Court. The Court observed that if the spouse has a valid reason to withdraw from society, it will be a defence for this provision.
Judicial separation
Section 10 of the HMA and Section 23 of the SMA states that either party may file a petition granting judicial separation on certain grounds of divorce specified in Section 13 and Section 27 of the HMA and SMA respectively. The traditional English Law mentions certain grounds for judicial separation which are adultery, cruelty, and desertion. Both these Sections might sound the same but there is a certain minute difference between the two. Under the Hindu Marriage Act, desertion and cruelty are not grounds for dissolution of marriage but only for seeking judicial separation whereas, under the Special Marriage Act both desertion and cruelty are grounds for dissolution as well as judicial separation. The provision of judicial separation gives the right to live separately. If there is no cohabitation between husband and wife after one year from passing the decree for judicial separation, the parties can apply for divorce. In the case of Smt. Sandhya Sen v. Sanjay Sen (2021), the Court observed that in cases where divorce is by mutual consent, the provision of judicial separation cannot be granted mechanically.
Void and voidable marriages
Section 11 of the HMA and Section 24 of the SMA states that any marriage which does not fulfill any of the conditions mentioned below shall be void. These conditions are:
Neither party should have a spouse living at the time of marriage.
Both parties should not come within the degrees of prohibited relationship.
Neither party shall be sapindas of each other.
The girl should be above 18 years and the boy above 21 years of age.
Section 12 of the HMA and Section 25 of the SMA talk about voidable marriages. Voidable marriages are those, which can be canceled by any one of the parties to the marriage. The marriage shall be valid until opposed by one of the parties in Court. Following are the grounds due to which marriages can be held voidable:
Impotency
Unsoundness of mind
Consent obtained by force or fraud
If the wife is pregnant by some other person at the time of marriage.
There is a slight difference between Section 12 and Section 25 due to a change of words. Section 25(iii) states that the consent of either party is obtained by fraud or coercion mentioned under the Indian Contract Act 1872, whereas, marriage is not a civil contract, and fraud or coercion mentioned under the Contract Act, is inapplicable to the Hindu Marriage Act.
Divorce
Section 13 of the HMA and Section 27 of the SMA, talks about divorce under Hindu Law. Both these provisions lay down certain grounds, which shall lead to divorce between the spouses. These grounds are:
Adultery
Cruelty
Desertion
Conversion
Mental disorder
Leprosy
Mental disorder
Venereal disease
Renunciation
Presumption of death
This Section also states certain grounds of divorce for which a petition can only be filed by the wife. They are:
If the wife is subjected to rape, sodomy, or bestiality.
If the husband has remarried during the lifetime of the previous wife.
If the girl had married at the age of 15 years and renounced the marriage before turning 18 years old, she can file for divorce.
Is there any difference between judicial separation and divorce
Both the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 talk about judicial separation and divorce separately. But their meaning and scope sound similar. Hence, there remains confusion as to whether both these provisions are the same. Firstly, they are not the same. A divorce ends the marital ties completely whereas, under judicial separation, the spouses are relieved from their marital ties for a temporary period. Further, the petition for judicial separation can be filed at any time after the marriage whereas a divorce petition can only be filed after one year of marriage. A divorce cannot be converted to judicial separation but judicial separation can be converted to divorce as during judicial separation the spouses might feel like filing for divorce.
Bars to matrimonial relief under Hindu Law
The Hindu Marriage Act, 1955
The remedies mentioned in the Hindu Marriage Act, 1955 have certain bars which must be crossed in order to get matrimonial relief. These bars are based on the Doctrine of Equity. This doctrine states that “One who comes to equity must come with clean hands”. This means that the person seeking matrimonial relief must prove the fault of the other party and also cross the bars to matrimonial relief. This maxim examines the past conduct of the aggrieved party and ensures that he/she does not take advantage of his/her wrong.
The bars to matrimonial relief have been defined under Section 23 of the HMA. This provision states that if the aggrieved party seeking relief under any of the bars mentioned from clause (a) to (e) of Section 23(1) of the Hindu Marriage Act is in contravention to any of these clauses, then such grant for relief shall be quashed. Any order passed by the Court against these bars will be null. These bars are mentioned below:
Burden of proof
The doctrine of strict proof is recognized in matrimonial cases which are civil in nature. The burden of proof in matrimonial cases is two-fold. In divorce proceedings, the aggrieved party has the burden of proof relating to allegations, maintenance, custody of the children, etc. Whereas, while seeking matrimonial relief, the spouses must prove the fault of the other party. In the case of P.Mohandas Panicker v. KK Dakshyani (2005), the Court observed that in a matrimonial proceeding, the burden of proof must lie on the petitioner who has agreed to the facts, and not the respondent who has denied it. According to the doctrine of strict proof, the petitioner has to prove his case beyond a reasonable doubt. In the case of Dastane v. Dastane (1975), the Court observed that the burden of proof need not be beyond a reasonable doubt.
Taking advantage of one’s own wrong
If the aggrieved party is taking advantage of his wrong, then the Court shall not grant matrimonial relief under Hindu Marriage Act. This provision was exclusively enacted under the Hindu Marriage Act, 1955.
Accessory
Section 23(1)(b) mentions the term “accessory”. This concept is mainly used in criminal cases. Accessory means participating in a criminal or immoral act. Hence, if the petitioner is in any small way involved or helping the respondent in an immoral or criminal act, matrimonial relief shall not be granted. The petitioner shall be an accomplice to the crime. This bar applies only to adultery under the Hindu Marriage Act.
Connivance
Connivance, like accessory, is involvement in an immoral or wrongful act. In accessory, the petitioner is guilty of helping the respondent in committing the crime whereas, in connivance, the petitioner encourages the wrongful act of the respondent. Connivance is the anticipatory willing consent given by the petitioner to a wrongful act. In such a case, the petitioner will not be elgible for relief.
Condonation
Condonation is the forgiveness of the crime committed by the offender. Hence while granting relief, the Court has to examine whether the act committed by the respondent in case of cruelty or adultery is not condoned/erased by the petitioner. It is assumed that once the act is condoned, the offender will not repeat it. The two main ingredients of condonation are forgiveness and reinstatement.
Collusion
Section 23(1)(c) of the HMA, mentions the bar of collusion. Collusion is an absolute bar under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. Collusion is an agreement between the parties for obtaining matrimonial relief by deceiving or misrepresenting the court or producing false evidence. The only exception to this bar is divorce by mutual consent. The burden of proving to the court that there is no collusion on the part of the spouses rests with the petitioner. The HMA has abolished this bar in cases where marriages are null and void, but it is available under the Special Marriage Act.
Delay
Delays are never tolerated. It is quite natural to say that unnecessary delays are a bar to matrimonial relief. Likewise, the burden of proving that the delay was not intentional falls on the petitioner. This bar is based on the doctrine of Laches which states that in a civil dispute, a party may not be allowed to file a suit due to an unreasonable delay.
Other legal grounds
Section 23(1)(e) states that matrimonial relief shall not be granted if there is any other legal ground restricting matrimonial relief. This is a residuary bar.
Reconciliation
Section 23(2) imposes a duty on the Court to make an attempt to bring about reconciliation between the parties. The reconciliation shall not be applicable in instances where divorce is on the grounds of leprosy, conversion, insanity, venereal disease, renunciation, or presumption of death.
Irretrievable breakdown of marriage as a bar to matrimonial relief
The Law Commission in its 71st report in 1980, examined the existing grounds of divorce under Hindu law and recommended the introduction of a new ground, i.e., irretrievable breakdown of a marriage, stating that either of the spouses can file a petition for dissolution of marriage on the ground that the marriage has broken down irretrievably. The Commission further recommended the bar to this ground of divorce, which is as follows:
If the wife is the party against whom the petition for dissolution of marriage on the ground of irretrievable breakdown of marriage is filed, then she can reject this grant on the ground that the dissolution of marriage will result in financial hardships and struggles.
If a grant for opposing the decree for dissolution of marriage is filed, it is the duty of the court to examine the facts and circumstances of this case, the interests of both the parties and the interests of their children if any. If the court finds that the dissolution of marriage shall result in financial hardships, it shall dismiss the petition or stay the proceedings until arrangements to overcome financial hardships have been made.
Further, the court shall not pass a decree for dissolution of marriage on the ground of irretrievable breakdown of marriage, until adequate provisions for the maintenance of children have been made, depending on the financial capacity of the parties to the marriage.
Further recommendations made by the Law Commission were that this bar to matrimonial relief, shall not apply or come under the scope of Section 23(1)(a) of the Hindu Marriage Act, 1955. The Government had accepted these recommendations of the Law Commission. However, due to strong opposition, these recommendations lapsed.
Important case laws
In the case ofNitaben Dinesh Patel v. Dinesh Dahyabhai Patel (2021), the husband (respondent) had filed for divorce under Section 13 HMA on the grounds of cruelty, whereas the appellant (wife) filed a counterclaim stating that she and her son were deserted by the husband and were not paid enough maintenance. Currently, the husband is cohabiting with another woman and has married her. Hence, the wife has argued that the marriage between her husband and the woman is illegal and void and the son born through the marriage is illegitimate. The Supreme Court observed that such a relief cannot be granted under Section 23A of the HMA. By way of counterclaim, only those reliefs mentioned under Section 9 to 13 of the HMA can be granted.
In the case of Smt. Leela v. Dr. Rao Anand Singh & Anr. (1963), the respondent (Anand Singh) had already married Smt. Roopwati Devi before his marriage with the appellant (Smt. Leela). The appellant was a Christian man. The marriage was not solemnized according to the Christian tradition, so the appellant had to convert to Hinduism. A petition was filed by the appellant on the grounds that the respondent had concealed the fact of his first marriage, treated her with cruelty and had withdrawn from her society. The respondent accepted the fact of his marriage but denied the other allegations. The issues before the Court were
Whether the respondent concealed the fact about his first marriage?
Whether the appellant was treated with cruelty?
Whether there was an unreasonable delay under Section 23(b) of the Hindu Marriage Act 1955?
The contention of the respondent was that the petition was filed very late and there is an unnecessary delay under Section 23(1)(d) of the HMA. The Court observed that the delay on the part of the appellant is not improper and cannot be rejected.
Special Marriage Act, 1954
Section 34 of the Special Marriage Act, 1954 lays down that the court shall grant relief to the aggrieved party after examining the bars mentioned under this provision, which are as follows:
Accessory
Connivance
Condonation
Collusion
Unnecessary delays
Burden of proof
In cases where divorce is obtained by mutual consent, the court shall see whether the consent has not been obtained by force or fraud
Any other legal grounds
Reconciliation
The provisions mentioned under these enactments are similar. So why are there two different Acts? The Hindu Marriage Act is applicable only to Hindus living in India whereas the SMA is applicable to all the citizens in the country, irrespective of their caste, religion, ethnicity, etc. Further, marriage under the HMA is solemnized by the ancient Hindu traditions and rituals, whereas specific rituals or traditions are not required for solemnizing marriage under the SMA. Hence although similar, there are minute differences between these two enactments.
In the case ofK. Ramaswamy v. Esther Johney (1987), the spouses had married according to the Special Marriage Act, 1954 as the appellant (Ramaswamy) was a Hindu and the respondent (Esther Johney) was a Christian. The appellant alleged that their marriage was not valid because he was coerced for the marriage by the respondent’s family members. He further alleged that during the time of the marriage, the respondent was below 18 years old so the marriage should be declared void and claimed relief under Section 34. The respondent denied all the allegations. The District Court Judge observed that the appellant cannot claim relief under this Act because there was an unnecessary delay in filing the petition. The case went to the Madras High Court, which observed that the appellant had delayed the filing of the petition by more than 2 years so there had been an unnecessary delay on his part. As unnecessary delay is a bar to matrimonial relief under the SMA, the appellant’s grant for relief was rejected.
Bars to matrimonial relief under Personal Laws
Bars to matrimonial relief are not mentioned under the Muslim Personal Law, and there are no provisions regarding the same. However, the Indian Divorce Act 1869, and the Parsi Marriage and Divorce Act 1936, which govern the provisions of marriage among Christians and Parsis respectively, do mention certain bars to matrimonial relief, which are as follows:
The Indian Divorce Act, 1869
This Act was the first enactment that introduced bars to matrimonial relief in India. This is the only law in India that regulates divorce among Christians. These bars are as follows:
Section 12 of the Act states that the court on receiving the petition for dissolution of marriage shall examine whether the petitioner has been an accessory to any act, or in connivance, or has condoned the act, or is going through the said marriage, or has committed adultery. The court shall also look into any counterclaims if any, made against the petitioner.
Section 14 states that the court on finding that the petitioner does not fulfill the requirements of any of the bars mentioned above can pass a decree to dissolve the marriage. However, the court shall not pass the decree if the petitioner has been guilty of adultery, cruelty, desertion, or has committed unreasonable delay for filing the petition.
The Parsi Marriage and Divorce Act, 1936
This Act governs marriage and divorce among the Parsis in India. A Parsi marriage is considered a contract that shall be valid through the Ashirwad ceremony. Section 35 of the Act, mentions the bars to matrimonial relief. If a suit is filed under Section 30, Section 31, Section 32, Section 32A, and Section 34, that talk about matrimonial remedies and the Court is satisfied that any of the bars mentioned below are not fulfilled, then the Court shall pass a decree granting matrimonial relief. These bars are:
Annulment
Condonation
Collusion
Connivance
Reasonable delay
Any other legal ground
Summary
Let us summarize all the bars to matrimonial relief mentioned above:
BARS TOMATRIMONIAL RELIEF
HINDU MARRIAGE ACT, 1955
SPECIAL MARRIAGE ACT 1954
INDIAN DIVORCE ACT, 1869
PARSI MARRIAGE AND DIVORCE ACT, 1936
Accessory
Only in cases of adultery
Only in cases of adultery
Only in cases of adultery
Used in a general sense
Connivance
On the ground of adultery
On the grounds of adultery
On the grounds of adultery
General bar
Condonation
On the grounds of adultery and cruelty
On the grounds of adultery and cruelty
Only adultery
Applies to all matrimonial reliefs
Burden of proof
Applicable to all remedies
Applicable to all remedies
Applicable to all remedies
Applicable to all remedies
Taking advantage of one’s own wrong
Applicable
N/A
N/A
N/A
Collusion
Not applicable to a petition for declaring a marriage null and void
All remedies
Only in case of divorce
All remedies
Unreasonable delay
All remedies
All remedies
Only in case of divorce
All remedies
Legal grounds
Residuary bar
Residuary bar
N/A
Residuary bar
Conclusion
Matrimonial relief in India is a complex topic. All these bars mentioned above are absolute under all Indian personal laws. Earlier, these bars were applicable for seeking relief only for the dissolution of marriage. However nowadays with the introduction of new bars like collusion, taking advantage of one’s wrong, etc. their scope has extended to all matrimonial remedies. The only motive of imposing these bars is that the spouse who seeks relief must have a genuine reason and should not have selfish interests. Hence the burden of proving not just the respondent’s guilt, but also his/her innocence is on the party seeking relief.
Granting matrimonial reliefs under the Indian personal laws can be a very difficult task for the Courts with so many aspects to look at, so the Courts need to be vigilant and examine each case thoroughly.
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Patent registration in India is growing rapidly, which has led to an increase in the demand for new and reformed laws. Patents are governed by the Patent Act of 1970 and recently the government introduced the Patent (Amendment) Rule, 2021. The government aims to promote innovation and the development of new technologies in society.
With its developing IP ecosystem, India has piqued the interest of the global community. There are certain provisions in the Indian Patent Law, like those in any other jurisdiction, that are unique.
Patent search is an important tool for businesses all around the world. To maintain a competitive advantage, a corporation develops a road plan based on many aspects, with patent searches serving as an essential tool to provide strategic insights.
This article seeks to explain and provide some patent-related developments in India.
Foreign Filing License (FFL)
What is FFL?
A foreign filing license (FFL) is required for Indian residents who wish to file for patents outside of India first before applying in India. Section 39 of the Patents Act of 1970 lays forth the rules for the license.
It is necessary to obtain an FFL from the Indian Patent Office for patent registration. The FFL requirement allows Indian authorities to monitor all inventions, and in particular, defense or atomic energy-related inventions in the national interest.
What does the provision state?
The provision states that a person (Applicant or Inventor) who is a resident of India has to request for an FFL in India if he/she wishes to file a patent outside India without first applying in India. Typically, the Applicants resort to applying for patents directly outside India when the invention does not have a commercial value in the Indian market, or the invention is being considered as a non-patentable subject matter in India.
In such cases, written permission has to be sought from the Indian Patent Office (IPO) for applying for patent registration outside India.
Documents Required:
To apply for a foreign license, the applicant must include a brief description of the invention. The following documents must be attached:
All the names, addresses, and nationality of inventors residents of India.
Power of Attorney (POA) from the inventor(s) or applicant residing in India, when a patent agent has been appointed to represent them.
Title of the invention with disclosure including drawings, if any
Names of the co-inventors (non-residents in India).
Name and address of the Applicant(s) (if rights assigned to an applicant).
The name of the country/countries in which the application is expected to be filed.
Reason to make such an application.
Phase filing and amendments
What is National Phase Filing?
A national phase filing application is a type of application to file to obtain a patent in a number of countries simultaneously on the basis of one International/ PCT application. It must be filed within a period of 12 months of the priority date.
These applications are filed as per the Patent Cooperation Treaty (PCT), which is administered by World Intellectual Property Organization (WIPO). There are a total 153 PCT members, so the applicant can nationalise the application in any or a combination of 152 countries through the PCT route.
The PCT route allows an applicant to seek patent protection for an invention in a large number of countries at the same time by filing a single worldwide patent application rather than multiple separate national or regional patent applications (through the Paris Convention route).
Amendments:
Since the IPO accepts English, no translation in local languages is necessary for submitting and prosecuting patent applications in India. When compared to jurisdictions such as Japan, China, Brazil, and South Korea, which all need native-language translations, this results in a considerable reduction in overall patenting costs.
According to one estimate, translation into the original language costs around 35% of the overall cost of patent protection. In addition, based on the international patent cooperation treaty (PCT), Indian patent law enables a 31-month term to submit a national phase application, as opposed to the 30 months granted by other jurisdictions.
Patent prosecution process in India
What is the patent prosecution process in India?
The patent prosecution process (patent registration) in India begins with filing a patent application in the IPO. Once the application is submitted, the officials perform document verification and technical examination to check if the invention meets the requirements of patentability, i.e. industrial applicability, novelty, and statutory (subject matter eligible).
If the examiner raises any objection(s) in terms of patentability, he/she shall incorporate these in an examination report and send it to the applicant(s) for submission of a reply in a stipulated time,
Amendments:
Patent registration is now done between 8 months to 2 years, rather than 3-6 years, due to the faster inspection procedure.
The applicant has six months from the date of the first examination report to respond. If all of the objections are addressed, a patent is granted directly. Otherwise, an oral hearing is held after some time to allow the applicant to address any unresolved concerns before issuing a judgement. In the event of an unfavourable ruling, the applicant has two options: file a review petition with the patent office, or file an appeal with an applicable high court.
Working statement
What is a Working Statement?
A working statement refers to a statement prescribed to the patentees and licensees to explain the working of their patents granted in India. It ensures that patents are granted to promote more inventions in the country and it is worked in India on a commercial scale without any delay. Therefore, a working statement is an integral part of patent registration in India.
As per Patent Rules, every patentee is required to file out Form 27 to submit its working statement. Failure to file this statement does not immediately result in the loss of patent ownership or license rights, but the risks are elevated. In case the patentee fails to provide this declaration on a consistent basis would certainly make the patent subject to abandonment or revocation, perhaps resulting in the loss of rights.
Amendments:
Earlier, Form 27 was filed for each patent granted by the applicant. Now the process has been simplified, it is known that a product is protected by one patent only. A product is protected by various patents, as per recent amendments one form i.e. Form 27 for multiple patents is permitted only if these conditions are fulfilled and they are as follows:
Patents should be correlated,
All these patents must be granted to the same applicant(s),
The approximate revenue/value earned from one patented invention cannot be calculated independently of that accrued from related inventions.
After updating Form 27, the Patent (Amendment) Rules, 2020 will hopefully address a number of issues that are faced by patentees and licensees in the process of regulatory compliance in India. The amendment has simplified the form, and in the process, reduced ambiguity, and generally made it less cumbersome for filers overall.
Abolishment of IPAB
Intellectual Property Appellate Board (IPAB)
It was a quasi-judicial body constituted by the Central Government and was established in September 1958. IPAB was officially abolished on August 14th 2021, when the President gave assent to the Tribunal Reforms Act, 2021. With the adoption of this legislation, the IPAB’s jurisdiction returns to the High Courts and commercial courts. Fresh appeals under the Patents Act, the Trademarks Act, and Geographical Indications Act must now be filed with the appropriate high court.
The IPAB has been in the headlines for a variety of reasons, including from lack of independence to a shortage of appointments to poor appointment quality to unlawful appointments to a lack of resources.
Intellectual property disputes are often more complicated than civil and criminal cases, and their disposal needs a reasonable level of understanding. IPAB was established particularly to deal with intellectual property-related disputes, and as a result, judges with a high degree of knowledge in intellectual property concerns were nominated to the tribunal.
The dissolution of the IPAB appears to be a rash decision, which may result in unjustified delays in cases of intellectual property violation. Instead of completely dismantling IPAB, more focus should have been placed on its good administration.
Conclusion:
The process ofPatent registration has evolved for good in the past few years. The Patent (Amendment) Rules, 2021 would also encourage educational institutions to submit more patents in order to promote research and the commercialization of innovative technology.
Likewise, Indian Patent Search can be made hassle free by using search engines like QuickCompany, Google Patents 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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