Amendment to CCS Pension Rules, 1972

By

Rachit Garg

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December 25, 2021

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This article has been written by Divyansh Morolia.

Table of Contents

Introduction

A gazette notification dated 1 May, 2021 has been issued by the Ministry of Personnel, Public Grievances and Pensions amending the clause 8(3)(a) of the CCS Pension Rules, 1972. The said rule is amended to add to the section of ‘pension subject to good conduct’ a condition wherein any government servant, having worked in any Intelligence and security organisation is barred from making publication related to a topic, without prior clearance from the head of the organisation, which pertains to the domain of the organisation, including any reference or information about any personnel and his designation, as well as expertise or knowledge gained as a result of working in that organisation; or sensitive information, the disclosure of which would jeopardise India’s sovereignty and integrity, security, strategic, scientific, or economic interests, or relations with a foreign state, or lead to incitement of an offence.

Through this article, I would like to challenge the constitutionality of the amendment by highlighting that the amendment violates the right to freedom of speech and expression of the retired government servants guaranteed under Article 19(1)(a) of the constitution, it lays down an arbitrary law which violates the Article 14 of the constitution, it violates the right to pension, the amendment is vague and it is contrary to the doctrine of unconditional conditions.

The said amendment violates right to freedom of speech and expression

Article 19(1)(a) of the constitution guarantees to all the citizens the freedom of speech and expression.

In Kameshwar Prasad v. the State of Bihar, the honourable Patna High court struck down rule 4(A) of the Bihar Government Servants Conduct Rules,which prohibited the government servants from participating in demonstrations or strikes concerning the condition of service. The Court noted that entering government service does not disentitle a person from claiming the freedoms guaranteed to every citizen and this judgement was subsequently upheld by the honourable Supreme Court. In O.K. Ghosh v. E.X Joseph, the honourable Bombay High Court held that the Rule 4(B) of the Central Civil Service (Conduct) Rule,which prohibited the government servants from being a member of any service association recognition to which has been withdrawn by the government, was violative of Article 19(1)(c) which provides for the right to form an association. This judgement was also upheld by the honourable supreme court. Both these judgements by the honourable SC demonstrate that the right to freedom under Article 19(1) is equally applicable to the government servants and cannot be arbitrarily infringed upon. The said amendment prohibits without clearance publication of any material including expertise or knowledge gained by virtue of working in that organisation and hence, violates the right to freedom and expression under Article 19(1)(a).

Article 19(2) provides for eight reasonable restrictions which can be imposed on the rights guaranteed under Article 19(1) and the said amendment claims the exception based on protecting the ‘sovereignty and integrity of the state’, however, the said exceptions cannot be invoked in the instant case. The Supreme Court, in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia has held that restriction under Article 19(2) must have a proximate and imminent connection with the ground on which it is being imposed. In this amendment, there can be no proximate relation established between the steps taken as provided in the amendment and the object sought to be achieved, i.e, the sovereignty and integrity of the nation.

The test of proportionality as introduced by honourable justice D.Y.Chandrachud in K.S Puttaswamy v Union of India provides for a four limb test to justify a restriction on a fundamental right as being ‘proportional’. The third test among these is that there must not be present any less restrictive and equally effective alternative with the government. The amendment in the instant case fails on this ground as prohibiting all publications by government servants without clearance from the head of the organisation is not the ‘least restrictive measure to uphold the ‘sovereignty and integrity of the state’.

In Bennet Coleman and Co. v. UOI, the honourable supreme court applied the ‘direct effect test’ as per which if the direct consequence/effect of the impugned state action is the violation of the fundamental rights, then irrespective of the object of the act, it is to be considered unconstitutional. This test was applied by the supreme court in other cases such as the Meneka Gandhi v. UOI, and the Sakal Papers Ltd. v. UOI. In the present case, a direct consequence of this amendment can be established to be the violation of freedom of speech and expression of the retired government servants and hence, applying the ‘direct effect’ rule, this amendment should be declared unconstitutional.

In Shreya Singhal v Union of India, honourable justice R.F. Nariman, J has stated that “restrictions on freedom of speech must be couched in the narrowest possible terms.” Furthermore, Justice Deshpande in his paper, ‘Right and duties under the constitution’, has linked an observation made by the supreme court of the United States to the Indian scenario that the freedom of speech and expression is considered to be a ‘preferred freedom’ and any restriction on it must be believed to be prima facie unconstitutional till the state can justify it. These observations further strengthen the point that the restriction imposed by the said amendment is unjustified and unconstitutional.

Looking at these contentions, it can be concluded that the said amendment violates Article 19(1)(a) of the constitution and does not qualify as a reasonable restriction under Article 19(2).

The said amendment violates Article 14

Article 14 of the constitution deals with “equality before the law and equal protection of the law”. The ‘equal protection of law’ entails that any act/amendment leading to arbitrary classification is held to violate Article 14. The word ‘arbitrary means an act done unreasonably and without adequate determining principle. It was held in Meneka Gandhi v. UOI by the honourable justice M.H. Beg that Article 14 strikes at arbitrariness in State action and ensures fairness and equality, of treatment.” The amendment in the instant case creates distinct conditions for the retired servants from the intelligence and security organisations and the other citizens in respect to freedom of publication. Moreover, the retired personnel were not aware of this condition during their service and hence there is no lawful justification for the same and the differentiation is arbitrary.

The honourable Supreme Court has stated in various judgements that classification made by the legislature must be in nexus with the objects sought to be achieved. The said amendment makes the differentiation between the common citizens and the retired government servants with a view of safeguarding the sovereignty and integrity of the state. In P Gunasekaran v. UOI, it was held by the SC that the word ‘integrity’ means moral uprightness and honesty and it takes into account openness and cleanness. The amendment seeks to prohibit the freedom of publication which goes against the concept of openness and cannot be said to be safeguarding the integrity of the state.

Therefore, it can be concluded that the impugned amendment creates an un-intelligible differentia and can be classified as an ‘arbitrary state action’ and is violative of Article 14.

The said amendment is vague

I has been upheld by the SC that the legislations being vague and capable of being misused are void. In-State of Bombay v. F.N. Balsara, the Supreme court struck down sections of the Bombay prohibition law that criminalized “frustrating or defeating the provisions of the Act” by, inter alia, noting that the impugned words “are so wide and vague that it is difficult to define or limit their scope”. Also, in Shreya Singhal v. Union of India, the supreme court struck down the section 66A of the Information Technology Act, 2000 and stated that it creates an offence which is ‘vague’ and the court also points out the words like “menace”, “offensive”, “annoy” etc which were based on open-ended interpretations to be vague.

The newly amended rule fails to precisely define the expression “domain of the organization” and gives it an open-ended definition: “including any reference or information about any personnel and his designation, and expertise or knowledge gained under working in that organisation.” and is hence vague. The amendment is likely to be misused in selectively censoring any opinions that portray the government in a bad light.

The said amendment violates right to pension

The right to pension has been recognised as a fundamental right to have a dignified livelihood under article 21of the constitution. It has also been recognised as a statutory right under Article 300A of the constitution as a right to property. Furthermore, ‘property’ has been defined under the Benami Transaction (Prohibition) Act 1988 as “any sort of property, whether movable or immovable, tangible or intangible and includes any right or interest in such property” This definition of the property supports the inclusion of pension under ‘right to property as recognised by the honourable SC.

The original Central Civil Services Pension Rules, 1972, under section 8 restricted the payment of pension only on the grounds of ‘serious crime’ or ‘grave misconduct’. However, the current amendment makes provision for restriction of the payment of the pension on the grounds of publication without clearance from the head of the organisation by the retired government servants related to any material relating to the domain of the organisation and hence, violates the right to the pension of the retired government employees of the intelligence and security organisations.

In DS Nakara v Union of India, the honourable Supreme court had stated that “pension is not a bounty, charity or a gratuitous payment, but an indefeasible right of every employee. It not an ex-gratia payment that depends on the sweet will of the employer, but a staggered form of payment for the past service rendered.” In Deokinandan Prasad v. the State of Bihar, the supreme court held that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim a pension. It was further held that the grant of pension does not depend upon anyone’s discretion. These judgements strengthen the recognition of the right to pension and it can be concluded that the said amendment violates the right to pension.

The said amendment violates the doctrine of unconditional conditions

The ‘doctrine of unconditional conditions’ states that the government cannot condition the availability of a government benefit on an individual agreement to forego his fundamental right. This doctrine was developed in the US courts and was applied in cases such as Elrod v. Burns This doctrine was subsequently also accepted by the Supreme court of India in the cases ‘Kerela education bill v. unknown’ and ‘Ahemdabad St Xaviers v. the state of Gujrat.’

Through the recent amendment, the government has conditioned the payment of pension, which is a government benefit that the government servant is entitled to receive, on the forgiving of the right to freedom of speech and expression. Hence, the impugned amendment violates the doctrine of unconditional conditions.

Conclusion

Any democratic system is based on the balance between power and justice, and when the people in power make attempts to give themselves arbitrary authorities, it impugns this balance and affects the democratic structure of the system. Lord Acton has rightly stated that “Power corrupts, and absolute power corrupts absolutely”. Legislative actions like these are an attempt to silence the dissent against the ruling class and it creates a chilling effect by censoring any potential opinion that might try to highlight the inadequacies in the functioning of the government.

For the above-mentioned reasons, the court must recognize this amendment as unreasonable and arbitrary and should declare it unconstitutional.

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South Korean adequacy decision

By

Shoronya Banerjee

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December 25, 2021

0

This article is written by Devagni Vatsaraj, pursuing a Diploma in International Data Protection and Privacy Laws from Lawsikho. The article has been edited by Zigishu Singh (Associate, LawSikho), Ruchika Mohapatra (Associate, LawSikho), and Indrasish Majumder (Intern at LawSikho).

Table of Contents

Introduction

The legal system in Korea, governing the privacy of the data subjects and protection of their data originates from the Korean Constitution, which was enacted on 17th July 1948. The Korean Constitution did not specifically declare these as constitutional rights, however, they were recognized as a basic right via various provisions of the charter. Some of these rights are provided in Article 10, Articles 12-22, etc. The Constitution refers to these rights as the “rights of Korean citizens”, however, the constitutional courts have observed that an individuals’ dignity, significance as a human being, and the right to seek happiness are rights of all human beings – they apply equally to foreign nationals as they do to the Korean citizens. Further, to provide a binding essence to the rights of privacy, Korea has enacted a series of laws that provide safeguards to the data of all individuals, citizens and foreigners. Some of the relevant laws are the Personal Information Protection Act (PIPA), The Act on the Use and Protection of Credit Information, The Communications Privacy Protection Act, etc.

PIPA, Korea

PIPA provides the legal framework for the protection of data of the data subjects in South Korea, also known as the Republic of Korea. The applicability of the law is enlarged by an Enforcement Decree known as the PIPA Enforcement Decree; which is binding and enforceable. Regulatory Notifications (“Notifications“) adopted by the Personal Information Protection Commission (PIPC) provide the rules of interpretation and application of PIPA. To understand what is included in PIPA, what are the rights of the data subjects, what are the governing principles, etc., please find its summary handout below:

These regulatory notifications were recently amended to further the interpretation, application, and enforcement of certain provisions of PIPA. This amendment was carried out based on Articles 5 and 14 of PIPA. These amended notifications provide clarifications that apply to the processing of personal data as well as additional safeguards for transferring personal data from other countries to Korea. These additional safeguards are analysed as a part of the assessment of the relevant PIPA articles.

What are adequacy decisions?

These decisions are usually taken by the European Union (EU) and they basically determine whether a non-EU country has adequate levels for protection to safeguard the personal data transferred by the EU to this other country, in this instance, the Republic of Korea. The European Commission (EC) derives from Article 45 of Regulation (EU) 2016/679, the power to determine whether a country outside of the EU offers an adequate level of data protection. The acceptance of such adequacy decision involves consideration of the proposal offered by the European Commission, the opinion of the European Data Protection Board (EDPB), authorization from representatives of EU countries, and the acceptance of such a decision by the European Commission.

When such a decision is accepted by the EU, personal data from the EU countries and that of its member states can flow freely without any additional safeguard to third countries, in this instance, the Republic of Korea. Andorra, Argentina, Canada, Faroe Islands, Guernsey, Israel, Isle of Man, Japan, Jersey, New Zealand, Switzerland, United Kingdom, and Uruguay have so far been recognized by the European Commission as providing adequate decisions.

On 16^th June 2021, the European Commission launched the procedure for the adoption of an adequacy decision for transfers of personal data to South Korea under the General Data Protection Regulation (GDPR).

Views and opinions on the process towards adoption of adequacy decision for South Korea

On adoption of the adequacy decision, personal data from the EU countries and that of its member states can flow freely to South Korea’s commercial operators as well as public authorities. The adequacy decision would synchronize the trade agreement EU-Republic of Korea Free Trade Agreement (FTA) and will boost mutual aid between the two nations.

Vera Jourova, Vice-President for Values and Transparency, said: “This agreement with the Republic of Korea will improve the protection of personal data for our citizens and support business in dynamic trade relations. It is also a sign of an increasing convergence of data protection legislation around the world. In the digitalised economy, free and safe data flows are not a luxury, but a necessity.” While the Commission for Justice, Didier Reynders said, “Two years ago, we created the world’s largest area of free and safe data flows with Japan. Soon the Republic of Korea should follow – another important partner in East Asia and another big achievement. The Republic of Korea has a strong track record in the area of data protection. The fact that the EU and the Republic of Korea have similar privacy standards is beneficial to both companies and citizens.”

While reviewing South Korea’s data protection law, EDPB found the central aspects of the law are, overall, equivalent to that of the European data protection framework. However, the EDPB pointed out that some parts of the draft require clarification and for this purpose it has called upon the EC to clarify certain aspects of South Korea’s data protection law. Some of these aspects are (a) the binding nature, enforceability, and validity of Notification; (b) restrictions regarding withdrawal of consent; (c) the concept of pseudonymisation and exemptions thereof; and (d) information provided to individuals in case of onward transfers. Further, in respect of the processing of personal data by public authorities for law enforcement and national security purposes, the EDPB pointed out that the draft decision should contain specific conditions for onward transfers of personal data transferred from the European member states. To highlight these observations in detail:

The EDPB observed that the PIPA, Korea exempts pseudonymization of data from a number of provisions. On the contrary, the GDPR allows such exemptions only in limited circumstances. The EDPB has recommended that the impact of pseudonymization be assessed and check whether and how these wide exemptions affect the fundamental rights and freedoms of the data subjects whose personal data is being transferred to the Republic of Korea under the adequacy decision.
The EDPB pointed out that the Korean law allows onward transfers from a controller based in Korea to a third country based recipient, with the data subject’s consent. The EDPB has asked the EC to ensure that data subjects are informed about the country to which their data will be transferred before consent is collected.
In light of the recent case of the European Court of Human Rights, the EDPB has expressed its concerns about the disclosure of personal data by telecommunication providers to national security authorities. The EDPB recommended that the EC must clarify that the interception of telecommunication data in bulk is not permitted, as this may impact data subjects’ rights.
The EDPB has invited the EC to consider the impact of the provision pertaining to the limited withdrawal of consent, as provided under the Korean law.
With regards to the complaint redressal mechanism, the EDPB has asked the EC to clarify the requirements to file a complaint with the data protection authority and to ensure that the data subjects are provided with effective remedies and can implement their right to redress.

Conclusion and the way forward

It is pertinent to note here that South Korea has, on 28^th September 2021, introduced a bill amending the PIPA, which includes provisions on automated decision making and on transfers, amongst others. This amendment may help the EC to tend to some of the concerns expressed by the EDPB. It was only after scrutinizing Korea’s data protection legislation, the EDPB has highlighted that the existing safeguards apply in the context of government interference of the communications between and amongst the data subjects, as well as the restrictions that limit such interference taking place from the outside of South Korea.

The next steps involve that the EC launch the procedure for assessment and accordingly, of the adoption of its adequacy finding. Such adoption will require satisfaction and a go-ahead from the EDPB. The EDPB however, stresses that the EC must continue to monitor the legislative developments in South Korea after the adoption of the adequacy decision, and reassess its decision as necessary.

References

Relevant laws such as the PIPA, The Act on the Use and Protection of Credit Information, The Communications Privacy Protection Act – https://www.privacy.go.kr/eng/laws_policies_list.do
PIPA Enforcement Decree – https://www.privacy.go.kr/eng/laws_view.do?nttId=8186&imgNo=3
Personal Information Protection Commission – http://www.pipc.go.kr/cmt/english/organization/org.do
Whiteboard on PIPA, Korea – https://teachprivacy.com/wp-content/uploads/2021/01/TeachPrivacy-Whiteboard-South-Korea-04-handout.pdf
Regulation (EU) 2016/679 – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv% 3AOJ.L.2016.119.01.0001.01.ENG&toc=OJ%3AL%3A2016%3A119%3ATOC
Opinion of the EDPB – https://edpb.europa.eu/news/news/2021/edpb-adopts-opinion-draft-south-korea-adequacy-decision_en
Adoption of an adequacy decision for transfers of personal data to South Korea – https://ec.europa.eu/commission/presscorner/detail/en/ip_21_2964
EU-Republic of Korea Free Trade Agreement – https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=OJ%3AL%3A2011%3A127%3ATOC
Draft decision on adequate protection of personal data in Korea – https://ec.europa.eu/info/sites/default/files/draft_decision_on_the_adequate_level_of_protection_of_the_republic_of_korea_with_annexes.pdf
Data Protection: European Commission launches the process towards adoption of the adequacy decision for the Republic of Korea – https://ec.europa.eu/commission/presscorner/detail/en/ip_21_2964

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What is DigiLocker and how to enable it

By

Sneha Mahawar

-

December 25, 2021

0

Digital-Locker — Image Source: https://rb.gy/k1j24k

This article is written by Nikita Singh, a student of BBA LLB from Symbiosis Law School, Noida. In this article, the author has discussed different aspects of Digilocker and how to enable it.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

In modern times, everything has become digital be it meetings, classes, movies, events, etc. The impact of the digital trend can be seen around us easily especially in the COVID times wherein most of the works have taken online mode. Recently, the Ministry of Electronics & IT (MeitY) under the Digital India Cooperation (DIC) has launched a new platform called Digital locker or DigiLocker under the Digital India Initiative. It is a platform where it stores all the documents of an individual like PAN card, Aadhar card, Birth Certificate, Marksheets, COVID Vaccination certificate, etc. This initiative was launched to promote the digital sharing of authentic documents. It will prove helpful for the people as if anyone loses his or her documents that were in physical form or got damaged, then it will be available and secure in their DigiLocker account. The tagline of DigiLocker says ‘Your documents anytime, anywhere’. The DigiLocker documents are considered authentic documents and are accepted by all the government authorities. DigiLocker’s issued documents are considered original documents according to the Information Technology Act, 2000. DigiLocker currently has 90.03 million registered users and 4.63 billion issued documents currently which shows that people are accepting DigiLocker for keeping their documents and it has contributed a lot to Digital India Initiative.

What is DigiLocker and how to enable it

Digital locker commonly known as DigiLocker is a digital document wallet that stores an individual’s documents and keeps them safe. Individuals can access their documents which are stored in DigiLocker at any time. This application provides a cloud storage service to the documents issued by the Government of India. DigiLocker uses Aadhar to verify the identity of individuals and allows access to the documents. DigiLocker ensures registration, then verification, and then fetching of documents is possible. DigiLocker allows sharing of the data of an individual after his explicit consent and it is regulated by the government. So, it is fully secure.

For enabling DigiLocker, the individual has to create an account with DigiLocker by entering the Aadhar number and mobile number. It uses Aadhar as the verification, so make sure that the mobile number and other details are as per the Aadhar details. DigiLocker has two-step authentication. It first sends an OTP to the registered mobile number and then asks the person for a six-digit PIN that works as a password for the DigiLocker account. By creating an account, all your documents will be easily accessible, shareable, etc.

Key features of DigiLocker

DigiLocker is designed in such a way that is simple and user-friendly. It is divided into different sections. The different sections are- dashboard or home page, issued documents, uploaded documents, shared documents, activity, and issuers. The specific feature and function of each section is mentioned below:-

Dashboard/Home page- This section shows up when the individual signs in to the platform. It shows the other sections so that the user can navigate the sections according to his needs. It also shows the issued documents from different authorities which are linked with DigiLocker along with a URL to access it.
Issued documents- Under this section, an individual can find his documents that have been issued by government authorities integrated with DigiLocker. This section provides a URL for accessing the issued documents.
Uploaded documents- This section provides an overview of the documents which are uploaded by the user. This is a section of documents that the user wants to keep secure by uploading them on the platform. These documents are not already there on his DigiLocker account but the user himself uploads them from his device.
Shared documents- This section keeps a track of the documents which the user has shared with others via email. The documents are shared through URLs.
Activity- This section shows the activity of the user in his DigiLocker account. It shows all the activities happening in the DigiLocker account like sharing, downloading, etc. of documents.
Issuers- This section provides the list of authorities that issue documents. These authorities are linked with DigiLocker. This section also provides a URL for accessing the issues documents by the issuer.

Creating a DigiLocker account on your mobile phone

A DigiLocker account is very easy and quick to make. Steps that an individual has to follow for creating a DigiLocker account on his mobile phone:-

Visit the official website of DigiLocker, which is digilocker.gov.in, or download the DigiLocker app on an android phone through the Play Store and on the iPhone through the App Store.
Click on the sign-up option. It will ask you to enter your full name (according to your Aadhar card), date of birth, gender, mobile number, email ID, and Aadhar number. It will also ask you to set up a six-digit PIN or password for your DigiLocker account. After filling in all the requirements, click on the submit button.
An OTP will be sent to your registered mobile number. After filing the OTP, click on the submit button.
After that, you will be asked to enter your username and your account will be created.

After the creation of the account, the user will have access to his documents, he can upload new documents, check his issued documents, and many more. The documents can be uploaded in the form of pdf, jpeg, png. The maximum size of documents can be 10MB. DigiLocker is a very easy platform to use and keep authentic documents safe.

Uploading documents to DigiLocker

People generally face some difficulties in uploading documents to DigiLocker. The steps to be followed for uploading documents to the DigiLocker account is mentioned below:-

Sign in to your DigiLocker account and it will direct you to your DigiLocker account’s homepage.
Click on the “Uploaded Documents’ on the left side of the homepage.
Click on the ‘Upload’ option on the left side of the section.
Select files from the device and click on the ‘upload’ button.

DigiLocker also has a feature of managing the uploaded documents. The user can arrange the documents by selecting their document types tabs like electricity bill, identification certificate, dependency certificate, etc. It is helpful for the user to find the documents easily. The user can also upload multiple documents at the same time.

Is DigiLocker safe

Every citizen or non-citizen of India has the Right to privacy provided under Article 21 of the Constitution. Article 21 guarantees the right to use the internet and the right to privacy of data on the internet. The right to privacy has nowadays become difficult to maintain because of the digital world. The data of individuals get disclosed to the apps or websites which they are using. The app or website has an obligation not to disclose an individual’s data but the data is not kept private by most of the apps or websites. They sell the data to other apps or websites for profit. By this, malpractice, the individual is unsafe in this digital world. Moreover, hackers are developing their systems and technologies to attack the privacy of individuals and more specifically the ‘Data Privacy’.

DigiLocker is a government-initiated platform, so it is trusted by a majority of the people. It claims that it has protected the security of its users. It uses 256 Bit SSL encryption, sign up through the OTP that is mobile number verification, ISO 27001 certified data centre, etc. But it was questioned and DigiLocker admitted that there was a flaw in the data privacy of individuals and as a consequence, 3.68 crores of accounts of DigiLocker were put in danger. DigiLocker didn’t sell or give data to any other organization.

The government of India has the data of individuals. It can interfere with the data only for the integrity and security of India.

Advantages of DigiLocker

DigiLocker has proved beneficial for the citizens and as well as governments. It has several advantages mentioned below:-

Helps in contributing to the ‘Digital India’ mission- It helps in storing and securing the documents digitally. It reduces paperwork and physical sharing of documents with agencies. All the documents can be stored in the issued documents folder and under uploaded documents virtually.
Saves time and reduces overload- It helps in saving time and reducing the workload from administrative authorities because the documents can be verified or checked directly from the DigiLocker account.
Easy to access anytime, anywhere- It helps in accessing the documents at any time and anywhere which is a relief to the individual as he or she didn’t carry physical documents.
Safety of documents- It provides the best safety to the individual’s documents as it is regulated by the government. It provides all documents with authenticity and verification.
Fast delivery of services- If the documents of citizens have been reached on time, then the government has time and energy to take effective measures in the field of health, education, employment, etc. In the case of the physical collection of documents, it takes most of the finances, time, and energy of the government authorities. As a result of all these factors, the services of the government become less effective.
Reduces Corruption- Through this DigiLocker, the role of the corrupt middlemen has been eliminated. Documents can now be shared, accessed, etc without the middlemen.

Disadvantages of DigiLocker

DigiLocker has a few disadvantages that are mentioned below:-

Only Aadhar cardholders can use the DigiLocker app- For making an account on DigiLocker, it is necessary to provide the Aadhar number of an individual. If a person doesn’t have an Aadhar card, he cannot use the services of the DigiLocker.
NRIs cannot use the DigiLocker app- For creating an account with DigiLocker, the mobile number must be registered in India.
Security concerns- Recently, the DigiLocker team confirmed that there was a vulnerability with the account data. DigiLocker has admitted that nearly 3.68 crores were at risk and anyone having the username of the account can access the account’s documents. The hackers don’t even require a PIN or password to access the account.
Registration restrictions- It is compulsory for the people who want to use the services of DigiLocker that they have to enter the mobile number or email ID linked with an Aadhar card only.

Conclusion

DigiLocker has proved to be beneficial for the people of India. It has resolved the big problem of lack of documents in physical mode, documents lost, unsure about the authenticity of the documents, carrying of documents, etc. Government should spread more awareness about this platform so that a large number of people can get its benefits and have their documents secured in their DigiLocker account. The government also uses various data of citizens in its service- providing schemes and analysis, so there is a need for one authentic platform which has nearly all important documents of a citizen. DigiLocker helps develop India and makes administrative work easier for the government as well as for the citizens.

References

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Understanding efficiency and application of C2A e-commerce model

By

Abanti Bose

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December 25, 2021

0

getty_521459708_351273 — Image Source: https://rb.gy/ncp42w

This article is written by Aboli Nimbalkar, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho) and Indrasish Majumder (Intern at LawSikho).

This article has been published by Abanti Bose.

Table of Contents

Introduction

The pandemic has increased the dependency of the world on the online domain. Right from schools to parliamentary sittings, everything has gone virtual. It is no surprise then that the online world has created all sorts of possibilities to harness and E-commerce is one such area. E-commerce is the buying and selling of goods, services, transfer of data or funds over an electronic network. There are several platforms like websites, portals and applications which provide an interface for the users to interact with the service providers.

When we think of E-commerce, the very first thing that comes to mind are the well-known names like Amazon, Myntra and Flipkart. But these platforms are only a subset of the larger sphere of E-commerce business models, of which there are at least 6. These are as follows:

In this article, we will be focusing on the Consumer-to-Administration type of model as it is playing out in India, its role in Indian e-governance initiatives, the potential uses of C2A facilities, the repercussions it might have on data protection and the privacy issues, and the provisions of the PDP Bill, 2019 regarding the same.

What is Consumer to Administration (C2A) model?

C2A is defined as the e-commerce model where consumers utilize electronic means to reach out to the administration (local government/authorities). Every activity where a consumer avails of a public service or interacts with the government/authorities through a website, an online portal or a mobile app can be considered as the C2A model.

Following are the examples of Government of India initiatives for public service delivery i.e. C2A structures:

Government Services: application for PAN card, Aadhar Card, Voter-ID, booking railway tickets through IRCTC.
Health: COWIN portal for vaccination, National Digital Health Mission.
Tax: filing tax returns online, paying GST.
Bills: payment of electricity bill, payment of water bill.
Education: education provided by public institutions, central universities, NPTEL etc.

An amalgamation of technology and public services

The global scenario is fast changing with the introduction of new technologies every single day. It has become prudent on the part of organisations and institutions to keep up their pace and come up with new ways to connect to their audience. Technology has changed the scope of Indian e-governance as well. The Indian Government launched the National e-Governance Plan (NeGP) in 2006. The Digital India initiative and demonetisation drive gave further impetus to increase the scope of online public service delivery.

As the COVID-19 pandemic began and it became too risky for citizens to physically visit government offices, schools, colleges and expose themselves to the virus, it gave a boost to the use of contactless digital technology for service delivery across India. The World Economic Forum has called it India’s “Digital Reset”. Online education and work-from-home provisions were a part and parcel of it. The announcement of the lockdown by the authorities nudged the country towards adapting digital methods of communications. The Aarogya Setu app was used to determine and track the spread of infection using real-time data monitoring. COWIN-portal was started for registrations and management of vaccine delivery. During the 2nd wave of the pandemic in India, some states managed the supply of supplemental oxygen and hospital beds using apps and portals which were updated in real-time.

The use of technology and service delivery was seen at local levels as well. For example, Pimpri-Chinchwad used Integrated Command and Control Centres (ICCC) to geo-locate COVID cases, determine open pharmacies and control hospital capacity using monitors and drones. The broader picture shows that the government response to the pandemic was heavily dependent on the internet and digital means. The reliance on online service delivery has also helped bypass the legacy bureaucracy, complacency and red-tapism that is usually seen in government offices. Public confidence in using digital service delivery mechanisms has certainly been on a rising trend since the pandemic.

Potential applications of C2A model : innovations in public service delivery

It is pertinent to understand what the general public’s aspirations are to cater to its demands. Digital mechanisms provide useful tools to the government to analyse it. Data collected using C2A systems can be used to understand the lacunae in the service delivery by analysing the citizen-generated data using new technologies like big-data analytics. This can be then used to address the grievances and improvise the service delivery. Such exercise can create a constant feedback loop between the public and the government.

It can also be an effective means of authentic information dissemination directly to the consumer on their hand-held devices, especially when it comes to Public Health Advisories and last-mile outreach for government initiatives. Tele-medicine services become the need of the hour while tackling contagious diseases and large-scale lockdowns. Local and state governments in coastal areas use cyclone warning SMS alerts to inform the fishermen and residents in the area to evacuate in case of an incoming storm. Similarly, IFLOWS-Mumbai was developed as a flood-warning system using GIS technology to create alerts for civic bodies and residents.

Perhaps the best use of C2A can be the decentralisation of governance and participation of every last person that the authorities are supposed to serve. City-planning and traffic management might be promising areas where data could be used to improvise service delivery. The untapped potential of the C2A mechanism can be harnessed using emerging technologies like multi-source data aggregation, cloud services, big-data analytics, internet-of-things and artificial intelligence, which will be able to help in streamlining the public service delivery mechanisms.

Efficiency of C2A : what can be done to improve?

While it is true that the online medium was relied on heavily by the government to respond to the COVID-19 pandemic, it also highlighted the existing digital divide in the country. Many children from rural India could not attend online school due to the non-availability of an internet connection, or a smartphone or a laptop.

Telecom Regulatory Authority of India’s 2020 report depicts that only half the country’s population has access to decent internet connection and the UN E-Government Development Index (EGDI), 2020 ranked India 100 out of 193 countries which shows that there is a long way to go to truly cater to the unserved public. This mandates proper infrastructure provision on part of the government, starting from the continuous electricity supply, seamless internet connectivity through last-mile broadband connections and enhancing digital literacy. There is also a need to remove language barriers that hamper the non-English speaking population’s access to digital services.

Data protection : Personal Data Protection Bill, 2019

As citizens have started engaging with C2A services on a massive scale, the question of data security and privacy has come up time and again. There are looming risks of identity-theft, phishing scams, mass surveillance, data-mining and targeted advertisements while navigating the online world. To protect the personal data of Indian users on the internet, the Personal Data Protection Bill, 2019 was introduced in the Lok Sabha. The Bill governs the processing of personal data by the government as well as domestic and foreign companies. It speaks of the rights of individuals (called ‘data principals’) when it comes to their consent to management of their personal data. It also mandates the setting up of a Data Protection Authority to ensure compliance of all stakeholders with the provisions of the Bill. It also speaks of offences and punishments for violation of its provisions.

On the other hand, the Bill also creates concerns as it provides exemptions to government agencies from the provisions of the Bill itself on the grounds of security of the state, public order, sovereignty and integrity of India, incitement to cognisable offence, etc. This raises questions on the extent of the outreach of government agencies, mass-surveillance activities by the government itself and the potential threat to the democratic foundations of India if such exemptions are used to curb dissent in the name of sedition.

Conclusion

The COVID-19 pandemic has changed the course of history. It has made the boundaries of the virtual world and physical world blurry. As the online arena brings many opportunities to engage with the environment around us, it also creates increased risks for its users when it comes to data generation and handling, digital footprint created by individuals and also the issue of the right to be forgotten. It will be interesting to see how the Personal Data Protection Bill, 2019 is shaped to address the concerns posed by emerging areas of C2A interaction.

References

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

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RERA: a threat to builders and developers or not

By

Rachit Garg

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December 24, 2021

0

Title verification report — Image Source - https://rb.gy/pshawz

This article has been written by Shalini Singh, pursuing a Certificate course in Real Estate Laws from LawSikho.

Table of Contents

Introduction

The Real Estate (Regulation and development) Act (“The Act”) has definitely been a boon for the customers/buyers/prospective buyers. RERA has stringent regulations which builders were mandated to follow. Mandatory registration of all real estate projects with RERA was one such requirement. RERA also sought to put an end to builders changing building plans after taking the booking amount from buyers with the provision that changes in plans must have the consent of the buyer. The practice of levying extra costs and hidden charges was also curbed by RERA. There has always been a gap between the developer and the buyer. Whenever the real estate sector has seen a recession, the major reason behind this has been trust. Buyers have always been in the fear that the developer will not give possession on time or he will not provide the required documents or he will not deliver the promised quality of the property.

The RERA is deemed as the Court of Original Jurisdiction in all matters that are exclusively or substantially the subject of the Act. It has been modelled to function only as a monitor ensuring timely completion of projects. RERA maintains comprehensive records for every project across the entire chain, from the conceptualization of the project to its completion.

The key change brought about by RERA was imposition of monetary penalty on builders in case of project delays. The Act also clearly defined “carpet area” to ensure there was no confusion in calculating the area that the builder can show and charge for.

Mentioned below are the restrictions which are imposed on promoters and agents:

There is a prohibition on creation of any charge or encumbrance on any apartment/property etc. after the execution of an agreement for the same.
There is a prohibition on altering any plans, structural designs and specifications of the apartment, building or land without prior permission of the 2/3^rd of the allottees.
Real Estate agents are required to facilitate access of all the information related to the project to the respective buyers at the time of booking.
Real Estate agents are to refrain themselves from making false statements, misleading representation and indulging in unfair trade practices. Prohibition of real estate agents from facilitating any sale or purchase of plots/apartments in projects without obtaining registration with the RERA.
70% of the amount collected for the projects must be used only for construction of that project and must be kept in a separate bank account. Also, the deposit of 70% is for both construction cost and land cost, and if the land cost has already been incurred, the promoter can withdraw to the extent. This provision has been provided to ensure that project funds are not diverted and projects are completed on time.
The promoter shall, upon receiving his login Id and password from the authority, upload the details of the project online.
Promoter shall be responsible for making available to the buyer, site and layout plans of the project, the schedule of completion of the project and other documents enumerated in the law.
The project should be developed and completed by the promoter in line with all the approved plans and structural designs and specifications by the competent authorities. A promoter shall not accept a sum of not more than 10 % of the cost of the apartment, plot, or building, as the case may be as an advance payment or an application fee, from a person without first entering into a written agreement for sale with such person.
If a buyer incurs loss due to false advertising and withdraws from the project, the promoter must return the amount collected, with interest.

Before buying a property, a prospective buyer must do a thorough research on the building. As a buyer or a prospective buyer there are innumerable things one must keep in mind and do a thorough check and research in order to make a smart choice. Other than that, one must also be aware of the laws in favor of the builder and also the one in favor of prospective buyers so that they understand all their rights and duties.

Effects of aforementioned restrictions on the promoters and agents

Real estate companies, perceived to be a non-transparent lot, would have to submit a slew of details to a proposed regulator. Violations are likely to attract stringent penalties, which are scaring company owners and even prompting directors on their boards to quit.

From small property dealers to board directors of realty firms — all can face punishments under the provisions of RERA. Players in the sector feel threats are manifold. Smaller builders said they fear some clauses in the Act threaten to wipe out their very existence. There are also fears of cost escalation as clearances could take longer than usual. The company has been taken to court by buyers for alleged non-delivery of flats. Working on multiple projects would also be a challenge as the proposed regulator would seek details of previous projects before sanctioning new ones, according to the Act. With the number of non-delivered apartments piling up, companies would need to clear the backlog before launching new projects. Developers were also worried about details they would have to submit to the regulator.

Apart from the details of the promoters of the companies, they would have to provide details of current and previous projects, and their status, with reasons if they were pending. Details of pending legal cases would also have to be shared with the authority. Builders fear all this would escalate costs.One of the biggest hurdles will be that builders have to put 70 percent of sales receipts from customers in an escrow account, in the backdrop of many developers diverting funds as they are unable to complete projects.

However, what is getting them most jittery are the strict norms that would make surviving difficult. Builders can sell only the carpet area, but stamp duty has to be paid on saleable areas. Smaller players, who work with 500 sqm or a little more space, would have a hard time clearing all the clauses of the Act, experts said. They believe many might have to shut shop. Property dealers or brokers, who in most cases just show properties, have to be cautious, too. Brokers can only market projects for which they are registered and will have to refrain from over-promising on behalf of the builder, according to the rulebook. Online realty players might also be brought under the ambit of RERA, experts said.

There was, however, a silver lining on the horizon. With stringent rules, RERA had brought the focus back on deliveries. Developers were now focusing only on completing projects and selling units. Also, all the projects without completion certificate on the date the legislation became active in a state would have to register with RERA. Hence, developers were in a hurry to complete delayed projects, trying to avoid being brought under the ambit of the Act.

Before buying a property, a prospective buyer must do a thorough research on the building. As a buyer or a prospective buyer there are innumerable things one must keep in mind and do a thorough check and research in order to make a smart choice. Other than that, one must also be aware of the laws in favor of the builder and also the one in favor of prospective buyers so that they understand all their rights and duties.

Pointers to be kept in mind by the buyer

The buyer must thoroughly go through the copy of the agreement. It is important to verify all the details provided to the original document of the property. It is important to note that the title of the seller should not only be clear but also marketable. The buyer should thoroughly examine the title report of the property (if available).
The buyer must cross check whether the builder has obtained necessary nonagricultural permissions from the collector for the desired land.
The buyer must also check for the copy of clearance under the Urban Land Ceiling Act.
The buyer must check for the building plans that are sanctioned by the competent authority.
The buyer should also check for CC granted by Corporation/Nagar Palika.
The buyer should also check for all the building bye-laws and also verify any pertaining issues with the setbacks etc.
He must confirm with the seller the transfer fees, stamp duty and registration charges to be paid on purchase of the property as well as outgoings to be paid for the property.
The sale agreement must be scrutinized in detail for municipal corporation approved plan of the flat, carpet area with area of the balconies shown separately, price of the property including the proportionate price of common areas and facilities shown separately and intervals at which installments may be paid.
The buyer should verify that proper stamp duty has been paid on the property.
It is the onus of the buyers to physically check the place before signing the purchase agreement.
It is important to keep in mind that a buyer can only claim damages, if what was shown to the buyer is different or of low quality from what they were sold.
It is advisable to employ a consultant.
Please note that any dispute at a later stage can be taken to the real estate tribunal, but it will be a fair play out there. If the builder can prove that you have delayed payments or have not fulfilled his side of the commitment, the tribunal can punish the buyer as well.
Please note that it is of utmost importance to do a background check on the builder and the project details to see if all necessary permission is in place and if paperwork is in order.

Conclusion

These restrictions are for safeguarding the interest of promoters and the consumer as well. But the builders are resisting to change to the new management concepts being imposed by the RERA. However, without a tough housing regulator, it is difficult to differentiate a good builder from a bad one. RERA is bad news only for the unscrupulous ones. These regulations ensure that fly by night operators and land grabbers/ speculators are sieved out. Timely completion of projects also means that there would be a steady increase in supply of homes.

All these will eventually bring down home prices and increase demand. All these measures are good for the overall economy too as the housing sector has strong backward and forward linkages with other industries.

Even though the Act is inclined towards the buyer, it is balanced in most ways. For example- Apartment Buyers get monetary compensation for delay in projects: Now, under the Act both the consumer and developer will have to pay the same interest rate for any delay on their part. These guidelines mean timely completion of projects also means there would be a steady increase in supply of homes. Builders get away with delayed handing over of possession. But with RERA coming into force the accountability of the builders have increased a lot more. So, it is right to say that RERA is bad news only for the fraud and deceitful builders.

The scope of this Act should be modified as it can become more business friendly to the players in the real estate sector. RERA has brought more transparency to the transactions and has brought about greater accountability to the developer as they have to deliver projects on time and with the said quality and size of the unit.

References

Anant Mills Co. Limited v State of Gujarat and Others [1975] 2 SCC 17
Ahmedabad Municipal Corporation v GTL Infrastructure Limited and others etc – 2016-TIOL-230-SC-MISC
https://economictimes.indiatimes.com/
notification no.6/2019 by central government
Circular No. 101/20/2019-GST
the Central Government by Notification No. 4/2019 Central Tax
the Central Government by Notification No. 4/2019 Central Tax
Notification No. 3/2019- CTR dated 29.03.2019
Shri Aman Agrawal (M/s Bilaspur Infrastructure Pvt Ltd)[2020-VIL-58-AAR] www.cbic.gov.in
www.almtlegal.com/
https://mohua.gov.in/cms/real-estate-regulatory-authorities-of-states–uts-under rera.php?url=real-estate-regulatory-authorities-of-states–uts-under-rera

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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Meta university concept

By

Sneha Mahawar

-

December 24, 2021

0

This article is authored by Akash Krishnan, a student of ICFAI Law School, Hyderabad. It discusses in detail the meaning and scope of the meta university concept along with the details of the institutions that have already adopted this concept.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

On 15^th November 2011, the then Prime Minister of India, Dr. Manmohan Singh had announced the meta university plan. Under this plan, the Government was to set up meta universities wherein students will have the opportunity to choose and design their curriculum on their own and pursue the subjects of their interests. This step was taken so as to make higher education more liberal and accessible to all the students. To begin with, the Ministry of Human Resource Development had approached multiple universities for joining this scheme. However, their focus was directed towards bringing leading Delhi-based institutions under the ambit of this concept. One of the intentions behind the launch of this scheme was to allow students to attend classes or complete courses offered in different colleges without the need for specific student-exchange agreements between the universities.

A similar scheme was already in place and was being used by the Academy of Scientific and Innovative Research (AcSIR) that was run by the Council of Scientific and Industrial Research (CSIR). Herein, the academy was providing virtual university degrees. The Director-General of CSIR, Mr. Samir Brahmachari stated that every student has his/her own constraints, and thus, the students should be allowed to attend classes virtually as well. Read along to understand the meaning and scope of the meta university concept and its applicability in the modern-day education regime.

Meta university: meaning

The term ‘meta’ has been used as an acronym for the ‘most effective tactics available’. Calling something ‘meta’ means that it is an effective way to achieve the goal. The goal of every institution or university is to excel in the field of education and follow the best available practices to educate the students. Thus, in the context of the Meta University Concept, the term ‘meta’ means the most effective way that universities and institutions should follow, so as to educate students and provide them with the best possible learning resources.

The main purpose of meta university is to share learning resources with different universities by using the latest technologies available in order to enable the students to benefit from the learning resources available in different institutions. The participating institutions and universities share their learning resources to provide students with a more holistic learning experience. The term learning resources means giving students access to e-libraries, e-books, relevant reading materials, live and/or recorded lectures, videos, etc., irrespective of the institution that has worked towards the development of the content. The meta university concept is a model of distributive learning that allows education to be accessible to a wider range of students by leveraging information technology resources to make available content and pedagogical avenues, i.e., using modern ways of teaching like smart classes, online learning, etc. to educate students.

Benefits of the concept of meta university

It will allow all the students to increase their flexibility in designing, curriculum, and pursuing subjects of their choice in an effort to make higher education more liberal and accessible to the masses.
It helps students to create new minds conducive to innovation.
It will increase interaction between students and teachers. Teachers can share teaching material, scholarly publications, research.
The internet will provide the communication infrastructure, while a network of universities will offer courses in various disciplines, facilitating more collaborative and multidisciplinary learning.

Now that we have understood the meaning of the concept of the meta university concept, let us try and understand which body is responsible for maintaining and providing such a reliable and secure network for information sharing and access.

The National Knowledge Network

What is the NKN

National Knowledge Network (NKN) project was started with the aim of creating a secure and reliable network that is capable of connecting all universities, research institutions, libraries, laboratories, healthcare, and agricultural institutions on a pan-India basis. By establishing an interconnected network, the NKN has allowed the free flow of information across all fronts and it is easily accessible by all. With access to information at all times, there is a significant impact on the quality of research being generated in the country. Knowledge sharing has resulted in the creation of new ideas and has increased the contributions/criticisms towards the existing works as well. The end goal, herein, is to bring about a knowledge revolution so as to promote inclusive growth and help in the transformation of society.

Reasons for the establishment of NKN

One of the most important reasons that led to the creation of the NKN is the need for improving the accessibility of information across the country for education and research purposes. On a global level, research and developmental activities along with new innovative activities had become possible because of the collaboration made by multiple individuals. This is because these countries had already created an information access and sharing mechanism which was widely used, and had therefore boosted the research and invocation activities in these countries. If India had to compete with these countries globally, it was imperative that India adopts the mechanism of collaboration and co-creation.

In light of the same, the Principal Scientific Adviser to the Government of India and the National Knowledge Commission engaged in discussions with key stakeholders, i.e., experts, potential users, telecom service providers and educational and research institutions for establishing the mechanism of collaboration and co-creation and the NKN is the outcome of these discussions.

Role of NKN

Ensuring that knowledge and information are shared through a high-speed internet connection across all the connected universities/institutions in the country.
Ensure and promote collaborative research, development and innovation across all connected institutions/universities.
Ensure and facilitate the provision of distance education in different fields of specialisation like engineering, medicine, law etc.
Ensure and facilitate high-speed e-governance activities.
Ensure and facilitate collaborative research practices between different sectors. i.e., cross-sectoral research activities.

Vision

Create a borderless knowledge-sharing community for the benefit of mankind at large.
Provide access to information to all institutions through a high-speed internet connection.
By providing the best services, aid in India’s development in the area of information infrastructure, stimulate research and create next-generation applications and services.

Mission

To bring about a knowledge revolution so as to promote inclusive growth and help in the transformation of society.
Provide access to information to all institutions through a high-speed (gigabit) internet connection that is secure and reliable.
Help in the creation of highly trained professionals who are empowered by knowledge-sharing activities.
To act as a critical information infrastructure for India and its evolution as a knowledge society.

Technical features of NKN

NKN is an independent network and is not bound by internet protocols. It is capable of carrying multiprotocol traffic.
It offers hierarchical Quality of Service (QoS) for real-time traffic.
It ensures the provision of Service Level Agreements for the users.
NKN design supports IPv6 transport, IPv6 networking, and IPv6 MPLS VPN services along with the basic IPv4 services. It also supports enabled VPN for running multicast applications.
It provides multiple central services such as Multimedia Conferencing, e-access, digital library, and central data centre to all users.

The first meta university

The meta university concept was adopted for the first time between the University of Delhi and Jamia Millia Islamia University and had released a concept note for the same. The Course that was introduced was Master of Mathematics Education. The salient features of the concept note have been enumerated below:

Philosophy

The meta university concept is based on the philosophy that the ‘whole is greater than the sum of the parts.’ In other words, this philosophy is similar to the concept of synergy. When two firms come together for a merger, the ideology is that post-merger, the combined value and other features of the merged entity will be greater than the sum value of both the individual firms taken together. Similarly, under the meta university concept, it is believed that when two or more universities come together and pool in their resources, the students have access to a wide range of information that was not accessible to them prior to this union.

The University of Delhi and Jamia Millia Islamia University had come together with the intent of utilising, exploiting and creating synergy between the programs of the two Universities. The intent was to encourage collaborative learning and research activities and provide the students with a wide range of information itineraries that could be accessed by them from any place irrespective of the university they belong to. In simple words, they wanted to promote a borderless information access mechanism.

Expected outcomes of the collaboration

New programs will be provided on flexible (online) platforms.
To provide and promote a borderless information access mechanism for the students.
Facilitate collaborative and cooperative research activities so as to help academicians and students to perform in-depth research based on the wide range of information available.
Help students unleash new ideas and nurture them in developing the skills of innovative problem-solving.

Key ingredients

Introduce a paradigm shift in the knowledge access and sharing domain.
National Knowledge Network will help in the introduction of a secured and reliable internet network for information sharing.
Different institutions will pool in their resources for easy access to all.
Creating synergies so as to form new and innovative programs.
Using information technology for creating a virtual learning environment.
Combining, facilitating, and promoting collaborative and cross-disciplinary learning.
Introducing a mentor-mentee system for guiding students at every step of their education.

Objectives of the course

To adopt a modern/innovative approach for teaching mathematics from the school levels itself so as to include new methods like storytelling, projects, collaborative and participative learning practices etc for teaching mathematics.
To use information technology as a mechanism to facilitate the learning process, i.e., the introduction of e-learning mechanisms, smart classrooms, etc.
To facilitate an interdisciplinary approach for studying mathematics wherein other streams like humanities and social sciences are also involved.
To introduce group learning mechanisms by conducting group activities so as to facilitate collaborative learning.
To provide in-service training for school teachers.
To learn ways in which mathematics can be used in real-life situations so as to improve the practical problem solving and analytical skills of the students.

Methodology

The course will be a combination of the existing courses offered by the universities wherein the teachers will adopt and follow a transdisciplinary approach in order to promote fresh viewpoints of the students and promote interactive and participative learning practices. The universities will adopt information technology to educate students through smart classrooms/virtual classrooms and encourage project-based learning.

This course is provided in both online and offline mediums and students are allowed to pursue the course on a part-time basis. Mentors will be appointed for monitoring and guiding the students in their project-based assignments and their eligibility to act as a mentor depends on their expertise in the area of the projects being undertaken by the students. These mentors could be appointed from either of the two institutions or could be a private third party.

Other universities

In 2013, the Central Government had identified 4 cities, i.e., Chandigarh, Pune, Kolkata, and Hyderabad that had to be converted into a meta university hub. These cities were selected because they had been recognized as education hubs of India by the Government because of the presence of a large number of research and academic institutions in these cities.

In Chandigarh, 15 universities had come together under a common arrangement called ‘Chandigarh Region Innovation and Knowledge Cluster’. This arrangement was aimed at adopting the meta-university concept in the state. Four universities in Hyderabad and two universities in Pune had also adopted the meta university concept.

There leading management institutes in West Bengal, i.e., the Jadavpur University, the Calcutta University, and the Indian Institute of Management, Calcutta came together to become part of the meta university concept. Under this scheme, the students will have access to the faculty, library, and laboratories of all three institutions irrespective of which university the student belongs to.

Students were now part of a credit transfer system, wherein the credits of the activities or courses they undertook in any one of these universities could be transferred to their own institution as part of their course curriculum. This initiative was taken for facilitating cross-university education.

Conclusion

With the advent of new technologies, one could say that meta universities are the future. In the COVID times, the importance of virtual learning was understood and schools and colleges across the country were engaging with students on a virtual medium. The only thing left to do is to concentrate the information available online and provide access to all students irrespective of the university they belong to. One should always remember that dissemination of knowledge and providing everyone with an equal opportunity to access knowledge should be of extreme importance.

References

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

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

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All you need to know about reimbursement contracts

By

Abanti Bose

-

December 24, 2021

0

image-result-for-business-contracts (1) — Image Source: https://rb.gy/uj2mk1

This article is written by Jatin Goyal, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho) and Indrasish Majumder(Intern at LawSikho).

This article has been published by Abanti Bose.

Table of Contents

Introduction

The history of contracts is as old as that of human civilization and economic processes itself. At the time when the very concept of currency was absent, there prevailed the barter system which essentially was a simple mechanism of exchange of commodities amongst individuals; this format by itself was also an informal contract wherein a person, say, A agreed to provide commodity X to person B in exchange of person B providing him with commodity Y. But this system also had key structural issues and therefore the idea of currency as a uniform system of exchange was developed and this only meant development of contracts as we know them today.

Contracts in India were once governed by the Amending Act of 1781 which was introduced by the British and was based on the English common law. This statute governed the contractual affairs of both the Hindus and Mohammadans alike without paying much heed to the intrinsic nature of the personal laws of the two communities and consequently led to inconveniences. In order to address the inconveniences, it was duly replaced by today’s bread and butter of contract law, the Indian Contract Act, 1872. Indian Contract Act encompasses all forms of contracts and agreements and Reimbursement Contracts are no exception either. Reimbursement contracts refer to a system for payment of expenses incurred by the contractor up to the extent prescribed by the contract. This article will provide a thorough insight about reimbursement contracts, the various types of reimbursement contracts, their real word usage as well as the things to keep in mind while drafting one. By the end of this article, the reader shall possess a deep understanding of reimbursement contracts.

Difference between reimbursement contracts and similar contracts

Contracts, by their nature, are dynamic so as to suit the wide array of aspects that they envelop. They can generally be classified on the basis of mode of formation, performance, and validity but in specific cases, the criteria for classification differs; for instance in terms of use in the construction and government contracts the division of contracts is usually done under the headers of fixed-price contract, cost reimbursement or cost-plus contract and time and materials contract.

To elaborate on each, fixed-price contracts refer to those agreements where the individual signifies to pay the vendor a pre-negotiated fixed amount regardless of the actual expenses incurred. In such contracts, the risk is on the vendor to deliver the product or service under the budget and even make a profit. Such contracts are usually preferred in circumstances where the knowledge about the object of the contract and the associated risks are known and a set mechanism of the fulfilment of the object is present.

Time and Materials contracts are the ones where the vendor is paid on an hourly basis and for the materials purchased by him. In such contracts, the majority of risk is on the employer since the vendor is not supposed to make sure of the completion of the project, he is bound to provide the service regardless of the success or failure of the project, such contracts are usually preferred while hiring labour for a particular project whose risks and knowledge are known for instance a site remodelling job.

Cost-plus or Reimbursement contracts, on the other hand, are agreements where the vendor or the contractor is paid back the costs incurred by them throughout the course of the project and are also paid an additional amount which is their incentive for the job done. In such contracts, the burden of risk is on the employer since the costs are not pre-determined and this could result in the project costs exceeding the budget. These contracts are ideal when the availability of information about the object of the project and the associated perils is limited and when there cannot yet be devised a set standard for production and reproduction of the object in question. The aforementioned can be illustrated in the following format:

Contract Type	Definition	Burden of Risk	Ideal Instance of Use
Fixed Cost	To pay the vendor a pre-negotiated amount regardless of the actual expenses incurred.	On the Vendor.	When knowledge about the project and corresponding risks is available.
Time and Materials	To pay the vendor on an hourly basis and for the materials purchased by him.	On the Employer.	While hiring labourers for a project with known risks and specifics.
Cost Reimbursement	To pay the vendor for the costs incurred by him and an additional amount.	On the Employer.	When the knowledge about the project and related risks is scarce.

Types of reimbursement contracts

The reimbursement contracts are also very versatile in their scope. They entail furnishing the vendor with an additional amount on top of the costs involved in the project but, the means for deciding this additional sum are varied and are able to cater to the distinct functional relationships between employer and vendor, the following is the breakdown of these means under the reimbursement contract:

1. Cost Plus Fixed Fee (CPFF)– In this system, the vendor is paid for the expenses incurred and a sum that is pre-decided between the parties. This sum is the fixed reward to the vendor for completion of the job at hand. Since the reward to the vendor is already decided the project is generally undertaken smoothly.

2. Cost Plus Award Fee (CPAF)– Under this paradigm, the vendor is reimbursed for the payments made by him and is paid an amount which is to be finalized by an award board set up by the employer, and the same is undertaken after the completion of the project at hand. Since the reward to the vendor is to be decided after the job, it makes it imperative for the vendor to show utmost diligence and attention to detail throughout the course so that his quality work can fetch him a reasonable paycheck.

3. Cost Plus Incentive Fee (CPIF)– In this format, the vendor is paid back the money spent by him on the project and a denomination of currency which is to be decided later on by the employer but the upper ceiling for this amount is agreed upon at the time of entering in the contract. Having an idea of the maximum compensation and at the same time having ambiguity about the final amount tends to make the vendor undertake the work both smoothly and with utmost caution.

Things to keep in mind while drafting a reimbursement contract

It is evident from the preceding paragraphs that reimbursement contracts have plenty of merits but it would be incorrect to abstain from mentioning the demerits or downsides of these agreements. By the virtue of the fact that the vendor is reimbursed for the expenses he incurs for completion of the project, it becomes peremptory to be aware of how these costs are calculated. To understand this we need to first dissect the expenses under two broad heads – direct and indirect expenses; as the name suggests, direct expenses are those which are undertaken for the goods and services directly related to the project, for instance, raw materials, machinery, and labour while the indirect expenses include charges which are not directly related to the core objectives of the project, for instance, office and staffing expenses. This raises a problem of appropriation of indirect costs to a particular project, to surmount this, the indirect costs are calculated on a pro-rata basis and the employer is allowed to verify these charges by conducting site inspections and scrutiny of vendor’s accounts which are made available on an open book basis. But this becomes complex in a situation when the vendor is acting inefficiently and opens a possibility of overcharging and thus, exceeding the target cost.

It is of vital importance that clauses demarking the margin sharing arrangement, means used for calculation of various indirect and direct costs and the target price is expressly mentioned in the contract as they form the essence of such a contract.

Practical application of reimbursement contracts

In an instance when the actual cost is less than the target cost, the margin is shared between the employer and vendor, thus acting as another incentive for the vendor to finish the project while maximizing cost-saving and yet providing efficient services. This arrangement of cost-plus agreement makes it an ideal choice while contracting for procurement, research, and development projects, means of these contracts are generally used by government agencies when contracting for a weapon development assignment and the same is also undertaken by the universities and institutions while offering grants to research groups as it opens a window for achieving results within the most optimum costs. A good reimbursement contract must contain the following key clauses:

Title- Being the first part of the contract, the title should state the purpose of the said agreement, making it easier to refer to.
Definition- Drafting definitions clauses mitigates the chance of misunderstanding interpretations among the parties. The defined terms should be unambiguous and written in plain language.
Scope of Work- This section should include the statement of what is expected of the parties including any milestones, reports, deliverables, and end products that are expected to be provided by the performing party.
Payment Structure- This section is of critical importance especially in a Reimbursement contract, it provides for the payment plan, mode of payment, provisions for late payment and any other payment related arrangement as agreed upon between the parties.
Dispute Resolution Mechanism- Parties often tend to find themselves at crossroads, which makes agreeing to a dispute resolution mechanism beforehand a must. This section includes mode of resolution, payment of legal fees, the scope for appeal and applicable legalities.
Termination- It is not uncommon for parties to terminate the agreement prematurely, this calls for a section wherein the grounds for termination are stipulated, this section provides for means of termination, notice period, duties after termination, non-compete or similar provisions, liability on termination (if any).

Conclusion

It is absolutely clear that the cost reimbursement agreements are the result of the development of contract law over the centuries and are an effective tool to be used when entering certain kinds of legal relationships with set expectations as it demarcates an idea of reimbursement which is essentially absent in other forms of contracts. A reimbursement contract should be a result of diligent negotiation, while drafting such a contract one must provide a detailed description to make the agreement comprehensive and clarity amongst the parties about their duties under the contract is also a must. It is needless to point out how the legal system in general and pertaining to contracts has evolved and will continue to evolve in the times to come given how the legal spectrum is wide with numerous possibilities and with its evolution it will complement the structure of the society and further simplify the legal arrangements.

References

www.jstor.org/stable/1831331. Accessed 30 Mar. 2021
www.jstor.org/stable/4504494. Accessed 30 Mar. 2021
Veolia India Private Limited, New Delhi v Deputy Commissioner of Income Tax, New Delhi, Income Tax Appellate Tribunal, 27 April 2020
http://governmenttraininginc.com/pdfs/Cost-Reimbursable-TOC-Excerpt.pdf
www.jstor.org/stable/3132124. Accessed 31 Mar. 2021

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Government bond issued in an auction

By

Oishika Banerji

-

December 23, 2021

0

This article has been written by Aditi Agarwal pursuing the Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from LawSikho.

This article has been published by Oishika Banerji.

Table of Contents

Introduction

When the Indian financial markets underwent reforms in the 90s, a need was felt to change the way in which government spending was financed. Phasing out the earlier system of automatic deficit monetization that allowed the government to cover its excess expenditure by getting more money printed through the Central Bank, the government started using public borrowings as a means of funding its excess capital expenditure. This led to the development of a systematic procedure that allowed the government to auction its debt instruments such as government bonds to raise money. This article will shed light on the system in place for issuing government bonds through auction.

What are government bonds?

Government bonds are financial instruments that are issued by the Central or the State Government from time to time in order to finance the projects and activities undertaken by them. Also known as dated government securities (in case the bonds are issued by Central government) or State Development Loans (in case bonds are issued by the State Governments), they represent the long term debt-obligation of the government, the bond issuer, towards its lenders, also known as the bondholders or investors, from whom the funds are borrowed. A Government bond is issued for a defined period of time, not less than a year, for a variable or fixed rate of interest that is payable to the bondholder at regular intervals until the expiry of the term. Once the term expires or the bond matures, the investors are paid back the principal amount invested by them into the bonds. Regulated by the Reserve Bank of India (RBI), Government bonds are regarded as one of the safest forms of investments since they are backed by a Sovereign guarantee.

Rules and regulations

The legal framework for issuance and management of Government securities by RBI is provided under the Government Securities Act, 2006. As per Section 2(f) of the Act, “Government security means a security created and issued by the Government for the purpose of raising a public loan” which as per Section 3 of the Act includes government bonds.

Types of government bonds

Following are the various types of government bonds issued in an auction –

Bonds issued by Central Government

Fixed-Rate Bonds – These bonds assume a fixed rate of interest that is payable to the investor till the time of bond maturity. Most Government bonds fall under this category.
Floating Rate Bonds (FRB) – These bonds have a variable rate of interest. The change in interest takes place at pre-announced intervals, for example, every six months or every year. So if an FRB has a pre-announced interval of, for instance, one year, then it would mean that the interest rate on the bond would be reset every year till the maturity of the bond. Another category of FRBs assumes a base rate and a fixed spread. The fixed spread is decided by the way of auction and remains the same through the bond tenure.
Capital Indexed Bonds (CIB)- These bonds have their principal amount connected to the inflation index to protect the investors from the brunt of inflation.
Inflation-Indexed Bonds – Taking one step further from CIB, these bonds have both their principal as well as interest rates linked to the inflation index. This ensures that not only the principal amount but also the regular returns received by the investors are safeguarded against inflation.
Bonds with Call or Put Options – These bonds give the issuer the option to call or buy back the bonds or the investor the option to sell the bonds (put option) to the issuer before bond maturity. However, the option can only be exercised once the bonds have completed a tenure of 5 years from the date of issuance.
Sovereign Gold Bonds (SGB) – These bonds allow the investors to invest in gold without incurring the burden of holding gold in a physical form. The prices of these bonds are linked to the prices of gold in the market.
Zero-Coupon Bonds – These bonds do not offer any interest to the investors. Rather, the profits of the investors arise from the difference between the issuance price (discounted) and the redemption value (face value) of the bond.

Bonds issued by State Government

Bonds issued by the State Government are known as State Development Loans (SDLs). They are issued through standard auctions similar to the ones conducted by the Central Government for the issuance of government-dated securities. Interest on these bonds is paid out every six months and the repayment of the principal amount is done upon the bond maturity.

Government bond auction

One of the popular ways of issuing government bonds is by way of auction. Before the launch of auctions in 1992, it was upon the government to fix the interest rates as per their choice, however, after the introduction of auctions, it is the market that decides the interest rates for the government bonds. The government “announces auction dates and bond sales ahead of time, and discloses the number of securities it intends to sell.” There are two types of auctions that can be conducted by the Government. One is a Yield Based Auction and the other is a price-based auction.

Yield Based Auction

A Yield Based Auction is usually conducted when new bonds are issued by the government. In a Yield Based Auction, the investors bid as per the percentage return they expect from the bond. These bids may go up to two decimal places (say 7.50 percent, 8.30 percent etc.). The RBI then arranges these bids in ascending order, fixing the cut-off yield (the rate at which bids are accepted) in accordance with the notified amount (the amount to be raised through the auction). Thereafter, the coupon or interest rate for the bond will be fixed at the cut-off yield arrived at in the auction. All bidders who have placed their bids at or below the cut-off yields will be qualified to purchase the bond.

Price Based Auction

A Price Based Auction is usually conducted when the government plans to reissue an existing government bond. In a Price Based Auction, the investors bid “in terms of price per ₹100 of the face value of the security (say, ₹102.00, ₹101.00, ₹100.00, ₹99.00, etc.).” In contrast to the yield auction, the bids in a Price Based Auction are arranged by the RBI in a “descending order of the price offered”. Once the cut-off price (the minimum price to be accepted for the bond) is determined, the coupon rate is calculated based on the cut-off price. The investors who have placed” their bid at or above the cut-off price will be qualified to purchase the bond.

Once the successful bidders emerge (those who have cleared the cut-off), RBI can choose to allot the bonds on either a Multiple Price basis or a Uniform Price basis.

Multiple Price Auction

Under Multiple Price Auction, all successful bidders have to pay for the quantity purchased in accordance with their respective bids.

Uniform Price Auction

Under Uniform Price Auction, the rate at which the quantity is purchased remains the same for all the successful bidders regardless of the bid quoted by them. In other words, bonds are allotted to all successful bidders at the same rate i.e. the cut-off rate.

In July 2021, the Central Bank declared that it will be using Uniform Price Auction for bonds with a tenure of 2, 5, 10, 14 years and floating-rate bonds. In contrast, the bonds having a tenure of 30-40 years will continue to be allocated on multiple price basis. As per Bloomberg, RBI has changed its methodology to persuade banks to bid at “slightly lower yields”, following a series of “partially failed auctions”.

When it comes to participation in the auction, there are two categories under which the investors, depending upon their eligibility, may place their bids. The first category is Competitive Bidding and the other category is Non-Competitive Bidding.

Competitive Bidding

In Competitive Bidding, the investors are “well-informed institutional investors such as banks, financial institutions, Primary Dealers, mutual funds, and insurance companies.” The bidding takes place in multiples of Rs. 10,000, with the minimum bidding amount being Rs. 10,000. Under Competitive Bidding, the investor is allowed to place multiple bids at diverse prices or yield levels.

Non-Competitive Bidding

Until 2001, retail investors had no way of bidding in auctions. Subsequently, to encourage wider participation, the government allowed for Non-Competitive Bidding. Non-Competitive Bidding does not demand that the investor quote the price or the yield while bidding which gives the investors, who may not have the expertise to bid competitively in auctions, a fair chance to secure bond allotments. “The allotment under the non-competitive segment will be at the weighted average yield or price of all allotments to competitive bidders”, who in contrast will be allotted bonds in accordance to the Multiple or Uniform Price Auction, as is determined by RBI.

As per the earlier scheme, “individuals, HUFs, firms, companies, corporate bodies, institutions, provident funds, trusts and any other entity prescribed by RBI” could participate via Non-Competitive Bidding, given that they – “did not have a current account (CA) or Subsidiary General Ledger (SGL) account with the RBI and submitted the bid indirectly through Aggregator/ Facilitator”.In other words, to participate in the auction, eligible investors had to necessarily participate via a Scheduled Bank or Primary Dealer or Specified Stock Exchange or any other entity approved by RBI. Furthermore, the investors could only place a single bid in multiples of Rs.10,000, with the minimum amount being Rs.10,000 and the maximum being “Rs.1 crore (face value) of securities per auction”. In 2021 the RBI, under its monetary policy, announced a new scheme called ‘RBI Retail Direct scheme’ which changed some of these provisions. Under the new scheme, the retail investors no longer need to apply through Aggregator/ Facilitator and can directly participate in the bond auction as long as they maintain a ‘Retail Direct Gilt Account’ (RDG Account)’ with the RBI. Furthermore, under the new scheme, the bid amount for the single bid has been increased to Rs. 2 Crores per bond per auction for the investor. The new scheme has therefore increased the scope of participation in the auctions by easing the participation process (with the removal of intermediaries) and increasing the cap on the bidding amount.

How are government bond auctions conducted?

The RBI, in consultation with the Government of India, publicizes the date on which auction of government bonds would be conducted a week prior via a press notification. In addition, it also announces whether the issue would be for a fresh loan or an existing bond would be reissued. It also notifies the type of auction i.e. whether the bids are to be placed in the terms of price or yield. The competitive bidders place their bids depending on the same. The non-competitive bidders on the other hand need not quote the price or yield in their bids. RBI also calls for underwriting bids to be submitted a day before the auction. “The sealed bids (placed physically as well as electronically) are opened at an appointed time”, based on which the cut-off price or yield is announced by the RBI. It is also based on the bids on which the underwriting fee of the Primary Dealers is decided. If the demand is high, then the fees are low and vice-versa. Once the cut-off is announced, RBI allots the bonds to all successful bidders in full or in part. A typical auction result includes “the cut-off price yield, number and amount of competitive and non-competitive bids received, weighted average price yield, partial allotment details of competitive and non-competitive bids, devolvement on Primary Dealers or RBI if any, and amount of underwriting accepted from primary dealers.”

Conclusion

A popular way of debt financing for the government is through the issuance of government bonds. For investors, Government Bonds are considered one of the safest forms of investments since they are backed by a Sovereign guarantee. These bonds are issued by way of auction, the details of which are disclosed by the government well in advance. A bond auction may be conducted on a price basis or yield basis depending on the method RBI feels suitable. Furthermore, RBI can also dictate whether the bonds would be allotted on a uniform price basis or multiple price bases. When it comes to participating in bond auctions, it is also open to the investors to either go via the route of competitive bidding or non-competitive bidding, depending on the criteria they fall in. Once the bid is submitted, RBI announces the cut-off, based on which the bonds are allotted to successful bidders.

References

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Combination under Section 5 of the Act made entirely outside India with insignificant local nexus

By

Rachit Garg

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December 23, 2021

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d580c883a81967ea8c015f4bc2b1cf0a — Image source: https://blog.ipleaders.in/indian-economy-competition-law-overview-major-judicial-pronouncements/

It has been written by Vinay Yerubandi, pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from LawSikho.

Table of Contents

Introduction

Following the Economic policy of 1991, a great challenge placed in front of India is to establish a fresh and less restrictive competition policy. Because of this, the restrictive provisions of the existing Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) required a replacement. This came in the form of the Competition Act of 2002. The Competition Commission of India (CCI) is established and empowered under the act to function as a regulatory body for competition law aspects in the country. Competition law in India mainly focuses on three important aspects namely prevention of anti-competitive agreements, prevention of abuse of dominant position and merger control.

What is Merger Control

When two or more businesses decide to combine their capabilities to achieve economies of scale, there is a possibility that this transaction may impact adversely on the market or other players in the market. This may be in the form of creating entry barriers, virtually establishing a monopoly by capturing the entire market or pricing the products at a very lower price than competitors.

To avoid situations like these and to maintain healthy competition, governments lay down the laws related to merger control. Merger control refers to reviewing the impact of the transaction on the competition in the relevant market by the competition regulator of the country. So, any M&A transaction which is triggering the applicability of those laws due to it crossing certain thresholds or for various other reasons is required to get the approval of the anti-trust regulator of that country before consummating with the transaction. In India, this review is conducted by the Competition Commission of India and the touchstone for this review is called the “Appreciable Adverse Effects on Competition” doctrine.

CCI considers various factors like:

(i) creation of barriers to new entrants in the market;

(ii) driving out existing competitors from the market;

(iii) foreclosure of competition by hindering entry into the market;

(iv) accrual of benefits to consumers;

(v) improvements in production or distribution of goods or provision of services;

(vi) promotion of technical, scientific and economic development through production or distribution of goods or provision of services

For determining the Appreciable Adverse Effect on Competition of a combination. Out of these six factors, the first three are negative effects and the remaining three are positive effects. CCI balances both the positive and negative effects of the combination while assessing the appreciable adverse effect on competition.

Combinations

The term ‘combination’ refers to those transactions which require CCI’s approval. The European Commission and some other regulators refer to these transactions as concentrations or concentration acts. Combinations in India are regulated by the “Competition Act, 2002”. “Competition Commission of India (Procedure in regard to the transactions of business relating to combinations) Regulations, 2011 (Combination Regulations)” provides for the procedure and mechanism for the implementation of provisions under the act.

Section 5 of the Competition Act defines combinations. As per the definition, any acquisition of one or more enterprises or merger or amalgamation of enterprises that is crossing the jurisdictional thresholds prescribed by the CCI shall be considered as a combination. Section 6(2) of the act states that any transaction which is qualified as a combination under Section 5 is required to file a notice of the transaction and can consummate the transaction only after getting clearance from CCI. CCI in many combinations like Hindusthan Colas/SIMPL, Baxter/Baxalta penalized the parties for consummating the transaction before it was approved by CCI.

To check whether a particular transaction qualifies as a combination under section 5, it should meet any of the criteria mentioned in the following tests:

1. Parties test: The acquirer and target enterprise, along with its units, subsidiaries and divisions on a consolidated basis or the merged enterprise, post-merger has either: (a) assets of more than INR 2000 crore in India or turnover of more than INR 6000 crore in India; or (b) world-wide assets of more than of USD 1 billion, which includes a minimum of INR 1000 crore in India or worldwide turnover of more than USD 3 billion, which includes a minimum of INR 3000 crore in India; or

2. Group test: The group to which the target entity or the merged entity will belong post-transaction has either: (a) assets of more than INR 8000 crore in India or turnover of more than INR 24000 crore in India; or (b) worldwide assets of more than USD 4 billion, which includes a minimum of INR 1000 crore in India or worldwide turnover of more than USD 12 billion, which includes a minimum of INR 3000 crore in India.

If any of the above conditions are met, then the transaction is considered a combination and triggers the obligation to notify to CCI subject to the following two exemptions:

1. Target Exemption: If the target entity has assets in India of not more than 350 crores or turnover in India of not more than 1000 crores. Then the transaction can get exemption from notifying CCI. However, this exemption can be claimed only until 26 march 2022.

2. Schedule 1 Exemption: Schedule 1 to the Combination Regulations specify certain combinations which are not considered by CCI as combinations causing an appreciable adverse effect on competition and therefore exempt from notification to the CCI.

The list of transactions under schedule 1 can be accessed here

Impact on offshore transactions having insignificant local nexus

Interestingly, whether an offshore transaction requires notification to CCI or not is determined only by the jurisdictional thresholds laid under section 5 of the act. Irrespective of the nexus of the transaction to the competition in India, a transaction that satisfies the jurisdictional thresholds are required to notify the CCI. Many such offshore transactions didn’t affect competition in Indian markets but ended up being notified to CCI only on a purely technical filing basis. This resulted in additional costs and an extension in the transactional timeline.

Notwithstanding anything, Section 32 of the act which is a non-obstante clause also gives CCI the power to conduct an enquiry into any transaction which had taken place outside India and did not trigger the jurisdictional thresholds, if it is satisfied that the transaction may cause Appreciable Adverse effects on competition in India.

While assessing whether an offshore transaction is notifiable or not, it appears that CCI seems to ignore the substantive test (effect on competition in India) and rely only on the test of jurisdictional thresholds which analyses only financial information. This application for offshore transactions seems to be wide off the mark and superfluous. There exists a requirement that CCI should establish additional qualifications and requirements while extending its jurisdiction to transactions happening outside India. Until 2014, schedule 1 of the combination regulations has an item that provides an exemption to the combinations made outside India with insignificant local nexus and effect on the market in India. But, CCI deleted this item in the 2014 amendment of Combination Regulations. By deleting this CCI had appeared to only rely on the objective test of thresholds to determine whether an offshore transaction is notifiable.

Also, the computation of an enterprise’s assets and turnover for the application of jurisdictional thresholds needs to be more mature. As per the act, we are required to consider the audited financials of the immediately preceding financial year. According to this, if an enterprise is located in India and is deriving maximum revenue from exporting its products overseas, the turnover derived from the sales outside India shall also be considered as turnover in India. Therefore, the merger control in India does not refer to local turnover while computing the domestic turnover. The same stand was expressed by CCI in its order in Mylan/Agila Specialties. Unlike Indian Merger control, European Merger Control legislation allocates the turnover based on the geographical location where the sale of the product took place. Generally, this will be the place where the customer is located. This seems to be the on the mark approach because the primary intention of any merger control law is to protect competition in the relevant market. Here, the market is situated where the customer is present but not where the enterprise is present. So, taking the turnover from the financials of the enterprise and not allocating turnover to the geographical markets may be a simplistic and easy process but it seems to be not in the true spirit of merger control.

In Tata Chemicals Limited/Wyoming I, Wyoming I was an overseas wholly-owned subsidiary of Tata Chemicals Limited which is being merged into its Indian holding company. In this transaction, the parties claimed offshore exemption under schedule 1 (which was deleted in an amendment in 2014) stating that it was an “entirely outbound stream of acquisition”. However, CCI didn’t agree with the claim as the transaction is breaching jurisdictional thresholds. In Tetra Laval/Alfa Laval, CCI held that if the transaction triggers the jurisdictional threshold, then it will have a significant local nexus in India and requires notification.

Many such offshore transactions like Nestle/Pfizer, Silver Lake/Dell, Titan International/Titan Europe, Zulia Investments Pte Ltd/Kinder Investments Pte Limited have filed a notice to CCI, even though these transactions didn’t have any nexus with the competition in India. This had resulted in extended transactional timelines and an increase in costs. In the transaction between Titan International and Titan Europe through which Titan International, Inc is acquiring the entire share capital of Titan Europe PLC, Titan International is indirectly acquiring 35.91 percent of equity in Wheels India Limited which is an associate company of Titan Europe PLC. Since the assets and turnover of Wheels India are exceeding the thresholds, CCI held that the transaction requires notification to CCI before consummation.

Conclusion

The author of this article tried to analyse the impact of Indian competition law on combinations that are taking place outside India. The jurisdictional thresholds which are calculated based on the financial statements fail to identify the actual impact of the transaction in the relevant market. This creates a necessity to modify the thresholds by emphasising more on the relevant market where the competition can have a potential impact. There is also a clear need to establish an additional qualifier while obligating offshore transactions to notify CCI. The lack of such additional qualifiers is creating superfluous delay in the transactional timeline and an increase in transactional costs for offshore transactions which don’t have any nexus with competition in India.

Reference

1. JURISDICTIONAL NEXUS: “CONNECTING LAWS I THE EUROPEAN UNION AND INDIA” By Marc Reysen and Nisha Kaur Uberoi

2. Amendments in India’s Merger Control Regime A step in the right direction? By Bidisha Das and Rahul Rai

3. Merger Control in India: Challenges and Issues for global deals – Conventus Law

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Oxford v. Rameshwari Photocopy Service : case study

By

Diva Rai

-

December 23, 2021

0

pexels-nataliya-vaitkevich-6863514 — Image source - https://bit.ly/3mvedWW

The article is written by Ansruta Debnath, a student of National Law University Odisha. This article explores the series of orders and judgements that were given over 5 years in the famous DU copyright case and their implications in the present context.

This article has been published by Diva Rai.

Table of Contents

Introduction

Copyright provides exclusive rights over a person’s creative works. Numerous tests have been created to understand what can be copyrighted and what not. Once copyright is gained, problems arise in a separate aspect: to what extent is that copyright applicable? Students all across the world use books published by various publishing houses. Many times, due to financial constraints, they are unable to purchase the book itself. Thus, in general, either library comes to the rescue or pages of the books are photocopied for personal use. The case of The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services & Anr. (2016) was a landmark judgement that found that photocopying portions of copyrighted books en masse were perfectly legal when it was done for educational purposes. This article enumerates the series of judgments and orders that were given by the Delhi High Court since 2012 when the lawsuit was first filed and explores the legal issues and findings of the Court.

Facts of the case

Rameshwari Photocopy Service, founded in 1998 and owned by Dharampal Singh, is a photocopy shop present on the Delhi School of Economics (DSE) premises in Delhi University’s North Campus. This shop was the primary supply point of a variety of course materials and was often visited by DSE students. This was because some of the professors at the Delhi School of Economics had developed course packets that included pages from books published by various international publishing houses. Rameshwari Photocopy Service was entrusted with duplicating and binding these pages and distributing them to students for 50 paise (US$0.01) each page.

In 2012, Oxford University Press, Cambridge University Press (UK), and Taylor & Francis Group (UK), as well as Cambridge University Press India Pvt. Ltd. and Taylor & Francis Books India Pvt. Ltd., filed a copyright infringement lawsuit against Rameshwari Photocopy Service and the University of Delhi in the Delhi High Court for distributing copied portions of their published books without any appropriate license.

The lawsuit generated a ton of support from students, professors and activists alike for Rameshwari Services, with numerous petitions being filed for joining the defence of the case. For example, the Association of Students for Equitable Access to Knowledge (ASEAK) and the Society for Promoting Educational Access and Knowledge (SPEAK) requested that they be impleaded as defendants. Subsequently, they were made defendant number three and four respectively.

In March 2013, more than 309 famous writers and professors from around the world wrote to the publishers, urging them to drop the lawsuit. Surprisingly, 33 of the 309 signatories had a direct relationship with the plaintiff-publishers and were creators of works whose copyright was allegedly infringed by Delhi University and its photocopier. Eminent scholars such as Thomas Blom Hansen, Partha Chatterjee, Ayesha Jalal, Christophe Jaffrelot, Veena Das, Pratap Bhanu Mehta, Marc Galanter, and Professors Richard Falk, Arjun Appadurai, Jonathan Parry, Ramachandra Guha, Farid Esack, TN Madan, Ian Copland, Tanika Sarkar, and Uma Chakravarty were among those who signed.

In late 2012, the Delhi High Court passed a temporary injunction preventing Rameshwari Services from selling the photocopied course packets. The Court also instructed a Local Commissioner to visit the shop premises without prior notice and confiscate all allegedly infringing copies of the plaintiff’s works created by it after compiling an inventory of them.

In 2016, the lawsuit was rejected and the injunction was removed by Justice Rajiv Sahai Endlaw, enabling Rameshwari Photocopy Services to resume selling the course bundles. Later in the same year, a two-judge bench set aside the previous order and allowed for the lawsuit trial to continue, saying that the reproduction of copyrighted books for educational purposes was not copyright violations. At the same time, the Delhi High Court refused to place an injunction on the shop and instead asked it to submit periodic reports of the coursepacks it was selling.

In 2017, an open letter was sent to Oxford University Press by students, alumni and academics of Oxford University, requesting them not to appeal the Division Bench decision in the Supreme Court of India. The three publishers, Oxford University Press, Cambridge University Press (UK), and Taylor & Francis Group (UK) consequently withdrew from the lawsuit saying they did not want to get entangled in legal battles with their stakeholders, the educational institutions.

The Indian Reprographic Rights Organisation (IRRO) petitioned the Supreme Court, appealing the Division Bench decision of 2016. The IRRO is a copyright society that was established by publishing houses to give out affordable licenses for reproducing products that had copyright restricting their dissemination. The Supreme Court held that, given that the initial litigation brought before the Delhi High Court had been dropped by the publisher plaintiffs, and that the IRRO was only an intervenor in the lower court proceedings, the Supreme Court chose not to intervene in the High Court ruling.

Relevant legal principles

Since the issue involved copyrights, the Copyright Act, 1957 and the Copyright Rules, 2013 were the relevant source of legal provisions.

The main provision over which the entire legal battle proceeded was Section 52(1)(i). Section 52 talks about certain acts which do not constitute copyright infringement. Section 52(1)(i) in particular stated that the reproduction of any work, by a teacher or a pupil in the course of instruction; or as part of the question to be answered in an examination; or answers to such questions all constituted fair dealing of that work.

A primary question was whether the case would follow under Section 52(1)(i) or Section 52(1)(h). This subsection says that for bonafide usage of copyrighted works, the publication of the same could be allowed. But that was limited to only two passages from works of the same author published by the same publisher during five years.

Because of the absence of substantial Indian case laws in this regard, international treaties were also cited, namely the Berne Convention, 1886 and the Agreement on Trade-Related Aspect of Intellectual Property Rights, 1995. The relevant articles were-

Article 9 of the Berne Convention: Allows for governments to make legislation to govern the reproduction of copyrighted works in special cases.
Article 10 of the Berne Convention: This article allows for quotations to be made of works already in the public domain, provided it is compatible with fair practice. Moreover, this article also states that the utilization of copyrighted works can be used for teaching with appropriate agreements.
Article 13 of TRIPS: This talks about exceptions to exclusive rights only in special circumstances.

Arguments of the parties

Plaintiffs

The plaintiffs argued that the inclusion of portions of their copyrighted published works in the coursepacks by Rameshwari Services upon the authority of the University of Delhi amounted to institutional sanction of copyright infringement.

Since the coursepacks contained only photocopied parts of the copyrighted publication, they were functioning as textbooks and thus competing with the sale of the officially published textbooks. Rameshwari was alleged to have been operating commercially, by selling the coursepacks at the rate of 40-50 paise per page as opposed to the established market rate of 20-25 paise per page of any photocopy. It was also argued that Section 52(1)(i) of the Copyright Act would not apply as Rameshwari could not be equated to the reproduction by a teacher to students for the instruction of knowledge.

It was contended that alternatively, the reproduction in the manner carried out by Rameshwari Photocopy Services if held falling within the ambit of Section 52(1)(i), would render Section 52(1)(h) superfluous. Because the course materials were being used for ‘preparation of instruction’ instead of ‘instruction’, the same did not fall under Section 52(1)(i). Instead, Section 52(1)(h) should apply which allows for the reproduction of only two passages from works by the same author published by the same publisher during any period of five years.

Article 9 and Article 10 of the Berne Convention, 1886 as well as Article 13 of the Agreement on Trade-Related Aspect of Intellectual Property Rights, 1995 was also relied upon by the plaintiffs.

The plaintiffs finally pleaded that the defendants must be asked to get licenses from the Indian Reprographic Rights Organisation because the audience of such published books were largely academic institutions and if unrestricted reproduction from these books were allowed the academic publishing business would suffer irreparable losses.

Cited judgements

The following were the judgements that were primarily relied upon in the arguments of the plaintiffs and the same were cited to argue for an equitable balance between academic publishers and students-

In all the above-mentioned three cases, the issue involved was an infringement of copyright through the reproduction of excerpts of copyrighted books of various publishing houses. In all the cases, it was held that the defendants were unable to establish fair use of the excerpts.

Chancery 143 Hyde Park Residence Ltd. v. Yelland (2000): The plaintiffs used this case to plead that relief could not be denied to them in the name of ‘public interest’.

Defendants

The defendants contended that their act was well within the ambit of fair dealings as present in Section 52 of the 1957 Copyright Act. Rameshwari Photocopy Services said that they could not have competed with the publishing houses as they charged a nominal rate for its services as fixed by the license deed between itself and the Delhi School of Economics. It further contended that their act was for the benefit of the students as many of them could not afford to buy the books whose extracts were part of the syllabus of the student’s respective courses.

Delhi University categorically used Section 52(1)(i) as their defence. The University argued that Rameshwari Photocopy Services had been granted a licence to operate a photocopy shop on its campus to allow photocopying by students for educational and research purposes. Denying the University’s request to issue books to Rameshwari Photocopy Services to prepare coursepacks, the University argued that there is no limitation on the quantum of reproduction under Section 52(1)(i) of the Copyright Act, 1957 and that because Section 52(1)(i) covers reproduction for educational purposes, unlimited photocopying would be permitted.

It was further argued that there was a difference between the words ‘reproduction’ as in Section 52(1)(i) and ‘publication’ as in Section 52(1)(h). ‘Publication’ denoted publishing works for the public whereas in the present scenario the students had a narrower connotation. Accordingly, it was contended that Section 52(1)(h), could not be made applicable.

The University of Delhi argued that both the Berne Convention and the TRIPS Agreement allowed member states to propose legitimate exceptions to copyright and that the educational exemption established under Section 52(1)(i) constituted such an exception.

SPEAK pleaded that the market of the plaintiffs was not being affected by the actions of Rameshwari Photocopy Services. This was because the coursepacks contained only extracts from the books and not the entire book itself. Furthermore, it was contended by ASEAK that ‘instruction’ could not just be limited to that in classrooms only; it had to include other forms of ‘instruction’ as well. The interpretation of Section 52 had to be done liberally as the purpose of the Copyright Act was to develop and transmit knowledge in society by balancing the interests of work producers with the interests of society as a whole. Section 52(1)(h) also could not apply as it referred to third persons and not teachers and students.

Cited judgements

The following were the judgements that were relied upon in the arguments of the defendants-

Princeton University Press v. Michigan Document Services Inc.: The minority opinion that found no copyright infringement was relied upon. In this case, the minority opinion had said that the identity of the person operating the photocopy machine would not be material since the effect of commercial photocopying in bulk quantities was the same as photocopying by each student acting separately.
Province of Alberta v. Canadian Copyright Licensing Agency (2012): Dissenting opinion which had not found any copyright infringement was relied upon.
Longman Group Ltd. v. Carrington Technical Institute Board of Governor (1991): This case was cited to emphasize the scope of ‘instruction’ in Section 52(1)(i) of the Copyright Act (as stated in the judgment of the case in study).

Legal issues

The main issues, in this entire case, can be summarised as follows-

Whether the right of reproduction of any work by a teacher or a pupil in the course of instruction is absolute and not constricted with the condition of it being fair use?
What is the span of the phrase ‘by a teacher or a pupil in the course of instruction’ in Section 52(1)(i)(i)?
What constitutes ‘publication’ and ‘reproduction’?

Outcome

The interim injunction of 2012

In 2012, after the lawsuit was first filed, the plaintiff-publishers were able to have an interim injunction imposed against the defendants. The Delhi High Court opined that Rameshwari Services had no right to compile and sell the coursepacks.

The University of Delhi then filed an appeal which got dismissed by a two-judge bench of the same Court.

Dismissal of the lawsuit in 2016

In September of 2016, Justice Rajiv Sahai Endlaw dismissed the lawsuit and lifted the 2012 interim injunction primarily on the grounds of Section 52(1)(i) of the Copyright Act of 1957 which stated that the reproduction of any work by a teacher or a pupil in the course of instruction did not institute copyright infringement.

The single-judge bench also made the following observations-

Copyright was not a divine and inherent right that gave absolute ownership to the entity that owned the copyright. Instead, the primary aim of copyright was to encourage the harvest of knowledge and stimulate the intellectual growth of the general public.
Section 52 could be an all-encompassing defence for educational institutions that might get entangled in such lawsuits.
The word ‘teacher’ in the Section did not only refer to individual teachers but applied to educational institutions as a whole.
The legislature had not included the word ‘lecture’ deliberately. They did that because they did not mean to narrow down the meaning of the word ‘instruction’ as used in the Section. This word included lectures as well as anything else that the teacher instructs the student that helps them acquire substantial knowledge on the subject.
The imparting and receiving of instruction was never limited to face-to-face interactions but included a process of the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing textbooks, reading and ensuring, whether by the interface in classroom/tutorials or otherwise by holding tests from time to time or clarifying doubts of students.
Since, photocopying or clicking pictures of books was not against the law, photocopying by a shop, as instructed by the University, for the benefit of students could also not be considered an instance of copyright infringement.
Because photocopying could be done by the University, the Court felt there was no reason why photocopying could not be done by someone else, as instructed by the University. The Court felt that Rameshwari Services was contracted by the University to provide coursepacks and there was no difference between using a photocopier installed within the University and one installed outside it.

Justice Rajiv Sahai Endlaw also said that taking a license would have been necessary if and only if the defendants fell outside the purview of Section 52. This decision was then appealed by the plaintiffs.

The landmark judgement of the Division Bench in 2016

On December 9, 2016, the Division Bench of the Delhi High Court ruled in a landmark decision that the preparation of ‘coursepacks,’ i.e. compilation of photocopies of the relevant portions of different books prescribed in the syllabus, and their distribution to students by educational institutions, did not constitute an infringement of copyright in those books under the Copyright Act, 1957, as long as the inclusion of the works photocopied (regardless of quantity) pertained strictly to educational needs. The following were the main observations in the judgement written by Justice Nandrajog-

The Court decided that Section 52 did not have a cap or limitation on fair use. Rejecting the four-pronged test used in foreign jurisdictions, like the United States of America, the Court opined that fairness of use had to be inferred exclusively from the purpose of the use, i.e., education in this case, and not the qualitative or quantitative extent. Thus, if any material was being used for educational purposes, then that would be considered fair within the meaning of Section 52, irrespective of the fact whether the entire copyrighted book or part of it is being used.
The argument that the sale of the publishers’ books would be affected was unequivocally rejected by the Division Bench. It held that, in the absence of the photocopied parts, the students would just refer to the multiple copies of the books which were already present in libraries of the various institutions. It was further observed that such a sale of photocopies was likely to increase and expand the market of these copyrighted books.
Section 52(1)(i) was interpreted wherein it was held that ‘teacher’ and ‘pupil’ included teachers and pupils. Section 13(2) of the General Clauses Act, 1897, was relied upon and it was held that ‘reproduction’ would include reproducing multiple copies of a work. Thus, photocopying in bulk was not an infringement of copyright.
The Court further agreed with the defendants that the course of instruction included not only a classroom lecture but also everything else that is generally involved in teaching, like taking notes, studying them and studying ancillary materials. Comparisons were drawn between Section 21(4) of New Zealand’s Copyright Act, 1962 and the contended section of the Indian Act. The Kiwis’ interpretation of Section 21(4) which had the words ‘in the course of instruction’ in the case of Longman Group Ltd. v. Carrington Technical Institute Board of Governors (1991) was held to be relevant in the present scenario and was accordingly relied upon while reaching to a conclusion.
The argument that dissemination to students did not constitute ‘publication’ because ‘publication’ implied ‘public’ which was wider than ‘students’ was rejected by the Division Bench. At the same time, it was held that the act done by Rameshwari was not ‘publication’ within the meaning of Section 52(1)(h) as that required an element of a certain degree of profit, which was missing in this case.
Further, it was held that it was very justified that teachers and students used an intermediary for publication. It was considered common sense that teachers would not themselves purchase photocopying machines to make copies of materials. Thus, using the services provided by a shop was not copyright infringement.
A major contention of the plaintiffs was that Section 52(1)(i) applied to individual teachers and in this case, the University of Delhi had provided institutional sanction to Rameshwari for photocopying, making the Section inapplicable. The Court, while rejecting this argument, said that the University was simply tasked with laying down the course guidelines. The teachers were responsible for allotting study materials for each of the courses. Thus, Delhi University could not be made liable for giving institutional sanction as the coursepacks were made and distributed by the teachers themselves, making the case fall comfortably within the ambit of the given Section.
The plaintiffs had relied heavily on cases of foreign jurisdictions which were found to have no relevance in the Indian context. Furthermore, the Delhi High Court held that the Berne Convention and TRIPS were enacted in such a way that it allowed adequate allowances to individual signatories to formulate their own rules based on specific and peculiar circumstances of the country.

The appeal was thus dismissed, and the lawsuit trial was reinitiated to determine whether the coursepacks indeed were of appropriate and reasonable need. The Court felt that expert opinion was required in the matter and allowed the plaintiffs to amend their plaint accordingly. It further ordered the trial court to make a factual finding on the legality of these copies. The Court refused to award an interim injunction in favour of the publishers, instead, directed the photocopier to keep a record of the course packets photocopied and distributed to students and to file it in the action every six months.

Future implications

The 2016 judgement in this case unequivocally widened the ambit of reproduction of copyrighted works in the sphere of education. By allowing such reproduction, the Courts increased the accessibility of various foreign publications which are generally very expensive to students of varied financial backgrounds.

Recently, a similar issue has reached the Delhi High Court. The defendants are involved in Sci-Hub, a website that provides pirated versions of research papers. The lawsuit has been launched by the American Chemical Society, Elsevier and Wiley who stated that Sci-Hub was violating copyrights. Sci-Hub’s defence primarily rests in fair dealings and legal experts have said that because of the Rameshwari case, there is a high chance that the case will be decided in favour of the website.

Conclusion

Thus, it is made very clear that students and teachers can reproduce copyrighted books without any fear of liability if it is done reasonably and fairly for the furtherance of education. The case in question never found closure due to its withdrawal, but the question of whether the distribution of copied parts of copyrighted books for education was legal had already been settled. The question that was required to be answered was whether in this case, the parts of books that were being copied and sold were essential for education.

This was an issue of fact that will vary on a case to case basis. But, publishing houses must take note that arguing for copyright infringement just based on the fact that someone other than them has been disseminating their works will not hold up, at least in India. Because this was a Delhi High Court judgement and not a Supreme Court one, it can only have persuasive value in other high courts. But it can be reasonably expected that when a need arises, courts will take into cognizance the needs of students and place a higher value on them than the needs of the rich publishing houses, unless there is a legitimate infringement of the latter’s rights.

References

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