‘Please don’t beat me!’ – an analysis of the cruel act of violence

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November 21, 2021

Battered Women Syndrome — Image source - https://bit.ly/3qpfn5y

This article is written by Ishita Pal pursuing BBA-LLB from JIS University, Kolkata and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

An act of violence may be defined as any physical force used by one person to harm or harm another person. The idea that we live in a civil society is dealt a severe blow by any act of violence committed against anybody. Even while a house is often thought of as a pleasant location, this is not always the case. It is a crime committed in the privacy of one’s own home that profoundly affects the whole family. Women, men, children, and the elderly are all possible victims. Every year, the number of such offenses is steadily rising, while the number of people reporting them remains the same. The eradication of social ills such as domestic violence will take time and effort since it is systemic and long-term.

Various types of domestic violence

Abuse in the form of verbal and emotional

Abuse of this form includes calling someone names, making accusations about their character, or threatening them emotionally. From the age of 15, a National Family Health Poll survey found that a third of women had experienced some emotional abuse. Parents’ emotional attacks on their children are the most distressing. Violence in the form of physical or sexual assault is accompanied by emotional distress. A person’s mental well-being may be seriously compromised by physical violence, which can be treated. Migraine, mental retardation (intellectual stability), etc., are all possible side effects of this drug.

Abuse of power

First and foremost, when people hear about domestic violence, they picture physical abuse. Physical damage to a partner is included in this definition; such activities may result in serious injuries that need immediate medical attention and may even result in death. Slapping, hitting, and kicking are all included, as are slashing, burning, and other forms of physical violence as well. According to a United Nations brief, one in three women and one in four men have been physically abused by their spouses. In separate research, 1 in 7 women and 1 in 18 males came close to death. While the husband’s attack on the lady was physical, the kid was also subjected to mental torment. Domestic violence does not only occur between spouses; it may occur amongst family members as well.

Domestic violence against parents, grandparents and even children has been documented. An elderly lady in Kerala, India, was caught on camera assaulting her elderly mother and her 90-year-old grandmother daily, leaving them with bruises all over their bodies. The footage of the incident went viral on social media, prompting authorities to intervene.

Abuse of sex

Sexual assault, rape, and other forms of sexual violence are all included in this category.

According to research, more than 75% of those who physically abuse their relationships also sexually exploit them. Approximately 27% of girls between the ages of 15 and 49, according to a United Nations study performed across 161 countries in 2018, suffered sexual assault at the hands of an intimate partner.

#MeToo has accelerated the rise in reported occurrences of sexual assault. In Bangalore, a lady who had been sexually exploited for dowry over two decades filed a report of sexual assault. The victims don’t need to be women; even toddlers and the elderly are subjected to sexual assault. A special POSCO court recently fined an elderly couple Rs 1,00,000 and sentenced them to 10 years in jail for sexually abusing a 4-year-old kid. Even though many women falsely accuse men of sexual abuse of tarnishing men’s reputations.

Domestic violence: the facts and the myth

When discussing the causes of domestic violence, it is impossible to single out a single factor. Reasons for this include a variety of factors. Social or behavioural issues, such as over-ownership, are at play here. Domestic violence is also caused by a person’s desire to retain power and control over another person. Because their kids had eaten all the mangoes, a father in Odisha reportedly beat his wife to death because she could not offer him mangoes. The economic difficulty may lead to domestic violence when one or more members cannot satisfy their necessities. A lady in Madhya Pradesh beat her husband to death with her mother because he couldn’t find a job and couldn’t make money. A person’s addiction often causes domestic violence to drugs. When a person is intoxicated, they are unable to control their anger or violent urges.

People’s distrust of one another also causes intimate relationship violence. An example of this kind of thing that may be found here is the case of Naina Sahni, known as the Tandoor Murder14 Case, a particularly horrific one. She and Sushil Kumar, her husband, violently murdered her because he suspected her of having extramarital relationships. Infertility or the desire to have a male kid may lead to unwanted attention for women.

Those who have been a victim of domestic abuse

A wide range of genders and ages are victims of domestic violence, not just those of a certain age. Domestic abuse may affect anybody. There may be wicked motives for this heinous conduct.

Women’s issues

To please her spouse, a woman may be subjected to domestic abuse or insults for dowry. Domestic abuse primarily affects women. A wide variety of methods may be used to harass women: verbal abuse, shaming, mocking, and even dowry demands are just a few of the ways they might be abused.

Men’s issues

No one is exempt from the effects of domestic abuse, and men are no exception. Domestic violence against men can be caused by various factors, including excessive possessiveness and multiple forms of torture, both mental and physical. Domestic violence against males is an unfortunate reality in today’s cruel world, and it’s important to remember that it’s considered marital violence, as opposed to violence against women. Women and men alike are victims of domestic abuse. More than half of males have been victims of gender-based violence, according to a new study. The main issue with guys is that they don’t convey the violence they are subjected to daily. Until recently, no one cared about a case in which a woman beat her husband to death for arriving home intoxicated since the victim’s gender didn’t fit the feminist narrative. We are all aware of India’s sexist laws and use them to the fullest extent possible. A man from Kolkata, India, recently filed a complaint against his wife, alleging that she had physically beaten him, left burn scars on his body, and subjected him to a great deal of mental anguish.

In opposition to youths and children of all ages

The most overlooked crime in the world is domestic violence against children. Parents or other family members may inflict domestic abuse on their children in the guise of punishment. A slap, a savage beating, or a reprimand are all possibilities. Because of the peer pressure of their kid being the greatest at everything, they unintentionally mistreat their children, which negatively influences their lives for the rest of their lives. Many times, society and parents put pressure on youngsters to take extreme measures like running away from home or even committing suicide. About 65 percent of Indian parents have no qualms about spanking their kids. It’s hard to fathom how much worse it must be for children who are victims of domestic abuse and have no one to lean on for support.

Against the aging people

In many cases, the perpetrators of domestic abuse against elderly parents are their children or their daughter-in-law. When they become a burden on the family, their offspring regard them like discarded tea bags, which have no other purpose.

A worrying decline in human compassion may be seen later in Madhya Pradesh when the children of an elderly lady who had been evicted from her home after the death of her husband threw a 99-year-old woman out of her home.

The cultural values and traditions of India are well-known around the globe. Domestic abuse against the elderly is humiliating to the whole country.

Is the domestic violence harmful

Violence against a family member may negatively influence everyone in a household, including the victim. The person’s bravery and pride are destroyed by constant mental pain, physical attack, and ill-behaved behavior. When it comes to domestic abuse, it’s hard to escape its entanglements. As a culture, we aren’t particularly fond of responding to domestic abuse.

Abused person’s pain

It is the victim of domestic abuse who bears the brunt of its effects the most acutely. People who have been the victims of domestic abuse are at risk of long-term mental damage and perhaps death or suicide. Domestic abuse victims often suffer from depression, humiliation, and rage as a result of their ordeals. Many victims of domestic abuse have been forced to leave their homes to be homeless. They became alcoholics and stressed out as a way to cope with the everyday trauma of domestic abuse.

Family’s pain

Violence and the prospect of violence in the home have a devastating effect on every family. It creates a fearful atmosphere that may lead to family breakups and the destruction of family surroundings. Domestic abuse may lead to feelings of insecurity, loss of self-confidence, and a lack of trust in family members.

Children’s pain

Children who live with a victim of domestic abuse suffer both physically and emotionally, according to research. Stress, anxiety, sadness, mental discomfort, sleep difficulties, headaches, stomach pains, and other symptoms are possible. Focus is difficult for children to handle. There is nothing else they can do but self-injure, be aggressive toward their friends and schoolmates, feel guilty or blame themselves for the violence. They may have difficulty forming positive relationships. They also develop phobias and insomnia, children living in such an environment struggle with going to school and doing schoolwork. They may engage in bullying behavior themselves or be the victim of it.

Conclusion

Having a domestic violence problem is a blemish on humanity, and it hurts society and the next generation. Various forms of abuse are possible, including bodily harm, psychological harm, rape in the marriage, and economic exploitation. Women, men, children, and senior citizens can all be victims of domestic violence because it has no regard for their gender or age. Domestic violence has a devastating effect on both the victim and the children who see it in their own homes. The Indian government has enacted several regulations to prevent domestic violence, but their execution remains an open question. This crime must be eradicated by society as a whole. The essential weapon against domestic violence is education on domestic violence laws and respect for others. Education is the most pressing issue of our day. Women should have a larger share of seats in the House of Representatives. Victims need to speak up and fight up for their rights.

References

Smith, L.J., 1989. Domestic violence: an overview of the literature. HM Stationery Office.
Buzawa, E.S. and Buzawa, C.G., 2003. Domestic violence: The criminal justice response. Sage.
Johnson, M.P. and Ferraro, K.J., 2000. Research on domestic violence in the 1990s: Making distinctions. Journal of marriage and family, 62(4), pp.948-963.
Johnson, M.P., 2005. Domestic Violence: It’s Not about Gender: Or Is It?. Journal of Marriage and the Family, pp.1126-1130.
Roy, M. ed., 1977. Battered women: A psychosociological study of domestic violence. New York, NY: Van Nostrand Reinhold Company.
Anderson, K.L., 1997. Gender, status, and domestic violence: An integration of feminist and family violence approaches. Journal of Marriage and the Family, pp.655-669.
Edleson, J.L., 1999. Children’s witnessing of adult domestic violence. Journal of interpersonal Violence, 14(8), pp.839-870.
Mullender, A., Hague, G., Imam, U.F., Kelly, L., Malos, E. and Regan, L., 2002. Children′ s Perspectives on Domestic Violence. Sage.

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What is an order fulfillment agreement

By

Abanti Bose

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November 21, 2021

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agreement (1) — Image Source: https://rb.gy/noldil

This article is written by Neeraj Salodkar, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).

Table of Contents

Introduction

Have you ever wondered how e-commerce websites like Amazon, Flipkart, Myntra, etc., always have the required quantity of goods or services that the consumer needs? Do these e-commerce giants produce their own goods? Rarely. In case a particular good is out of stock, the website shows that the item is out of stock. It also shows how many items of the said good still remain. How is this possible? This article discusses the legal intricacies of the internal working of the e-commerce industries.

The phrase ‘Order Fulfillment’ can be divided into two parts, ‘Order’ and ‘Fulfillment.’ Order, in this context, is instruction, and fulfillment means carrying out. Therefore, when the two words are taken together, it means carrying out certain instructions made by a certain party to another. Therefore, an Order Fulfillment Agreement is an agreement whereby two or more two parties come together to fulfill the requirements of the parties. It is a type of agreement that is ubiquitous and renowned in the e-commerce business.

Parties involved and their role

The following parties are generally included in an Order Fulfillment Agreement:

E-commerce website;
Manufacturer or Wholesaler, as the case may be; (For the purpose of this article, it would be called as the manufacturer);
The delivery company;

Presently, there are thousands of e-commerce websites. It is projected that by the year 2030, e-commerce will dominate offline shopping. This is already a reality in most metro cities.

The e-commerce websites hardly produce their own goods. They only sell the goods made or sold by the other manufacturers or sellers. They provide a platform for buying and selling goods and services. They provide assistance in bridging the gap between the buyers and the sellers. They help in bridging the gap between the demand and the supply. In other words, they connect the buyers with the sellers and the sellers with the buyers. (And they make money out of it.)

To achieve the above objective smoothly and successfully, it is essential to have a bug-free and updated website. Leaving the technical computer stuff apart requires smooth communication between the manufacturer and the e-commerce website. Whenever a certain item is going to be out of stock in a few hours or days, as the case may be, a reminder must be sent to the manufacturer to make available the said item so that it does not go out of stock. Here is when the Order Fulfillment Agreement comes into play.

Illustration and working of the contract

Before going into the details, it is important to know how the Order Fulfillment Agreement works. Following is an illustration:

Amazon is an e-commerce website that sells almost all kinds of goods to retail customers. It is owned by Jeff Bezos, the second richest man at the time of writing this article. On the website, goods are listed. The goods are not manufactured by Amazon. Suppose a laptop is being sold at a heavy discount on Amazon Big Billion Day. The seller is Appario Retail Private Limited, and the delivery is Fulfilled by Amazon. In this case, an Order Fulfillment Agreement would be entered into by the manufacturer, Amazon and Fulfilled by Amazon (that is Amazon itself). Here, Appario Retail Private Limited would inform Amazon about the quantity of the laptop that they can offer, the price, accessories, and other related goods. Amazon would display the same on its website. As soon as the sale starts, the quantity of the laptops will be bought. As soon as a consumer places an order on Amazon, a notification about the purchase, quantity and payment is sent to Appario. On the receipt of the said order from Amazon, Appario shall process the order in accordance with the terms and conditions decided by Appario and Amazon. After this, Appario shall physically deliver the product to the delivery company (which, in this case, is Amazon itself. In other cases, a shipping company like Excom Express, Delhivery, etc., is hired. Amazon has enough resources to be able to afford its own logistics and shipping). After this, the order shall be delivered to the consumer who placed the order. The placing of the order would automatically reduce the quantity available with the Appario. Appario would have to restock the goods as per the Order Fulfillment Agreement when the quantity dips below a certain pre-decided level.

All of the above needs to be in the Order Fulfillment Agreement.

This is how the entire system works. The above example is taken from a real-life situation. This is the link for the same. Amazon.in: Buy HP Pavilion x360 11th Gen Intel Core i5 14-inch(35.6 cm) Touchscreen 2-in-1 FHD Laptop (16GB/512GB SSD/Fingerprint Reader/Windows 10/MS Office/Natural Silver/1.41 Kg), 14-dy0053TU Online at Low Prices in India | HP Reviews & Ratings.

Important clauses in an order fulfillment agreement

The recitals

This contains the reason for entering into the agreement. For the above example, it shall be as follows:

WHEREAS Amazon is an online e-commerce company that sells various products on its website. It desires to engage a wholesaler who sells electronic goods like mobile phones, laptops, and goods of the like nature.

WHEREAS Appario is a wholesaler that sells electronics in bulk. It agrees to be engaged as a wholesaler for electronic goods for Amazon.

Exclusivity

In this clause, it would be mentioned whether the manufacturer shall be exclusive to the e-commerce website or not. In case it is exclusive, then Appario shall deal only with Amazon and no one else. It would be as follows:

Appario shall be the exclusive supplier of Electronic Goods (this shall be defined) and related product order fulfillment services of Amazon.

Scope of work

The ambit and scope of work shall be decided in this agreement. It may be as follows:

The following shall be the scope of work of Amazon:

Amazon agrees to develop and maintain the website for selling the products of Appario.
Amazon agrees to develop and maintain a customer service interface for the purpose of placing orders and other related customer service requirements.
Amazon agrees to conduct all marketing and merchandising efforts, collect all orders and send the same to Appario.
Amazon agrees to pick up the Electronic Goods from Appario and deliver them to the customer who placed the order. (Hereinafter called as “customer”)
Amazon shall be responsible for collecting the payment from the customer and paying the same to Appario after deducting applicable taxes as per the terms and conditions laid down in this Agreement.

The following shall be the scope of work of Appario:

Appario shall be responsible for filling, packing, and delivering the orders of the Electronic Goods that it receives from Amazon within 1 day from the receipt of the order.
Appario shall be responsible for restocking the Electronic Goods as and when required by Amazon. The restock must be done within 7 days of the date of receipt of the request from Amazon. In case the restock is not possible due to certain issues outside the control of Appario, then Appario must forthwith apprise Amazon of the same.
Appario shall fulfill all Amazon’s orders promptly and completely.

Relationship of the parties

This clause shall clarify the relationship between the parties. Usually, both of the parties act as independent parties. One is not an employee of another. Both are independent contractors. This is crucial as it limits the parties’ liability and stops the application of labor laws. This clause clarifies that the relationship is purely that of independent contractors, and in no way should it be considered as employee-employer, joint venture, partnership, agency, as the case may be.

Indemnification, insurance and limitations

This clause states that each party shall indemnify, hold harmless and defend the other party for the lapses caused by the breaching and negligent party. Such clauses are essential and help protect any party from the breach and negligence of the other party. For example, Appario mentions certain technical specifications of a particular laptop. It mentions that the laptop has 16 GB of Ram whereas the laptop has only 8 GB of Ram. On the basis of this representation, a consumer buys the laptop. The consumer finds that the laptop has only 8 GB Ram and files a suit for misrepresentation against Amazon. In this case, the negligent party has been Appario and not Amazon. Therefore, in this case, as a suit has been filed against Amazon:

The legal fees;

Any compensation that Amazon had to pay to the customer as a result of the suit,
Any other incidental expenses related and ensuing from the negligence of Appario.

Shall be compensated by Appario to Amazon. The same applies to Amazon as well. In case Appario suffers due to the negligence of breach of contract by Amazon, then Amazon shall recompense Appario.

Governing law and jurisdiction

The law that is applicable is mentioned here. This clause is extremely important in the case of international dealings. The jurisdiction clause mentions which court shall have the jurisdiction in case any dispute arises.

Arbitration, conciliation, and mediation

Presently, going to courts is nugatory. Nobody benefits except the lawyers, who earn fat fees from the dispute. Therefore, adding an arbitration, conciliation, and mediation clause help oust the court’s jurisdiction and privatize justice. Any mode and method of arbitration can be opted for.

Conclusion

Clear-cut terms and conditions must be agreed upon between the manufacturer and the e-commerce website to avoid future disputes. Drafting a good and clean contract assists in carrying the business forward and avoiding extensive legal fees in the future. Nothing should be done orally. All intricacies must be well documented in the agreement itself. In case certain terms and conditions are not suitable, the same must be negotiated between the parties.

References

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Online dispute resolution : an analysis

By

Diganth Raj Sehgal

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November 21, 2021

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ODR_MixedMedia_v3 — Image source - https://bit.ly/2RbQwq0

This article is written by Yamini Gupta and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders)

We have witnessed tremendous change in the legal systems all across the world. India amongst all, also has been striving to adopt a system-design approach for its legal system. The transition of dispute resolution through conventional courts to alternative means have led us to arbitration, conciliation, mediation, judicial settlements and Lok Adalats. With time, the concept of Online Dispute Resolution has evolved as a result of effective familiarization and utilization of technology. This article discusses the evolution and significance of online dispute resolution.

Table of Contents

Introduction to ODR

As technology has changed the way individuals interact, it has also changed the way we resolve our disputes. With technological advancements, a new notion of dispute settlement known as ‘Online Dispute Resolution’ has emerged, changing the picture dramatically in just a few months. Catalyzed by the situation of the outbreak of COVID 19 non-physical activities like virtual hearings and e-filings have increased significantly.

In the late 1990s, ODR’s growth coincided with the expansion of internet. Initially, e-commerce websites such as eBay employed Online dispute resolution to promote customer trust by promptly and efficiently addressing disputes. The eBay platform enabled customers to lodge a complaint and commence the resolution process online. If the settlement attempt fails, an online mediation process would commence. The platform was designed to diagnose the problem and conduct automated negotiation followed by mediation or arbitration^[1]. This concept, which has since evolved into more sophisticated variations that are extensively employed by various private businesses and governments alike, is popularly referred to as the ODR (Online Dispute Resolution). Many countries, like the United States, Canada, Singapore, and the Netherlands, pioneered ODR later on. Subsequently, the practice of resolving disputes online has also been integrated by many more countries.

Farah defined ‘Online Dispute Resolution’ to mean utilizing information technology to carry out alternative dispute resolution^[2]. Schiavetta explained that the online dispute resolution comprises of a process to resolve dispute exclusively online and also other dispute resolution process that use internet^[3]. As valuable and useful as the internet has been to us, it nevertheless has its negatives. Many intrusive activities are linked to its use, which can lead to a variety of e-disputes such as invasion of privacy, cyber terrorism, breach of e-contracts, identity theft, and so on. ODR encompasses not only e-disputes that are unique to the internet but also traditional disputes that can be addressed using information technology, such as unfair trade practices, intellectual property infringement, and so on.

Need of online dispute resolution in India

As we have witnessed that India has seen a rapid growth in the field of lawful means, from conventional courts to adopting alternate means of dispute resolution which fostered the development of Arbitration, Conciliation, Mediation, Judicial Settlement and Lok Adalat. The primary underlying issue does not lie in the right means to access justice, but to the increased number of cases filed on a daily basis. This not only reduces the court’s workload, but it also speeds up the delivery of justice and makes it more cost-effective for general public.

The process of ADR involves physical proceedings which are most of the times barred by the geographical limitations, and during the times of COVID-19 such limitations have become peculiar. And in order to overcome such a situation, it is needed that we adapt and utilize potentially advantageous solution called online dispute resolution. It provides us with recourse of settling dispute through online means in the form of arbitration, negotiation or mediation with the use of modern technology like video conferencing and online circulation of documents.

The emergence of Online dispute resolution in India can be both cost effective and less time consuming. It would further be beneficial to disputes which are left unheard because of various reasons either due to cost or time issues, such disputes can take recourse of ODR which is both cost efficient and less time consuming. Amid the outbreak of COVID 19, disputes related to lending, property, credit, commerce and retail are resolved through ODR, which is one of the impactful part of economic revival.

There have even been certain cases when the courts have recognized the need of having ODR procedures across the courts. In light of the COVID-19 pandemic, even the present Chief Justice, Justice Bobde, has emphasized the importance of taking efforts to make courts virtual in order to avoid the shutdown of the top courts. Online dispute resolution method in India is at its initial stage and with time more and more people are taking the recourse of ODR for the purpose of resolving disputes. Many ODR platforms have been established such as CADRE, SAMA, Centre of Online dispute resolution, AGAMI etc. NITI Aayog, in collaboration with Agami and Omidyar Network India, recently hosted a meeting on ‘Catalyzing Online Dispute Resolution in India,’ where key stakeholders were brought together to work cooperatively to ensure that attempts to scale online dispute resolution in India are made. During the conference, it was agreed that ODR has a huge amount of potential for India, especially when it comes to small and medium-sized conflicts. It has the potential to improve access to justice and ease of doing business, since effective conflict resolution will be essential in revitalizing the economy in the midst of the COVID-19. The supreme court also pioneered the growth of ODR in India, recently in State of Maharashtra vs Dr. Praful B. Desai^{^[4]} The Supreme Court of India ruled that video conferencing is an admissible means of recording witness testimony. As a result, the legislative framework, as well as precedents set by the Supreme Court of India, encourages the use of technology for dispute resolution and encourages the implementation of ODR techniques. It is also clear from a combined reading of the Indian Evidence Act of 1872, the Arbitration and Conciliation Act of 1996, and the Information Technology Act of 2000 that Indian laws provide for the legality and technological viability of ODR processes. Even, we also now have virtual court facility in India which enables the Litigants to file the plaint electronically through e-Filing and also pay the Court Fees or Fine online through https://vcourts.gov.in Litigant can view the status of the case also online through various channels created for service delivery.^[5]

It is noteworthy that on an average every judge in India is allocated 1,350 cases, whereas his counterpart in the US is required to deal with only 388 cases^[6] As a result, promoting and strengthening a technology-driven dispute resolution process not only appears promising for attorneys, but also improves the efficiency of the Indian legal system.

Advantages of ODR

The following are the main benefits of ODR-

Speedy Resolution- One of the prominent advantages of ODR is that it is less time consuming in comparison to conventional courts. As there has been significant increase in the number of disputes involving consumer issues, transactions and other isuues. The most convenient choice appears to be ODR, which provides an efficient basis for implementing a speedier dispute resolution system, on the other hand where ADR takes several months to pass an award, ODR offers dispute resolution in a matter of weeks.
Feasible from a financial standpoint- It not only provides speedy resolution but also is economically viable. As the process of arbitration involves physical proceedings which are most of the times barred by the geographical limitations, travelling and being present physically is in itself have become expensive and complicated.
It is possible to avoid complex jurisdictional difficulties- One of the prominent issues of geographical limitation can be avoided with the help of ODR. It further remodels the system of dispute resolution from justice administered in a court room to a service that can be availed anywhere.
Useful in resolving cross border disputes- In order to address this issue, early adoption of online dispute resolution (ODR) has been focused on resolving e-commerce transactions where parties are located in different jurisdictions, as well as low value disputes arising out of both business to business as well as business to consumer transactions, where going to court makes little economic sense.

ODR is the future of access to justice

Richard Susskind propounds that access to justice encompasses four layers – legal health promotion, dispute avoidance, dispute containment and authoritative dispute resolution.^[7] He points out that the traditional court system has only been concerned with the latter two of these issues. He is correct. This remark holds true for both India and the United States. When it comes to resolving conflicts and keeping the court system operational on a virtual level, the country’s judiciary has consistently turned to technology. However, the moment has come for the emphasis to shift from dispute resolution to dispute avoidance, containment, and enhancing the overall legal health of the country.

Investing in online dispute resolution (ODR) through the use of more advanced second generation technologies can assist India in its transition to a future judicial system.

Newer ODR technologies, ones that not only use legal principles but also expand to better economic principles for settling civil disputes, are expected to come from the private sector, as has been the case with ODR thus far. The court and the administration must collaborate with these skills and adopt them for the benefit of the general public, thereby making it imperative for them to do so. As difficult as it may be to fathom, the future of dispute resolution focuses in technology and perhaps artificial intelligence. It is possible that ODR will play a significant part in this by developing approaches for more unbiased evaluation of legal connections in order to take early action. In terms of institutional readiness, expertise, and technology capacity, it is clear that India already possesses the key elements necessary to implement a comprehensive framework for the use of technology in dispute resolution.

Conclusion

Dispute settlement strategies have gone a long way in human civilization through the years. Fast and inexpensive resolution of disputes has been a primary objective for the creation of online dispute resolution (ODR) mechanisms. With the enormous expansion of the online market, the ODR mechanism requires widespread public knowledge and training, which may be achieved through social media, education, street plays, marketing, conferences, seminars, and campaigns, among other means, at the grass-roots level. The participation of the government is also extremely significant in granting financial assistance to ODR projects and assisting in the development of technical and administrative infrastructure necessary for the establishment of an ODR process.

To ensure that all groups of society have access to justice, it is imperative that the system’s reach be expanded to include as many as possible of them. Strong infrastructure for easy access and for ensuring that justice is delivered in a timely and adequate manner must be built by increasing literacy rates, reducing language and cultural barriers, and providing easy access to e-courts may be a stepping stone towards achieving the aforementioned goals. Consequently, advancing ODR is an important step in facilitating global concord and encouraging international cooperation in the resolution of cross-border disputes.

References

[1] Gintarepetreikyte, ‘ODR Platforms: eBay Resolution Center’ (The 15 th ODR Conference, 14 April 2016)

[2] Farah C, Critical analysis of online dispute resolution: optimist, realist and the bewildered, Computer Telecommunications Law Review, 11(4), 123-128. Zondag and Lodder defined online dispute resolution as using internet for alternative dispute resolution, constructing computer assisted dispute resolution system by developing generic language to analyse information exchange in conflict discourse, International Review of Law, Computer and Technology, 21(2), 191-205.

[3] Schiavetta S., Relationship between e ADR and Article 6 of European Convention of Human Rights pursuant to case law of European Court of Human Rights, Journal of Information Law and Technology, 2004 (1) JILT.

[4] Maharashtra vs Dr. Praful B. Desai (2003) 4SCC 601

[5] https://vcourts.gov.in/virtualcourt/

[6] https://www.barandbench.com/columns/online-dispute-resolution-a-possible-cure-to-the-virus-plaguing-the-justice-delivery-system

[7] Susskind (n 12) 113

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Analyzing targeted advertisement in light of Indian Data Privacy Laws

By

Abanti Bose

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November 21, 2021

0

This article has been written by Abhigyat Chaitanya, pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).

Table of Contents

Introduction

Using the Facebook platform, a team of researchers displayed adverts for a beauty product intended for extroverts using the slogan ‘Dance like no one’s watching’, while introverts received an image of a girl standing in front of the mirror smiling with the phrase ‘Beauty doesn’t have to shout.’

In a parallel experiment, an advert was run which was targeted at individuals who were high in openness-to-experience by showing crossword puzzles using an image with the caption:

‘Aristoteles? Seychelles? Unleash your creativity and challenge your imagination with an unlimited number of puzzles!’

The very same puzzles were advertised to people low in openness, but with a slight play of words:

Settle in with an all-time favourite! The crossword puzzle that has challenged players for generations.’ Later researchers claimed that matching adverts to a person’s character led to 40% more clicks and up to 50% more purchases than using generic non-targeted ads. For an advertiser, that’s pretty impressive but not so much for the targeted users.

Targeted/behavioural advertising in simple terms refers to the matching of ads and potential customers. They are meant to reach a specific audience on the basis of their browsing history, purchase history, online behaviour, geolocation, preferences, etc. These specific traits are collected from various websites and social media platforms in the form of “user data”, saved as cookies. These cookies are shared with ad networks, which then show us personalized advertisements.

This article has been divided into two parts. First dealing with the mechanism of Targeted Advertisement and the latter delves into Indian Data Privacy laws against targeted ads.

Mechanism of targeted advertisement

Actors involved

Pinpointing the actor involved could be a difficult task. So we categorize them under three overlapping categories namely marketers, publishers, and advertising intermediaries.

Marketers

These are persons or organizations interested in presenting their offers to potential consumers. They include retailers, consumer goods brands, device makers, the travel and hospitality industry, telecom and financial service providers, political parties, etc.

Publisher

Publishers provide online content in the form of news, games, apps, services, etc. Online platforms involved in the advertising network include:

E-commerce marketplaces (e.g., Amazon, eBay, Zalando),
App stores (e.g. the Apple App Store, Google Play, Galaxy Store),
Search engines (e.g. Google, Yahoo),
Comparison-shopping and user-review tools (e.g. TripAdvisor, Trivago, Kayak),
Social media and content-sharing platforms (e.g. Facebook, Instagram, TikTok, YouTube),
Smartphone providers and application developers.

Advertisement scientists

Advertising networks and exchanges

Ad networks give advertisers access to selective audiences by aggregating specific inventories. They can specialize in connecting marketers with specific publishers.

Advertising exchanges are platforms that sell their aggregated inventory of spaces by means of automated micro-auctions.

Google services are offered under a pay-per-click (PPC) pricing model. Facebook’s Audience Network extends Facebook’s behavioural advertising beyond the Facebook platform to the websites and apps partnering with the network. The recent focus has shifted to real-time bidding (RTB), a method for determining the price for space through a competitive bidding process.

Targeted users

Users play a dual role. On one hand, they are the data subjects whose personal or non-personal data is processed by entities in the advertising industry. On the other hand, users are citizen-consumers whose attention is competed for in the advertising ecosystem. Through targeted advertising, marketers aim to nudge consumers towards taking actions, be it clicking on an ad or buying a product.

Requirements for targeted ads

Data

The whole targeted advertising market is geared towards matching ads with users for which, first the users’ data is required to be collected, processed, and categorized to make the process of matching feasible.

Classification of personal data

Volunteered Data – Originates via direct actions taken by individuals(e.g. When creating online accounts, entering credit card information, publishing on social media or blogs).
Observed Data – Acquired by data collectors when individuals’ activities are captured and recorded. Depending on the level of awareness of individuals, such data can be distinguished into (a) engaged ((b) not anticipated, and (c) passive data.
Derived Data – Originate from other data through deterministic computations, thereby becoming new data elements related to an individual.

Forms of advertising

This is the delivery format for adverts. Display ads are more or less disruptive to users’ online experience through Pop-up windows, Info-bars, Banner Ads, and Video ads. Keyword advertising is another well-known mechanism wherein Google matches the keywords typed by the user in the search box with the keywords selected by advertisers to characterize their products, sold via real-time auctions.

Further, social media advertisers have a broad range of methods up their sleeves where they can directly sell space to third parties or their social media influencers (persons with a large follower base) to create content.

Mobile and in-app advertising offer an enhanced ad experience through video and other media content by placing ads within apps to the targeted public.

Matching of advertisements with customers

Data analytics and market research companies

Data analytics and market research companies collect and analyze personal data and then share their results with marketers and other interested parties on the online market. They help marketers analyze, sort, and categorize individuals; add or remove them from lists of people sharing certain characteristics (“audiences” and “segments”); select them for specific advertising treatment. Thus, they enable advertisers to address certain people in certain ways with certain messages on certain channels or devices; for example, through Facebook, a mobile app, or a website banner, they can make offers or discounts sent to people who are most likely to respond to them.

Example:

HeyStacks – provides companies with consumer intent profiling (PREDICTING CONSUMERS’ INTENTIONS) based on users’ browsing activities and contextual data(e.g., time, location).

Findify – offers search engine and navigation optimization for e-commerce websites.

Konodrac– offers various services, such as customer segmentation, personalized recommendations, digital marketing, and e-commerce.

Indian laws against targeted advertisements

The public at large has a right to receive commercial speech. Article 19(1)(a) of the constitution not only guarantees freedom of speech and expression but also protects the rights of an individual to listen, read and receive.

Supreme Court in the landmark case of Tata Press Ltd. vs. Mahanagar Telephone Nigam Ltd. of 1995, emphatically held in favour of advertisers, by deciding that the rights under Article 19(1)(a) of the Indian Constitution could not be denied by creating a monopoly in favour of the Government. It could only be restricted on grounds mentioned in Article 19(2) of the Constitution.

This indirectly put restrictions against government intervention. Thus, advertisers who wish to exercise their freedom of speech and expression, to exploit the right of an individual to listen, read and receive can do it more freely.

Online commercial advertisements are thriving in this period with new means of publications. Today we have real-time means. Earlier every house received a newspaper, which had 60-70% news, and the rest were occupied by advertisements of products, notice by govt., vacancies for jobs, etc.

With the shift to real-time means, everybody has a smartphone in their hand, a desktop at their workplace, an ott-television at home, which constantly keeps them connected to the world via service providers such as Facebook, Whatsapp, youtube, newspapers, websites, e-commerce platforms, etc. giving them all these facilities for free, so it seems on the face of it.

Global market

The legislation in India for advertisements has been written for Indian Standards. But now we receive advertisements from across the globe. Being a part of the global market comes with the responsibility of being aware. There cannot be honest and economic marketing unless the public at large is being educated by the information disseminated through advertisements.

We know how intricately the democracy and economy of a country are associated. Democracy would be handicapped without the freedom of “commercial speech”. Marketers require advertisement as a medium to involve the public.

The public at large has a right to receive the “Commercial speech“. Thus advertisement benefits the sovereign economy in return.

Lack of universal legislation

There is an absence of any uniform advertising regulation or agency. Among the legislations we have, some can be considered weaker compared to similar of their kind. For instance, provisions mentioned in chapter 3 of the IT Act specifically states that whoever publishes any material which is lascivious or which tends to degrade persons who are likely to read in the electronic form, shall be punishable with imprisonment and fine.

Certain legislation as mentioned under, though are in place but violations under those laws can be found on every single website you visit.

Online platforms are filled with adverts that are harmful to young people, violating the Young Person (Harmful Publication) Act. Online education leads to an influx of children on the internet.
Indecent Representation of women, adverts for Drugs, and magic remedies are among a few recurrent violations shown by online publishers. The internet is filled with erotic content clearly in violation of the Indecent Representation of Women (Prohibition) Act, 1986 and The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. This clearly portrays the lack of implementation of these legislations.
Further, The Representation of the People (Amendment) Act, 1996, puts limitations on advertising by political parties. The case of the Cambridge Analytics scandal during the 2016 US Elections, is a key exam of how targeted advertising can sabotage the general election and how lack of invigilation can lead to such things.

Other legislation such as The Cigarettes and other Tobacco Products Act, The Prenatal Diagnostic Techniques (Regulation & Prevention) Act, Transplantation of Human Organs Act, The Civil Defence Act, have such presence that their violations can hardly be found on the normal web.

The Electronic Media Monitoring Centre under the Ministry of Information and Broadcasting has made self-regulatory guidelines applicable to the broadcasting service providers.

This is alarming because the Constitution stands to protect the privacy of an individual i.e. it is stipulated that no program (including advertisement) should invade an individual’s personal or private affairs or privacy unless there is an identifiable larger public interest.

Online report and complaint

This is complicated. The advertisements received are based on real-time bidding (RTB). RTB is done by marketers to present ads by publishers on their platform.

If a person receives an advert he doesn’t like and wishes for it to be removed, he cannot just go to the police to report a crime. This advertisement can be broadcast from any part of the world through RTB. So pinpointing a single advert is difficult.

For this purpose, publishers give the option to report something, accompanied by reason. Herein, after the report, the said inventory will not be shown to you, and if it crosses a certain report threshold, then action will be taken. This is known as a self-regulatory mechanism.

Data protection legislation

Europeans adopted the Data Protection Directive in 1995 and in 2018 passed the General Data Protection Regulation (GDPR). India currently does not have a separate data protection law. As seen in the provisions discussed above, clear lack provisions for the protection and procedure to be followed to ensure the safety and security of sensitive personal information.

The 2020 Ban of mobile applications on the ground of data protection raised eyebrows to the imminent dangers. Data is the new oil. In this era, data is so important that a country can wage war against another for the same.

Among the existing laws. Section 43A in the Information Technology, 2000 refers to compensation for failure to protect data.

The Personal Data Protection Bill was introduced in Lok Sabha in 2019. It seeks to protect the personal data of individuals and establishes a Data Protection Authority. The bill further imposes accountability and limitations on data fiduciaries. For instance, personal data can be processed only for specific, clear, and lawful purposes subject to certain purposes, collection, and storage limitations. The bill governs the processing of data by the government, companies incorporated in India, and foreign companies with a consumer base (actual/ potential) in India. It categorizes certain personal data as sensitive personal data.

Conclusion

Would you want someone to know so much about you, that they know you more than your spouse, they know the mood you are in at the moment, they know your character, temperament, psyche and judgement, everything? Processing the data they collect on you, all this just to send you personalized advertisements.

As discussed earlier, it is known how intricately the democracy and the economy of a country are associated. Marketers require advertisement as a medium to involve the public. The public at large has a right to receive the “Commercial speech”. Thus advertisement benefits the sovereign economy in return.

The Constitution stands to protect the privacy of an individual. It is stipulated that no program (including advertisement) should invade an individual’s personal or private affairs or privacy unless there is an identifiable larger public interest.

There are evident pros and cons but the lack of legislation leaves us with no safety net.

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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The legality of unilaterally drafted e-contracts

By

Abanti Bose

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November 20, 2021

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e-contract — Image source - https://bit.ly/2L3gtoo

This article has been written by Debdattaa Das, pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho).

Table of Contents

What are e-contracts?

Aren’t we all guilty of clicking on the checkbox next to “I have read and understood all terms and conditions”, without actually reading them? If you’ve ever wondered whether that practice is healthy or if it can cause trouble for you, then you’ve landed in the right place! In this article, I explain the validity of such e-contracts.

In the simplest terms, an e-contract (sometimes, online contracts) is just like a regular contract but in electronic form. They prove to be a great tool to facilitate transactions in a hassle-free and paperless mode. In our daily lives, we come across multiple e-contracts. Sometimes these are in the form of digitally signed files. More frequently, we see them in the form of textual content, followed by a checkbox. To know more about e-contracts in-depth, click here.

Essentials of a valid contract

For a contract to be valid in the eyes of law, it needs to fulfil the following pre-requisites as provided under Section 10 of the Indian Contract Act, 1872:

Proposal and acceptance

This includes one party expressing their willingness to perform an act or abstain from performing an act and the other party giving its assent to such performance or abstinence. (Section 2)

You tell your friend that you wish to give him a book- this is a proposal. Your friend agrees to take the book from you- this is acceptance to the said proposal.

Free consent

This involves both parties agreeing to the same thing in the same sense and in the absence of coercion, undue influence, fraud, misrepresentation or mistake. (Sections 13 and 14)

Your friend agrees to buy your car. You know that your fuel tank is leaking and yet, you sell it to your friend saying that the car is in ‘perfect’ condition. This is not free consent.

The capacity of parties to a contract

Every person who has attained majority at the time of making the contract, is of sound mind and is not barred by any law to enter into a contract, is said to have the capacity to contract. (Section 11)

You want to buy a house whose owner has recently died. You make an agreement of sale with the owner’s son who is 17 years old. He does not have the capacity to contract and thus, the contract is not a valid one.

Lawful object and consideration

The purpose to be fulfilled by means of the contract as well as the consideration being offered for the same must be lawful. Unlawful objects and considerations are enlisted under Section 23 of the Indian Contract Act, 1872.

You agree to buy a firearm from your friend for a sum of Rs. 50,000 whereas you do not possess a licence to use the firearm. This contract is not valid.

Unless from a legal background, you might be wondering why this list does not contain the requirement for it to be written and signed. Well, that’s how simple it is!

Interestingly, the law does not provide for any requirement as to the mode of entering into a contract in order for it to be valid. If we look at an e-contract and assess it in terms of each of the above requirements, it is quite evident that it forms a valid contract. Not just that, they are also enforceable by law.

Recognition under the Information Technology Act, 2000

Upholding this validity is Section 10A of the Information Technology Act, 2000 which prohibits invalidation of electronic contracts solely on the basis of being in the electronic form. The authenticity of such contracts as ‘electronic records’ may be secured by affixing digital signatures or electronic signature or techniques specified in Schedule II of the IT Act, on the electronic records. (Section 3 and 3A)

While you might be rejoicing at the recognition given to electronic records and e-contracts, it is vital to look at the documents that are excluded from the purview of the IT Act and hence, do not receive the same legal recognition.

The following documents are excluded under Section 1(4) read with Schedule I of the IT Act:

A negotiable instrument (other than a cheque),
Power-of-attorney,
A trust,
A will,
A contract of sale or conveyance of immovable property.

Types of e-contracts

Click-wrap

These are pre-drafted terms and conditions which typically come with an ‘Agree’ button (and all its variants) and you become bound by that contract by clicking on the button. You may have seen these on End-user licence agreements for using the software.

Shrink-wrap

Usually found in the hard copy of the software, these become binding when you open the packaging of the software.

Browse-wrap

These require minimal requirements to bind you by the terms, by continuing to use an online service, you are automatically considered to have agreed to their terms. These use the phrase, “By continuing, you agree to all terms and conditions”. These are common with the cookie policies of various websites.

Digitally signed documents

Though not very prevalent in India at the moment, these types of contracts may be used by businesses who wish to go paperless. For using this, a contract first has to be drawn in the digital form of a document, and then digitally signed by the parties to the contract. This would ensure the integrity of the contents of the document.

Emails

As unsuitable as it may sound, email conversations between parties may also be considered for the purposes of enforcement when it is unregistered and unsigned. This principle has been upheld by courts, however subject to other provisions of evidence law such as other pieces of evidence establishing the intention of parties, subsequent contract on same subject matter etc.

Unilaterally drafted contracts

When only one of the parties to the contract drafts the terms of the contract and the other party has no participation in the drafting procedure and has no room for negotiation, such contracts are known as unilaterally drafted contracts. Thus, these are what we would call in general terms ‘one-sided’.

Sounds unfair, doesn’t it? But unfortunately, we all enter into these agreements more often than we notice. In fact, it is the most frequent form of contract that most of us enter into when we visit a website or use new software.

Businesses would usually have a standard contract for multiple customers where the terms are pre-decided by one of the parties and the other party has to accept the contract in its entirety. Loan agreements and insurance agreements are common examples of this type of contract.

If we look closely, we will find that all e-contracts, except for the last type, i.e., digitally signed documents, are unilateral and standardised in nature. This means that the customers/users do not have an option but to agree to all terms in order to use or reap the benefits of the concerned services.

The legality of unilaterally drafted contracts

In 1984, the Law Commission of India released its 103^rd report on standardised contracts which may be applied to the unilaterally drafted e-contracts as well. The report had highly criticised such contracts and termed them as ‘pretended contracts’. It recognised how these documents were unilaterally drafted and insisted upon by a powerful enterprise and that free consensus was absent. The Contract Act falls short of a statute to offer relief in such cases and reliance has to be, therefore, laid on judicial precedents which do not serve the same purpose as specific legislation.

While we do not find many judicial precedents for e-contracts per se, we might resort to the ones set for regular contracts that are unilaterally drafted, which the courts have determined, thankfully. The same principles may be applied here, pertaining to the analogous character of e-contracts with regular contracts.

Courts have found the contracts with one of the parties placed at a dominant position, to be void. This may be attributed to the unfairness that may arise in such a situation if the drafting party chooses to impose some unreasonable condition upon the other party, thus misusing their position. The test of reasonableness is done and examined by the court from the perspective of an ordinary prudent man. However, the intervention of the court in deeming a contract as void would arise only in the situation where there exists a huge difference in the bargaining power of the parties. And, this difference is likely to cause economic duress of one the parties on another. Meaning thereby, that in cases where the parties are at an equal or near-equal bargaining power, the court would not deem the contract as void t or a part thereof only by reason of it appearing unreasonable. Furthermore, in case any ambiguous terms are found, they are interpreted against the party that has drafted it.

This intervention of courts exists to reassure the principles behind Section 16 of the Indian Contract Act, 1872 which stipulates what constitutes ‘undue influence’. On the other hand, it is Section 19A that empowers the courts to do so.

Role of judiciary

In the cases where one of the parties was aggrieved by the unreasonable terms of a unilaterally drafted contract of another party, the courts have been actively participating to restore justice.

In Rohit Bajaj v. ICICI Ltd 2008, the National Consumer Dispute Redressal Commission (NCDRC), New Delhi, relying heavily upon the suggestions of Law Commission’s 103^rd report of 1984, regarded unjustified and unilateral terms in standardised contracts as unintentional and amounting to unfair trade practices. Thus, relief against the grievances caused by means of these terms can be granted under the Consumer Protection Act, 1986.

In the infamous LIC case, the Supreme Court observed that in standardised contracts, the party other than one drafting the contract would never assume a bargaining power that is equal or near equal to the party drafting it. The only way to escape such unjust practice would be to forego the service forever.

The Calcutta High Court has held that the test of good faith is the fairness of bargain[6]. When on the face of it, the transaction seems to be based on inadequate consideration, thus resulting in an unconscionable advantage, it is liable to be set aside by the court.

Conclusion

Thus, click-wrap, shrink-wrap and browse-wrap agreements in the electronic mode are unilaterally drafted and represent the standardised form of contracts. However, there is no such legislation in place which can determine them to be invalid, considering the practicability of the situation. It is only feasible to have a standardised contract when a huge number of similar transactions need to be made. Only in cases where such contracts seem unreasonable and against the principles of natural justice, would the bargaining power become a factor. Once it is established that the party which has drafted the contract, was in a dominant position which caused them to draft terms that are grossly unreasonable, the courts may interfere and give relief to the weaker party. Nevertheless, the decisions by the court do not have a binding effect or formulate standards that may be followed by businesses while drafting unilateral contracts.

As already suggested by the Law Commission, the Contract Act needs reforms. Additionally, it is important that the consumers are aware of the situation and take up active steps for enforcing the legal principles under Section 16 of the Contract Act until legislation to that effect is enacted.

So, the next time you find yourself in a position of injustice, do challenge it in a court of law, instead of accepting it just because you clicked on ‘I Agree’.

References

[1] Trimex International FZE Ltd. v. Vedanta Aluminium Ltd., (2010) 3 SCC 1

[2] Lloyds Bank v. Bundy, (1975)1 QB 326.

[3] Kanto Mohan Mullick v. John Carapiet Galstaun, 1928 SCC OnLine Cal 202

[4] Rohit Bajaj v. ICICI Bank Ltd., 2008 SCC OnLine NCDRC 27.

[5] LIC India v. Consumer Education and Research Centre, 1995 SCC (5) 482.

[6] Sonia v. Maula Baksha, AIR 1955 Cal 17.

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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What are the common mistakes that must be avoided while drafting a contract

By

Rachit Garg

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November 20, 2021

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This article has been written by Alvira Sadik Shaikh, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho . It has been edited by Zigishu Singh (Associate, LawSikho).

Table of Contents

Introduction

A well-drafted contract is the first step towards smooth and structured functioning of any business or agreement between two or more people. A contract is a legal document that imposes certain obligations on the parties to be followed. It ensures that all the terms and conditions are agreed by each party and both the parties are on the same page. Also, it becomes the legal duty of each party to not breach any of the terms in the contract. It is important to know how to draft a good contract, as a very tiny mistake can lead to a major loss or even worse – end of your business. Hence, it is very important to know the mistakes that must be avoided to avoid such consequences.

Using complicated language

Many times, lawyers use complicated words in their contracts which are not easily understood by their client. There’s a belief that using fancy words will create a good impression and create a greater impact. But, this isn’t the reality. Instead of using vague and complex language, it is always better to keep it simple, plain and not complicated. This makes it easier to understand all the terms very clearly and hence leaves less space for any confusion. Using plain and simple language also makes it easier to interpret the contract and avoids any misunderstanding.

Relying on incomplete information

Before drafting a contract, it is very important to know all the needs and requirements of your client. It’s never wise to draft a contract by using inadequate information collected from the client or on the basis of your assumptions. Always ask questions to your clent, this makes it simpler to understand his/her needs. Keep all the information like data, costs, terms, deadlines, etc. organized and easily accessible. Verify this information from your client.

Important information like the name, address, contact information must be verified before including it in the contract. Once the initial draft of the contract is drafted, you should get it reviewed by your client and then include all the changes suggested by the client.

Copying and pasting from templates

With the availability of a number of templates of different agreements, it’s becoming common where the readily available material is used and the required information is changed. Though convenient, it’s not the right thing to do. Referring to these templates is okay, but directly copying all the clauses is not. The main reason to avoid this is because copy pasting the whole clause increases the chances of making errors. We might forget some major points and also include some unnecessary information. It is always better to customize our clauses and make it according to the terms agreed between the parties.

This will help in making your contract precise, crisp and decrease the chances of major errors.

Not negotiating the terms

If you are entering into a business with someone or representing your client, it is necessary that we negotiate the terms that are being discussed. It is not necessary to agree to whatever is being offered at first. All contracts are negotiable, you need to propose your terms well and ask for what is doable.

Well negotiated terms makes it easier for both the parties to remain on the same page and have a clear understanding of the entire contract.

Not defining clearly the words used in the contract

The lack of clarity in the definitions of the terms used in the contract leads to misinterpretation of the contract. Whenever you use any term for referring to a person or object, make sure that you clearly define it in the definition clause.

For example, what shall be called as the confidential information, who shall be the licensor, etc. must be clearly defined.

Not mentioning all the conditions that lead to the termination of a contract

There are always some terms which are not acceptable by the parties and which may lead to the termination of the contract between them. These terms should be clearly mentioned in the contract which is being drafted, so that there is no misunderstanding that may lead to dispute between the parties later. There are certain conditions like late or non-payment of fees, late delivery of goods or services, letting out confidential information, destruction of property which may lead to the breach of the contract and thus it’s termination.

Moreover, it is also important to mention the duration of the contract after which the contract is automatically terminated. Clearly mentioning the date and year avoids confusion later.

Not including a dispute resolution clause

The question whether there will be a dispute between the parties to a contract is quite uncertain. Hence, it is essential to clearly include the method of dispute resolution which can be used in such circumstances.

There are many reasons why dispute resolution methods like mediation, arbitration or litigation might be used. It is always better to specify which method of resolution will be used beforehand in the contract. Also, the jurisdiction of the court under which the contract will come must be clearly mentioned. A dispute resolution clause helps in saving time and money and also protects the parties from facing further losses or disputes.

Failing to proofread and format

One of the important steps after drafting a contract is to proofread and format it. It always seems that a contract once drafted is perfect and without any errors at first. But, this isn’t the case. There is always a chance of missing out some important details like names, dates, etc., making spelling or grammatical errors or missing out some clauses. All these mistakes might be missed out by the drafter while drafting. There is a high probability of sending an initial draft directly to the client, especially if it is a lengthy and complex contract.

To make things simpler, always take a break after drafting your initial draft. This will give you some mental space and a clear understanding of the contract when you read it later. Also, remember not to skip any part of the contract while proofreading. Doing so decreases the chances of accuracy and your efforts might go to waste. Proper proofreading and formatting ensures that your contract is crisp, precise and meets the needs of your client.

Ignoring due diligence

Before entering into a contract with any party, always make sure you have done proper research about the party. Information like the background of the party, whether the business property is duly registered, is the business legitimate, is the party involved in any past or present disputes, etc., must be thoroughly researched upon and only then the decision of entering into a contract with the party must be made.

Avoiding due diligence will lead to major losses later. It is not wise to blindly trust a party just because they are a reputed entity or they have negotiated a good deal with you. Proper due diligence will surely save you from getting involved in any major disputes or losses later.

Not taking help from a professional

Sometimes, parties think that just because a contract is simple and does not include a lot of information, they tend to draft a contract on their own. This will not make the work easier but increase the chances of errors and often lead to legal implications. A professional knows the law and what terms to include in the contract which may benefit you and save you from future disputes or losses.

This ensures that all the clauses in the contract are well drafted leaving less to no space of errors and saves you from future misinterpretation and damages.

Conclusion

Contract drafting is the most important and first step of any business transaction. Nowadays, there is an increasing need to connect and trade giving rise to numerous negotiations and contracts between parties. Not all contracts are simple and easy. There are many contracts which are more complex and lengthy, it involves a lot of information and details about the business. Making such errors in the contracts will not only lead to major losses but also lead to unwanted confusion and disputes. Right from getting the right information from your client to including it in the contract involves good understanding of the contract law and skills of drafting a good contract. Avoiding such common mistakes will surely help you in drafting a precise and effective contract. Keeping all points in mind and reviewing your contract before finalising the contract is the essential part of a well-drafted contract.

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:

https://t.me/joinchat/L9vr7LmS9pJjYTQ9

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

A critique of maternity benefits under the Code on Social Security, 2020

By

Rachit Garg

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November 20, 2021

0

This article is written by Swasti Jain from UPES, Dehradun. The article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

Labour law falls in the concurrent list of the Indian Constitution. It implies that both the center as well as the state can legislate for regulating the labour mechanism. The central government has stated that there are over 100 state and 40 central laws regulating various aspects of labour such as resolution of industrial disputes, working conditions, social security and wages. These existing legislation were complex to be referred and archaic in its basic sense. So to ease the compliance altogether, the Second National Commission on Labour (2002) recommended consolidating the Labour Laws. The recommendation were in relation to consolidation of laws into several groups such as Industrial Relations, Social Security, safety and welfare and working conditions.

Significant changes were brought by the Ministry of Labour and Employment and one of Code named Code on Social Security, 2020 came. The present code has been passed by both the houses and has also received president’s assent on September 28, 2020. But the code has not been enacted till date and the date is yet to be notified in the Official Gazette of India. The code subsumed several laws as follows:

Basic analysis of the new code

The social security code assimilates and introduces some new concepts within and also retains some archaic provision that further needs to be looked upon. The code is trying to achieve its goals by providing various definitions of workers in order to cover and fix them in various situations. It sets forth the dynamic changes in the relationship between an employer and an employee. The code has further included and defined the idea of Gig-worker, platform worker, building worker, Contract worker and so on. The definitions have been revised by keeping the realities in mind. The primary aim of the social security code, 2020 is to consolidate the abovementioned laws in order to bring ease in compliance relating to headcount thresholds, manner of computation of provident fund (PF) contributions, payment of gratuity, maternity leave entitlements, obligations for hiring inter-state migrant and building and construction workers, compensation events for work injuries, etc.. However, the present merely keeps the laws together in a place by retaining the earlier framework in separate chapters for each legislation. The code continues with the working of the same forums for regulation and administration, the better would have been by streamlining the organization without the fragmented set-up. Chapter VI of the Social Security Code deals with maternity benefits which the present article will discuss further.

Maternity benefits provision : need and history

The underlying purpose of maternity benefit within the code is to protect and preserve the respect of motherliness and most important the health of the women as well as the safety and healthy upbringing of the child. Appropriate measures for the protection of health and wages of women workers during the maternity period are of great significance for women as well as society. The woman is not able to perform her duty due to the health conditions which she faces on those days so for that purpose maternity benefits have been provided which ensure the proper health and dignity of motherhood.

For the first time, legislation related to maternity benefits was first enacted in the year 1929 by the government of the State of Bombay. The legislation was regarded as very progressive and by analyzing the results many states implemented their laws as well. Soon after Central legislations were passed adding provisions related to maternity benefits like Mines Act, 1941, Plantation Act, 1951. However, the scope of the act was not in direct relation with the benefits. With a view to providing separate maternity protection and benefits, the government of India enacted separate legislation named Maternity Benefits Act, 1961. With the changing times, an amendment was brought in the year 2017 to the same act which directly increased the benefits to women workers. The benefits were broadened to include adoptive as well as commissioning mothers. The benefits also included WFH, crèche facility etc. After the labour commission reported to ease the compliance, Maternity Benefit Act, 1961 was repealed by the Social Security Code, 2020. The code has also brought a few changes.

The chapter to the code applies to every establishment including factory, mine, plantation which is provided in the First Schedule of the code. The applicability is in a limited scope which only falls in which ten or more employees are employed or were employed on any day of the preceding 12 months. The provision further states that such other shops or establishments can also be included upon notification by the appropriate government.

Analysis of the changes in maternity benefits under the new code

Inspector-cum facilitator

The new code has brought up a new authority of Inspector-cum-facilitator under Section 14. The powers of the Inspector-cum-Facilitator under the Code of Social Security are similar to those of the Inspector of the Maternity Benefit Act, 1961 – they may, at any reasonable time, enter any establishment where women are employed or work is given to them, examine and speak to any person who they reasonably think is an employee, and require the employer to give information regarding the names and addresses of women employed, and payments made to them.

The Inspector cum-Facilitator also has the power to inquire into complaints of non-compliance of the provisions and pass orders that they deem just and proper based on the circumstances of the complaint. The present step does not necessarily makes so much difference to the present code. It is merely limited to changing the nomenclature. There could have been additional powers allotted to him that would additionally ease the entitled women to secure their rights.

Aadhar application

Another change brought by the code is under Section 142. The provision states that any worker under the unorganized sector seeking to get maternity benefits under the security Code has to establish the person’s identity and the identity of the person nominated to receive maternity benefits in the event of her death through an Aadhar number. This is a new change that did not exist in the earlier maternity benefit Act, 1961. The code has to be balanced from both ends. On one hand, if the code is increasing the benefits and making it stricter upon the employees to follow the provisions then on the other hand there is definitely a need for checks and balances by maintaining the phenomenon of checking the true identity. This change is followed by the authorities may bring transparency and prevent misuse.

Punishments

Another notable change has been brought to the concept of punishments. The new code has enhanced the punishments applicable in the cases when an employer is in contravention with the provisions of the code in matters relating to maternity benefits. Under Section 133 of the Code, any person who as an employer fails to provide maternity benefit to which a woman is entitled to under the code will find themselves punished with imprisonment for a term which may extend to six months or with a fine which may extend to INR 50,000, or with both.

The above-mentioned criterion is in contrast to the Maternity Benefit Act, 1961, which stipulated imprisonment of no less than three months but which could extend to one year, and with a fine of no less than INR 2000 but which could extend to INR 5000. In the event such a person repeats the offence of not providing maternity benefits to a woman who is entitled to it under the code, they will be punishable with imprisonment for a term which may extend to three years but which shall not be less than two years and shall also be liable to fine of INR 3,00,000. This is far more stringent compared to the Maternity Benefit Act, 1961 which, in the case of repeated offences, stipulated punishment with imprisonment which could extend to one year, or with a fine which could extend to INR 5000, or with both.

It is notable that when any company commits the offence of not providing maternity benefits to a woman is entitled to get, then the code mentions that every person who at the time, when the offence was committed was directly in charge or was responsible for the to conduct its business affairs as well as the company will compulsorily be guilty of the offence and will be punished accordingly. Further, the code also mentions about the company that if it is proved at the time of the offence that it was committed due to any neglect or with the consent of any officer i.e. these officers can be director, secretary or any other officer, then these officers shall also be held liable and will be punished accordingly.

The mere exception to the liability of such director, secretary or any other officer is that it is proved by them that the offence was committed without their knowledge or that they exercised due diligence to prevent such commission of the offence which has been so committed then no action will be taken against them. The changes here can be said to be good in the sense that now the provisions will be followed by the employers in a stricter sense. The increase in the penalty provision definitely creates a bit of sincerity to follow and be in compliance with the provisions and to allow all kinds of maternity benefits to the entitled woman.

The prior opportunity before prosecution

The inspector cum facilitator before initiation of prosecution proceeding which is against the employer for not providing maternity benefit to a woman who is entitled to under the code will be compulsorily given an opportunity to be in compliance with the relevant provisions by the way of written direction shall put down a time frame for such compliance and if the employer complies with such direction within such period then no such proceeding will be initiated against such employer.

However, the strict provision is that no such opportunity as mentioned above will be provided to the employer if it is found that such violation of not providing maternity benefits to the entitled woman is repeated within a period of three years from which the first violation was committed. In these cases, the prosecution shall be started in compliance with the provision of chapter XII of the code on social security, 2020.

Trade Union Office bearers can’t file a complaint in Court

A new change has been brought with respect to filling complaints. In the earlier legislation, Maternity Benefit Act, 1961 Section 23 allowed any office bearer of trade union registered under Trade Union Act, 1926 of which an aggrieved woman is a member or a voluntary organization registered under Societies Registration Act, 1860 to file a complaint regarding the commission of an offence under this Act in any court of this competent jurisdiction.

In the present code of 2020, no such office bearers and voluntary organisations can do so. Under Section 136 of the code, the present power is only provided to the aggrieved woman and the Inspector cum-facilitator to approach a court of competent jurisdiction to take cognizance of the offence which has been committed. This change brought by the code in leading to a more archaic sense. There can be numerous circumstances when the woman itself cannot approach to seek justice due to several reasons. There still needs a revision on the part of the legislature to further analyses by keeping every possible situation in mind.

Conclusion

While the Social Security Code aims to recognize the informal sector and bridge the existing disparity between employers and workers in the formal and informal sector, this article highlights how the framework has brought changes to the Maternity Benefit which is provided under Chapter VI of the Code. As far as the analysis of the code is concerned the new misses into certain aspects to address that are major ensuring the efficacy of the provisions of the code. One of the major setback while specifically focusing on the maternity benefits is the applicability part which is only applicable to 10 or more workers working in the establishment. The code is ignorant on the part of covering unorganized sector as a whole, their social security is most importantly hampered. These key reforms require robust discussion a debate to ensure that all possible concerns will be addressed for the security within the labour market.

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How to file a cyberstalking complaint

By

Abanti Bose

-

November 20, 2021

0

Cyber Forensics — Image source - http://bit.ly/2J8Cez4

This article is written by Saurabh Kaushik, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).

Table of Contents

Introduction

Cyberstalking, as the name suggests, is related to stalking that takes place online, as the term “cyber” suggests – relating to or characteristic of, the culture of computers, information technology, and virtual reality. Stalking means to pursue or approach stealthily, “a cat stalking a bird.”

In the beginning, one does not even realise that they are being stalked. Like a cat stalking a bird, the stalkers are quite careful about it. Initially, everything will be like sunshine and rainbows; stalkers initiate normal, amicable conversations to lay the trap, and once the victim starts responding to them, they would realise that they are being stalked online.

Cyberstalking is different from physical stalking. Here there is no direct communication with the victim. But the impact is just as intense as offline/ physical stalking. People are suffering from various mental health issues as an impact of being stalked.

The offence of cyberstalking as defined under Section 354D(1)(ii) of the Indian Penal Code is based on the principle of “nipping in the bud”, as the only requisite for the culpability under the said section is a man who “monitors” that’s it and nothing more is required. The intention of the legislature is to make the act of monitoring per-se punishable, as they realise that if this constant monitoring is not stopped, then it will lead to more serious offences, like sexually coloured remarks, sexual exploitation, defamation, criminal intimidation, outraging the modesty of a woman and other cybercrimes.

As the numbers of internet users are increasing like anything in India, it is essential to have a dedicated redressal mechanism to deal with this ever-growing menace of cyber-stalking which is affecting our mental health.

This article deals with what is cyberstalking, how it is different from offline-physical stalking, how the act of cyberstalking can lead to more serious offences against women and children and what measures are being taken by the Government of India and other stakeholders, as well as suggestions as to what other measures can be added.

What is stalking?

General definition -pursue or approach stealthily, “a cat stalking a bird”

Offline Stalking- 354D(1)(i) Indian Penal Code,1860. Any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman.

Online Stalking- 354D(1)(ii) Indian Penal Code,1860. Any man who monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking.

Acts which do not constitute the offence of stalking either offline/online, despite being acts of constant pursuing, if done because of the following reasons as provided under the proviso to 354D Indian Penal Code,1860.

i) It was pursued the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) It was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) In particular circumstances such conduct was reasonable and justified.

Liability for stalking under Section 354D(2) Indian Penal Code,1860

On first conviction -Whoever commits the offence of stalking shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and

On a second or subsequent conviction -be punished, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

The offence of offline stalking differs from the act of online stalking as per the above-said provisions

To constitute the offence of offline stalking under Section 354D(1)(i) of the Indian Penal Code, 1860 there must 3 acts, 2 by the man and 1 by the woman as follows:-

1^st act by man- there should be an act of pursuing by the man for the woman.

2^nd act by man- after following, either contacts or attempts to contact the woman, with the purpose to foster personal interaction repeatedly.

Here personal interaction refers to friendship and not sexual interaction, otherwise, if it is for sexual interaction, then it would attract culpability under section 354A for sexual harassment.

Repeatedly– the act of following and contacting or even trying to contact has to be repeated, an isolated act would not be considered as ‘repeatedly’.

3^rd act (not literally 3^rd in chronology) by the woman-

The woman must have clearly indicated disinterest, implying that, if the woman hasn’t shown clear disinterest, that too by unambiguous indication to the man who is following, contacting and/or trying to contact her, then the offence of offline/physical stalking would not be constituted.

All these three (3) requisite ingredients have to take place, two by the man and 3^rd by the woman, then only the combined act would amount to stalking under section 354D(1)(i).

To constitute the offence of online- cyberstalking under Section 354D(1)(ii)-

The only mentioned requisite is “monitoring” and nothing else is required. Here the woman is not required to show disinterest. This offence of stalking is based on the concept of nipping in the bud, which is to stop (something) immediately so that it does not become a worse problem. The act of monitoring itself is so serious that it has been made the only component to constitute the offence of cyberstalking under the said section, as the intention of the legislatures was that it needs to stop at the moment of just “monitoring”.

Other associated offences with the offence of cyber-stalking are as follows

Under the Indian Penal Code

354A Sexual harassment

A man committing any of the following acts—

a demand or request for sexual favours; or

showing pornography against the will of a woman; or

making sexually coloured remarks shall be guilty of the offence of sexual harassment

Sec 499 Defamation.

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

Sec 503 Criminal intimidation.

Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Sec 509 Insulting the modesty of a woman.

Any word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman,

Offences in Information Act, 2000

Section 67– Punishment for publishing or transmitting obscene material in electronic form

Section 67A– Punishment for publishing or transmitting of material containing the sexually explicit act, etc., in electronic form

Section 67B– Punishment for publishing or transmitting of material depicting children in the sexually explicit act, etc., in electronic form

How to file a cyber-stalking complaint

Registration of written complaint

The victim must register her written complaint to their native cyber-cell in the city. If there is no cyber-cell in the city, then they can approach the local police station with the written complaint to have their complaint registered. The written complaint must contain all the known sequence of events along with the id and email of the alleged stalker.

In case of non-acceptance of the written complaint

In case of non-acceptance of the written complaint by the police authorities, one can approach the Commissioner of police for directing the police officers to register the complaint.

If the Commissioner of Police also fails to do his job, then one can approach the area judicial magistrate either for seeking directions for the concerned police authorities to register the complaint or the person can also ask the magistrate to directly take cognizance of the written complaint.

Right for legal assistance

On reaching the police station with the written complaint, the woman is entitled to legal counsel who can help her to file a case.

Privacy of the complainant

The statement of the woman must be taken down by the women police officers or in their presence to make the complainant comfortable while narrating her ordeal and also the identity of the victim must be kept secret.

Why the Registration of cyberstalking complaints must be promoted?

The offence of cyber-stalking is based on the rationale of “nipping in the bud”

The offence of criminal conspiracy as under Section 120B Indian penal code, 1860 is also based on this same rationale of “nipping in the bud”, and for culpability under the said section, meeting of minds is sufficient for doing an offence and no further acts reus (actual act) is required in furtherance of the meeting of minds(conspiracy) committed. As the act of conspiracy itself is so dangerous to the society that the legislature has made this meeting of minds per se culpable.

Registering of complaints will act as a deterrent to not only the culprit of the cyberstalking but also for others

The Registration of a complaint will act as a deterrence for not only the culprit of the cyberstalking but also for the society, as the culprit will be discouraged from committing the same act again, as the liability/punishment for cyberstalking for the second or subsequent act is greater than the first act of staking. Also, the others will get the message equally loud and clear that this cyberstalking attracts penal provisions and serious liabilities.

The social stigma which would otherwise be there in cases of offline/physical staking is not there in the cases of cyberstalking

Generally, when the physical staking takes place, and the woman thinks of reporting the said incident, she also thinks of the social stigma attached to it. That is, how people will react to it, people will discourage her from proceeding with the complaint as the belief is that such things are routine, she will be told that if she reports the matter then the accused will do more harm to her, nobody will marry her if the incident becomes common knowledge, and her parents and family will restrain her from going out. But these things are unlikely to occur as a result of cyberstalking, as this act happens on the internet and nobody will ever come to know that the complainant has been ever stalked, not even her family if she chooses not to disclose it.

Suggestions as to how the growing menace of cyberstalking can be curtailed by the following

Government of India

The government should consider a pan India helpline for assisting in issues related to cyber-crimes (stalking) like 112.

As the numbers are drastically growing for internet users and the majority of the users are not aware as to how to address this very serious prevailing issue of cyberstalking, there must be a number that can not only answers the FAQs regarding the issue at hand but also counsel that any stalking must be reported otherwise it may boost the morale of the offenders and may result in more serious offences as mentioned above.

The reason for the Pan- India helpline is that the issue of cyberstalking is not bound to be addressed by the territorial limitations of a particular place.

Number 112 is a centralised Emergency Response Support System (ERSS), working round the clock, tending to complaints of all nature from the public. Instead of dialling different helpline numbers such as police (100), fire force (101) and ambulance (112), the public can now call on 112 for quick, unified response services. The ERSS project is in line with the recommendations of the Justice Verma committee in the backdrop of the 2012 Delhi gang-rape case.

Social media companies

All social media platforms have their redressal mechanisms to deal with the cyberstalking complaints but they must be apparent as the warning mentioned on a cigarette pack, that is, there should be a dedicated window like advertisements running 24X7 on these platforms, which tell step by step as to how to make a complaint and also the legal consequences one may face.

Schools

Schools must conduct awareness camps on the school premises, and not only students but parents must also be invited and make sure that they also take part in those camps. The curriculum must primarily include:

How to file complaints in such cyberstalking matters, and
What consequences one has to face if anyone indulges in such activities, not only legal but also career-wise.

Cyberstalking must be discussed by the school teachers with the parents during the parents’ teacher’s meeting, to apprise the parents of the new age reality where children are facing the threat of cyber-bullying. Parents must make their children comfortable so that they can talk to their parents and teachers if they are facing or ever face cyberbullying or stalking.

There must be a help desk in the schools to address the issues related to cyberstalking. So that students can approach that desk when they need it.

Schools must take stringent actions against those students who engage in cyber-stalking. They must be suspended, and their names must be put on the notice board to set the example as a deterrence for others.

Individuals can keep in mind the following while using the internet

Protect all of your electronic gadgets with passwords and a finger lock and change them on a regular interval so that no one can hack them.
Maintain your privacy on social media platforms,

Never mention your personal information and family information on social media and always make your account private and keep the data set to ‘close friends’ only.
Never update your current location or places you are visiting on social media and also, remove events you are about to attend in future.
Never add unknown persons to your social media account to increase your number of followers.

Things to keep in mind while logging in:

Always use the secured site for browsing information and making payments.
Always remember to log out from any website or application when you are not using it.

And if you find anything wrong, take the screenshots and log the complaint as soon as possible.

Conclusion

There is a saying, that is “Nothing is more powerful than an idea whose time has come”. So does the accessibility to the internet is what whose time has come. But like every new change or growth, the internet too comes with its own advantages and disadvantages. So it is better to first understand the technology and then use it accordingly with utmost care, otherwise such a powerful thing will make us prey in the hands of others.

The government of India has made rules specifically dealing with social media platforms and has also declared privacy as a fundamental right by the apex court. Now the challenge to curb the menace of cyber-stalking is quintessential for all the associated stakeholders.

All said and done, to actually handle the issue at hand, that is to stop / control the act of cyber-stalking, it is imperative that the victim/s decide to raise their/his/her voice (written complaint) at the appropriate forum, otherwise all the measures which have been put in place to curb this would prove to be futile. Even if all the above mentioned suggestions would be implemented, nothing would bring change.

With the increasing use of internet and the social media, the acts of cyber-stalking/bullying are causing serious mental issues to the people who are suffering from the same, like; depression and anxiety, low self-esteem, academic issues, suicidal thoughts and self-harm, humiliation at the hands of others.

So keeping in mind the consequences of cyber-stalking and the intention of the legislature, which has made this act an offence based on the principle of “nipping in the bud”, let’s take a pledge that we as a citizens of this country would raise our voices to curb the menace of cyber-stalking.

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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Can idols be registered under the Trademark Act

By

Rachit Garg

-

November 20, 2021

0

TrademarkLaw (1) — Image Source: https://rb.gy/ulne13

This article is written by Harmanjot Kaur Kang and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

While this Janmashtami, I was visiting a local temple, I was praying in front of idols and was completely mesmerized by the pomp and beauty of how they were decorated. This was such a blissful incident. However, when I went to the Shiva’s sanctum sanctorum of the temple, I looked into the eyes of the idol. Karikaye and Shiva were both idols kept in the same room. However, they were so similar looking at them, that I had to read the description of the name written beside the idols to pronounce the correct name.

Table of Contents

Introduction

In today’s world where everyone is allowed to move freely and express their views on controversial topics, we forget to take the time away from the crowded world and go into our deep thoughts. Today, even according to the constitution and the landmark judgement of the Sabrimala case, we see numerous verdicts breaking the traditions and customs. Where once India was so into a caste system that certain classes were even forbidden to go to a temple, today we see that we are far more liberal than what was there in India before.

What does the law say?

According to Section 2(e) of the Trademark Act, 2000:“certification trade mark” means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which is certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified and registrable as such under Chapter IX in respect of those goods or services in the name, as proprietor of the certification trademark, of that person.

In this definition, we see the terms such as ‘distinguishable’ which marks the originality and unique character attributed to a particular product or object. This is also accompanied by the words such as accuracy which means that there is the correct description of the related product. Moreover, the brand value and the intangible assets related to credibility are established in this way.

How does law and religion intertwine

We see that Article 25-28 of the Indian Constitution guarantees all the citizens the freedom to practice, propagate and profess any religion of their choice. The term ‘Secularism’ is termed as neither any interference by becoming pro-god or anti-religious. However on reading articles 19, 14, 21 trijunction; we see that the State has to take reasonable measures to protect individuals against fanatics or chauvinistic people.

What are the international conventions

According to WIPO Convention on Intellectual Property: A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights.

Now, here the controversy again arises about the term ‘goods’. Can idols be termed as ‘goods’? Now we have to dive into a little amount of jurisprudence about the subject.

Laws related to idols

According to the ‘Sale of Goods Act, 1930’ goods refers to anything which can be moveable in nature and is not attached to the ground. We always see idols placed on a higher pedestal for the mark of reverence and devotion by the devotees. So, here both the conditions are fulfilled.

However, if we go deeper into jurisprudence as a separate subject, we will observe that idols are given the status of a ‘legal entity. People donate their land to charity in the name of God. Here God is named as a ‘legal personality who is eligible to obtain gifts and transfer of ownership of the property.

On the contrary, it is the ‘Trust’ who is managing a particular temple, in whose name the deed is signed. This again creates a grey area about the true nature of ‘idols’.

If we again go by the previous definition of idols as ‘goods’ then we see that people tend to buy mini-idols for their homes as well. However, is the ownership of land transferable to these idols, would again create massive havoc and controversy.

Arguments supporting the view

This would help to differentiate idols very beautifully

As the idols will be carved in a specific way and the looks of the sculptures would be very well defined, people can easily differentiate between various idols.

This would help to earn more revenue

Because of a new and specialised field of sculpting and carving, people would now start taking fine arts and related degrees seriously. Due to a well-defined and structured fashion of design, there will be more and more innovation.

A new area of law related to IPR would be established

Similar to the design law and Trademark act, a specialized IPR related field will be created in case of laws related to IPR and religion.

Specialised people would be appointed as sculptures to carve the Art

There could be specialised people who would be able to promote the uniqueness of the art. Similarly, we see that this would provide uniqueness to the craft. This in turn would promote Intellectual Properties Act as well.

The monopoly of the ‘Trusts’ managing the temples will be less influential

This could lead to less dominance in the case of ‘trusts’ as there can be the case where the trusts would be less powerful now. The accountability of the income of the trusts can be seen here. We can find out how much donations they get, how these donations can be used for social welfare.

Less socio-cultural discrimination

Due to the Judgement’s abolition of the caste system, people will be more liberal and will increase overall cooperation and harmony.

More gender equality

As related to the Sabrimala Case Judgment, where the judiciary intervened to create a balance between Article 25-28 and Article 14, 19, 21 of women were protected by the Hon’ble Court which is appreciable.

Arguments against the view

This can create disturbance as well. The probable ways are discussed below:

More Communalism

There can be a communal uprise due to the emphasis of one religious dominance. This can be compared to the Marxism Revolution, which is similar to those of Karl Marx, who has termed religion similar to opium, which just ignores the pain and thinks that it does not exist at all.

Changes similar to demonetisation

This could also lead to changes similar to demonetization. In this case, the rights would be curtailed and perished. However, we see the successful implication of the Uniform Civil Code in the case of Goa, which could be possible if everyone would cooperate.

Curtails the Article 25-28 of Indian Constitution

This monopoly would lead to an infringement of the secular character of the constitution. Additionally, we see the right to profess, practice and propagate any religion would be in some way missing here. Therefore, it would lead to the infringement of fundamental rights.

The monopoly of the craftsmen and sculptures

The craftsmen and sculptures would not allow anyone to have an idol for less price. This would cause a limited choice for the consumers. This can result in trade cartels and a hike in the price.

Who would be claiming himself above God?

In such a case it would be an abrupt situation as who will claim that this God’s sculpture was carved by me. Who will become so arrogant to say this? Fanatics will again start their controversy.

Change in the status quo, even if a rickshawala would have put it on his cart for the religious purposes

Even the putting of the images of the Gods and Goddesses on the rickshaw etc. can make a person liable for the trademark infringement.

The killing of the small-scale businesses

In case someone was running a small pottery shop or a small sculpture shop, due to huge competition, there would be a collapse of the small businesses.

Are there any other similar instances?

Tirumalli Prashaad

In the case of Tirumalli Prashaad, registered as the GI Tag, it is again a grey area. There are no clear boundaries of whether it is a viable decision or not. The prashaad would soon be named with a ‘Trademark’ in case the decision would be pronounced.

No Photography in Golden Temple

There is no right to have photography in the Golden Temple. However, on careful analysis and survey, it can be scrutinized that there are a very small fraction of people who follow this rule. In the tortious cause of Webb vs Bird that no one can hold the right to sunlight, right to air and space.

Khajuraho Temple and unclear laws about nudity & obscenity

On one hand, the law evokes the provisions related to nudity and obscenity as punishable under Section 262 of IPC. However, we see instances where Khajuraho Temple is displaying erotic poses and still raising no controversy. Why is this so? Why has the law been so obscure? It is a surprise that such a piece of art is even given a place on the UNESCO Heritage list. However, the law is silent on the criteria of the selection in the UNESCO list vs. the Section 262 controversy.

Myntra case of the logo

People were very quick to respond to the Myntra case of the logo, representing the legs apart position, which was termed as obscene. However, in the case of criteria of the selection in the UNESCO list vs. the Section 262 controversy, there is a deep silence. Is it such that the implicit provisions of ‘privity of contracts’ under the Indian Contracts Act should be interpreted in a broader manner in the Indian law; such that, in case it would be beneficial to India, the thing would be implicitly agreed with a shy smile?

Are there other such grey areas in IPR as well

What would have happened in case Gita, Mahabharata were also having copyright?

According to the rule under the copyright to be of the lifetime of the author plus 60 years of age. However, considering Gita and Mahabharata as the ‘living soul’, it would have been a difficult job to interpret the exact position of law. As Gita is already a living soul, then why are the shlokas of Gita and Mahabharata allowed to run across Instagram pages and YouTube videos?

In the light of this topic, where we see today that there are various Newspaper controversies such as copyright strikes in case of circulation of newspaper in the Telegram groups for free.

Digitized format of Japji Sahib and other related areas:

Similarly, the status of a ‘living God’ given to Sikhism religious book ‘Shri Guru Grantha Sahib’ as a living God. However, if we apply the Copyright Act here, then even the digitalization and the free licensing of the religious text as the android apps and iOS apps would also be controversial. Who has been given the right to license? What were the governing laws? Who were the competent authorities?

What can be the way forward

With the constant evolution and the bold judgements with an impartial mind such as Sabrimala Case, Triple Talaq Case, Dissolution of Muslim Marriage Act, 1939, or the decision to allow Muslim women to have maintenance post-Iddat period, the judiciary is taking small baby steps towards modernisation. The legality of homosexuality, same-sex marriage are some other instances where bold decisions have been taken keeping an eye on the changing era and trends.

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Conduct of seller in the acquisition

By

Shoronya Banerjee

-

November 20, 2021

0

img_102557_merger (1) — Image Source https://rb.gy/qlvqkn

This article is written by Vinay Yerubandi, pursuing a Diploma in M&A, Institutional Finance, and Investment Laws (PE and VC transactions) from LawSikho. The article has been edited by Tanmaya Sharma (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).

Table of Contents

Introduction

In a typical acquisition transaction, the acquirer conducts due diligence and assumes that the condition of the company at the time of conducting the due diligence and at the time of acquisition will be substantially the same. The best way to get the appropriate value through the transaction, for the acquirer, is to make sure that the business operations of the target company between the signing and the closing will be the same as how they operated in the past. For this, the acquirer does not want the target company to make significant changes to its business, organizational structure, and any other material aspects during this period.

For this, the acquirer and the target company agree on terms that are commonly known as interim operating covenants. These provisions of the acquisition agreement regulate the functioning and the conduct of the target company in the period between the signing and closing of the deal. These provisions are significant in driving the deal forward as they provide the acquirer with an assurance that the business of the target company won’t suffer any significant changes at the time of closing the deal.

Interim operating covenants also regulate other aspects of the transaction like establishing various rights and duties between the buyer and seller, concerning activities like the transitional services that are to be provided by the target company to the acquirer, acquirer’s access to information of the target company, regulating target company’s intellectual property during this interim period, etc.

Target company’s compliance with the interim operating covenants is a condition to closing in most acquisition agreements. If the target company is found breaching the interim operations covenant, the acquirer gets the right to terminate the acquisition agreement or refuse to complete the transaction. This right is subject to the acquirer’s right to cure the breach if any, provided in the agreement. So, by including this provision in the acquisition agreement, the acquirer will be protected from any risk and uncertainty that can stem out from any material change in the business after the signing of the deal and this risk will be shifted on to the target company, who is in the best position to deal with it.

Preference of acquirer and the target company

The acquirer would want to include the comprehensive list of actions which the target company is required to undertake, forbidden to undertake, and actions that are permitted with the acquirer’s consent. The intention is to construct a rigid provision so that the target company has fewer chances of conducting an activity that is not in the ordinary course of a business unless otherwise agreed between them.

Whereas, the target company would want fewer restrictions on its activities so that it is less likely to violate these provisions inadvertently. It expects to have flexibility in taking crucial business decisions and conducting its activities.

“Ordinary Course of business” Covenant

According to Marcel Telles, an eminent business person, “A company can seize extraordinary opportunities only if it is very good at ordinary operations”. Acquirer expects the target to function in its ordinary course of business till the time of closing of the deal. This provision is also intended to disincentivize the owners and the management of the target company from engaging in self-serving conduct in the pre-closing period as the assets of the target company are no longer owned by them once the closing occurs.

The main purpose of an ordinary course covenant in an acquisition agreement is to ensure that the acquirer acquires the target company in the same condition (in substance) as it was in when the agreement was entered. Almost every acquisition happening in the market has this protection to the acquirer. But the scope of operation of this provision may be different in different agreements as stated below.

1. “Consistent with Past Practice” qualifier

If the ordinary course clause in an acquisition agreement states that “the conduct of the target company until closing shall be in the ordinary course of business consistent with past practice”, then the interpretation of the term ordinary course is in consonance with the past practice of the company. So, in these cases, the target company is not allowed to perform any activity that is not consistent with its past practice. If the target company was engaged in unusual conduct in the past, when compared to other companies in the industry, then this qualifier will give greater scope to conduct its activities in the pre-closing period. So, the acquirer is required to understand the past practices of the company before including such clauses because this qualifier has the ability to both increases or decrease the scope of the target’s activities.

2. “Materiality” qualifier

In some agreements, this ordinary course clause is further subjected to a materiality qualifier. This qualifier is beneficial to the target company as it increases the flexibility to conduct its business activities in the pre-closing period.

3. “Efforts” qualifier

In some acquisition agreements, the ordinary course clause includes phrases like “best efforts” “reasonable efforts” and “commercially reasonable efforts”. Generally, the conduct of the target company is not affected by any third party unless otherwise agreed in any agreement. But there can be scenarios where its conduct is affected by the decisions of third parties. This clause intends to not shift the risk onto the seller in cases where despite taking all reasonable measures the target company is not able to conduct its business in the ordinary course.

Dealing with actions outside the ambit of the ordinary course of business

COVID-19 Pandemic had a massive impact on the acquisition transactions which were signed in the pre-covid period and were in the pre-closing stage at the time of the beginning of the pandemic. Many sellers have had to make significant changes to their businesses due to the COVID-19 outbreak which can’t be accepted as in the ordinary course of businesses by the acquirer. This created greater difficulties for the target companies to cope with the pandemic along with the ordinary course provision. So, the parties must give due care and provide for these unforeseeable situations in the acquisition agreement.

One way to do it is to let the parties decide during the negotiation, the list of actions that are outside the company’s ordinary course of business but are permitted to be performed such as; making investments up to a certain amount, incurring capital expenditure, etc.

Another way to deal with these events is to specify a procedure in the agreement to obtain the buyer’s consent for any action outside the scope of the ordinary course. It includes laying down the provisions regarding:

appointing a person by the acquirer to whom requests for consent should be made;
specifying the time limit in which acquirer shall respond to a request;
providing for “deemed consent” if the acquirer fails to respond in time.

It is also advisable to establish a concrete communication mechanism like conducting recurring weekly calls for informing about the actions of the company and providing periodical updates to the disclosure schedules to the acquirer.

Other interim operating covenants in a typical acquisition agreement

Non-solicitation: Under this clause, the target company is prohibited to solicit, negotiate regarding the proposed transaction with any person except the acquirer. The objective behind this provision is to protect the acquirer from losing out on the transaction due to the reason that a third party may quote a higher bid than the acquirer. This provision is often referred to as “No shop Clause”.
Right to access information and facilities: Often during the negotiation stage of an acquisition, the acquirer expects to have the right to access certain manufacturing facilities, offices and some private information of the acquirer. At the same time, the target company expects to restrict access to its private activities as it may interfere with the functioning of the company. This clause in the acquisition agreement provides for the rights of the acquirer to acquire information of the target or to inspect its facilities.
Transitional services: Under this clause, the target company agrees to provide its services and know-how related to the assets, infrastructure, systems acquired by the acquirer from it for a specified time to support a smooth transition of ownership without any interruptions or inconvenience in the functioning of the business.
Duty to inform: There will be many events concerning the business of the target company happening between signing and closing of the deal. Some of these events may impact the decision of the acquirer to acquire the business. Under this provision, the target company gives an undertaking that it will inform the acquirer about the information not limited to the following:

any material event that might affect the value of the business
any warranties provided by target company becoming incorrect
periodic disclosure schedules.

Non-competition: In some situations where the acquirer and the target company are in similar business or product lines, the acquirer asks for an undertaking to ensure that the activities of the target company in the pre-closing period will not compete with the businesses of the acquirer.

Approval rights of the acquirer: In the acquisition agreement, the target company includes some actions which can be performed by the target company only with the prior approval of the acquirer. In a typical acquisition agreement, these matters include actions like entering new contracts, increasing capital expenditure, settlement of disputes, disposal of assets.

Conclusion

Provisions regarding the conduct of business during the pre-closing period of acquisition should be negotiated with due care and proper forecasting by both parties. Even so, the risk of another pandemic-like situation cannot be taken away. It is essential to prepare for uncertain events and predetermine the remedies for the same during the stage of negotiations. If not, it can create a big barrier to either of the parties in the transaction. In this article, the author tried to analyze the importance and explain different kinds of provisions related to the conduct of business in the pre-closing period of an acquisition transaction and also tried to address the problems with these provisions on the occurrence of unforecastable events.

References

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