Aerial hijacking and International Law : a critical study

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November 12, 2021

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This article is written by Anurag Singh from ILS Law College, Pune. This is a comprehensive article that critically analyses aerial hijacking and international law related to the same.

Table of Contents

Introduction

One of the greatest inventions in the history of mankind has to be the invention of the aeroplane. This is because, before this invention, it took a lot of time to travel from one place to another. However, after this invention, the time of travel has significantly reduced. Therefore, its use over the period of time has increased exponentially as it has reduced a major inconvenience which is the travel time, moreover, it is the most comfortable form of transportation. Interestingly, everything about civil aviation is not happy-go-lucky. Repeated incidents of aerial hijacking have tarnished the image of this convenient form of transportation. In this article, we are going to discuss in detail this vast topic of aerial hijacking.

Aerial Hijacking: a brief study

According to Alona E. Evans, an American scholar “aircraft hijacking is a contemporary addition to the roster of international and national crimes and the necessity for its control at the international and national level is only beginning to be recognized by the States.”

Aircraft hijacking is the unlawful seizure of an aircraft by an individual or a group. Moreover, it has also been explained in Article 1 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 that “any person who onboard an aircraft in flight: unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or is an accomplice of a person who performs or attempts to perform any such act commits an offense”.

Whenever any aircraft is hijacked it is expected that the people hijacking the aircraft want something in return. There can be several motives fuelling these hijackers or there can be only one. In very few cases, they take the passengers as hostages and ask for a monetary ransom. This is because unlike car hijacking and sea piracy, theft or robbery is the least of their concern. However, in most cases, aerial hijacking is done to prove a point to the government concerned or demand a release of high-profile prisoners of the concerned hijacking group. This is the sole reason why it is considered a heinous crime in international law and is termed as a terrorist act all around the globe.

In some cases, the pilot has to fly according to the will of the hijackers or in some cases, the hijackers themselves fly the plane and use the plane as a weapon and target a particular location (notably in 9/11 attacks). Some countries like India have shown an inclination towards negotiating with the hijackers. However, countries like the United States have a very strict policy to avoid negotiating. In most cases, the country negotiating agrees on some of the terms, or not all, to secure the lives of the passengers. For example in IC 814, where the release of all the terrorists in Indian jails was demanded, however, the release of 3 terrorists was negotiated.

International Law and its role in aerial hijacking

Due to an increase in cases of hijacking in the early 1960s, the situation worsened to an extent where a country that is considered a superpower in the world ( the United States of America) recorded 160 incidents of hijacking that took place between May 1961 to January 1973. Therefore, it was evident that there was a dire need for international laws that regulated aerial hijacking. Moreover, in order to solve the aforementioned problem and punish the hijackers, several treaties and conventions have been formulated and adopted by countries all around the globe, they are:

The Tokyo Convention, 1963

The Tokyo Convention, 1963 was signed in Tokyo at a diplomatic conference on September 14, 1963. However, it came into force on December 4, 1969

Article 1 of the Tokyo Convention, 1963 was the first Convention that penalized the act of ‘jeopardizing the safety of person or property’ under civil aviation, while the aircraft was engaged in international aviation. Moreover, the signatories agreed that if there was an unlawful takeover of an aircraft or a threat of it on their territory, then they would take all necessary measures to regain or keep control over an aircraft. The captain can also disembark a suspected person on the territory of any country, where the aircraft lands, and that country must agree to it, as stated in Articles 8 and 12 of the Convention.

Furthermore, it provides that the State of registry of an aircraft is competent to exercise jurisdiction over the unlawful acts committed on the onboard aircraft. Moreover, it also stated that in the case of anticipation or commission of such unlawful activities, it obligates all the countries that are party to this treaty to restore the control of the aircraft.

The Hague Convention, 1970

The Hague Convention, 1970 was adopted by the International Conference on Air Law at the Hague on 16 December 1970. Moreover, the Convention came into force on October 17, 1971.

The Tokyo Convention was the first global intention to suppress offenses committed onboard a civil aircraft. However, it failed to recognize the act of hijacking, sabotage, and terror attack, which left a massive loophole in the Convention. Therefore in order to cover these loopholes and due to the increase in the number of hijacking year after year, that is when Hague Convention, 1970 was formulated.

However, the international community, ICAO Legal Committee, submitted a draft to ICAO at Hague. This Convention aimed to suppress such terrorist attacks on civil aircraft, by punishing the act of ‘unlawful seizure’ of an aircraft. Moreover, it recognized hijacking as a separate offense with punishment as severe as capital punishment. The Hague convention obligates its members to either prosecute or extradite offenders guilty of hijacking.

The Montreal Convention, 1971

The Montreal Convention, 1971 was signed on September 23, 1971. Moreover, it came into force on January 26, 1973.

The Hague Convention was a great improvement from the Tokyo Convention. However, it failed to recognize the fact that these aerial attacks were well planned and people who controlled these attacks from the outside are also equally responsible, along with the ones committing the act of unlawful seizure of the aircraft. Furthermore, it still provided for no relief or reward of damages to the innocent passengers and crew members hijacked aboard.

Therefore the Montreal Convention, 1971 further extended the scope. One of the key advancements in this legislation included that it penalized the ones that were not on board. The Montreal Convention greatly resembles the Hague Convention but also extends to acts of unlawful interference against international civil aviation.

The Montreal protocol, 1988

All the aforementioned conventions aimed to cover all the drawbacks that were present in the onboard terrorist experience of civil aviation. However, it will not be out of place to state here that all the 3 conventions saw the terrorist activities with a lens of unlawful activities, and seizure of an aircraft and failed to recognize the fact that, any terrorist activity within the vicinity of the aircraft such as the airport tends to cause an equal amount of chaos.

Moreover, this issue was addressed in the Protocol and the scope of the Conventions was expanded from in-flight to in-service. Wherein the in-service under the ambit of this protocol was defined from the time pre-flight preparation starts by ground personnel or crew, until twenty-four hours after landing. Therefore it is crystal clear that this Protocol was aimed to not only protect the aviation safety onboard but also the airport facilities.

Scope for loopholes

International law relating to air safety is to be found in the Convention relating to the regulation of Aerial Navigation, 1919 which recognizes that every nation has exclusive sovereignty over the air space above its territory. Therefore, with aerial hijacking taking place more often, this rule became even more relevant. This is because the international customary law is followed by a practice that no other states should give assistance to any terrorist attacks.

Even though countries are so intolerant when it comes to terrorism. However, extradition of the criminals that are guilty of the crimes, is the single biggest insufficiency in not just the aerial hijacking laws but in all international laws in general. Moreover, customary international law provides no rule which imposes a duty to extradite, and since international law maintains no central enforcement agency or universal sovereignty to affect compliance with established international norms it relies upon voluntary compliance of participating States to advance international order.

Therefore, these criminals in some or the other way find their way around the law and become the political refugee of the country they were found in or takes an uncomfortably long time to extradite, and the essence of delivering justice is lost after that long. This needs to be amended in international law, guilty personnel should be extradited to the country that they have committed the crime against so that they are punished and the people on the aircraft that suffered from trauma from that incident or even lost lives get justice.

Indian laws for aerial hijacking

For the longest period of time, India followed the Anti-hijacking Act, 1982. It was formulated in accordance with the Hague convention, as India was one of the countries part of the convention. However, these should have changed a long time back because these laws were not aligned with the international conventions. Somehow the need to amend the laws was not felt because the attacks did not take place as often as they took in the 1970s and the security had improved after the hijacking incident that took place in Kandahar.

However, the government in 2016 felt the need to repeal the laws in place and formulate new laws as they were old and archaic. Subsequently the Anti hijacking Act, 2016 was passed, it brought about many changes that were needed and due for a long time. For example, in the earlier version, it only punished the offenders that were present on the aircraft but with all the technological advancement taking place, there had to be an inclusion of the same to prevent such unlawful activities in the future. Moreover, the new Act covered the term hijacking in the broadest sense.

Furthermore, the new Act also widened the scope of punishment because under the earlier enactment everybody found the way around and escaped the law with ease but now by increasing the scope of in-service and severely punishing the hoaxes (with respect to aerial hijacking) that results in unnecessary chaos, the new Anti-Hijacking Act would still be applicable if the offense of hijacking takes places outside India in an aircraft that is registered in India or is leased to Indians, or when the offender is in India or if the offender is Stateless but is a resident of India, or when the offense is committed against Indians. The Anti-hijacking Act, 2016 looks more effective and aligned with the international treaties of the world.

Conclusion

Aerial hijacking has always been a topic of concern as it brings the whole country to its knees in case of any act of hijacking, and in many cases, many innocent people die because the hostages in such situations are at the mercy of these hijackers. If the government concerned is not able to protect their citizens then it not only brings a bad name to the particular airline but the whole country.

However, now with better security and stricter laws, the incidents of hijacking have been reduced significantly. However, the authorities shouldn’t become complacent of the same because these attacks have just reduced in number, they still haven’t stopped altogether. Therefore the amendments should be made time and again so that the world does not witness another heart-wrenching hijack, where innocent people lose their lives.

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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Important laws and concepts to be known when dealing in the securities market

By

Shoronya Banerjee

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November 12, 2021

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This article has been written by Raunak Sood, pursuing the Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

When dealing in the securities market it is important to know and understand some basic concepts:

Whether the security the investor is going to purchase, is that security a marketable security?
Who is in control of the company that has floated its shares in the market?
What is the corporate governance structure and whether any differential voting rights are present with the existing shareholders of the company?
Is the company professionally managed? If yes, then what are the benefits for the investor?
Who is a wilful defaulter?

With these questions being answered any investor can go and invest in the securities market. A basic answer to the above-mentioned questions will help any novice investor to understand and make a wise decision before buying any security in a careless manner.

6. Marketable security

Whether security is marketable or not has been discussed in various judgments which are summarised as follows:

Norman J. Hamilton v. Umedbhai S. Patel, LNIND

The plaintiffs entered into a contract of purchase of redeemable preference shares with the defendants for the procurement of ordinary shares and redeemable cumulative preference shares of A. Macrae Company (private company), wherein the total sum of money paid for the contract was Rs. 2,77,500 and Rs. 10000 was paid by the defendants as the down payment and the rest of Rs. 26,750 was to be paid in ten annual installments. However, there was a default by the defendants during the fourth and fifth payment, hence the present matter reached the court.

Whether the contract for the purchase of shares is void ? (b)Whether the Securities Contract ( Regulation) Act, 1956 applies to the present matter and the contract?

The plaintiffs argued that the contract was for the sale of shares and transfer of the controlling power within the company, the defendants contended that the contract for the purchase of redeemable preference shares was illegal as per the law laid down in the Securities Contract Regulation Act, 1956, henceforth the court had to look into the aspect of the said Act to apply to the contract between the parties.

Under Section 2(1) of the Securities Contracts (Regulation) Act, 1956 (hereinafter referred to as “SA”) only spot delivery contracts ( the contract provides for the actual delivery of security on the same day the parties entered into the contract or the next day) are allowed, but in the present case, the contract provides for the contract money to be paid in installments, hence it is not a spot delivery contract. According to the court, the shares of a private company are not marketable securities under Section 2(h) of SA because marketable securities are those securities that are of high liquidity and applying the noscitur a sociis rule of interpretation and reading the statute of SA as a whole the court noted that securities of a private company are not “securities” mentioned in Section 2(h) of SA as in the present case the redeemable preference shares are not governed by the SA as the legislative intent behind the SA was to prohibit the speculation of the share price on stock exchanges and no proposal was seen from the side of Gorwalla Committee to regulate the private companies securities whereas the securities which are traded on the Stock Exchange enjoy high liquidity whereas shares of the private company enjoy less liquidity as they cannot be freely bought and sold on the stock exchange, hence SA can only apply to shares of a public company.

In lieu of the aforesaid discussion, it is hereby concluded that the contract between the plaintiff and defendant is binding and legal whereas SA will not apply to the present matter.

Mysore Fruit Products Ltd. and Others v. Custodian and Others, LNIND

The petitioner company received Rs. Four crore ten thousand, from another company for buying the FSSL shares worth Rs. 500 each, but it was contracted between the parties that an outstanding amount of Rs ninety-nine lakhs ninety thousand would be paid by the respondent along with the return of one lakh fifty thousand shares to the petitioner. The whole transaction was to come into effect on a future date of 30^th Sept 1993, but the respondent did not pay the contractual amount of Rs. 99,90,000.

Is the transaction illegal? (b)Whether the transaction falls under the scope of Securities Contract (Regulation) Act, 1956 for an unlisted public company (hereinafter referred to as “SRA”)?

The petitioners argued that the shares of the company were transferable shares and the allegation of the respondent regarding the diversion of money cannot be made a separate ground whereas no fraud was committed on the petitioner’s behalf, it was also contended by the petitioner that forward sale of shares is not prohibited under SRA for a company which is unlisted in the stock exchange. The respondents argued that the contract was about a forward sale which is not allowed under the provisions of the SRA because the shares bought by the petitioner were not listed on the stock exchange.

Under Section 2(h) of the SRA, there is a word of “other marketable securities”, thus it means that the securities should be “marketable” i.e., marketability means buying and selling of shares, hence those securities which can be bought and sold are covered under the provisions of SRA. The sale of shares of a public unlisted company means that even though the public company is not on the stock exchange but still its shares can be converted into some degree of liquidity, hence shares of a public unlisted company are “marketable” in nature. It is also pertinent to note that the SRA promotes spot-on delivery of shares and not the forward sale.

Therefore in lieu of the aforesaid discussion, it is hereby concluded that shares of public unlisted companies come under the scope of SRA and the transaction between the parties is completely illegal.

Bhagwati Developers Private Limited v. Peerless General Finance And Investment Company And Another, LNIND

Bhagwati Developers (hereinafter referred to as “BD”), whereas BD lent some amount of money to the respondent for buying equity shares later on a bonus issue was generated on the purchased shares, but respondent 2. did not give the shares to Bhagwati, a suit was filed in the civil court at Allahabad which was later on compromised and the decree was drawn by the court. Respondent 1( peerless), who was the company that issued the shares, did not allow access to those shares to BD because the shares were registered in the name of respondent 2. BD was aggrieved and hence the present matter.

Whether the contract between BD and respondent 2 is valid? And what is the nature and definition of “security”. (b) Whether the SCR will apply to shares of unlisted public companies?

BD argued in the court that the shares of peerless are not marketable hence Section 2(h)(i) of SCR (“Security Contract (Regulation) Act, 1956) is not applicable and respondents argued that the share to be marketable does not mean that the said share has to be sold off in the market.

According to the court, the only requirement to be a share under SCR is the free transferability of shares, hence shares of public companies not listed on the stock exchange are securities for the purpose of SCR and SCR does not apply to the shares of private companies. In lieu of the aforesaid discussion, it concluded that the contract between the parties is not a valid contract and SCR applies to the shares of unlisted public companies.

Control of a company

For the purpose of this part let’s suppose that there is an equity shareholder with the hereunder mentioned number of shares and the voting right exercised by him is proportional to the number of shares owned by him. The control (defined in Section 2(27) of the Companies Act, 2013) of the said equity shareholder over the company is as follows:

The shareholder has 10% equity shareholding – Such a shareholder is called a minority shareholder because they have very little control over the company whereas they can take part in the said appointment of director to the board from the side of minority shareholders wherein even listed companies have to comply with this provision (Section 151, Companies Act, 2013 hereinafter referred to as “CA, 2013”).
The shareholder has 20% equity shareholding – Such a shareholder acts like an associate company (refer to Section 2(6) of CA, 2013) wherein such company has significant influence on the decision making and they get a chance to appoint a director along with other minority shareholders.
The shareholder has more than 25% equity shareholding – This kind of shareholder exercises a negative control over the company because he has to agree with other shareholders for the passing of a special resolution and is called a significant beneficial owner of the company. The term of “Significant beneficial owner” (see Section 90 of CA, 2013) is having separate rules in Companies (Significant Beneficial Owners) Rules, 2018 they have the right to receive entitlement from their own shares.
The shareholder has more than 50% of equity shareholding – Such a shareholder is highly influential and can take almost all decisions of the company, he is called as having the controlling interest in a company. He can appoint majority of board of directors and can veto the decisions of the board of directors as it can be seeming under SEBI ( Substantial Acquisition of Shares and Takeovers) Regulations, 2011 that majority shareholder can even control shareholder agreements and voting agreements by passing of an ordinary resolution (Section 114(1) of CA, 2013).
The shareholder has more than 75% of equity shareholding – Such a shareholder can unanimously amend the Memorandum of Association and Articles of Association of the Company by a special resolution ( See S. 114 of the CA, 2013) without even consulting the other shareholders along with that he will be able to influence lot of decisions in the company.
The shareholder has 90% of equity shareholding – Such a shareholder has the power to pass ordinary resolution and special resolution but under Section 236 of the Companies Act such a shareholder has to give a chance to the minority shareholders to leave the company and if this is read with section 27 of the Companies (Compromise, Arrangement and Amalgamation) Rules, 2016 then the minority shareholders can sell of their shares to this 90% holder at a reasonable price.
The shareholder has 100% of the equity shareholding – Such a person has complete ownership of the company in other words it is a one-person company as defined in Section 2(62) of the Companies Act 2013.

Corporate governance and differential voting rights

Differential Voting Rights ( hereinafter referred to as “DVR”) wherein a person in the company has less share of the company, he has more voting rights and control, herein control is not equivalent to holding in share. Instruments with DVR assist companies to raise capital from the public without the weakening of control in the company so that any hostile party may not take over because the shares issued will have a fractional number of voting rights.

At present (a) equity listed company, (b) unlisted company with an intention of listing, (c) unlisted company without an intention of listing( Section 43 of Companies Act 2013 r/w Rule 4 of Companies (share capital and debenture) Rules, 2014), and (d) private companies not coming under Section 43 of Companies Act 2013.

Perspective of corporate governance

Generally, in a company share is assigned one vote, it is one of the practices followed even on an international level because the main reason is that the Board of directors tends to work in the best interests of all the present shareholders. A company where the one share-one vote ( hereinafter referred to as “the policy”), the policy is not followed herein an event might happen where the board of directors is focused on the interests of those shareholders who despite having fewer shares in the company are having higher quantum of voting rights, this is a scenario where it becomes unfair towards the majority shareholders who have shares worth more compared to that of the minority shareholders, therefore there can be a divide between the cash flow rights ( the majority shareholders with less voting rights ) and voting rights ( minority shareholders with higher voting rights).

Another reason from the corporate governance point of view is that the policy makes a fair playing field whenever there are events of taking over of the management of a company and it is the most effective solution from a social point of view and improves distribution of control to minority shareholders who can feel empowered to raise their concerns in the company.

Why are differential voting rights desirable ?

Since India is growing and the general trend is that the equity method of raising capital is better compared to raising capital by way of debt, hence DVR is the preferred method of raising capital because it does not dilute the control of an existing shareholder who might be the promoter of the company. This is beneficial to investors as the trust in the founders of the company has made the said company successful and there is no near chance of a takeover of the company and generally speaking, DVR shares have a higher amount of dividend associated with them compared to an ordinary equity share.

Balancing rationale between corporate governance and differential voting rights

There is no doubt that DVR is theoretically against the principle of healthy corporate governance because it violates the one share-one vote rule but in a practical sense, DVR is necessary for the growing economy of India because founders and promoters of a company fear the loss of control may not ask assistance from the public for the purpose of raising capital whereas such companies might excessively resort to debt instruments in which they will have to pay the principal amount plus the interest on that principal amount, hence this is not a very good option for raising capital for financing the operations of a company. Therefore, for the growth and securing the future of the company DVR is a necessary evil that needs to stay even if principles of corporate governance are being violated.

Professionally managed companies and investors

A company running without a promoter

A professionally managed company is a company wherein no promoter is capable of being identified because no such person exerts “control” (as defined under Section 2(27) of the Companies Act, 2013 read with Regulation 2(1)(e) of the Securities Exchange Board of India (Substantial Acquisition of Shares and takeover) Regulations, 2011 by virtue of their shareholding or participation in the management or SHA (special controlling rights) or rights granted under an executed agreement.

In a professionally managed company, firstly, the Board of Directors (“BOD”) enjoys independent decision-making powers, secondly, the daily management functions are carried out by professionals, lastly, no shareholder/director or otherwise shall have the authority to make appointments to the important managerial designations in the company. Therefore, in such a company the AOA, BOD, and shareholders are the ones to define the guiding factors of such a company (professionally run company).

Minimum promoters’ contribution and how this requirement is fulfilled

The requirement of 20% holding of the post-issue capital has been waived off vide Proviso of Regulation 14 sub-clause 1, wherein in the case of a professionally managed company (no identifiable promoter) there is no need for minimum promoter contribution. As per Regulation 31A sub-clause 3(c)(i) read with Regulation 38 of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 points out that there has to be a minimum public shareholding as described in Rule 19(2) and Rule 19A of the Securities Contract (Regulation) Rules, 1957 described hereunder :

Equity shares or debenture convertible into equity shares issued by the company.	Minimum offer and allotment to the public.	Quantum of post issue capital at an offer price
At least 25 percent	Less than equal to Rs. 1600 Cr.
Percentage of each equity or convertible debenture equal to Rs. 400 Cr.	More than Rs. 1600 Cr. less than Rs. 4000 Cr.
At least 10%	Above Rs. 4000 Cr.

Therefore, in the case of a professionally managed company, there has to be minimum public shareholding which is to fulfil the requirement in post-issue capital, herein there exists no promoter holding more than 10% of the voting rights in the listed company.

Regulatory rationale and investor protection with regards to a professionally managed company

It is a known principle of corporate governance that ownership and management should be separate, and shareholders should not interfere in the management of a company. This is the main rationale surrounding a professionally managed company wherein there is no promoter having control over the affairs of the company thereon the ownership and management is acting on an independent basis, hence as far as investor protection is concerned wherefore SEBI under Regulation 31A is protecting the investors herein it can be seen in sub-clause (3) that when a promoter is being reclassified as “public” then he or she shall disclose the rationale behind being reclassified as “public”, under sub-clause 3(b) the mandatory conditions to be followed for being reclassified and sub-clause (8) and sub-clause (9) relating to disclosures of material events and need of a BOD resolution approved under S.31 of the Insolvency Code, thereby show that SEBI is not compromising on the aspects of investor protection as SEBI is acting as a check against abuse of power by any promoter to cheat or defraud an innocent investor.

Wilful defaulters

The Reserve Bank of India (hereinafter referred to as “RBOI”) is responsible for the regulation of this issue of wilful default ( hereinafter referred to as “WD”) by issuing a master circular (“MC”) the RBOI makes the law on this topic. In chapter 12 under the heading of “Disclosures pertaining to WD” under the SEBI ( Listing of Obligations and Disclosure Requirements), 2015, lists the disclosures to be made for enlisting the said redeemable preference shares read with Regulation 102 of the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018 that an issuer company gets disqualified from making a further public offer on the ground that the promoters or directors are declared WD by the RBOI.

What is meant by a wilful defaulter ?

The RBOI issued an MC dated 1.07.2015 (“MCD”) wherein a combined reading of clause 2.1.3 read with clause 2.3 of the MCD states that a wilful defaulter (“Defaulter”) is a person who has not paid back to the bank the loan amount (“Loan Money”) taken by him even though he has the money to discharge the loan money, or has not used the loan money for the said objective for which he was given the money by the bank, or has neither used the loan money for the specific objective for which the loan was obtained nor the loan money is currently present with the WD in the arrangement of assets.

Note that INR 25 lakh is the limit of loan money herein the said promoter/director shall be held to be a WD as per the bar set by the Central Vigilance Commission (“CVC”).

How to identify the defaulter and which procedure is followed ?

Clause 3 read with clause 2.5 read with clause 4 ( including all the sub-clauses ) of the MCD we get that an administrative committee of higher functionaries (“Committee”) takes a sound reasoned judgment with conclusive evidence wherein the defaulter is given 15 days’ time period of challenge the Committee decision.

Process : Evidence of WD has to be examined by this Committee herein a show cause notice is issued to the defaulter and a reasonable opportunity for tendering an explanation to the allegations of WD via the mode of written submission in a personal hearing and after this, an Order recording WD with proper reasoning is passed by the Committee.

Review: Any order passed by this Committee is reviewed by another committee headed by the Chairman and other directors of the lender bank (this was the bank affected by WD) called as Review Committee and the order becomes final after it has been confirmed by the Review Committee but it is pertinent to note that the Review Committee has given the opportunity to be heard to the defaulter.

Supreme Court judgments

SBI (State Bank of India) v. Jah Developers Pvt Ltd, in the Supreme Court it was held that the Committee constituted is not holding judicial power hence lawyer cannot appear before the said Committee wherein the court held that since cruel punishment is meted to a Defaulter under MCD hence MDC should be interpreted in a reasonable manner.

Mahindra Bank v. Hindustan national Glass & Industries, – It was held that WD under clause 2.1 also includes borrower units that have not paid back the loan money as per the said contractual payment obligation of guarantee or derivatives.

Conclusion

When dealing in the securities market it is important that the security should be marketable, a professionally managed company should be preferred while investing, and do a background check to make sure that there is no person on the Board of Directors who is a wilful defaulter.

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/J_0YrBa4IBSHdpuTfQO_sA

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

United Kingdom’s role as a peacemaker : role played by the government in addressing military conflicts

By

Diva Rai

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November 12, 2021

0

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This article is written by Bhavyika Jain pursuing BBA.LLB from Symbiosis Law School, NOIDA. It talks about the United Kingdom’s status as a peacemaker and its role in addressing urgent world problems and military conflicts.

Table of Contents

Introduction

The United Kingdom is a sovereign country in northwestern Europe, off the European mainland’s northwestern coast. Over the course of several hundred years, the United Kingdom was founded through a succession of annexations, unions, and separations of constituent countries. The United Kingdom of Great Britain and Ireland was formed in 1707 by the Treaty of Union between the Kingdoms of England (which included Wales after its annexation in 1542) and Scotland (which included Wales after its annexation in 1542) to form the Kingdom of Great Britain, followed by their union in 1801 with the Kingdom of Ireland.

The three mandates for peacekeeping are the host state’s agreement, impartiality, and non-use of force. They are evolving in tandem with these new problems. Today’s peacekeeping missions are “multidimensional” involving military, police, and civilian forces. Many modern conflicts are low-intensity and ad hoc, with no official armies and multiple fighting fictions.

UK’s involvement in UN peacekeeping

The United Kingdom is a key member of the United Nations Security Council and is in charge of writing resolutions on peacekeeping, civilian protection, the Women, Peace and Security Agenda, and specific nation instances such as Somalia, Darfur, and Cyprus. The engagement in UN peacekeeping takes three forms i.e.

Participation in the Security Council, which establishes peacekeeping missions;
Providing finance for operations;
Supplying troops.

Aside from its participation in high-level decision making, the United Kingdom is a major financial contributor to the peacekeeping missions. The United Kingdom, as the fifth-largest contributor, contributes 6.68% of the UN’s overall budget for peacekeeping.

However, the United Kingdom undoubtedly falls short in terms of soldier contributions. Only 286 troops, 5 police officers, no military advisors, and very little military equipment were sent by the UK. The United Kingdom is ranked 50th among peacekeeping providers; a small country like Fiji contributes more than twice as many personnel as the UK, while China, a fellow permanent member of the Security Council, contributes 2183 personnel.

Peacebuilding efforts by the United Kingdom

Since its inception in 1997, the Conflict and Humanitarian Affairs Department of the UK has led the Department for International Development’s (DFID) conflict-related strategy and programming. Conflict analysis is now part of DFID’s geographic departments and country programmes. The UK government recognises that each war is unique, and thus the Department for International Development (DFID) established a “Conflict Assessment Methodology” that has already been applied to 10 conflict scenarios. In 2002, the Conflict Prevention Unit was extended to improve conflict prevention resource management and to help the Foreign and Commonwealth Offices mainstream conflict prevention.

Over the last three years, DFID’s Africa Conflict Unit has increased its staff, largely to assist initiatives under the Africa Conflict Prevention Pool (ACPP). The actions of security and reconciliation are inextricably linked to peacebuilding. Investments in post-conflict socioeconomic and reconstruction projects, on the other hand, almost never indicate a desire to promote peace. As a result, they are unlikely to be assessed for their ability to promote peace. The UK’s emphasis on inter-actor coordination and the UN’s important position imply that the UK is attempting to ensure horizontal consistency among actors.

An overview of the current military conflicts in the UK

The British armed forces, commonly known as Her Majesty’s Armed Forces, are the armed forces in charge of defending the United Kingdom, its overseas territories, and Crown dependencies. They also advocate the United Kingdom’s broader interest, contribute to international peacekeeping efforts, and provide humanitarian assistance. The British Queen, now Queen Elizabeth II, is the Head of the Armed Military, to whom all personnel of the forces swear allegiance. A long-standing constitutional Convention, on the other hand, has vested de facto executive authority in the Prime Minister and the Secretary of State for defense through the use of royal prerogative.

The current ongoing military conflict taking place is the Mali conflict where the UK, being an essential part of the UN peacekeeping mission has decided to help Mali. The Sahel crisis will approach its eleventh year in 2021. In the middle of a protracted conflict, each country has suffered different patterns of violence and transformations, notwithstanding the crisis’ international dimension. The trends of violence in Niger, Burkina Faso, and Mali are examined.

It closes with a look at the Sahel as a whole. In the face of military pressure in the tri-state border region, both the Islamic State in the Greater Sahara (ISGS) and the Al Qaeda-affiliated Jama’at Nusrat Al Islam Wal Muslimin (JNIM) have shifted their efforts to geographic areas beyond the immediate reach of external forces, (or Liptako-Gourma). Jihadist militant groups have been able to broaden their scope of activity, reassert their authority, remobilize, and earn money to rebuild as a result of their renewed engagement in local conflicts. This is evident in the Tillaberi and Tahoua regions of Niger, as well as the eastern parts of Burkina Faso and central Mali.

Niger is frequently thought to be less affected by armed groups than Mali and Burkina Faso. However, the country faces a number of difficulties. Boko Haram insurgency in the Lake Chad Basin, ISGS-led Sahelian insurgency in northern Tillaberi, and JNIM operations in southwestern Tillaberi are among them. ISGS is responsible for 66 percent of all deaths from organised political violence in Niger in 2021, and around 79 percent of all deaths from violence directed at the civilians. Communities are becoming more resistant to the predatory collection of “zakat,” or alms, which is a religious obligation in Islam but is utilised by ISGS as a pretext for extortion and cattle theft.

Violence broke out in a number of other places, including the Djibo region, where the situation had remained reasonably calm since the last big attack on the military camp built in Gaskindé in September 2020. Tensions between ethnic Fulani and Mossi villages in Kobaoua and Namssiguia erupted between late February and early March 2021, when JNIM and volunteer fighters carried out a series of tit-for-tat attacks.

In the village of Kodyel, in the Foutouri area, JNIM militants slaughtered nearly thirty residents, including VDP, in May 2021. The attack was most likely in retaliation for VDP mobilisation and abuses against the Fulani people. A similar massacre in the neighbouring town of Hantoukoura in December 2019, which murdered 14 Christian worshippers, was reportedly prompted by the villagers’ sympathy for the Koglweogo.

These attacks demonstrate once again how abuse and cruelty by all armed parties involved in the conflict fuels cycles of violence with ever-deadlier retaliation. On the 5th of June 2021, a massacre in the town of Solhan killed roughly 160 people, making it the bloodiest attack in Burkina Faso since the insurgency began. The attack has not been claimed by any group; instead, JNIM has denied responsibility and condemned the attack.

Due to the Malian armed forces’ current operational weakness, the Malian state is unable to handle the multiple flashpoints in central Mali and the militant advance in the southern provinces. Following a second military-led coup in May 2021, nine months after the first in August 2020, disrupted politics in Bamako have strained Mali-France relations and led to disharmony in the strategic military cooperation. As a result, French President Emmanuel Macron has threatened to pull the country’s troops out of Syria. France also halted joint military operations and collaboration with Mali, for the time being, depriving Mali of critical air cover and intelligence assets.

As a part of the UN’s peacekeeping mission in Mali, 300 UK troops have arrived, mostly from the Light Dragoons and the Royal Anglian Regiment, and backed by specialised crafts from throughout the armed forces. The UK Taskforce will provide a highly specialised reconnaissance capability, conducting patrols to gather intelligence and engage with the local population in order to assist the UN in responding to the challenges posed by violent extremism and poor governance. Over 14,000 peacekeepers from 56 nations make up the UN Mission in Mali, which seeks to assist peace efforts, facilitate security sector reform, protect civilians, and promote human rights.

The United Kingdom and Afghanistan

The other military conflict in which the UK was a part is with Afghanistan. The United Kingdom and Afghanistan have a bilateral relationship. Following the terrorist attacks on the United States on September 11, 2001, Britain launched its latest war in Afghanistan. It lasted 13 years, ending on October 26, 2014, when the final combat soldiers left the country. The conflict in Afghanistan lasted three prime ministers’ terms and claimed the lives of 453 British troops and thousands of Afghans. What was achieved after 13 years of conflict, including eight years of intense battle in Helmand, is still up for debate.

The British campaign’s legacy is more difficult to assess. The British strategy was never quite clear. The efforts of the Provincial Reconstruction Teams to develop Helmand’s economic infrastructure were intermingled with operations to clear the towns of insurgents.

Schools, hospitals, roads, reservoirs, and power generating were built to encourage Afghans to invest financially. Agricultural projects were also prioritised in order to entice farmers to grow non-opium crops. Despite large-scale operations aimed at driving rebels out of Helmand, combat remained intense. In the United Kingdom, public opinion was growing hostile to the war. The British began investing extensively in the training and mentoring of the Afghan National Army and Afghan National Police in order for them to assume greater responsibility for the security situation in Helmand and throughout the country.

International legal perspective with respect to armed conflicts

When there is fighting between states or long-term armed violence between governmental authority and organised armed groups or only organised armed organisations, an armed conflict occurs. When one state utilises military force against another state or states, it is called an international armed conflict. Even if there is no armed resistance to the occupation, the phrase applies to all circumstances of total or partial military occupation. It no longer matters whether the parties involved regard themselves as at war with one another or how they describe the fight. When active hostilities or territorial occupation cease, an international armed war is said to be over.

Non-international armed conflicts, often known as internal armed conflicts, occur within a country’s borders and do not involve foreign military forces. For instance, two or more armed factions battling within a state, but without the presence of official soldiers. Specific legal provisions apply to this form of conflict. When the internal opposition is better organised in terms of command and control of territory and thus capable of carrying out continuous and concerted military operations and enforcing the law on its own, slightly different laws apply, but only if government forces are involved.

International organisations such as the United Nations, the Council of Europe, the OSCE, and the International Committee of the Red Cross play a variety of important roles in armed conflicts, including improving communication between opposing forces, facilitating humanitarian cooperation, building civilian-military dialogue, providing essential services to civilian populations, and encouraging all actors to uphold and implement the Geneva Conventions.

International humanitarian law (IHL), sometimes known as the rules of war, governs armed conflicts primarily. IHL is a system of norms – either codified in treaties or accepted by custom – that impose restrictions on what parties to a conflict can do. IHL’s main goals are to reduce human suffering and protect civilians as well as former combatants who are no longer directly involved in conflicts, such as prisoners of war.

Serious crimes, such as war crimes, genocide, and crimes against humanity, fall within the umbrella of International Criminal Law (ICL). All governments have an obligation to prosecute persons who are reasonably suspected of criminal culpability for crimes under international law, including through universal jurisdiction, yet many states are unwilling or unable to do so. The International Criminal Court (ICC) was founded in 2002 to put an end to impunity for international crimes.

The International Criminal Court (ICC) is a court of last resort that is utilised when national judicial systems are incapable or unwilling to prosecute culprits. States Parties or the UN Security Council, which can also refer proceedings against non-State Parties, can refer cases to the ICC. On the basis of external evidence, the ICC Prosecutor may decide to begin an inquiry against a State Party. To hold perpetrators of crimes under international law accountable, some states have formed hybrid courts, which are local tribunals with international aspects.

UK government and its role as a peacemaker

Since 2010, the country has been governed by a Conservative-led government, with consecutive prime ministers serving as the Conservative Party’s leader. The Cabinet, which is made up of the Prime Minister and their most senior ministers, is the top decision-making body. Although the king has executive authority under the uncodified British Constitution, this authority is only exerted after receiving advice from the Privy Council. On the Privy Council, the monarch’s members and advisers include the Prime Minister, the House of Lords, the Leader of the Opposition, and the police and military high command.

Though certain Cabinet roles are sinecures to a greater or lesser extent, the cabinet exercises authority directly as leaders of government ministries in most circumstances. Because many of the government’s offices are located in Westminster or Whitehall, the government is sometimes referred to as “westminster” or “whitehall.” Members of the Scottish Government, Welsh Government, and Northern Ireland Executive, in particular, utilise these metonyms to distinguish their governments from HMG.

The United Kingdom government will contribute to UN efforts to avoid and manage conflicts, as well as to alleviate humanitarian suffering. Funding for the United Nations peacebuilding programmes will help avert conflicts and promote peace around the world. This money will go towards a variety of projects in over 40 nations, ranging from pressing for disarmament to encouraging women and young people to participate in political debate and peacemaking. Since 2010, a global uptick in warfare has resulted in a significant increase in human deaths. The funding by the United Kingdom will assist the United Nations in preventing and de-escalating conflict, which is critical to preserving lives.

The United Kingdom has identified three important priorities in this regard:

To begin, the UN and the World Bank must strengthen their peace relationship. Their combined vision, knowledge, and global presence are critical to ensuring that multilateral development initiatives address conflict drivers.
Supporting greater preventive diplomacy inside the UN, because we all know that effective conflict prevention and peacebuilding require political agreements.
Early, better, and more effective preparation is required to ensure smoother transfers to and from peacekeeping missions in the country to other UN bodies.

The existing loopholes and possible solutions

These three pillars are reinforced by the United Kingdom’s commitment to a larger, values-driven protection strategy. In this context, the UN’s efforts to combat sexual exploitation and abuse, as well as to prevent sexual violence in conflict, are critical. Of course, maintaining peace is an important aspect of the wider UN reform agenda, which the UK also supports.

As we look to the future, we need to be more inventive in terms of expanding the donor base for peacebuilding and delivering more comprehensive solutions through the UN’s collaborations with a diverse variety of organisations.

The United Kingdom stands ready as a long-term political and financial contributor to peacebuilding. It stands ready to support the General Assembly of the United Nations (UNGA) resolution’s process so that, together, we may work successfully to maintain peace and establish a world free of the scourge of war for future generations.

Conclusion

The United Kingdom’s peacekeeping missions assist countries around the world in navigating the difficult transition from hostility to peace. It aids in the development of mutual understanding between neighbouring states and guides people through the hostile conditions they face. It is a fantastic project that will benefit people all across the world.

References

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Liner agency agreement

By

Shoronya Banerjee

-

November 12, 2021

0

Confidentiality agreement — Image Source - https://rb.gy/gbqk0v

This article has been written by Mithi Jaiswal, pursuing the Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Historical background

In the early days, the ships were the source to transit and sell goods at various destinations all around the globe. The ship owners used to sail their ships from port to port to sell and purchase more commodities when they reached their next destination. In the 19^th and 20^th century the ports were drastically developed and this led to the birth of liner shipping that provided various day-to-day services on the ports for the cargo and ships carrying that cargo to different ports. Due to the development of new and larger markets, the ship owners started appointing independent agents for ports at different jurisdictions in order to improve their efficiency of ship operations.

Earlier, the agreements between ship owners and the agents were verbal in nature but eventually due to the increased transactions, there was a need for written agreements. These agreements between the principal and the independent agents appointed were known as the liner agency agreement. The services given by the liner agency include documentation, port operations, sales & marketing, equipment control, etc.

The Liner Agents are appointed through these agreements and besides addressing the functions that both the parties are supposed to fulfill, the agreements also contain general terms and conditions, termination, liability, warranty clauses, etc. However, nowadays the liner agency agreements are being tailored in an imbalanced way that is in favor of the principals.

The Federation of National Associations of Ship Agents and Brokers (FONASBA) of which India is a party has created a Standard Liner Agency Agreement.This is a standard format that is followed by all the member states while drafting a liner agency agreement. Many states have not accepted this because it is heavily weighted towards the agent. After the introduction of standard liner agency agreements, the member states follow the template with certain changes according to their needs. The agreement has to be balanced and provide equal responsibilities to both principal and the agent without being principal-biased. The whole intention of bringing this Standard format is to erase the biases towards the principal and work in favor of both parties.

Types of liner agency agreements

1. Tailor-made agreements

These agreements are tailored and made from scratch according to the needs of the parties. However, one of the disadvantages of this agreement is that it is principal biased and gives more rights to the principal. These are unique and don’t follow any guideline or draft which is already present for the liner agency agreements.

2. FONASBA Standard Liner Agency Agreement

Since the responsibilities were growing there was a need to bring a universal template for the liner agency agreement. In late 1960, the first version of this template was introduced by FONASBA which gave an equal share of responsibilities to both the principal and the agency. However, this was not accepted widely by the principals because they drafted the agreements according to their specific modes of operation. So, in 1992 FONASBA along with BIMCO (ship owners association) came up with another template which was then accepted by the principal and owners of the vessels. This document provides an exhaustive list of duties for both parties.

Components of liner agency agreement

The contents of the liner agency agreement drafted herein in India is in consonance with FONASBA and it includes:

Definitions of principal and agent

A principal is a firm or the person who owns or manages the vessel which is represented by the agent and the agent is the person who assists the principal in building a relationship with third parties. He acts on behalf of the principal and performs all the functions that are laid down in the liner agency agreement. The agreement starts with the definition of the principal and the agent.

Duration

This clause gives the term of the agreement and the reasons for termination. So, the agreement can be terminated because of various reasons – some of them are

the duration of the agreement has expired
or because of operation of the law
or due to the acts of either party.

Some of the reasons that the tailor-made and the FONASBA agreements provide for termination are negligence, the bankruptcy of the agent, a major change in the management or control of the agency, malafide withholding of the principal’s funds, etc. Before the termination of the contract, a notice has to be given so that the notice period is given to the parties.

Jurisdiction

Typically, almost all agreements have an arbitration clause as it is the cheap and fastest way of dispute resolution.

Conflict of interest clause

Through this clause, the principal safeguards himself by restricting the agent to engage with anyone else who is in direct competition with the principal.

Confidentiality clause

The agent is bound to keep all aspects of the principal’s business with strict confidentiality.

Duties of the agent

This is an extremely important clause and it outlines all the duties that the agent is bound to intake after coming into the contract. Some of the duties which are enshrined in almost all the agreements are to obey all the instructions given by the principal, take due care and caution while performing the duties, obtain all the necessary permits and licenses, to not delegate the duties to the third party, etc.

Marketing sales clause

Under this, the commercial functions that the agent will undertake are given. The functions include maintaining contact with the third parties for increasing the business of the principal, negotiating the freight rates, booking cargo, preparing the necessary documentation, etc.

Accounting and financing

The accounting and financing clause includes the financial functions which include the duty to prepare periodic statements, advising the principal about the customary credit terms, etc.

Duties of Principal

Both the tailor-made and the FONASBA agreements include the duty of indemnification of all the claims and charges that the agent will incur because of the damages during the fulfillment of his duties, the principal also has to provide the money in order to cover all the disbursements, etc.

Remuneration

This clause is important because under this the parties agree that the agent is bound to get remuneration for the performance of all the contractual duties and the amount that he spends for the efficient running of the principal’s business, etc. The principal is also responsible for the ancillary charges that the agent undertakes.

In tailor-made agreements, the remuneration clause is drafted in a very concise and inadequate manner whereas the standard liner agency agreement given by FONASBA gives an elaborative list of the remuneration that the agents are bound to get.

Delegation clauses

There is a famous legal maxim “delegatus non potest delegare” which means that the agent does not have any right to delegate any work to the third party. This provision is inserted because the contractual relationship between the principal and the agent is not a personal one but a relationship that demands discretion and the delegation of the discretion will be a breach of confidence.

Limitations

The major difficulty encountered while conducting the study, was in obtaining the sample agreements, as they are essential, confidential documents. Also, a greater number of the agents contacted to give their views on the subject of the agency agreements declined to give disclosed interviews or fill in questionnaires for fear of 6 jeopardising the existing relationships with their principals. It is also worth mentioning that the subject of agency agreements has not been given much attention in published books. Hence, much of the research was carried out by use of journals and internet sources as reference material.

Conclusion

The liner agency agreements can either be tailor-made or follow the standard format given by FONASBA. All the member states follow the prescribed guidelines given by FONASBA and India is a member party to it. The standard format gives fair provision applicable to both parties thereby making the agreement neutral. The tailor-made agreements try to impose one-sided demands that create an unfair situation for the agents. Almost most of the time, tailor-made agreements are made in favor of the principal. In any balanced contract, there must be corresponding rights and duties. So, the rights of the agents should create corresponding duties on the principal and the rights of the principal should give rise to corresponding duties on the agent.

There are various liner agency agreements either following the tailor-made method or the standard format and both of them have their pros and cons. The focus should be on the roles and responsibilities the agents have to undertake and responsibilities owed by the principal and according to draft a balanced contract.

Liner agents should give very careful consideration to the contents of agreements with their principals. Many clauses contain onerous provisions which can trap the unwary and cause difficulties at a later date. If in any doubt always obtain legal advice whether from your club, your lawyers, or your own legal department.

References

https://www.fonasba.com/
https://www.bimco.org/contracts-and-clauses/bimco-contracts/fonasba–standard-liner-and-general-agency-agreement
https://www.lawinsider.com/dictionary/tailor-made-contracts#:~:text=Tailor%2Dmade%20contacts%20 means%20 Contracts,Sample%201
https://www.fonasba.com/wp-content/uploads/2012/02/STANDARD-LINER-AGENCY-AGREEMENT-1993.pdf
Encyclopaedia Britannica Online (last visited Nov. 09, 2021 at 11:01 p.m.), http://www.members.eb.com.
Patricia Mwikali, The Maritime Commons: Digital Repository of the World Maritime University, World Maritime University (last visited Nov. 09, 2021 at 02:46 a.m.), https://commons.wmu.se/cgi/viewcontent.cgi?article=1443&context=all_dissertations.
Paul Smith, Liner Agents Liabilities, PS Associates (last visited Nov. 07, 2021 at 12:44 p.m.), https://commons.wmu.se/cgi/viewcontent.cgi?article=1443&context=all_dissertations.
Rodolfo M Gonzalez Lebrero, The agents and their liabilities: In Baltic and International Maritime Council, BIMCO Review 211, (1997).

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The position of employees in an M&A transaction : an analysis through the lens of labor laws

By

Oishika Banerji

-

November 12, 2021

0

M&A DEAL — Image source: https://rb.gy/fvodbq

This article has been written by Dakshita Arora. This article has been edited by Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

With the recent rush of mergers and acquisitions (hereinafter referred to as “M&A”), certain issues do not receive adequate attention in the corporate market. One such key issue is the rights of employees and the transition in their employment as a result of restructuring transactions. The employees are drastically affected both during and after the completion of an M&A. However, they are the last ones to find out about these transactions. Through this article, the author analyses this issue, lays down the current law and the provisions of the future law that is yet to be notified.

For centuries, M&A have been a major part of the corporate world and a crucial aspect of the economy. Merger is not specifically defined under the Companies Act, 2013. It is a form of restructuring whereby there is a combination of two or more entities, the transferor entity and the transferee entity, into a single resultant entity. On the contrary, acquisitions are deals where one entity acquires the assets and liabilities of the target entity or purchases controlling shares of the target entity and therefore, becomes the owner of that entity. In the Indian legal framework, mergers are sanctioned by an adjudicating authority after going through an extensive process provided under Section 232 of the Companies Act, 2013. An acquisition, on the contrary, is more of an agreement. Generally, in both the scenarios, the transferor entity ceases to exist and all its assets, liabilities and undertakings are transferred to the resultant entity including the employees.

Amongst the manifold considerations of an M&A transaction, protecting the rights of the employees and smooth transition to the resultant entity is a significant part of the deal. The provisions regarding the same are currently governed by the Industrial Dispute Act, 1947 (hereinafter referred to as the “ID Act”) and will be governed by the Industrial Relations Code, 2019 (hereinafter referred to as the “IR Code”), whenever it’s notified.

Who are workers?

The ‘workers’ in India are defined under Section 2(zr) of the IR Code. The definition, being quite comprehensive, includes persons employed in any manual, unskilled, skilled, technical, operational, clerical, or supervisory work. The definition has been expanded to include working journalists and sales promotion employees as well. However, the following persons are explicitly excluded from the provision:

Person who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957;
Person employed in the police service or as an officer or other employee of a prison;
Person employed mainly in a managerial or administrative capacity;
Person employed in a supervisory capacity drawing wages exceeding eighteen thousand rupees per month or an amount as may be notified by the Central Government from time to time.

While interpreting the definition of “workman” under the ID Act, the judicial pronouncements have been expanding the scope of the term, considering the facts and circumstances of each case. In the case of T.P. Srivastava v National Tobacco Co. of India Ltd, it was observed that a person performing duties that require an imaginative and creative mind cannot be termed as a “workman”. In another case, the court clarified that if the principal job and the nature of employment is manual, technical or clerical then the person performing the same would be termed as a workman. Recently, the High Court of Calcutta held that the nature of the primary function that the employee performs shall be taken into consideration.

Consent of the workers in an M&A transaction

By virtue of Section 75 of the IR Code, a worker who has been in continuous service for not less than a year is entitled to a notice and compensation, as if he is being retrenched, when an undertaking is being closed down. In an M&A transaction the transferor entity ceases to exist thereby being the “closing entity”. However, this provision excludes certain workers including workers whose services have not been interrupted due to change in employment; workers whose employer is still liable to pay the compensation in the event of his retrenchment; worker provided an alternative employment with the same terms and conditions of service, when a mining operation is being closed down, within a radius of twenty kilometres.

Currently, under the ID Act, Section 25FF deals with similar provisions. It has been amended in the IR Code to exclude the provision stating that if the remuneration and terms and conditions remain the same post transfer, then he shall not be entitled to a notice or a compensation. This is a step towards recognising the rights of the workers. However, the given provisions under the IR Code are still in disparity with the judicial pronouncements. The Supreme Court has held that the employer must take consent of the workman before transferring his employment to a new employer even if the terms and conditions of his service do not change. If the workman does not give his consent for such transfer, he shall be given retrenchment compensation. No such provision has been incorporated under the IR Code.

Notice of change

Pursuant of Section 9A of the ID Act, 1947, a notice of change must be sent to the workman if the conditions of his service change. The notice must be given at least 21 days prior to affecting such change. The similar provision is incorporated under Section 40 of the IR Code. Therefore, if as a result of a merger or acquisition, the employer of the resultant entity decides to change the working conditions of a workman then he must be provided the concerned notice.

Other liabilities towards employees

The apex court held that the transferee entity will be liable for any default on the part of the transferor entity even if there is an agreement to the contrary. Therefore, any liability of the transferor entity towards an employee will be transferred to the transferee entity. This highlights the importance of thorough due diligence on the part of the transferee entity.

Conclusion

An M&A transaction is indeed an external restructuring with numerous concerns from signing an MoA to closing the transaction. However, the human assets of the transferor entity are as valuable as the tangible and intangible assets for the transferee/resultant entity in the long run. Considering the labour law paradigm in India, all the legislations with respect to industries have been pro-employee. The rights of the employees have been undisputedly prioritised in the Indian legal framework. However, there are certain grey areas in both previous and the newly enacted law that will play a crucial role in the infringement of the rights of the employees.

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Common errors to avoid while drafting a commercial contract

By

Oishika Banerji

-

November 12, 2021

0

This article has been written by Mithi Jaiswal pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

Contracts are the cornerstone of not only the economy but they have become a quintessential part of ease of doing business in a state. The interpretation of contracts is key to avoiding any legal dispute and the errors while drafting a contract can cause critical problems for either one or both parties. Various legal writers and practicing lawyers have deliberated upon this topic. In a recent article, a legal practitioner has outlined the eight critical contractual clauses on which the parties should pay specific attention. One of the general mistakes while drafting a commercial business to business agreement is considering the boilerplate clauses to be the same throughout the different sets of agreements. Boilerplate clauses are the miscellaneous or general clauses that are often founded at the end of the agreements. Majorly while drafting an agreement, lawyers tend to believe that these clauses are non-substantive provisions and they blindly use the template clause without any modifications. It is significant to independently consider the mechanics of each agreement and then transplant the clauses from one agreement to the other.

However, there cannot be an exhaustive list substantiating all the possible errors while drafting a commercial contract. This article addresses twelve errors that are generally made while drafting a commercial contract and the precautions that one can avail to escape it.

Mistakes to avoid while drafting a contract

Failing to include dispute resolution clause

A contract should not only be seen from the commercial angle but should also cater to any foreseeable problems that would come up after the parties have signed. The most common reason for business disputes is a breach of contract and the dispute resolution clause gives a course of action when an event of dispute happens. At times, the contract doesn’t address this clause which can hamper the resolution of the business dispute at hand. This clause is essential when the parties are based in different jurisdictions and its absence can lead to non-redressal of the disputes. It is necessary to include a dispute resolution clause that will give a defined process and procedure for resolving a dispute arising between the parties.

Use of ambiguous terms and boundaries

It is very important to use plain language while drafting a contract so that even a layman can understand it. Misunderstandings can easily happen when the contract is not well written. The appropriate expectations can be brought by a properly drafted contract. It is also necessary to avoid the necessary repetition of words. Tautology is a redundant concept and it paves a way for ambiguity. No party will want a lawyer to draft a contract that becomes void due to ambiguous terms and repetitive use of words. For example, one cannot use a clause like “I hereby understand, consent, covenant, undertake, agree, accept……..”, if only one of these words would suffice.

Amending the contract when circumstances change

Although the attorneys try to make bulletproof contracts which include planning of the future, what happens when circumstances change? Recently the circumstances in which a contract was drafted got changed totally due to COVID-19. Some of the agreements didn’t mention the force majeure clause and only dealt with acts of God. There was a tug of war between the clauses of force majeure and the act of God regarding under whose ambit COVID-19 fell? The contract makers should consider all the changes and when the original contract gives no protection, the contract makers should renegotiate the terms by either amending or modifying the agreement.

The damages should be specified when disputes arise

When a material breach occurs, the contract should mention the damages that have to be awarded. If the parties are unwilling to give a certain amount as damages, then they can assume the risk of certain damages and insert a clause limiting damages to a certain dollar. This clause will help in limiting the possible damage recoveries as well as the cost of litigation.

Inadequate due diligence

Before entering into a contract, the parties often tend to ignore thorough due diligence, maybe because of the reputation of the partner with whom they are contracting or some other reason. This assumption leads the party to give calculated risks whereas in such situations real risks are circumventing the due diligence. The parties must do adequate due diligence before drafting a contract.

The governing law provision should be present

It happens that at times the contract fails to address a choice of law that will be governing the parties and this creates huge issues for the enforcement of the contract. The contract disputes become more expensive and difficult to resolve due to the absence of a governing law clause in the contract. The governing law provision should not only be focusing on the home law but the aim should be to choose a law that represents the contractual intent of the parties.

Use of punctuation marks

A single punctuation can change the meaning of the entire clause and put the parties under the potential threat of costly litigation because of the conflict of thoughts. An out-of-place comma can lead to multiple interpretations of the clause. The use of superfluous language as discussed above and inappropriate punctuation marks can lead to misinterpretation of contracts.

Use of singular words rather than plural words

Indiscreet use of plural words can create an impression that the clause applies only to a collective group and not to individuals. It is better while drafting a contract, one uses singular words. For example, instead of saying “employees are not allowed …..” consider “no employee is allowed…”. The use of singular words will restrict the interpretation of the clauses and will consecutively make the contract bulletproof.

Avoid blind copying from the templates

It is very common to find the drafts of almost every agreement online, but blind copying can lead to unwanted and unnecessary clauses being a part of the contract even though there is no need for them. The errant clauses will make the contract more complex so it is better to avoid and delete the provisions from the draft if one cannot figure out the value of that provision. Available drafts can be used but one shouldn’t forget to inculcate the essence of the deal/negotiation in the contract; one has to focus on the deal and then accordingly change the draft provisions. As it is always said one size doesn’t fit all so unnecessary copying can put the drafter in trouble.

Avoid making the contract too one-sided

A contract is an instrument of negotiation for both parties and making an agreement that favors the client without considering the mutual transaction happening between the parties can jeopardize the existence of the contract. The opposite party can negate the contract and not agree to sign it because he/she is not benefitting from it. Therefore, it is necessary to draft the clauses in a way where both the parties are agreeable to the terms.

Reviewing the contract carelessly

After the contract is drafted, one shouldn’t haste while doing the proofreading. The more one goes through the document, the more errors one can find. It is important to take a considerable amount of time to review the works as humans are prone to errors. Proofreading the contract will make it solid and also rectify the problems like interpretation, ambiguity, etc. at the initiation itself.

Nomenclature should be strictly followed

While drafting a contract, the drafters usually use “hereinafter referred to as” for not repeating the long words or parties’ names all over again. The nomenclature that is defined in the contract must be strictly followed. For example, if the clause says “ABC Pvt. Limited (hereinafter referred to as COMPANY” then in the entire agreement the word COMPANY has to occur, and that too in uppercase. If the drafter mistakenly uses the lowercase then that will again subject the contract to interpretation.

Conclusion

The list given in this article is not exhaustive and there are myriads of other errors that a drafter must avoid for making a bulletproof contract. The agreement must be proofread and vetted properly so that the parties can avoid the risk of costly litigation. There are times when the drafter forgets to insert the termination clause and that is how ambiguity peeps in. If the reasons for termination are not given then the parties can assume that any and every act can lead to termination. If the interpretations of the contract are multi-facet in nature then that paves a way for litigation and unenforceability of the contract. Any contract must capture the intent and the purpose of the parties. Failure to comply can lead to heavy costs to either one or both parties. It is recommended that, make a sample draft and then improve upon it as you go along, adding in the details and requirements as expected and enumerated; and revise upon it as many times as required to be able to reach your necessitated objectives and organic satisfaction.

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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Netflix’s ‘Skater Girl’ : copyright infringement or not

By

Sneha Mahawar

-

November 12, 2021

0

netflix — Image Source- https://bit.ly/3fggQG4

This article is written by Niharika Agrawal, from IFIM Law School. This article deals with the issue of copyright infringement on OTT platforms, in light of the case of Pirtle v. Netflix.

Table of Contents

Introduction

Intellectual property rights (IPR) are the legal rights given to creators for their original works. IPR laws are made to protect the creators’ interests and assure them that their intellectual property is protected. However, not all such benefits are natural rights; they need to be recognized by the law. In India, there are various statutes for the protection of the intellectual property rights of the creator, and one such statute is the Copyright Act, 1957.

Copyright is an exclusive legal available to the owner for the specified duration for his work of printing, publishing, performing, recording, and musical material. Copyright infringement occurs when a person makes unauthorized use of somebody else’s copyrighted work. In this world of online media, we often come across the term ‘copyright infringement. An ‘over-the-top’ (OTT) is a media platform that provides video, movies, series, audios, etc. This trend of OTT media has increased tremendously. It is important to know about the issues relating to copyright infringement on such media platforms and about the laws for protecting them against violations. This article has dealt with the issue related to copyright infringement on OTT platforms and the laws related to it in the light of the recent case Raymond Pirtle v. Netflix.Inc. (2021) in which the plaintiff has alleged the violation of his trademark and copyright entitled under the name “Skater Girl”. This also includes various opinions of the IP Lawyers with respective Copyright infringement.

IPR and enforcement under OTT

Various OTT platforms such as Netflix, Amazon Prime gets into an agreement with the production house that produces the contents like audio-visual and gets them released under the banner of the OTT platform. The infringement of these contents gives rise to copyright infringement under the Copyright Act. The Act defines the meaning of copyright infringement under Section 2 (m) which also includes various other rights and vests exclusive rights on the creator of the work. Any content that resulted in civil or criminal liability under Section 51 of the Act which is also considered as the unauthorized reproduction or deliberate storing of the work as infringement, is the direct infringement by an OTT service provider. This Act also provides technological measures for copyright protection.

Another important Act that regulates copyright infringement is the Information technology Act, 2000. This Act also takes into consideration the unauthorized distribution of copyright content as an offense and gives responsibilities to the intermediaries as well to make sure that no infringing contents are posted on the OTT platforms, as per the Intermediary Rules of 2011. The draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018, asks such platforms to bring some technology-based solutions to identify and stop infringements.

Review of copyright infringement in the case of Raymond Pirtle v. Netflix Inc. (2021)

This present petition was filed by Raymong Pirtle Jr. (Plaintiff) against California-based Netflix Inc. in the District Court for the Northern District of Georgia. It was alleged that Netflix’s film ‘Skater Girl’ has infringed the rights of Pirtle’s independent film ‘Sk8r Grrl’.

A brief fact of the case is, a Bollywood movie ‘Desert Dolphin’ was released in the year 2020. Subsequently, in the same year the plaintiff’s movie named “Sk8r Grrl” was also released. Later, due to the accusations in January 2021, Defendant changed the name from ‘Desert Dolphin’ to “Skater Girl”. Plaintiff pointed out that his work is pronounced phonetically by the public as ‘Skater Girl’ and written as “Skater Girl™” with a logo version titled “Sk8r Grrl™ ” as it shares the same likeness as the Netflix Film.

Plaintiff contentions

The plaintiff in his contention states that the defendant has made unauthorized usage of his copyrighted and trademarked works under the title “Skater Girl (2021)” and “Skater Girl™” also known as “Sk8r Grrl™” (further known as The Works).
The plaintiff has reserved all the rights in the Works which was first released in the year 2012 in Newyork city. “Skater Girl™” is an international movie brand that includes film series, upcoming movies, multimedia applications, clothing lines, NFT applications, etc.
The defendant’s work entitled “Skater Girl (2021)” appeared on many websites the same as those of the plaintiff which is identical to the Works. The Works of the plaintiff are phonetically the same as the Skate Girl of the defendant.
The defendant has changed the name of the Bollywood film which was released in 2020 from ‘Desert Dolphin’ to ‘Skater Girl’ in 2021. Another contention is that both the movies were supposed to be released in the same year.
Plaintiff has announced the date of release as 22nd June 2021. A few days after the release of the date by the plaintiff, the defendant has also released the date of his film, which is on 11th June 2021.
Based on the above facts the plaintiff contended that the defendant neither asked nor received the permission to use the Works as the basis of the SkaterGirl (2021) and nor to advertise, post, make, sell, or distribute copies of the same. Hence, this has led to infringement of the plaintiff’s trademark rights and copyrights.

This case was dealt with by various experts under the Intellectual Property Right sector. One such expert was Tony B. Askew, a Principal at Meunier Carlin and Curfman in Atlanta, has 50 years of experience in litigating trademark, patent, and copyright cases. According to him, though this independent film was spelt differently, the film on Netflix was phonetically pronounced similarly. However, this would not amount to a trademark infringement lawsuit. He opined that plaintiff Pirtle has little chance of succeeding in copyright cases. However, he also notified that such little difference in the title of the films would not carry copyright infringement cases. In copyright cases, it is very important to observe the difference between the idea that has been expressed and the idea of that expression.

This was agreed by Thomas J. Mihill, the Trademark registration attorney, partner of Owen Gleaton in Atlanta. According to him, the case is about the recurring public confusion related to intellectual property and its protection. He also brought this case as an infringement of copyright, but he observed that Plaintiff did not complain about any of the plot or characters of the story or any other elements of the story. He also pointed out that the Plaintiffs’ craft was not registered under Intellectual property rights and hence, he does not have the proper protection to his property and cannot present their pro se infringement case. Plaintiff was advised to register it as soon as possible. However, such registration after the infringement brings about the risk of losing statutory damages and other benefits that may make the claim stronger.

Another Intellectual Property attorney Lilienfeld P.C. founder, David Lilienfeld further highlighted that no copyright infringement lawsuit can move ahead without registration of work with the copyright office. Pirtle’s case lacks proof of copyright registration.

Defendant’s contentions

In the end, the counsel for the defendant, Racquel V. McGee of Lewis Brisbois Bisgaard & Smith contended that Plaintiff has no basis for claiming copyright infringement in this case and the case of trademark suit is still pending. He opined that the title of a single work cannot be considered a trademark. There needs to be a series of names for it to be regarded as a trademark.
It was contended that since the plaintiff has no bad conduct against the defendant, Netflix is not guilty of any infringement. The final judgment of this case is yet to be pronounced by the court.

However, this case has given recognition to the fact that for claiming any right under Intellectual Property Law, it is important to first register the creation, and it should be recognized under the law. Moreover, every Intellectual property right has some conditions to be satisfied by the creators to claim protection over the property.

Findings of the court

The defendant moved to the court in order to dismiss the case by alleging lack of personal jurisdiction. The federal court further recognises two types of personal jurisdiction i.e. general jurisdiction and specific jurisdiction. The general jurisdiction can be asserted by the court for any foreign corporation to hear all the claims only when their affiliations with the states are so continuous or systematic to render essentially at home and forum state. Specific jurisdiction is based on affiliation and underlying controversy.

The Court finds out that it lacks jurisdiction over Netflix. Since Netflix does not have contacts sufficient to render it “ essentially at home” in Georgia, the general jurisdiction cannot arise here. Also Netflix is a Delaware corporation having its principal business in the State of California. Hence, the personal jurisdiction for this case can be either in Delaware or California.

The specific jurisdiction also does arise as there is no affiliation between the forum and the underlying controversy. The plaintiff failed to prove the connection between Netflix’s film and the forum in the State of Georgia. Netflix’s film was neither developed, nor filmed or produced in the state of Georgia. The Court observed that as Netflix has not purposely availed the privilege of conducting the activities within the forum state, it cannot be subjected to personal jurisdiction in Georgia.

Lastly, the Court ordered the plaintiff to pursue its claims in the appropriate state forum and hence dismissed and transferred the case to appropriate court.

Conclusion

The above case of Pirtle v. Netflix explained the importance of registration of intellectual property under the law for availing the protection. Also, it was pointed out about the conditions that need to be satisfied for claiming copyright infringement. However, it is quite difficult to deal with copyright infringement on OTT platforms in India as there is no adequate law to deal with. India needs to provide statutory protection to copyright holders in case of copyright infringement on OTT platforms. With the increase in trends of such online media platforms, it is essential to protect the rights of creators and the data and trust of users.

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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Right to freedom of movement of individuals under the Constitution of India : an insight in the current scenario

By

Sneha Mahawar

-

November 12, 2021

0

Screen-Shot- — Image source - https://bit.ly/3EWRHwF

This article is written by Priyanshi Soni, student of Symbiosis Law School, Noida. This article seeks to highlight the right of freedom of movement as enshrined in the Indian Constitution and restrictions imposed on it during the current pandemic situations along with discussing the varied impact it had on different sections of the country.

Table of Contents

Introduction

The right to freedom of movement is one of the several fundamental and human rights provided to us. The government must ensure this right unless there is a need for reasonable restrictions by law. In India, this right is given to all its citizens. However, COVID-19 pandemic has led to the imposition of such laws which we were not used to in our normal lives. This led to the curb of many of our freedoms, such as speech, expression, trade, movement, etc. but yes, these restrictions were necessary and reasonable to protect the general public interest. But were these restrictions proportionate for every section of society? Even if these were the need of the hour, could it have been in such a way to equally protect the interest of all the individuals?

Right to freedom of movement as per the Indian Constitution

Article 19(1)(d) under Part III of the Indian Constitution deals with the fundamental right to freedom of movement. It guarantees the citizens of India the right to move freely throughout the territory of India. This right overlaps with Article 19(1)(e) which talks about the right to freely reside in any part of the country. The word “freely” connotes “without any absolute restriction”. Wherever and however one likes, he can move without any restriction. However, this right is subject to reasonable restrictions given by law which is mentioned under Article 19(5). Article 19(5) states that states can impose restrictions on the freedom of movement of people either in the interest of the general public or for the protection of rights of the scheduled tribes.

This right allows a citizen to move freely within and between states. Laws that mandate wearing helmets are not a restriction but promote safe movement by citizens.

In Dr. N.B. Khare vs The State Of Delhi (1950), the petitioner challenged the validity of the East Punjab Public Safety Act, 1949 (as extended to the Province of Delhi). It was challenged on the grounds that it empowers the District Magistrate and State Government to pass an externment order which restricts the movement within the limits of a place and that the petitioner was ordered the same, directing him not to stay in Delhi. He contended that this Act leaves to subjective satisfaction of the Executive regarding whether the person is to be the and second, that the Act doesn’t fix maximum period for the same. The Supreme Court rejected these contentions stating that the Act is not invalid merely because of the subject satisfaction because such a restriction is reasonable at times of emergency and also that since the Act is in itself temporary, there shouldn’t be any contention of externment orders being indefinite.

In another similar case of State of MP v Baldeo Prasad (1960), the petitioner’s contention was accepted by the High Court and the Court held that such an act of restriction by authorities should be done after giving proper reason or conditions which necessitated restricting the right.

Reasonable restrictions to the freedom of movement

As we know, Article 19(5) talks about reasonable restrictions that can be imposed by the state in the free movement of people either in the interest of people or in the interest of scheduled tribes.

Of the several existing laws, the Official Secrets Act of 1923 is an example of a restriction on the free movement made in the interest of the general public. This Act denies access to people in prohibited areas. This is in the interest and security of the people and hence justified.

Another reason for restriction being the protection of rights of the scheduled tribes. Scheduled Tribes are aboriginal tribes having a distinct culture, customs, language, and they are concentrated countrywide but mainly settled in the North East. It is considered important to protect their interest and thus, restricting outsiders from inhabiting these areas so that there will be less conflict of interest and less undesirable effects upon these tribal people.

Right to movement and personal liberty

There has been a long-standing controversy regarding whether the deprivation of personal liberty by detention is covered under a denial of rights under Article 21 only or 19(1)(d) as well.

A.K.Gopalan v. the State of Madras (1950)

In this case, this question repeatedly arose. It has been settled that a person can claim and rely on any fundamental right and it will eventually be the duty of the court to decide as to which fundamental right is violated.

In this case, the Supreme Court viewed Articles 19 and 21 too narrowly. Here, the petitioner was detained under the Preventive Detention Act, 1950 in jail and so filed a writ petition that this hampered his rights under Articles 19(1)(d) and 21. The Court held that Article 21 which protects personal liberty, implies personal liberty in the sense of the physical body’s liberty and not rights given under Article 19. This case, thus, held that personal liberty in cases of detention has to be covered under Article 21 and not 19(1)(d).

Kharak Singh v. The State Of U. P. & Others (1962)

In this case, unreasonable surveillance and domiciliary visits by police not authorized by any law and thus held to be violative of the right to freedom of movement. The Court observed that even psychological restraint of freedom of movement is violative of this Article.

Govind v. State of M.P. (1975)

Again, in this case, the petitioner contended that regulations given under the Police Act of M.P. i.e, Madhya Pradesh Police Vidheyak, 2002, violated his fundamental right to privacy which is a part of the right to free movement which is part of Article 21 as well as Article 19. The police officials paid many domiciliary visits and secret surveillance which hampered his privacy. It was contested that the petitioner led a life of a criminal. The Supreme Court held that this was a reasonable restriction by police officials as the regulations of the Act itself can only be enforced if there was determination via available material which showed a criminal background at the end of the person’s life. The regulations were held to be constitutional and not violative of Article 21.

Reasonable restrictions and curbing of the right to free movement during a pandemic

As the saying goes, “Extraordinary times call for extraordinary measures”. The pandemic has brought many restrictions in our ordinary life. From restricting our movement via imposed lockdowns to freedom of expression and assembly. Public gatherings, restaurants, malls, etc. were put to close, especially during the early period of the pandemic.

The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) (Article 12), at the global level, protect the freedom of movement as a basic human right. International Human Rights also recognizes that it is the duty of the government to promote the best health of its country’s citizens. It allows the government to put on any reasonable restriction required to ensure the health and safety of the public whenever there is a threat to the life of people or the security of the nation.

Generally speaking, the current restrictions on movement impact mostly the people who do not have a home, are poor, and also the women, to whom the pandemic has shown a grim picture of domestic abuse. Migrants are the hardest hit by these restrictive measures.

In the lockdown, the National Disaster Management Authority Act (NDMA) 2005, the Epidemic Diseases Act, 1897, along with the varied usage of Section 144 of the Code of Criminal Procedure by the states, are being used as tools. As per NDMA (2005), it gives power to authorities to make policies as and when required regarding the speech and expression of the public for the sake of disaster management. Coming to Section 144 of CrPC, a grey area is always present with respect to this Section as it empowers magistrates to abstain any person from doing any act which may hamper public order, health, and safety, etc. this has at times seen the misuse of power by the government.

What does the word “lockdown” signify

In a lockdown, people are restricted from moving or leaving an area. Only essential supplies, such as medical help, groceries, etc., are provided to them and all the non-essential items remain shut for the given period.

In these extraordinary/emergency times, a lockdown is necessary for the interest of the general public, for their security and safety, provided the measures imposed are not ‘extra-constitutional. That’s where the concept of “reasonable restrictions” comes into play. As we already discussed above, these restrictions are mentioned under Article 19(5) of the Indian Constitution. Restrictions on free movement can be imposed in the reasonable interest of the general public i.e., for the good of or protection of rights of STs, provided such a restriction is not arbitrary and must have a reasonable relation to the objective to be achieved. It is necessary that the restrictions need to be reasonable. For example, when a law deprives a person of the possession of his property for an indefinite period, it is considered to be und=reasonable and arbitrary.

The restrictions which are in place during the current pandemic

The NDMA does not directly put a restriction on the freedom of movement of people, though it restricts freedom of trade/occupation. Restriction on freedom of movement is put by the order passed by the government under Section 144 of CrPC along with the Epidemic Diseases Act. The restrictions put in place are inspired by Article 19(5) and are in the general public’s interest.

Restrictions and their proportionality

In the constitutional realm, it is important to take into account if the restrictions that are imposed are reasonable and proportional to what is required to be achieved with them and as per the need of the hour.

Impact on traders

It is laudable that many state governments decided to give full wages to their employees during the lockdown, but the impact on the shut businesses is inequitable. It is argued that putting a restriction on one group of people while imposing on other groups to mandatorily work in a time of crisis is nowhere mentioned in the Constitution and thus implies inequality. Although it is a moral duty on the part of those people to serve others, the Constitution is silent on the same.

Impact on migrant workers

This principle of proportionality in imposing restrictions is based upon the idea that the impact of restriction and so the proportionality aspect varies for all the citizens. The restrictions put in were inequitable when we talk about the migrant workers. If we see with these lenses, then it can be said that they were unreasonable restrictions as they did not take into account all classes/groups of citizens. Those migrant workers who were labelled as violators were not completely at fault as disproportionate restrictions were placed upon them without taking into consideration the socio-economic condition of everyone.

Needless to say, society is divided on the basis of many socio-economic differences that exist among the members of the society. It is the responsibility of the state to impose such laws and restrictions which are proportional from the point of view of everyone and not disadvantageous to one class and advantageous to others.

Conclusion

To conclude, the right to freedom of movement is a fundamental right provided to us by our Constitution. It is recognized as a basic human right globally. In today’s times of pandemic, the restrictions are necessary for the general public interest, but the impact of such restrictions is very disproportionate. Although the government puts restrictions that are proportional in the eyes of the general public, when we see the ground level difference that exists in society it is required on the part of the state to ensure reasonable standards of proportionality.

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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Pre-marriage medical examination vis-a-vis Article 21

By

Sneha Mahawar

-

November 12, 2021

0

This article has been written by Sneha Jaiswal, currently pursuing BA LLB (Hons.) from Christ (Deemed to be University) Delhi NCR. This article analyzes the most important concern of pre-marital examination and its implementation. Additionally, it tries to explain the relationship between premarital tests and the right to health under Article 21 which ensures the Right to life and personal liberty.

Table of Contents

Introduction

One of life’s key milestones is marriage. Marriage is the cornerstone of emotional, healthy, and familial connections, as well as a vital building block of society. It is the commitment of two individuals who have decided to take the next step in their relationship. Horoscopes and mental compatibility aren’t the only factors to consider for couples considering marriage. Compatibility is essential in every relationship, but it is more important in marriage. Acceptance and adjustments lead to understanding. Physical compatibility is one factor that may be easily assessed based on both couples’ well-being and health. A happy and stable family is built on the foundation of a healthy marriage, which protects family members from genetic and infectious illnesses. As the excitement of wedding planning rises, one crucial item on the checklist is sometimes overlooked: a pre-marital health test.

In this article, the author shall be discussing its significance and its relation with Article 21 of the Constitution of India. Pre-marital health screening is a test that evaluates the health of couples who are thinking about getting married and informs them about their existing health situation. It also identifies potential health issues that might endanger their spouse and children if they decide to establish a family in the future. Knowingly, this is one of the primary reasons why so many individuals are expressing interest in a pre-marital health test these days.

Premarital medical examination

A premarital medical examination is a series of laboratory and clinical examinations offered to any partners before they sign a marriage contract in order to advise them on how to have a happy married life and healthy offspring, and therefore a healthy family and society. Premarital screening is intended to provide medical advice on the risks of spreading illnesses such as HIV/AIDS, sickle cell anaemia, and other blood disorders to the other partner/spouse or children, as well as to present partners/spouses with choices to help them prepare for a healthy family.

Many studies suggest that the medical examination before marriage is one of the most important preventive health care because it is very important to avoid many diseases, especially genetic and familial diseases, that are prevalent in societies. This may be attributed to the increase in the proportion of relatives marrying each other and the increased possibility of confluence genes that cause hereditary disease. Where there is a higher risk of these diseases occurring when relatives marry, the odds of inheriting recessive genetic characteristics are higher when each parent possesses the disease’s causal character, severely affecting family life and leading to disintegration and disorientation.

The relevance of pre-marriage blood testing is still not well understood among Indians. According to physicians, a pre-marriage blood test is critical to avoid unfavorable future situations such as the delivery of a kid with life-threatening diseases.

Objectives

Premarital health examinations (PHEs) are beneficial for preventing sexually transmitted infections (STDs) within a couple, detecting reproductive issues or hereditary disorders that may be passed down to kids, and providing family planning and genetic health counseling. The purpose is to get a blood test before getting married will help you avoid spreading any genetic, infectious, or transmissible illnesses to a spouse or children.

Some hereditary blood disorders (such as sickle-cell aneamia and thalassemia) and infectious diseases (such as hepatitis B, hepatitis C, and HIV/AIDS) are being controlled.
Increasing public understanding of the notion of a complete and healthy marriage.
Reducing the amount of stress placed on hospitals and blood banks.
Keeping families from experiencing social and psychological issues as a result of their children’s suffering.
Reducing the financial burden of treating wounded people on the family and community.

As a result, couples who are going to marry soon should have their premarital screening done at least a few months before the wedding day, so that they may better arrange their life, as the premarital compatibility certificate is only valid for a limited period. When necessary, the infectious illness screening might be repeated.

Significance

Premarital screening raises awareness of each person’s medical condition and its potential impact on the relationship.

Determine the intended bride and groom are in good health.
Developing knowledge of hereditary blood disorders such as sickle-cell aneamia, aneamia, and thalassemia, which may be handed down from one generation to the next.
Infectious illnesses and sexually transmitted diseases such as syphilis, hepatitis B, hepatitis C, and HIV are being controlled.
Avoiding social and psychological issues for families dealing with serious illnesses like HIV/AIDS and thalassemia.
Create a suitable treatment strategy to enhance fertility by identifying any issues or health-related disorders that might influence pregnancy and the fetus.
Raising awareness of the importance of having a complete, responsible, and healthy marriage.

Functions

Premarital health examination (PHE) is a preventative health strategy that includes:

early detection of sexually transmitted diseases (STDs),
reproductive issues,
hereditary illnesses that can be passed down to offspring, and
advice on family planning (number of children in a family) and genetic health.

PHE can provide appropriate and required actions to prevent the transmission of diseases among couples, particularly curable sexually transmitted diseases, STDs, to enhance successful conception and fecundity, or to prevent genetic disorders from being handed down to the next generation.

Checking reproductive system : to enhance confidence before pregnancy

A vaginal ultrasound is a kind of technology that uses sound waves with high frequency to create images of the inner parts and it is performed using a probe that is placed into the vagina of an individual. It helps to analyze the inner structure maximally used during pregnancy to study reproductive organs so that harm like miscarriages can be avoided. Vaginal ultrasonography is being done by the obstetrician. It helps in the examination of:

The structure of the vagina, uterus, fallopian tubes, ovaries, and cervix.
Monitoring the growth and development of an unborn
Myoma uteri, cysts, and polycystic ovary syndrome (PCOS), as well as excessive monthly flow, irregular menstruation, and menstrual clots, are all abnormal disorders that reduce the chance of pregnancy or result in unhealthy pregnancy.

The necessity of premarital screening for women with low chances of getting pregnant

According to the World Health Organization (WHO), women are most fertile during the age of 18-35. Women’s fertility begins to decline beyond the age of 35. Infertility is defined as the inability to conceive babies regardless of having sexual intercourse even without a contraceptive for a long period. An individual also faces infertility even though with regular periods. Statistical data shows that a large number of couples, up to 20-30 percent, face the issue of unhealthy pregnancy or sexual-related concerns, resulting from medical issues with either male or female or with both that interfere with pregnancy. Due to these kinds of concerns, premarital screening comes as a savior for the affected people. Fertility in females is known to decline consistently with age, hence the risk to develop infertility rises substantially.

The family plays a significant role in disability prevention by identifying the factors that cause disability through awareness and maintaining the safety and health of children before and after birth, thus preventing the occurrence of disability in their members through medical examinations prior to marriage. It is possible to minimize the transfer of some diseases, as well as the transmission of some mental and biological problems caused by hereditary factors, between couples. Despite the fact that pre-marital medical screening is required to avoid inherited diseases, many people in society hold different opinions on its relevance. Although a modest percentage of couples get pre-marriage blood tests these days, the number is still relatively small. When it comes to their habits and beliefs, people are generally resistant to any new activity that they are unfamiliar with.

Fortunately, due to advancements in technology, around 70 percent of couples who opt for premarital tests get to know about abnormalities that are causing harm to them which require timely care. Premarital or reproductive testing advice, delivered by professionals should be followed by people with due care to avoid the chances of conception.

The pre-marital medical examination case at the High Court of Madras

Apart from other violations like child marriages, denial of the right to select a life partner, forced marriages against one’s choice, elderly men marrying young girls, and so on, are the number of illustrations of marital crimes. This instance is an ideal illustration of how weddings are handled by concealing the prospective spouse’s flaws, sicknesses, and incompetence. This case was heard before the Madras High Court on the 5th of August, 2016, and it sheds light on the need for pre-marital screening before marriage.

Facts of the case:

The petitioner, an unfortunate young lady, has pleaded before the Family Court for annulling the marriage. She contends that after her marriage when she went outside on their first trip. She got to know that her husband has a huge wound on his left thigh and when she asked about it, he told her that he is having a boil on his left thigh that got bursting oozing pus. Due to this, the marriage could not be consummated. The petitioner states that the trip was a nightmare to her as pus was oozing out of the wound during the trip. On their return, they consulted a skin specialist and he advised him surgery. But pre-testings revealed that he has a hole in his heart. Additionally, after surgery, it was investigated that shocked and shattered the petitioner as it revealed traces of Cancer in the specimen.

It is further contended that the respondent’s health issue was discovered when he was young and that the respondent and his family members purposefully concealed it from the petitioner and her family members prior to marriage.

Issues raised

The devastated petitioner sought divorce from the respondent after feeling tricked and cheated. Despite the petitioner’s and her parents’ requests, the respondent refuses to agree to a mutual divorce. In addition, the respondent is infertile and unable to have children is a counterblast to the petitioner’s divorce petition at which the respondent seeks restitution of conjugal rights.

Later, during the trial, the medical records produced by the respondent himself before the Court proved the hole in his heart and cancer. Then, the only question to be decided is as to whether there was the suppression of these serious health problems by the respondent when he got married to the petitioner.

Judgment of the case

The Court rejected the respondent’s claim that he told the petitioner about his heart disease prior to marriage and came to the firm judgment that the respondent married the petitioner fraudulently by concealing his heart disease. Therefore, for suppression of the respondent’s health problems, the marriage between the petitioner and respondent has to be annulled. Since the respondent’s health condition is established by medical records, and it is also clear that the respondent was aware of his disease prior to his marriage, it must be concluded that the respondent has deceived the petitioner for marrying.

Significance of this case concerning pre-marital screening

If the pre-marital examination of the respondent had been done, the diseases would have been diagnosed and the marriage would have certainly been stopped.

This case would amply demonstrate how a young lady suffers as a result of a marriage that was done without sufficient investigation and verification of the groom. Therefore, it is essential for the prospective brides’ and grooms’ parents to conduct the required investigations before the marriage. However, most weddings are performed in haste and hurry, and the participants are inevitably victims of violations of their “dignity,” “human rights,” and “right to a decent and meaningful life,” as provided under Article 21 of the Constitution. Many difficulties related to medical concerns, marriage failure due to fraud, non-disclosure of health problems, and other issues may be avoided if pre-marital tests are performed.

Potential risks : if premarital checkups are ignored

If a couple avoids premarital screening, they may face the following health issues:

Inadequate family planning for having children
Time waste for addressing fertility-inhibiting diseases that may have been detected and treated sooner.
Excessive worry and tension during pregnancy as a result of poor planning and preparation
Increased risk of significant pregnancy problems such as aneamia, diabetes, thyroid disorders, and eclampsia, a life-threatening pregnancy condition characterized by high blood pressure, protein in the urine, convulsions, and coma.
Preterm labor, miscarriage, and poor fetal growth and development are all examples of fetal difficulties.

However, issues are not restricted to health; couples may have difficulties in their daily lives and relationships, including:

Post-marriage issues: Failing to undergo fertility testing might ruin a couple’s relationship. Negative findings from a premarital test may result in the wedding being canceled in rare instances. On the other hand, completely avoiding these tests may jeopardize the marriage.
Unnecessary expensive procedures: Couples who are unsure about their fertility may be led to pricey therapies in order to avoid infertility. When couples choose to participate in numerous expensive procedures, they are frequently unaware of their real fertility. These therapies are ineffective and might even cause significant health concerns in some people.

Many cases are reported at various places, in which a lenient approach has been taken, or due to less awareness regarding this people face unnecessary trials that they can avoid at the very onset simultaneously save their expenses on treatment and trials that result due to its absence. Even though many couples are looking forward to getting married, many are wary about premarital examinations. These tests, on the other hand, are a crucial component of general health.

What happens if the findings of the premarital screening reveal an anomaly or a high risk

Following the acceptance of the individual with an abnormal test, the couple meets with a doctor for additional counseling and clarity on the screening results. The doctor will explain the issue, answer any questions they may have, alleviate any worries they may have, and propose appropriate choices so that they can make an informed choice. That is why pre-marital screening is recommended by many medical specialists as well as judiciary also tries to aware people of this respective test so that people may avoid aftermath consequences that carry the potential to destroy peace in the family.

Recommendations to premarital screening

Before the pre-marital examination, it is recommended that the couples fill out separate questionnaires on every sex experience, sickness history, family history of genetic disorders, family planning, and reasons for taking PHE.
Staff carefully examine the responses to the completed questionnaire and recommend STD and genetic illness testing.
For the PHE program, many packages are advised. STDs (syphilis, human immunodeficiency virus (HIV), gonorrhoea, and hepatitis B), reproductive issues (sperm analysis), and offspring or inherited diseases should all be tested as part of the PHE program’s baseline screening (rubella, thalassemia).
Couples with a family history of a certain hereditary illness should undergo further testing. After finishing the PHE program, counseling on family planning, genetic health, and result explanation are suggested.
Awareness regarding pre-marital screening is necessary as it additionally avoids the trials that happened due to non-disclosure of health issues before marriage.

How to pick an appropriate diagnostic center for a pre-marriage test

Before picking the finest diagnostic facility for their pre-marriage test, a couple should think about a few things.

The diagnostic center’s repute
If the diagnostic center employs high-tech equipment
The report is delivered on time
The accuracy of the diagnostic center’s reports
The center’s hygiene and sanitation are up to par
Staff members’ and nurses’ expertise and experience
Affordable rates
Home collection services are available.

Role of women : pre-marital screening

Premarital health checks for men and women are comparable, there are certain extra tests for women who want to start a family in the future. Between the ages of 18 and 35, women are most fertile. Their fertility begins to diminish once that timeframe has passed. Premarital screening not only assists in discovering problems that impair fertility but can also help in increasing the odds of conceiving.

Before getting pregnant, vaginal ultrasounds are frequently suggested to evaluate a woman’s reproductive system. The imaging scan offers a good view of the reproductive organs, making abnormalities and grounds for worry simpler to spot.

In this domain, there has been a minimal study on the impact of gender. However, it has been discovered that the majority of the time, it was women who recommended having a PHE, which is not unexpected considering how active women are in raising the next generation. Such gender differences are significant in PHE counseling and advertisement availability. Suggestions for promoting PHE may be most useful when directed at women. One option is to teach students about the role and value of PHE in schools, with a focus on young women.

Premarital screening and the right to health: Article 21

The Supreme Court of India in Bandhua Mukti Morcha v Union of India & Ors (1983) defined the right to health under Article 21 of the Indian Constitution, which ensures the right to life, as there is no express acknowledgment of the right to health or healthcare in the Constitution.

The premarital medical examination is a concern under the Right to health that may safeguard an individual from harm that may be recognized after marriage. There are many instances in which Honourable Courts have interpreted the need for premarital testing to avoid the issues. Additionally, showed the requirement of awareness among the people to acknowledge the premarital screening.

Premarital screening from a human right’s perspective

Premarital testing not only violates the right to privacy, but it also violates human rights, particularly the “right to marry” and the “right to have a family.” It considers obligatory premarital testing to be a basic ‘human rights problem,’ citing Article 16 of the Universal Declaration of Human Rights, which gives a right to an individual of the required age to marry and have a family irrespective of discrimination on the basis of race, country or religion. Inadvertently stigmatizing persons who may be at risk of infection and who may choose not to marry because they are afraid of a positive test and the questions that family members may ask.

Other concerns raised include a lack of privacy, like in the example from Malaysia, one Muslim couple having to ‘submit a certificate exposing their HIV status to the state religious department while seeking for a marriage license.’ The number of people involved in the testing and counseling procedure undermines the right to privacy and confidentiality, with often no clear guidelines or protocols as to who has access to the results and where this information could be disseminated, and potentially catastrophic consequences in terms of social stigma and discrimination if confidentiality is breached.

Furthermore, others have objected to such measures, particularly in Asia and the Middle East, such as India. People argue against premarital testing for a variety of reasons, including the increased risk of stigma and discrimination for HIV-positive people, the issue of a test-taking place during the ‘timeframe,’ the role of the state in limiting women’s rights, and the conclusion that ultimate responsibility lies with the individual. They argue that, rather than supposedly protecting women’s rights, premarital testing can denigrate and disempower them, because if both parties test negative before marrying, the woman will be less able to negotiate to condemn the use of safe sexual practices, leaving them vulnerable and at risk of infection.

They also believe that rather than using coercive obligatory testing techniques, the state’s responsibility should be to establish an enabling environment for obtaining information about testing that is conducive to voluntary counseling and testing. These services would be well-received by the public, and they would be effective in preserving and improving health. Only by giving proper education and training to primary health care professionals on all health and social concerns could public literacy on pre-marital checks be increased.

International Covenant on Economic, Social, and Cultural Rights (ICESCR), which was adopted by the United Nations General Assembly on December 16, 1966, and supervised by the UN Committee on Economic, Social, and Cultural Rights. Taking into account, Article 12.2 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) that defines the Right to Health; “ the right of everyone to the enjoyment of the most elevated achievable standard of the physical and psychological well being” that also mentions about the right for the prevention of the disease, the right to treatment and control that creates a need for the foundation of prevention and instruction programs for health-related concerns such as sexually transmitted diseases (STDs), particularly HIV/AIDS, & those influencing sexual and contraceptive wellbeing, just as the advancement of social determinants of good wellbeing.

As per the United Nations Convention on the Rights of the Child, which was adopted in the year 1989“ says that “the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members, particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,”.

Framework for the implementation of the Right to Health

As per the WHO, In this case, the framework of Availability, Accessibility, Acceptability, and Quality should be enough for implementation of the Right to Health.

Availability alludes to the availability of pre-marriage and pre-pregnancy genetic mentoring and testing administrations at specific offices/focuses the nation over.
Accessibility implies governments should give it free or at a diminished expense for the couples planning to wed soon, and it ought to be accessible without prejudice as pre-marital screening is expensive. Information about consanguinity and its effects on public health, as well as assistance for consanguineous couples expecting to marry soon, ought to be accessible through TV, radio, the web, papers, versatile applications, banners, and different means. Accessibility might vary among rustic and metropolitan districts, destitute and affluent communities, and rich and helpless areas.
Acceptability suggests that the previously mentioned administrations stick to clinical morals and are socially appropriate, for example, being mindful of gender needs and keeping up with the privacy of premarital screening results and individual wellbeing data.
Quality alludes to the previously mentioned services being logically and medicinally appropriate, just as of top-caliber; this requires educated wellbeing laborers and appropriate equipment. Simultaneously, it is evaluated from both the wellbeing framework and consanguineous couples’ perspectives.

The ability to marry and have children is a basic human right. Article 23 of the International Covenant on Civil and Political Rights (ICCPR) gives the right to an individual of marriageable age to marry and simultaneously recognizes the right to start a family. Human rights ideas should be used to guide all components of the premarital screening program, may include planning, design i.e. defining strategies, objectives, implementation, monitoring, and evaluation. Nondiscrimination, involvement, inclusion, and responsibility are among the ideals by UNICEF, Human Rights-Based Approach. Personnel working in premarital screening programs can also attend introductory training in this human rights-based approach.

According to WHO, all accomplices should contribute to the implementation of pre-marital programs. Concerned authorities shall enact laws, religious leaders shall reconsider therapeutic abortion if the fetus is afflicted or diagnosed with a grave congenital malformation, employees in primary health care, researchers, doctors, geneticists, disease prevention and control, and social services, subject-matter experts, mother and child health care.

The program’s monitoring and evaluation should be presented in terms of progress toward attaining goals in terms of the program’s allotted budget and government spending, percentage of couples who have access to the screening program, cost-effectiveness analysis, rates of infectious diseases (e.g., hepatitis B, hepatitis C, and HIV/AIDS), and genetic-recessive diseases (e.g., hepatitis B, hepatitis C, and HIV/AIDS), congenital malformations among children, inborn errors of metabolism diseases (e.g. mucopolysaccharidosis, phenylketonuria), multifactorial disorders (mental retardation, asthma, diabetes, and epilepsy) and sensorineural deafness, consanguine.

Outlook of the people : pre-marital screening

Marriage is a significant event in a couple’s lives since it marks the beginning of their plans to create a family and ushers in a new stage in the development of emotional, social, familial, and healthy connections. A premarital test is a health examination of couples who are about to tie the knot, in which they are tested for genetic, infectious, and transmissible diseases in order to decrease the risk of disease transmission to each other and their children.

Few people believe that knowing your partner’s genetics will not only provide you with the necessary precautions and treatment options, but it will also help you understand the tendencies of health conditions in your partner, such as cholesterol and blood pressure levels, and it will help couples better care for their partner, whereas others believe that there are certain things you need to know. Marriage is the start of a new and exciting adventure. It’s ideal when both partners are aware of each other’s health. There’s no going back after you’ve tied the knot.

Another issue about premarital examinations is that some individuals feel that if abnormalities in the findings are discovered, the couples would be separated, and it will prevent the suffering people from having a family and a tranquil existence. Like; for example, In India:

Indian status

Premarital screening is regarded as a human tragedy that may have been avoided. If physicians conduct premarital clinical tests, it would prevent not only impotent from marrying but also marriages between persons suffering from severe and incurable illnesses. Furthermore, governments should prioritize addressing these types of human problems before imposing this screening procedure, since doing so will cause mayhem in society. It was also emphasized that women were the worst victims in such situations and that it would be a violation of women’s basic human rights, as well as their right to a good and meaningful existence.

Unfortunately, there are no regulations in India that require pre-marital screening, and there is a social stigma associated with requesting such testing before a wedding. For example, In Australia, premarital screening is required for all couples. The regulation is now in effect in the United Kingdom and China as well. People are hoping that India would follow suit shortly.

There are many cases due to which people fear getting a pre-marital screening. Like in the case of Surjit Singh Thind v. Kanwaljit Kaur (2003), the husband wanted to produce his wife’s virginity test since she was requesting a divorce because he was impotent. The Court dismissed the husband’s claim, ruling that forcing a woman to take a virginity test is a violation of her right to a dignified existence and her right to privacy under Article 21 of the Indian Constitution.

International scenario

The necessity for Pre-marital Health Examination (PHE) implementation in terms of service differs country-to-country. Except in Heilongjiang, China mandates couples to undergo PHE before registering for marriage, and PHE is no longer required for getting a marriage certificate after 2003. Saudi Arabia made it necessary for anyone planning to marry to take PHE in 2003. Couples contemplating formal marriage in Iran are required to go through a series of screening procedures in government-run laboratories. In the United States, several states mandate premarital serologic screening for syphilis, rubella, HIV, and other diseases. PHE is not needed in Taiwan, nor is it covered by National Health Insurance. In Taiwan, just 7-23% of married couples reported having PHE. Couples in Australia are required to undergo premarital screening. The regulation is now in effect in the United Kingdom and China as well.

In 1973, Cyprus was one of the first countries to make -Thalassaemia premarital testing obligatory. Iran (1997), Saudi Arabia (2004), and the United Arab Emirates (UAE) were among the nations that participated in the program recently (2011). The usefulness of premarital testing for -Thalassaemia in the Middle East was investigated, and it was discovered that it reduced afflicted births in countries where prenatal screening is available and therapeutic abortion is considered, such as Turkey, Iran, and other Middle Eastern nations.

The goods covered in PHE differed according to the policies of every country. Rubella, a dangerous illness produced by a virus that exclusively affects women, and HIV testing is needed for premarital couples in several states in the United States, is included in the mandatory PHE in Saudi Arabia, and the voluntary PHE in Heilongjiang, China.

In Saudi Arabia, Iran, Heilongjiang, China, and Taiwan, hepatitis is tested as part of the obligatory PHE. In Saudi Arabia, thalassemia is tested as part of the required PHE, whereas in Taiwan, it is covered in parts of the voluntary PHE. In Saudi Arabia, screening for G6PD deficiency, sickle cell aneamia, and hemophilia is included in the obligatory PHE. PHEs, in other words, are more concerned with sexually transmitted infections or genetic disorders than with reproductive issues.

Conclusion

Premarital health examinations (PHEs) are beneficial for preventing sexually transmitted infections (STDs) within a couple, detecting reproductive issues or hereditary disorders that may be passed down to kids, and providing family planning and genetic health counseling. However, nothing is known about the PHE program’s implementation. Premarital testing programs that give credible and unbiased information should be used to educate couples. The entire image is influenced by family history, hereditary factors, age, nutrition, exercise, weight control, and addictions. Pre-marital screening aids in the detection of potential health concerns and dangers for both the couple and their offspring. Couples should be examined so that they may better understand their genetics and take precautions or treatments as needed.

References

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Concept of the bulk deal in the stock exchange

By

Oishika Banerji

-

November 12, 2021

0

stock-exchange-3087396_640 — Image source: https://blog.ipleaders.in/all-you-need-to-know-about-investing-in-stock-exchange-in-india/

This article has been written by K Jyoti Rao pursuing the Diploma in General Corporate Practices from LawSikho. This article has been edited by Tanmaya Sharma (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

Bulk deal means that the aggregate or number of shares bought or sold is more than 0.5 per cent of the number of shares in a listed company. These bulk deals can happen through the normal trading window provided by the trader. Whenever these transactions happen the brokers who manage these bulk deals have to reveal these transactions to the stock exchange. As compared to block deals, bulk deals are visible to everyone. These are basically the opulent investors such as the fund houses, FII’s (Foreign Institutional Investors), Banks, Insurance, firms and HNI’s(High Net worth Individuals) given the high amount required to enter into these transactions which involve and include a percentage of shares. Particularly, investors look at the bulk and block deals which show a keen interest in the big stocks. If several deals like that happen in stock continuously over a period of time, these can be taken as a sign of confidence and the price of the stock may increase in the near future but big institutions or investors buying the shares through such deals does not mean that the stock for this will increase in future. Those brokers who facilitate the trade are impelled to notify the particular exchange about the deal. They must inform the stock exchange within an hour of the closing day of the trading, especially if the deals are done through a single transaction. It’s the sole responsibility of the broker who conducts the transaction to inform the stock exchange about the fact that the trade of high-value volume has been conducted.

Some specific details have to provide by the Brokers about the deal such as:

Bought the script or sold the name of the client.
The quantity bought or the volume of shares bought or sold and the trade price.
Apart from sharing the information, brokers must also share it with the public after the trading hour closes on the same day of implementing the trade.
Bulk deals must mandatorily result in delivery.
Buyers or sellers are required to pay the Securities Transaction Tax (STT) on bulk orders.

This article mainly outlines and attempt to address to explain and address the issues: · Overview about the Bulk deal.

Bulk and block deals

To increase the transparency in the block and bulk deal, preventing them from the rumours and speculation is the main reason for the introduction of this deal by the SEBI. When the volume of the trading increases in the stock, it creates all sorts of rumours including the sale by the promoter or interest shown from the institutional investors. Earlier times, before the guidelines were issued by this the disclosure of Bulk and the block deals were issued, these transactions were made in a secret manner. Apart from the parties involved in this i.e. the buyer and the seller, no information shall be shared with the retail investors about the size of the deal, their stock price and their related rumours on that particular subsequent day on the block deals. Thus, the introduction to the bulk deal and the block deal is considered to be good which gives it transparency, for better clarity and specifies the reason for the increase in volumes.

Major participants in the Bulk/ Block deals

Major participant includes in the bulk and the block deal is:

Institutional players;
High Net Worth Individuals (HNIs);
Mutual Funds;
Financial institutions;
Insurance Companies;
Banks;
Venture Capitalists;
Foreign Institutional Investors (FIIs);
Foreign Institutional Insurance companies.

These are the market players which trades included in the bulk and the block deals. Promoters use this window in many companies.

Interpretation of the Bulk and the Block deals

Most of the investors get excited by seeing the names in the bulk /block deals in the particular stock that does not mean that the price of that particular stock will change or increase. Investors should know the fundamentals of the stock and its performance over the years among those other things. Investors should understand the risk involved before any investment.

These deals are usually done by the Foreign Institutional Investors (FII’s), Domestic Institutional Investors (DII’s) and the mutual funds and in some of the cases these are the High- Net- worth- Individuals as well. These deals do not necessarily mean that the expected price may likely increase or down. In the case of the bulk deals which happen on a continuous basis on a trading day, it could be expected as a sign of big variance expected at the share price in the near future. It could also happen in the operator driven counters. These bulk and block deals are considered not a good investment strategy. It is difficult to predict the conditions or the circumstances under which the buyer is buying or selling the shares. Investors are advised not to make any assumptions for the prices that will likely increase or decrease on the basis of such deals and the investors are advised to look into their fundamentals, their past performance, their future plans of the company before investing in any company. If any such trade has been made through a single transaction, the broker shall inform the BSE/ NSE on an immediate basis about the fact that the particular transaction has been conducted or made. If that particular deal has been conducted through multiple transactions, the broker shall inform the stock exchange about the bulk deal within one hour from the closing of the trading day. After such bulk deal has been conducted, the broker is required to inform about the BSE/NSE:

Scrip Name;
Clients Name;
Quantity of the shares Bought Sold;
Traded Price;
After the receipt of such information about the Bulk Deal by the stock exchange i.e. The BSE/NSE, the stock exchange, is required to disclose all the relevant detailed information publicly about the transaction made in the public after the closure of the trading hours on the same day after the implementation of the trade.
Bulk trade is conducted in the normal trading hours itself and is visible to everyone in the normal trading window. All these trades necessarily result in Delivery and cannot be squared off the day.
Securities Transaction Tax is charged on such orders in the same manner as charged on all other orders.
The details of all such bulk deals conducted on the BSE and the NSE on any day are mentioned.

Main characteristics of the Bulk deal

It considers as an indication of the Concentration of interest :

Bulk Deals are basically in the equity markets. It is important to know that the bulk deal is buying or selling since every transaction has two sides. A bulk deal gives us some important clues and is different from block deals. These are different from the block deals.

It creates a sign of interest in the particular stock. It tends to indicate the sudden interest from the informed investors. Over the period of time, the BSE and the NSE seem to check the impact of the stock price of the bulk deal. It is obvious from the fact that the concentration of interest involved in any of the institutions has a positive impact on the prices. The reverse is in the case of consistent selling the word of caution is warranted.

Smart investor’s deals by reporting and executing slightly lower than 0.5 per cent marks.

Separation of the intraday trades and the bulk transfers:

Firstly, we need to separate the normal trading day transactions and the bulk deal transactions. Such data are the intraday trade data and the short-term trade data. These are basically the large investors and the proprietary books trying to ride for the short-term profits. They do not indicate anything.

Secondly, these sets of data are transacted among the institutions. We need to see that the larger positions in the bulk deals segment are nothing but the Foreign Institutional Investors, Mutual Funds, large High net worth individuals and the promoter’s actually shifting ownership around them.

Thirdly, it shall be prudent that the bulk deals are backed by the heavy shortage of funding in future or the arbitrage funds. This is most likely an arbitrary position, not a direct indication.

Focus on the Bulk deal trends over a period of time:

This is the most important takeaway from the bulk deal data. It took a period of 2 years to integrate the bulk data and try to sort it out on the basis of the stock and the date. It will give you

a better and clear idea of how the price of the stock has moved in conjunction with the bulk deals.

It gives you an idea of which the traders and the investors are the most adept at catching the trends as evidenced by the future movement in the process. If these factors are combined these bulk deals become relevant and workable from the view of the selection of stock perspective.

Bulk deals reveal only the part of the interest built up in the stock and manner times are not indicative. Aggregation of long-term bulk deals does not give you important clues. The onus on them is that a detailed study is to be done before embarking on an investment decision. We just need to be cautious there shall be hidden wisdom in the bulk deals.

Conclusion

Thus, bulk and block deals are the two variants of market transactions that are pre-owned by the big institutional investors, large funds and the high-net-worth individuals to execute the large volumes in the stock market. Each of them has its own advantages and disadvantages and its differentiation. Where bulk deals are visible to everyone as their transaction is made during the regular market hours whereas block deals are transacted through a special trading window and afford a greater degree of privacy to the concerned parties.

However, Bulk deals need to report the transactions made at the end of the day and the information shall be made available to the public. Investors shall utilize the data on bulk and block deals which creates the set indicators in their trading strategy as they create larger corporate interest in the direction of the trade. This data shall be used with caution which can often be misleading.

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