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Key factors for regulating encryption under Indian cyber law

By
Oishika Banerji
-
0

This article has been written by Shams Rizvi pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho). 

Introduction

Since the time when Edward Snowden leaked NSA documents and reported about the US cyber-surveillance program, internet privacy has become an important issue around the globe , and with that encryption technology, which earlier was usually reserved for companies and governments, has now become commercially available to people via social media and messaging apps such as WhatsApp, Signal etc. 

Regulating Encryption under the Indian cyber law,  which is open for debate and has come into the mainstream when the Supreme Court refused to allow a PIL seeking ban of WhatsApp on grounds of complete encryption. In this paper we will discuss the basics of encryption and how it is used. What are the key factors which can regulate encryption under Indian cyber law, and how India can create a better encryption policy which will be harmonious to its current regulatory systems in cyber law.

What is encryption and how is it used ?

Encryption is a way to make the data secure. It is a process where one encodes information from plain text to encoded text, the encoded text is referred as ciphertext, as ciphertext can only be encoded and decoded by public key, so  for an unauthorised user, ciphertext will appear to be gibberish. This practice is widely useful when handling sensitive data and is usually used by governments especially in areas of national security such as defence, or when governments are communicating with their embassies abroad. Cryptography which is the study of encryption is as old as Roman and Greek civilizations. Over time it has had many practical applications, but emergence of computers and formation of digital economies across the world made encryption a necessity for both government and private organizations 

As technology is progressing, encryption is becoming more and more complex and sophisticated. Nowadays, messages are encrypted by using bits (0 and 1 in the binary number system). Various key sizes can be used to encrypt data, depending on their strength. For example, an 80-bit encryption refers to the key size of 80 bits,. Hence a higher bit encryption provides a better security. The significance of bit-size in formulating encryption regulation will be discussed further in this article.

Major factors for regulating encryption under Indian cyber law

Encryption in today’s world is something which is equivalent to Privacy, and just like America and rest of the globe, the issue of Privacy is a very significant aspect for Indian Law and for Indian Policymakers, especially after the Puttaswamy Judgment,where  it was unanimously recognized by the supreme court that Right to Privacy is a fundamental right. Hence, there are various factors which must be considered by Indian Lawmakers and Policymakers in order to regulate encryption under Indian cyber law. Some of them which will be discussed in this Article are listed below:

  1. Proportionality between Privacy and National Security;
  2. Establishing a Balance between Economic and Legal Factors in play.

The above factors are the key factors that must be considered by policymakers and lawmakers while forming encryption laws within cyber laws in India. The above list is not exhaustive, but they are the key factors which are significant in regulating Encryption laws in India.  The factors are as follows :

  1. Proportionality between Privacy and National Security

This is one of the biggest concerns for citizens as well as lawmakers and it appears to be one of the greatest challenges for lawmakers and policymakers regarding Encryption laws in India. Although the issue of Proportionality is something which is applicable to most laws. But, Encryption laws are something which will have imminent legal, economical as well as geopolitical effects which are discussed in successive factors below.  

Lawmakers must have a harmonious approach while forming Encryption laws in India as usually in most cases the state usually prioritizes the issue of national security over the issue of privacy. Just like any other nation, India follows the same suit. .  The current functioning of the state and the present outlook of the government regarding Encryption regulations are discussed below through case laws :

  1. Case of Blackberry  2007-2012

The first issue of National security vs Privacy appeared in the year of 2007 when the Indian government directed RIM (Research in Motion). A  Canadian company behind the smartphones of Blackberry, to give law enforcement access to its data which was encrypted. RIM as a manufacturer of Blackberry was not subjected to encryption controls which were applicable to telecom companies under the licensing agreement. Later, the Canadian Manufacturer was pressured by the government to hand over the encryption keys and move its servers to India, or the government would block blackberry services in India. As these requests by the state intensified after the 26/11 attack, as the Militants involved in the attack were using Blackberry handset in order to communicate with their handlers in Pakistan, RIM finally relocated its servers to India and handed over the encryption keys to the government. This step by blackberry lowered the popularity of Blackberry globally which in return also lowered its stock price. It also created a powerful precedent for the government to be used later. 

  1. Case of Draft National Encryption Policy 2015

In September 2015, the central government released and circulated the draft of the National Encryption Policy. The main takeaways of National Encryption Policy are as follows:

  1. According to the Draft, the user shall reproduce the same Plain text and encrypted text pairs using the software/hardware used to produce the encrypted text from the given plain text. All information shall be stored by the concerned B/C (business/citizen) entity for 90 days from the date of transaction and made available to Law Enforcement Agencies as and when demanded in line with the provisions of the laws of the country.
  2. Only the government of India shall define the algorithms and key sizes for encryption in India, and it reserves the right to take action for any violation of this Policy. Businesses will have to keep all encrypted data and also make it available to Law Enforcement Agencies as and when demanded in line with the provisions of the laws of the country.
  3. Service providers offering encryption will have to register with the Indian government. Service Providers located within and outside India, using Encryption technology for providing any type of services in India must enter into an agreement with the Government for providing such services in India. The Government will designate an appropriate agency for entering into such an agreement with the Service provider located within and outside India. This Policy due to its terms and conditions got backlash from various members of society including lawyers, technology experts, civil societies, social activists etc. It was later withdrawn by the government.

Apart from case studies above, there are many examples available internationally where the government has prioritized the issue of national security over the concern of privacy of individuals. It includes Apple Inc. ‘s encryption dispute with the FBI(Federal Bureau of Investigation) in America, Russian government dispute with Telegram where the company refused to provide encryption keys to FSB(Federal Security Service) etc. This concern of privacy is a global one and usually companies and the state are at an impasse  with each other. Hence, it is important to create a balance between both the issues despite it being a challenge for the government and lawmakers to do so.

  1. Establishing a Balance between Economic and Legal aspect of Privacy.

This factor is directly proportional to the above factor of Proportionality between Privacy and national security. As discussed above now Privacy in itself has become a feature for commercialization. Hence a country’s opinion on Privacy can affect the private sector and may affect the economy of a state at large. 

Economic Factors- Privacy has become a major selling point now and the tech industries around the world are exploiting this in order to commercialize and sell their products. It is also necessary for countries to understand and consider the economic aspect of Privacy and how it became a selling point for many companies and industries and what economic benefits can a country get if a nation takes the issue of Privacy of an individual or an organization seriously by allowing it to encrypt its data and personal information and making suitable laws which are friendly towards individual privacy and encourage encryption.  

Case analysis of Australian Encryption Laws

One must understand what economic loss a country can face if laws regarding encryption are not business friendly. In 2018, the heads of Australia’s law enforcement and intelligence agencies were given broad powers by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, or TOLA Act, to gain access to encrypted communications. This resulted in causing uncertainty to foreign investors and domestic consumers in Australia. According to the study conducted by the Internet Society on the topic “The Economic Impact of Laws that Weaken Encryption”. There has been some evidence that due to the weakening of encryption law in the countries there are some economic effects which can be seen. The study states “Behavioural responses include changes in firms ’employment practices, investment behaviour, and innovation activity, which are related. For example, investments in business capacity depend on expectations regarding the future prospects for the firm, which depend on the firm’s competitive advantage and on the firm’s investments in R&D and sundry strategic investments (e.g., in its brand image, in cybersecurity, in intellectual property, etc.). As we explain further below, one of the potential behavioural responses that might be anticipated is for firms to reduce their investments in R&D and new product introductions in Australia that are expected to be adversely impacted by TOLA, whether directly or indirectly. To the extent that occurs, estimating the economic impact will depend on computing the future net benefits expected from the deterred investments or improvements in product choice and pricing that otherwise would have occurred. That is inherently more challenging than measuring what actually happened. Thus, the behavioural and outcome-related impacts depend on the business attitudes and expectations. The impacts are potentially economy-wide and even global.”

Hence it can be stated that economic loss and lack of investments in certain sectors due to weakened encryption laws can a be in real scenario, although this issue is further researched by many academicians as there is lack of empirical data to confirm such a scenario but it is one of the possibilities which must be considered in order to make encryption regulations in the country.

Legal factors  

Although we already covered the issue of national security, but legal factors include the issue of under what circumstances can the government can ask for encryption keys of a particular encryption technology used by companies or individuals apart from the issue of national security and what checks and balance does the government and lawmakers should propose to provide accountability to this process which does not come under the ambits of arbitrariness and function under the due process of law of that nation. Some of the issues are listed below:

  1. The challenge of Decryption on demand- The issue of decryption on demand is the most controversial issue which most countries are facing right now, which include countries like Canada, USA, India, Ecuador, Russia etc. This issue is a huge issue especially for democratic nations as most of these nations have to face the challenge of enacting encryption laws which align with their respective constitutions and democratic framework. One of the reasons why it is a controversial issue is because many nations forgo the issue of checks and balances like Canada, which has proposed in its encryption policy that it would compel private companies to deliberately inject weaknesses into cryptographic algorithms or the applications that facilitate encrypted communications. This would create a strong and dangerous precedent which might become a norm in coming years. Hence lawmakers must consider this issue before forming an encryption policy.
  2. Public safety and Cyber Security- Issues like Weakened encryptions protocols and standards, decryption on demand, questions the transparency of the government and this undermines the values of the state and makes a compelling case for individual freedom as a citizen and the issue of privacy which is discussed above. Hence although the concept of encryption is something new as most countries are still working on it and trying to make policies according to their nation’s legal systems.

Conclusion

Although the above factors play key role in determining the encryption laws of a nation, there are other factors which needs to be considered before making encryption laws of a nation which includes Geopolitical effects, formation of encryption laws which can be applicable to all commercial and non-commercial sectors in the country and formation of encryption policy which is future proof. But, countries are still in the phase of trial and error and have not fully understood the effects of encryption policy and the effects  which will be there  on their people, and what are the long-term effects which it can have on that particular nation in terms of international trade and commerce. Hence, India as a nation must learn from the current international trends and  from examples of various countries which have adopted encryption regulations and what short-term and long term effects it has on such countries before adopting and forming its own encryption regulations under cyber law.

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Insight into Saudi’s economic principles under the Constitution

By
Oishika Banerji
-
0

This article has been written by Mohini Sonkar pursuing the Diploma in Business Laws for In-House Counsels from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho). 

Introduction

The adoption of the Saudi Basic Law on March 1, 1992 (hereafter referred to as the Constitution) did not result in a completely new constitutional system. It was only a definition of fragmented constitutional ideas that had been adopted and used in the country and were primarily based on Islamic, traditional, and international views. The Saudi Constitution was written to meet domestic requirements while also being compatible with Islamic rights and obligations and international realities. As a result, it evolved to embody traditional, Islamic, and international features. The desired growth of Saudi society is constrained by the constraints imposed by the regulating mechanisms enforced by the aforementioned principles. 

Saudi Arabia’s Constitution

Due to the constitutional vacuum in Saudi Arabia, the kingdom only joined the list of states with written constitutions in a recognizable and contemporary form on March 1, 1992. For the reasons indicated and detailed below, this date represented a historical event for all intents and purposes. In terms of substantive norms, the Saudi Constitution is heavily influenced by legal concepts derived from Islamic doctrine that apply to governmental practice at both the national and international levels. It incorporated the divisions recognized by the constitutions of various neighbouring Arab, Islamic, and other governments in its formal framework. The Quran and the Sunnah constitute the effective constitution of Saudi Arabia. The Basic law (Nizam), a series of laws issued by King Fahd in 1992, serves as an informal constitution. The government-appointed members act as the nominal arbiters of constitutional matters, but the king retains the absolute authority to determine the outcome of constitutional disputes.

Importance of economic principles of a country

The most basic approach for an economist to help with a constitutional law problem is to analyse the implications of a specific promise or the removal of such a guarantee. The economic function of a constitutional provision is highly dependent on the style of a given economy and, as a result, is not consistent across legal systems or economic systems. For example, the protection of private property in means of production has a varied meaning depending on whether one places this constitutional promise in the framework of an early capitalist economy or in the context of a sophisticated welfare state with promoting employment policies via the use of a tax-subsidy instrument mix.

It is crucial from an economic standpoint to identify precisely those elements of the constitutional guarantee that are economically significant; in distinguishing them from those that are not. The issue of private property can be used as an illustration once more. From an economic standpoint, private property is just too broad a concept to allow for adequate accuracy in economic research. The key feature from an economic standpoint is that the determinations of the various parts of a property right may be made with clarity and sharpness to provide for efficient segmentation of property rights in terms of the unique demands of transactions of vastly varying natures. Consider the significance of dividing property rights in businesses based on capital investments of varying priority and standing, human capital investments, security provided to allow specific transactions to be completed, and so on. The level of detail required for economic analysis may significantly surpass what is generally desired in legal discourse.

The traditional realm of political theory is the normative analysis of constitutional guarantees. An economic evaluation of constitutional guarantees varies from political theory’s analytical method in that its normative results are conditional on normative assumptions; they are merely the logical consequences of specific assumptions chosen for their innocuousness. The above-mentioned approach of simulating a decision behind a fictitious veil of ignorance is a typical illustration of this logical procedure.

Basic economic rights under the Saudi Constitution  

Freedom of Contract

From an economical perspective, freedom to contract is an essential guarantee because it assures, as a necessary condition, that all available knowledge in a society enters economically significant choices and that all available resources in a society are used most efficiently.

Private Property

The protection of private property is especially essential when it comes to the means of production. Again, from an economic standpoint, the guarantee extends well beyond the protection of people’s products and services.

Liability

To be significant, the two fundamental rights of contract-related freedom and private property must be strengthened by the institution of responsibility. The faithful enforcement of contractual obligations necessitates the protection of a responsibility shield for failing to live up to contractual commitments, just as the respective private property rights necessitate the necessity to hold the invader accountable.

Stable legal environment

The three fundamental promises that follow are more or less supplementary to the first three, the traditional threesome of economic rights. Economic policy consistency and predictability are necessary in order to establish contracts involving not only the present but also the future. The same is true for the exercise of property rights having long-term repercussions, such as investment choices. Therefore, the Economic Principle plays an important role for a country.

Provisions of the  Saudi Constitution

Chapter 1 of the Basic Law of Saudi Arabia (Constitution) incorporates broad concepts that establish the Kingdom of Saudi Arabia’s Islamic character. According to Article 1 of the chapter, the country is an Arab, Muslim independent state, its faith is Islam, and the Qur’an and Sunnah (tradition) of the Prophet Mohammed are the fundamental and major basis of the constitutional and legal norms. 

Article 2 specifically lists the two Islamic holidays, Al-Feter Eid and Al-Edha Eid, as the two recognised holidays, emphasising the state’s and its people’s Islamic character. Moreover, the Hijri Calendar is designated as the official Saudi calendar. Similar clauses regarding the society’s Islamic affiliation have been included in the constitutions of various Muslim governments. However, the Saudi legislation in this regard goes a step beyond comparable provisions. It expresses explicitly the Islamic jurists’ notion that Islam and state are linked. As a result, it eliminated any concerns about the Islamization of Saudi Arabia’s constitutional, political, and social institutions. They are most visible, for example, in relation to the origin of Judiciary Laws, Executive, and the structure of the families and society as a whole. As a result, one could be willing to argue: Articles 1, 48, and 67, which indicate that Islamic Law is the basis of both legal norms and political authorities, make such an argument weak.

Saudi Arabia’s governance system is a monarchy, according to Article 5, which codifies the established practice. The throne is hereditary, passing down via the sons of Saudi Arabia’s founder, King Abdul-Aziz Bin Saud, and the sons of his sons. This regulation is specified in Article 5 paragraph (b). The same sub-article suggests that the people recognize the kingship of the most righteous member of the royal family based on the Qur’an and the Prophet Mohammed’s tradition. 

In essence, King Article 8 stipulates that the basis of governance in the Kingdom will be justice, consultation, and equality. These, as well as other societal foundations, are elaborated on in Chapters 3 and 4 of the Constitution: The third chapter mainly focuses on the core social elements of Saudi society. It recognizes the significance of a family based on religion, morality, and patriotism. The strongest bonds among people are those founded on Islamic values of cooperation, integration, and mutual assistance. Another social element is the strengthening of national unity. Education is seen as a further social basis of Saudi society: Chapter 5 of the Constitution deals with the rights and duties of Saudi society. The state is obligated to do the following. ensuring stability and security for citizens and expatriates; caring for its people in cases of incapacity, sickness, and adversity, particularly through an adequate social security system and the encouragement of humanitarian endeavours; providing public health and education and combating illiteracy; protecting Islam; promoting science, art and culture; encouragement of scientific research; preservation of Islamic and Arab heritage; and the establishment and equipping of the Armed Forces Citizens, on the other hand, have a responsibility to protect Islam, society, and the nation as a whole. Expatriates are required to follow Saudi laws as well as Saudi beliefs and norms.

Even before the adoption of the Constitution, the Council of Ministers had both legislative and executive responsibilities. For the first time in the history of Saudi Arabia’s system of government, Article 44 of the Constitution expressly provided for a clear division of powers among the three organs of government—executive, legislative, and judicial. As a result, the government structure is built on the idea of separation of powers, with some degree of cooperation allowed for in the Constitution and other legislation. In general, the makeup of these branches is as follows, according to Chapter 6 of the Constitution: The King and the Council of Ministers have executive power; the King and the Consultative Council have legislative power; and the Judiciary has judicial authority.

The general provisions are specified in the Constitution’s final chapter. Article 81 says that the provisions of the existing treaty signed by the Kingdom with international bodies previous to the implementation of this Constitution remain in effect despite the terms of the Constitution. Laws that are in contradiction with the Constitution continue to be in force, according to paragraph 1 of the Preamble, which does not exclude the amendment of conflicting legislation to comply with the Constitution.

Economic principles under the Saudi Constitution

Under Chapter 4 of the Saudi Arabia Constitution, it deals with economic principles from Article 14 to 22. They are:

  • Article 14: All of God’s bestowed wealth, under the ground, on the surface, or in national territorial water, land, or marine domains under the authority of the government, is the property of the state as established by law. The legislation establishes methods for exploitation, protection, and development of such resources in the interests of the state, its security, and the economy.
  • Article 15: No privilege shall be provided, nor will any public resources be exploited, unless permitted by law.
  • Article 16: Public funds are reserved. The state is obligated to defend it, and both citizens and inhabitants are obligated to do so.
  • Article 17: Land, capital, and labour are all necessary components of the Kingdom’s economic and social well-being. According to Islamic Shariah, they are personal rights that serve a societal role.
  • Article 18: The state defends the freedom and integrity of private property. No one’s property may be taken from him unless it serves the public interest, in which case appropriate recompense is provided.
  • Article 19: It states that public seizure of money is banned and that the punishment of private confiscation may only be enforced by a court order.
  • Article 20: Taxes and levies are to be levied on the basis of justice and only when necessary. Only by law may a person impose, alter, revoke, or be exempted.
  • Article 21: provides for the imposition and payment of an alms tax to authorised beneficiaries.
  • Article 22: Economic and social growth must be pursued in accordance with a fair and scientific strategy.

Conclusion and suggestions

The Constitution of Saudi Arabia emphasizes Saudi Arabia’s Islamic character as a state and society. This is because it ensures the supremacy of principles drawn from the Qur’an and Sunnah above all legal regulations, including this Constitution and international law norms.   In essence, the Kingdom has provided the Islamic world with a constitutional model that allows nations to carry out their international obligations, modern requirements, and Islamic connection. The structure may be replicated by any Islamic state as long as characteristics unique to Saudi society are replaced by aspects unique to the concerned society. It aims for planned growth in the economic, social, and political spheres while safeguarding national traditions in all sectors and also embracing the most sophisticated and productive ways of advancement and development. They emphasize on the judicial system, consultation, and equality as the foundation of government in the Kingdom.

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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List and types of all the PSUs that select CLAT PG exam rank holders

By
Rachit Garg
-
0
CLAT PG
Image Source - https://rb.gy/s1rgga

This article is authored by Akash Krishnan, from ICFAI Law School, Hyderabad. It discusses in detail the different types of PSUs in India, which PSUs recruit law graduates and what is the eligibility and process for such recruitment. 

Introduction

Public Sector Undertakings are companies owned by either the Government of India or any of the State Governments. In PSUs, 50% or more of the paid-up share capital is owned by the Government. In India, PSUs are classified into three categories:

  1. Central Public Sector Enterprises (CPSEs)
  2. Public Sector Enterprises (PSEs)
  3. Public Sector Banks (PSBs)

The PSUs that recruit law graduates through the CLAT PG examination are CPSEs. CPSEs can be classified further into three categories based on their status. The details of the classification have been enumerated below:

Maharatna

The following conditions should be satisfied by a PSU for receiving the status of Maharatna:

  1. It should have the status of Navratna.
  2. It should have an average turnover of Rs. 25,000 crore or more in the preceding three years.
  3. It should have an average annual net worth of Rs. 15,000 crore or more in the preceding three years.
  4. It should have a global presence and should engage in international operations.

Currently, there are 8 Maharatnas in India. Some of the examples of Maharatnas include Bharat Heavy Electricals Limited, Coal India Limited, Indian Oil Corporation Limited etc.

Navratna

The following conditions should be satisfied by a PSU for receiving the status of Navratna:

  1. It should have a Schedule A listing and Miniratna Category-1 status.
  2. It should have a score of 60 or above in the following parameters:
  1. Net profit to net worth: 25 points
  2. Gross margin to capital employed: 15 points
  3. Gross profit to turnover: 15 points
  4. Earnings per share (EPS): 10 points
  5. Performance comparison with other PSUs in the same sector: 20 points
  6. Manpower cost to cost of production: 15 points

Currently, India has 16 Navratnas. Some of the examples of Navratnas include Engineers India Limited, Oil India Limited, Power Grid Corporation of India, Shipping Corporation of India Limited etc.

Miniratna

The PSUs that have made continuous profits in the preceding three years and have a positive net worth are given the status of Miniratna by the Government. Miniratnas are divided into 2 categories:

  1. PSUs that have made continuous profits in the preceding three years and have a net profit of Rs. 30 crores or more in one of the three preceding years.
  2. PSUs that have made continuous profits in the preceding three years and have a positive net worth.

Currently, India has 75 Miniratnas. Some of the examples of Miniratnas include the Airports Authority of India, Bharat Dynamics Limited, Bharat Sanchar Nigam Limited etc.

PSU recruitment for law graduates through the CLAT PG examination

Oil and Natural Gas Corporation Limited (ONGC Limited)

ONGC Limited is India’s leading company and is responsible for the exploration and production of oil and gas. ONGC contributes to around 65% of India’s domestic Oil and Gas production. 

ONGC Limited accepts applications annually for the post of Assistant Legal Advisor (E1 level) and conducts recruitment through the CLAT PG examination. The relevant details of the recruitment process have been enumerated below.

Tentative vacancy

  1. Unreserved: 05
  2. OBC: 02
  3. SC: 01
  4. ST: 01
  5. Total: 09

Eligibility criterion and reservations

Category of postsAge limitEssential qualification
Unreserved, EWS30 yearsThe candidate should have a graduate degree in law with a minimum of 60% marks. Desirable: Practicing advocate with at least 3 years of work experience. 
OBC33 years
SC, ST35 years
PWD40 years (further relaxed by 3 years for OBC and 5 years for SC, ST)
Departmental candidatesAge relaxation will be extended to departmental candidates to the extent of their services rendered in ONGC.
Ex-Servicemen35 years

Selection process

Candidates meeting the minimum eligibility criteria will be shortlisted on the basis of CLAT PG score. The weightage and allocation of marks have been enumerated below:

CriterionAllocation of marks
Qualification25 marks (20 marks for essential qualification and 5 marks for inline PhD)
Weightage of CLAT PG score60 marks
Interview15 marksMinimum qualifying marks in Interview1.     UR and OBC: 9 Marks2.     SC, ST and PwD: 6 Marks
Total100 marks

Candidates have to qualify at every individual stage for final selection. If the total marks of an individual are identical then the order of merit will be fixed on the basis of the weightage of the CLAT Score and if the CLAT Scores are identical then the one older in age is considered senior for appointment purposes. 

Remuneration

The pay scale is in the grade of Rs. 60,000- 1,80,000/- with an increment of 3% per year. besides basic pay, the employee is entitled to allowance @ 35% of basic pay under cafeteria approach, dearness allowance, HRA/company accommodation, contributory provident fund, conveyance maintenance, substantial performance-related pay, a medical facility for self and dependents, gratuity, post-retirement benefit scheme and composite social security scheme as per company rules.

Application Process

Step I: Filling up of Online Application Form

  1. Fill up the Online Application Form that will be available on the careers page of the official website.
  2. Add personal details, educational qualifications and other details as mentioned in the Application Form.
  3. Submit the form after filling in all the details. Upon submission, an acknowledgement number will be generated that will be used for the further stages of the Application.

Step II: Uploading documents

  1. The link to step 2 will be available on completion of step 1. Login using the Acknowledgement Number as username and your date of birth as password. After logging in, the following documents need to be uploaded:

a.     Photograph

b.     Signature

c.      Category Certificate (if applicable)

d.     Disability Certificate (if applicable)

e.     Graduation degree certificates

f.       Certificate/Documents in support of Post – Qualification Experience

g.      DOB Certificate

  1. Once the documents are uploaded successfully, the page will return to the Home Page reflecting status of Step 2 as “Completed.”

Step III: Payment of registration fee

  1. After reviewing the Application and before the final submission, a processing fee has to be paid.
  2. SC/ST/Ex-SM/PWD candidates need not pay the registration fee. General, OBC and EWS candidates are required to deposit Rs. 370 as the registration fee.

Power System Operation Corporation Limited (POSOCO Limited)

POSOCO Limited is a Government. of India Enterprise, under the Ministry of Power. It is responsible for managing the power system operations. 

POSOCO Limited accepts applications annually for the post of Executive Trainee (Law) and conducts recruitment through the CLAT PG examination. The relevant details of the recruitment process have been enumerated below.

Tentative vacancies

  1. Unreserved: 02
  2. SC: 01
  3. ST: 01
  4. Total: 04

Eligibility criterion

Full time 3 years LLB or 5 years integrated law course with not less than 60% marks or equivalent CGPA. Final year students may also apply.

Upper age limit

The upper age limit for applying is 28 years.

Reservation and relaxation

Reservation for Persons with Disabilities candidates will be in accordance with Government directives.

The upper age limit is relaxable for candidates belonging to the following categories as under:

  1.   For SC/ST: – by 5 years
  2.   For OBC (non-creamy layer): – by 3 years
  3.    For General PWD Candidates: – by 10 years
  4.   PWD Candidates: – by 13 years
  5.    For SC/ST PWD Candidates: – by 15 years
  6.   J&K domiciled candidates from 1/1/1980 to 31/12/1989: – by 5 years

Selection Process

Candidates meeting the minimum eligibility criteria will be shortlisted on the basis of CLAT PG score. The weightage and allocation of marks have been enumerated below:

CriterionPercentageQualifying Marks
Marks in CLAT PG85%Based on the merit list
Group discussion3%No qualification marks
Personal interview12%Unreserved: 40% and Reserved: 30%

Candidates will have to qualify separately in CLAT PG and in Personal Interviews.

Remuneration

Selected candidates will be placed on the pay scale of ₹ 60000-180000 and other allowances and benefits as applicable, during the one-year training period. On regularization, compensation package will also include performance-related pay, company leased accommodation/company quarters or HRA, reimbursement of monthly conveyance expenditure, mobile facility, group insurance, personal accident insurance, pension fund, gratuity, pension & leave encashment etc

Application process

Step I: Filling up of Online Application Form

Candidates have to register themselves online at the official POSOCO website with details of their CLAT PG Application No., Control Number, CLAT Roll Number and other required information. The link for registration will be available on the careers page of the website.

Step II: Payment of registration fee

SC/ST/PWD/Ex-SM/Departmental candidates are exempted from payment of application fees. Other candidates have to pay a non-refundable registration fee of Rs. 500.

Oil India Limited (OIL)

OIL is a leading oil and gas company with a pan India presence and a growing global footprint. It is engaged in the exploration, production and transportation of crude oil, natural gas and the manufacture of LPG.

OIL accepts applications annually for the post of Legal/Land Officers and conducts recruitment through the CLAT PG examination. The relevant details of the recruitment process have been enumerated below.

Tentative vacancies

  1. Unreserved: 02
  2. OBC: 01
  3. Total: 03

Eligibility criterion

Full time 3 years LLB or 5 years integrated law course with not less than 60% marks or equivalent CGPA. Final year students may also apply.

Upper age limit

The upper age limit for the Unreserved category is 29 years and for OBC (NCL) is 32 years.

Reservation

  1. The OBC (CL) candidates will not have any concessions.
  2. PWD reservations shall be available for persons with 40% or more disability only.
  3. Age relaxation for PWD candidates: 10 years and 12 years for OBC-NCL
  4. J&K domiciled candidates from 1/1/1980 to 31/12/1989: by 5 years

Selection process

  1. There will be 2 phases for selection: Phase I- Group Discussion (GD) & Viva Voce and Phase II- Pre Employment Medical Examination (PEME).
  2. Shortlisting for GD and Viva Voce is done on the basis of CLAT PG examination marks in order of merit.
  3. Candidates should qualify separately in the CLAT PG examination and the selection process.

Remuneration

Selected candidates will be placed on the pay scale of Rs 24900-50500 (starting basic pay of Rs 24900) in Grade B. The selected candidate will have to serve a probationary period of one year and will be confirmed after successful completion of the same. The approximate total salary in Grade B will be around Rs 75000 per month approximately. In addition to the basic pay & DA, other benefits include HRA or company leased/self-lease accommodation, leave encashment, free medical benefits for self & dependents, gratuity/PF, house building loan, vehicle loan, computer loan, group insurance, etc, as per rules of the company.

Application process

  1. Eligible candidates may apply online on the official Oil India Limited website by filling in the online application form.
  2. The system will generate a unique registration number once the application form has been submitted. 
  3. Candidates should keep the printout of the registration slip. 
  4. All the details mentioned in the Application Form should be true and no changes can be made post submission.
  5. There is no registration/processing fee for any candidate.

Power Grid Corporation of India Limited and Central Transmission Utility of India Limited (PGCIL & CTUIL)

Power Grid Corporation of India Limited is one of the largest power transmission utilities globally. It engages in the activity of power transmission over inter-state transmission systems.

Central Transmission Utility of India Limited is a wholly-owned subsidiary of PGCIL and is in the process of separation from PGCIL. Post-separation, it will function as an independent utility and shall be responsible to discharge all functions of planning & coordination related to the inter-state transmission system.

PGCIL and CTUIL accept applications annually for the post of Executive Trainee (Law) and conduct recruitment through the CLAT PG examination. The relevant details of the recruitment process have been enumerated below.

Tentative vacancies

  1. PGCIL: Unreserved: 02 and OBC (NCL): 01
  2. CTUIL: Unreserved: 05 and OBC (NCL): 01

Total: 09

Eligibility criterion

Full time 3 years LLB or 5 years integrated law course with not less than 60% marks or equivalent CGPA. Final year students may also apply.

Upper age limit

The upper age limit for applying is 28 years.

Reservation and relaxation

Reservation for Persons with Disabilities candidates will be in accordance with Government directives.

The upper age limit is relaxable for candidates belonging to the following categories as under:

  1.  For SC/ST: – by 5 years
  2.  For OBC (NCL): – by 3 years
  3.  For General PWD Candidates: – by 10 years
  4. PWD Candidates: – by 13 years
  5.  For SC/ST PWD Candidates: – by 15 years
  6. J&K domiciled candidates from 1/1/1980 to 31/12/1989: by 5 years

Selection process

Candidates meeting the minimum eligibility criteria will be shortlisted on the basis of CLAT PG score. The weightage and allocation of marks have been enumerated below:

Marks in CLAT PG85%
Group discussion3%
Personal interview12%

Candidates will have to qualify separately in CLAT PG and in the Personal Interview. 

The appointment for POWERGRID & CTUIL shall be done jointly on the basis of the option/preference exercised by the candidate at the time of applying.

The Offer of Appointment shall be issued to the suitable candidates in the order of merit. Once a candidate gets an offer from either PGCIL/CTUIL, their candidature for the other organization may automatically be treated as cancelled, even if they decline the offer/ do not join the organisation.

Remuneration

Selected candidates will be placed on the pay scale of ₹ 60000-180000 and other allowances and benefits as applicable, during the one-year training period. On regularization, compensation package will also include performance-related pay, company leased accommodation/company quarters or HRA, reimbursement of monthly conveyance expenditure, mobile facility, group insurance, personal accident insurance, pension fund, gratuity, pension & leave encashment etc

Application process

Step I: Filling up of Online Application Form

Candidates have to register themselves online at the official PGCIL website with details of their CLAT PG Application No., Control Number, CLAT Roll Number and other required information. The link for registration will be available on the careers page of the website.

Step II: Payment of registration fee

SC/ST/PWD/Ex-SM/Departmental candidates are exempted from payment of application fees. Other candidates have to pay a non-refundable registration fee of Rs. 500.

Conclusion

In a generation where every law student is looking for a corporate job and allow law firms to exploit their talent for a below-par remuneration, such opportunities remain unnoticed. With these opportunities out in the open, law students can choose a different career path and work towards it from the initial stages of the law school itself. These Government jobs are permanent in nature and provide the much-needed sense of social and economic security to an individual. 

References

  1. https://www.ongcindia.com/wps/wcm/connect/2854b572-e989-46aa-869f-3ed8f7c26328/ala2019_1.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE-2854b572-e989-46aa-869f-3ed8f7c26328-mC0fhHs 
  2. http://oil-india.com/Document/Career/Recruitment%20in%20OIL%20through%20Common%20Law%20Admission%20Test%20(CLAT%202017).pdf 
  3. https://www.powergridindia.com/sites/default/files/Detailed_Advt_ET_2021_CLAT_0.pdf 
  4. https://exampariksha.com/maharatna-navratna-miniratna-psus-general-awareness-study-material-notes/ 
  5. https://law.careers360.com/articles/psu-recruitment-through-clat 

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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COVID-19 and the reconditioning of the Indian legal system

By
Oishika Banerji
-
0

This article is written by Rida Zaidi, a law student from Faculty of Law, Aligarh Muslim University. This article deals with the Impact of COVID-19 on the Indian Legal System and its restructuring.

Introduction

COVID-19 being a deadly, contagious disease has crashed every sector of our economy to the core. It has shown us unprecedented times whose impact could not be predicted at all.  Our legal system already had a backlog of cases and the COVID-19 crisis escalated the rate. Our country went under a total lockdown for months which affected the rate of unemployment, fall off in education as it switched to the online mode, healthcare facilities deteriorated, the rate of mental illnesses were on the rise etc. 

The prevalent virus posed some serious threats to the legal system of our country. The legal system shifted to an online mode from the physical courts. As the first wave emerged, the courts were all together shut but the justice mechanism could never cease to function. The article shall deal with the challenges faced by the judicial officers in dispensing justice and the lawyers in offering their services furthermore the way ahead and the reforming of the legal culture of our country.

Changes in the Indian legal system

Virtual courts acted as a custodian in the COVID-19 era. It brought many changes in the pattern of the functioning of the courts at all levels. Our legal system has resorted to the age-old method of delivering justice by-taking into account all the documents and evidence in the hardcopy but the COVID-19 virus reformed the entire legal system. The changes are as follows-

  1. The proceedings were held on a virtual platform where lawyers argued in the same manner in which they performed earlier by producing evidence, examining witnesses and the Judges passed the judgements or orders. 
  2. The vakalatnama, documents, petitions, affidavits etc were submitted and recorded in electronic form. 
  3. The litigants could be updated with the status of their cases through the online portals. 
  4. The prisoners could contact their family members through video conferencing. 
  5. The prisoners were produced on virtual platforms where they were witnessed and examined.
  6. Owing to the virtual platforms the trials were quite speedy and transparent.
  7. Due to overcrowding and congested prison cells many prisoners were given interim bails for the time. 
  8. The installation of e-courts helps the litigants to file complaints from anywhere in the country 24/7.
  9. The practice of live proceedings streaming online could be viewed by the general public.
  10. The promotion of Alternate Dispute Resolution (ADR) which was conducted in an online mode way before the COVID-19 era began. 

It was also held in the case of Anita Kushwaha v Pushap Sudan (2016) that access to justice, apart from falling under the ambit of Article 21, is also guaranteed under Article14.  The Indian legal system has always been flexible in making amendments as and when required. For example, it included the statute of Information Technology Act, 2000 and the digitalisation of e-courts portals and apps for the public to access the copies of the judgements or orders passed by the courts. It was held in the case of Youth Bar Association of India v Union of India (2016) that electronic form of FIRs on the State Police websites were  helpful as the courts could access it in the electronic form. Everything has its opportunities and obstacles and so does COVID-19 which made our legal system technology-friendly in carrying out its daily functions blended with the technical glitches that existed. 

Looming challenges to the legal culture

Adapting to any new culture has certain challenges which need to be mastered. The virtual proceedings constituted some challenges for the law professionals and judges which are as follows-

  1. The problem of being technophobic

There were many instances reported where lawyers were not competent enough regarding the working of the virtual platforms. They had to suffer and were at a disadvantage from those who were technology- friendly.

  1. Connectivity issues

A wide range of people, the parties, their counsels etc hail from a variety of backgrounds and all of them may not be financially well off to have a good network of connectivity or having electronic equipments for the same, which makes their access to justice difficult and is not fair for the litigants belonging to the poor strata of the society. 

  1. Violation of privacy

There was a lot of debate as to the virtual proceedings which are against the right enshrined under Article 145(4) of the Constitution and are against the rule of law although it makes the legal system more transparent.  

  1. Unemployment among the advocates

The pandemic has hit the lawyers, especially the first generation lawyers; they are unemployed and those who were earlier employed were fired from their posts as no senior advocate wanted to recruit new lawyers and to pay them their dues. 

  1. False evidence and conduct of the accused could not be judged

The evidence is produced in the electronic form which could not be relied upon completely as it may not be 100% accurate. The judges face problems during the trial of the accused as they are not able to infer the facial expressions, gestures and body language of the accused which play an important role in discovering the truth. Under certain situations, the streaming is 2-3 seconds delayed than the actual scenario which generates obstacles in analysing the case. 

Advantages of the legal system’s cultural reboot

COVID-19 has rebooted the legal system and has paved the way for a better legal system. The advantages that can be perceived are as follows-

  1. Virtual hearings are quicker, transparent, time-saving, and accessible. It is less costly as the travel fee is cancelled. 
  2. It protects the vulnerable groups of the society such as women, children, the aged etc., from advancing the courts and attending the proceedings. 
  3. It helps in minimising the pendency of cases as virtual hearings take less time in disposing of a suit. 
  4. For certain categories like appeals, final judgement etc. were conducted online and required no physical presence and any paperwork can be executed through the online portals and apps, this led to a reduction in the strength of the people moving to the courts.  
  5. Virtual proceedings minimize the workload of the lawyers by attending more than one hearings in a day from the comfort of their homes or chambers. 
  6. Virtual platforms became a medium for dispensing justice in times of the prevalent virus. It aided the legal system with a solution to the problem of COVID-19. 
  7. Law students who wish to intern at different law firms or under different advocates can do so in the online mode which was not possible earlier due to lack of resources to travel, accommodate or financial issues etc. Different advocates and judges can impart knowledge to their juniors through conducting webinars. 

Everything has its pros and cons and so do the virtual courts. The challenges go hand in hand with the advantages. COVID-19 has renewed our legal system for the better. All the resetting of the courts will assuredly make our legal system more vigorous in its functioning in the future times to come.

A new way forward

As we know, our Legal system is the product of the British justice system.  Our laws have been since their origin unpolished, unresponsive and lead to delayed trials. No doubt there have been a lot of amendments; nevertheless, it requires more of those. The issue of the digital divide is based on lack of access to technological resources like phones, laptops etc. The courts have recommended installing e-Kendras in all court complexes for breaking the digital divide and bringing the litigants at one destination for the assistance of their case formalities that needs to be done. The issue of poor connectivity can be solved by establishing national broadband services in the court complexes of the entire country. Lack of competence in the field of technology can be resolved by arranging awareness and training programmes for the advocates to learn the operation of the virtual platforms. 

The Supreme Court has emphasised the importance of open courts as cases of constitutional and national importance require the general public to be aware of the dominant matters decided by the judiciary of our country. It promotes transparency and openness in the legal culture. The live proceedings of the Courtrooms could be witnessed by everybody online. “The judicial system is by far the most important and significant instrument in preserving democracy and the rule of law.”- PN Bhagwati. The Courts has held “In the case of State of Maharashtra v Dr Praful B Desai (2003) the Court gave guidelines to record electronic evidence through video conferencing breaking all the territorial boundaries” The Courts have digitized in the most unprecedented and improbable times but it had a positive side as well .  We evolved for the better during these unimaginable times.

India’s COVID-19 response :  constitutional and legal instruments

Within our Constitution, the matters of public health and sanitation are dealt with by the state and the local governments  whereas the Central government took up the task of quarantine, inter-state migration. During the pandemic, the government invoked the Disaster Management Act, 2005  and notified the people about the pandemic as an emergency and to be prepared for the deadly disease. Under our Constitution, the powers of the Central government in this regard is very limited because of which the government is restricted to perform only limited functions for the healthcare of the public. We have a colonial law prevailing in our country for such unprecedented times like COVID-19 which is the Epidemic Act, 1897. This Act was legislated for a time when the country is under threat of an epidemic disease but not for the management of public healthcare services. During this crisis, there has been a lot of debate as to certain amendments being made in this particular Act or to enforce any other new legislation for the pandemic. Many issues about the Constitutional and legal instruments appeared on the leading news channels, such as- lack of privacy of the patients and disclosure of their medical treatment, investments to meet the medical treatment for the virus, travel restrictions etc. The legal framework of our country has somewhat failed to quite a large extent as everyone witnessed several blazing loopholes. In many countries like the United States and Australia, special emphasis was laid down upon strengthening the public healthcare laws and the preparedness for the same. For example, in Spain, all private hospitals were nationalised for the sake of creating more hospital beds for the COVID-19 patients. The existing laws can lead to coercing the individuals as their powers are limited and there is no transparency by the government towards the general public regarding the services provided to them in the COVID-19 era.  

COVID-19 : the tussle between the Centre and State relations

Our constitution provides for Cooperative Federalism. The matter regarding public healthcare falls under the ambit of the powers of the State government. and the Centre has very limited powers. The pandemic witnessed a crisis in the relations of both the Centre and the State. The approach of the centre was not cooperative towards providing hospital beds, vaccinations, proper medical treatment etc. There was an uneven distribution of oxygen and vaccines in the states and the centre was not ready to answer. BBC News published an article in April when the second wave was at its pinnacle which stated how India failed to prevent the second wave. The reports showed that by mid-April, the country was averaging more than 100,000 cases a day. On Sunday, India recorded more than 270,000 cases and over 1,600 deaths, both new single-day records. If the runway infection was not checked, India could be recording more than 2,300 deaths every day by the first week of June. The Centre criticised the performance of the State instead of providing an alternative to the problem. People  were running from hospital to hospital in need of beds, ventilators and oxygen cylinders and the State was incapable of providing it all on its own because there were price negotiation problems with the producers or the suppliers or the Centre discriminated in providing these things to the state governments. 

The cases were increasing every day on an uncountable rate whereas on the other hand there was a scarcity of resources to be provided to such patients and the Centre instead of lending help and intervening in these times of crisis in the work of various state government maintained a distance and did as good as nothing and repetitively told the media that the healthcare is a state matter.

No amendments were made in the Epidemic Act, 1897 or no new legislation was framed to realign the functions of the centre and the state in the times of emergency like that of COVID-19.  The global pandemic made apparent the glitches between the centre and the state in those times where both of them should have aided each other for the welfare of the public at large. 

Deep-rooted issues in the Indian Judiciary

The Judiciary, being one of the organs of the government, is the most independent and unaccountable body under our Constitution. It seeks to deliver justice and makes sure that no innocent is found guilty. But the judiciary faces many struggles while carrying out its day-to-day functions which are as follows-

  1. Pendency of cases

The judiciary at all levels in our country is overburdened with a lot of cases which happens due to the long trials that take place for every case-production of documents, examining witnesses, collecting evidence etc., the parties are given dates after dates for the proceedings and the case continues furthermore there is a vacancy for the posts of judges which never gets filled due to lack of judges. 

  1. Corruption

As it is well said that every profession has good and bad people, it applies to all judges as well that some bring pride whereas some bring shame to the white-collar profession. Some judges in order to extract “money”, in favour of a party while passing the judgement or order failing to recall the preamble of our Constitution or the noble job they are serving. The judiciary is held unaccountable which leads to a lack of transparency in scrutinising the performances of the judges. 

  1. Lack of transparency in the appointment of judges

In the mechanism of appointment of judges, be it through the collegium system or through the NJAC, the problem of lack of transparency persists as no one is aware who selects them and on what basis, whether the officers have favouritism towards a particular candidate or not. It all happens behind the curtains.

  1. People under trial

Due to the above-mentioned issues, the accused undertrials have to wait for quite a long period for their proceedings to commence. Sometimes the accused are innocent but in order to prove to the court that they are, the procedure followed is quite lengthy and it takes years for a single accused to get out of the prison.

Can we ensure that judiciary remains unaffected even in pandemic

The world has been affected by the deadly virus, so has our judiciary, yet it is the pinnacle of justice that needs to be taken care of at all costs. The judges and lawyers before serving the people should keep in mind their sound health both physically and mentally because only if they are fit, the people are fit. The virtual courtroom hearings must be adhered to till the situation turns back to normal. All the judges and lawyers must be fully vaccinated before approaching the physical courts. The cases which can be easily dealt with through the online mode must be continued in that mode only. The strength of the courtrooms should be reduced and only the parties and the witnesses should be permitted to be present in the proceedings. The work of dispensing justice should not be on halt as there is an existing backlog of cases and doing so will result in the increase of the backlog which cannot be tackled at any cost. 

The courts should follow all the COVID-19 protocols of wearing masks, maintaining social distance and sanitizing our hands regularly. All the e-filing and paperwork must be done online which is quicker and is more transparent for the general public. The evidence and statements could be recorded and sent to the lawyers to produce it before the courts rather than doing all this in the chambers.

Conclusion

The COVID-19 era is the unprecedented time that brought changes in the lives of almost every individual, every sector, every institution. Every quarter was put on halt for some time but the justice system could not as access to justice is one of our fundamental rights as enshrined under Article 21 of the Constitution. It shifted to the online mode and dispensed justice for the innocents. The legal system was restructured for the better as it made the legal framework quicker and more transparent. Every change takes time to adapt to but in the end, that is what evolution is. There were challenges and hurdles but all paved the way for a better legal system. The judiciary maintained its ethic of serving the people even at the cost of the lives of its professionals yet all the protocols were followed. These times made us more strong-headed and the legal system more adaptable. 

References

  1. https://www.barandbench.com/columns/can-the-indian-legal-framework-deal-with-the-covid-19-pandemic-a-review-of-the-epidemics-diseases-act
  2. https://www.bennett.edu.in/wp-content/uploads/2021/02/5.0-Journal.pdf
  3. https://indianexpress.com/article/opinion/columns/centre-must-make-way-for-states-in-covid-fight-7368026/
  4. https://www.drishtiias.com/daily-updates/daily-news-editorials/covid-19-crisis-centre-state-relations
  5. https://www.iacajournal.org/articles/10.36745/ijca.391/.

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

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Highlights of the draft e-commerce policy

By
Oishika Banerji
-
0
Image source - https://bit.ly/2UwlHxG

This article is written by Akshita Gupta, pursuing BBA LLB from Symbiosis Law School, Noida. This article discusses the highlights of the draft e-commerce policy and its impact.

Introduction

The new e-commerce rules, known as the Consumer Protection (E-Commerce) Rules of 2020, came into effect on July 23, 2020, and the draft was designed to provide a legal framework for consumer protection. The Amendment Rules aim to increase transparency on e-commerce platforms while also strengthening the existing regulatory framework. While a variety of recent provisions are kind of like what the Centre sought of social media companies through the IT intermediary rules announced earlier this year, several proposals within the e-commerce rules are aimed toward increasing liabilities for the web retailers for the products and services purchased on their platforms. In today’s world, where most things are accessible with a few clicks and we are not restricted by constraints such as location, distance, opening hours, and so on, it is critical to have a detailed regulatory framework in place to avoid unfair trade practices in India’s e-commerce space.

Scope of the e-commerce policy

The e-commerce policy is applicable on:

  • All online inventory entities and e-commerce marketplaces.
  • All goods and services purchased or sold through online platforms, including digital products by every e-commerce business owner.
  • All trade practices are unfair and unequal on any e-commerce platform.
  • All e-commerce retail, including multi-channel single-brand retailers and single-brand retailers in single or multiple formats.
  • It applies to all e-commerce platforms that are based outside of India but provide services to Indian customers.

Those entities that own a list of products and services in order to sell them directly to consumers are referred to as inventory entities. One of the most impressive aspects of these e-commerce rules is that they apply to all e-commerce platforms that are not based in India but provide services to Indian customers. Offshore e-marketplaces that operate in India and sell goods or services to Indian consumers must meet the following criteria:

  • A company that is incorporated in India, or a company that is incorporated outside of India but conducts business in India via the internet.
  • Alternatively, a branch/office in any foreign country which is controlled by an Indian citizen.

About the draft policy

Despite the fact that the Consumer Protection (E-commerce) Rules were introduced last year, vendors and brick-and-mortar sellers have complained that the e-commerce giants are not adhering to the regulations. The growing popularity of e-commerce shopping necessitates a stringent set of rules for online marketplaces. The draft report was prepared with the objective of enabling the stakeholders to tap the opportunities that would arise from the progressive digitalization of the domestic and global economy. The draft report seeks to identify strategies for strengthening the regulatory regime – for protecting the consumer and facilitating the ‘Digital India’ campaign through e-commerce. 

Key features

The ground rules

  • In the event of inconsistency, FDI policy will take precedence over e-commerce policy.
  • Marketplaces must be fair to sellers and not exploit data to gain an advantage over them.
  • Marketplaces’ associates and related parties will be subject to restrictions.

Increasing the popularity of e-commerce

  • The government will work to bring more offline sellers online.
  • India’s express delivery service posting and integrating government interfaces to facilitate e-commerce exports.
  • Consumers should be able to access the Government e-Marketplace (GeM).

Consumer protection

  • It is the responsibility of e-commerce operators to ensure that their algorithms are not biased.
  • Create safeguards to ensure that the products sold by sellers are genuine.
  • Platforms will share liability for counterfeits in the event of end-to-end fulfilment.

Ensuring equity

  • Algorithms must not prioritise any vendors, and discount policies must be transparent.
  • To counter digital monopolies, the government will ensure the availability of more service providers.

Government supervision

  • All e-commerce entities must register with the Indian government.
  • The measurement of e-commerce activities will be carried out by the appropriate agencies.
  • The Standing Group of Secretaries on e-commerce (SGoS) will make policy recommendations on e-commerce.

Debatable proposals

  1. On flash sales

Flash sales are sales organised by an e-commerce entity to attract customers by offering specific goods and services at significantly reduced prices, large discounts, or other similar promotions. The initial government proposal included a blanket ban on all flash sales, but a later clarification stated that it may not apply to “conventional” flash sales. These are usually pre-planned sales events for brand new smartphones with limited quantities available at a discounted price. It’s not clear what a typical flash sale entails.

  1. Regarding the country of origin

E-tailers must make sure that product listings include information about the country of origin (CoO), which is a difficult task given the time constraints. Millions of products are available on online platforms like Flipkart and Amazon.

It would be particularly difficult to implement than recommending local alternatives whenever a consumer considers purchasing an imported good or service. It would also be difficult to implement a ranking of local alternatives. Both e-tailers and sellers are uninterested in maintaining their websites.

  1. No e-commerce entity shall engage in the fraudulent sale of goods or services.

The marketplace is operated by companies such as Flipkart and Amazon India, and they are not directly involved in the sale of goods. Platforms that provide services, such as food delivery and travel, also function as marketplaces. Such entities which provide a platform for business and consumers to interact are popularly known as “gatekeepers”. They may refuse, delay or control the access to the site.

  1. Users should not be misled by e-tailers who manipulate search results.

The jury is still out on how these algorithms perform on Indian and international online marketplaces. Flipkart and Amazon India have been alleged of promoting their brands by manipulating search engine results in India.

  1. No e-commerce entity with a dominant market position shall be permitted to abuse its position.

This is an area where the CCI has taken parallel action, as it is fighting a case in the Karnataka High Court to investigate e-tailers and their business practises in response to seller complaints.

  1. Data must be provided to agencies within 72 hours.

Information provided to agencies within a certain time frame, if justified, could be more compliant for e-tailers and sellers than anything else.

  1. No logistics company of a marketplace e-commerce entity shall consider sellers of the same category differently.

E-tailers typically want more sellers to ship their goods through the marketplace’s in-house logistics arm so that they can be delivered more quickly.

  1. Major e-commerce giants would face problems to engage in any activity in the associated marketplace

If related parties are still not permitted to sell on the marketplace, this can have a significant impact on the operations of e-tailers such as Amazon India. Amazon has a minority stake in Cloudtail and Appario, both of which are prominent sellers on the company’s India marketplace. Legal experts are still divided on the issue.

Impact on consumers

E-commerce industries will be prohibited from disclosing consumer information to anyone without the consumer’s explicit and affirmative consent. No entity shall automatically record consent, including through pre-ticked checkboxes.

Furthermore, the companies are required to provide domestic alternatives to imported goods, which will contribute to the government’s push for made-in-India products.

The draft Amendment also recommends that e-commerce companies be required to join the National Consumer Helpline.

Impact on e-commerce companies

An “associated enterprise” is defined as any entity that owns 10% or more of an e-commerce platform’s common ultimate beneficial ownership. To sell on the internet, you must first register with the Department for Promotion of Industry and Internal Trade (DPIIT).

According to the proposed rules, no marketplace e-commerce entity’s logistics service provider can treat sellers in the same category differently. According to the DPIIT’s Foreign Direct Investment Policy for e-commerce marketplaces, parties and associated enterprises related to e-commerce companies will not be allowed to be listed as sellers on the respective platform.

Similarities to the rules governing IT intermediaries 

The Ministry of Consumer Affairs has proposed mandating e-commerce companies to appoint a grievance officer, chief compliance officer, and a nodal contact person for 24×7 coordination with law enforcement agencies, similar to the IT Intermediary Rules announced for social media companies. The provisions also aim to require e-commerce companies to share information with a government agency that is lawfully authorized to conduct investigative, protective, or cyber security activities, for the reasons of identity verification, or the prevention, detection, inquiry, or prosecution of offences under any law currently in force, or for cyber security incidents.

Conclusion

International trade, domestic trade, competition policy, consumer protection, information technology, and other issues are all covered by e-commerce. As a growing sector with a lot of interest from both domestic and international players, it’s important to regulate it to protect both entrepreneurs and consumers’ interests. It is important to promote a positive environment and a level playing field. Policymakers must also consider how to foster a thriving domestic industry. It is critical to have a comprehensive policy that reflects India’s position in both domestic and international or multilateral forums.

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

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Business consideration while entering into a Joint Venture Agreement

By
Oishika Banerji
-
0

This article has been written by Suchandra Mukherjee pursuing the Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho). 

Introduction

A joint venture (JV) is the joining of two businesses for a common goal and mutual benefit. These two organisations could be private, government-owned, or foreign organizations. A joint venture could be for a long or short period of time.  JV’s origin may be traced all the way back to the 1920s. This model was pioneered by American companies, and it was quickly adopted by people in other exporting countries. At the end of World War II, this way of doing business became popular all across the world. As Europe and China’s marketplaces opened up in the 1909s, the term “joint venture” gained use.

The alliance aids in the expansion of a company’s operations, the development of new products, and the entry into new markets, particularly in another country. In the formation of a new entity, a joint venture involves the sharing of share capital, technology, human resources, risks, and rewards.

The parties involved share the right to control and manage the business. Except for the capacity to contract under the law, there are no separate laws in India for these joint ventures. Companies incorporated in India are treated the same as domestic companies, even if they contain up to 100 percent foreign equity.

Joint Venture

A joint venture occurs when two or more businesses join forces for a common goal and mutual benefit. Joint ventures have become increasingly popular in India as a means of attracting not only foreign capital but also foreign technology. For example, the Birla-Yamaha or the Maruti-Suzuki joint venture. The firms could be private, government-owned, or foreign. Joint ventures are extremely beneficial for strengthening long-term relationships or collaborating on short-term projects. Firms form joint ventures to expand their business, develop new products, or enter new markets, often in another country.

Scope of Joint Ventures

There is no limit to the number of joint ventures that can be formed. Joint ventures can be formed by two or more companies from the same industry, two companies from different industries, two companies from different countries, or two companies from different industries and different countries. Thus, the scope of forming a joint venture is limitless, and they can be formed and benefited wherever mutual cooperation is required.

Joint ventures, in particular, are common in the oil industry, and are frequently ventures between a local and a foreign company. Joint Ventures are frequently viewed as a viable business strategy in the oil sector, as the companies can complement their skills while the JV provides the foreign company with a geographic presence. The most well-known venture is Fuji-Xerox. P&G chose a joint venture with Godrej primarily to gain access to Godrej’s distribution network and manufacturing facilities.

Memorandum Of Understanding (MoU)

Joint ventures are established through the signing of a Memorandum of Understanding (MOU) by both companies, which outlines the premise and purpose of the joint venture as well as the terms and conditions of the agreement. 

Because Joint Venture Agreements are typically drafted to achieve a specific goal, the parties should clearly state their intentions when drafting the agreement. The Joint Venture Agreement must be properly drafted by the parties in order to achieve its true purpose.

It must state that all necessary approvals and license requirements will be obtained as follows:

(a) If the Joint Venture is covered by the automated route, RBI clearance is required.

(b) In other circumstances, FIPB (Foreign Investment Promotion Board) approval is required.

Ways to enter into a Joint Venture

Joint ventures are established in three ways:

 (i) A foreign company and an Indian company merge to form a new business.

(ii) A foreign company acquires a portion of an Indian company’s equity shares.

(iii) An Indian company acquires a portion of a foreign company’s equity shares.

Reasons to enter into a Joint Venture

Joint ventures between companies within a country can occur for one or more of the following reasons:

i.        It may make it easier to introduce new technology;

ii.      Joint ventures may reduce the high risks associated with new ventures; and

iii.  Smaller firms collaborating may be able to compete with larger organisations.

Advantages and disadvantages of joint venture agreements

The advantages offered by a joint venture 

1. Established brand name – A business partner’s established brand name benefits the joint venture because there is a ready market waiting for the product to be launched, and a lot of investment in developing a brand name for the product or even a distribution system is saved in the process.

2. Increased resources and capacity – As the financial and human resources of the various businesses are pooled, the new business’s resources and capacity increase. This enables the joint venture company to respond to market challenges and capitalise new opportunities more quickly and efficiently.

3. Access to new markets and distribution networks – By forming a joint venture with a foreign company, you gain access to a vastly growing market around the world.

4. Access to advanced technology – Because the business partner has easy access to advanced technology, it saves the collaborating businesses a lot of time, energy, and investment because they don’t have to develop their own technology. Advanced manufacturing techniques result in higher-quality products at lower costs.

5. Innovation – Through joint ventures, businesses can come up with something new and creative for the same market due to new ideas and technology.

6. Low production costs – Joint ventures enable companies to reap the benefits of low raw material and labour costs, technically qualified workforce, management professionals, and excellent manpower in various cadres such as lawyers, chartered accountants, engineers, and scientists at a much lower cost than in their home country.

7. Substantial Capital Funds– A joint venture provides substantial capital funds. It is appropriate for large projects.

8. Risk diversification – A joint venture divides the risk among partners.

 Disadvantages of a Joint Venture Agreement

The major drawbacks of joint ventures are:

A joint venture allows a company to share the risks and costs of developing a new business, but it also requires a share of the new business’s profit or loss.

The venture partners have opposing business philosophies, time horizons, reinvestment preferences, and significant issues. It fails due to partner disagreements.

1. Conflict of Interest – Dual ownership may lead to disagreements between partners over control of the business.

2. Risk of Trade Secret Disclosure – There is a risk of technology and trade secret disclosure.

3. Lack of Coordination – There may be a lack of coordination among the partners, which may inhibit the Joint Venture’s efficiency.

Forms of Joint venture

1. Project-based joint venture- This is a sort of JV in which the partners join forces to complete a specific assignment.

2. Vertical Joint Venture – This is a sort of JV in which the parties are at different stages of the same product and have opted to form a JV.

3. Horizontal Joint Venture– This is a sort of JV in which the participants are competitors who decide to team up.

4.  Function-based Joint Venture– This is a sort of JV in which the parties come together in order to gain mutual advantage from their synergy.

Forms of Joint Venture Agreements in India

Joint Ventures in India can be of two types:

  • Contractual Joint Venture

This is the type of joint venture that can be used when the company is not in need of a detached legal entity or it is not feasible for the company to create one. 

When the JV is needed to be established for a temporary term or there is limited activity or that involves a temporary task this is the type of agreement that is preferred by the company.

For example, a foreign corporation and an Indian company may establish a Technology Collaboration agreement under which the foreign company controls all major components of the business. In such a circumstance, the foreign business may wish to maintain the option of acquiring shares in the Indian company that uses its technology at a later date. This means that, while the venture will begin as a contractual joint venture, the parties may subsequently change it to an equity-based joint venture.

  • Equity-Based Joint Venture

Here the legal entity address independent is created when there is an agreement of two or more parties.

For this entity that is created independently, the associated parties agree to provide resources or money as their contribution towards the assets or capital to the corporate identity.

Forms of equity-based joint venture 

1.  Company – In India, the most common structure for joint venture organisations is a limited liability company. The government also encourages investment in the form of equity capital in an Indian-incorporated company. In India, there are two sorts of companies: private limited and public limited. There are no minimum share capital requirements for either a private or a public limited company.

2. Partnership Firm – In most circumstances, such an entity is not permitted for joint ventures by foreign residents in India. Exceptions are allowed for enterprises owned and controlled by Non-Resident Indians. In general, a foreign corporation should not consider employing a partnership firm as a vehicle for a joint venture.

3. Limited Liability Partnership (LLP) Firm- A minimum of two partners are required for an LLP firm. It also requires a minimum of two Designated Partners, one of whom must be a resident of India. The two partners might be designated as Designated Partners as well. There is no minimum capital commitment required to form an LLP Firm.

4. Venture Capital Fund – A legally registered Foreign Venture Capital Investor may invest according to the terms and restrictions outlined in Schedule VII of the Foreign Exchange Management (Non-Debt Instruments) Rules, 2019.

5. Trust – In India, a foreign firm may not employ Trust as a form of joint venture corporation.

6. Investment Vehicle– Some funds, such as Real Estate Investment Trusts, Infrastructure Investment Funds, and Alternative Investment Funds, have been subject to SEBI restrictions. Such funds are now authorised to accept foreign investment from individuals residing outside of India.

Clauses in a Joint Venture Agreement

To enter into a Joint Venture with a prospective business partner, the parties sign a Memorandum of Understanding (MoU), as well as a letter of intent (LoI), which clarifies the basis of the future Joint Venture agreement. This also includes understanding the culture as well as the legal background of the parties. When signing a Joint Venture agreement, the following terms must be thoroughly reviewed: the object and scope of the Joint Venture; equity participation by local and foreign investors; and an agreement to issue money in the future. The appointment of a CEO/MD; Exit clauses/change of control provisions; Anti-competition clause; confidentiality clause; indemnity clause; assignment clause;

Clauses that must be entered in the joint venture are stated below: –

1.  The nature of the relation– it is very crucial to explain the nature of the relationship of the parties to the joint venture, i.e., whether the parties have fiduciary(trust-based) obligations, or whether the relation is contractual based.

2.  The contribution of the parties– The contribution of the parties should be clearly explained in the joint venture agreement in order to ensure that each party understands what they will be contributing to the enterprise, and that will be held accountable for it.

3.  Profits, risks and liabilities – How profits, risks, and liabilities will be shared is a key question, particularly in terms of the venture’s structure. Is it planned to share the revenues and liabilities among the parties based on their own interests? Or will certain parties’ liability be limited, while others have unlimited liability?

4.  Decision Making– It should be specified in the JV agreement who will be in charge of the venture’s day-to-day operations and management. Different levels of approval are frequently specified for different types of decisions.

5.  Intellectual Property – To avoid the risk of one party attempting to exploit the venture’s intellectual property for its own gain, the joint venture agreement should specify who will own any new intellectual property created by the venture, as well as the extent to which the parties may use that property outside of the venture.

6. Other Clauses 

The agreement will include a number of other rules and clauses, such as: 

–        The procedure for selling the venture’s interests; 

–        A buy-sell agreement;

–        Plant and machinery installation;

–        Facilities for maintenance;

–        Consideration of Taxes;

–        Alternative Dispute Resolution Mechanism;

–        Exit mechanism.

–        Non-disclosure and non-compete agreements; and

–        Clauses describing how much information regarding the endeavor, such as financial information, the venturers will be permitted to obtain.

Problems faced by Indian Joint Ventures

(i) Inability to forecast market movements.

(ii) Failure to select the right partners.

(iii) The subsequent departure of local partners, as well as the rejection by Indian partners to approve the technology required.

(iv) Unyielding pricing competition.

The failure of  Indian joint ventures is primarily due to a lack of adaptability in the new marketing climate because they were used to a shielded market in India. In the face of fierce pricing rivalry, many firms battled to stay viable.

A majority of problems can be avoided if the entrepreneurs give joint venture agreements more thought before signing them.

There is an information gap, and Indian entrepreneurs lack sufficient knowledge of many countries. Fortunately, joint venture fatality rates have decreased in recent years. This could be due to the government’s scrutiny of the plans being more thorough.

Suggestions for improvement

(i) Export Agencies – To communicate information about business opportunities in other nations, an export agency should be established.

(ii) More Research – The entrepreneur who is going to collaborate should conduct accurate feasibility studies, market surveys, and develop their own project reports, rather than relying solely on the information provided by other agencies.

(iii) Bank Consortium – To help Indian joint ventures with cash flow, a bank consortium of Indian banks should be formed.

(iv) Flexibility – Instead of insisting on Indian equipment, Indian entrepreneurs should be given more freedom to specify appropriate equipment and size of operations. Insistence on Indian equipment harms India’s image since host countries believe that the major motivation for forming joint ventures is to establish new markets for Indian capital goods and equipment.

(v) Buy Back Arrangements – Indian entrepreneurs should be willing to buy back joint ventures in nations with restricted domestic markets, such as Sri Lanka.

Though the situation of Indian joint ventures is not ideal, substantial change is projected in the near future, as seen by the recent decrease in death rates. The government should exercise caution when accepting joint venture plans to ensure that they can thrive in changing foreign market marketing situations.

Conclusion

Joint ventures and mergers are said to be an excellent way for business entities to enlarge their market position and increase their profits in the Marketplace. The companies that are similar, can use horizontal or vertical Mergers. The purpose for both of these is different as in Vertical Merger, companies that are joined are in the different stages of the product. On the other hand,  in a Horizontal merger, the companies that are joined, are in competition with each other. In my opinion the companies can come by temporarily to complete a specific project in a given time and the joint venture agreement takes place and a one goal is achieved. The type of joint venture to be entered in, is considered upon analyzing the circumstances of each company and the type of synergy these companies are aiming toward. It will act as a stepping stone no matter what type of joint venture the business chooses, they can always analyze how they would work together and what their future collaborations could be.

References

  1. https://www.mondaq.com/shareholders/1031362/key-considerations-for-a-joint-venture-agreement.
  2. https://www.mondaq.com/trademark/855788/joint-venture-agreement-key-considerations.
  3. https://blog.ipleaders.in/different-types-joint-ventures.
  4. http://www.indialegalhelp.com/files/jvforeigncompanies.pdf.

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Understand the charges levied against Aryan Khan by the NCB

By
Diganth Raj Sehgal
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0
Image Source: https://bit.ly/2Xub1RU

This article is written by Yash Kapadia. Through this article, we shall enlist the charges against Aryan Khan and other accused, the punishment for the same and the way forward. 

Introduction

On the night of 2nd October 2021, the paparazzi in Mumbai came out with the news through a short video that the son of a Bollywood superstar was booked in a drug racket. Soon it was learnt through them that it was megastar Shah Rukh Khan’s son, Aryan Khan who was involved in this. 

In no time, the news spread like wildfire across the country considering the national and international presence of Shah Rukh Khan, leaving behind all other important developments and mishaps that took place in the same period.  

Through this article, we shall provide brief information on what is the Narcotics Control Bureau (NCB) along with its role and responsibilities, the NDPS Act, the case as told by the NCB, the charges levied against Aryan Khan, its implications, punishments involved and what to expect ahead. 

What is the Narcotics Control Bureau?

The Narcotics Control Bureau (NCB) is an Indian federal law enforcement intelligence agency under the purview of the Ministry of Home Affairs, Government of India. The agency is tasked to combat the use and traffic of illegal substances under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. 

Headquartered in the capital city of Delhi, the role of NCB is the following1: 

  • “Coordination of actions by various officers, State Governments and other authorities under the principal Act, the Customs Act, 1962, the Drugs and Cosmetics Act, 1940 and any other law for the time being in force in connection with the enforcement of the principal Act.
  • Implementation of the obligations in respect of counter-measures against illicit traffic under various international conventions.
  • Assistance to the concerned authorities in foreign countries and concerned international organizations with a view to facilitating coordination and universal action for prevention and suppression of illicit traffic in narcotic drugs and psychotropic substances.
  • Coordination of actions taken by the Ministry of Health and Family Welfare, the Ministry of Welfare and other concerned Ministries,Departments or Organisations in respect of matters relating to drug abuse.”

Narcotic Drugs and Psychotropic Substances Act, 1985

The NDPS Act, 1985 aims to prohibit an individual from engaging in any sort of activity relating to production, cultivation, sale, purchase, transport, storage, and/or consumption of any narcotic drug or psychotropic substance.

A Narcotic drug as per Section 2(xiv) means “coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs.” 

A psychotropic substance as per Section 2 (xxiii) means “any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule”.

Charges against Aryan Khan under NDPS Act, 1985

For starters, as per the arrest memo of Aryan Khan (the accused), the arrest was made for consumption, sale and purchase of contraband punishable under the NDPS Act.2 It is pertinent to mention that the team of NCB effectively seized thirteen grams of cocaine, twenty-one grams of charas (marijuana), twenty-two pills of MDMA (ecstasy), five grams of Mephedrone (MD) and Rs 1,33,000 in cash at the International Cruise Terminal, Green gate, Mumbai Port. It was mentioned that the said arrest was made for contravention of Section 8(c) and committing offences under Section 20(b), Section 27 and Section 35 of the NDPS Act. We shall now provide the details for each of these sections. 

  1. Section 8(c)

Section 8(c) prohibits certain activities in absolute terms. It states that the production, manufacturing, possession, selling, purchasing, transporting, warehousing, usage, consumption, importing inter-state, exporting inter-state, importing into India or exporting from India or transhipping of any sort of narcotic drug or psychotropic substance except the same is for the purpose of medical or scientific use, which requires the necessary license, permit and authorisations. 

The accused, in this case, was arrested on the ground of being either in possession, purchase or consumption of charas. 

  1. Section 20(b)

Section 20 lays down the punishment for contravention in relation to cannabis plants and cannabis. The accused in this case was booked under Section 20(b) which more particularly states that anyone who is involved in producing, purchasing, manufacturing, selling, transporting, importing inter-state or exporting or using cannabis shall be punishable for a term may extend to 10 years and liable to a fine that may extend up to one lakh rupees. However, Section 20(b)(ii)(a) states that if the contravention relates to a small quantity then the punishment would be rigorous imprisonment up to six months and a fine which may extend to ten thousand rupees. This is exactly what the accused is charged with as per the NCB. 

  1. Section 27

Section 27 lays down the punishment in cases of consumption of any of the narcotic drugs or psychotropic substances. It is stated that where the narcotic drug or psychotropic substance consumed is either cocaine, morphine, diacetyl-morphine or any drug or substance as specified by the Central Government in this context, the punishment would be rigorous imprisonment for a period extendable up to one year or with a fine extendable up to twenty thousand rupees or both. 

However, Section 27(b) states that if any other drug is consumed which is not mentioned in Section 27(1) then the punishment would be imprisonment up to six months or a fine up to ten thousand rupees or both. 

The accused in this case has been charged under Section 27(b) i.e. possessing small quantities of the said drugs concerned in this matter. 

  1. Section 28 

Section 28 stated the punishment for an attempt to commit an offence mentioned under the NDPS Act. It is thereby stated that whoever attempts to commit any offence punishable under this Chapter or to cause such offence to be committed and in such an attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence.

  1. Section 29 

This Section states the punishment for abetment and criminal conspiracy. It is stated that whoever abets, or is a party to a criminal conspiracy to commit any offence punishable, shall, whether the offence is or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, be punishable with the punishment provided for the offence.

The accused has been alleged to have been involved in the conspiracy of selling and purchasing contraband that is punishable under the NDPS Act, 1985. However, such claims have been vehemently denied by the counsel representing the accused. 

  1. Section 35 

Section 35 states the presumption of a culpable mental state. It is presumed that the accused knew what acts they were doing. Hence, the accused will be guilty unless proven innocent. The Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. 

“Culpable mental state” includes “intention, motive, knowledge of a fact, or reason to believe a fact.”

Coming back to the present case, none of the drugs seized in the case have been of “commercial quantity” as stated in the NDPS Act, but they are more than “small quantity” and all fall in the “intermediate quantity” category. The counsel for the accused has submitted that his client was not found in possession of any narcotic drug or psychotropic substance (as opposed to what was mentioned in the arrest memo) in the current case. To prove the same, the CCTV footage of the entry gate where the accused was checked thoroughly can be accessed where nothing was found on him. Secondly, the NCB officers too could say if there was any contraband recovered from the accused or not.  

However, punishment for consumption of charas or cannabis carries up to 6 months imprisonment.

  1. Section 42

Section 42 lays the power of entry, search, seizure and arrest without warrant or authorisation. This is the section under which the NCB officials arrested the accused and seven others on the night of 2nd October 2021 and brought them under their custody immediately followed by a memo of the arrest. 

Implications of these charges 

The NCB through its preliminary submissions on the first day of hearing stated that they found certain incriminating messages that may lead up to busting an entire cartel. For the same reason, an order was passed to keep the accused in the custody of the NCB so that more information and leads could be gathered. However, after a period of 3-4 days, the advocate of the accused made the following submissions: 

  • There is nothing incriminating in the chat as the accused was called by the organisers as a VVIP having no relation to the drug racket. 
  • The accused is not related to any of the organisers, neither did he have an invite nor did he pay for the ticket for the cruise party. 
  • Chats with another accused only mention football and no drugs whatsoever. 
  • Even after a thorough search of the accused’s bangs and other belongings, not a single drug was found to be in his possession. 

The prosecution focussed on two aspects: 

  • The necessity to confront the accused with some persons arrested and persons who might be arrested in future raids.
  • The knowledge of the accused with regards to other people who may be involved in the drug racket as “Recovery is not what is important but it is the knowledge that counts”

The Hon’ble Esplanade Court of Mumbai passed an order remanding the accused till 7th October. The NCB then filed a remand application and the same was rejected and the accused was sent to judicial custody for a period of 14 days. 

Advocate for the accused filed for bail which was challenged by the prosecution on the ground of maintainability. It was submitted that only a special court of sessions has the jurisdiction to try the case and hence hear a bail application. The jurisdiction of the Esplanade Court is within the confines of Section 36A of the NDPS Act. It is the prosecution’s case that all accused have alleged to have committed offences exclusively triable by a special court of sessions. The prosecution laid reliance on the Bombay High Court’s judgment of Rhea Chakraborty v. Union of India, 2020 in which it was held by Hon’ble Justice S. Kotwal that all offences under the NDPS Act are non-bailable and cognizable in nature.

The advocate for the accused responded to the submissions of the prosecution that the power to grant bail is inherently provided in Section 437 of the Code of Criminal Procedure, 1973 (CrPC). It was repeated and reiterated that no recoveries were made from the accused, not even one gram of any drug. Reliance was placed on the Hon’ble Bombay High Court’s judgement in Mr. Sanjay Narhar Malshe v. State Of Maharashtra, 2005 wherein it was held that there is no prohibition on the Magistrate (to hear a bail plea) because the Court is covered by CrPC and the magistrate has jurisdiction to try several offences,

The Esplanade Court rejected the submissions of the accused and thereby rejected the bail application, sending the accused to judicial custody.

The way forward

After the aforementioned rejection of the bail application, a fresh application for bail will be filed before the Sessions Court in Mumbai. However, being a weekend, there is no confirmation if there will be a special hearing or else the same would have to be filed on Monday. This means that there can either be a bail hearing at Sessions Court if it is working or else the accused would have to spend the weekend in judicial custody until a bail application is heard on Monday. 

It is pertinent to note that there shall not be any questioning that can take place as the remand application by the NCB had been rejected earlier. 

Conclusion 

We shall be wrong in stating that the media as well as the entire nation has its eyes glued to what is happening in this case. Whether the accused is guilty or is being framed are some conjectures making the rounds. What we can be probable of is that the judiciary and the law will take their course and the guilty will be punished leaving the innocent free. 

However, this particular case has concerned young adults with respect to the laws relating to the consumption, sale, purchase of various drugs. Now that departments like NCB are taking action on a frequent basis, this might be a subject that may interest budding criminal lawyers as well as law students interested in criminal law. A way to be well conversant with such issues is by keeping oneself updated by reading court orders and submissions made by advocates whilst arguing such matters. 

References

  1. https://www.mha.gov.in/commoncontent/role-and-functions-narcotics-control-bureau 
  2. https://www.freepressjournal.in/mumbai/i-understand-grounds-of-my-arrest-aryan-khan-after-his-arrest-in-cruise-drug-case 
  3. https://images.assettype.com/barandbench/2021-10/9ecdc52b-cd91-481c-9558-ad754bb9bbd5/NCB_v__Aryan_Khan___Ors_.pdf 

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Time to ease the execution of wills in India

By
Abanti Bose
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0
Image Source: https://rb.gy/3aha8g

This article is written by Prathamesh More, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

The Wills of the people of India except the people belonging to the Muslim Community, are governed by one of the oldest laws called “The Indian Succession Act, 1925”.

A Will is defined under Section 2(h) of the Indian Succession Act, 1925, as the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death.

The validity of the Will does not depend on stamp duty or notarization as both measures are not required. The testator can register the Will on his/her own wish, but if he/she does not register the Will even then it does not make any difference in its validity. Although, if the testator has made two Wills, one registered and the other one non-registered then the former shall prevail as the valid one. 

What is known as unprivileged will?

A Will can be executed by any person of sound mind but it should comply with the conditions of Section 63 of the Indian Succession Act, 1925, in order to execute a valid Will:

  1. The Will should be signed or affixed with a mark of the testator or the Will must be signed by some other person in the testator’s presence and under his directions.
  2. Such a signature or mark must be so placed that it appears that it was intended to give effect to the writing as a Will.
  3. The Will must be attested by at least two witnesses as under:
    1. Each witness must have seen the testator sign (or affix his mark) or seen some other person sign the Will in the testator’s presence and under his directions; or
    2. Each witness must have received from the testator a personal acknowledgement of his signature (or mark) or of the signature of such other person; or
    3. Each witness must sign the Will in the presence of the testator although they need not sign in the presence of each other.

Usually, Wills are signed by the testator himself. However, a testator may, instead of signing the Will, put his mark i.e., thumb impression thereon, either because he is illiterate, or because he is incapable of signing due to certain illness or even though sheer habit.

A mere signing on a Will by another person does not always amount to attestation. Attesting means signing a document for the purpose of testifying to the signature of the person executing the document. The attesting witness is not required to know the contents of the Will.  

What is a privileged will?

For Privileged Wills there is an exception pertaining to strict attestation for the soldiers or airmen employed in an expedition or engaged in actual warfare. These people are entitled to make a written or oral Will (verbal dictation to a trusted individual) and if such person wants to make the Will in a written form, then he/she can make it without the need of signature or attestation, only if the Will is made in accordance with Section 66 of the Indian Succession Act,1925 which provides six rules regarding execution of the Privileged Wills:

  1. The testator (i.e., the person making the Will) may write such a Will wholly in his own handwriting. In such a case, it is not necessary to be signed by him or attested by witnesses.
  2. The Will may be written, wholly or in part, by another person and signed by the testator. In such cases, attestation by witnesses is not necessary.
  3. Even if the Will is written, wholly or in part, by another person, but is not signed by the testator, it is valid, provided it was written under the testator’s directions or if he recognized it as his Will.
  4. If the soldier, airman or mariner had given written instructions to prepare his Will but died before it could be so prepared, such written instructions are to be considered as a valid Will made by him.
  5. Even verbal instructions for preparing a Will would amount to a valid Will made by such a person, provided that:
    1. The verbal instructions were given in the presence of two witnesses;
    2. Such instructions have been converted into writing in his lifetime; and
    3. He has died before the formal will could be prepared and executed.
  6. Lastly, such a Will can be made by the soldier, airman or mariner by word of mouth i.e., an oral declaration of his intentions before two witnesses present at the same time. However, such an oral will automatically become null and void at the expiry of one month after such a person, being still alive, has ceased to be entitled to make a privileged Will.

The Act came into force during the major pandemic in the year 1918-19 called Spanish Flu, but even that did not help in easing the rules for execution of Wills during such pandemic.

This shortcoming was stated in 1985’s Law Commission of India Report No.110, which suggested that the strict rules for the execution of Wills should be eased for the people affected by a pandemic or natural calamity. It also stated that the exceptions made under Privileged Rules shall be applied to such affected persons (i.e., unprivileged Wills testators). But due to a lack of concern for such people and the efficiency of the Governments, the suggestions have not been implemented yet.

However, since technology has pervaded our daily lives and the establishment of the Information and Technology Act, 2000, has led to the formation of agreements via electronic means, but it does not include Wills. Recognizing this lacuna, in the year 2019, the Steering Committee on Fintech Related Issues, Department of Economic Affairs, in its report, suggested that the Department of Legal Affairs should consider amending various laws in order to permit the digital alternatives for legal process pertaining to various financial services and Wills.

Even this recommendation hasn’t been implemented yet.

Hence, the use of digital signature is still not permitted and it is clear that even if the testator is in quarantine or admitted to the hospital for any reason whatsoever, the strict procedure i.e., signature or affixation of thumbprint and attestation must be followed regardless of circumstances.

Now it’s time to fix the problem

Many countries have implemented special provisions or exemptions pertaining to Wills made by individuals who are on brink of death or are suffering from certain infections or epidemics or are not able to travel due to transport restrictions or are stuck due to military limitations. If the testator survives after the end of the emergency, then a formal procedure is required by some laws.

The need for digitization of Wills has made many jurisdictions modernize their laws in order to establish a smooth functioning of the Wills. For instance, in the USA, a US court held that a Will drafted on a ‘tablet’ and signed by the testator under the supervision of two witnesses, then the Will shall be held valid. Given the judgment, the Uniform Law Commission of USA drafted a Unified Electronics Wills Act as Model Act, to be adopted by the US States. During the Covid pandemic, many US states issued emergency orders regarding remote witnessing as well as notarization of Will in order to execute wills.

In the United Kingdom, the execution of Wills can be done via video conferencing with the witnesses. This provision came into force on January 31, 2020 due to the rise in the number of active Covid cases in the UK. The same provision was enforced by the Law Society of Scotland for a temporary period. The Ontario Government allowed witnesses of Wills on two conditions: (i) That the participants should use an electronic medium in order to communicate with each other; and (ii) Among all the witnesses at least one of them should be a lawyer. 

Solution for India

In India, the outbreak of COVID-19 and the requirement of quarantine for affected people and the need for social distancing, has created a need to amend the Act and make alternative provisions pertaining to the physical attendance of the witnesses.

Under ‘privileged Wills’, the flexible provisions enable a person to execute a Will without any problem under a procedure already provided to airmen, soldiers, etc. This provision can be drafted with the following statement:

A calamity (defined below) affected person can make a privileged Will under Section 66 of the Indian Succession Act. The expression “Calamity” shall include, earthquake, flood, accident or natural or non-natural calamity like epidemics, riots, wars, lockdowns or any other situation in which the person is under the threat of death. 

Apparently, such an amendment would modernize the Indian Succession Act, because of the provision pertaining to Will execution by allowing the digital signature by the testator to be affixed on the Will in the presence of the witness (es), who is not necessarily required to be present physically but is allowed to remotely affix the digital signature.

There is no convincing reason for the need of two witnesses for witnessing the execution of the Will by the testator, one is enough or even not a single witness is required to be present if the provision allows as such. This is supported by the Evidence Act which allows a single witness to prove the Will execution and also provides certain

measures for proving Will execution if the witnesses are not available (i.e., if both of them die).

A witness is required for two main reasons: (i) to avoid forgery; (ii) to verify the identity of the testator. Both of these reasons are met by allowing the testator to sign the Will via digital signature because the Information and Technology Act acknowledge the digital signatures tantamount to physical signature if the below-given requirements for the execution are followed:

  1. The person signing the Will shall create a unique E-signature that links the identification of the signatory digitally.
  2. The signatory shall have the authority over the data used during the time of signing for the purpose of E-signature generation.
  3. The document shall be encrypted with a tamper-evident seal such that any kind of alteration to the e-signature or the signed document shall be easily detectable.
  4. The digital procedure of the execution of Will shall be performed with proper due diligence.
  5. The digital signature certificates shall be issued by a Certifying Authority appointed under the Information and Technology Act, 2000.

If the aforementioned requirements are met then there would be legal anticipation of the digitally signed Will under the Information and Technology Act. 

Conclusion

In conclusion, it is pertinent to say that the option of E-signature for the purpose of execution of Wills holds strong commitment of smooth functioning of Wills during any kind of calamity. Also, the digital signature or E-signature of witness (es) shall be considered for the purpose of the attestation. Such a procedure shall be done under video surveillance for the purpose of due diligence and to avoid mala fide acts and misuse of the provision. Such changes will make the execution of Wills convenient during a calamity and also the Indian Succession Act which is a 96-year-old act will get the modern touch.

References

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Substitutes to Section 124 A of the IPC : under which other sections can an individual be convicted for violating restrictions to Article 19(1)(a)

By
Diganth Raj Sehgal
-
0
Ex-post-facto law

This article is written by Oishika Banerji of Amity Law School, Kolkata. This article deals with the possible substitutes of the provision of sedition that can be put to use to convict individuals who violate the restrictions provided by Article 19(1)(a) of the Indian Constitution.  

Introduction 

The law of sedition has been enshrined under Section 124A of the Indian Penal Code, 1860. The provision reads as, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in [India], shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.”  A bare reading of the provision shows that it is very narrow by nature as irrespective of any kind of public disorder taking place, a consequence of hatred, contempt, or dissatisfaction towards the Government of India amounts to sedition within the Indian territory. Therefore, it is to be noted that the offense of sedition has to be perceived keeping in mind the spirit of the Indian Constitution, and not just what has been laid down by the provision. This article aims to provide an explanation about the possible substitutes of Section 124 A of the Indian Penal Code, 1860, and the reasons behind the need for substitution. 

A need for substitution of Section 124A of IPC

In several cases, over the years there has been discussion about the constitutional validity of Section 124 A of the Code of 1806 as the provision acts as a restriction to Article 19(1)(a) of the Indian Constitution which guarantees freedom of speech and expression as one of the fundamental rights available to the Indian citizens. The decision was finally settled in the case of Kedar Nath v. the State of Bihar (1962) where the Supreme Court observed that Article 19(2) of the Constitution provides reasonable restrictions in the interest of the sovereignty, and integrity of India which are applicated to the freedom of speech, and expression, and thus the offense of sedition falls within the reasonable restriction imposed on Article 19(1)(a). The Court further observed that there exists a very thin line between hatred towards the Government and any legitimate political activity carried by the citizens. Therefore, the imposition of Section 124 A must be done cautiously to avoid unreasonable infringement on the freedom of speech and expression of the citizens. 

The Fifth Law Commission of India had also pointed out certain loopholes which are provided below, that often restrict Section 124A from achieving its purpose thereby becoming a detriment for the country’s people:

  1. Section 124A of the Indian Penal Code, 1860 only concerns hatred, contempt, or dissatisfaction towards the Government of India thereby leaving behind construction to public order which must be the utmost ingredient of the offense of sedition. 
  2. The deterrent provided by Section 124A can be confusing in nature. This is because there lies a range of punishment which can be either as harsh as life imprisonment or as light as imprisonment for a term of three years. This deterrent composition is indeed very odd and can create hurdles during implementation. 
  3. Section 124A of the Code of 1860 only talks about hatred, contempt, or dissatisfaction towards the Government of India leaving behind the law-making body which is the legislature followed by the Indian Constitution, and ignorance of both these democratic necessities subsequently shadows the hindrance on the administration of justice in the country. 

Taking these grounds into consideration, it can be said that acquiring knowledge about possible substitutes of Section 124 A of the Indian Penal Code, 1860 stands necessary. 

The possible alternatives of Section 124A of IPC

In this article, we will take an account of three possible substitutes of the sedition provision of the Indian Penal Code, 1860 namely, the Unlawful Activities (Prevention) Act, 1967, National Security Act, 1980, and existing Public Safety Acts. 

National Security Act, 1980

The National Security Act, 1980 is a substantive preventive detention law by its very nature and extends to the whole of India. The term preventive detention symbolizes detention of a person prior to his commission of an offense on the basis of an apprehension that the same is supposed to be committed,  in order to avoid the offense from taking place in the future. Preventive detention falls within the ambit of reasonable restriction under Article 22(3)(b) of the Constitution of India, 1950, and therefore needs to be carried out only in accordance with laws made by the Indian Parliament. It is also to be noted that Article 22(4) of the Constitution mandates the detention of an individual on grounds of preventive detention for a period of three months only. 

There are eighteen provisions in the National Security Act, 1980 that function with the underlying principle of preventive detention. Section 2(a) read with Section 3 of the Act of 1980 provides that the appropriate government which includes both the Central Government and the State Governments for the purpose of this Act will have the power to make orders for detaining certain persons. The circumstances which will initiate the invocation of Section 3 are provided hereunder:

  1. Act prejudicial to the security, and defense of India; or
  2. Regulating a foreigner living in India for a prolonged period; 
  3. Causing prejudice in the maintenance of public order.

It is ideal to take a pause while discussing Section 3 of the Act as it fulfills one of the loopholes existing in Section 124 A of the Indian Penal Code, 1860 that is “any manner in which prejudice is caused in maintaining public order”.  While reading Section 3 of the Act, Section 5A of the legislation must not be ignored as the provision ensures restriction of misuse of power vested on the appropriate government by the former provision. Section 5A, which provides that grounds for detention of an individual are severable, makes it mandatory under clause (b) of the Section for the appropriate government to abide by it. 

Further, the Act vests the procedural responsibility that is the execution of the orders on detention upon the Code of Criminal Procedure, 1973 as have been provided under Section 4 of the statute. Section 8 of the Act of 1980 which makes it necessary for the authority to process the detention of an individual to let the person know about the whereabouts of the detention, draws special attention. The provision also obligates the authority to afford an opportunity to the detained individual to make a representation against the appropriate government’s order, as early as possible. Both Section 4, and 8 of the Act can be taken up for a discussion together as Section 8 aligns itself according to the procedural rules of the Code of Criminal Procedure, 1973 which also ensures protection of the rights of the arrested person.  

The Act lays down provisions that facilitate the setting up of Advisory Boards for the appropriate government to consult before, or after detaining a person. The role of the Advisory Boards is to ascertain whether the detention of an individual has been carried out on a justified ground taking into concern the Principles of Natural Justice, and in accordance with the procedure provided by the Code of Criminal Procedure, 1973, or not. In a way, the provisions on Advisory Boards behave as a check and balance to Section 3, and Section 5A of the Act of 1980. It is noteworthy to mention that Section 14A of the Act lays down certain scenarios in which it occurs that the detention of a person can be made for a longer-term than have been provided by the Act and without reference from the Advisory Boards. But in such scenarios, the period for the imprisonment of an individual must not exceed six months. 

The Act vests importance on good faith under Section 16 thereby restricting detention of an individual if actions of the same are meant to be on grounds of good faith. With a prospective operation as enshrined under Section 17 of the Act, the National Security Act, 1980 has been prey to certain drawbacks which are presented hereunder; 

  • There has been no record of the number of detentions made under this Act which puts a question on the efficiency, and implementation of the Act. 
  • Governments’ have often used the Act as an extra-judicial power which defeats the purpose of the Act.
  • The Act, being promulgated several years ago needs modifications to keep a hold on arbitrary functioning. 

Unlawful Activities (Prevention) Act, 1967

An Act that has received much of the spotlight over the years in India is the anti-terrorism law recognized by the name of the Unlawful Activities (Prevention) Act, 1967. Formulated with the aim of preserving, and maintaining the sovereignty, and integrity of India, the Act has been subjected to several amendments in order to avoid losing the purpose it is meant to serve. It implements the reasonable restrictions imposed on the following fundamental rights:

  1. Freedom of Speech, and Expression;
  2. Right to form an association, and unions;
  3. Right to assembly peacefully.

The UAPA Act, 1967 defines “unlawful activity” under Section 2(1)(o) as, “in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written or by signs or by visible representation or otherwise),

(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or

(ii) which disclaims, questions, disrupts, or is intended to disrupt the sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection against India.”

This definition is wide enough to incorporate several acts that are not reasonable by nature and can be threatening to the country at large. 

One cannot ignore the fact that this Act is an over-used tool by the government to threaten the citizens of the country by unnecessarily curbing their fundamental rights to free speech and expression along with the human rights that every individual has been vested with. The latest reform that has been brought to this Act is by the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA, 2019) which provides a divergent connotation to the term “terrorist” defined in the Act along with which it gives immense power in the hands of the Central Government to declare any individual as a terrorist. More than helping, this legislation proves to be detrimental to the integrity of the country. The different grounds by which this legislation proves to be a terrorist in itself have been listed hereunder:

  1. Section 13 of the UAPA, 1967 was invoked by the police force of Jammu & Kashmir during the imposition of the ban on the internet, on the individuals who had used social media thereby infringing the restrictions. Anyway, accessing social media was in no way possessing any threat to the security of the democratic country. 
  2. The Act allows the detention of a person booked under it to be behind the bars for a period of six months without filing a charge sheet. This aspect of the Act also makes it against the fundamentals of the Code of Criminal Procedure, 1973 that acts as a procedural law for the Act. 
  3. As the Act provides discretionary powers to the government, it was imposed on journalists covering the Covid-19 pandemic on grounds that their news coverage can be invoking the general public to act against the government. 
  4. Amidst the CAA protest, the Act was used to put students belonging to universities behind the bars on grounds of their dissent on the government’s decision. Students were charged with inciting communal violence among the public at large. 

Public Safety Acts

Just like the National Security Act, 1980, any kind of Public Safety Act in the country will also be a preventive detention law. When it comes to the discussion regarding Public Safety Acts, the Jammu & Kashmir Public Safety Act (PSA), 1978 needs a special reference. Individuals under this Act are taken into custody when any of their acts prove to be prejudicial to the state’s security, and maintenance of public order. Walking in the same direction as the National Security Act, 1980, the Act of 1978 is ornamented with certain as have been provided below:

  1. Detention of any individual under this Act need not follow the procedure of the Code of Criminal Procedure, 1973 which means the production of the individual before the magistrate within 24 hours of his detention does not stand mandatory.
  2. Detention under the Act can be made without any specific charge and formal trial.
  3. The person who has been detained under the Act will not be vested with the right to file a bail application. 
  4. The Act does not distinguish between major, and minor offenses.
  5. The Act provides limited legal remedies to the person detained. 

With recent amendments of the Act, Section 14 has been introduced as a provision to allow the formation of advisory committees to handle matters of detention under the Act. Much in debate due to the restrictive nature of the Act, the Supreme Court of India has repeatedly warned against the rare use of the legislation to avoid injustice from taking place. 

Conclusion 

As we come to the end of this article, what we can infer from it is that any substitute of Section 124 A of the Indian Penal Code, 1860, will come with its own set of pros and cons. The legislation discussed above cannot be said to be wrong completely, instead, it is the implementation of the same that decides whether the Act is beneficial, or detrimental. It is therefore the sole responsibility of the three organs of the government of India to ensure the balance between safeguarding the rights available to the citizens of the nation, and the reasonable restriction imposed on the same to ensure maintenance of the sovereignty and the integrity of the largest democracy of this world.  

References

  1. https://www.jurist.org/commentary/2020/05/agarwal-sharma-national-security-act-1980/
  2. https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-uapa-free-speech/
  3. https://cjp.org.in/ready-reckoner-to-the-unlawful-activities-prevention-act-1967/
  4. https://www.livelaw.in/columns/sedition-ipc-124a-article-19-1-a-of-the-indian-constitution-independence-of-the-judiciary-178280

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Power of attorney rights and liabilities

By
Abanti Bose
-
0
power of attorney
Image Source - https://rb.gy/yuc8va

This article is written by Eshita Pagariya, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Aatima Bhatia(Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

The power of attorney (POA) or letter of attorney is a document that enables one person to represent another in private matters, business contracts, or some other matter on another’s behalf. The individual who authorizes the action is referred to as the principal.  Agents, attorneys, or in certain common law jurisdictions, attorneys-in-fact have authority to act. The term “power” originally referred to an instrument that was signed under seal, whereas the term “letter” referred to a document that was signed by two individuals. However today a power of attorney does not need to be signed under seal. While some jurisdictions require that powers of attorney be notarized or witnessed, others will enforce them if they are signed by the grantor.

In the case of a principal’s temporary or permanent illness or incapacity, or when the principal is unable to sign important documents, power of attorney is usually utilised. A power of attorney can be terminated for a variety of reasons, including the principal’s revocation or death, the court’s invalidation of the agreement, or the agent’s inability to carry out the stated obligations. In the case of a married couple, if the principal and agent divorce, the permission may be nullified.

A power of attorney instrument is a critical component of estate preparation, but it is also one of the most misunderstood. As business and commerce transactions progress, it is frequently convenient or even important to have someone else act on your behalf. Many individuals mix up a power of attorney (POA) with a will (Probate), even though both papers are distinct and serve very different purposes. A will takes effect on the day a person dies. A POA is valid for a person’s lifetime and expires when he dies. So you truly need both a POA and a will since they complement one other and do not overlap.

Kinds of power of attorney

General power of attorney

A general power of attorney is one by which a principal appoints the agent to do on his behalf certain acts in general. The word ‘general’ indicates that the power is general in terms of the subject matter and not general in relation to powers in relation to a subject matter. During the drafting of an instrument, if the subject matter is not general, but only pertains to something specific or specifically outlined by the principal, then it does not constitute a general power of attorney. Otherwise it is known as limited powers of attorney. Attorneys or agents are granted wide-ranging powers in general powers of attorney, which authorize them to do all acts associated with a particular business or job.

Special power of attorney

Special powers of attorney authorize a specific act or acts to be accomplished by someone on behalf of the principal. This type of power of attorney empowers the agent to act in the name of the principal on an individual basis or for a specific transaction.

A durable power of attorney

When a power of attorney specifically states otherwise, the agent’s powers end if the principal becomes mentally incapacitated. Powers of attorney, however, can be intended to remain effective even after the principal becomes incapacitated. This is called a durable power of attorney.

Rights of power of attorney

  1. The attorney may, however, carry out all of the authorised activities, but only in a certain manner, provided the power of attorney so specified.
  2. The right to take legal action on the Principal’s behalf, and must sign all necessary legal documents.
  3. Receiving income on behalf of the Principal. 
  4. Decision-making authority in matters of personal, business, or investment affairs.
  5. The authority to create bank accounts, make cheques, and sell property on behalf of the Principal.
  6. A solicitor should always be consulted if there is any uncertainty about the power of attorney’s language.
  7. The attorney must also operate in the principal’s best interests.
  8. An agent may make decisions on behalf of the principal, such as paying the principal’s rent or mortgage, hiring workers to maintain the principal’s home, or hiring an attorney to represent the principal. 
  9. In a health care power of attorney instrument, an agent has a responsibility to behave responsibly in regards to their principal’s health care desires. Even if the parties have opposing moral positions, the agent must operate in accordance with the principal’s intentions.
  10. The principal can allow an agent to handle a variety of activities through one or more powers of attorney, including entering into contracts, dealing with real and personal property, administering the principal’s financial and tax affairs, and arranging for the principal’s housing and health care.
  11. All financial transactions must be accurately recorded in the power of attorney’s books and records. The word accurately recorded implies that not just pertinent receipts, but also a complete transactional history of all transactions performed by the power of attorney, must be kept.
  12. Expenditures are made from the person’s property for the support, education, and care of legal dependents.
  13. Right to handle, compromise, resolve and modify all real estate-related issues.
  14. Right to Lease, collecting rentals, granting, bargaining, selling, or borrowing and mortgage.
  15. Right to sell all of your stocks, bonds, and other investments.
  16. The attorney has the authority to sign all tax returns, insurance papers, and other documents before filing them.
  17. Right to make, sign, execute, and deliver any contract, agreement, or document; to enter into contracts and to perform any contract, agreement, writing, or item; to create, sign, execute, and deliver any contract, agreement; to acknowledge any contract, agreement.
  18. Right to make decisions about the donor’s or his minor children’s health care.

Limitation of power of attorney

  1. An attorney must not go beyond the scope of the power of attorney. If the attorney goes above his or her powers, he or she may be held responsible for any harm the donor or others incur.
  2. The attorney will be responsible to the donor if he breaches any requirement unless he behaved reasonably.
  3. At any moment, the POA cannot delegate authority to another Agent.
  4. After the Principal’s death, the POA is no longer able to make legal or financial decisions, and the Executor of the Estate assumes control. 
  5. Following the Principal’s death, the POA is unable to disburse inheritances or transfer assets.
  6. The POA has no authority to alter or nullify the Principal’s  Will or other Estate Planning papers.
  7. The POA cannot alter or breach the provisions of the nomination paperwork; otherwise, they risk being held liable for fraud or carelessness.
  8. The POA cannot act in any way that is not in the best interests of the Principal.
  9. The POA will not be able to make decisions until the agreement is in force; conditions will be imposed with the approval of the Agent and Principal.
  10. Unless the Principal is in excellent physical and mental health, the POA cannot be lawfully chosen.
  11. The POA is not allowed to use the Principal’s assets or money as if they were their own.
  12. The POA cannot be paid more than the amount stipulated in the POA agreement.
  13. In addition, the agent must avoid any potential conflicts of interest. Unless the principal and the agent mutually hold the property before writing the power of attorney, the agent cannot commingle or merge their property with the principal’s property.

Conclusion

When the individual cannot be present to sign their paperwork, the principal generally appoints the power of attorney. It is a critical decision, and the individual must proceed with caution. The attorney holder literally steps into the shoes of the principal to execute all acts on his behalf, with the exception of the authority to plead unless authorised by the court and to depose regarding facts that the principal has exclusive knowledge of. The principal must use extreme caution when assigning such authority, otherwise, the outcome will be counterproductive. The authority is limited to acting solely on certain topics or on a specific type of transaction, or to carrying out a specific legal transaction for the Principal. The agent’s power of attorney ends after the transaction is completed. If the power agent commits deception, this does not bind the principal. He cannot be sued or otherwise be held liable for the agent’s deception. If the authority does not empower the agent to do business except with restrictions, any act done by him in excess of such power will not bind the principal. A fortiori, an agent cannot bind the principal to a greater degree than he is authorised to do under the power of attorney. It is advisable to select a trustworthy agent and give them the necessary legal authority when signing the Power of Attorney. It is also given to a valued family member in the same way. It is also possible to give the POA to more than one person. To avoid any future repercussions, one must also adhere to the proper structure and provide all relevant data.

References

  1. https://www.latestlaws.com/library/legal-documents/power-attorney-2
  2. https://www.signnow.com/ask/how-to-sign-as-power-of-attorney
  3. https://corporatefinanceinstitute.com/resources/knowledge/other/power-of-attorney/
  4. https://taxguru.in/corporate-law/understand-power-attorney-need-dangerous-side-restriction.html
  5. https://trustandwill.com/learn/power-of-attorney-rights-and-limitations
  6. https://info.legalzoom.com/article/what-are-duties-power-attorney

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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