Engineering Analysis Centre of Excellence Pvt Ltd v. the Commissioner of Income Tax & Another

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October 13, 2021

This article is written by Vanya Verma from O.P. Jindal Global University. This article deals in depth with the case analysis of Engineering Analysis Centre of Excellence Pvt Ltd v. the Commissioner of Income Tax & Another.

Case	Engineering Analysis Centre of Excellence Pvt Ltd v the Commissioner of Income Tax & Another
Citation	LL 2021 SC 124
Court	Supreme Court of India
Date of Judgement	2nd March 2021
Parties	Appellant- Engineering Analysis Centre of Excellence Private LimitedRespondent- Commissioner of Income Tax
Judges	R.F Nariman, Hemant Gupta and BR Gavai

Table of Contents

Introduction

The case is about the amount paid by Indian corporations to utilise foreign software and whether or not it is taxable as royalty. The case also addresses the question of whether TDS can be deducted for software purchased from overseas software suppliers.

Important provisions

Section 195 of Income Tax Act, 1961
Section 201 of Income Tax Act, 1961
Section 9(1)(vi) of the Income Tax Act, 1961

Facts of the case

Two sets of appeals were heard by the Supreme Court, one from the High Court of Karnataka and the other from the judgments of the High Court of Delhi. The contradictory rulings on the issue by the Authority for Advance Rulings (AAR) were also set to rest by the Supreme Court.
The appellant, in this case, was an Indian resident who sells shrink-wrapped computer software that was imported straight from a non-resident corporation. As the transactions comprised a sale of goods, the appellant did not deduct tax on the payments made to the non-resident entity. But on the other hand, the claim of the Department of Revenue, Ministry of Finance (Revenue) was that the transaction between the parties was a copyright for the right to use the software, which resulted in royalty payments, and consequently assessed that tax should be deducted at source under Section 195 of the Act.
When the matter was brought before the High Court of Karnataka by various assessees, the High Court upheld the appeal, citing its decision in CIT v. Samsung Electronics Co. Ltd. & Others (2012) which held that what was sold as computer software included a right or interest in copyright, resulting in the payment of royalty and being deemed to be an income of the resident in India under Section 9(1)(vi) of the Act, requiring the deduction of tax at source.
The appellant, along with other assessees, filed civil appeals with the Supreme Court after being aggrieved by the decision of the court.
The Supreme Court divided the appeals into the four kinds of software payments listed below:
- Category 1: A non-resident selling software straight to an end-user.
- Category 2: Non-residents selling software to Indian distributors for resale to Indian end-users.
- Category 3: Sale of software to a foreign distributor for resale to end customers in India by a non-resident.
- Category 4: Software that is bundled with hardware and distributed to Indian distributors or end-users by foreign providers.

The Appellant fell under the second category.

Important questions before the Court

Whether the payment is for the transfer or use of copyright

A copyright refers to the exclusive right to do or authorise specific acts concerning a “work,” such as the exclusive right to reproduce the copyright in the work in any material form and exploit it through sales, transfers, or licences, among other things. Making copies or adapting a computer programme to use or make backup copies as a temporary safeguard against loss, destruction, or damage to use it does not constitute a copyright violation.

For the purposes of the Indian Copyright Act, 1957, a computer programme (software) qualifies as a “literary work” (ICA). According to Section 30 of the ICA, the owner of copyright in a “literary work” has the right to grant any interest in his rights in exchange for a royalty payment by way of a licence. When a licence is issued, an infringement of copyright under the ICA occurs only when the rights are used in a way that is adverse to the licence.

The Supreme Court examined the Act’s definition of royalty, as well as relevant tax treaties and court decisions, and came to the following conclusions:

Copyright is a negative exclusive right that allows you to prevent others from performing specific acts.
Copyright is a privilege in the form of an intangible, incorporeal right. Copyright ownership in a work differs from copyright ownership in the physical medium in which the copyrighted work may be incorporated.
The transfer of ownership of the physical substance in which copyright exists gives the purchaser the right to do whatever he wants with it, except the right to reproduce it and distribute it to the public unless such copies are already in circulation and the other acts listed in Section 14 of the Copyright Act.
No copyright is parted with and, as a result, no infringement occurs when the core of a transaction is to authorise the end-user to have access to and make use of the “licenced” computer software product over which the licensee has no exclusive rights, as recognised by Section 52(1)(aa) of the Copyright Act. It makes no difference whether the end-user has access to computer software that is tailored to their needs or not.
A non-exclusive, non-transferable licence that merely permits the use of a copyrighted property cannot be read as a licence to exercise all or any of the enumerated rights outlined in Section 14 of the Copyright Act as held in the case of the State Bank of India (SBI) v. Collector of Custom, Bombay (1999).

Producing a copy or adaptation of a computer programme for the purpose of which it was delivered, as well as making backup copies to protect against the loss, does not constitute a copyright infringement under the Copyright Act. Infringement would not occur simply by storing a computer programme. The agreement’s nomenclature is irrelevant; what matters is the true nature of the transaction in light of the agreement’s general provisions and surrounding circumstances.

The Court determined that what the non-resident supplier “licences” to the distributor and resells to the resident end-user or directly supplies to the resident end user is the sale of a physical object with an embedded computer programme. The transfer of copyright in software is not included in such a sale of goods.

Royalty as defined by the Act or the tax treaty

Under the Tax Treaties, the term ‘royalty is defined as a payment received for the use or right to use any copyright in a literary work. Insofar as transfer of all or some rights includes granting of a licence in respect of any copyright of any literary work, the meaning of the word under the Act is distinct and broader than the Tax Treaty.

Because the licence offered to distributors and end-users creates no interest or right in the software, it does not constitute the “use of or right to use” of copyright and thus does not qualify as royalty under the Tax Treaty.

The phrase “in respect of” in the Act indicates “in” or “attributable to,” according to the Court. As a result, to qualify as royalty under the Act, there must be a transfer of all or any rights in copyright, whether by licence or otherwise. Payments made for such licences do not qualify as royalty under the Act (up to 2012) or the Tax Treaty since the licence given to distributors and end-users did not involve the grant of any interest in the rights of a copyright owner.

Explanation 4 to Section 9(1)(vi) inserted by the Finance Act, 2012, which states that a transfer of all or any rights includes a transfer of all or any rights for the use of computer software, broadens the definition of royalty and is not intended to be clarified. Furthermore, because the definition of royalties under the Tax Treaty is narrower and more advantageous, the Act’s requirements would be inapplicable, and there would be no obligation to withhold taxes under Section 195 of the Act.

Revenue had sought to rely on the Supreme Court’s decision in PILCOM v. CIT (2020), which dealt with Section 194E of the Act, for the proposition that tax must be deducted at source regardless of whether the non-resident assessee is otherwise liable for tax. The Supreme Court stated that accepting the Revenue’s argument would result in absurd consequences as taxes would have to be withheld even if the income was not taxable in India, which was not the intent of the legislature. As a result, the aforementioned judgement has no bearing on the determination of withholding tax obligations under Section 195 of the Act.

Retrospective amendment

The Finance Act of 2012 added Explanation 4 to Section 9(1)(vi), which increased the concept of “royalty” under the Act (with retroactive effect from 1 June 1976). A person who made a payment before 2012 cannot be expected to use the extended definition of royalty, which did not exist at the time the payment was made, to determine withholding requirements under Section 195 of the Act. The substantive revision to the Act does not force a person to perform the impossible, i.e., where a disability prevents a person from obeying the law, the alleged disobedience of the law is pardoned.

Relevance and India’s positions on the OECD commentary

The concept of “royalty” provided under the Tax Treaty is similar to the OECD Model Convention’s definition of royalty. As a result, the OECD Commentary might be consulted, which states that making a copy or alteration of a computer programme to enable the use of the software for which it was provided does not entail royalties. This also proves that payments made by distributors and end-users are not considered royalties.

Even though the Indian government has expressed reservations about the OECD commentary on royalties, such complaints would not alter the commentary’s applicability unless they were included in the treaties through bilateral negotiations with the respective countries. The Court noted that even though India has negotiated or altered tax treaties with several countries after expressing its reservations, the concept of royalty had not changed and remained comparable to the OECD Model Convention definition. As a result, the OECD Commentary on Article 12 of the OECD Model Convention will continue to be persuasive in interpreting the term “royalties” as used in Tax Treaties.

Issues

The issues before the Supreme Court were as follows:

Whether the sum paid by Indian enterprises to use foreign software is taxable as royalty as defined in explanation 2 to Section 9(1)(vi) of the Act and the Double Taxation Avoidance Agreement (DTAA)?
Whether the payer was required to deduct tax at source on such payments under Section 195 of the Act.

Arguments by the appellants

The purchase of computer software by a resident Indian distributor for resale is a sale of goods. Even the end customer was only given a limited licence to use the goods by themselves.
The definition of “royalties” provided under DTAA did not include derivative products of the Copyright. It is well established that the DTAA provisions regulate the taxability of income since they are more favourable to the assessee. Furthermore, the OECD Model Tax Convention on Income and Capital (OECD Commentary), the UN Model, and the United States Internal Revenue Code, among others, do not consider the sale of copyrighted material to be royalty.
Amendment to Section 9(1)(vi) in 2012 could not be applied retroactively to assessment years before 2012.
The foreign supplier’s distribution right would not extend beyond the first sale of copies of the work to other people, according to Section 14(b)(ii) of the Copyright Act.

Arguments by the respondents

Explanation 2(v) to Section 9(1)(vi) of the Act merely clarifies the law in effect since 1976, when Section 9(1)(vi) of the Act was first enacted.
DTAAs would not apply to “persons” who are not assessees as defined in Section 195 of the Act.
According to the ruling in PILCOM v. CIT (2020) tax must be deducted at source under Section 194E of the Act, regardless of whether the non-resident assessee is otherwise liable for tax.
In some circumstances, the original owner relinquishes copyright because the software adoption could be produced, albeit for installation and usage on a specific computer.
Making copies or adapting a computer programme from a legally obtained copy for non-commercial, personal use would not be considered infringement under Section 52(1)(a) of the Copyright Act; nevertheless, the converse would be considered infringement.
Distributors will be exempt from the doctrine of first sale/principle of exhaustion.
Tata Consultancy Services v. State of AP (2004), in which it was held that software recorded on compact discs are products for sales tax law, cannot be applied to the Act.

Judgement

In a lengthy decision, the Supreme Court found that:

When the DTAA is applied, the Act’s provisions can only be applied to the degree that they are more beneficial to the assessee.
If a non-resident is obligated to pay tax under Section 9 read with Section 4 of the Act and the DTAA then only a tax deduction at source can be allowed under Section 195 of the Act. The PILCOM decision would not be applicable in this present case.

Producing copies or adapting a computer programme to use it for the purpose for which it was delivered, or making backup copies, does not constitute an infringement of copyright and does not amount to parting with copyright, according to modified Sections 14(b)(ii) and 52(1)(aa).
To determine the true nature of a transaction, the EULAs must be read as a whole. According to Tata Consulting, a licence is the selling of a physical thing that has embedded computer software and is thus a sale of goods.
The Act’s Explanation 4 to Section 9(1)(vi) cannot be applied retrospectively.

As a result, the Supreme Court ruled in favour of the assessees in all four categories.

The Court declared that software companies are no longer required to pay TDS when purchasing software from international providers. The verdict would reduce the cost of software purchases for Indian companies since foreign sellers may choose to drop prices to take advantage of the tax relief.

This decision is said to be extremely beneficial to software companies. The Supreme Court clarified that “there is no obligation on the persons mentioned in Section 195 of the Income Tax Act to deduct tax at source, as the distribution agreements/EULAs in the facts of these cases do not create any interest or right in such distributors/end-users,” citing the definition of royalties in Article 12 of the DTAA.

In terms of the taxability of royalties paid to foreign corporations for the use of their software by Indian firms, the Court ruled that payment for utilising foreign software did not amount to a royalty payable in India. The Court determined that the amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers are not royalty payments for the use of copyright in the software and that they do not result in any income taxable in India, thereby excluding the persons referred to in Section 195 of the Income Tax Act.

Taxpayers, on the other hand, argued that the non-resident owner retains the proprietary rights in the programme and that the Indian company’s usage of the software is limited to producing backup copies and redistribution.

Conclusion

The Supreme Court’s decision, which came 20 years after the issue began, has clarified and resolved contradictory opinions held by the High Courts of Karnataka and Delhi, as well as the AARs. The decision is a positive step that will have a wide-ranging influence on software businesses doing business in India.

References

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Analysis of mediation skills for resolving disputes and managing conflicts

By

Shoronya Banerjee

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October 13, 2021

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This article has been written by Gauri Atreja, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

In any civilised community, a fair and effective mechanism for resolving disputes is essential for safeguarding and defending citizens’ rights. The “Court brings disputes to a close and ensures that citizens can enforce their rights.” However, in most parts of the world, rising litigation costs, overburdened court schedules, and delays in case resolution have cast doubt on the system’s efficacy.

This is reflected in a Supreme Court of India judgment, which states that “interminable, time- consuming, complex, and expensive court procedures compelled jurists to seek an alternative forum that is less formal, more effective, and can speedily resolve disputes without procedural claptrap.”

Mediation, unlike arbitration or litigation, is a relatively recent process that has been utilised to resolve labour, business, community, and divorce cases. Mediation is a method that can be tailored to a variety of different types of disagreements. Although arbitration is probably the most popular form of alternative dispute resolution (ADR) outside of the courtroom, mediation is becoming more common because of the recent development of arbitration contract clauses. Commercial disagreements frequently emerge between parties that, by necessity, must be able to work together amicably. This article focuses on mediation as a mode of resolving disputes and conflicts by exploring the benefits of using mediation over all other modes of conflict resolution that are available to us today.

Meaning of mediation

Mediation is the participation of a neutral third person to support and assist individuals involved in a disagreement in reaching a resolution. Negotiation differs from mediation in the sense that the parties involved work out the issues of their own accord. They have the assistance of a third party, the mediator, in the case of mediation to help them reach an agreement. Mediation, whether official or informal, can often assist in resolving issues that have progressed beyond the stage of negotiation.

Characteristics of mediation

One of the most important aspects of mediation is that the mediator does not ‘sort things out’ for the parties involved. Instead, he or she assists the parties in collaborating to create their own agreement. Although there are many professional mediators working to mediate problems, anyone can act as a mediator in a dispute between co-workers or to reconcile two feuding friends or neighbours. Mentioned below are a few important characteristics of mediation:

Participation is entirely voluntary.
Face-to-face meetings between the conflicting parties
An unbiased mediator with no decision-making power assists those involved in reaching an agreement by helping them comprehend one other’s perspectives.
All participants have an equal opportunity to speak and clarify their point of view.
All pertinent data is being shared.
An agreement can be reached by both sides without being coerced/ patronized in any manner.

Mediation skills

A mediator must possess a diverse set of abilities, including the following:

Listening abilities that are active.
Emotional intelligence to understand the underlying emotions; questioning and clarifying skills to grasp both the facts and the areas of debate.
Summarising skills are used to lay out the key areas of contention and underlying emotions, as well as to assist participants in rephrasing topics in a less emotionally charged language.
Empathy allows each side to put themselves in the shoes of the other and understand their viewpoint.

Most importantly, a mediator must avoid taking sides or do things that might portray him as acting unfairly. As a result, you’ll need to respect all parties’ perspectives and devote equal time to each individual or problem. It will never help to point out that someone is being unreasonable, but you may assist them in conducting a “reality check” by asking what they consider a reasonable outcome and whether they believe the other party would agree.

Investigation

A mediator must conduct extensive research to comprehend the issues, “facts,” and views of the parties in a case. This investigation, which usually takes the form of a series of questions posed in public and private sessions, peels back the layers of the dispute and aids in determining which facts, interests, and sentiments are relevant to resolving the case. A mediator evaluates which lines of inquiry are fruitful and puts each party’s concession or compromise range to the test. These investigations allow the mediator to get a feel of what kinds of agreements are conceivable.

Managing the interaction

The interaction between parties is complex and can turn more adversarial if not controlled and mediated. The number of parties involved, of course, increases the complexity. The mediator must also serve as the facilitator in order to keep the meeting focused and fruitful. This includes the following:

Creating a set of communication guidelines,
Active listening is encouraged,
Preparing for and dealing with intense emotions,
Choosing a time and who to meet in private caucus,
When parties are joined by a representative, managing relationships becomes more difficult.

Invention/problem solving

Invention and problem solving are two methods for breaking a deadlock and increasing cooperation. A mediator can help you come up with new ideas in two ways:

The mediator can establish an environment that allows the parties to come up with their own solutions (via empathy, investigation, and persuasion).
The mediator might make suggestions or thoughts that the parties may not be aware of. In either situation, the mediator and the parties are likely to employ fractionation strategies.

Persuasion

Mediators must have strong persuasion skills – the capacity to convey impressions or ideas that change others’ perception of a situation or proposition – as well as the discernment to know when to employ them. When persuading a party to realistically analyse his or her alternative to no agreement or providing packages to test the rationality of both sides’ proposals, mediators frequently utilise increasingly convincing tactics as the case advances.

Realistic assessment of alternatives

Parties to a dispute frequently do not consider what will happen if the case is not resolved. The mediator will normally assist the parties in sorting out these alternatives to settlement, evaluating the costs and advantages of non-settlement with as much precision as feasible.

Creating options

When it comes to prospective settlements, parties in a conflict frequently have tunnel vision: they think that they already know the appropriate answer. The mediator will usually assist the parties in exploring various aspects of a settlement, such as “expanding the pie” to include issues for discussion that the parties had previously overlooked.

Reformulating or reframing the problem

In most cases, parties in a dispute characterise “the problem” as the other party’s fault. It is difficult for a party to be flexible in seeking an agreement when they see the problem purely in terms of the other party’s responsibility. Fortunately, many appropriate definitions of “the problem” exist, and the mediator will usually assist the parties in finding meanings that they are comfortable with and divert them from being focused on blaming the other party. The mediator can take into account all the facts of the case and reframe the problem in terms that would help in better facilitating the solution that is being sought by the parties.

Managing anger and frustration

In most negotiations, both parties want more than they can obtain. This can cause frustration, which can then turn into rage. Sometimes the rage is visible, and other times it is hidden. The mediator will usually assist the parties in dealing with their anger so that it does not prevent them from reaching an agreement.

Distributing the pie

Most agreements entail the act of dividing up a set of resources, in some form or another. Parties, with rare exceptions, demand what they perceive to be a “fair” share of the distribution. The mediator can take the responsibility to ensure that both the parties are recipients of a fair percentage of the settlement, as per their role in the issue at hand.

Strategic decision

Overlapping all of her/his responsibilities, the mediator must design and pursue a strategic path that will assist the parties in reaching an agreement. It’s critical to separate meaningful data from noise, establish each party’s basic criteria for agreement, “coach” the parties’ negotiating process, and appreciate the parties’ relative flexibility.

Conclusion

Although a little humility never hurts, it’s vital to remember that mediation doesn’t always work and that it’s not always the mediator’s responsibility if it doesn’t. It will be impossible to mediate a shared solution if members do not come prepared to discover one. Cross-cultural conflicts will always be difficult to resolve because what is accepted in one culture may be completely objectionable in another.

A skilled mediator will always endeavour to be aware of what else is going on, looking for hidden agendas and obstacles to effective problem solving. At the same time, a successful mediator will be able to separate themselves from the issue. The mediator’s job is to assist others in reaching mutually acceptable solutions to their problems without becoming engrossed in the issue themselves.

References

https://www.pon.harvard.edu/daily/mediation/resolve-employee-conflicts-with-mediation-techniques/
https://www.skillsyouneed.com/ips/conflict-and-mediation.html
Lecturer, Faculty of Law, ASA University Bangladesh(ASAUB), Dhaka, Bangladesh.
BANGLADESH RESEARCH FOUNDATION JOURNAL, ISSN-2224-8404, Vol.1, No.1, February 2012

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How to report hate crimes in India

By

Diva Rai

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October 13, 2021

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This article is written by Vanya Verma from O.P. Jindal Global University. This article deals with hate crimes and how to report them in India.

Introduction

In recent years, the Indian subcontinent has seen a sharp increase in hate crime events. Incidents in this category usually involve mob violence against an individual or a group of individuals from a particular social group, usually over religious issues, causing havoc in the broader social structure. Hate crimes are frequently motivated by hatred and a biased attitude and are intended to send a message to a specific portion of society in order to instil fear and make a statement.

The role of racial/caste discrimination or prejudice as the motivation for the criminal act is a prevalent defining feature of hate crimes in India. The hate crimes take the form of rape, physical assaults, murders, or violent attacks, the underlying purpose is prejudice towards a person because of their membership in a certain group.

What are hate crimes

Hate crimes are criminal acts done with a biased motive, according to the Organization for Security and Cooperation in Europe (OSCE). Also known as “bias-motivated crime” or “bias crime,” they are not a legal offence, but rather a concept that happens when a perpetrator targets a victim from a specific social group.

Hate crime refers to criminal acts motivated by prejudice towards a person or a group of people because of differences in their religious beliefs and customs. In modern times, its definition has broadened to include insulting, disparaging, or violent remarks, in addition to lynching, discrimination, and offensive comments. As a result of all of this, society’s balance and order are disrupted. It has a profound effect on its victims, both psychologically and physically, resulting in their mental and bodily deterioration.

The purpose behind the act must be considered when determining whether a crime is a hate crime or a prejudiced crime. A hate crime is usually motivated by prejudice or hatred directed towards another person or social group based on differences in race, religion, ethnicity, customs, behaviours, or other factors. It has a far-reaching psychological and emotional impact on the sufferer.

Thus, Hate Crimes can be described as an attack on a person’s rights that have been entrusted to him, hurting not just him but the entire societal system, making it more horrific than many other criminal offences.

Examples of hate crimes

Examples of hate crimes are as follows:

Assault
Harassment
Murder
Sexual assault or harassment
Fraud
Theft
Hate messages
Causing alarm or distress

File a complaint with the National Human Rights Commission of India

Procedure to file an online complaint

Go to the website and you will be asked to fill out these details.

Note

Please use the Internet Explorer browser with a popup allowed in browser settings.
Fill in details in the English language only.

Your details

1.	Name	Mention Complete Name.
2.	Sex	Select Gender from the list.
3.	Address	Mention Complete address for Correspondence.
4.	State	Select the name of your State from the list.
5.	District	Select name of your District from the list.
6.	PIN CODE of your locality, email-id and mobile no., if available

Victim details

7.	Name	Mention complete name of the victim.
8.	Address	Mention Complete address of the victim.
9.	State	Select name of State from the list, from. where the victim belongs to.
10.	District	Select the name of the District from the list, from where the victim belongs to.
11.	Sex	Select Gender of the victim from the list, If the number of victims are more than one then Select ‘Group’ option.
12.	PIN CODE of locality, if available.
13.	Disability	Select the disability status of the victim from the list.
14.	Age	Mention age of the victim in years.
15.	Religion	Select Religion of the victim from the list.
16.	Caste	Select Caste of the victim from the list.

Incident details

17.	Place	Mention exact place of incident i.e. locality, Village, Town, City.
18.	State	Select Name of State from the list, where incident occurred.
19.	District	Select Name of District from the list, where incident occurred.
20.	Incident Date	Mention incident date (Date/Month/Year).
21.	Incident Category	Select incident category from the list with whom the incident relates to.
22.	Incident Sub-Category	Select incident sub- category from the list which specifically shows the nature of incident
23.	Write complaint	Brief summary of facts/allegations of the incident/complaint.
24.	Is it filed before any Court/State Human Rights Commission	Select the option whether the complaint of the same incident is filed before any Court OR State Human Rights Commission.

Relief details

25.	Name, designation & address of the Public Servant	Mention full details of Public Servant/Authority against whom the complaint is being made.
26.	Relief sought for	Mention full details of relief, which is sought against the human rights violation.

Toll-free number to report hate crimes- 1800-3133-600-00

In India, activists have established a helpline for victims of hate crimes and mob violence, with the goal of documenting such incidents and offering legal assistance to victims.

A toll-free hotline has been established to report hate crimes. United Against Hate, a group of prominent citizens advocating for social justice and peace, has developed a toll-free number 1800-3133-600-00 called Helpline Against Hate.

In as many as 100 places, the number will be ready to assist victims of hate crimes. The hotline was established in response to an increase in hate crimes and mob lynchings being reported around the country.

Apoorvanand said, “It’s past time to recognise, define, and deliberate on hate crime, as many European countries have done. The helpline was necessary since minorities are being persecuted just because of their identity. Hate crimes are not taken seriously by cops”.

This number’s services will be available in both Hindi and English. Volunteers from the United Against Hate collective will take calls and assist victims, while those reporting suspected hate crimes will receive assistance from the police. The collective will also assist victims with FIR registration and other legal requirements.

UAH’s Nadeem Khan revealed that a network of NGOs in 100 towns across India was being enlisted so that advocates could help victims of hate crimes right away.

“Call the helpline even if you sense a mob forming before a crime occurs. Lawyers, activists, and journalists will raise awareness of the situation, and police personnel in the vicinity will be summoned as quickly as possible,” Khan stated.

Other steps one can take

Call the police

It’s a good idea to call the police and tell them what happened and where the attack occurred. If you are able, provide witness testimony.

Posting on social media

A wave of hate crime films has been circulating on social media. This aids in raising awareness of the incident and identifying the perpetrator. Sharing a video of a crime is not prohibited, though some privacy concerns may arise. It is illegal to share anything that promotes hate crimes or hate speech.

Note down the incident

As quickly as possible after the incident, write down any and all details about the crime. Include the gender, age, height, race, weight, clothing, and other distinctive traits of the perpetrator. Include any threats or discriminatory remarks (such as anti-gay epithets) in the report.

Use your phone to record hate crimes

Recording violent attacks on public streets or in public places is legal. However, because different states have differing recording rules for private property, taping a crime in a private store or building could be illegal.

Remember that recording an attack could draw the assailants’ attention to you, therefore it’s a personal decision.

Obtaining video evidence of hate crimes

Local businesses have caught many recent hate incidents on surveillance cameras. Some family members have started posting videos of their loved one’s attacks on social media and offering rewards for information. You have the right to request a video of the attack, but it is up to the business whether or not they cooperate.

Why should you report hate crimes

The Hate Crimes Reporting Gap refers to the large gap between hate crimes that occur and those reported to law enforcement. Hate crimes must be reported not just to express support and obtain treatment for victims, but also to send a clear message to the community that these crimes will not be tolerated. Reporting hate crimes allows communities and law enforcement to properly grasp the scale of the problem and devote resources to preventing and responding to bias and hate-based attacks.

Hate crimes in India

Hate crime is not a new concept in India. Since the establishment of nations, there have been events involving such crimes, which are mostly based on religion. Apart from religion-based crimes, there was also caste and gender-based violence, and there is no single event that can be pinpointed as the start of Hate Crimes in India. According to a survey by the National Crimes Record Bureau (NCRB), India has the highest rate of hate crimes based on caste and religion, followed by gender biases, which are on the rise. Hate crimes in India, such as lynching and hate speeches, harm not only the victim but also entire communities.

According to Hate Crime Watch, there were 282 hate crimes reported in April 2019, with 100 people killed. Muslims were the most common victims of such crimes, accounting for 57% of all incidences, followed by Christians (15%) and Hindus (13%). All of these statistics just demonstrate the disturbing rate at which such crimes occur and how deeply they have infiltrated society.

Hate crimes are unlike any other sort of crime in India because they have a sense of bias related to the motive that is absent in other types of crime. Hate crimes have a distinct type and quality that distinguishes them from other criminal offences, and they are as follows:

Biasness is always the root of hate crimes. Only when there is prejudice does criminal conduct become a hate crime. The selection of a victim based on prejudice based on his religion, community, gender, and other factors should be recognised.
Hate crimes, no matter how diverse in type, are always founded on a criminal offence that is punishable and hence imposes some form of penalty. This establishes hate crime as a criminal offence under domestic law and establishes its criminality.
Hate crimes are a kind of discrimination at its most extreme. It is committed as a result of a significant disparity in the community, causing the former to discriminate against the latter and, in extreme cases, to commit crimes against them as a result of their prejudices.
When it comes to hate crimes, the target is always an individual or a group of individuals who share conspicuous qualities that cause differences and biases.
Hate crimes can take a variety of forms, ranging from vandalism to physical violence and, in some cases, homicide. Hate crimes are classified according to their level of brutality and cruelty, as well as their impact on society as a whole.

Conclusion

It’s always better to report the crime as soon as it occurred and to contact authorities rather than taking laws in your hands. If one is a victim of hate crime follow the steps given above to obtain immediate relief.

References

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Unexplored antitrust and contract law concerns in Indian transport aggregation

By

Shoronya Banerjee

-

October 13, 2021

0

Copying Business Model — Image source: https://rb.gy/p8ns5g

This article has been written by Pratibha Chauhan, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

Much has been written about the antitrust issues surrounding Uber and Ola’s business operations in India. The collective bargaining procedures of drivers, who may or may not be independently operating contractors and hence, are unprotected by statutory provisions and constitutional rights for labour and susceptible to similar antitrust scrutiny, have received little attention.

Before we get into the meat of the matter, we should clarify that we do not want to offer any personal opinions or value judgments about the facts at hand. We are attempting to merely bring out the legal and policy issues and related prospects pertaining to antitrust and the regulations relating to it as applicable to the transport aggregators who are operating in India.

Antitrust regulations and antitrust aggregators

In what may be a surprising first, the Federal Trade Commission (FTC) of the United States (US) has sided with two transportation aggregators Uber and Lyft in an appeal that was filed before the Ninth Circuit by the latter. Collective bargaining by drivers who are collaborating with aggregators was advocated and permitted by the City of Seattle Ordinance 124968 of 2015.

Following that, a federal judge ruled that the Ordinance was exempted validly from antitrust regulations as given in the “state action doctrine”. According to this doctrine, a state in the USA can claim an exemption from federal antitrust regulations by articulating its intent clearly in order to displace the competition in a particular field with a regulatory regime.

Filing their amicus brief together, in the Chamber of Commerce of the USA and Rasier, LLC v. City of Seattle, earlier in that month the FTC and the US Justice Department argued vehemently that no clear articulation of an intention of such kind in relation to this particular field by the State of Washington was there. An amicus brief with similar features has been jointly filed by other business groups opposing the ordinance.

Most notably, the above-mentioned briefs aim at expressing concerns about collusion and the consequence of price-fixing by drivers working with the aggregators which are thus categorized as independent contractors by the aggregators.

State action doctrine and its relevance in India

The “State Action Doctrine” is not a recognised exception to the antitrust regulations as given under the Competition Act, 2002. As a consequence of this, state governments in India are not able to claim antitrust exemptions under Indian law. However, the Central Government may exempt the execution of the Act or any arrangements given under it by notification for a specified, or by mandatory implication, an unspecified span of time. The relevant part of Section 54 of the Act states about the same.

Historically, the Central Government has essentially “tweaked” the statutory limits provided under Section 5 of the Act via notifications (released in March 2011 and March 2017). Most recently a notification that eerily avoided public attention entirely omitted the necessity of a thirty-day notice for combinations provided in Section 5 of the Act for a five-year period. All of these notices are distinguished by a simple repetition of the relevant clause and the applicable ground, namely “public interest.” Indeed, challenges to such announcements for improper use of the “public interest” premise are not out of the question. In a similar manner, it can be argued that the exemption is not provisioned for “any class of enterprises” (states Section 54(a)) or “a particular field” (according to state action doctrine in the USA).

Regardless, there is a case to be made for a properly defined exemption enabling unionisation/collective bargaining by independent contractors in aggregate areas with a virtual oligopoly. Another possibility is the implementation of a custom-made regulatory regime. More broadly, the Ordinance and all of the subsequent litigation in the United States remind us of the intriguing prospects of the Act given in Section 54(a), which are still unexplored!

Ground realities

As transportation aggregators in India gradually reduce incentives for partnering drivers, the latter’s employment difficulties are “far from over.” With the rapid rise of these aggregators in the transportation market, this will almost probably become a key legislative concern for the Central Government in the future years.

Given the ground facts, the second of the two choices described above appears to be more promising. Union activity and collective bargaining by these “independent contractors” – despite the fact that it is not expressly permitted by law – is a crucial ground reality that cannot be ignored. In the year 2017, an association in Delhi named Sarvodaya Drivers Association (that claims to be the representative association of more than 20,000 taxi drivers) and the Delhi Taxi Tourist Transporters’ Association (having more than 50,000 drivers) called at least two strikes in assistance of “higher incentives and better conditions.”

These incidents speak to a larger issue, which is characteristic of the transport aggregation market in India: the lack of thorough governmental regulation! Do such activities by aggregators’ driving partners give rise to a presumption of an appreciable reverse impact on competition under Section 3(3) (a) of the Act? As per a literal understanding, the response is “yes.” As a result, a tailored exemption provided by the Act will impactfully serve no new purpose and, in the absence of additional regulation, may be quite ill-suited and unproductive for the meaningful market segment.

Alternative approaches

When predominantly executive resolutions seem to be addressing the potential problem, there exist possible legislative and judicial solutions too. It would be fair to argue that legalising collectivisation by the drivers (arguably independent contractors) doesn’t seem to be an appropriate policy- it might be causing more worsened effects than the positive expected.

Contractual implications of such relationship conclusions

Discriminatory provisions in an employment contract may be scrutinised more closely by Indian Courts than contracts with independent contractors in the near future. A fundamental underlying goal of providing stronger protection to the former category under labour law is most likely the difference in bargaining power between the two categories vis-à-vis the employer or hirer. Simply put, there appears to be an underlying notion that independent freelancers have higher bargaining power than those hiring their services.

A US district judge, for example, ruled that the arbitration clause in the contract between the concerned partners and Uber was ‘Unconscionable’ since it was hidden in the contract and inconsistent with other clauses. A stipulation in the stated agreement obliged the driving partners to handle their conflicts through arbitration, including those originating from employment termination, and to forgo their ability to file a class-action lawsuit against the corporation. However, the Ninth Circuit ruled on appeal that the arbitration clause was not “unconscionable” because the drivers had the option to opt-out of the arbitration, which a handful did. The Court stated that the party who has signed the contract is responsible and cannot complain about the language or unfamiliarity with the language of the agreement.

While determining the impartiality and fairness of the terms in the contract, the Supreme Court of India in the case of L.I.C v. Consumer Education and Research approved that the freedom of agreement must be determined on the basis of equal bargaining power between contracting parties. Though ad idem is assumed, the rule lies in the standard form contract. The consent or consensus ad idem of the vulnerable party is completely missing. He must affirm the same in terms of the dotted line contract or forgo the goods and services. The free and equal power of negotiations is mostly an illusion.

Keeping that in mind, the 199th Report of the Law Commission of India (2006) inferred that Indian law is deficient to manage meaningful and authoritative shamefulness, in this manner proposing provisos for a devoted enactment. Maybe this vagueness in the homegrown legitimate system could likewise be explained by adding global lawful shows to the homegrown law.

In Vishakha and Ors. v Territory of Rajasthan and Ors the Supreme Court of India held that bringing in global shows without a trace of conflicting domestic legislation in a specific field is an acknowledged guideline of translation. The UNIDROIT Standards on Worldwide Business Agreements 2010 (UNIDROIT Standards) give a global structure to general standards of agreement law that can be applied to any country regardless of its lawful practices and its monetary and political condition.

Article 3.2.7(1) of the UNIDROIT Principles lays down grounds for avoidance of a contractual term in cases of “gross disparity”. It states:

(1) A party may avoid the contract or an individual term of it if, at the time of the conclusion of the contract, the contract or term unjustifiably gave the other party an excessive advantage. Regard is to be had, among other factors, to

(a) the fact that the other party has taken unfair advantage of the first party’s dependence, economic distress, or urgent needs, or of its improvidence, ignorance, inexperience or lack of bargaining skill, and

(b) the nature and purpose of the contract.

As per the Official Comment, 2 to Article 3.2.7, an individual term of the contract can be avoided by a party when the party has been taking an unfair privilege of his ignorance, inexperience, or weak negotiation skills. As such, the court has the power to extrapolate the principle of gross disparity in order to fill the gap or cover up the lacunae in the contemporary Indian legal regime regarding contract related unfairness in the form of a substitute to the principle of unconscionability.

Conclusion

It is abundantly clear that the government today endorses fast growth and high competition in the transport industry. Economic development is at the forefront of the Government’s agenda. The taxi market through the aggregator model in India like the ones followed by Ola and Uber is still at a very nascent stage and demands time to fully develop its pricing strategy. It would be wise for the concerned authorities and government to draw up a course of action and plan for the small and traditional players in the market in order for them to survive and continue to add to the development of the economy as a whole.

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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Guidelines by IRDAI for transfer of shares of listed companies

By

Oishika Banerji

-

October 13, 2021

0

This article has been written by Aditi Sahu pursuing the Diploma in Business Laws for In-House Counsels from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

India is ranked tenth in the world in terms of the size of the life insurance industry. In 2019, India’s share of the global life insurance market was 2.73 percent. The life insurance premium in India increased by 9.63% over the previous year, while the global life insurance premium increased by 1.18%.

India is ranked 15th in the world for the non-life insurance industry. During 2019, India’s share of the global non-life insurance market was 0.79 percent. Non-life insurance premiums in India increased by 7.98% over the previous year, while global non-life insurance premiums increased by 3.35%. During 2019, the global share of life insurance business in total premium was 46.34 percent, while the share of non-life insurance premium was 53.66 percent. However, India’s share of life insurance business was high at 74.94 percent, while the non-life insurance business was at 25.06 percent.

To regulate and monitor all these activities, there is a statutory body in India which is known as the Insurance Regulatory and Development Authority of India (IRDAI). They regulate the Indian insurance industry to protect policyholders’ interests and promote the industry’s orderly growth. This article emphasizes the role and guidelines made by the IRDAI for the transfer of shares of listed companies.

What is IRDAI?

The Insurance Regulatory and Development Authority of India (IRDAI) is a statutory body established by an Act of Parliament, namely the Insurance Regulatory and Development Authority Act, 1999 (IRDAI Act 1999), to oversee and develop the Indian insurance sector. The IRDAI is an autonomous and statutory agency that manages and regulates India’s insurance and reinsurance industries. The organization consists of ten members, including a chairman, five full-time members, and four part-time members. It was established in 1999 by an Act of Parliament, and its headquarters are in Hyderabad.

History : the Insurance Industry in India

The Government of India nationalized India’s insurance industry in 1950 and established the Life Insurance Corporation of India (LIC of India). The government decided to open up the insurance sector to private players in the 1990s. The Irdai was formed after a committee was formed to propose reforms.

When the market was opened up in 2000, foreign firms were allowed to buy up to a 26% stake in Indian insurance companies. Foreign direct investment in the insurance sector was later limited to 49%. In Budget 2020, this was finally changed to 100%.

Duties and functions of IRDAI

Section 14 of the IRDAI Act of 1999 establishes IRDAI’s duties, powers, and functions.

· Issue a certificate of registration to the applicant, renew, change, withdraw, suspend, or cancel the registration;

· Protection of policyholders’ interests in areas relating to policy assignment, nomination by policyholders, insurable interest, payment of insurance claims, policy surrender value, and other terms and conditions of insurance contracts;

· Establishing minimum requirements, a code of behavior, and hands-on training for insurance intermediaries and agents

· Defining the surveyors’ and loss assessors’ code of conduct;

· Improving efficiency in the insurance industry’s operations;

· Promoting and regulating professional organizations associated with the insurance and reinsurance industries

· Imposing fees and other charges to carry out the purposes of this act;

· Inquiring about, inspecting, and conducting inquiries and investigations, including audits, of insurers, intermediaries, insurance intermediaries, and other organizations involved in the insurance business;

· Control and regulation of insurers’ rates, benefits, terms, and conditions in respect of general insurance business not controlled and regulated by the tariff advisory committee under Section 64U of the insurance act of 1938 (4 of 1938);

· Specifying the form and manner in which insurers and other insurance intermediaries shall keep books of account and render statements of accounts;

· Regulating insurance companies’ investment of funds;

· Regulating the maintenance of the solvency margin;

· Resolving disputes between insurers and intermediaries or insurance intermediaries

· Supervising the tariff advisory committee’s operations;

· Specifying the percentage of the insurer’s premium income to be used to fund the schemes for promoting and regulating professional organizations mentioned in clause (f);

· Specifying the percentage of life insurance and general insurance business that the insurer will conduct in the rural or social sector; and

· Exercising any additional powers that may be prescribed.

IRDAIs mission

IRDAI formed a mission statement for itself, which is as follows:

To safeguard policyholders’ interests and ensure fair treatment;
To promote the rapid and orderly growth of the insurance industry (including annuity and superannuation payments) for the benefit of the common man, as well as to provide long-term funds to accelerate economic growth;
The setting, promoting, monitoring, and enforcing high standards of integrity, financial soundness, fair dealing, and competence among those it regulates;
To ensure that genuine claims are settled quickly, to prevent insurance fraud and other malpractices, and to put in place effective grievance redressal mechanisms.

Guidelines issued by the authorities for the transfer of shares

On July 23, 2020, the Insurance Regulatory and Development Authority of India (IRDAI) issued a circular for the transfer of insurance company shares. The authority decided to issue the following guidelines to provide more clarity on certain issues concerning the transfer of shares.

i. Transfer of Shares in Listed Insurers Requires Notification and Approval

According to the current share transfer guidelines governing listed insurers, any transfer of shares amounting to more than 1% but less than 5% of a listed insurer’s paid-up share capital requires the acquirer to submit a “fit and proper” declaration to the relevant listed insurer. Under the Insurance Act, this self-certification is deemed to be IRDAI approval for the transfer.

In addition, if a transaction results in the buyer’s aggregate shareholding (including persons acting in concert) in the listed insurance business exceeding 5%, the guidelines require the buyer to acquire prior clearance from the IRDAI. In circumstances where more than 5% of the shares of the listed insurer are being transferred, the circular now requires the transferor to receive prior clearance from the regulator. Furthermore, even in circumstances where there are numerous purchasers, the seller must obtain this clearance regardless of whether any of the acquirers’ shareholdings after the transaction surpasses 5%.

ii. Determining Transfer Thresholds Over Time

According to the circular, all transactions completed within a financial year must be considered when determining whether IRDAI or the insurer must be notified or whether prior approval from the regulator is required. While this obligation applies to all shareholders of unlisted insurers, it is only relevant to promoters and promoter groups of listed insurers. Given the possibility of numerous buy-sell on-market transactions in such a scenario, it will be interesting to see if this fiscal year threshold is applied as a net of all buy-sell transactions undertaken by the promoter groups per fiscal year, or if only sales undertaken by the promoter group are aggregated.

iii. Determination of transfer extent – Listed and unlisted insurance companies

To calculate the quantum of transfer/acquisition of shares, scenarios where a transfer is executed in favor of one or more parties, whether in a single or multiple transactions aggregating to more than 1% or 5%, will be considered. As a result, whenever the specified limits are likely to be exceeded in a fiscal year, the entity must seek prior approval from the IRDAI.

Listed Company (Companies that are publicly traded): Only the promoters/promoter group will be subject to the existing provisions. Furthermore, the transfer includes an offer for sale made by existing shareholders under SEBI (ICDR) Regulations, whether or not such a shareholder is a member of the promoter/promoter group.

iv. Shares Pledge

The provisions of Section 6A(4)(b)[1] of the Insurance Act, 1938, and the IRDAI (Transfer of Equity Shares of Insurance Companies) Regulations, 2015, relating to the transfer of shares, shall apply mutatis mutandis to the creation of a pledge or any other kind of encumbrance over shares of an insurance company by its promoters.

According to the circular, promoters will now need IRDAI approval before pledging their shares or creating any type of encumbrance. As a result, the promoters of insurers whose shares are currently pledged may have to seek IRDAI approval post-facto. It’s worth noting that this approval requirement applies only when a promoter creates a pledge or encumbrance, and it hasn’t been extended to other shareholders. Currently, regulations prohibit private equity investors from encumbering their shares in unlisted insurers.

v. Suspended Voting Rights

If any non-compliance with the provisions of the Insurance Act, the regulations, and guidelines as enshrined in the existing circulars issued by the IRDAI regarding the transfer of shares is observed, insurance companies must immediately notify the IRDAI, furthermore, where transactions are executed by shareholders beyond the stipulated threshold limits without the prior approval of the IRDAI,

the transferee shall not have any voting rights in any of the insurance company’s meetings; -the transferee will promptly dispose of the excess shares acquired, beyond the specified threshold limits.
Any transfer of shares that exceeds the specified threshold limits without prior approval from the IRDAI will result in appropriate regulatory action, according to the IRDAI.

Conclusion

As per aforesaid guidelines, the insurance regulator IRDAI has provided specific recommendations to provide additional clarity on various problems relating to promoters/shareholders’ transfer of re/insurance company shares. Insurance companies must immediately notify the IRDAI if there is any non-compliance with the provisions of the Insurance Act, the regulations, and guidelines as enshrined in the existing circulars issued by the IRDAI regarding the transfer of shares is observed. It also observed the matter where transactions are executed by shareholders beyond the stipulated threshold limits without the prior approval of the IRDAI.

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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Comparative analysis for protection of cyber terrorism in US and Europe

By

Oishika Banerji

-

October 13, 2021

0

This article has been written by Sagnik Mukherjee pursuing the Diploma in Technology Law, Fintech Regulations and Technology Contracts from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

Ava and Steve are two very different individuals, busy with their jobs, living a thousand miles apart, who have never met each other. Jane works as the chief strategist to an MP of the ruling party in Poland and Steve works as the Chief Engineer to a private company that is responsible for maintaining software stability and functioning of the sewage facilities in a state of the US.

When we look from a third person’s perspective, we see that they don’t share any common links, however when we dig a little deeper into their social media, one can find that they are both part of an online forum that discusses various environmental issues. People from all over the world join and discuss the current state of the environment and share their two cents on how to tackle it. Both Ava and Steve have also done the same and have a lot of co-sympathizers in the forum with whom they regularly interact and share information, even outside the forum.

However, what they do not know is that within this forum, there are members from rogue organizations who are actively collecting user credentials for their future use. A few weeks down the line both Ava and Steve receive a mail on their work email accounts stating it was some important file that needed to be looked into immediately. After downloading and opening the email they both see a document that has gibberish written all over it and they dismiss it as some prank by a colleague. What they do not realise is that they just downloaded an infected file that covertly installs itself and records every data to and fro from their workstation, sending it to the remote servers of the rogue organization. Soon enough, the principal opposition party of Poland gets hold of several classified government documents that puts the ruling party in a very tight spot and the software company has lost a significant part of its business after being unable to control a certain function of the sewage facility resulting in a serious monetary loss of the state government from toxic waste being dumped in public water bodies.

A part of what you just read, although it sounds like a movie script,is actually based on real-life events, involving real governments, the general public, and real threats. In this article, we take a quick look at what constitutes Cyber terrorism and analysis of protection offered by the US and Europe from it.

Ingredients of cyber terrorism

The ingredients that account for Cyber Terrorism are being defined variably from expert to expert, more so since the nation states around the world are themselves yet to come up with a comprehensive definition that can satisfy the wide interpretation and which acts can be labelled as terrorism.

A certain section believes it is a group of politically motivated people with a specific set of intentions, who use the internet to project threats of violence, and another section believes any activities that can be placed in a set for activities that are generally categorised by the state or other nation states as terrorism, using the internet to facilitate in the progress of such work should be defined as cyber terrorism.

However a middle ground could be found between the two sections of experts, and it is roughly agreed to be identified as the illegal disruption and damage of digital property to pressurise a government for fulfilment of a specific groups political, religious or ideological claims. For instance, in 1998, a Srilankan guerrilla faction sent about 800 emails a day to one of its government organs for a straight period of two weeks. The contents of the email read “We are the Internet Black Tigers and we’re doing this to interrupt your communications”^. Cyber security experts recall this as the first known case of a terrorist organisation utilising the cyberspace to disrupt governmental activities for self-gain.

Why is cyber terrorism the choice of the hour?

Cyber terrorism is picking up traction as a weapon of choice for various favourable factors. Consider the example of Steve in the introduction. By the mere act of gaining access to an employee’s workstation, millions of dollars of damage could be inflicted in a matter of a few weeks, using just a computer connected to an internet service. No need for expensive tools, guns, explosives or manpower. Possibly costing a fraction of a price than the kinds of funds required for traditional attacks.

The second interest is discretion and anonymity. It is a well-known fact that Russia and China regularly initiate cyber attacks on other countries. A well-planned attack on a country’s cyber infrastructure could wreak havoc on the internal economy or policies and without the government having any idea who might be behind it.

For instance, there are strong suggestions that Russia (who never acknowledged) tinkered with the US election campaigns for its presidential candidates and managed to sway the public in a direction that would ultimately be favourable towards Russia, thereby indirectly influencing a nation state’s foreign policy.

The third interest is the scale and remoteness of the attack. The infiltration may have happened through only one machine but has the potential to infect a large number of machines around it, even overseas for that matter whereas traditional methods are limited to mostly the vicinity of the attack. Being able to conduct all these from a remote location or possible safe haven where attackers don’t have to physically infiltrate or cross guarded territory seems to be the cherry on the cake, increasing the chance of a successful attack by many folds.

Development of protection against cyber terrorism in US and EU

The United States of America –

In the aftermath of the Cold War analysts from the various security agencies of the US started to research and propose the next possible attack on the US and draw attention to various exposures in the defence of its homeland. With the transmission of information technology on the rise revolutionizing the economy, it would make the most sense to attack and cripple it. Thus it was no surprise when the analysts in their reports feared that the next enemy would rather choose asymmetric engagements over the more traditional ones and try to hurt the country’s booming eco-cyber development. The unknown aggregate of possible security threats to the rising information systems and networks became a headache to the supervisory security bodies and was termed as “the major security challenge of the decade and possibly the next century”.

Not much heed was paid to all the reports until 1997 when the Marsh Report begged the top wigs to take notice. The White House for the very first time took the possibility of a growing hole in its armour seriously and constituted a new administration that would specifically deal with cyberspace of the nation and develop a strategy for securing it.

In 1998, legislative tools under the Presidential Decision Directive (PDD-63) were introduced which allowed national agencies to take necessary steps to draw guidelines for addressing cyber vulnerabilities and continue the protection of critical infrastructures from attacks. Even though the PDD 63 came into effect at supersonic speed, a wholesome national policy took almost 3 years to be drawn up. However, with the 9/11 attack, the legislation went into overdrive and introduced a host of various legislative measures that would be used there on to tackle cyber terrorism, most notably the US Patriot Act of 2001 which allowed law and order agencies to intercept electronic communications related to computer offences and fraud. Since then the nation’s cybersecurity infrastructure has made gallant leaps and presently boasts of a robust network of intrusion detection mechanisms in place.

1.1 Threat response bodies and available tools –

National Cyber Incident Response Plan – This is used as a central drawing board by various security agencies in the nation to coordinate and respond to incidents at all levels.

National Cyber Security and Communications Integration Center – The NCCIC is led by the Department of Homeland and acts as a touchpoint for U.S Computer Readiness Team (U.S – C.E.R.T) and the National Coordination Center for Telecommunications (NCC) that help in maintaining the national cyber response systems in an operational status.

A host of various resources in Critical Infrastructure sectors, such as the ICS-CERT which monitors the industrial sectors and ITSRA which is for the IT sector.

Intergovernmental Partnerships and Private-Public-Partnership schemes.

National Strategy for Trusted Identities in Cyberspace – The idea behind this draft is to secure the identities of individuals, services, devices and organizations during any online transaction.

The Einstein Program – This is an AI-based program designed to alert the securities with a nearly early warning and identification of intrusions and malicious activities as well as to disrupt it before any possible harm is done to the networks and systems.

Individual state laws.

2. Europe –

One of the earliest encounters that the world had with the word Cyber terrorism was back in 1979 when Sweden in its report of threats recognized a possible future attack that could stem from the cybersphere. However, unlike America, which introduced a directive for the protection of its national assets from criminal, terrorist or state-sponsored attacks, the EU had a relatively difficult time harmonizing a blanket legislation for its nation-states. Mostly because of the kind of diversity it represents and the previous systemic problem of a universal recognition for ‘Terrorism’ as some states thrived and regularly indulged in activities aimed at disrupting the cyberspace of others thereby opposing any constructive solutions.

However, the EU legislators worked around the obstacles to develop a cyber strategy that represents the comprehensive vision on prevention and responses to cyber disruption attacks.

The EU legislators have formed three main pillars around which they plan to further develop their cyber security strategies. These are –

Increasing cyber security capabilities and cooperation among all member states of the EU and creating a seamless transmission of efficient cross border information exchange to collectively manage threats.
Mainstreaming cyber security policies in General EU policies by embedding cyber security laws specifically in context to developing technology sectors e.g Internet of things.
Making the EU a significant force in cyber security with radical developmental changes and associating with other nation-states to develop a robust protective mechanism and have a competitive advantage in the cyber sectors.

2.1 Threat response bodies and available tools –

The EU Agency for Network and Information Security was set up in 2004 with various goals such as to collect and analyse data on security incidents and emerging risks in EU, developing methods to capably handle threats, running pan EU mock cyber security breach drills.

The EU Computer Emergency Response Team 2012 was set up to provide an efficient response to information threats for institutions and agencies of the EU.

Directive on Network and Information Security (NIS Directives) 2013 were aimed at ensuring similar levels of cybersecurity over all the EU member states to tackle large scale cyber-attacks and their aftermath.

European Agenda on Security 2015 sets out renewed stress on removing obstacles to investigations on cybercrimes, attacks against information systems, fraud and counterfeiting via digital means.

Digital Single Market Strategy 2015 is developed as a Public-Private Partnership model and is instrumental in securing the protection of industrial resources in Europe of all scales from SMEs to Critical Resource Infrastructure Operators.

Recognizing differences in US and EU’s offered protection

Cyber security being a modern age pivotal issue in a nation-states advancement, no doubt the transatlantic bodies have applied their best mind in its R&D for the same, for personal as well as unified gains. However, a certain degree of differences appears in their approaches.

Approach of EU	Approach of US
Achieve cyber resilience in all EU member states.	Protect critical infrastructure.
Reduce cybercrime.	2. Improve threat identification and reporting abilities.
Develop cyber security for industrial and technological sectors.	3. Secure Federal Networks who in turn will work with various critical infra sectors.

While both the nations agree and acknowledge the importance of at least implementing minimum cyber security standards, they take yet another different outlook here too. EU strictly instils laws such as the NIS Directives which has to be abided by all its member states, whereas the US counterpart of NIS Directives which is NIST Framework is completely voluntary. It is dependent on the organizations if they shall choose to adopt it or not. Similarly, the EU has a blanket hallmark solution for cyber industries to identify if they are cyber-attack resilient by granting a standard cyber security certification. Again here, the US allows and relies on voluntary industry certifications.

Conclusion

It is evident that both countries have their individual needs and have morphed their cyber strategies to combat terrorism in the best way they thought is possible. Thereby a direct comparison of legislations and their worth would be futile. It is very evident from a glance at the robust mechanisms in place by both nations to understand how seriously the government has been working to bring forth updated laws to secure its cyber borders. However, this was a compact attempt to spot the few differences that still lie in this amalgamating war against cyber terrorism by the two nations.

References

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

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

Registration of child marriages to be allowed in Rajasthan

By

Sneha Mahawar

-

October 13, 2021

0

This article is written by Varchaswa Dubey from JECRC University, Jaipur. This article is an exhaustive work regarding child marriages in India, with special emphasis on criticism of the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021.

Table of Contents

Introduction

Child marriage refers to the marriage of a boy and a girl, who has not completed the age of 21 years, and 18 years respectively. This is not only an offence but also a human rights violation according to UNICEF, under the pretext of protecting the girl, honour to the family, social norms, customary or religious laws that pardon the practice.

As per the Prohibition of Child Marriage Act, 2006 (PCMA), the marriage of a girl aged below 18 years and that of a boy aged below 21 years are considered as a cognizable offence under Secti o n 9, Section 10, and Section 11 of the PCMA.

In child marriages, the girl is usually very young but is however married after she hits puberty, and sometimes even before the beginning of puberty, and here the community plays a vital role which believes that women are not capable of education or work.

To curb the menace of child marriage in Rajasthan and to provide security to a girl in marriage, the Rajasthan Compulsory Registration of Marriages Act, 2009 was enacted which makes it compulsory to register every marriage solemnized between Indian citizens in the state of Rajasthan under Section 3, however, Section 11 states that no marriage shall be invalid merely because such marriage has not been registered under the said Act.

The reason why marriage shall be registered is that it becomes evidence of the solemnization of marriage, and provides social security, and confidence to the married women, and it is also very important in cases where the party takes visas, and in cases of life insurance, and to prevent the frauds in marriages.

Recently the State Legislative Assembly of Rajasthan has passed the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021 which shall further make amendments to the Rajasthan Compulsory Registration of Marriages Act, 2009 due to which the opposition, protested, and questioned the need for the registration of child marriages and demanded the withdrawal of the Bill, thus walked out of the house.

The traditions and customs of Rajasthan allow the marriage of children, i.e. girls below the age of 18 years, and boys below the age of 21 years. According to the Annual Health Survey of 2012-13, around 51.2% of the women in Rajasthan aged between 20-25 were married off before the age of 18 years.

Historical background of child marriages in India

In ancient India from around 200 BC to 700 AD, young girls and boys believed in liberal concepts like love, and therefore, they were allowed to choose a partner and thereafter enter into a relationship. The ancient concept was however abandoned by developing states and the government enacted various laws to modify the traditional Indian society.

Eventually, women lost their rights and had to abide by the rules of society, and they were considered subjects of family discipline and honour. Since young girls were considered irresponsible and irrational, their parents used to fix their marriage before they would fall into a “scandal”.

It was believed by the people during the ancient times that if two people know each other since childhood, it will promote affection, and understanding amongst the parties to a marriage, and therefore, the parents used to fix the marriage of their child at a very early age, however, in some cases, the daughter used to stay with her parents until she attained puberty.

Numerous reasons have contributed to promoting child marriage at various points of time, and almost all of them were a cause of poverty, absence of education, relations that promoted child marriage, customs, and traditions.

Apart from the political and financial reasons, another reason why girls were married at an early age is associated with foreign invasions, and raids by Muslim invaders, where unmarried girls were raped and carried away. This has forced society to protect their daughters by marrying them early.

Validity of child marriages in India

Landmark judgments on registration of marriages in India

The case of Seema v. Ashwini Kumar and Ors (2006) is the most important case when it comes to judicial interpretation of registration of marriages in India. In this case, the Supreme Court of India gave directions to the states to present to the Apex court the procedure for registration of marriages in their respective states. The states may also amend or enact the existing laws to abide by the direction.

The marriage registrar must be authorized to register the marriages, and age, marital status, must also be given by the parties. Further, the procedure for wrong information or failure in registering the marriage, shall also be stipulated by the states.

Whenever the Central Government enacts any law regarding the registration of marriages in India, the said law must also be provided to the Apex Court for judicial interpretation. The Apex Court also ruled that all the directions given by the court must be executed with immediate effect.

In the case of Court on its motion (Lajja Devi) v. State (NCT of Delhi) (2012), the Supreme Court of India observed that the Prohibition of Child Marriage Act, 2006, does not declare child marriages void, but only voidable, which creates irregular circumstances where the child marriage is treated as a criminal offence, and also such marriage is also not declared void.

The legislation must take appropriate steps in amending the Prohibition of Child Marriage Act, 2006, and various other associated laws.

In the case of Independent Thought v. Union of India and Anr (2013), the primary question before the Supreme Court of India was whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape or not, and the Apex Court while considering the exception under Section 375 of Indian Penal Code, 1860, the Apex Court held the answer to be in negative to the question raised. The Apex Court found it strange that child marriages in India are not void but voidable at the instance of the girl who was married before 18 years, however sexual intercourse with a child in child marriage is not rape, despite the same being a criminal offence under Protection of Children from Sexual Offences Act, 2012.

In the case of Kanagavalli And 4 Others vs Saroja And 3 Others (2001), the Madras High Court has expressed its concern over India not having any mechanism for compulsory registration of births and marriages. The Court also observed that poor laws reflect the inability of laws to protect women and girls from sexual assault, human trafficking, child labour, and early marriages.

The Hindu Marriage Act, 1955

Under the Hindu Marriage Act, 1955, a marriage can only be registered if it has fulfilled the conditions mentioned in Section 5 of the said Act. According to Section 5(iii) of the Act, a marriage is only valid if the bridegroom has completed the age of twenty-one years and the bride has completed the age of eighteen years at the time of the marriage.

If either party to a marriage has not attained the age of majority, then such marriage is violable at the instance of the party who did not attain the required age under the said Section.

The Special Marriage Act, 1954

The Special Marriage Act was enacted to facilitate the special form of marriages, their registration, and for divorce. Under Section 4(c) of the said Act also, the minimum age required to solemnize marriage is that the male has completed the age of twenty-one years and the female has completed the age of eighteen years.

Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021

The Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021 was recently passed by the Rajasthan Legislative Assembly which shall allow the registration of child marriages i.e. girls below the age of 18 years, and boys below the age of 21 years. Following the passing of Bill’s voice vote to amend the 2009 Act, the opposition has raised serious validity concerns of the 2021 Bill.

The 2021 Bill aims at amending the provisions of Rajasthan Compulsory Registration of Marriages Act, 2009, which was enacted by the State of Rajasthan to have a system of mandatory registration of marriages which take place in the state of Rajasthan of Indian citizens, and all the matters associated with such marriage.

However, the National Commission for Protection of Child Rights has said that it will examine the proposed amendments to the 2021 legislation to protect the interests of children after the acts of opposition in the State assembly after the passing of the 2021 Bill by voice vote.

Objects and reasons for enacting the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021

The 2021 Bill aims at amending Section 2, Section 5, Section 8, and Section 15 of the Rajasthan Compulsory Registration of Marriages Act, 2009.

Sections amended by the Rajasthan Compulsory Registration of Marriages (Amendment) Act, 2021

Section 2(f) of the 2009 Act is concerned with the appointment of the district magistrate registration officer, wherein, the inclusion of the definition of additional district marriage registration officer and block marriage registration officer is proposed.

Under Section 5 of the 2009 Act, the actual appointment of an additional district marriage registration officer and block marriage registration officer is proposed, and such registration may be done either by notification in the Official Gazette, or by name or virtue of the office of the additional district marriage registration officer and block marriage registration officer.

Section 8 of the 2009 Act has been amended in such a way that in cases where the bridegroom and bride has not attained the age of majority, the parents or guardians of the parties to a marriage must register such marriage in the office of the registrar under whose jurisdiction such marriage has taken place.

The proposed amendment further states that if any death of either or both the parties to marriage takes place, then either the surviving party, or the parents, or the adult child, or the guardians of the concerned parties, as the case may be, can file a memorandum for registration of marriage.

Section 15 has been amended for the existing expression “district marriage registration officer” and before the existing punctuation marks “.-”, the expression “and the other officers” shall be inserted.

How does the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021 contradict with central laws

Section 9 of the Prohibition of Child Marriage Act, 2006, clearly states that whoever contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with a fine which may extend to one lakh rupees or with both, and on the other hand, as per Section 4 of the Rajasthan Compulsory Registration of Marriages (Amendment) Act, 2021, in cases where the bridegroom and bride have not attained the age of 21 years and 18 years respectively, either their parents or their guardians, shall submit a memorandum, within 30 days from the date of marriage to the office of the registrar under whose jurisdiction such union has taken place.

Under Section 3 of the Child Marriage Act, 2006, child marriages are also voidable at the instance of the party who was a minor at the time of marriage, however, only the party who was a minor at the time of marriage can file the petition by the nullity of marriage. The Rajasthan Compulsory Registration of Marriages (Amendment) Act, 2021, on the other hand, has no provision regarding the nullity of child marriage, and instead, the said Act requires the parents to register the marriage of the child.

Indian legislative framework on registration of marriages

The legislation to tackle the menace of child marriage is not new to the Indian legal system and attempts to cease child marriages date back to the colonial rule in India, where the Child Marriage Restraint Act, 1929 was passed to cease solemnization of child marriages, which was later amended in the year 1978 by Child Marriage Restraint (Amendment) Act, 1978 (Repealed) which increased the minimum age of marriage from fifteen to sixteen for females and eighteen to twenty-one for males.

The central idea of registration of marriages in India is not to challenge or interfere with the personal beliefs of any religion or caste, but only to ensure that marriages can be registered under all religions and customs, and therefore not only different states in India have their registration of marriages legislation, but also different personal laws and central legislations contain the provision of registration of marriages in India.

Central laws on registration of marriages in India

The Indian Christian Marriage Act, 1872: Section 27 of the said Act lays down the provision for registration of marriage, in cases of Christians, except when marriage is solemnized under Part V or Part VI of the said Act.
Anand Marriage Act, 1909: The said Act is only concerned with the marriages of Sikhs, and those who follow the Sikh religion. As per Section 6 of the said, the registration of a marriage must be done.
The Parsi Marriage and Divorce Act, 1936: Under Section 6 of the Act, every marriage must be certified by the priest, and such certificate must be signed by the priest, the parties to a marriage, and two witnesses. Such a certificate with a fee must then be sent to the Registrar of the place under whose jurisdiction such marriage took place. A priest guilty of not sending such a copy to the registrar is liable under Section 12 of the said Act.
Special Marriage Act, 1954: As per Section 15 of the said Act, any marriage under this Act shall be registered to a Marriage Officer in the territories to which the Act extends.
The Hindu Marriage Act, 1955: Section 8 of the said Act is concerned with the registration of marriages. The reason behind the registration of marriage is not to interfere with the personal matters of individuals but for facilitating the proof of Hindu marriages.
The Foreign Marriage Act 1969: Under Section 17 of the said Act, after the Central Government has appointed members in a foreign embassy, the parties to the marriage, at least one of whom must be an Indian, shall register their marriage to the Marriage Officer.

Legislations of other states and Union Territories on registration of marriages

As a result of directions given by the Supreme Court of India in the Ashwini Kumar case, various states enacted legislation regarding the registration of marriage, in cases where they did not have any legislation. States which now have legislation regarding the registration of marriage are:

Law Commission’s reports on the registration of marriages

Report No. 270

Report No.270 (2017) on Compulsory Registration of Marriages by Law Commission of India, has in-depth studied the concept of registration of marriages in India. The Law Commission has not only discussed the merits of compulsory registration of marriages in India but also emphasized the Registration of Birth and Death (Amendment) Bill, 2019.

The Commission recommended that one provision under Delhi (Compulsory Registration of Marriage) Order, 2014, must be introduced at the national level under which the Registrar must be satisfied that the marriage registered under his/her jurisdiction is solemnized under the laws of India, and at least one party to such marriage is Indian and that the registration of such marriage is done under the relevant laws which are in force in India.

Local-level bodies, including village panchayats and municipalities, shall promote awareness regarding the registration of marriages, and marriage certificates must be presented by anyone who writes the name of his/her spouse in any application.

Report No. 211

The 211th report (2008) of the Law Commission of India dealt with the registration of marriages in India of different religions and observed that there is a major diversity in the laws in India regarding the registration of marriages and that only laws relating to registration of divorce in India are of Muslims and Parsis.

The majority of the Indian states do not have any law regarding the compulsory registration of marriages in India and the states which have provisions for the registration of marriages have faulty and ineffective laws, and people usually do not register their marriages, which usually only leads to petty penalties.

The Commission recommended the enactment of the Marriage and Divorce Registration Act, which shall apply to all citizens of India, and must deal only with the registration and divorce of all marriages, irrespective of religion, and there must be a mechanism for registration of marriages, and divorce, which shall be administered by registration offices at district, and sub-district level. However, the same has not been implemented yet.

Conclusion

Traditions, culture, customs, community, caste, religious beliefs, lack of education, economic backwardness, poverty, and high inefficiency of enforcement of laws are the main reasons why child marriages in India still prevail. With time, the urban cities have abandoned the practice of child marriages, however, a major sector in rural India still practices child marriage.

Various laws have been enacted which are directly or indirectly concerned with child marriage, registration of child marriage, punishment for child marriage, etc. and the laws tend to be inconsistent in tackling the menace of child marriage.

While some legislations punish the parties to child marriage, legislation like the Rajasthan Compulsory Registration of Marriages (Amendment) Act, 2021, makes it mandatory to register the child marriage, in case the parties are not major, the parents or guardians of such parties shall register such marriage. Therefore, India needs a uniform, codified legislation that shall not only aim at eliminating child marriages in India, but also compulsory registration of all marriages.

References

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The relevance of inter-state relations in the federal system of India

By

Sneha Mahawar

-

October 13, 2021

0

cooperative federalism in india — Image Source: https://bit.ly/2MipJn6

This article is written by Oishika Banerji of Amity Law School, Kolkata. The article deals with a detailed discussion on the relevance of inter-state relations in the federal system of India.

Table of Contents

Introduction

India being a democratic country follows the federal system of government which signifies a two-tier government with each assigned with well-structured powers, and functions. The federal system helps in ensuring unity in diversity and achieving common national goals between the Central Government, and the State governments. Thus the federal system of government is a reflection of the harmonious relation maintained between the Centre and the states. But for the purpose of successful functioning of the federal system of the Indian government, alongside the Centre-State relationship, there comes a need to maintain cooperation between the states inter se. The Parliament of India has established zonal councils with the objective of promoting inter-state coordination such as the River Boards Act , 1956, Inter-State Water Disputes Act, 1956, and several others. Further, the Constitution of India has also recognized the relevance of such relation which has been reflected by a list of provisions enshrined under the Indian Constitution as follows;

Adjudication of inter-state water disputes under Article 2 62.
Coordination through inter-state councils under Article 263.
Mutual recognition of public acts, records, and judicial proceedings under Article 261.
Freedom of inter-state trade, commerce, and intercourse under Article 301.

This article discusses the relevance of inter-state relations with respect to the federal system of India.

Inter-state water disputes

The Indian Constitution has laid down the provision for inter-state water dispute under Article 262 which reads as,

“(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.

(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause ( 1 ).”

Clause (2) ensures the functioning of Clause (1) which vests the power to make law, adjudicate disputes, control issues related to water between any inter-state on the Parliament entirely restricting the judicial interference in totality. Entry 56 of the Union List vests power on the Union Government for the regulation and up-gradation of inter-state rivers and river valleys only till the extent that has been declared by Parliament taking into account public interest. The two legislations namely the River Boards Act, 1956, and the Inter-State Water Disputes Act, 1956 were enacted by the Parliament in governing inter-state water disputes. While the former statute calls for river boards to be established for the purpose of the regulation, and governance of inter-state rivers, and river valleys, the latter empowers the Central government to form an ad hoc tribunal that will adjudicate on inter-state disputes in relation to the river or river valleys. The Inter-State Water Disputes Act 1956 restrains the Supreme Court from any other court to have jurisdiction over water-related inter-state disputes as to the same completely vests on the tribunal whose decisions will be considered to be final and binding on the parties to such dispute. The Central Government at present has set up eight inter-state water dispute tribunals namely;

Krishna Water Disputes Tribunal: Set-up in 1969 and covers the states of Maharashtra, Karnataka and Andhra Pradesh.
Godavari Water Disputes Tribunal: This Tribunal was also set up in 1969 and has been covering the states of Maharashtra, Karnataka, Andhra Pradesh, Madhya Pradesh and Odisha.
Narmada Water Dispute Tribunal: This Tribunal was established in 1969 for the states of Rajasthan, Madhya Pradesh, Gujarat, and Maharashtra.
Ravi and Beas Water Disputes Tribunal: Set-up in 1986, and covers the states of Punjab, Haryana and Rajasthan.
Cauvery Water Disputes Tribunal: This Tribunal was set up in the year 1990 for the states of Karnataka, Kerala, Tamil Nadu and Puducherry.
Second Krishna Water Disputes Tribunal: Set-up in the year 2004 for the states of Maharashtra, Karnataka and Andhra Pradesh.
Vansadhara Water Disputes Tribunal: This Tribunal obtained its structure in the year 2010 for the states of Odisha and Andhra Pradesh.
Mahadayi Water Disputes Tribunal: Also set up in 2010, this Tribunal covers the states of Goa, Karnataka and Maharashtra.

Many times the Central Government legislation failed to be implemented efficiently as has been reflected in the Godavari water dispute in 1962 followed by the Cauvery water dispute in 1970. Formation of a tribunal takes time which eventually defeats the purpose behind such formation and the concerned dispute which was in hand. Such delays and possible loopholes must be addressed as has been carried out in the 2002 amendment of the Inter-State Water Dispute Act, 1956 that mandated tribunal set-up within a year when a dispute was brought to notice.

Coordination through Inter-State council

Article 263 of the Indian Constitution lays down the provision for the formation of an Inter-State Council by the President of India as the Article reads as,

“If any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of

(a) inquiring into and advising upon disputes which may have arisen between States;

(b) investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or

(c) making recommendations upon any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject, it shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure.”

One needs to understand that the power to set up an Inter-State Council has been vested on the President who can define the powers of the same because the Council works to coordinate not only between states but also between the Centre and the states. Clause (a), (b), and (c) of Article 263 provides the manner in which the President is supposed to assign duties to the council namely by means of enquiry, investigation, and recommendation. Formed on 28th May 1990 on the recommendation of Justice R. S. Sarkaria report of January 1988, the Inter-State Council comprises of the following members;

The Prime Minister of India as the Chairman of the Council;
The Chief Ministers of every State as the members of the Council;
Chief Ministers of Union Territories having a Legislative Assembly and Administrators of UTs not having a Legislative Assembly as members of the Council;
Six Ministers of Cabinet rank in the Union Council of Ministers to be nominated by the Prime Minister as members of the Council.

It is to be noted that the decisions of this Council are advisory in nature, and not binding like the tribunals constituted for resolving inter-state water disputes, and therefore, can deal with both legal and non-legal disputes. It is to be noted that the Council has been assisted by a secretariat known as the Inter-State Council Secretariat which came into existence in 1991 and was headed by a secretary to the Government of India. The same has been functioning as the secretariat of the Zonal Councils since 2011. The Councils which has been formed by the President for better policy coordination between various states or the Centre and the states under this constitutional provision are;

Central Council of Health.
Central Council of Local Government and Urban Development.
Four Regional Councils for Sales Tax for the Northern, Eastern, Western and Southern Zones.

Followed by this, there are three Commissions that have been formed under this Council to look after its working effectivity, and power discharge, namely;

Punchhi Commission: This was formed to look into the new issues of Centre-State relations keeping in view the dynamic nature of polity and economy of India.
Sarkaria Commission: This was the first Commission that was formed for the purpose of reviewing the working of the existing arrangements between the Centre and the States in the changed socio-economic scenario.
Other Commissions: Under this broad heading, there are three Commissions that are working namely;

Mutual recognition of public acts, records, and judicial proceedings

Article 261 of the Indian Constitution lays down the provision for public acts, records, and judicial proceedings which reads as,

“(1) Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State

(2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament

(3) Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law Disputes relating to Waters.”

The purpose of this provision is to erase the difficulty of recognizing acts and records of one state by the others which results because the jurisdiction of a state is confined to its territory only. The full faith and credit clause enable providing public acts, records and judicial proceedings of the Centre and every state throughout the Indian territory thereby vesting the burden of providing a manner and regulating such providence on the Parliament by means of its legislation. Another feature of this provision is that it does not mandate courts of one state to enforce the penal laws belonging to another state thereby only being concerned with civil jurisdiction.

Freedom of inter-state trade, commerce, and intercourse

Trade and commerce play a significant role in increasing coordination and harmonious relations between states. Part XIII of the Indian Constitution comprising Articles 301 to 307 lays down the provisions for freedom of inter-state trade, commerce, and intercourse. Followed by which, Article 301 specifically declares that, “Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.” Thus this provision has assumed its structure in line with the fundamental right to freedom of trade and commerce incorporated under Article 19 (1)(g). It is necessary to mention that the freedom provided by Article 301 is not confined to inter-state trade, and commerce practices only but also intra-state trade, commerce, and intercourse. Therefore, with a divergent ambit, Article 301 promotes the free flow of trade, commerce, and intercourse all over the nation, and the same will be violated if restrictions are thrust upon any state’s frontier. But, Article 301 will not be infringed when restrictions existing within Articles 302 to 305 are imposed which have been listed hereunder;

When public interest is getting affected in some way or the other, to reserve the same, reasonable restrictions on freedom of trade, commerce, and intercourse can be imposed;
On the grounds of public interest also, the Parliament can provide certain reasonable restrictions but a bill for such circumstances has to be introduced in the legislature with the President’s sanction;
Goods imported can be taxed by the legislature provided the same does not turn out to be discriminatory;
The freedom provided under Article 301 of the Constitution is subjected to nationalisation laws.

In order to implement these restrictive provisions, the Parliament can appoint a competent authority but till now nothing of such sort has taken place.

Zonal councils

The States Reorganisation Act of 1956 divides India into five zones namely Northern, Central, Eastern, Western and Southern thereby providing a zonal council for each zone. Thus these Zonal Councils are statutory bodies composed of the Home Minister of the Union Government as the common Chairman, the Chief Ministers of all the States in that zone, two ministers from each state in the zone, and an administrator of each Union territory in that zone. The subject matters that are majorly taken up by the Zonal Councils for discussions include economic and social planning, disputes associated with borders, inter-state transportation, linguistic minorities, and so on. The objectives that are taken up by these Councils include;

Promote emotional integration within the country by harmonizing one state with the other and between the Centre and the states;
Increase cooperation between Centre and the states on social and economic concerns by means of exchanging views;
Promotion of economic development in the states;
Maintaining political equilibrium between different regions of the democratic nation.

Conclusion

Inter-state relations as having been discussed in this article holds immense relevance in today’s time when diplomatic relations are increasing among different nations. In order to deal with the internal issues of a nation effectively, inter-state relations need to be established effectively. Though India being a vast nation spread over 29 states and 7 union territories are facing different problems associated with different regions, maintenance of unity among the states and between the Centre and the state has been the only way to bringing about logical solutions to such problems.

References

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

What work do paralegals do in the USA

By

Sneha Mahawar

-

October 13, 2021

0

This‌ ‌article‌ ‌is‌ ‌written‌ ‌by‌ ‌‌Yash‌ ‌Kapadia‌.‌ ‌This‌ ‌article‌ lays out the scope of a paralegal’s work in the United States of America.

Disclaimer: The data and content for this article have been taken from a ton of opportunities (posted on LinkedIn) in the U.S. for different kinds of paralegal work and their requirements.

Introduction

If you are considering becoming a paralegal in the United States of America (USA/US), this could be the best time to make your move into this field. According to the Bureau of Labor Statistics, paralegals earned a median annual wage of about $53,000 in 2020, and demand for this role is expected to grow exponentially over the next decade.

Through this article, we shall ascertain what is meant by a paralegal and what is the scope of their work in the USA. Furthermore, what skills are needed to become a paralegal are also enlisted, which go hand in hand with job descriptions that display what is expected from the paralegals, often released by law firms and companies. The information in this article with respect to skills required is sourced from various job openings and descriptions of paralegal roles put up by law firms, companies, independent lawyers on LinkedIn.

Definition

After the American Bar Association’s (ABA) midyear meeting in February 2020, the House of Delegates, the ABA’s policy-making body, adopted a new definition of paralegal, as recommended by the Standing Committee on Paralegals. The current definition reads as follows:

“A paralegal is a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.”

The updated definition removes the term “legal assistant” which was included by the House of Delegates in 1997 in order to reflect parlance that more precisely represents the type of work that paralegals are expected to perform.

California Code, Business and Professions Code describes who can use the title of a “paralegal”. Chapter 5.6 enlists what all cannot be done by a paralegal and also enlists that at least one of the many qualifications enlisted is required in order to legally qualify to practice as a paralegal. The states of North Ca r olina and Wisconsin are also considering similar proposals for paralegals. The states of Maine, Indiana, and South Dakota also have defined the terms for paralegals. In fact, Maine’s definition has gone a step further and has provisions of fines for misuse.

It is pertinent to note that paralegals are qualified to execute their responsibilities by completing an educational program and receiving training on the job. They also have the choice of learning through actual work experience. However, paralegals are not licensed like qualified attorneys or lawyers. Paralegals are expected to do substantive legal work that can otherwise also be completed by attorneys or lawyers. It is to be noted that clerical work does not include the meaning of substantive legal work. Also, attorneys are responsible for every legal work delegated by them to paralegals and have a duty to supervise paralegals’ work in their best interest.

Types of paralegals in the USA

Many have an image of a paralegal doing only research or probably proof-reading, vetting, and editing legal documents. However, paralegals in the US engage in a lot more than general research and proofreading. As mentioned above, paralegals are expected to do substantive legal work and that does not in any manner include clerical work.

In general, paralegals assist other attorneys for court trials, negotiations, corporate, finance meetings, and closures of transactions or disputes. In larger corporations and companies, paralegals provide their expertise in one of their many departments like legal or finance. Some paralegals also work for government organisations like the United Nations. There are various types of paralegals that law firms, companies, and individual attorneys hire. Some possible careers of paralegals are listed below:

Corporate Paralegal

Corporate law becoming one of the most common areas of the law selected by lawyers to practice in has also become a common area for paralegals to provide their knowledge and assistance in. Corporate paralegals assist licensed attorneys in corporate transactions, corporate resolutions, and various other industry-specific tasks needed in order to work smoothly on a particular transaction. This also means that depending on the clientele, paralegals must also have relevant work experience in that particular field say energy, pharma, finance in order to be well conversant with industry-specific transactions and corporate procedures.

Skills to be developed & expectations of the employer

Skills required to tick, in order to be a perfect fit for this role would include strong research and writing skills. Sufficient knowledge about all stages of corporate transactions along with preparation of documents required to comply with federal, state, and local regulations. However, it is expected that a corporate paralegal should assist in the preparation of all documents required to form business entities that include companies, not-for-profit organizations, partnerships, and limited liability companies like Memorandums and Articles of Associations and in the preparation of documents for amendments, withdrawals, mergers and acquisitions and dissolution of companies and partnerships. A paralegal is also expected to support his team in preparing SEC filings that relate to securities offerings and responding to the requirements of the Securities Acts filings for clients running financial corporations.

Lastly, a corporate paralegal also gets the exposure of working with attorneys in preparing for various corporate transactions including upcoming IPOs of companies.

Law firms like Sidley Austin, Ropes, and Gray, Paul, Weiss, Rifkind, Wharton & Garrison are few law firms that provide a thorough corporate paralegal experience of the work mentioned above and these firms are currently hiring for the same role.¹

Intellectual Property Paralegal

An intellectual property (IP) paralegal provides assistance to lawyers with filing patents, trademarks, copyrights, and IP litigation. An IP paralegal can assist licensed attorneys in a variety of cases in this field. An IP paralegal can work if any person wants to patent their latest invention or even in a case wherein a company has been sued for copyright infringement.

Skills to be developed & expectations of the employer

Certain interpersonal skills like good communication and sufficient knowledge of which scenarios amount to infringement are needed to be identified by a paralegal. This position also includes working with different clients who are on various sides of intellectual property arguments. A paralegal for the litigation position will be expected to conduct in-depth research, draft various applications, manage appeals, provide status reports to lawyers, track progress, and communicate with clients on a daily basis. A paralegal who handles the transactional part will be expected to have excellent research skills and also drafting skills which may be needed to assist in drafting first drafts of legal opinion, IP agreements, royalty sharing agreements, production agreements, patent landscape report, a trademark registration application or report, cease and desist notice or a response to it, etc.² Most IP paralegal job descriptions ask for a bachelor’s degree and previous experience in the field. It’s a growing field with paralegals specializing in niche fields like only trademarks, patents, or copyright-related work.³

On a brighter note for IP paralegals, this industry is expected to increase by 10% by 2029. As a result, employers can expect a good pool of applicants and paralegals can expect competition for each job. Therefore, more focus shall be put forth towards acquiring skills and making the job of the senior attorney easy so that value can be created from even a paralegal’s end.

There are various opportunities doing the rounds of law firms and companies that are looking for IP paralegals which can be accessed here. The roles offered vary now in-office, remote as well as hybrid working with a hefty remuneration and added benefits.

Litigation paralegal

Litigation is a field that shall never go out of fashion. When transactional attorneys make mistakes in contracts or if they end up in any kind of breach or any other scenario, it leads to litigation. Litigation paralegals have to be very good at all kinds of laws so that they can provide their assistance to different teams of a law firm or even a corporation when there are pending cases that need to be closed.

Skills to be developed & expectations of the employer

Skills required for being a litigation paralegal are in-depth knowledge about all stages of a dispute life-cycle i.e. the litigation process of that particular state. From the very start of an application through the discovery and trial and along the way of post-trial findings if any and ending with an order by filing an appeal, if the need arises. A litigation paralegal shall be given the responsibility to document facts of the case followed by factual research, preparing and attending depositions and trials along with licensed attorneys and noting the findings from the same and successfully acting as a liaison among internal departments and outside or opposite law firms.⁴

Litigation paralegal roles generally require adequate experience in the field. However, junior litigation paralegal role vacancies can be targeted for entry-level paralegals.

There are abundant litigation paralegal roles currently available on Glassdoor wherein renowned firms like Kirkland Ellis, Latham and Watkins are looking for paralegals to assist their attorneys to do the aforementioned legal work.

Bankruptcy paralegal

Law firms represent four types of clients under any banking transaction. They are debtors, creditors, committees or trustees. A bankruptcy paralegal navigates a debtor through a federally approved process that allows him or her to be relieved of that debt by negotiating a deal with creditors and the court. A single bankruptcy transaction can involve many steps like attending client meetings for both parties and taking notes and making records thereafter, drafting relevant applications, petitions, and schedules, conducting searches to establish stressed and distressed assets. Some bankruptcies can be very complex and involve additional steps of varying degrees of complexity for which paralegals may be allotted work relating to research on these complexities. Paralegals also work for creditors and have similar responsibilities as those who work in a corporation’s legal department.

Bankruptcy paralegals have a complex job profile due to the vast areas banking transactions are made across.

Skills to be developed & expectations of the employer

Skills required for this position would include excellent knowledge about the rights, liabilities of debtors, creditors, committees and trustees. A bankruptcy paralegal is expected by a recruiter to gather and review information from a client, prepare drafts of the petitions and further respond to questions from creditors and other interested parties. They are expected to provide services to the bankruptcy estates and assist their seniors with the sale of assets or assist the senior attorneys in adversary proceedings against or by the estates and manage the claims objection process. Paralegals need to further establish timelines for filing financial reports and prepare liquidation analyses for the reorganization plan. They assist in the preparation of pleadings and fixing cutoff dates for filing proofs of claim.

Paralegals that represent creditors must expect the following duties: gathering and analyzing information regarding the debtor’s unsecured and secured debts, reviewing monthly financial reports filed by the debtor to ascertain their finances, track developments in a case, assist in the examination and analysis of the debtor’s records, assist in preparing liquidation.⁶

Paralegals representing trustees must expect the following job duties: preparing applications and orders for retaining auctioneers, appraisers and accountants, overseeing documents production and control in various contested matters or proceedings against them, analyzing and preparing objections to claims against them, preparing applications and orders that layout details of the dates for filing administrative claims. A bankruptcy paralegal is also expected to assist his team in bankruptcy litigation by preparing first drafts of pleadings necessary for the sale of assets.⁷

Some of the most well-known law firms⁵ specializing in banking and restructuring transactions are Akin Gump Strauss Hauer & Feld LLP, Milbank, Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates (Tier 2). There are often roles of a paralegal as well as legal assistant roles in the banking and restructuring team of these firms which one can keep an eye on through their websites.

Immigration paralegal

Immigration paralegals tend to provide their assistance to immigration attorneys who specialize in helping clients/immigrants navigate immigration laws to obtain visas to become naturalized citizens or legal residents of the US. Paralegals often help to solve other immigration-related issues like they assist attorneys who help US citizens complete their adoption process of children from abroad i.e. outside the US. Immigration paralegals also work for law firms, corporations, or government agencies that have specialised teams devoted to immigration-related issues. Immigration paralegals generally assist attorneys and help clients through the process of becoming a naturalized citizen, a legal resident, or to help a US citizen go through the immigration process for adopting a child from abroad and even assistance that is needed in a deportation process. They typically assist attorneys in researching the facts and laws involved in every case followed by writing reports and assisting lawyers during trials, if the matter reaches the Court.

Skills to be developed & expectations of the employer

Skills required by an immigration paralegal job may require a good proficiency with specific immigration and naturalization forms like H-1B, Blanket L-1As and L-1Bs, I-140, TN, and PERM applications. Knowledge of specific immigration software like LawLogix or INSZoom may also be requested.⁸ Possessing Bilingual skills is highly recommended and preferred by recruiters so that communication with clients becomes easier. An immigration paralegal is expected to have sufficient knowledge of immigration forms, how to fill them out, and how to file them. They are expected to report to the immigration program manager, collaborate with the other or opposite side immigration attorneys, overviewing the caseload from intake through processing and filing. Knowledge on how to prepare applications for permanent residency and secondary benefits for foreign nationals is necessary.⁹

Lastly, processing and filing nonimmigrant and immigrant visa petitions in complex situations is an added advantage for a paralegal. Immigration paralegals are niche in their approach as they are already very few in number but the future looks bright for them as more and more people are immigrating to western countries like the USA and Canada. Therefore, immigration paralegals, who have sufficient knowledge on how they could help an immigrant to set up their new base there would have a well-paid job too.

Top firms to target of the many immigration law firms¹⁰ one wants to work as an immigration paralegal or assistant are Berry Appleman & Leiden LLP, Mayer Brown which often has openings for paralegal roles through LinkedIn. These firms list the aforementioned skills in their paralegal job descriptions in order to shortlist their paralegals.

Conclusion

We are now well conversed with the fact that paralegals have a humongous amount of work to do which requires a plethora of skills that need to apply. Being a paralegal gives you a headstart in consonance with your goals. There is something called a thin wedge entry wherein you can get your foot in the door, which means you get the opportunity to create relationships, develop understanding about things. You can build advantages that help you to get to the next step that is hard to otherwise achieve. Building a deep network with even 2-3 quality people who are in your team would help you reach your goals in the legal field even if you’re a paralegal. In drawing things to a close, there is no better time to be a paralegal after various companies, law firms, consultants require people having knowledge mentioned throughout this article even remotely. Location is no boundary today to get your work done. Therefore, even if a paralegal wants to work remotely across different platforms and build his own clientele across geographical boundaries, it is possible today and is only going to go upwards.

References

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

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

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Technology and animal rights : the EU perspective

By

Oishika Banerji

-

October 13, 2021

0

EU-ban-on-animal-testing-for-cosmetics-must-be-upheld-by-European-Commission-Parliament-and-Council-says-industry (1) — Image source-https://rb.gy/encar8

This article has been written by Niranjana Rajulukumar pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

The European Commission has a history of promoting animal welfare for several decades now. They aim to gradually improve the lives of livestock. A key initiative was taken in 1998 through Council Directive 98/58/EC for the protection of animals kept for farming purposes. It provides general rules for the protection of animals of all kinds of species kept for the production of food or for other farming purposes, which includes fish, reptiles or amphibians. The rules were framed based on the European Convention for the Protection of Animals kept for Farming Purposes. They emphasize the ‘Five Freedoms’ which are the basic rights of animals, freedom from hunger and thirst, freedom from discomfort, freedom from pain, injury and disease, freedom to express normal behaviour and freedom from fear and distress. This notion has originated from the Brambell Report. The animals need adequate space and facilities and some company of their own kind to express such behaviour. The UK law uses a constructive formula as it aims to provide the animals with an appropriate environment and the right diet, and it wants animals to be housed with, or apart from, other animals.

Role of technology in animal welfare and its management in a digital world

New and next-generation technology is crucial for animal health, and precise monitoring of them. They are critical in building a sustainable and high-welfare livestock industry, and the support of global brands will have a humongous effect.

The digital era opens prospects to use multiple sensors, data infrastructure and some data analytics to monitor animals in their environment 24/7. An evidence-based approach to the monitoring and surveillance of farm animals called Precision Livestock Farming (PLF) is made for the welfare and safety of the animals. The emphasis of PLF is on animal health and production. It detects the position of the animals at all times using the Real-Time Locating Systems. The movements of the animals are measured using accelerometers to see if an animal is lying, moving, standing or even eating. Sound recording technology is used to detect coughing or other vocalisations of the animals.

Technology and animal cruelty

In the age of technological innovations, processes like cloning and genetic engineering are first tested on animals, especially on a large scale. This aspect raises questions of both ethical and moral concern that whether the existing foundations used in animal laws are adequate enough to deal effectively with these developments. These technological innovations affect animal ethics in two main ways. The first being that they bring situations that were not foreseeable, like changing the very nature of an animal through genetic modification or physically turning it into something that it is not. Another way is that they further expose problems that are underlying in the existing areas of animal use. The outcomes of the experiments conducted on the animals are invalid when it is applied to humans, but regardless of whether the resultant information helps the humans or not, performing these experiments on them violates their rights. Several species used in tests are not covered under the Animal Welfare Act. The pain and suffering that experimental animals are subjected to are not worthy of any possible benefits to humans. When animals are used frequently for product toxicity testing or laboratory research, they are exposed to excruciating pain and often are deadly.

Current foundations of EU and UK animal laws

Both the European Union’s and the United Kingdom’s animal laws are based on the fact that animals are sentient beings. These are perceived as beings that are capable of feeling pleasure and pain or capable of experiencing pain and suffering. The EU has its main basis of animal protection in Art 13 of the Treaty on the Functioning of the European Union (TFEU). Whereas the UK recognizes sentient beings from its principal animal welfare legislation, the Animal Welfare Act 2006 (AWA). The UK has a much more widespread legal structure regarding animal protection than the EU. For instance, there is no legislation with respect to animals in circuses, pets or strays in the European Union. Whereas the UK Parliament is by standard, able to enact any issue it desires. The EU is bound by the principles of conferral, subsidiarity and proportionality, hence only has limited competence.

Emerging technologies driving improvements in animal welfare and safety

Highly advanced devices and software for animal observation and safeguard are unceasingly being developed by animal conservationists and software application developers to catch wildlife poachers and traffickers. These days crimes against animals are carried out online. An example is the Spatial Monitoring and Reporting Tool, a.k.a. the SMART software, created by the World Wildlife Fund, the Wildlife Conservation Society, and the London and Frankfurt zoos. This program has been particularly developed to protect endangered animals. It is being used all over the world to monitor animal populations. This application permits conservationists to gather, scrutinize, and dispatch data on animals, prohibited activities, and protection groups. It also enables animal rangers to act more competently to animals at risk and to protect them.

Just as prosthetics help humans who have lost limbs, prosthetic technology is now emerging with man-made limbs to care for injured animals. Something worth mentioning is Animal Orthocare, which develops prosthetics that are made of very durable, medical-grade foam and plastic. These are customized on plaster moulds that come from limb casts sent to Animal Orthocare by owners, veterinarians, and animal rehabilitation clinics from all over the world to fit the animals’ comfort. This provides an alternative to costly surgeries or euthanasia for disabled animals and giving them another chance at life.

Remote monitoring technologies can be done without coming into physical contact with the animals giving farmers an insight into the health and well-being of an animal. With the use of technology, a farmer can say whether an animal is becoming sick by using methods like heat detection identification or stomach acid monitors. Also, if it needs more exercise by using a pedometer. Remote sensors could detect pregnancy among the cattle. These technological inventions help the farmer in monitoring the health of his animals and aiding them in identifying ailments or pregnancies, so as to avoid danger and provide better care.

Automated Dairy Installations help to milk the cows in their own convenient time and comfort. Through this technology, the cows are being robotically milked with no human interaction at all. This reduces the stress on the cow which in turn helps in better yields. There are sensors that monitor the milk quality and check for signs of any diseases. It is a safer environment for the workers, as it eliminates a precarious job on the dairy farm. Once the cows become used to this comfort, the procedure can be fairly seamless.

The key to maintaining proper health is to meet the required nutritional levels without overheating. In the case of animals, automated feeders balance an animal’s health and well-being by tailoring specifically to the needs of that animal. It is also tailored to a herd or group, as it is still beneficial because it comes closer to the animal’s needs.

Automated cleaning systems are the most universal technology used around the world. This helps in removing the waste and runoff from animal enclosures, and move it to a pile that can then be effortlessly moved using machines. Eliminating waste aids in reducing the spread of diseases and makes it a cleaner environment for the animals. The added benefit for the farmer is that it limits their contact with the wastes too.

Innovative ways in which technology is helping animals

One of the utmost favorable alternatives to animal testing is involving microchips lined with living human cells and tissues. It allows them to mimic the mechanical and molecular features of real human organs, such as the heart, kidney, lungs, liver, and intestines. The president and chief scientific officer of Emulate Inc., Geraldine A. Hamilton explains that an organ-chip is a living, micro-engineered environment that recreates the natural physiology and mechanical forces that cells experience within the human body. She also says that they are a ‘home away from home’ for the cells to live just as they do in the human body. These mini forms of human organs can be used instead of animals in disease research, drug testing, and toxicity testing. They are proven to be more precise than animal testing in replicating human physiology, diseases, and drug responses, delivering results that are pertinent to humans.

The EU banned animal testing on all cosmetic products that are produced and sold within the European Union in 2013. To bring an alternative to animal testing, Merck developed a 3D skin model made from fibroblasts and keratinocytes. These models have a structural arrangement that is comparable to that of real human skin, this makes them yield results that are more appropriate to humans than animal testing.

A single pesticide requires a minimum of thirty animal tests, which costs around twenty million dollars and requires about twenty kilograms of the chemical and more than ten thousand animals to test on. The complete process takes about five years. So as to come up with an alternative, the research scholars from the Center for Alternatives to Animal Testing (CAAT) at Johns Hopkins University have developed a computer program that uses artificial intelligence (AI) to process existing data on chemical toxicity and deliver new insights.

Conclusion

To put it in a nutshell, testing products on animals is absolutely unnecessary as there are many more viable alternatives available. Several cosmetic businesses have sought better ways to test their products without using animals as subjects. A renowned cosmetic company based in London has developed its products using natural ingredients, like bananas and Basil nut oil, that has a history for safe use on humans rather than testing some chemical-based product on animals. Lately, the Draize test has become realistically obsolete since the innovation of the synthetic cellular tissue that closely resembles human skin. Research scholars could test the potential harm that a product can cause to the skin on the synthetic skin instead of testing it on animals. Another alternative is a product called Eyetex, which is a synthetic material that turns opaque when a product damages it. It closely resembles the way that a real eye reacts to a harmful substance. Computers can be used to simulate and estimate the possible damage that a chemical can cause, and human tissues and cells have been used to study the results of harmful substances. Most of these tests are believed to be useful and completely reliable alternatives to testing products on live animals. Since effective means of product toxicity testing can be done without the use of live animal specimens, testing potentially lethal substances on animals is uncalled-for.

References

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

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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