“Victim not a necessary party to a criminal appeal” in light of the case of Ganesh Das & Anr v. State of West Bengal

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September 29, 2021

This article is written by Udita Prakash, a student at UPES, Dehradun, pursuing BBA LLB(Hons.), herein this article deals with the case analysis of Ganesh Das & Anr Versus State of West Bengal.

Table of Contents

Introduction

Victims do not have to be part of a criminal charge for conviction of a crime against men, women, or children and are punished under the provisions of the Indian Penal Code or Protection of Children from Sexual Offence Act or other criminal provisions applicable to crimes affecting the human body. For all women/children, all terms are understood in the context of their respective laws dealing with such abbreviations. This auspicious decision was approved by the Calcutta High Court by Hon’ble Judge Thottathil B. Radhakrishnan and Hon’ble Justice Aniruddha Roy in the case of Ganeshdas v. State West Bengal [CRA 228 2020]. In the case of Ganesh Das against the state, the Calcutta High Court has met the victim’s legal rights, eligibility, and interests in the process of appealing the conviction if the state exercises its diligence and vigilance. The role of the criminal procedure and the prosecutor in performing his duties and responsibilities in terms of the provisions of the Code of Criminal Procedure (Cr.P.C.) and other applicable laws.

How are victims perceived by the criminal justice system

The “victim” state is a controversial concept, with many categories and subsets identified. There are different types of victims, such as those who deserve it and those who do not, but the main difference is between the primary victims, who directly experience crime, and the secondary victims, such as their families. There are several definitions of a person who has a victim status. After the enactment of the laws related to victims, crimes, and domestic violence, there were rights that were outlined in the Code of Criminal Procedure, providing information on what to expect from the criminal justice system and reporting offences committed. Includes rights such as written approval of the police which will inform us why a decision has been made to prosecute the suspect. Article 32 of the Indian Constitution imposes an obligation on the Secretary of State for justice to issue a code of conduct to deal with victims of crime, while Section 48 of CrPC tells that a police officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such person into any place in India. It also imposes an obligation to appoint members as witnesses. Promote good practices in treating victims. Therefore, it is clear that the statutory and detailed statutory guidelines issued to criminal justice institutions have provisions designed to guarantee the right to serve victims of crime. However, problems arise when it comes to fulfilling such obligations.

An analysis of the case of Ganesh Das & Anr v. State of West Bengal

The petitioner challenges the notice dated July 11, 2017, issued by the Secretary of State of the Government of West Bengal and the Food Commission of the Food Supply Authority, which has established a good distribution policy for kerosene by the Government of West Bengal. (SK oil for short) to ration cardholders. Some petitioners are owners of ration cards, while others are the West Bengal Kerosene Dealers Association and the Kolkata Kerosene Dealers Association.

A division bench of the Calcutta High Court comprising Justice Thottathil B. Radhakrishnan and Justice Aniruddha Roy has held that in case of an appeal from a conviction in an offence committed against a child or a woman, the victim is not a necessary party to the appeal.

According to the facts of the case, the appellant was found guilty and convicted of an offence punishable under Section 376 (3) of the Indian Penal Code and Section 6 of the POCSO Act. He was sentenced to a rigorous prison term of 20 years and to pay a fine of Rs. 10,000/- and in the absence of being subjected to rigorous imprisonment for one year for the offence punishable under Section 376 (3) of I.P.C. It was ordered that the victim is entitled to receive the fine of Rs. 10,000/- if done, in view of the second condition of Section 357 of Cr.P.C. The problem arose that the appeal would be flawed since the victim had not been a party to this request.

The contention of parties to the case

The appellant was found guilty and convicted of being punished under Section 376 (3) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences. He was sentenced to 20 years in prison and fined, and also one year of imprisonment was imposed for crimes punished under Section 376 (3) of the Indian Penal Code. The appellant was found guilty and was convicted of a crime punished under Section 6 of the POCSO Act, and sentenced to 10 years in prison and Rs 1 Lakh fine. The Calcutta High Court has ordered victims to pay the fines under Section 357 of Cr.P.C. In this appeal, the appellant placed a person described by name among the defendants and identified that person as a victim.

The learned amicus curiae referred to the provisions of Section 23, 24 (5), and 33 (7) of the POCSO Act to point out that there is overwhelming legislative momentum to ensure the protection of victims. Citing the judgment of the Supreme court, Vishaka v. the State of Rajasthan,(1997) the lawyer stated that the content of international conventions and norms is significant for the interpretation of constitutional guarantees in the absence of national law that occupies the field and that Article 51 of the Constitution should be read together with Article 253 of the Constitution and that in the absence of contrary legislation, Indian municipal courts would respect the norms of international law. The appeal was rejected by the State, stating that it is defective since the victim has not become a party.

Findings of the Court

In this case, the learned court held that the victim’s legal rights, eligibility, and interests are met if the state plays its role diligently and carefully in the criminal procedure and the performance of the prosecutor’s duties and responsibility. Responsibility to respond to the provisions of Cr.P.C. and other enforced laws. The order was issued in a criminal appeal filed by Ganesh Das, convicted of a crime punished by the Court of the first instance under Section 376(3) of the IPC and Section 6 of the POCSO Act.

The district court has determined that victims of sex crimes subject to IPC or POCSO law have the right to defend the cause in an appeal derived from a conviction. However, it is the duty of the State and the Ministry of Public Affairs to comprehensively address all aspects of criminal appeals against convictions and protect the interests of victims, even if the victim is not involved in all parties. The court further combined the contents of Section 374 and Section 385 of CrPC, which does not provide for the issuance of a notice of appeal to the victim, but the notice to the plaintiff, if an appeal is provided.

Furthermore, the procedure to be followed in all these remedies should be to deal with the remedies without insisting on the victim’s implementation. In cases where, in addition to the assistance of the Prosecutor representing the State, the appellate court deems it necessary to provide additional assistance to ensure the interest of the victim through legal assistance, the HCLSC (High Court Legal Service Committee) or DLSA (District Legal Service Association) as in the question may be required, to provide assistance, through an impaled defender or another determined by the HCLSC or DLSA. However, even in such cases, the Court will insist that the principles related to the protection of dignity and privacy and the modality of safeguarding those values, set forth above, are scrupulously respected.

Order of the bench

The victim is not a necessary part of a criminal appeal for conviction of crimes against women or children, punishable under the provisions of the I.P.C. or POCSO Act or any other criminal provision that is applied in relation to crimes that affect the human body against any “woman” and/or “child”, both expressions being understood in the context of the respective legislation that deals with said crimes.
No appeal of this type would be flawed in the absence of the victim’s implementation.
The procedure to be followed in all these resources would be to attend to those resources without insisting on the victim’s implementation. In cases where, in addition to the assistance of the prosecutor representing the State, the appellate court deems it necessary to provide additional assistance to ensure the interest of the victim through legal assistance, the HCLSC or DLSA in question may be required to provide assistance through a splicer or other advocates as determined by the HCLSC or DLSA. However, even in such cases, the Court will insist that the principles relating to the protection of dignity and privacy and the modality of safeguarding those values, set forth above, are scrupulously respected.
As a necessary corollary, the resources of the victims would be governed by the provisions of Nipun Saxena; however, there should be no question about how the victim would be described. It would suffice for the title of the case of said appeal to show that the appellant is the victim in the criminal case identified by the number, the court below, and/or the police station. This will protect the victim from being subject to disclosure of that person’s identity.

Perceiving the judgment as a good precedent

The judgment made by the Calcutta High Court is a good precedent because there are millions of people as victims of crime each year, according to the National Institute of Justice. The entire judicial process and the treatment of victims by criminal justice/social welfare professionals can have a significant impact on the victim’s recovery process. The reaction to the crisis is how the victim of the crime reacts to the act itself. The effects of crime on victims generally fall into three categories: physical/psychological or emotional, and financial. Physical effects range from scars and bruises to more serious and visible injuries to the body. Psychological effects are the emotional damage that occurs after a victim experiences a criminal act. This can range from depression and isolation to the induction of post-traumatic stress disorders and other mental health conditions. How a crime affects a victim is generally based on the severity of the crime committed and the mental state of the victim at that time. Second, there are financial losses that can occur if the property is stolen or destroyed. Though victims of crime may look different from person to person, they experience some trauma after the act. Analysing all these aspects I think that this precedent passed was a good one and the necessary one.

Conclusion

In conclusion, service and procedural rights are clear for successive governments to make efforts to place crime victims at the heart of the criminal justice system. The implementation of victim code to ensure minimum service standards represents a clear attempt to increase victim satisfaction and prevent secondary damage. Personal victim statements, on the other hand, provide a means for victims to play a role. Which is most important in any criminal case. However, in order to ensure the objectivity of the law and impartiality within the hostile system, the extent to which they can influence sentencing is inevitably limited. The intended benefit of making a statement is that it cannot fully withstand scrutiny, especially with respect to therapeutic elements, but inadequate compliance with the victim code has led to less effective service rights than expected. However, in the future, some reform proposals have been proposed that may not only increase victims’ guarantees and satisfaction but also increase the number of victims exercising their procedural rights. Despite the unresolved issues, the political focus on increasing victim satisfaction is that the victim no longer represents the “forgotten man” of the criminal justice system which here is no mistake.

References

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Understanding the relationship of “principal-principal” basis in light of the case of Tata Motors Ltd. v. Antonio Paulo Vaz

By

Rachit Garg

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September 29, 2021

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This article is written by Harman Juneja, from Dr. B.R. Ambedkar National Law University, Rai, Sonepat. The article talks about understanding the relationship of “principal-principal” basis in light of the case of Tata Motors Ltd. Vs. Antonio Paulo Vaz.

Table of Contents

Introduction

Automobile manufacturers frequently enter into principal-to-principal dealership agreements with dealers or showroom operators. A principal-to-principal arrangement is advantageous because it holds the dealer solely responsible for his dealings with the buyers. In a recent decision in Tata Motors Ltd. v. Antonio Paulo Vaz and Ors (2021), the Hon’ble Supreme Court held that the liability of a dealer’s deficiency of service could not be fastened onto a car manufacturer when the contract was on a principal-to-principal basis and no knowledge of the dealer’s wrongful acts was attributable to the car manufacturer.

Relationship of “principal-principal” basis

The parties to a contract (whether financial or non-financial) sign the contract in their capacity, whether or not they directly negotiated and drafted its terms and each party’s obligations. It also signifies that there are no intermediaries or agents involved in the transaction. In this context, a primary refers to the two parties to a transaction who are not using the services of agents.

Tata Motors Ltd. v. Antonio Paulo Vaz and Ors

Facts of the case

In 2011, the respondent purchased a car from the second respondent, an appellant corporation dealership, after paying the entire consideration price. Instead of a new car, the first respondent was sold a 2009 model car that had already clocked a significant number of kilometres.
The first respondent who refused delivery preferred to file a complaint with the Goa District Consumer Forum (District Forum). Despite being served with notice, the respondent did not appear and was left unrepresented. The District Forum heard the appellant and determined that the appellant and the second respondent were both jointly and severally liable for ‘deficiency in service.’
The car was fully corrugated and also had scratch marks on the body. As a result, the District Forum ruled that the appellant and second respondent must replace the car with interest from the delivery date, as well as pay INR 20,000 for mental stress and INR 10,000 for costs.
Dissatisfied with the District Forum’s decision, the respondent filed an appeal, which was denied by the State Consumer Disputes Redressal Commission (State Commission). The appellant argued before the National Consumer Disputes Redressal Commission (National Commission) that the first respondent was not a consumer because he did not accept the car’s delivery from the respondent.
Furthermore, the appellant contended that no liability could be imposed on the appellant due to the appellant’s principal-to-principal relationship with the respondent. The National Commission dismissed the appellant’s arguments and upheld the District Forum’s decision. The National Commission also issued an order requiring the appellant to pay INR 200,000 in additional costs (INR 1,00,000 towards the first respondent and INR 1,00,000 towards the Consumer Legal Aid Account of the District Forum).

Contentions of the parties

The appellant disputed the National Commission’s determinations that the first respondent’s complaint before the District Forum contained no charges against it other than implementing it and demanding redress. According to the appellant, the complainant never alleged or proved that the appellant or one of its employees were involved in the transaction in question or influenced the first respondent to purchase the car from the second respondent. The appellant relied on the decision in Maruti Udyog Ltd. v. Susheel Kumar Gabgotra (2006) to argue that the manufacturer could not be held liable unless the appellant could establish that there was a defect in the car.

The respondent, on the other hand, claimed that the appellant was intentionally deceived by selling an old car without the advertised accessories. As a result, the first respondent argued that the appellant’s actions constituted unfair trade practices and a defect in service within the meaning of the term. The first respondent cited the case of Jos Phillip Mampilil v. Premier Automobiles Ltd. and Anr. (2004), in which the court stated: “It is disgusting that a damaged car was tried to be sold as a brand-new car, and instead of accepting the deficiencies, the manufacturer opted to reject its liability.” The first respondent further argued that a car dealer always acts as the manufacturer’s representative, citing the case of Vivek Automobiles Ltd. v. Indian Inc. (2007)

Observations of the court

The Hon’ble Supreme Court noted that the appellant had no role or wrongdoing in the instant case before the District Forum. The Hon’ble Supreme Court also cited the judgement in Indian Oil Corporation v. Consumer Protection Council of Kerala (2003) when discussing the principal-to-principal relationship between the appellant and the second respondent. It was found in Indian Oil Corporation that in a principal-to-principal contract, Indian Oil could not be held accountable for the authorised activities of its distributor. There was no ‘deficiency’ against Indian Oil under Section 2(g) of the Consumer Protection Act since there was no privity of contract between Indian Oil and the consumer. The Hon’ble Supreme Court further cited the decision in General Motors (I) (P) Ltd. v. Ashok Ramnik Lal Tolat (2014) to hold that a claim must be specifically pled before the court for it to be adjudicated. In General Motors, it was decided that the National Commission erred in giving relief when the party did not request it.

The evidence demonstrated an absolute paucity of pleadings from the respondent detailing the appellant’s participation or special knowledge regarding the claimed misrepresentation, according to the facts of the case. The National Commission’s findings on the appellant were found to be unreasonable. It was noted that, unlike the District Forum, State Commission, and National Commission rulings, the first respondent’s inability to plead or show the appellant’s culpability could not be improved upon by inferential conclusions. As a result, the Hon’ble Supreme Court found that unless the appellant’s knowledge was established, a ruling imposing liability on it would be untenable, particularly since the appellant and the first respondent were acting as principals.

Laws and Cases applied

Indian Oil Corporation v. Consumer Protection Council of Kerala

Facts of the case

The first respondent is a Kerala-based voluntary consumer organisation, as evidenced by the National Consumer Disputes Redressal Commission’s decision and order dated March 17, 1993, in R.P.No. 266 of 1992. The Scientific, Literary, and Charitable Societies Registration Act governs the registration of scientific, literary, and charitable societies. The Respondent has Dr P. Kamalasanan, Ram Nivas (Gayathri), Sasthamcotta as a member and Secretary. He had obtained an LPG connection from M/s Karthika Gas Agency, the appellant’s approved distributor. The second respondent is the aforementioned Karthika Gas Agency.

The second respondent made many mistakes when it came to supplying him with a gas connection and LPG cylinder refills. The Gas Agency had provided more connections than the appellant, the Indian Oil Corporation, had authorised. This amounted to a shortcoming in their performance. The approved agent of Indian Oil Corporation is the second respondent. The appellant-Corporation, on the other hand, did not take necessary precautions to guarantee that the agency would not defraud customers. Even though the appellant was aware of the second respondent’s wrongdoing, it did not take any meaningful measures to curb the irregularities perpetrated by the second respondent.

Judgment

The Indian Oil Corporation and M/s Karthika Gas Agency have signed a memorandum of understanding. This creates a principal-to-principal relationship between Indian Oil Corporation, the appellant, and Karthika Gas Agency, the Corporation’s distributor.

Thus in the case, it was determined that Indian Oil could not be held liable for the authorised actions of its distributor under a principal-to-principal relationship. Because there was no privity of contract between Indian Oil and the consumer, there was no “deficiency” against Indian Oil under Section 2(g) of the Consumer Protection Act.

General Motors (I) (P) Ltd. v. Ashok Ramnik Lal Tolat

If a claim or award of relief is made based only on the existence of unfair trade practices the causation of loss must also be shown. Punitive damages are paid for intentional wrongdoing that is unrelated to the real loss. Such a claim must be pleaded specifically. The court had to decide whether it was permissible to award punitive damages in the absence of any plea in the complaint and without any proof of any harm sustained.

It was determined that the Consumer Protection Act 2019 is a component of social legislation designed to offer a forum for customers who have been duped by suppliers of products and services. A consumer is entitled to restitution for any failure in service as well as any loss or injury caused by unfair trade behaviour. By later amendment, the scope of a complaint can be expanded to include not just specific customers, but also inconveniently identifiable consumers. The complainant, on the other hand, must make an averment and make a claim.

Section 12 of the Act allows not only a complaint by a consumer to whom goods are sold or delivered but also a complaint by any recognised consumer association or one or more consumers on behalf of and for the benefit of all consumers; however, a case must be made out and the affected party heard on such an issue. As a result, to protect consumers’ interests, the scheme of the Act must be interpreted liberally and purposefully, avoiding a hypertechnical approach. At the same time, fair procedure is a hallmark of every legal proceeding, and any affected party has the right to be informed of the claim that such affected party must meet.

It was unequivocally observed and held that mere proof of unfair trade practice is insufficient for a claim or award of relief unless the cause of loss is also proved, which was not established in the current case. There was no allegation in the original complaint concerning other customers incurring punitive damages, and even in the appeal before the Court, the appellant was unaware that any such claim was to be fulfilled by it.

Conclusion

The ruling, in this case, is one of several where a consumer matter was pursued against a business to the National Commission without sufficient pleadings or a claim filed in the first instance. Cases like this one and the one in General Motors (I) (P) Ltd. serve as a cautionary govern tale about how failing to make a proper case against a party can cost litigants and courts a lot of time and money. Consumers must understand the legal complexities involved in filing a complaint with India’s consumer courts. This would ensure an efficient adjudicatory procedure, saving both the litigants’ and the courts’ valuable time and resources.

References

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All you need to know about the air bubble agreement between India and Qatar

By

Shoronya Banerjee

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September 29, 2021

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Flag-Pins-India-Qatarfgfg — Image source: https://rb.gy/oru0wj

This article has been written by Diksha Bhargava pursuing the Diploma in Business Laws for In-House Counsels from LawSikho. This article has been edited by the first evaluator Aatima Bhatia (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).

Table of Contents

Introduction

Coronavirus has changed the way we live our lives, almost everything around us has changed since the COVID-19 outbreak followed by lockdown has certainly put our travel plans to a stop. To curb the outbreak of the virus in India the Government imposed a blanket ban on all commercial international flights from March 22. Initially, the ban was for a week but due to the severity of the Pandemic, the ban is still intact in 2021. However, to rescue Indians who were stranded aboard because of the pandemic and lockdown, the Government introduced the Vande Bharat Mission(VBM). It’s a repatriation operation that aims to bring back stranded Indians from different parts of the world. Later the Government under its VBM introduced a bilateral agreement to make international travel possible. Passengers are allowed to travel between two countries under this agreement under specific restrictions and Visa categories.

India has been able to sign air bubble agreements with 28 countries however so far, India has managed to resume international flights under the air bubbles arrangement with 18 countries only. These counties are the US, the UK, Bhutan, Ukraine, Japan, Qatar, Germany, Kenya, Nigeria, the UAE, Iraq, Canada, Oman, France, Bangladesh, Afghanistan, Bahrain and Maldives.

However, when India faced the massive second wave in April and May, many airlines pulled passenger flights due to the crisis. As a result, there was a sharp drop in connectivity for passengers. Only Qatar Airways continued to operate flights for passengers from India, requiring a negative test to do so. This allowed many passengers to return home at a time when options were severely limited. This article aims to provide information relating to the air bubble agreement between India and Qatar. It also gives out the meaning of the air bubble and how it is different from the Vande Bharat Mission.

Meaning of air bubble

Air bubble is a bilateral agreement that is temporary in nature between two countries for the purpose of restarting commercial passenger services while the international services are suspended due to the COVID-19 pandemic. It is a special agreement devised between two countries to facilitate seamless travel with a set of regulations and restrictions. These countries agree to schedule flights that are specially approved by the countries. It is also a method of border control through which countries who perceive each other to be safe allow air carriers of both countries to fly passengers either way with few restrictions.

Difference between Vande Bharat Mission and air bubble agreement

One might confuse Air bubble flights with Vande Bharat Mission Flights but they are very different VBM flights don’t operate on a recurring schedule, they operate on an ad-hoc basis, which means they are arranged by the government for specific purposes. These flights are mainly run by airlines such as Air India and Air India Express. The VBM flights operate periodically, depending upon the requirement and bookings.

Air bubble agreement between Qatar and India

India has created an air bubble with the State of Qatar during the pandemic. Indian carriers and Qatar Airways are permitted to run their flights between India and Qatar with an aim to restart commercial passenger services while regular international flights are suspended, due to CoronaVirus. The air bubble agreement between the two countries came into force on August 18, 2020. Indian Civil Aviation General Directorate issued an order regarding this on August 15, 2020

Categories of person who can travel through such flights

These flights are classified into two parts:

India to Qatar

Qatari nationals.
Any Indian national or national of Nepal or Bhutan destined for Qatar or any country in South America or Africa only and holding a valid visa of the destination country. It would be for the airlines concerned to ensure that there is no travel restriction for Indian/Nepalese/Bhutanese nationals to enter the destination country before issue of ticket/boarding pass to the Indian/Nepalese/Bhutanese passenger; and
Foreign nationals destined for South America or Africa only and transiting through Qatar.

Qatar to India

Indian nationals stranded in Qatar.
All Overseas Citizen of India (OCI) cardholders holding Qatari passports, and
Qatari nationals (including diplomats) holding a valid visa issued by an Indian Mission in any category covered under Ministry of Home Affairs (MHA) guidelines.

Developments in the agreement

As the ban on International flights keeps on extending because of COVID-19, the validity of the air bubble agreement also keeps on extending.

At first the agreement was valid till October 31, 2020 it was then further extended till December 31, 2020. At that time flights from India to Qatar carried only Qatari Nationals and any Indian national holding any type of valid Qatar visa and destined for Qatar only.
Earlier this year the India-Qatar agreement was extended for January 31, 2021. It then allowed for Indians stranded in South America and Africa to use the air bubble arrangement between India and Qatar. Facility was also available to citizens of Nepal and Bhutan.
It is also acclaimed that the agreement between the two countries had expired on June 30, 2021 due to which a lot of confusion was created among the passengers since the flights from India to Qatar were cancelled. However the Directorate General of Civil Aviation (DGCA) said that the ban on international commercial passenger flights between India and Qatar, which was to end on June 30, will remain in place till July 31, 2021.
Now the agreement has been extended for September 2021. The announcement was made via Twitter.

Restriction under the travel bubble rules

Under India’s travel bubble rules, Qatar Airways cannot bridge passengers beyond Doha. The only deviations are made for flight paths to Africa and South America since those are underserved markets from India.

For all other cities and countries, passengers must fly under the Vande Bharat Mission. It covers countries like Saudi Arabia, Australia, New Zealand, Hong Kong, and many more. For now, there seems to be no inclination to restore regular flight links from India.

Importance of the agreement

Qatar Airways has strong brand loyalty in India. There is a significant Indian community in Doha. With flights suspended for over a year now, there is likely some pent up demand for travel to visit family in both the countries. Qatar Airways do have some competition, but it won over more passengers because of its brand loyalty, and its widespread operations in terms of cities served.

Guidelines for passengers travelling between Qatar-India

Passengers travelling to Qatar from India

Qatar has divided countries into Green, Yellow and Red as per the level of risk. With respect to travellers coming from these 6 South-East Asian countries, Bangladesh, Nepal, Pakistan, Philippines, Sri Lanka and India are subject to the guidelines issued by the State of Qatar on August 2, 2021. These guidelines are:

The passengers must have a RT-PCR test done 48 hours prior to their travel and the test result must be negative.
Qataris Citizens and residents who have been vaccinated or recovered in the State of Qatar will be hotel quarantined for a period of two days. After two days a PCR test will be done on the second day, and they will only be let out on the second day if the result is negative.
Passengers including Family visitors, people visiting for work or for tourism, who are vaccinated outside the State of Qatar with a vaccine recognised by the Ministry of Public Health, and passengers who have recovered outside the State of Qatar will be quarantined at the hotel for a period of 10 days.
Citizens and residents who are not vaccinated will be hotel quarantined for a period of 10 days.
For unvaccinated tourists/visitors entry is not permitted.
All the travellers coming to the State of Qatar must register online through the website Ehteraz except for Qatar citizens and residents till further notice. Passengers will be required to upload official documents at least 12 hours prior to their travel after which they will be issued a Travel Authorization, which will be required to be presented at the time of Check in.
Quarantine exemption is permitted to vaccinated passengers for 12 months which starts 14 days after the second dose. This immunity period is extendable based on new and emerging data.
Passengers who are fully vaccinated as per the approved or conditionally approved vaccines by the Ministry of Public Health of the State of Qatar will have to go through an antibody test on arrival. If the result is positive with antibodies, passengers will be exempted from quarantine otherwise, the passenger must be quarantined based on the country of departure and perform COVID-19 PCR tests upon arrival.
Passengers will be required to present an official vaccination certificate that includes the following information:

Name of the recipient as mentioned in the passport.
Vaccination date clearly mentioned as 1st and or 2nd dose.
Name of vaccine.
Vaccine Lot Number (if available).
The certificate should have an official logo or stamp of the vaccination authority.

When transiting Doha, travellers must adhere to following requirements

Any Indian national or nationals of Nepal or Bhutan en route to any country in South America or Africa holding a valid visa of the destination country and all other travellers transmitting through Qatar must have a compulsory pre-travel PCR test certificate valid for 72 hours of arrival to Qatar, In case they require another PCR test for their further journey they can do so at Hamad International Airport.

Passengers travelling to India from Qatar

India has divided its action for international arrivals into two parts as per the latest guidelines released by the Ministry of Health and Welfare on February 17, 2021. These parts are:

Part A- Operating procedures for all stranded international travellers coming to India.
Part B- Guidelines for those coming from the UK, Europe and Middle East.

As per these guidelines travellers arriving or transmitting to India from Qatar need to adhere to the following:

All the passengers arriving from Qatar should carry a negative RT-PCR Test report and the test should have been conducted 72 hours prior to the journey. The same shall be uploaded on Air Suvidha Portal.
They should also submit an online Self-Declaration Form (SDF) on Air Suvidha Portal before the planned travel and will be required to reveal their travel history for the past 14 days. While submitting the SDF they also need to mention-

Whether they will disembark at the arrival airport or would take any other additional flights to reach their final destination in India.
The passenger will be required to show the transit receipt of SDF to State authority or Government Officials at the airport for segregation.

Airlines will allow boarding to only those passengers who have filled and uploaded SDF on the online portal with the negative RT-PCR Test.
All the travellers will be subjected to mandatory confirmative self-paid molecular tests on arrival at the Indian airport (port of entry). The entry made in the SDF regarding telephone number and address will be reconfirmed.
Airports will also provide options to the passengers for booking of the confirmatory molecular test online through the website (Air Suvidha portal) or offline through other appropriate platforms. Payments can be made digitally as well.
Transit Travellers who are negative will be allowed to take connecting flights. They will be home quarantined for 7 days and will be regularly followed up by state/district IDSP. After 7 days if found negative after being tested then will be released from isolation, if not then they should be isolated in an institutional isolated facility.

Conclusion

The first air travel bubble was implemented by Estonia, Latvia, and Lithuania. Even after so many months of the virus outbreak, the total number of cases in these countries is less than other countries. The countries with the minimal number of cases decided to start flights between each other to improve their economy that plummeted during the pandemic.

After these countries started operating, many other countries started to form such agreements with each other after analysing each other’s capabilities of containing the virus. Many countries are resorting to these international air bubbles to revive their economies. Some examples of such are Thailand, Hong Kong, China-South Korea, Thailand–Hong Kong and many more.

Forming a travel bubble agreement between two or more countries is advantageous as it will directly boost the travel, tourism and hospitality industries of the country. A travel bubble is especially instrumental to the worst affected countries. India is one of the worst affected countries when it comes to CoronaVirus cases. India should go for more such international air travel bubble agreements to revive the drowning economy of the country.

References

About Air Transport Bubbles, Ministry of Civil Aviation: https://www.civilaviation.gov.in/en/about-air-transport-bubbles
Things To Consider Before You Choose Air Bubble Flight and Vande Bharat Mission Flight :https://www.intermiles.com/blog/things-to-consider-before-you-choose-air-bubble-flight-and-vande-bharat-mission-flight
Qatar-India air bubble agreement extended for August. https://thepeninsulaqatar.com/article/31/07/2021/Qatar-India-air-bubble-agreement-extended-for-August
Air bubble agreement between Qatar, India extended till July: https://www.aninews.in/news/world/asia/air-bubble-agreement-between-qatar-india-extended-for-till-july-3120210701190412/
Qatar Airways Connects Major US Cities on Air Bubble Flights to India from Doha: Check Your Travel Eligibility: https://www.indianeagle.com/travelbeats/qatar-airways-resumes-usa-india-flights/
Covid-19: Which countries and regions have travel bubble agreements: https://indianexpress.com/article/coronavirus/covid-19-countries-and-regions-travel-bubble-agreements-6549127/
Qatar Travel and Return Policy: https://covid19.moph.gov.qa/EN/travel-and-return-policy/Pages/default.aspx
Guidelines for International Arrivals : https://www.mohfw.gov.in/pdf/Guidelinesforinternationalarrivals17022021.pdf

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Conversion therapy : should it be banned

By

Sneha Mahawar

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September 29, 2021

0

This article is written by Anusha Misra from NALSAR University of Law. This article evaluates conversion therapy and the need for it to be banned.

Table of Contents

Introduction

India has been under fire for the use of conversion therapies to “cure” homosexuality by changing people’s sexual orientation. The LGBTQIA+ community has mobilized to voice their dissent against conversion therapy. In June, the UN Human Rights Council relied on a report authored by Victor Madrigal-Borloz, an expert on gender and sexuality. The report’s findings showed that 98 percent out of 8000 respondents stated that conversion therapy caused them damage, be it physical or mental. The UN Human Rights Council, however, still has not officially supported Victor Madrigal-Borloz’s call for a ban on conversion therapy for minors.

The law regarding homosexuality was repealed in 2018, after which the Indian Psychiatric Society affirmed firmly that homosexuality is not a mental disease after the prohibition was removed in 2018. However, there remain certain disagreements regarding this within the medical community.

Aversion therapy

When aversion therapy was first developed in India, it combined electro-convulsive therapy with a behavioural therapy program to eliminate fear or anxiety of the opposite sex. Patients would come to sessions with a selection of erotic or pornographic same-sex photos that they had chosen. While viewing them, they would receive an electric shock, creating a negative association of pain with their feelings of arousal.

The electric shock would then fade as the photographs were replaced with heterosexual images, equating a sense of comfort to opposite-sex attraction. While visual aids were the major stimuli, Indian practitioners often used sensual elements like women’s perfume to generate stronger positive relationships between opposite-sex stimuli. Women’s perfumes are still being used today, according to recent accounts of conversion therapy.

While their western counterparts used a combination of undesired techniques with some behavioural therapy in the 1970s and 1980s, Indian practitioners relied more heavily on a set of “additional behavioural programmes” to develop “social skills” to help patients navigate their newfound heterosexuality. For western practitioners, the main goal was to eliminate same-sex impulses, whereas, in India, the goal was to redirect sexuality and make it heterosexual and reproductive.

The patients who were male were treated for “powerlessness,” while female patients were urged to dress more femininely. This technique reinforced colonial-era binary concepts of sex and gender, while pre-colonial India had long accepted the existence of the hijra, or “third gender.” The law that made homosexuality illegal in India was a colonial enactment. Colonial ideology may also be linked back to homophobic narratives and attempts to medicalize same-sex attraction. Nonetheless, some strong post-colonial organisations and individuals accepted these narratives and merged them into an anti-LGBTQ+ agenda, which some practitioners continue to promote today.

What is conversion therapy

Conversion therapy is also known as reparative therapy is the pseudoscientific practise of trying to change a person’s sexual orientation to heterosexual using psychological, physical, or spiritual interventions. Though this practice is condemned, most countries have not taken any action or any step towards placing a ban on conversion therapy. In these ‘therapies’, same-sex relations be it sexual or emotional are made to be associated with pain and shame. The use of electroconvulsive and other technologies along with hormone treatment is used to associate same-sex arousal with pain, thereby suppressing one’s natural sexual orientation. Conversion therapy has many known side effects such as emotional or psychological trauma leading to panic attacks, lack of confidence and, a sense of shame.

Even though conversion therapy has been condemned by mainstream medicine, its practice has not died down. Conversion therapy is prevalent in India, particularly in Kerala. This practice has sustained over the years due to a heteronormative cultural outlook, that stems from narrow-minded and uneducated families who give primacy to their status and image in society over their child’s well-being. Most parents upon the coming out of their children, take them to psychiatrists to “fix” them. The majority of such parents are unaware of how their children would be affected by conversion therapy. Conversion therapy can be done one-on-one in an office or groups at retreats or conferences by licensed professionals, unlicensed ministries, or life coaches; it can be done for money or for free.

Conversion therapy – a colonial product

The belief that homosexuality could and should be changed is a popular notion that stems from western psychiatric views on homosexuality. The conviction that homosexuality was a “disorder” and needed to be treated with the advent of colonialism was imported to various colonies. In addition to this, medical, legal and social institutions that encouraged this view were established in the 19^th century.

The conversion therapies that cease to exist today stem from aversion techniques developed by psychiatrists. In such techniques, the subjects were forced to associate a behaviour with discomfort. Such techniques were initially used for alcoholics or those who portrayed any additive or destructive behaviours. Between the 1950s and 1980s, aversion therapy was used as a form of conversion therapy for homosexuals.

In India, the use of conversion therapy was first promulgated in the1970s as established by the Indian Journal of Psychiatry. It was also found that subjects of conversion therapy were themselves averse towards homosexual behaviour and desired to develop heterosexual behaviour as they were “concerned about their marital life”.

The obsession with the “fad” of traditional marriage can be attributed as one of the reasons why conversion therapy ceases to exist. In modern India, heterosexuality is seen as the only acceptable form of sexual desire.

Conversion therapy as a form of family rejection

Conversion therapy amplifies the humiliation and stigma that many LGBTQ youths already face. Parents who try to modify their child’s sexual orientation or gender identity instil feelings of rejection and danger in their children, perhaps severing their relationship with them. A 2018 study by The Family Acceptance Project found that:

LGBT young persons whose parents sought to change their sexual orientation had a probability of attempted suicide that was more than double (48%) that of LGBT young adults who had no conversion experiences (22 per cent).
Suicide attempts significantly increased for LGBT youth who reported both at-home and outside-of-home attempts to modify their sexual orientation (63 per cent).
High levels of depression more than doubled (33%) for LGBT young people whose parents tried to change their sexual orientation compared with those who reported no conversion experiences (16%) and more than tripled (52%) for LGBT young people who reported both home-based and out-of-home efforts to change their sexual orientation.
Sexual orientation change experiences during adolescence by both parents/caregivers and externally by therapists and religious leaders were associated with lower young adult socioeconomic status, less educational attainment, and lower weekly income.

Where is conversion therapy banned

Malta, Brazil, Taiwan, Ecuador, and Germany have placed bans on conversion therapy. There have been deliberations on such a ban being imposed in the UK as well.

On 7^th June, Tamil Nadu became the first state in India to place a ban on conversion therapy. The Madras High Court judgement gave primacy to the rights of the LGBTQIA+ community. The case was that of S Sushma v. Commissioner of Police (2019) where a lesbian couple had eloped and were being harassed by their families. Justice Anand Venkatesh went for counselling to understand same-sex relationships before giving the verdict.

Need for the criminalisation of conversion therapy

In the case Navtej Singh Johar v. Union Of India (2018), the Supreme Court decriminalised homosexuality and interpreted the meaning of mental illness under Section 2(s) of the Mental Health Act, 2017 liberally. In addition to this, the Supreme Court also relied on accepted medical standards to remove homosexuality from the purview of a mental illness. The Supreme Court directed the government to publicise the judgment widely to overcome the stigma regarding homosexuality. This also brought in much-needed sensitisation to prevent atrocities committed against the members of the LGBTQIA+ community by the police. However, the implementation of the verdict and decriminalisation of homosexuality is a long-drawn process.

In India, there still is barely any representation from the LGBTQIA+ community in the formal sector thereby depriving the members of the LGBTQIA+ community of a safe working environment. The reactions or behaviour towards the LGBTQIA+ community is not just psychological but also affected by socio-cultural aspects. This leads to the stigmatization that homosexuality needs to be “cured” and is a “mental illness”. This thought also claims “legitimacy” as they are backed by doctors who back conversion therapy. This further defats the purpose of decriminalisation of homosexuality.

Criminalisation and its impact on society

The reason for the practice of conversion therapy being prevalent can be linked to the analogy of how the criminalization of female foeticide brought in a change in the sex ratio in favour of women. Thus, along these lines, the criminalization of conversion therapy would bring a change in culture favouring the members of the LGBTQIA+ community. However, gender and sexuality-based education are essential for this to take place.

The perspectives of critics of criminal law, for example, the feminist legal scholarship, are proponents of the view that criminal law is drafted from the perspective of heterosexual cisgender men and addresses only individual behavioural aspects, thereby not bringing socio-cultural change. This means that the criminalization of conversion therapy may never overcome heteronormative norms and cannot prevent the practice of conversion therapy. To uproot the foundation of heteronormative norms, a socio-cultural change is required. This calls for the application of the reformative theory of criminal law.

While the retributive legal school of criminal law urges that punishment is in proportion to the harm produced, critics may argue that there is no quantitative measure to scale the mental pain caused by conversion treatment, and hence the proportionality principle can never be fully implemented. However, the criminal justice system can handle this.

The aftermath of criminalisation of conversion therapy

A foreseen consequence of criminalization is the backlash from religious communities. The main problem however lies in the stigma which can only be overcome by socio-cultural changes. The State can make use of the Supreme Court’s orders of decriminalizing homosexuality and recognizing freedom of sexual orientation as a fundamental right of an individual to defend the action of criminalizing conversion therapy. While criminalization is required, it is equally necessary to take precautions to prevent the misuse of the same. Conversion therapy, for example, can entail a variety of activities such as verbal/emotional abuse, talk therapy, religious counselling, as well as physical and sexual assault. While criminalizing some components of this therapy is vital, one major challenge would be to enshrine it in law.

Conclusion

In India, decriminalising homosexuality was only the first step toward LGBT equality and acceptance. When conversion therapy continues to be practised despite being explicitly banned by international groups such as the American Psychological Association and the Indian Psychiatric Society, there is a need for a more stringent legal framework to address the problem. Conversion therapy amplifies the stigma associated with homosexuality and their sense of discrimination. As a result, the coercive use of such therapies goes against the very notion of justice, and it is past time for this practice to be criminalised, along with a strong focus on gender and sexuality-based education to achieve the required socio-cultural change.

So, even in the absence of law, we can expect a pan-India prohibition soon — if the Supreme Court or the respective HCs claim precedent.

It doesn’t hurt that the decision was based on Article 21 of the Indian Constitution, a fundamental right that guarantees us the Right to Life with Dignity and Choice, alongside a bunch of other fundamental rights, including the Right to Privacy.

References

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5 business tips to benefit your online dating business

By

Rachit Garg

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September 29, 2021

0

best-dating-sites — Image source - https://bit.ly/3cnWVpm

Millennials have taken the lead in revolutionizing the dating business by accepting the Internet as part of their lives and letting it integrate into every part of life. The proliferation of dating sites has significant ramifications for the single life. The explanations as to why one site is more successful than another may be related to the business strategy of that site.

Marketing campaigns significantly impact your audience and your business, but there isn’t a “one size fits all” approach. Even though word-of-mouth is still crucial for any website’s success, you’ll need to employ a few other strategies to survive as a dating site in today’s market.

Despite the fact that matchmaking is a centuries-old business, online matchmaking is currently experiencing a renaissance. This article examines the dating industry’s business model and how you can make it work for you.

Defining your niche

Choosing a niche to focus on will be a critical choice. Dating sites often cater to a wide range of interests; however, others specialize in a particular niche, such as mature relationships, or casual dating.

General dating platforms have the advantage of already having large membership bases due to the exclusive features that make them popular and widespread, just as any business dominating its field. For a smaller business, a smart approach would be to choose a field that you’re already familiar with if possible. When we’re talking about examples from dating, a casual dating scene, in particular, is trendy right now, and the hype surrounding a dating site aimed at casual affairs is never going to die as long as humans are on this planet. More and more people seek no-strings-attached dates without any personal attachments, and the casual dating niche provides just the right elements for it.

Hence it would be wise to trademark your niche, not trying to appeal to anyone and everyone, but still appealing to basic human instincts to have something they could never refuse, especially if you are looking for less competition and more members to join.

Making the proper business model choice

The kind of company model you use is also crucial to take into account. Online dating is a busy niche, and any other business can take an example from them in regard that it is impossible to succeed without a clear strategy. As a result of the increased rivalry, it is essential to include a section addressing the competition in your business plan.

Every new business concept requires a formal business plan, no matter what the subject is. Taking a step back is necessary to analyze all aspects of the business you wish to start. From a general overview of the industry you desire to operate in and the ultimate goals, plan on how do you obtain revenue, choose your customers carefully and write down the steps to make and features to introduce when you intend to succeed.

Place emphasis on the company’s brand

Take care of your brand! In order to be successful, online dating sites must have well-designed, intuitive, and have a user-friendly name. An ambitious company plan is worthless if the website you’ve put together is slow to load or has broken links.

When it comes to online dating services, the norm is to use bright colours to grab attention and short, catchy nicknames. Let your brand speak for itself. If your casual platform is built for online flirting, finding a cupid and bringing people together for the night or for life, then this should read in the name of your online business. People need to remember your brand if you want to have regular customers, not short-term visitors, and taking care of everything associated with that – from a name to everything that company represents – is vital.

Remember customers need to be rewarded

Making your clients feel appreciated is one of the most important pieces of advice for getting a company up and running. The dating niche found an answer to this: to entice people, give them anything of quality for free! Yup, you read that right, absolutely free. Give the customer a cause to join right away and spread the word about your company. Referral programs function similarly to the free cotton candy at the neighbourhood carnival. Use this strategy, and you’ll be good to go.

Manage your clientele

Once your business is up and operating, you may feel a sense of accomplishment. However, the journey is far from over. Consider the launch as only the beginning of a long journey. Many new businesses fail because they can’t provide an appealing platform that makes users want to return again.

Dating business lesson in that regard is simple. Focus on SEO to get those all-important search engine visits. Poor language and spelling will discourage users from returning to your site frequently. No matter how well-designed your pages or products are, captivating content is required on every dating website. You’ll have to keep it looking fresh and appeal to clients with the terms specific to your business – for the dating sphere, it’s love, relationship, etc.

For those who have never previously started a business or those who want to see their newest venture take off, you must understand how to maximize your profits. There is a lot of competition in every market, including online dating, but that doesn’t mean you can’t succeed. The suggestions mentioned above can assist you in obtaining more out of your business and alter the way you earn.

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Terms of service agreement for matrimonial website

By

Shoronya Banerjee

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September 29, 2021

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This article has been written by Srusthi Kamble, pursuing the Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.This article has been edited by Anahita Arya (Senior Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Table of Contents

Introduction

India is a country where marriage is deemed essential for all individuals.“Marriage” which is treated as a sacrament in some religions (Hindu, Sikhs, Jains, Buddhist, etc) while contract in some other (Muslims), has undergone many changes over the years, right from changes in aims/purpose of marriage, rules of endogamy and exogamy (fewer restrictions in cross-cousin marriages), changes instability of marriage, same-sex marriages (which is still not legalized in India), but a petition for same has been filed in Kerala High Court, paving way for the Marriage Project in India.

The current pandemic situation has brought the entire world to halt, businesses all over the world are facing huge losses, except for the Matrimonial Websites; they along with other supplementary services including venue- hire, catering, decoration, and photography are worth 54 billion dollars per year and is increasing with every passing day. Globalisation and connectivity along with the ongoing trend of backing and bolstering connections to 4th generation mobile networks have indirectly resulted in a surge in matrimonial profiles of individuals. The aim of this article is to define the terms of service agreement of such matrimonial websites along with the ongoing pandemic scenario.

What is a service agreement?

A service agreement is an agreement between persons i.e., the service provider (one who will provide the services, in this case, the Matrimonial Website named “Solelyyours.com”) and the customer (one who will receive the services, in this case, the individuals registering on the matrimonial website) explaining about the services, exemptions, inclusions, etc, which is mutually agreed and signed by both the parties, for utilising the said services. The purpose of the service agreement is to define the exact role and liabilities of parties, their scope, functions, confidentiality, termination, content rights, etc. To maintain the transparency, goodwill, and reputation of both parties and refrain from engaging in unnecessary disputes, it is always advisable to carefully read the term services agreement before signing any services.

In absence of such an agreement, the parties would not have proper guidance to carry out their functions. The parties can take undue advantage of the other and can make the other party liable for any/all acts done even in good faith.

Important clauses in a service agreement entered with a matrimonial website

Keeping in mind the constantly changing dynamics of marriage and the current surge in usage of matrimonial websites, the following clauses are used in the matrimonial website’s term services agreement, some of such clauses are discussed in brief below.

Eligibility

Any individual having the following requisites is eligible to apply for membership of “Solelyyours.com”.

Indian nationals-citizen of India,
Person of Indian origin- Documents stating the same must be produced by such a person,
Non-resident Indian (NRI)- Documents stating the same must be produced by such a person,
Person of Indian descent or Indian Heritage,
Person intending to marry someone of Indian origin.

Along with the above criteria, every individual should further confirm that:

a. Valid age of marriage in India-18 for women and 21 for men.

b. If applied for divorce, you may register and mention “Awaiting Divorce” along with the duration for such procedure.

c. Individuals belonging to another country, origin shall mention that he/she is legally competent to marry as per local rules, shall comply with Indian laws for marrying a person of Indian origin.

Roles and responsibilities of matrimonial website (Solelyyours.com)

Solelyyours.com entirely functions on the data filled in by you (registered member) registered basic information, choice of partner preference and generate result in accordance with the provided data. In event of any changes by Solelyyours.com registered member’s partner preference or data entered by such registered member on website/app, the automated system generated results of website/app may change accordingly.
Solelyyours.com shall not be responsible for any transmission of required data or information to its other community website owned by Solelyyours.Ltd on request of the registered members, if any community is not adequately represented on Solelyyours.com website/app.
Solelyyours.com does not prohibit any registered member from sending “Match Requests” to any other registered member based on your partner preference. The registered members are at liberty to accept or deny such requests as per their choice.
Solelyyours.com website/app and other community websites owned by Solelyyours.Ltd, merely provides a platform and generated result based on registered members interest preferences, the registered members are solely responsible to interact/meet the match requests.
Solelyyours.com website/app shall safeguard sensitive personal information as defined by the Official Gazette, by using adequate security standards, authentication mechanism, access control and end to end encryption techniques.
Solelyyours.com does not guarantee the complete protection of user data while transmission from, or, any kind of data tampering, by the third party before such data reaches Solelyyours.com website/app.
On account of any kind of misconduct by any registered member, Solelyyours.com has the absolute right to delete any such registered member on its sole discretion.

Roles and responsibilities of registered members

The registered members must provide true, authentic, and verified credentials of themselves during registration. Solelyyours.com. shall not be liable for any misrepresentation made by any registered members.
The registered members are expected to verify, check, confirm, true, authentic, and verified credentials before accepting any “Match Request”. Solelyyours.com shall not be liable for any misrepresentation made by any registered member.

For example:

In the year 2014, a Mumbai-based woman met a man named Michael Williams who claimed to be based in the United Kingdom on a matrimonial website. After some weeks of courtship, Williams had swept her off her feet. In late July of that year, he informed her that he would be visiting India but upon his arrival, he informed her that he had been detained by the customs department for carrying excessive foreign currency and would require an ‘anti-terrorist certificate’ in order to be allowed in the country. He asked her for some money – the customs department required Indian currency – and she obliged. However, after receiving her assistance she did not hear from him again. Williams had duped her out of 2.93 lakhs.

Upon contacting the said matrimonial website, the portal informed her that they had suspended Williams’ profile and the responsibility of verifying his claims lay with her. After a protracted legal case, the Bombay High Court ruled that the portal was not liable for fraud. There have been several similar instances that can be read here.

The registered members are advised to refrain from:

a.Sharing confidential personal information including but not limited to bank details, property details, etc.

b. Usage of abusive, discriminating language based on gender, race, caste, colour, etc.

c. Entering into or asking for any kind of help in relation to financial transactions.

Account security

a. The registered members are solely responsible for safeguarding their account through Solelyyours.com login credentials, password, OTP (one-time-password), etc, and for restricting the use of your account via computer/mobile, to be cautious about any unauthorized access on the account of registered members member.

b. The registered members are advised not to share their login credentials with anyone, we as a company do not ask for the same for same.

Regulation of matrimonial websites

To deal with such incidents as mentioned above, the Government of India in November 2015 has decided to set up a panel that would make recommendations for the regulation of matrimonial websites in order to check abuse. The initiative is an undertaking of the Women and Child Development (WCD) ministry. The panel consists of members from the WCD ministry, Home ministry and Department of Electronics and Information Technology along with representatives from matrimonial websites such as Shaadi.com and Jeevansathi.com. Ministry officials pointed out that the growing number of cases of fraud and abuse occurring on such websites was the prevailing reason for the formation of the panel. In June 2016, the panel made its recommendations. It is now mandatory for websites to keep track of the IP addresses of their users. Documentation from users would now also be solicited to verify their identity and curb instances of fraud. Matrimonial websites are also required to explicitly spell out that they are for matrimony and not for dating.

Conclusion

The pandemic has shut the outside world but has virtually opened several opportunities, every business has shifted its focus to e-commerce, matrimonial sites are not any exception to this, in fact, it is the most booming sector. With several people registering themselves online hoping to find a life partner, these are some of the most important clauses which any individual must go through to protect and acknowledge one’s liability and act in accordance with the clauses for the proper usage of such services.

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Differences between the change of control clauses and assignment clauses in technology contracts

By

Oishika Banerji

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September 29, 2021

0

This article has been written by Shivam Sharma pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Anahita Arya (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).

Table of Contents

Introduction

Both assignment clauses and change of control clauses are Boilerplate Clauses, i.e., clauses which are deemed to be standard, miscellaneous and of general nature. Like most Boilerplate Clauses, these are tucked away at the back end of the agreements and can seem to be generic and dry. But for most technology companies, a wrong assignment or change of control clause could drastically affect the valuation of their company. This is especially true for contracts concerning intellectual properties.

In a nutshell, the Assignment Clause dictates whether or not one of the parties to the contract can transfer the contract to someone else who is not a party to the contract. If the contract can be transferred, then the assignment clause also dictates when such a transfer will take effect. This usually takes place when there is a change in control in the management itself, for instance, in the case of a merger. Yet, that doesn’t make it into a change of control clause.

The Change of Control clauses themselves does not address assignment. Such a clause states whether a party can terminate the contract if the other party goes into a merger or there is a change in control via other means. In addition, they can also address what are the consequences of such a change in control.

Being boilerplate clauses, these two clauses are often neglected and not always clearly labelled (and in some instances even mislabelled). Yet as this article will show, they are indispensable for the valuation of a tech start-up. This article attempts to showcase how these two clauses operate in a contract and how they differ in meaning and interpretation.

Why are these clauses important for tech-driven companies?

Most budding tech enterprises tend to be risk-taking ventures, which end up losing a lot of cash in short spans of time. In order for them to survive it becomes imperative that they adapt to and make the best of corporate opportunities. These include opportunities for mergers, acquisitions, joint ventures etc. Yet with all these transactions, the prerequisite is for the company to have a very strong market valuation.

This valuation is further dependent upon the products it has developed. For a technology company, this value comes down to two main factors:

The intellectual property (IP) it owns;
All the contracts that affect the development of the above-stated IP, such as research and development agreement, Intellectual Property licenses, consultancies agreements, etc.

If the contracts which affect the development of the IP do not survive the M&A transaction, they have no value to the acquirer. As the intellectual property itself is central to the tech company, an IP contract with no value would connote no value of the tech company itself. Thus in every M&A transaction, it is the valuation of the IP that matters the most. This valuation is further subjected to close scrutiny of the ‘Assignment Clause’ and ‘Change of Control Clause’.

Sale of business of a tech-company

There are two ways in which a business can be sold, via the sale of shares of the company (sale of controlling power) or via the sale of assets of the company. When the assets of the company are being sold, the party’s IP contracts get transferred to the buyer. This is a situation where the assignment clause steps in. An assignment clause dictates whether a party holds the right to assign or novate the contract to a third party. If the assignment clause allows for the transfer, it will add to the value of the tech company in the evaluation by the acquirer. A change of control clause, on the other hand, comes into play when there is a change in managerial control of the party. This occurs when the entire business of the party is being acquired by a third party. Generally, a change in control clause will state that in case a party undergoes a change, the other party shall have a right to terminate the contract. This is why this clause is also called the “poison pill” in the event of acquisition of a party. This is because, post the acquisition, the agreement itself has no value to the acquirer.

Assignment clause

Generally, there is not an outright ban on assignment under the agreements. The agreement may state that the assignment is possible as long as there is a written consent provided by the party to the other party.

Sample Clause: The parties agree to the following:

That none of the parties to this Agreement shall assign any of its rights or obligations or the entirety of this Agreement to any third party without the written consent of the other party;
That the above clause shall not apply in the case of one of the parties undergoing a merger or acquisition of the entire entity or of substantially all its assets;
That the above two clauses shall be binding upon the respective successors and assigns of the parties to the Agreement.

From the above sample assignment clause, it can be inferred that there cannot be any assignment except for in the case of merger and acquisition. Thus, an assignment clause answers the following questions:

Can there be an assignment to the Surviving Entity in the cases of merger and acquisition? The Surviving Entity can be both a new company or another company that took over the original party to the contract. Assignments are especially tricky when the original party to the agreement is no longer in existence as now the agreement will be carried out by a completely different party.
Can the party (being a company), assign the contract to its affiliates, i.e., its parent company, its sister companies, its subsidiaries, etc.? This is much easier to negotiate as the affiliate companies are already in existence and there is an absence of the element of surprise as in the case of a merger and acquisition.
Can there be an assignment made to Divested Entities? This is especially of grave importance to technology companies.
In case a party finds itself at a point that it cannot competently discharge its obligations, can it assign the contract to its competitors? If yes, then what would the term ‘competitor’ connote?

Change of control clause

A change of control clause constitutes of two main elements:

The definition of change in control;
The operation of the clause after the occurrence of an event that meets the requirement under the definition.

There exists no standard definition of change of control but it does include the following transactions:

A transfer of shares of the company;
A complete sale of all or a substantial portion of assets of the company;
Mergers and Acquisitions.

Sample Clause: The parties agree to the following:

That if either party undergoes a change of control, the other party shall have the right to terminate the Agreement within a period of 30 days from the date of change of control;
That for termination of Agreement under the above clause, the party terminating the contract must serve a 30-day notice on the other party;
That the term ‘change of control’ shall mean any transaction or a series of transactions whereby more than 50 per cent of the outstanding shares of the target company is acquired within a duration of one year.

From the above-stated sample clause, it becomes clear that a party will have the right to terminate the agreement in the event that the controlling ownership of the other party changes hands.

Followings are some of the uses of a Change of Control Clause:

In the event of a smaller change in ownership: In the example above the change of control was held out to be 50 per cent or more. This, however, could be a bar set too high for some and thus even a lower standard can be prescribed, such as such a change of ownership of shares representing 25 per cent of the total outstanding shares. This is especially helpful when the company in question is a public company where control can change hands with a change as small as 10 per cent.
When will there be no right to terminate the agreement? This can include events where the shares held in irrelevant quantities exchange hands.
Should there be a payment made to the party when there is a novation? If the amount of payment to be made is huge it can affect the valuation of the party.

Summary of differences

The table below is a summarized representation of the differences explained above:

Assignment Clause	Change of Control Clause
It addresses the question as to what happens when a party to the contract undergoes an M&A deal and is no longer in existence or has become a shell company.	It addresses a situation where the party which has undergone the M&A transaction is still in existence.
The company is selling its assets (Intellectual Property).	There is a change in the managerial control of the party, i.e., the entire business of the party is being acquired by a third party.
Generally, assignments will be allowed in a contract unless there is an anti-assignment clause present.	Generally, a change in control clause will state that in case a party undergoes a change, the other party shall have a right to terminate the contract.
If the assignment clause allows for the transfer, it will add to the value of tech company in the valuation by the acquirer.	This clause is also called the “poison pill” in the event of acquisition of a party. This is because, post the acquisition, the agreements in relation to IPs will have no value to the acquirer. As such, this clause causes the valuation to decrease.
Usually, there is a requirement of novation in order to facilitate a valid assignment.	Once there is a change of control, it will lead to the termination of the contract. There will be a new round of negotiations and new contracts will be entered into.

Conclusion

Both Assignment Clause and Change of Control Clause address two very different kinds of changes. When an assignment clause addresses a change in control, it addresses the question as to what happens when a party undergoes an M&A deal and it is no longer in existence or has become a shell company. On the other hand, a change of control clause addresses the situation when the party which has undergone the M&A transaction is still in existence.

It is usually the practice to leave the discussions on the boilerplate clause to the very end of the negotiation stages. However, as this article attempted to show, ‘Assignment Clause’ and ‘Change of Control’ clauses are by no measure generic and are in reality quite essential to the valuation of young tech-start-ups. Thus, it is required that more concentrated efforts are poured into the negotiation and drafting of these two clauses so as to reach a point of seemingly innocuous boilerplate provisions.

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Using digital data in criminal investigations

By

Oishika Banerji

-

September 29, 2021

0

This article has been written by Manav Sharma pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. This article has been edited by Anahita Arya (Senior Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).

Table of Contents

Introduction

Science & Technology is a double-edged sword, if it benefits a person in a specific way, then it also harms some other person in an entirely different manner. If we use technology to store some information, then there is a chance that our activities are monitored wherein our personal information is used inappropriately by someone else. It is true that science and technology is being used by criminals to commit crimes, hide evidence, etc. On the other hand, we should not forget that the same technological advancement helps the investigating agencies to reach a criminal faster and collect evidences efficiently.

In today’s world, technology has occupied a prominent place in not only storing the information digitally but also using this digital information for the purpose of investigating crimes aided by technology. The primary objective behind writing this article is to make readers aware about how the digital data is used as a form of evidence in criminal investigations.

Digital data

The administrative bodies have huge amounts of paperwork wherein ample amounts of information of citizens is stored in their system. With the help of technology the data and information can now be stored in a computer in a binary language which the device knows. This digital data reduces the risk of losing important documents and the information can be accessed easily at any time in one click. However, the digital data can prove to be dangerous when it is misused and this results in cyber-crimes like cyber frauds, blackmailing, cyberstalking, phishing, etc.

With rapid growth in science and technology, the world has witnessed new innovations, and one of them is the Internet of Things (IoT). With the use of IoT technology, sensors are embedded in different objects that collect and share the data for conducting a human-machine or human to human interaction. However, this is not safe, when it is studied through a perspective of privacy. The smart watches are also embedded with the IoT sensors which not only enable a user to check his heartbeat, steps walked, and calorie count, but also this data is shared with the outside world where the cyber experts can easily monitor our activities and also they can easily track our location too. This is the biggest disadvantage of IoT as it is not safe in terms of privacy and there is a huge risk of security breach.

Digital data- laws related to the use of digital data in criminal investigation

A criminal case which involves the use of science and technology, evidence which will be collected will be in electronic form. Without the absence of a forensic expert, it becomes difficult to test the credibility of such a form of evidence. Thus, it becomes necessary for cyber forensics to play a vital role. Cyber Forensics means using science and technology to establish facts in courts of law which commonly includes collection, preservation, analysis as well as court presentation of computer related evidence.

Since protection of digital data is the primary concern, we will be dealing with the laws which govern data protection. In India, the Indian Penal Code, 1860 covers various forms of crimes but it does not have a specific provision relating to digital data protection. The United Kingdom does have a law on digital data protection, named as, the Digital Data Protection Act, 1998, which puts a duty on persons and organisations storing personal digital data to register themselves with the Information Commissioner. It also states that personal digital data can only be stored for lawful purposes and further it shall not be misused in any terms. In the United States of America, Privacy Act, 1974 lays down various standards which puts an obligation upon the government departments, that it can compare and collect digital databases only when it has a reasonable, ethical as well as justiciable claim to do so.

In India, though Article 21 of the Constitution includes the right to privacy, there is still not enough clarity on terms of digital data protection. The Information Technology Act, 2000 was enacted with the objective of granting legal recognition to transactions carried out by means of electronic data interchange and other means of electronic communication. Section 65 of the IT Act, deals with the provision of tampering with computer source documents, which states that, whoever intentionally conceals, destroys or alters, or knowingly causes another to destroy or alter any computer source code used for a computer programme, or computer network when such computer source code is required to be maintained by law, he shall be punishable with imprisonment up to three years, or with fine which may extend to two lakh rupees, or with both.

Section 66 read with Section 43 of the IT Act, 2000, prescribes computer-related offences and penalties in furtherance of the said offences. Section 43 lays down the provision that, no person shall without the permission of the owner or the person in charge of the computer system, can access or secure access to such computer system; and that no such person shall download, copy or extract any database or information from such computer system or computer network. The contravention to the said provision will attract the penalty of paying compensation to the person so affected. Section 66 states that if any person, dishonestly or fraudulently does any act referred to in Section 43 shall be punishable with imprisonment for a term of three years (which can be extended), or with a fine which may extend to five lakh rupees, or with both.

Using digital data in investigations and handling of digital evidence

Under Section 69 of the IT Act, the Controller is vested with the power, that he can direct the subscriber to extend facilities to decrypt, intercept and monitor information if he is satisfied that it is necessary to do so in the interest of sovereignty or integrity of India, as well as defence and security of the territory of India, so as to prevent the commission of any cognizable offence.

The traditional definition of evidence is now substituted, keeping in mind the rise in cyber-crimes, and now electronic evidence can also be brought before the Court. Under Section 3 of the Indian Evidence Act, 1872, the word ‘evidence’ also includes electronic records which can also be produced for inspection in the Court. When the Court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any electronic or digital form, it can take the assistance of the Examiner of Electronic Evidence under Section 45A and such an opinion will be the relevant fact. In today’s world, digital evidence is not only required for cyber-crimes, but also for other forms of crimes as well. Now every crime has links with digital forms and thus, digital evidence also needs to be looked upon to investigate the commission of an offence. Therefore, Section 65B deals with the admissibility of electronic records and states that any information contained in electronic records shall be deemed to be a document and shall be admissible in the proceedings.

In Digital Data Investigation following five basic stages are followed:

Identification- identification of sources that are likely to contain relevant evidence, the information contained in devices and location of data.
Preservation- the relevant electronically stored information is preserved by protecting the crime scene, visual images of the crime scene are captured and then, their documentation is done showing how it was acquired and all relevant evidence is compiled together.
Collection- digital data which is necessary in the investigation is collected, this can also contain collecting the electronic devices from the place where crime is committed, and then the copying, imaging and printing out of the contents of the electronic device is done.
Analysis- the objective behind the analysis is to draw conclusions and observations based on the evidence collected.
Reporting- reports are based on proven techniques and methodology, and then, it is expected that other competent forensic examiners should be able to duplicate it and provide similar results.

While collecting the digital evidence or data, it is to be kept in mind that it must be acquired in such a manner that its content remains unaltered. The digital forensic analyst does not use data from the primary source, in place of it, a duplicate copy is made of the contents of that device and the analyst works on this duplicate copy. Before the static data acquisition, the duplicate copy of the content is made, and this is done so as to maintain the integrity of digital evidence.

Files that are stored in computers and contents which are stored in other electronic devices are not sufficient evidence that can be collected. The work of analysis extends beyond this as an expert has to look beyond the hardware to gather evidence that is present on the internet, and it can include content relevant in chat rooms or found in immediate messaging, the websites as well as other networks of the participants and information. By utilizing internet addresses, email header information, the time mentioned on messaging as well as other data which is encrypted, the forensic analyst can compile the chain of all relevant content which will provide a clear image of the activities which were done. Various devices that may contain the digital data are the pen drives, hard drives, CD’s, floppy disks, audio and video files, emails as well as text messages, etc., therefore, an analyst has to be careful while handling and extracting the content, because if it gets altered in any form it will hamper the value of the whole digital evidence.

Recent case laws

Tomaso Bruno & Another v. State of Uttar Pradesh (2015) 7 SCC 178

In this case, the Hon’ble Supreme Court had held that, with the progress in the field of information technology, the production of electronic evidence has become relevant to establish the guilt of the accused. Electronic documents are to be admitted in a strict sense as material evidence. The computer-generated electronic records in evidence are admissible if they are proved in the manner as prescribed under Section 65-B of the Evidence Act. Section 65B of the Evidence Act makes documents, paper printouts of electronic records which are stored in optical media produced by the computer as admissible in evidence if they fulfil the essential conditions specified under sub-section 2 of Section 65B of the Evidence Act. The Court further viewed the production of scientific and electronic evidence before the Court as of great help not only to the investigating agency but also for the prosecution to prove the case beyond a reasonable doubt.

Anvar P.V v. P.K Basheer (2014) 10 SCC 473

The Hon’ble Supreme Court has opined that the electronic records produced before the Court for inspection are the documentary evidence as mentioned under Section 3 of the Evidence Act, 1872. The evidence contained in electronic form can be proved only on the basis prescribed by Section 65B of the Evidence Act. It is prescribed that the person who is giving a statement under Section 65B (4) must state in the certificate that the contents in the electronic record are correct to the best of his knowledge and such certificate must accompany the electronic records like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., on the basis of which a statement is to be given in evidence when the same is produced as evidence before the Court. These safeguards are to be taken to ensure the source as well as the authenticity of the electronic records, which are the two basic elements pertaining to electronic records. Electronic records can be subject to tampering, alteration, etc. and therefore without ensuring such safeguards, the whole proceedings based on proof of electronic records would result in injustice.

Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801

The new devices and latest developments in technology provide assistance in gathering evidence, but their accuracy must be proved. In this instant, the Court took the opinion that electronic and digital evidence must be taken into consideration with proper care and caution. Electronic evidence can be admissible in evidence but the Court must adopt appropriate safeguards when dealing with the authenticity of such evidence.

P. Gopalakrishnan v. State of Kerala (2020) 9 SCC 161

In the instant case, the Court has to deal with the issue of whether the contents of the memory card or pen-drive which were submitted to the Court with the police report can be treated as a document or not. The Hon’ble Court opined that the basis of classifying an article as a document depends on the information which is contained in it and not on where it is contained. The Court further stated that holding tape records of speeches, audio or video cassettes, including compact disc, are documents under Section 3 of the Evidence Act,1872 and thus, are admissible in evidence. The electronic records produced for the inspection of the Court are documentary evidence under Section 3 of the Evidence Act, 1872.

Concluding remarks

The advancement in the field of science and technology has given the world new innovations and inventions which has also helped in doing investigations. When the crime happens, not only the materials which are found in the crime scene are useful, but also the digital information contained in electronic devices can be of assistance to the investigating agencies. While analysing the digital data and the contents therein the analyst must examine and handle the digital evidence with care and caution as there are chances that the contents might get altered. Digital data can be very useful in a criminal investigation as, phone-tapping, location tracking, the information contained in social media sites, text messages, emails and other useful digital data can give a lead to the investigating agencies which would help in catching the criminal and establishing his guilt before the Court. Electronic evidence and the contents therein are admissible in Court but, there are certain conditions which the Courts follow in recognizing their admissibility because the chances of alteration are much higher and therefore it is prescribed that digital evidence must be handled with proper care and caution.

References

Using Digital Data in Criminal Investigation: Where and How to draw a line? Accessible at, https://www.rand.org/blog/2017/05/using-digital-data-in-criminal-investigations-where.html
Electronic Data Protection in India, by S.S Das (2012) PL March S-11, accessible at, http://www.scconline.com
Cyber Forensics: Law and practice in India, by Saswati Soumya Sahu, accessible at, https://blog.ipleaders.in/cyber-forensics-law-and-practice-in-india/
The Digital Forensic Process, accessible at, https://www.open.edu/openlearn/science-maths-technology/digital-forensics/content-section-4.1

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Rapid developments in International microfinance

By

Sneha Mahawar

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September 29, 2021

0

This article is written by Sahaja, studying at NALSAR University of Law, Hyderabad. This article elaborates on Microfinance institutions and their development in the past few decades.

Table of Contents

Introduction

International Microfinance is one of the financial concepts that has excelled over the last two decades and to which many groups and institutions trace their financial success in various developmental projects. Microfinance has been around for centuries, with savings and credit groups and various savings clubs around the world providing financial services to the poor who were often ignored by commercial banks.

The origins of global microfinance institutions may be traced back to the mid-nineteenth century in Latin America and South Asia when numerous lending and savings societies united to build more stable microfinance institutions. These paved the way for the international microfinance business, demonstrating that it could cover a wide range of financial needs for individuals as well as the creation of a wide range of projects on a global scale. The worldwide microfinance business has grown at a rapid pace during the last two decades, sweeping the international financial market by storm. According to statistics, the sector has grown to the point where it can now serve up to 200 million clients across all of the world’s geographical regions.

What are Microfinance institutions (MFI)

Microfinance, also called microcredit, is a type of banking service provided to unemployed or low-income individuals or groups who otherwise would have no other access to financial services.

Microfinance enables people to take out acceptable small business loans safely and by following ethical lending principles. Even though microfinance institutions exist all around the world, the bulk of them is located in developing countries such as Uganda, Indonesia, Serbia, and Honduras. Many microfinance institutions specialise in assisting women.

Microfinance institutions (MFIs) are financial entities that offer small loans to persons who do not have access to traditional banking services. The term “small loans” is defined differently in different nations. Microloans are defined as loans of less than one lakh rupees in India.

Micro Financing organisations support a wide range of activities, from providing basic services such as bank checking and savings accounts to giving beginning funding for small business owners and teaching programmes on investing principles. These courses can cover topics including bookkeeping, cash flow management, and technical or professional skills such as accounting.

Causes of rapid developments in international microfinance

Significant demand for funds among the poorest

Microfinance’s major purpose is to help people save for their future financial requirements. These savings are important because the people are protected from the seasonality of financial flows, which is especially important for the poor in rural areas and the urban poor.

The microfinance business has been on a never-ending mission to alleviate poverty, particularly in developing countries. Furthermore, microfinance institutions contribute to the acceleration of economic development in underdeveloped nations by providing a feasible source of funding for large groups of people who want to invest and build their financial foundation.

Microfinance outperforms other financial institutions and interventions because of two primary causes. These factors include cost-effectiveness and long-term viability.

Microfinance stands out as a more cost-effective developmental tool when compared to available alternatives such as formal rural financial intermediation and rural infrastructure development projects, according to statistics and data gathered from comparisons made between microfinance and other lending institutions such as commercial banks.

Sustainability comes along with microfinance services

Most other relevant developmental instruments cannot be sustainable once the first or first start-up funding has been provided. In most situations, these institutions find themselves in need of new inputs for the clients who join the organisation or union in the future after providing the original start-up funds. Microfinance, unlike these institutions, remains steady, requiring future consumers to overcome barriers such as initial and new inputs for the continuation of their financial services and lending endeavours.

Formation of microfinance networks in the regions across the globe

Microfinance networks serve as umbrella organisations for the functioning and well-being of multiple microfinance institutions, providing a viable avenue for their cooperation and a central for sharing ideas, experiences, and articulating solutions to the common challenges they face in their daily operations.

Constraints to the development of microfinance in developing countries

To address the financial demands of their consumers, the international microfinance industry faces several challenges. This is especially true in underdeveloped nations, where the majority of people rely on microfinance companies for a variety of financial demands caused by a lack of capital. The restrictions or impediments to international microfinance development can be assessed in terms of their efficiency, profitability, and total reach.

Enacting ineffective government laws that harm the welfare and operations of microfinance organisations

The main issue with the governments is that policymakers are having difficulty developing an adequate legal framework to promote the seamless operation of microfinance institutions. Countries that have taken the initiative to design specialised microfinance legislation in their economies have aided the international microfinance industry’s growth and innovation. However, most economies around the world adopt permissive policies regarding microfinance frameworks, resulting in circumstances that only foster weak, undercapitalized institutions.

Poor utilization of modern technologies in developing countries

In areas such as Asia and Sub-Saharan Africa, there is a lack of technological investment among existing microfinance organisations. This effect can be linked to the Microfinance institutions’ limited resources as well as the failure of the management team to grasp the importance of incorporating technological improvements into the microfinance industry.

The management information systems are either non-existent or poorly managed in the few economies that have adopted it

This, in turn, leads to inefficient loan processing and record-keeping through methods such as paperwork and spreadsheet-based solutions, restricting the efficiency of microfinance institutions to manage large numbers of clients throughout the globe and limiting their profitability and growth potential.

The lack of transparency and consistency

The lack of openness and uniformity in lending activities among various poor countries throughout the world has stifled international microfinance’s rapid growth.

Lack of early-stage funding among numerous institutions

One of the key issues that most microfinance institutions, particularly in developing nations, are still dealing with is the reality that capital for early-stage enterprises in emerging economies is still limited. Due to a shortage of inexpensive financial sources, tiny organisations that are just getting started have had a difficult time growing and expanding their reach.

Impact of MFI on development

The role of the MFIs in providing loans and its rapid development in the recent past has had several positive impacts on the lifestyle of people all around the world. Some of these significant impacts are:

Reduction of poverty

One of the most visible effects of international microfinance development is the elimination of poverty and vulnerability, particularly among low-income earners in developing economies and aspiring investors. People have also profited from the jobs that have been created by the many microfinance organisations that have been formed throughout the world. As a result, households can manage their bills while also improving their lifestyle in areas such as nutrition, housing, and health care.

Reduction in rates of child poverty

There has been a dramatic decrease in the prevalence of harmful child labour, particularly in developing nations. In general, reports show that participants or members who have continuously invested their loans on a long-term basis have seen significant improvements in terms of their incomes, assets, and livelihood stability.

Empowerment of women

Another effect of international microfinance has been on per capita expenditure, particularly among women members of the institutions, where women have been empowered to manage their development initiatives as well as their expenditure needs without relying on external assistance. Bigger specifically, the net worth of active members of microfinance organisations has increased dramatically, with more changes visible among women.

Creation of a favourable economic environment

The growth of worldwide microfinance has resulted in the formation of a favourable economic environment in the many regions where microcredit programmes have been implemented. These programmes have proven to be beneficial to members who are dealing not just with financial difficulties, but also with concerns about possible economic crises, political instability, and natural calamities. In most cases, the resources invested in the institutions are returned to the members in the form of credit loans, which they use to recover and repair their impacted projects as well as support their daily requirements in the event of such crises.

Smoothening of consumption and facilitating the reduction of the seasonality of labour supply

This is owing to the various job opportunities generated by microfinance institutions around the world, as well as the fact that members have significant amounts of money to invest and establish self-employment through business initiatives. Long-term members of the institutions can be assured of a steady stream of revenue from the various investment initiatives. They’ve already started to provide an alternate source of income.

Microfinance’s economic and social effects can go a long way toward helping the disadvantaged. Microfinance is not a remedy for all the development issues. It should not be utilised for income transfers, subsidies, or health and education services delivery. Microfinance also cannot be utilised to replace infrastructure expenditures that are required to connect isolated areas and marketplaces. To begin, decreasing poverty requires finding ways to enhance economic growth. Second, distinct institutional and other factors that may contribute to local growth must be examined and analysed. Economic growth alone will not eliminate poverty; it will be necessary to find the policy and institutional improvements that will reduce poverty directly, even if growth does not increase.

Role of Public policy in the development of MFI

In a variety of ways, the implementation of specific public policies in various countries throughout the world has influenced the rate of development of international microfinance. Some rules have had a favourable impact on growth, while others have slowed the development of foreign microfinance institutions by restricting their reach and interest rate levels, limiting their potential to grow into marginal financial institutions.

The monetary and taxation policies are two public policies that have an impact on the development of microfinance organisations and activities. Some tax and monetary policies devised and executed by individual governments may divert significant quantities of cash or resources away from credit and into alternative investment instruments.
Poor monetary policies formulated by responsible financial authorities and governments, such as inflation and economic instability, diminish the level of savings for low-income earners, who make up the majority of members of various microfinance institutions around the world.
Government regulation, which restricts the cash available for small enterprises to lend to their clients, is another policy that has a substantial impact on the rate of expansion of international microfinance institutions around the world.
Another factor affecting the effectiveness and growth of international microfinance operations is the prevalence of governmental meddling in loan markets, which is especially prevalent in poor nations. In most cases, politicians have been known to divert development funds to moribund state-owned firms and political or worse off to a few wealthy and influential personalities.

Microfinance in India

The Self-Employed Women’s Association (SEWA) in Gujarat was the first to pioneer microfinance in India, establishing SEWA Bank in 1974. Since then, this bank has been providing financial services to those in rural areas who want to start their own enterprises.

To meet the needs of India’s huge rural population, microfinance facilities are required. Microfinance’s key goals in India should be to promote socio-economic development at the grassroots level through a community-based strategy, empower women, and increase household income.

Conclusion

The rapid development of microfinance institutions worldwide has indeed had positive impacts on the people in alleviating property. Despite the constraints and hardships faced by such institutions, they have helped in various ways as stated in the above sections.

The income of members has increased as a result of the services provided by these organisations, such as microcredit lending and the mobilisation of members’ savings, especially for those who have remained faithful to save on a long-term basis.

The constraints and the counter-productive public policies do hinder the growth and development of microfinance in the modern world.

Active non-governmental organisations (NGOs) and policy-making authorities from various economies must take responsibility for guaranteeing the adoption of favourable regulations and processes that allow for the free operation and quick expansion of international microfinance around the world.

References

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Regulation of the natural gas sector in India

By

Sneha Mahawar

-

September 29, 2021

0

Natural gas sector — Image Source: https://rb.gy/empre5

This article is written by Anushka Singhal, a student of Symbiosis Law School, Noida. In this article, she discusses the regulations of the natural gas sector in India.

Table of Contents

Introduction

In India, the regulation and development of oilfields and mineral oil resources, petroleum and petroleum products, and other liquids and substances fall under the Union List (Article 246). India ranks in the twenties in the natural gas production list. In April 2020, India produced 2161.33 million metric standard cubic meters (MMSCM) natural gas. This amount is 10.88% lower than the target set for April. From these figures, one can easily make out how big the natural gas industry is in India. The bigger the industry the greater is the need for regulation. Therefore, to regulate the natural gas sector in India, several Acts have been passed by the legislature and various regulatory boards have been set up. Let us try to understand the regulation of the natural gas sector in India in detail.

Government’s policy for the natural gas sector

Government forms its policy for the natural gas sector in collaboration with its Ministry of Petroleum and Natural Gas (MoPNG). The ministry has its two important policies the New Exploration Licensing Policy (NELP) and the Hydrocarbon Exploration and Licensing Policy (HELP), which was formulated a few years back in 2016. The blocks for the purpose of exploration of natural gas are awarded based on the regime of these policies. Following is the categorization that can be made for licensing and exploration purposes-

Nomination Regime and pre-NELP regime- This regime covers the licenses that were given during the 1970s (nomination regime) and those awarded during the 1980s (pre-NELP regime).
NELP regime- This regime began in 1999 and continued till 2010, predominantly. During this regime, competitive international bidding took place where government share was determined from the profit petroleum after deduction of costs.
HELP- This policy is aimed at more participation at the global level. Open Acreage licensing policy and uniform licensing are some of the prominent features of HELP. It is also based on a revenue-sharing model, and marketing and pricing freedom for the crude oil and natural gas produced.

A draft National Energy Policy has been issued by the National Institution for Transforming India Aayog that covers mechanisms to increase natural gas penetration in the energy mix.

Legislative enactments

The Petroleum Act, 1934

This Act governs the provisions related to storage, production, refining, blending, export, and import of petroleum in India. It also lays down the provisions for testing petroleum and the penalties for offences. As natural gas is also obtained as a byproduct of petroleum, these laws can apply to it.

Oilfields (Regulation and Development) Act of 1948

It is an Act that lays down the provisions for the regulation of oilfields and the development of mineral oil resources. Section 5 of the Act lays down that mineral oils include petroleum and natural gas. This Act empowers the government to lease and license the petroleum mines. It gives the power to the central government to make rules on mineral development. The government can introduce or prohibit any method for mining natural gas and petroleum products. According to Section 11 of the Act, any officer appointed by the government has the right to inspect any mine, examine any person having control of the mine, and order the concerned people to produce the relevant documents. This Act ensures that the mining activity is done properly and there are proper regulations for the same.

Petroleum and Natural Gas Rules, 1959

The Petroleum and Natural Gas Rules 1959, define natural gas, “as a gas obtained from bore-holes and consisting primarily of hydrocarbons”. These rules provide a framework for the grant of exploration licenses and mining leases, and together with the Petroleum Act, 1934, regulate the sale and distribution of petroleum and petroleum products. The provisions on exploration license and petroleum mining lease are provided under Sections 4 and 10 of these Rules. The licensees and lessees have certain responsibilities under these rules. Under Section 19 of the Rules, a lessee or licensee should-

Ensure that the equipment, apparatus, wells, etc. are in proper condition.
Should work properly under the customs of the profession.

If the conditions are not satisfied or there is some other misconduct on the part of the lessee or licensee then the license or lease can be determined under Section 21. This Act solidifies the provisions and makes them more binding.

The penalties under these Rules are not so strict. Section 32A of these rules lists down the penalties. An offender is punished with imprisonment up to six months or with a fine of up to Rs. 1000 or both. The repetitive offenders are punished with a fine of Rs. 100 per day, depending on the number of times they repeat the offence.

Petroleum and Minerals Pipeline Act,1962

This Act empowers the government to acquire any land for laying down pipelines for the transportation of minerals and petroleum. The government can acquire the appropriate land for laying down pipelines, but if the owner of the land has certain objections, he can raise the same within 21 days of the receipt of notification of acquisition under Section 5 of the Act. Also, under Section 10, provisions are provided for compensation to the person whose land has been acquired and any loss, injury, or damage has been caused to the person. The Bill was last amended in 2010 to incorporate more stringent punishments for the wrongdoer.

Oil Industry (Development) Act,1974

The Oil Industry (Development) Act lays down the provisions for the establishment of a board for the development of the oil industry. Section 2(h) of the Act defines ‘mineral oil’ as petroleum and natural gas. Section 3 lays down that for the development of the oil industry, an Oil Industry Development Board is to be established. The full composition of the board has been defined under the Act. The board should consist of three members to be appointed by the Central Government to represent the Ministry of the Central Government dealing with petroleum and chemicals. Two members should be appointed to represent the ministry of finance, two members with special knowledge of the oil industry shall be appointed, there should be an ex-officio chairman and also some members of the corporations as mentioned in Section 2 (k) of the Act. This Act also lays down the provisions related to the collection of cess, thus regulating the economics behind the production of natural gas.

Petroleum and Natural Gas Regulatory Board (PNGRB) Act, 2006

Under the PNGRB Act, the Petroleum and Natural Gas Regulatory Board was established in 2006 to regulate the refining, processing, storage, transportation, distribution, marketing, and sale of petroleum, petroleum products, and natural gas. The Act lays down via Section 15 that any entity desirous of marketing, establishing, or operating natural gas or petroleum terminals or any entity interested in establishing storage facilities for petroleum, petroleum products, or natural gas shall make an application to PNGRB. Section 16 also specifies that no entity is entitled to lay down any pipeline or any other thing relating to petrol and natural gas without any prior authorization. Therefore we can identify three entities under this Act-

The natural gas producer
The pipeline operator
The local distributor

The PNGRB Board has laid various regulations for natural gas pipelines (NGPL). They are-

NGPL authorization regulations
NGPL affiliate board regulations
NGPL access code regulations
NGPL Tariff regulations
NGPL common carrier guiding principles regulations
NGPL Technical Standards and Specifications including Safety Standards for Natural Gas Pipelines (T4S) Regulations
NGPL capacity determination regulations
NGPL Integrity Management System for Natural Gas Pipelines (IMS) Regulations

There was a case wherein the Supreme Court tried to define the powers of the PNGRB. Let us discuss that case.

Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Limited & Ors

In this case, the Petroleum and Natural Gas Board passed a regulation to regulate tariffs on compressed natural gas (CNG). These regulations were passed to regulate the tariff imposed by respondents on consumers. The High Court held that the board was not empowered to pass such regulations and they were ultra vires of the PNGRB Act. PNGRB went to the Supreme Court against the decision of the High Court. The Supreme Court declared the Tariff Regulations ultra vires the PNGRB Act and concluded that the Regulatory Board could not frame a regulation for determination of network tariff for city or local gas distribution network and compression charge for CNG. The Hon’ble Court held that Section 11(e) (ii) of the Act only conferred power on the Regulatory Board to determine transport rates for common carrier or contract carrier and the powers to decide tariff did not vest with the board.

New Exploration Licensing Policy (NELP)

This policy was formulated in 1997 to attract capital from Indian and foreign companies. The licenses for oil and gas exploration under this policy are being awarded through a competitive bidding system. All the companies whether Indian or foreign have to compete on the same footing and try to win the bid. This policy regulates the whole system of bidding. Under this policy 100%, FDI is allowed. It gives freedom to the contractors and everyone gets an equal chance. This policy demonstrates the spirit of liberalization, globalization, and privatization in India. Contractors under NELP are required to share their profits with the government.

Entities responsible for natural gas sector regulation

Following are the entities responsible for the regulation of the natural gas sector in India. They are-

Ministry of Petroleum and Natural Gas (MoPNG)

The Ministry of Petroleum and Natural Gas looks after the production, marketing, conservation, import, export, refining, distribution, and exploration of oil and natural gas in India. Following are some of the areas in which the ministry works-

It works for the conservation of petroleum products.
It strengthens the energy security of the country by taking part in transnational oil and gas projects.
It explores new resources for the extraction of petrol, natural gas, methane, and other petroleum projects.
It coordinates with other sectors and ensures the proper regulation of the petrol and gas sector in India.

Directorate General of Hydrocarbons (DGH)

The Directorate General of Hydrocarbons (DGH) plays an important role in discharging the regulatory functions of leasing and licensing, safety and environment, and also development, conservation, and reservoir management of Hydrocarbon resources in India. It aims to-

Act as an advisory to the Ministry of Petroleum and Natural Gas Industry.
Explore & develop unconventional hydrocarbon resources like gas hydrate, shale Gas/oil, and oil shale
To review the already passed Acts like the petroleum and natural gas rules etc. and advise the government about the proposed amendments.

Petroleum and Natural Gas Regulatory Board (PNGRB)

As discussed above, the PNGRB also plays an indispensable role in regulating the natural gas sector in India. The PNGRB is responsible for the grant of authorization to lay, build, operate and expand natural gas pipelines and acts as one of the most important regulating bodies.

Oil Industry Safety Directorate (OISD)

The OISD plays an important role in laying down the safety rules that need to be adopted during offshore mining. The technical team plays an important role here and it decides which measures need to be adopted when mining natural gas and other oil resources.

Directorate General of Mines Safety (DGMS)

DGMS is the regulatory agency under the federal government’s Ministry of Labour and Employment and is responsible for the safety of the onshore blocks. Its mission is to look after the health, safety, and performance of the mining sector.

Petroleum and Explosive Safety Organization (PESO)

PESO formerly known as the Department of Explosives acts as the nodal agency for the regulation of explosives in India. It works according to the rules laid down in the Explosives Act 1884 and the Petroleum Act 1934.

Problems with regulation and development of the natural gas sector in India

The weak and ambiguous mandate of the PNGRB, particularly as regards price setting, has led to several jurisdictional conflicts with the MoPNG in the past.
Natural gas is taxed differently and the tax levied on it is generally higher than coal which demotes its use.
Sometimes, several clearances need to be taken from other ministries like the Ministry of Environment and Defence, which creates roadblocks in the development of the sector.

Conclusion

Natural gas, unlike petroleum, does not drive the economy but it is quite important for a country. From cooking to automobiles, it is used widely and is being regulated by the government with the help of its entities. But still, certain loopholes need to be filled. The government is planning to promote natural gas in the future as it does not cause pollution. So, if we want to progress further in this field and ensure that we create less population, it is necessary to have the best regulation strategies for the oil and natural gas sector.

References

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