Understanding the legality of animal sacrifice in India

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August 21, 2021

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This article is written by Shohom Roy, from Symbiosis Law School, NOIDA. The article is an attempt to give a fair overview of the practice of animal sacrifice along with its legal implications in India.

Table of Contents

Introduction

The concept of “bali” or animal sacrifices as a part of religious practice or age-old custom has raised serious concerns regarding the animal welfare regulatory framework in India. There is a need for greater sensitization of the society that continues to perform animal sacrifices to appease deities and showcases a blatant disregard for compassion towards other living beings. The killing of animals in public squares under the garb of rituals propagates cruelty and creates a negative image of Indian society. In light of the existing circumstances, the legislature and the judiciary have undertaken the challenge of eradicating social evils like the animal sacrifice that have been plaguing our society for a long time. This article is confined to the laws about ritual sacrifice in India and the viability of compassionate alternatives that do not involve killing any animals.

Origin of animal sacrifice

The primordial practise of killing animals to please deities can be traced back to the period of the Vedas and Upanishads. Even contemporary religions like Islam celebrate festivals of sacrifice like Eid-al-Adha to commemorate their Prophet’s sacrifice to God. Every religion has propagated the humanistic values of love, compassion and selflessness. However, these practices have been based on religious misinterpretations and superstitious beliefs that have been utilized by selfish people for their gains. The prevalence of animal sacrifices during religious festivals and fairs, even in some of the most developed Indian cities emphasizes the need for reformation.

The legal status of animal sacrifice in India

The Indian legislature had passed the Prevention of Cruelty to Animals Act, 1960 to build an animal welfare regulatory framework. The Act is responsible for preventing unnecessary pain or suffering to animals. It also governs and penalizes animal cruelty in any form. Under Section 11 of this Act, slaughtering animals in any unnecessarily cruel manner is a punishable offence. Section 11(3)(e) states that while killing an animal in an unnecessarily cruel manner is punishable under law, the killing of an animal to provide food for mankind will not be included within the definition of animal cruelty. The legislation fails to include animal sacrifice within the ambit of punishable offences for animal cruelty. Section 28 of the Prevention of Cruelty to Animals Act, states that the sacrificing of an animal according to the ritualistic manner mandated by religion or community is beyond the purview of animal cruelty.

The government established the Animal Welfare Board of India in 1962 by exercising its powers under Section 4 of the Prevention of Cruelty to Animals Act, 1960. The board is responsible for implementing animal welfare laws and assisting Animal Welfare Organizations in the country. The AWBI guides the Union and State governments on animal welfare issues. Recently, the AWBI through a circular dated June 20, 2018, has directed statutory authorities to take all precautionary measures to implement animal welfare laws to prevent illegal sacrificing of animals on occasions like Bali Pratha, Bakrid, etc.

Animal sacrifices for religious purposes are inherent within the Asia-Pacific culture. One of the world’s largest animal sacrifice festivals takes place in the neighbouring country of Nepal. The Gadhimai Festival celebrated in the Bara district of Nepal near the Indian border has raised serious concerns regarding animal welfare even within India. The Supreme Court had directed the Indian government to restrict the export of live cattle and buffalo to Nepal in light of animal welfare issues. The Indian government has included live cattle and buffaloes under the restricted export category, thereby creating a license to export them legally by utilizing the powers vested in it under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992.

The Ministry of Environment and Forests in India had introduced the Prevention of Cruelty to Animals (Regulation of Livestock Market) Rules, 2017 to ban the sale of cattle in animal markets and ensure that cattle are used only for agricultural purposes and not for slaughter. Under Rule 22(e)(iii) the purchaser of cattle is prohibited from sacrificing the animal for any religious purpose. Similarly, Rule 9 (5)(d) states that sacrificing an adopted animal for religious purposes is against the law.

The subject of animal rights is mentioned both in the State and the Concurrent List of the Constitution. Therefore, the Union and the State government have legislative powers on the issue of animal rights. Some states like Karnataka have passed legislation to prohibit animal sacrifices within the vicinity of any public religious building and adjoining land. Section 3 of the Karnataka Prevention of Animal Sacrifices Act, 1959, has banned the sacrifice of any animal within the vicinity of a public religious building or during a congregation or procession for religious purposes. The Act stipulates that an individual in contravention with the aforementioned statutory provision can be arrested without a warrant.

Balancing religious freedom with animal rights

The incorporation of the term “Secular” within the Preamble of our Constitution ensures that there is no official religion of the country. It also creates room for the judiciary to treat every religion equally and intervene in religious matters under reasonable grounds. The freedom of religion granted under Article 25 of the Indian Constitution is not an absolute right and the courts have emphasized that the practice of animal sacrifice under the garb of religious freedom must be restricted. The judiciary can impose reasonable restrictions under Article 25(1) which might extend to a complete ban on the slaughter of animals in places of worship when such actions violate the principles of morality, public order and health. While in the case of Ratilal Panachand Gandhi v. State of Bombay and Ors (1954), the Apex Court had held that the concept of freedom of religion is not confined to the limits of an opinion, doctrine or belief and can be extended to the religious practices and acts done as a part of religious belief, the jurisprudence regarding ritual sacrifices has evolved. The Supreme Court has held in the case of Sardar Syendna Taher Saifuddin Sahbi v. the State of Bombay (1962), that the government can intervene to restrict or regulate harmful practices like the sacrifice of animals or human beings as religious rituals for the well-being of society.

In the case of the Durgah Committee, Ajmer and Anr v. Syed Hussain Ali and Ors (1961), the Supreme Court has held that religious practices based on mere superstitions and are extraneous or unnecessary cannot be protected under Article 25. The protection can be granted only to those essential practices that form an integral part of a religion. This doctrine of essentiality of religious practices was borrowed from the judgment in the Shri Shirur Mutt case (1954). In Ramesh Sharma v. State of Himachal Pradesh (2018), the Court held that the ritual of animal sacrifice in Hinduism is based on age-old customs and superstitions which cannot be allowed under the current legal framework.

The Court held that restraining the followers of Hinduism from practising animal sacrifice would not result in a grave change in the character of the Hindu religion or belief. The sacrifice of animals in temples cannot be permitted despite the protection under Section 28 of the Prevention of Cruelty to Animals Act as most temples are publicly accessible and the conscience of the devotees must be taken into consideration. Similarly in the case of Mohd. Hanif Qureshi and Ors v. the State of Bihar (1958), the Court has held that animal sacrifices on Bakr-Id are not an “obligatory overt act” for followers of Islam. Therefore, banning the slaughter of animals for religious festivals does not violate any fundamental rights guaranteed under Article 25. However, a judicial impact assessment pointed out that a nationwide ban on the slaughter of bovine animals would place a heavy economic burden on the communities dealing with such activities. Hence, although a state government may be allowed to restrict the killing of bovine animals within its territorial jurisdiction, the imposition of such a blanket ban on the entire country has been discouraged.

Mending the legislative oversight

While interpreting Section 28 of the Prevention of Cruelty to Animals Act, 1960 in the case of Gauri Maulekhi v. the State of Uttarakhand (2018), the High Court of Uttarakhand drew a connection with Section 11(3)(e) of the aforementioned Act. The Court held that while the legislation does not include ritualistic animal sacrifice within the ambit of animal cruelty, the sacrificing of animals even for religious purposes can only be allowed on the grounds of providing food to mankind and not to appease deities. The law mandates that even if the animals are killed in pursuance of religious activities it must be done without causing unnecessary pain or suffering to the animal.

Jurisprudential growth in animal rights

The Kerala High Court in the case of N.R. Nair v. Union of India (2001), had deliberated on the question of extending the fundamental rights to animals and stressed the need to enlarge the scope of legal rights to non-human living entities. However, the Supreme Court gave a landmark judgment in the case of Animal Welfare Board of India v. A Nagaraja (2014), by banning the bullfighting festival called “Jallikattu” in Tamil Nadu.

The decision by the Apex Court championed the cause of animal welfare rights in India and included animals within the ambit of the right to life guaranteed under Article 21 of the Indian Constitution. The court adopted a dynamic interpretation of the statutory provisions in the Prevention of Cruelty to Animals Act, 1960 which enumerated animal rights like the right to live in a healthy and clean environment and the right to be treated fairly. The Court held that the legislative intent of the aforementioned Act was to provide the right to live with “dignity and honour” to animals. It has been accepted that animals have intrinsic worth and cannot be treated as mere objects for human use or abuse. In the case of Karnail Singh v. the State of Haryana (2019), the Court has inculcated the animal kingdom within the notion of a legal person. The court mandates that every citizen should act as guardians or “loco parentis” to ensure the welfare and protection of the animals. However, the judgments fail to provide clarity on the legal obligations that must be incurred by the citizens if there is a violation of rights and duties.

Lack of stringent penalties

According to the Prevention of Cruelty to Animals Act, 1960 none of the offences mentioned under Section 11(1) are cognizable except the offence of arranging fights and shooting matches involving animals. Section 428 and Section 429 of the Indian Penal Code, 1860 penalizes actions of cruelty against animals. The offender might have to pay a fine of not more than Rs 50 in case of a first offence. Subsequent offences committed within a period of three years from the first offence will result in a fine extending from twenty-five rupees to a hundred rupees or imprisonment which may last for three months.

After the first offence, a conviction for a subsequent offence will lead to the confiscation of the offender’s vehicle and he might be barred from keeping animals in the future. The killing of animals under Section 11(3) while inflicting unnecessary pain and suffering is also governed by the aforementioned sections of the IPC. while Section 428 deals with punishment for committing acts of cruelty against animals of the value of Rs. 10 or upwards, Section 429 deals with punishment for committing offences against animals worth Rs. 50 or more. These lenient punishments are ineffective in battling against the evil of animal cruelty.

Therefore, the government has prepared a draft to amend the provisions of the Prevention of Cruelty to Animals Act, mandating a penalty of Rs. 75,000 or three times the cost of the animal along with a jail term of five years or both for causing the death of an animal. The offences against the animals are to be divided into three categories of minor injuries, major injury causing permanent disability and the death of the animal by cruel practice. offences under these three categories would attract a different quantum of punishment. The implementation of this law would help deter the practices of animal cruelty include the illegal sacrifice of animals.

The concept of Constitutional compassion

The 42nd Amendment to the Constitution gave birth to the concept of “Fundamental Duties” in India. The primary intention behind the imposition of such moral obligations was to build a virtuous and honourable society and nurture the educative, ethical and cultural code of conduct to be followed by every citizen. One of these duties is to protect and improve the natural environment which includes the duty to show compassion towards other living beings. This Ambedkarite idea of Constitutional compassion enshrined in Article 51A(h) is based on the belief that animals are sentient beings with their inherent value and should not be treated as property by mankind.

The idea of Constitutional compassion ushers in an era of scientific temper, humanism and reformation of age-old customs and superstitions shrouded in ignorance and blind faith. In the case of N. Adhithayan v. Travancore Devaswom Board & Ors (2002), the Apex Court held that traditions based on practices prevalent in historic times and ignorant superstitions cannot be a source of law. The Supreme Court, while deliberating on the case of Subhash Bhattacharjee v. the State of Tripura (2019), upheld the importance of promoting scientific temper among the citizens while validating the ban on animal sacrifices in Hindu temples of Tripura.

Remedies and recommendations

Legislative action and the intervention of the judiciary have played a pivotal role in creating a regulatory framework for safeguarding the rights of animals. However, the effective implementation of these rules and regulations is dependent on the statutory authorities. The executive wing of the government can exercise the powers of delegated legislation to deter and punish perpetrators of animal cruelty at the grass root levels.

The Animal Welfare Board of India has recommended the creation of a three-tier system for the regulation of laws and rules prohibiting cruelty to animals. However, the constitution of a State Animal Welfare Board at the state level and a District Animal Welfare Board/ District Society for Prevention of Cruelty to Animals at the district level has been stalled by the State governments.

The government should take initiatives to dissuade people from carrying out animal sacrifices under the pretext of religious adherence. Incentivizing people who are pursuing the cause of animal rights along with a stringent mechanism for the punishment of individuals in contravention of the law can help eradicate the practice of animal sacrifice.

The recent declaration by the Secretary of the All India Muslim Personal Law Board (AIMPLB), in 2020 shows the spread of awareness regarding animal rights. While clarifying that the donation of money to the poor can be a viable alternative to animal sacrifice, the Secretary of the AIMPLB has declared that animal sacrifice is not obligatory when there is a law against such practice. It is plausible that soon the mindset of the citizens of India will change regarding the practice of animal sacrifice and the exception granted to animal sacrifice for religious purposes be declared unconstitutional.

References

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Introduction to FDI and regulatory framework

By

Shoronya Banerjee

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August 21, 2021

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This article is written by Danie Joseph, pursuing Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from Lawsikho.

Table of Contents

Introduction

With the economic liberalisation of the Indian economy in 1991, it has contributed in a positive manner as the Indian economy is considered as one of the largest growing economies with respect to size and growth prospects. Foreign Direct Investment (FDI) is defined as a cross-border investment made by a company/individual in a foreign country into another company/entity residing in another country. Therefore India’s economy has been considered as one of the most profitable and prospective destinations for foreign investors and businesses. Furthermore, it has vice-versa benefitted the Indian economy, as foreign investment is one of its major monetary sources and also provides various job opportunities for a large number of its citizens. In order to facilitate the ease of inflow of global funds into the economy, the government has taken steps to ensure a favourable policy regime to attract foreign investors and MNCs by adopting favourable measures and policies. So with respect to the dynamic business conditions and competitive nature of the Indian economy, it is essential to understand the legal system and regulatory framework revolving around foreign direct investments in order to establish a solid foundation for international businesses intending to initiate their operations in the Indian market.

Regulatory compliances

Before a foreign company sets foot in India, it is advisable to take into account the various socio-economic and political factors, ability to carry out its operations in India, the location of its customers, the efficiency of its workforce from the perspective of the investment. Once the prior condition has been fulfilled, incorporating operations in India or any kind of cross-border investment will require compliance with the regulation that governs FDI, India’s foreign exchange regulations. There are several legislations and regulations enacted to govern the various aspects of foreign transactions.

Primarily it has to ensure conformity with provisions laid down under Foreign Exchange Management Act,1999 (“FEMA ”) and also observe the circulars, notifications and press notes issued under the same. The primary object of the Act is to regulate external trade and payments and to ensure a regulated foreign exchange market in India. Investments made by foreign individuals and entities are regulated by Foreign Exchange Management (Non-Debt Instruments) Rules, 2019 (“Non-Debt Instruments Rules”), issued in supersession of the former Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2017 (“TISPRO Regulations”).
An emphasis on the Foreign Direct Investment Policy Circular (“FDI Policy”) issued by the Department for Promotion of Industry and Internal Trade (”DPIIT”) in the Ministry of Commerce and Industry holds great significance. The consolidated FDI policy by the DPIIT prescribes the channels in which foreign investments are to be made.
Consequently observance of the provision of the Companies Act, 2013, Limited Liability Partnership Act, 2008 and also the regulations laid down by the Securities and Exchanges Board of India (“SEBI”).
There may also be applicable sector-specific laws (Infrastructure, Banking etc.).

Who can invest in India?

Any non-resident individual (NRI)/Entity can invest subject to FDI policy except for the prohibited sectors. NRI residents and Citizens of Nepal & Bhutan are permitted to invest on a repatriation basis
Foreign Institutional Investors (FII) and Foreign Portfolio Investors (FPI)
Registered FIIs/ FPIs/ NRIs as per Schedules 2, 2A and 3 respectively of Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 can invest or trade through a broker of Indian Companies registered on the stock exchange.
Compny, trust or partnership firm that incorporated outside India and also which owned and controlled by NRIs
SEBI registered Foreign Venture Capital Investor (FVCI) in any activity mentioned in Schedule 6 of Notification No. FEMA 20/2000.

Modes/routes for foreign direct investment

1. Automatic route

Provided that the sector does not fall within the prohibited sectors, 100% foreign direct investment is permitted subject to the applicable laws/regulations. FDI made through the automatic route does not require any prior approval either by the Central Government or RBI subject to the extent of foreign investment that is permitted in the concerned sector as specified in Regulation 16 of FEMA 20 (R) Another consideration is the Press Note 3 (2020 series) dated April 17, 2020 and notification dated April 22, 2020, by the Government had implemented certain changes to its policy in light of the COVID-19 pandemic with the intent to prevent opportunistic takeovers/acquisitions of Indian companies. It stated that regardless of the sector/activity in which such foreign investment is directed to is situated in or is a citizen of Bangladesh, China, Pakistan, Nepal, Myanmar, Bhutan or Afghanistan would mandatorily require the prior approval of the Government

2. Government route

As per the FDI policy, foreign investment in certain sectors is permitted to a certain percentage however any investment beyond the permitted threshold would require the approval of the Government. The sectors which allow FDI under partial automatic route and partial government approval route are defence, retail trading, private banking services etc.

Sectoral caps and compliances

With respect to the shareholding of non-residents in Indian companies, there are certain FDI limits that are divided between prohibited and permitted sectors.

I. Sectors where FDI is prohibited

Sectors which include activities such as Atomic Energy, Railway operations, Gambling and betting including casinos/ Lottery business including government/lottery, online lotteries etc. Chit funds, Nidhi company, Real estate business or construction of farmhouses, Trading in Transferable Development Rights, (TDRs), Manufacturing of cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes are sectors in which any kind of foreign investment are not permitted.

II. Sectors where FDI is Permitted

Below are certain illustrations of sectors that permit FDI through either automatic route and government approval.

Defence sector – In the defence sector (subject to the industrial license under Industries (Development and Regulation) Act, 1951) and manufacturing of small arms and ammunition under Arms Act, 1959 has permitted 100% FDI where up to 49% is under the automatic route. Any investment above the 49% threshold requires the approval of the government where it is likely to result in access to modern technology or for other reasons to be recorded.

Civil aviation – With respect to greenfield and existing projects for “Airports” and Non-Scheduled Air Transport Service, FDI of 100% is permitted. In the case of “Air Transport Services” being Scheduled Air Transport Service/Domestic Scheduled Passenger Airline and Regional Air Transport it partially permits up to 49% FDI in automatic route and beyond that percentage would require government approval. Also, 100% FDI is permitted for Helicopter services/ seaplane services under the automatic route subject to the approval of DGCA.

Banking services – With respect to the private sector, Foreign investment of up to 49% is permitted under the automatic route and beyond 49% and up to 74% under the government route. Foreign investment of up to 74% is permitted in banks in the private sector. Furthermore, individual NRI’s cannot hold more than 5% of the total paid-up capital and aggregate NRI holdings cannot exceed 10% of the total paid-up capital. In the case of public sector banks, foreign direct investment is capped at 20%.

Non-banking financial companies – FDI of up to 100% is permitted under the automatic route in other financial services and activities regulated financial sector regulators viz. IRDA, SEBI, RBI, Pension Fund Regulatory and Development Authority, National Housing Bank or any other financial sector regulator as may be notified by the Government of India, subject to conditionalities specified by the concerned Regulator/Government agency.

Insurance sector – The insurance sector, as per the Press Note No.2 dated 14th June issued by DPIIT, has amended the sectoral cap on insurance companies and is permitted a maximum FDI cap of up to 74% under the automatic route which is also subject to approval/verification by Insurance Regulatory and Development Authority of India (“IRDAI”). Whereas in the case of Insurance intermediaries (insurance brokers, reinsurance brokers, insurance consultants), it has been allowed 100% FDI under the automatic route

Multi-brand retail trading – A maximum percentage of 51% FDI is allowed under the government approval route. This investment simultaneously should be in compliance with the conditions (i) minimum capitalization of USD 100 million. (ii) 50% of the total FDI in the first tranche of USD 100 million to be invested in the backend infrastructure within 3 years. (iii) states which have agreed or agree in the future to allow FDI in multi-brand retail trade, retail sales outlets may be set up in such States (iv) 30% mandatory sourcing requirement from Indian micro, small, medium industries which have a total investment in plant and machinery not exceeding USD 2 million etc.

Single Brand Product Retail Trading – FDI of up to 100%is allowed under the automatic route. SBRT can receive foreign investment on the fulfilment of conditions such as (i) products that are sold under a ‘single brand’ and products that should be sold under the same brand internationally. (ii) products should be branded under manufacture and to be covered within ‘single brand’ product retail trading. (iii) non-resident entities/entities, either owner of the brand or otherwise, shall be allowed to enter into a legally tenable agreement with the brand owner for the purpose of undertaking single brand product retail trading. (iv) if the FDI is above 51%, the sourcing of 30% of the value of goods purchased should be sourced from India itself, from Indian micro, small and medium enterprises. (v) SBRT entity operating through brick and mortar stores, is permitted to undertake retail trading through e-commerce which is also subject to certain conditions. (vi) SBRT entity may set off the mandatory sourcing requirements against its incremental sourcing of goods from India for global operations during the initial 5 years of starting its operations in India. The incremental sourcing for the purpose of set-off shall be equal to the annual increase in the value of goods sourced from India for global operations either director or through its group companies. However post the 5 year period, the SBRT entity is required to fulfil the 30% sourcing norms towards India’s operation on an annual basis.

Print Media – With respect to Print Media, mainly concerned with publishing/ printing of periodicals, speciality journals, technical and scientific journals (subject to compliance with the applicable legal framework and the guidelines issued by Ministry of Information and Broadcasting periodically in this regard) and publication of a similar edition of foreign newspapers is allowed to have 100% foreign investment under the government approval route. On the contrary with respect to the Print Media specifically publishing of newspapers and periodicals which deal with the current affair and news and also publishing Indian content in foreign magazines dealing with news and current affairs is allowed FDI of only up to 26% with the prior approval of the government.

Digital media – Digital Media which mainly consists of uploading News and Current Affairs through the medium of Digital Media is permitted 26% FDI.

Railways – As per the FDI policy, the list of prohibited sectors have been revised to substitute ‘railway transport’ with ‘railway operations’, in effect allowing foreign investment in ‘railway transport. Railway infrastructure is allowed 100% FDI under the automatic route, however, in the case of particularly sensitive areas any FDI above 49% will require consideration from the Ministry of Railways from a security point of view. The Ministry of Railways has set up sectoral guidelines which include conditions and approvals required for domestic or foreign participation in the retail sector.

B2B E-commerce – In the case of companies that are primarily involved in the activity of buying and selling through the medium of the e-commerce platform particularly in the Business to Business segment is permitted 100% FDI.

B2C E-ommerce – As per the marketplace model of e-commerce where an e-commerce entity provides an information technology platform on a digital & electronic network and acts as the middle-person to the buyer and seller, 100 FDI is permitted under the automatic route. However, as per the inventory-based model of e-commerce which involves maintaining inventory of goods and services by the e-commerce entity and is sold to the consumers directly, FDI is not permitted.

Pharmaceuticals – In the case of greenfield projects in the pharmaceutical sector, 100% FDI is permitted as per regulation 16 of FEMA 20R. Whereas in the case of Brownfield projects in the pharmaceutical sector up to 74% FDI is permitted under automatic route and above this threshold would necessitate the government approval route.

Petroleum – Activities such as exploration, research and development, marketing, deriving petrol-based products are allowed by private companies in the petroleum sector. If the concerned activities are conducted privately then 100% FDI is permitted under the automatic route. However if the government undertaking conducts these activities, then 49% of FDI is allowed under automatic route and any investment over this limit would require the approval of the government.

Conclusion

In the event of ensuring the fulfilment of the regulatory compliances, the foreign entity/company can undergo the incorporation process of setting up its operations in India and also issue securities for the purpose of foreign investment. The FDI policy has prescribed the mandatory procedure to regulate the inflow of foreign funds and investments into the Indian economy. Hence it will be vital to adopt favourable policies and impose limited restrictions which would help facilitate the smoother inflow of capital investment within the economy and thus would usher wealth creation and growth in the economy and also enable the development of entrepreneurship in India. Therefore with the FDI policy actively scrutinising the investments routes, it will ensure a greater scope of foreign investment.

References

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NGOs working for animal welfare

By

Diganth Raj Sehgal

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August 21, 2021

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Animal_welfare_-_woman_pats_dog_(1) — Image Source: https://bit.ly/3syUk2Q

This article is written by Kavana Rao from Symbiosis Law School, Noida. This article will be about a few organizations working for the welfare of animals in society. It covers organizations pan India and even overseas.

“The love for all living creatures is the most noble attribute of man”

-Charles Darwin

Table of Contents

Introduction

Animal welfare is the quality of life experienced by animals and includes an animal’s ability to cope with its surroundings and situations. Animal welfare is affected by the relationships human beings have with animals and it is the responsibility of the human race to peacefully coexist with animals and treat them humanely and with respect. Across the globe, the animal community has faced severe hostility and has been subjected to mistreatment, torture, and abandonment by humans. In many countries, there is a problem of unregulated stray animals where they are not taken care of or taken responsibility for by anyone, which leaves them open to all perils of the surroundings.

NGOs for animal welfare tend to the ill and injured animals. They also conduct a lot of drives and projects for neutering, vaccinating the animals, providing them with other health facilities, and conducting adoption drives. NGOs also actively spread awareness about the importance of animal welfare to the public and conduct charity events and fundraisers to finance their expenses.

India consists of the Animal Welfare Board of India, which is a statutory advisory body on the Animal Welfare Laws and promotes animal welfare. It was established in 1962 under Section 4 of the Prevention of Cruelty to Animals Act, 1960. This organization started under the leadership of Late Smt. Rukmini Devi Arundale.

Some of its primary functions are:

To keep the law in force in India for the Prevention of Cruelty to Animals and advise the Central Government on the making of rules under the Act.
Cooperate with, and coordinate the work of, associations or bodies established for the protection of animals and birds.
To impart education about the humane treatment of animals and encourage the formation of public opinion against the infliction of unnecessary pain or suffering to animals and promote animal welfare through books, posters, short films, etc.

Importance of NGOs

There have been multiple incidents in the past where the animals have brutally been tortured and manhandled. There have also been instances where the ill and the injured stray animals have had no recourse but to resort to their fate and live in dire conditions. With the onset of the pandemic and the lockdowns, many stray animals were left on their own; the little food that they were previously receiving from shops and restaurants was now lost. They were left with no food and a lack of medical care, with restrictions on movement on the local feeders. It is during such situations that registered and recognized NGOs play a vital role in animal welfare.

NGOs work without expectations of profits which causes them to work selflessly towards animal welfare.
NGOs are also involved in spreading awareness about animal welfare at a larger level. Spreading awareness is one of the ways of advocating for animal rights and animal welfare.
Every animal is entitled to a good and healthy life, where they can enjoy their well-being benefits. NGOs ensure this through their constant service towards the animals in the society by provisioning them with shelter, medical facilities, and food and nutrition.
NGOs are also actively involved in the fight for animal rights. NGOs file writs when there are instances of cruelty towards animals in society.
Stray animals are the most overlooked beings; NGOs ensure that these animals receive help during accidents and sickness.

List of NGOs and Organisations working for animal welfare

Compassion Unlimited Plus Action (CUPA), Bangalore, Karnataka

CUPA is a non-profit and non-government organisation. It was born in the year 1991, set up by Miss Crystal Rogers, a British woman who left England to come to Bangalore to start the first-ever animal shelter in the region that was to help suffering animals and provide them with a safe space for healing. CUPA has now expanded to 5 different centres across the city of Bangalore.

CUPA’s facilities across the city address many aspects of animal welfare: Animal Birth Control, Trauma, and Rescue, Adoption and Foster, Geriatric Care, Large Animal Rehabilitation. CUPA not only conducts pet cruelty inspections but also conducts awareness sessions with schools, colleges, and corporations. CUPA actively advocates for Animal Protection Laws and the welfare of Captive Elephants.

CUPA has also spread its network to work for the rescue and rehabilitation of urban and indigenous wildlife. CUPA also has a sister organization, namely ‘The Wildlife Rescue and Rehabilitation Centre’. This organization works to offer native wildlife space to rest and recuperate after injuries due to displacement or disorientation. The WRRC has worked towards improving the lives of the elephants which often are held captive or abused in artificial environments, like in religious places, tourism, entertainment, etc. It has followed the lives of thousands of captive elephants across the country and noted their plight to reveal the conditions that they live in every day in artificial environments.

Let’s Live Together – Bangalore, Karnataka

Let’s Live Together is a registered Charitable Trust for the Welfare of Homeless Animals. It was started by Anchala Paani. Her brainchild project “Life on the Streets” helps promote the concept of adopting strays, rather than buying animals which subsequently leads to breed discrimination and the profit-thirsty unethical breeders to continue their business in an unethical manner. The organization connects independent rescuers with potential adopters to help find loving homes and families for the cats and dogs.

The NGO also conducts community projects where they have a ‘Free Spay and Neuter drive’ where people can bring their dogs and cats and get them neutered for free. They conduct ‘First Street Clinic’ where street dogs are vaccinated, dewormed and the injured and wounded dogs are treated. They also conduct frequent adoption drives where families come to meet and adopt puppies and dogs and give them loving homes.

Visakha Society for Protection and Care of Animals (VSPCA India), Visakhapatnam, Andhra Pradesh

VSPCA is an international nonprofit located in Visakhapatnam, Andhra Pradesh, dedicated to sustaining animal and plant life in Visakhapatnam that recognizes biodiversity as an essential aspect of human survival. It works towards stopping the illegal trade of internationally protected sea turtles. It is also involved in rescuing old and abandoned animals and providing permanent homes to neglected and tortured animals.

It has one of the most comprehensive animal shelters in India which houses dogs, cats, cattle, birds, raptors, reptiles, trafficked wildlife, and rams and roosters from illegal animal fighting rings. They are also actively fighting against animal sacrifice for religious purposes.

The Blue Cross of India- Chennai, Tamil Nadu

The Blue Cross of India started as an informal shelter on a very rainy day when the founder, Captain Sundaram, saved two puppies trying to stay afloat in the flooded roads of T Nagar. The initial people involved were Captain Sunadarm, a pilot with Indian Airlines, and his wife Usha, recognized as the first Indian woman in aerospace by the National Aeronautics Association. It was initially known as the Animal Aid Association and was later joined by Mr. D Daiwasigamony, the then Secretary of the Indian Football Association.

The NGO is actively involved in providing shelter to the rescued stray animals and provides them with nutritious food to help them recuperate. It is also involved in rehoming the stray cattle which otherwise end up at slaughterhouses. The lost or abandoned pets are also reunited with their families or rehomed. Blue Cross of India NGO has the ABC program where it specializes in performing Animal Birth Control surgeries for all dogs that come to them for treatment. It shelters the stray dogs till they heal and the sutures are removed. It also ensures that the dogs are dewormed, vaccinated, and later released to the same location that they were picked up from. They also have mobile dispensaries and ambulance services.

Friendicoes

Friendicoes started when a group of kind school children got together and started a kindness club for distressed stray animals under the Defence Colony flyover in Delhi in the 1970s. Friendicoes now has become a big shelter, with two operation theatres, a lab, and an X-Ray unit. It also has a sanctuary with a thousand animals. There are ambulance services round the clock for strays as well as an emergency night clinic for pets.

Friendicoes was also involved in providing relief to the tsunami struck islands of Andaman and Nicobar islands. They were involved in feeding stray dogs, cats, and cattle and ensured that most of them were given new homes. With a lack of medical facilities for animals, Friendicoes now runs a neuter program in the Andaman and Nicobar islands.

Sheldrick Wildlife Trust – Kenya

Sheldrick Wildlife Trust was founded in 1977 by Dr. Dame Daphne Sheldrick DBE, in memory of her late husband, who was a famous naturalist and founding Warden of Tsavo East National Park, David Leslie William Sheldrick. Sheldrick Wildlife Trust deals in the conservation, protection, and preservation of wildlife and habitats. They are also involved in operating successful orphan elephant rescue and rehabilitation programs in the world. The ‘ Orphan Project’ is the heart of the organization, in which the orphaned baby elephants, rhinos, and other wild species like warthogs are rescued and taken care of till they can sustain themselves in the wild.

They undertake multiple projects, one of them being the Anti-poaching project where the organizations undertake anti-poaching operations to prevent ivory and rhino horn poaching, and to protect other wild animals that are threatened and the areas of importance to the wild within Kenya. Among the multiple other projects, one of the other notable projects is the “Water for Wildlife” project, where they work to help provide permanent and temporary water sources to mitigate the suffering.

People for the Ethical Treatment of Animals (PETA)

People for the Ethical Treatment of Animals (PETA) is the largest animal organization in the world, based in Norfolk, Virginia, with more than 6.5 million members and supporters. PETA primarily focuses on the area of suffering that animals face in laboratories, the food industry, the clothing trade and the entertainment industry. They also dedicate time to other issues like the cruel killing and treatment of rodents, birds as well as cruelty towards domesticated animals. PETA works through public education, cruelty, investigation, research, animal rescue, legislation, special events, and celebrity involvement.

PETA opposes speciesism and the human-supremacist view and also believes that animals are not ours to eat, wear, use for entertainment, abuse or experiment on. They also work on the principle that animals have rights and their best interests have to be taken into consideration, regardless of whether they are useful to humans.

The Modern Mowgli – Across Delhi and Haryana

Anoushka Mehta had a humble beginning as an 18-year old by feeding the dogs around her neighbourhood, which has now turned into a charity spread across Delhi and Haryana. Her mighty team and the 23- year old self has been feeding 200 dogs every day and has also gotten more than ninety indie dogs adopted which were rescued from dire conditions. She has also given these little lives homes overseas in countries like the USA and Canada. She tends to the ill and the injured dogs and even gets them neutered. Anoushka and her team have worked through all the lockdowns and the restrictions without disappointing the hungry faces. Although the Modern Mowgli is no NGO, it is worth mentioning in this article as it tirelessly works for the well-being of animals around Delhi and Haryana.

Conclusion

It is gut-wrenching to see humans exploiting animals mercilessly in various ways in the form of employing them in circuses, tourism, or for religious practices and traditions. Abandoning animals or torturing them through any kind of punishment and using them for cosmetic or scientific experimentation would still constitute exploitation. The work NGOs, charitable organizations, and trusts do to protect the animals and constantly spread awareness regarding animal rights is beyond commendable and must be revered by all. Contributing to the betterment of animals is one of the duties of the human species and must be done frequently. A small contribution could save many lives.

References

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‘How not to do M&A’ : Yahoo and Tumblr revisiting the startup acquisition nightmare

By

Shoronya Banerjee

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August 21, 2021

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This article is written by Danie Joseph, pursuing Diploma in M&A, Institutional Finance, and Investment Laws (PE and VC transactions) from Lawsikho.

Table of Contents

Introduction

Companies who visualise potential growth in a sector or market undertake various strategies to materialise this potential. A particular strategy is mergers and acquisitions which allows companies to meet the expansion objectives and allows for diversification of risk. Over the years there have been various successful acquisition deals that have fulfilled these particular objectives. The conventional objective of an acquisition strategy enables companies to enter into newer markets, establish a dominant presence in their respective competitive sphere and increase the profitability of the company by merging or acquiring a company that has a competitive presence and large potential to grow. However, during this vital process, it is necessary to identify the pitfalls that one could overlook in this particular process. Sometimes both the parties would majorly focus on the completion of the deal just based on the merits and do not take into consideration various factors that revolve around the deal which consequently lead to its failure. Such is the case of the acquisition of Tumblr by Yahoo for 1.1 Billion U.S Dollars in 2013 which brings into perspective an acquisition that went wrong due to particular reasons. Hence it is important to realise the reasons why such a promising deal failed to live up to expectations and this would help to frame a concrete strategy to ensure a successful merger or an acquisition.

The current market situation of Yahoo and Tumblr

Yahoo is an American company made by Jerry Yang and David Filo which was established in 1994 and is headquartered in California. It primarily provided a web service and a search engine and web portal and provided internet services related to it. However, over the years, Yahoo’s user base declined dramatically when users switched to a more prominent search engine called Google which was preferable to most users which is evident from its large share in the search engine market. In order to attain growth and reignite the competitive edge over the market, it adopted the strategy of acquiring companies that had a huge potential to grow and a large user base to channel this growth. Yahoo sought out target companies in order to establish their social network segment and identified a blogging site called Tumblr.

Tumblr was a social platform for bloggers and due to its democratized system and independent nature, it increased in popularity. The blogging platform was so popular that it garnered over 72 million users on it every month as of 2011. Yahoo purchased Tumblr in the year 2013 for a complete cash deal for an amount of USD 1.1 billion which was approved by the board at Yahoo. The deal was made on the backdrop of re-instilling Yahoo’s relevance in the industry, it viewed Tumblr as the pathway to increase its traffic and user-base on all its platforms and also viewed it as a revenue generation tool by implementing advertisements on Tumblr. However, this was clearly one of the main pitfalls of the deals as Tumblr ethos did not align with the intention of Yahoo as it did not intend it to generate revenue through ads on its platform and this was clear as it had only procured a very negligible amount through advertising. It was evident for multiple reasons that Yahoo did not completely understand the target company and subsequently led to the failure to recognise their massive investment of USD 1.1 billion.

Analysing the reasons which led to the failure of the acquisition

1. Underestimating the importance of proper due diligence

From the events that transpired after the acquisition, it was clear that Yahoo had not conducted the necessary due diligence before executing the acquisitions. One of main reasons why most acquisitions deals fail to realise its potential is due to the poor standard of executing effective due diligence. Conducting the necessary due diligence highlights the potential loopholes and risks of the concerned target company and also the potential benefits of the merger or acquisition. Yahoo tried to force the deal based on the merits of the deal which was clear from it over-estimation of the value of Tumblr of upto 1.1 billion USD which was sold for 3 million USD in 2019. Furthermore, the lack of due diligence also hid the fact that the concerned target company, Tumblr, was not optimized for an advertisement generation revenue model and lacked any latent innovative potential. Therefore, this was one of the main reasons that led to a deal that was considered a lost opportunity.

2. Work – culture differences

Yahoo was perceived as an aging social media platform compared to a more refined, modern Tumblr and this was even reflective of their respective work-forces. It was clear that there was a substantial work cultural difference between the two however this was not contemplated enough and led to the initial stages of the failure of the acquisition. Yahoo, with the sole focus of integrating ad-generation into Tumblr, merged the sales team of Tumblr into the company without perceiving the work culture needs and how to resolve the differences. In addition, the unfamiliarity with corporate culture norms and beyond reasonable sales expectations set by Yahoo resulted in the discontent between the two workforces caused by differences in the work culture which led to a hike in employee turnover.

3. Absence of a definite, comprehensive plan

Google, Facebook were some of the direct competitors to Yahoo and also made acquisitions such as YouTube and Instagram respectively however they comparatively made phenomenal growth and profits on their investment and this was due to a well-planned strategy to harmoniously integrate their services to the utmost benefit. However, with the case of Yahoo, there was a lack of a well-defined and comprehensive plan. A simple but consequential mistake during acquisition deals is that both parties are focused on finalizing the deal as soon as possible and do not give importance to issues that subsequently arise once the deal-making process is over. In this particular case, Yahoo was unable to establish advertisement revenue methods through Tumblr for which the acquisition was mainly intended and also did not refine the user experience on the Tumblr platform which caused dissatisfaction among the users and also failed to innovate the services.

How to ensure M&A Deal is successful

1. Conducting the requisite standard of due diligence

It is important to ensure that the necessary due diligence is conducted during the acquisition deal and to highlight the various potential issues and evaluate the probability of the successful implementation of the company after the deal. Overlooking this step can turn a promising deal into a failure. The due diligence involves an assessment of latent risks relating to assets, the possibility of infringement of intellectual property, the status of employment conditions, contracts of the company. Conducting due diligence provides a view into unforeseen liabilities such as pending litigations, high level of unpaid debt obligations, etc., and also provides the scope to assess a fair value estimation of the company with respect to its finances and revenue generation.

2. Tackling cultural differences

In order for an acquisition to be successful, apart from the deal itself, one has to evaluate the post-integration of the deal itself. A company’s workplace culture can be identified through the company’s management norms. There may be varying workplace cultures and it is vital to ensure both the cultures can align without being costly in terms of money and time. In order to work out the differences, it involves anticipating the requirements of the contrasting working environments beforehand during the due-diligence phase. A careful evaluation of the unique processes, key employees, crucial projects etc. and framing an efficient strategy which should be implemented after the period of finalising the deal. However, despite taking the necessary prerequisites, it is common to observe certain cultural barriers or differences in such deals, however, their impact should not be that which is of significant detriment to the plans of the company.

3. A well-framed plan and strategy for its implementation

Successful integration between the companies will result in the growth of the company thereby resulting in a successful deal all around however if the integration is laden with various issues then it can be a costly investment for the company resulting in a higher attrition rate amongst the employees and hindering the prospective growth of the company.

During the process of incorporating the deal, it is important to have comprehensive discussions regarding a coherent and definite strategy of amalgamating the acquired company with the purchaser company. This will primarily lay down the framework on how all the parts of the organization operate seamlessly with the newly acquired company. Failure to anticipate the various issues and frame a concrete plan to ensure its integration can lead to various issues which will prevent them from realising their true potential. These issues include external market factors, inaccurate revenue projections, cultural factors, etc. Despite being one of the obvious and simple steps to ensure a successful acquisition, one of the common reasons for M&A deals to fall through is due to the disregard for a well-defined strategy.

Conclusion

It is clear if the aforementioned factors are not discussed and taken into consideration it will cause M&A integrations to fail. In cases where such mergers or acquisition deals fail, it could arise due to the fact that both parties are heavily concentrated on the completion of the deal that they fail to perform their basic duties and inspect the post-merger integration of the concerned target company. Therefore, from the Yahoo and Tumblr acquisition which resulted in a failure as Tumblr was sold a couple of years later for a meagre 3 million USD an inference can be made as to the significance of conducting the necessary due diligence and apprehending the issues and risks that are bound to arise and plan a defined and coherent strategy for the post-merger integration. This would maximize the probability of success of the deal and facilitate the rise in growth and revenue.

References

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The tendency of copy-pasting things leading to judicial plagiarism : an overview

By

Diganth Raj Sehgal

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August 21, 2021

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This article is written by Anushka Singhal, a student of Symbiosis Law School, Noida. In this article, she throws some light on the issue of copy-paste judgments. She pens down some case laws and explains the ethics behind such copy-pasting.

Table of Contents

Introduction

‘Judgments of the Courts are the driving force of a country’. The judgments given by the Courts play an indispensable role in law-making in a common-law country. The principle of ‘Stare Decisis’ is followed here and the decisions of the Supreme Court are binding on all lower courts. The full form of the principle is “Stare decisis et non quieta movere”, which means, “stand by decisions and do not move that which is quiet”. Article 141 of the Indian Constitution lays down that the judgments of the Supreme Court are binding on all. The judges cite a previous judgment while writing their judgment. In the present times, apart from this, there has grown a new trend among the judiciary. Some Courts cut-copy-paste the decision of the lower court or tribunal when some case comes to them for appeal. Judicial plagiarism is rising today. Let us delve more into this issue and understand what is a copy-paste judgment and what are the issues associated with it.

Meaning of a copy-paste judgment

Almost everyone is familiar with the function of the shortcut keys Ctrl+C and Ctrl+V in a computer system. Ctrl+C is used to copy a text and Ctrl+V is used to paste the same. With the advent of technology, it has become very easy to copy-paste anything. This has led to an increase in copy-paste judgments. A copy-paste judgment is the one that is either copied from a previous judgment or is plagiarized from some source without giving due credit to the source. In such judgments, the judiciary does not apply their own ‘legal and logical reasoning’ and end up cut-copying and pasting. A judgment without reasoning is like a garden without flowers. In the case of Sec. & Curator Victoria Memorial v. Howrah Ganatantrik Nagrik Samity (2010), the Hon’ble Supreme Court held that “the hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons”. Copy and paste judgments contravene this as they lack proper reasoning.

Cases on cut-copy judgments

There have been a plethora of cases that pointed towards the culture of cut-copy and paste in the Indian Judiciary. Let us discuss a few of them.

Union Public Service Commission v. Bhibu Prasad Sarangi and Ors. (2021)

This was a case regarding the promotion of IAS following vacancies. This judgment brought forward the issue of copy-paste judgments to the forefront. In this case, the appellant moved the High Court under Article 226 of the Constitution, challenging the order of the Central Administrative Tribunal of Cuttack. The case went further to the Supreme Court. The High Court had copied certain text from the tribunal’s judgment while holding that the decision of the tribunal was correct. While considering the appeal, the Supreme Court observed that the tendency of cut-copying and pasting has increased with the advent of technology. The Hon’ble Supreme Court held that the Courts should not think of increasing the volume of the judgment. The ‘quality’ matters and not the ‘quantity’. Judicial reasoning should be applied while penning down decisions. It has led us to ponder over this issue with much more seriousness.

P. Chidambaram v. Directorate of Enforcement (2019)

This case came into the limelight when P. Chidambaram’s son Karti Chidambaram posted a newspaper clipping with the title, ‘Cut, copy and paste’. This post led to hustle in the whole country. The case was on granting bail to P. Chidambaram and it was alleged that Justice Suresh Kumar Kait of the Delhi High Court has reproduced some paragraphs from a 2017 bail judgment. There was a stark similarity between the facts as well as the conclusion of both the judgments. Usually, there is a practice among judges and lawyers to refer to the facts of a case but it was in this judgment that verbatim was copied. The Court took suo-moto cognizance of the case and clarified that there was no cut, copy and paste as alleged by the newspaper and asked the newspaper to clarify the content of its article.

D.K Shivakumar v. Directorate of Enforcement (2019)

The copy-paste in this judgment was called a ‘tragic incident’ by Justice Rohinton Nariman. It was alleged that the Directorate of Enforcement (ED) had just copied the paragraphs from the plea that it had filed earlier in the case of P Chidambaram. On one of the pages of the plea, Mr Shivkumar was referred to as the ‘former finance minister’. It was a great blunder on the part of the ED. The Supreme Court rejected the bail application and the case again brought the issue of cut-copy and paste in the judicial system.

F. Hoffmann-La Roche Ltd. v. Cipla Ltd. (2012)

In this case, the judges fell into the trap of judicial plagiarism by citing an article in its judgment without acknowledging the author. The cut-copy-paste in this judgment came to the limelight when the authors of the article, Mr Eshan Ghosh and Ms Shwetashree Majumdar, wrote on Facebook that the para 4 to 37 of this article were copied from their article in the Queen Mary Journal of Intellectual Property. This was a severe allegation and the Delhi High Court was quick in taking the suo-moto cognizance of the case. It offered an apology and said that one of its interns has done this plagiarism. The Court had asked him to make the judgment concise and then it had incorporated the intern’s work while submitting its judgment.

Judicial plagiarism in foreign jurisdictions

This phenomenon is not only common in India but jurisdictions other than India have borne the brunt of this Ctrl+C and Ctrl+V. Cojocaru v. British Columbia Women’s Hospital and Health Centre (2013) was one such case of the Canadian Jurisdiction. The copying was condemned in this case but it was not found as a ground for declaring the judgment void. Let us discuss this case in depth.

Cojocaru v. British Columbia Women’s Hospital and Health Centre (2013)

This was a case of medical negligence. A lady was brought to the hospital for delivery. During the delivery, the woman suffered a uterus rupture due to which the oxygen supply to her child’s brain was interrupted and the child was born with certain deformities and was also a patient of cerebral palsy. The Trial Court awarded an amount of $4 million to the plaintiff while penning down a 368 para judgment. It was found that 321 paragraphs of the 368 paragraphs judgment were copied. The case was challenged and the Court of Appeal reversed the decision. It said that as the judgment was not based on the original analysis of the judge, it cannot be accepted. The case further went to the Supreme Court which held that though the judgment was copied, the plagiarism cannot hold as the sole ground for declaring a judgment as void. The Supreme Court held that the copying does not cast clouds of doubt on the impartiality of the judges. The judges have a lot of workloads and thus this practice can assist them in dealing with cases of the same kind.

Are the judges prohibited from copying and pasting?

The judges are not per se prohibited from citing lines and quotes from judgments, literary and research work. They must ensure that they acknowledge that they have taken this particular sentence from some source. Such copy and paste with acknowledgement in the form of footnotes, endnotes or any other referencing method would not infringe the provisions of the Copyright Act, 1957. Section 52 of the Copyright Act lays down the instances wherein plagiarism would not be punished. For example, when an author’s piece of work is fairly dealt with in personal research, dramatics, reproduction of any literary, dramatical or musical work for a judicial proceeding, etc., it will not be considered a violation of the Copyrights Act. But when there is no acknowledgement or when lawyers and judges simply copy the facts or judgment of an already decided case, it goes against the ethical conduct.

Judicial ethics and the problem with copy-pasted judgments

Judicial writing is altogether a different genre of writing. Not everyone can write in the same way as a judge writes. Judges are held to a higher moral standard and the highest professional standards. A judge is expected to analyse the whole situation carefully and sum up all that has been stated by both sides with a proper conclusion. The judges of the Supreme Court have to be more cautious when it comes to copy-paste judgments. Their judgments act as a binding precedent and thus one mistake would lead to a lot of problems and cater to a lot of criticism. The importance of a judgment can be understood with the fact that we have three to four rules of legal interpretation. The judges can use the Literal rule, the Mischief rule, the Golden rule or the Purposive rule to interpret and then can arrive at a conclusion. In judicial plagiarism, one might not resort to such in-depth analysis and thus the purpose of ensuring justice may not be satisfied. The Supreme Court adopted a charter called the ‘Restatement of Values and Judicial Life’ in May 1997. The restatement was verified in 1999 and since then both the Supreme Court and High Court judges of the country work according to it. The very first point of the restatement states that “Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in an official or personal capacity, which erodes the credibility of this perception has to be avoided.” Copying and pasting in judgments seem to violate this principle. People have faith in the judiciary and this copying and pasting go against that faith. Similarly, the Bangalore Principles of Judicial Conduct, 2002 also lay down the expected conduct of a judge. A judge should be impartial, competent, show due diligence and propriety in all his activities. Judicial plagiarism goes against the ethical codes laid down for the judges. Also, it can lead to ‘tragic comedies’ as happened in DK Shivakumar’s case.

Conclusion

Judgment writing is an art. The art looks beautiful when it is blessed with originality. The same should be applied to the judgments. Every judgment is unique and thus there should be no blatant copy and pasting. Such judgments show the lack of analysis on the part of the judge. Also, lawyers should not file the case of appeal just by copying and pasting the previous judgment. There have been judgments where the Courts beautifully quoted some lines from literary sources. These were not considered wrong as the author was acknowledged. Such statements added beauty to the judgment. For example, the judgment in the famous case of Navtej Singh Johar v. Union of India (2018) cited the famous lines of Johann Wolfgang Von Goethe, “I am what I am”. It was not plagiarism. Therefore judges should try to retain the originality and can blend it with creativity. Ctrl C+ and Ctrl+V is not a good option. No doubt we live in an age of technology but ‘technology’ should not replace ‘originality’. As rightly said by Justice DY Chandrachud, there should be an independent application of mind.

References

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Critical analysis on privacy implication of terms of use agreements

By

Abanti Bose

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August 21, 2021

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China’s-Personal-Information-Protection-Law-Privacy-Compliance-IT-Perspective (1) — Image Source: https://rb.gy/c8fun6

This article is written by Atchaya J, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from Lawsikho.

Table of Contents

Introduction

“I Agree” – is the most familiar internet term across all users no matter which corner of the world they live in. “I Agree” is the option that a user exercises agreeing to the terms of a site or app or any service in order to access the same. It sounds way simple to be actually way more complicated in real life.

To begin with, the following series of events happen when you click this button:

The search engine or social networking service mine the information given by you (the user) and then sell it to external developers and marketers.
As soon as the information is sent to private third parties, your information is stored in remote network servers.
At this point, you may close the site, or window, or computer and burn it away but the information has gone beyond your control or even the website’s control.

In short, a user does not pay money to use the social networking sites or search engines, rather it compensates with its private information to access the service. The same goes for every public and private account on social media platforms.

Terms of use policy of popular websites

Before we critically analyse the terms that we agree to let us take a look at the actual terms of some of the most popular service’s Terms of Use Policy:

Google’s Terms of Service: “Our automated systems analyse your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored.”
Amazon’s Privacy Notice: “Like many Web sites, we use “cookies,” and we obtain certain types of information when your Web browser accesses Amazon.com or advertisements and other content served by or on behalf of Amazon.com on other Web sites.”
Facebook’s Terms of Service: “You give us permission to use your name and profile picture and information about actions you have taken on Facebook next to or in connection with ads, offers, and other sponsored content that we display across our Products, without any compensation to you.”
Apple’s Privacy Policy: “Apple and our partners and licensees, such as maps data providers, may collect, use, and share precise location data, including the real-time geographic location of your Apple computer or device.”

Birth of terms of use agreement

Right where it began, everything went wrong. The Internet market was young in the late 1990s and regulators simply went ahead with a system of “notice and choice” to protect user’s data. It means as a user you shall be notified of a company’s data practices and given the choice to proceed with it to access the service. That will act as your consent and privacy is deemed to be legally in your control.

When in the actual scenario, the company gets legal protection automatically as the consent of the user is obtained at free will. It fails to recognise that the user does not get the option to exercise its control over its data, it only gets the control over accepting or rejecting the user agreement. Thus, the user is bound to agree to the terms to access the service, as rejecting simply means that access to the service is entirely denied. This again contradicts the “free will of consenting” aspect of the user agreement.

Enforceability of paper and electronic standard form

Standard form contract is also referred to as a contract of adhesion, take-it or leave-it contract or a boilerplate contract which is a contract between two parties, where the terms and conditions are set by one party which are either mutually beneficial or exploitative. These terms of use agreements take the form of browsewrap or clickwrap or web wrap agreements in the online space. They are available on the take-it or leave-it basis as discussed above, aligning with the nature of standard contract of adhesion. A standard form of contract is just a structure of myriad terms, devised and proposed by the party with higher bargaining power. These are carried out on a regular basis fuelled by the exponentially growing e-commerce market. This take-it or leave-it model of agreement makes consumer acceptance inevitable and consumer engagement is high. But unlike normal standard contracts where the principal responsibility of the consumer is payment, the terms of use policy get consumer data as consideration. Consumers by and large agree to the terms without even reading it given the fact they lack any bargaining power and the understanding of the legal terms.

Despite all challenges which lie therein, as long as the users are provided with adequate opportunity to review the terms and have control over their consent, these electronically-made agreements create enforceable contracts. As far as standard form is considered, there is no separate legislation dealing or regulating the same. It is governed under the provisions of the Indian Contract Act, 1872 and the Indian Technology Act, 2000.

Enforcement of privacy through privacy policies

The modern internet market entirely differs from its nascent stage. The entire system is now based on data-oriented advertising. These user agreements, terms of user agreement, data policy, privacy policy etc., very conveniently transfer the risk of data processing to the users. But how are these complex documents of any benefit to a humble user? These are designed for regulators, lawyers, journalists, investors and the industry.

The control narrative is just a mechanism to convince the user of authority. Throughout the world, various methods have been adopted and strategies have been formulated to engineer your consent; extensive marketing, lucrative privacy settings, notification asking permission for every access and many more. At the end of the day, the user gives in for everything, to simply access the service easily without continuous nudging.

Ultimately the companies benefit from this notion of control, as they get to keep their data engine humming by leveraging this illusion of agency via terms and settings.

Following is the testimony of Mark Zuckerberg from the Cambridge Analytica hearing:

“The first line of our Terms of Service say that you control and own the information and content that you put on Facebook…you own [your data] in the sense that you chose to put it there, you could take it down anytime, and you completely control the terms under which it’s used.”

And this is how users are made into data spigots by these data-based companies under illusion by conceptualizing privacy in terms of control.

Are legal mechanisms effective in protecting privacy?

Not only contractual compliances or legal doctrines but also private and common law tort principles and private statutes may enable the users to challenge the enforceability of these agreements. Arguably, challenging the lack of assent or unconscionability could be the best approach in this regard. Proving it would require proving both procedural and substantive unconscionability before the court. The adhesive nature of the agreement, take-it-or-leave-it basis, and the bargaining position of the party are considerations providing strong arguments in favour of procedural unconscionability. As far as substantive unconscionability is concerned, the costs that an unfair contract imposes on a user is derived from the exploitation of private information which is relatively greater than what would have been derived from a regular clickwrap agreement. Thereby giving some room to the consumers to take legal discourse.

Case study on WhatsApp privacy policy

When WhatsApp rolled out its updated Privacy Policy and Terms of Service Agreement, it caused an uproar among the general public and legal fraternity. Users were mandatorily made to accept the terms and agree to them in order to retain their WhatsApp accounts.

The primary aim of the 2021 update is to achieve two goals: Make how WhatsApp collects, uses and shares data transparently and inform users about optional business messaging features. The acceptance of the 2021 update honours the 2016 opt-out feature (which allowed users to opt-out of sharing their WhatsApp account information with Facebook Companies for ads and product experience purposes).

WhatsApp submitted that the privacy of personal messaging is integral to the growth and vision of WhatsApp. 2021 Update does not expand WhatsApp’s ability to share data with Facebook or third parties. Thus, it concluded that no concerns from a competition perspective are raised either.

On the other hand, observations made by the Commission were contrary to WhatsApp’s submissions:

It was observed that policy envisaged the collection of personal data to be shared with Facebook and third-party companies.
The 2021 update creates no carve-out for users who chose not to share their data with Facebook regarding the 2016 update.
WhatsApp enjoys a pedestal market position and market power, thereby attracting a detailed investigation and scrutiny in the light of their terms and conduct.
Ambiguity in terms of usage of historical data of users and sharing data of users who only use WhatsApp and not related apps such as Facebook, Instagram etc.
Control over cross-product processing of data is not by voluntary consent but as a precondition for availing of WhatsApp’s services. (Developing on the control over privacy narrative).
Violating provisions of Section 4 of the Competition Act, 2002, the questionable data-sharing model leads to degradation of non-price parameters of competition and undermines the competitive process.

Conclusion

This article has identified how terms of use agreements are enforced despite weakened consumer bargaining power. Primarily due to reputational immunity and asymmetric information in the niche market, the lack of protection to consumer’s privacy goes unseen. At this point, with such a huge booming population’s ease of access to the internet and social media, the intervention of the government is absolutely necessary. We need a solid regulatory framework with consequences rather than depending merely on policy. The risk averted directly on the consumers must be removed and companies should be held accountable and punished when not aligned with the privacy needs of the users.

Consumers should have full control over the usage of their data instead of garb in the name of Privacy Policy or Terms of Use Policy. There should be a system in place providing the user to opt for payment of cash or allow usage of their private information to avail the service interested in. Hiding behind the legalese of agreements by the companies will not sustain in the long run. The sooner a robust system is established for users the better it is.

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Appendix vs. addendum : here’s what you need to know

By

Abanti Bose

-

August 21, 2021

0

This article is written by Kshitij Pandey, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from Lawsikho.

Table of Contents

Introduction

Addendum and appendix both are attached to the main document. As a general principle, the use of one term in place of another to refer to an attachment with a document, report or contract is governed by convention, and mainly, depends upon the context of the agreement. The significance and effect of an attachment and the specific label may be dealt with by defining the terms and referring to the attachments in the main document/report/contract. In a legal contract, generally, multiple attachments are enclosed with the main contract. In most cases, these attachments do not alter the original/main contract document. These attachments may be termed as schedule, exhibit, annex, supplement, appendix. Out of these different attachments, the appendix is used as an integral part of the contract and effectively it may have critical information, which improves legitimacy to the contract. Addenda and amendments to contracts are also supplementary documents, which are many times used to add critical conditions related to the performance of the contract. An addendum is a general practice to include additional provisions in a contract. Different attachments like appendix and addendum are used in contract documents depending upon different states of affairs. In contract management, these attachments have a vital role while interpreting the contracts.

What is an appendix?

An appendix is derived from the Latin term, “appendere” meaning “hang upon”. According to Black’s Law Dictionary, an appendix is “a supplementary document attached to the end of writing. Thus, an appendix is a supplementary material, which is attached at the end of contracts. It is part of the agreement to supplement the content of the main document. Besides providing additional material, it may have vital importance, in some cases, for enhancing the validity of a legal document by explaining in detail certain phrases, or terms or conditions.

In general terms, an appendix is more closely associated, with the main document, as compared to other supplementary documents like annexes. Thus, an appendix may not have much independent value. Though, the appendix certainly augments the information to the main legal document by adding important details like old reference cases, maps, diagrams etc. it is seldom referred to as a separate document, having an independent identity in itself.

The appendix supplements the body of a document, providing detailed information, which everyone may not want to read except to delve into the details of information placed in the main document in brief for the sake of brevity. It contains the information, which may not be prudent to be put in the main document. However, its references are given in the main document. An appendix is also used to expand the knowledge of the main text by furthering the information provided in the main documents. Hence, the information which is not very much relevant to the main finding, but it backs the analysis, validates generalizations and strengthens the point, is covered in the appendix. Appendices, generally, are statistical, historical or technical. These are added to the contract and usually referenced in the contract. Readers may refer to the appendix for additional information or clarification. For example, in a contract, if some provision refers to a decision taken in a meeting among stakeholders then the exact decision may be part of the main document and details of deliberations in the meeting may become an appendix. If a reader of the contract wants to know further details of deliberations in a particular meeting, he /she can refer to the appendix.

Appendix to the contract may also be used to define certain terms or make a term clearer with elaboration. Generally, the appendix does not add any new obligations or terms to the contract. But, at the same time, it may be an important attachment that is critical to the validity of the agreement. For example, if a term is used in a contract agreement, which is not generic in nature and for its definition appendix is referred. Then appendix may be critical for interpretation of that term and concerned clause of the contract.

Generally, any kind of information, which is relevant and directly related to the subject can be put in the appendix, but it should have proper references in the main document. The following points should be considered while attaching an appendix to the document:

It should be labelled with a number or letter.
It should be listed on the index page, under the head Appendix.
It must be referred with their respective number or letter, at the appropriate place in the main document.
Each appendix should start on a new page.

What is an addendum?

An addendum is derived from the Latin term “addere”, which means “that which is to be added.” An addendum is defined in the Oxford dictionary as “an item of additional material added at the end of a book or other publication.” As per Black’s Law Dictionary addendum is “Something to be added, esp. to a document; a supplement.” Thus, strictly as per definitions, the addendum is meant to add something to a document, but the purpose is not specifically defined. Generally, an addendum is an addition to a contract or document, which is used to add or change or cancel certain portions of a contract. It may be added at any time after writing the document or entering into the agreement with legal validity akin to the main agreement. It may be considered as an additional contract.

An addendum is used to add additional terms and conditions to an existing agreement. Since it is an addition to the contract, it is governed by the original contract. It is used to capture additional provisions, agreed by both the parties in the contract, which could not be included in the original agreement.

Depending on usage, an addendum may not be considered as part of the definitive agreement. However, a definitive agreement can refer to addendums as placeholders for future information. For example, a service agreement may use addendums in the form of work orders for new projects. In such a case the main document may contain the general terms and conditions of the agreement, with a provision for the addition of the terms and conditions as well as details of each new project to the main agreement as addendums. In some cases, the main agreement may include a modal work order as an exhibit. Then, the parties would use this exhibit as the standard form for each work order for attaching an addendum in the future. Addendums are normally, preferable to amendments, which are usually more complicated to draft because due to the likelihood of substantive modification in the terms of the original contract.

An addendum may also be used to include extra information received after writing a report or contract. It is also used to add an additional layer of alternative obligations for different kinds of legal relationships. An addendum is added to a previously existing written document. Generally, it is a more detailed explanation of something that is already mentioned in a contract or a change to the contract or an additional term and conditions or a new layer of information.

An addendum must be signed by all the parties of the contract and it should be in the form of a separate legally valid agreement that is attached to the original contract. For example, a house rent agreement may have several addenda with additional terms and conditions with passage of time from the house owner for additional facilities for a specified enhancement in rent amount or addendum for renewal of the contract after expiry of the original period. A sale contract may be amended by using an addendum for changing the terms of payment, designating the manner and location for delivery of goods, or delineating additional services to be provided by the seller.

Difference between addendum and appendix

Addendum and Appendix are used to supplement the main contract but they contain different kinds of information and serve different purposes. The main difference between addendum and appendix are given in the table:

BASIS FOR COMPARISON	ADDENDUM	APPENDIX
Meaning	An addendum is a set of legal documents, which are added at the end of the contract or report, to add or amend the information given in the main document.	An appendix is an additional information to the contract or Report, that contains information that is too detailed and not so important to be put in the main document.
Standalone document	Maybe a legally valid standalone document	No separate identity, only to supplement the main document.
Content	New information relevant to the main document.	additional details.
Purpose	To correct or amend or update something in the original document.	To provide extra information that might not interest every reader. It is only for supporting the main document.
Effect on Main / Original Document	Can amend the main document with new content	Does not materially change the terms of the original /main document.
Time	Generally added the content, after some period from the preparation of the original document, which was not available or considered at the time of writing the main document	Generally added at the time of preparation of the main document in the form of graphs, raw data, tables, maps, elaboration of terms or conditions etc.
Validity	Generally, legally valid document and is an integral part of the document	Generally no substantial legal value

Conclusion

Addendum and appendix both are additions required to be made to the main document during its writing or subsequent to it, depending upon usage. These attachments have different purposes, as per context, to provide additional information or to add additional terms and conditions. While the appendix gives extra information and may not have much relevance as far as the legal validity of the contract is concerned, the addendum is used to put additional provisions in the existing contract or even to alter the existing provisions, which have legal consequences.

References

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

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Third-party clauses in a contract

By

Abanti Bose

-

August 21, 2021

0

This article is written by Satendra Pratap Singh, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from Lawsikho.

Table of Contents

Introduction

The case for establishing a contract for the benefit of a third party is simple and straightforward. The basic principle of following the footprints of the intentions of the parties to the contract is highly desirable from the adjudicators. The general principle standing from centuries is that there should not be any burden imposed on the third parties. Among various principles of contract, one such principle is the Doctrine of Privity which laid down that a contract does not confer rights on someone who is not a party to a contract. However, one question which has troubled many eminent jurists since the 16th and 17th century is, “whether or not a third party enforced a contract that benefited him?”

Until the mid-19th century, there was no clarity on this question and the position had to be clarified in the case of Tweddle v. Atkinson where only the party to the case who had provided consideration could sue on it. The same principle was later acknowledged in various cases like Gandy v. Gandy and Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge and co. Ltd. The courts of equity wanted to mitigate the hardships by applying the doctrine of consideration trust but the device failed as the judges wanted the strict application of fiction. In India there had been a conflict of judicial opinion however the preponderance view is that the English doctrine of privity applies in India notwithstanding Section 2 (d) of the Indian Contract Act, 1872 which lays down that consideration must proceed from the promisee, in conformity with the English rule.

Exceptions to the Doctrine of Privity

It is well accepted by various legal jurisdictions across the globe including India that strict adherence to the Doctrine of Privity is bound to cause hardships. However, the present state of the law in India is quite certain and the particular exceptions formulated by the laws and statutes do not cover all the problems and thus enhance the bewilderment of the laymen. As observed by the U.K. Law Commission report (1996) various topics like trusts of the promise, covenants concerning land, Tort of Negligence, Agency Assignment, collateral contracts, etc. are some exceptions to the Doctrine of Privity.

What is a subcontract clause?

A subcontract is a contract between a firm (the original party who is employed to do a job) and a firm (a third party who agrees to do part of a job). The general law allows the original parties to subcontract out or delegate- services that are contracted to supply to its customers without taking prior consent from the other party. However, subcontracting out any work would not enable the original party to pass- on the liability to the subcontractor or third party. In the event of shoddy work or any incompetency done by the subcontractor or third party, the liability would be on the original party and the client or customer can claim damages from him for a breach of contract. However, it is important to note that the original party can sue the subcontractor or third party for substandard work depending on the terms of the contract for the subcontract. Generally, customers require the service providers not to subcontract out any work without their prior consent and make sure to insert a subcontracting clause as per their business needs. One such example of such clause is;

“The service provider shall not without the prior written consent of the client subcontract any of the services to be supplied by the service provider to the client.”

Also, a better way of dealing with this clause is by listing out activities in an exhibit that cannot be subcontracted and the terms required to be fulfilled to engage any subcontractor like years of experience, reputation, area of specialization, etc.

What is an assignment clause?

‘Assignment’ means a transfer of contractual rights or liability by a party to the contract to a stranger who is not a party to the contract. Under Section 37 of the Indian Contract Act, 1872 the parties to a contract can dispense with a performance by way of assignment. As per Indian law, any type of contract can be assigned if it has consent from the party at risk. However, if two parties have entered into a contract relying on the personal skills of the promisor then the said type of contract cannot be assigned. Also, there are few more exceptions of assignment like a contract of personal nature, incapable of assignment under law or terms of the agreement. Hence it is highly recommended to state the intent in the contract expressly with due care and caution to avoid adverse consequences.

The general principle in contracts that “an obligation cannot be transferred to the third party without his consent” affects the Assignment clause the most. “As a rule, obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is a novation resulting in a substitution of liabilities”. Assignment of contractual rights or benefits arising out of a contract is a very important tool available with the lenders to secure its rights against the borrower. Assignment of contractual rights or benefits arising out of the contract is the most important tool available with the lenders to secure its rights against the borrowers.

Collateral contracts

Collateral contracts are contracts that are in addition to the original or main contract. They are an exception to the Parol Evidence Rule which says that anything other than the words are written in the contract can not affect the terms of the contract. Any extrinsic evidence will not have any value unless it is written and it was agreed between the parties that the contract shall never be in one place and was never intended to be completely written. To prove an oral statement to be a part of an oral contract, the plaintiff must prove that the said statement was promissory and was not an opinion or an informal statement. An example of a Collateral Contract clause:

“Collateral Agreement means any separate agreement between Borrower and Lender and any other party (if applicable) for the establishment of any other fund, reserve or account related to the Mortgage Loan or the Mortgaged Property.”

When is the Himalaya clause inserted?

A Himalaya clause is inserted to benefit the parties who are strangers to the contract mostly in contracts of the carriage like bills of lading. The intention is to exempt the servants, agents, and independent contractors as far as possible from any possible liability from the parties like the shipper, consignee, or holder of the bill of lading. The idea is to put an obligation on the other parties not to sue the agent, servant, subcontractor of the contractual carrier, etc. employed for the performance of the original contract. The example of a Himalaya clause is

“It is hereby agreed that under no circumstances the merchant shall undertake any allegation or claim against any servant, agent, subcontractor whether arising in tort, bailment or contract of carriage.”

Conclusion

It is very important to express the intentions of the parties to the contract in case of third-party rights or else it might lead to huge loss to the party because allowing third party rights in a contract expands the horizons of risks as anyone benefiting from the clauses can sue the contracting parties. The drafting of third-party clauses requires precise skills to grant rights (as opposed to excluding them). It also depends on the rights to be granted, to whom they’re to be granted and limitations attached thereto. It is open to the contracting parties to grant narrow or wide rights to third parties or to eliminate them altogether. The latter approach is generally found in the standard form of contracts. In 1996, the Law Commission of the U.K. published its report “Privity of Contract: Contracts for the Benefit of Third Parties” and annexed a draft Bill, subsequently being passed by the House of Lords in 1999. There has been a wave of clarity in the said topic of law as various nitty-gritty has been solved by the codified provisions of the Act. There are two ways as per Section 1 of the amendment Act by which third party rights can be granted firstly it expressly provides and secondly if a term of the contract purports to confer a benefit on the third party. The provision for identification of the third party is highly applauded as it helps to eliminate uncertainty and risk extraordinarily. Also, the third party is entitled to any possible remedy that would have been available in case of breach of contracts like suit for damages, injunction, or specific performance.

Under the new Act, the third parties are not kept safe from potential legislation by exclusion or limitation clauses. As per Section 3(6), any third party can take benefit of any clause only if he could have done so if he were a party to the contract. In India, there is a need for such an amendment to avoid ambiguity and bring certainty in contract-related disputes. Although the Law Commission of India has recommended the government from its report twice that they completely agree with the changes proposed by the Law Commission of the U.K. in 1996 still there is no movement as of now but the judiciary has time and again alarmed the legislature for such need in the current market and hopefully, there shall be a green signal soon.

References

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

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The do’s and don’ts of non-disclosure agreements

By

Abanti Bose

-

August 21, 2021

0

shutterstock_1191044014-1 — Image Source: https://rb.gy/ab5zyz

This article is written by Laasya Swaraj, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.

Table of Contents

Introduction

A non-disclosure agreement (NDA) is also called the confidentiality agreement or the secrecy agreement is a legally binding contract that establishes a legal relationship between two parties, in which one party discloses confidential information and the other receives the information usually in the course of business negotiations or proprietary information. The NDA should generally apply to information that is not already in the “public domain”.

The Indian Contract Act, 1872 governs this type of agreement related matter in India. And According to this Act, a non-disclosure agreement is a legally binding contract. And it is valid the Agreement is stamped.

NDA can be mutual or unilateral, where the party giving information is known as the “disclosing party” whereas the party who is receiving the information is known as the “ receiving party”.

NDA can also include security policies, long-term protection of the party’s intellectual property assets.

A party entering into a non-disclosure agreement (hereinafter referred to as the NDA) agrees to the confidential information. Its access will not be made available in a way that it would not otherwise have been permitted. This is because such unauthorized disclosure may expose the disclosing party to a great risk such as serious legal consequences and termination or litigation.

For instance, in the case of employing people in a particular firm, the firm will present the non-disclosure agreement, solely for protecting the firm from any abrupt disagreements that may arise between the employee and the firm. If the employee fails to adhere to such an agreement it can have serious legal implications and may result in termination or a lawsuit in a few cases. They can even sue for monetary damages.

Necessities of a non-disclosure agreement

Non-disclosure agreement is considered as one of the valuable tools for business whether it may be a startup or a big Firm. It is an ounce of prevention taken by the parties in business who are negotiating terms in order to reduce future disputes between the parties. Notwithstanding that a definite contract is made between parties or not, the parties shall enter into an NDA in order to protect confidential or sensitive information.

The NDAs are used for multiple purposes as it is used by investors, creditors, clients, partners, contractors etc. It is used by them to prevent business-sensitive information from becoming public knowledge. This is a positive step taken by the parties which reassure that they both are on the same page with the confidential information being protected.

In the absence of the NDA, the confidential information is more likely to be disclosed without either party’s permission and may lose the opportunity to patent the party’s invention or maintain information as the party’s trade secret. In addition to spending all the money the party can make on intellectual property, the specific party will be losing all the time and money that went into the development.

NDA is considered as a centre around some piece of intellectual property, such as proprietary information, inventions, designs, trade secrets, confidential documents etc. In addition to this, it legally protects the property rights of the business party and prevents the recipient from disclosing confidential information.

Even if the NDA is breached, the party will face legal penalties. When there is a dispute between the two parties, the parties can contact their alternative dispute resolution mechanism at any point in time, and the aggrieved party can claim the damages for such breach of the agreement.

Entering into an NDA is the most appropriate option that one could consider while negotiating terms before discussing partnership or merger etc. Therefore, it is necessary to enter into a non-disclosure agreement as the intentions of both parties are written ahead of time often greatly reduces the time for courts to make a ruling in many cases. Hence, here are some guidelines to follow before you sign or engage in an NDA.

The do’s of a non-disclosure agreement

Prior to entering into an agreement, the parties must ascertain if there is any information that is of a particular nature that will not be disclosed to the other party, nonetheless an NDA.
The details and address i.e., the identification of both the parties have to be clearly known and mentioned in the NDA.
Before entering into an NDA, the parties should be clear about what information can and cannot or what information should be protected should be disclosed to third parties.
It is important to cover what is important to the protection of your business and define it in the NDA. This is one of the most effective steps while drafting an NDA.
One should remember that the parties can always enter into a NEW agreement in case of additional information which needs to be disclosed.
The disclosing and the receiving party should take into account the distinction between oral and written disclosures.
When it comes to the term of the NDA, the parties must consider the term depending upon the nature of the information which is being exchanged.
As a part of an NDA, oral communications concerning “confidential information” should also be included.
If it is an NDA for a start-up company, make sure this agreement outlines how and where the startup can exercise its right of recovery.
The language used while drafting an NDA must be in simple terms, neat and short with proper labelling which will protect the eyes of the readers.
Finally, it is very crucial to have an executed copy signed by the receiving party.

The don’ts non-disclosure agreement

The parties have to be specific about confidential information but defining everything “CONFIDENTIAL” is being too specific which can be problematic for both parties in the future.

For example, in the case of Lasership, Inc. v. Watson, Lasership sued former employee, Belinda Watson, and Watson’s current employer for violating the non-compete, non-solicitation and confidentiality provisions in the contract between Lasership and Watson.

In this case, Ms Watson worked as a dispatcher. The Virginia court ruled that the NDA was unenforceable because the terms that prevent employees from sharing employer information are too broad; they cover non-confidential information and require these rules to apply for the rest of your life. To avoid such circumstances, one needs to carefully provide a context for the agreements and their terms. The less that is disclosed, the less amount can be stolen from you or disclosed by the recipient in the violation of the NDA.

2. Naming the wrong party on the NDA can result in detrimental consequences as few companies have different legal and trading names. Even spelling the name wrongly can lead to appalling situations.

3. The confidential information which is already known by the receiving party or in the public domain shall not be included in the NDA, as the essence of an NDA is to keep certain information “Confidential”.

In case, if the receiving party has not leaked the information in the public domain, the so-called confidential information becomes public knowledge, that same information would no longer be called confidential.

4. The information disclosed by the parties shouldn’t be communicated prior to the recipient or receiving party officially signs the confidential information before the NDA.

In case, if the disclosing party shares the information, then there is a chance that the receiving party could argue that the recipient did not accept the confidentiality of any disclosed information.

5. The disclosing party shall not agree to any provision that permits the receiving party to use the information which is not marked. “Confidential” as it is considered to be non-confidential and therefore, unprotected.

6. The parties shall not sign any agreement which assigns any of their company’s rights beyond the rights to evaluate the confidential information.

7. Applying bad jurisdiction is not meant for the type of agreement and the parties. This may invalidate the NDA as well as not easily enforce the agreement.

8. A major mistake when drafting the agreement is to not provide proper guidance in the event of a compelled disclosure.

Compelled disclosure is when a party is compelled by the legal procedure to disclose confidential information to the extent required by any applicable law. In such cases, the party should send a notice to the recipient about the disclosure of the confidential information before it becomes public knowledge.

For instance, if there is a dispute between the parties where the court is involved, the court orders the right to disclose the confidential information for the receiving party in the public domain, then the compelled disclosure can nullify the protection of an NDA.

9. Information provided by the third party to the receiving party, where the receiving party received it not by the disclosure but through an independent third party or supplier involvement. In such cases, NDA drafted can be invalidated.

In case, the receiving party had got the information independently on his/her own, then the receiving party cannot claim interest over that piece of confidential information.

Conclusion

NDA has become the most effective tool for an individual or an organization to protect its powerful confidential information or trade secrets which are actual reasons for the survival of the business. It can also be named as a contract of silence because the parties entering into the NDA shall not disclose any information whether it may be trade secrets of their business or anything else regarding business matters. Information is not a trade secret if it is not confidential. In India, The use of this particular agreement has significantly grown through the years. The laws of this shall be improvised and should have a new era of protection as most of the NDAs do not hold up in court as the information learnt independently can be proved but the information from a third party or an unknown cannot be protected as there will be no proper evidence in the court.

References

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

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

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The widening nature of the plastic waste management rules through the lenses of the National Green Tribunal (NGT)

By

Diva Rai

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August 20, 2021

0

370220-ngt-national-green-tribunal-3 — Image source - https://bit.ly/3yeuvGN

The article is written by Nikhil Thakur, a student of Manav Rachna University. In this article, the author has attempted to explain in detail the widening nature of the plastic waste management rules from the perspective of the National Green Tribunal (NGT).

Table of Contents

Introduction

In India, the increase in urbanisation, industrialization, and economic growth has led to the expansion of plastic waste and has become a major conundrum. The augment in the contemporary population and the requirement for a standard of living has further intensified the situation. To tackle the increment in plastic waste and ensure proper management of plastic waste in India, the Ministry of Environment, Forest and Climate Change (MoEF&CC) notified the rules concerning plastic waste management in the year 2011 which was further reconstructed in the year 2016.

Following the order 4/12/2019, the National Green Tribunal (NGT) has directed each state to have at least one district as a model that complies with the plastic waste management rules.

Provisions of plastic waste management

There are a few provisions when environmental compensation is levied for non-compliance with the rules enshrined under the Plastic Waste Management:

Rule 4(c) encourages the carrying of virgin or recycled plastic and prohibits the use of plastic whose thickness is less than 50 microns.
Rule 4(d) also prohibits the use of plastic, the thickness of which is less than 50 micron level for packaging and wrapping purposes, unless the use of such plastic impairs the functionality of the product.
Rule 4(e) states that the unauthorized or unregistered plastic manufacturer shall not sell plastic varieties as raw material to any producer.
Rule 4(f) states that the packaging of gutkha, tobacco, and pan masala shall not be made of plastic and the sachets that are made of plastic shall not be used for the purpose of storing.
Rule 4(h) promotes the use of compostable or recycled plastic having an Indian standard tag. Further, the seller or manufacturer of the compostable plastics shall be certified by the Central Pollution Control Board (CPCB).
Rule 4(i) prohibits the use of plastic in any form for packaging of gutkha, pan masala and tobacco in all forms. It further prohibits the use of Vinyl Acetate, Maleic Acid, Vinyl Chloride and Copolymer for packaging.
Rule 6(1) and 7 directs every local body to establish infrastructure for collecting, storing, transporting, disposing of, etc. of plastic waste.
Rule 6(2)(g) and 7(c) explicitly prohibit the open burning of plastic.
Rule 8(1)(a) recommends the waste generator to lower the generation of plastic waste as far as possible and also separate plastic waste at the source.
Rule 8(1)(b) directs the waste generator to avoid littering of plastic waste.
Rule 9(2) states that the producers, importers and brand owners shall be responsible for the collection of multi-layered plastic sachets because they are the ones who have introduced the same in the market. The prime objective of this rule is to collect the plastic waste generated at the source.
Rule 13(1) and 13(2) prohibits any person from operating manufacturing of carrying bags, recycled bags and multi-layered plastic, if no registration has been granted by the State Pollution Control Board (SPCB) or the Pollution Control Committee (PCC) of the Union Territory.

Moreover, for renewal of registration, the producer shall fill the Form I and shall submit it to the State Pollution Control Board (SPCB) or the Pollution Control Committee of the Union Territory in case the producer is operating in only one state or Union Territory. If in case, the operation is executed in more than 2 states or Union Territories, then the form shall be submitted to the Central Pollution Control Board (CPCB).

Rule 13(3) directs every person who is recycling or processing the plastic waste to fabricate an application and submit it to the State Pollution Control Board (SPCB) or the Pollution Control Committee for approval of registration under Form II.
Rule 13(4) states that every manufacturer of the plastic that is used as raw material by the producer shall make an application for registration or renewal of registration under Form III before the State Pollution Control Board (SPCB) or the Pollution Control Committee.
Rule 14(1) directs and prohibits the use and selling of plastic bags by retailers, shopkeepers and street vendors that are not labelled as per Indian standards.

Assessment of Environment Compensation (EC)

The Environment Compensation for infringing or violating the rules enshrined under the Plastic Waste Management is based on:

Plastic waste management cost

Any cost incurred because of the management of plastic waste is determined through the information rendered by the numerous local bodies. The cost incurred while managing the plastic waste is categorised into the following:

Collection and transportation

The standard cost that is incurred while collecting and transporting solid waste is ₹ 2000 per/ton of waste.

Material recovery facility

The standard cost for establishing a material recovery facility of 100 TPD (Total Plastic Debris) plastic is ₹7 crore, hence establishing a material recovery facility of 1 TPD plastic is ₹7 Lakhs.

Refuse Derived Fuel facility

Refuse Derived Fuel (RDF) is a fuel that is extracted from waste like commercial waste, municipal solid waste and industrial waste. The standard cost of establishing an RDF facility is ₹ 12.5 crore and hence establishing an RDF facility of 1 TPD is ₹ 12.5 lakhs.

The operation cost of the RDF facility

The operational cost of the RDF facility is ₹ 1200/ ton while the transportation cost is ₹ 300/ plastic waste.

Section 15(1) of the Environment (Protection) Act, 1986

The said Section imposes a penalty of imprisonment that is extendable up to five years along with the fine that is extendable up to ₹ 1 lakh for infringing or violating the provisions of the Environment (Protection) Act, 1986.

If the violation is continuous, in such a case additional fine may be levied that is extendable up to ₹ 5000 for every day of such continuation.

Penal action against the violation of Plastic Waste Management Rules

The author has enumerated four states/ UTs along with the penal actions that are taken for the violation of the provisions or rules enshrined under Plastic Waste Management:

Delhi

In Delhi, the penalty for carrying plastic bags that are having a thickness of fewer than 50 microns is ₹ 50,000/ unit. While the penalty for burning plastic in an open area is also ₹ 50,000/ unit.

Punjab

In Punjab, a show-cause notice is issued in case the registration was not obtained and still the operation is carried on. Similarly, a show-cause notice is issued, if no action plan has been received in compliance with the Environmental Protection Act, 1986. Further, if anyone is found carrying a plastic bag having a thickness below the standard shall be imposed with a fine (fine depends upon the number of units used).

Puducherry

In Puducherry, if any manufacturer is found to have been producing plastic bags having a thickness less than 50 microns shall be liable to the closure of the business. A similar penalty is imposed in case the recycling of plastic is not in conformity with the local areas. If anyone is found to be in possession of banned plastic, he/she shall be liable for the seizure of that plastic.

Andaman and Nicobar

Appropriate penalties and fines are imposed on the basis of the number of units of plastic bags found and sold that are having a thickness of more than 50 microns.

Orders

In the case of Jitender Yadav v. Union of India & Others (2016), the National Green Tribunal issued a direction that the Central Pollution Control Board (CPCB) is empowered to prescribe down the compensation regime against the polluter pay principle through the appointment of an experts committee.

The Hon’ble National Green Tribunal in Central Pollution Control Board v. State of Andaman & Nicobar & Ors. (2017), vide order dated 4/12/2019, issued few important directions concerning Plastic Waste Management Rules, 2016 and upheld the order passed by the Central Pollution Control Board (CPCB) concerning the execution of thickness standards for plastic bags, prohibiting and curbing the littering of plastic waste, submitting annual report along with action plan, etc.

Further, NGT accepted the fact that the states have fizzled to provide information and even failed to take preventive action and regulatory measures as enshrined under the Plastic Waste Management (PWM) Rules. NGT observed that though the ban was imposed on using plastic bags, there was no enforcement procedure that makes such a ban useless. Besides this, the burning of plastic and its littering across the railway tracks and on streets is still a common practice.

NGT took corrective measures by directing the states and Union Territories to comply with the Plastic Waste Management Rules, 2016. Along with this, it further directs the states to furnish all the reports as asked. Moreover, the NGT imposed a fine of ₹1 crore upon the infringing state for not complying with the PWM Rules, 2016.

In the instant case, the NGT summarised its observation or ordered:

That national framework for extended producer liability shall be concluded and implemented within a three month time period.
That the Central Pollution Control Board (CPCB) shall furnish its compensation report as soon as possible.
That the states and the Union Territories shall adopt the action plan as soon as possible and provide information to CPCB as per the recommendation of CPCB itself.
NGT emphasised the establishment of an institutional mechanism that may ensure:

That no unauthorized or unregistered plastic manufacturing or recycling units are in function.
That no manufacturing unit shall be in operation without in conformity with the local area.
That no plastic bags having more than 50 microns thickness shall be manufactured, sold, bought, etc.
That there shall be proper regulation upon the use of thermocol, polystyrene cups, plates.
That there shall be the establishment of a special environment squad that may look after the littering and waste spread of plastic in the city, town and the state.
That the states and the Union Territories shall in cumulative format submit a compliance report to the Central Pollution Control Board (CPCB) on a quarterly basis. Further, CPCB shall compile those documents and submit them before the NGT.

Recommendations from the Central Pollution Control Board

The Central Pollution Control Board directed the State Pollution Control Board to submit the annual report and action plan in compliance with the Plastic Waste Management Rules, 2016.
The Central Pollution Control Board directed the State Pollution Control Board to direct the Urban Development Department (UDD) to establish a mechanism for collecting, segregating and disposing of the plastic waste.
The Central Pollution Control Board directed the State Pollution Control Board to furnish all the information related to the method utilized in disposing of the plastic waste.
The Central Pollution Control Board directed the State Pollution Control Board to ensure that no unauthorized plastic manufacturing and recycling units are under function.
Further, it was directed to stop the manufacturing and distribution of plastic films having a thickness of more than 50 microns.
The Central Pollution Control Board directed the State Pollution Control Board and Urban Development Department to encourage the use of compostable carry bags that are certified by the CPCB.
The Central Pollution Control Board directed the State Pollution Control Board and municipalities to ensure no illicit manufacturing of plastic is under operation.
The Central Pollution Control Board directed the State Pollution Control Board and Urban Development Department to make sure that plastic littering is prohibited near the public, religious, drains, river and sea beaches.
Further, there shall be no burning of plastic waste.

Conclusion

In India, the issue of littering and unauthorized manufacturing, selling and distributing of plastic bags having a thickness of fewer than 50 microns is common. Besides having stringent laws in this regard, still, the states and Union Territories have miserably failed because of the lack of an appropriate enforcement mechanism.

Despite all the odds, the National Green Tribunal (NGT) has taken proactive measures in curbing the said practice and clear its stand on plastic waste in the case of Central Pollution Control Board v. State of Andaman & Nicobar & Ors. (2017), and even ordered and directed the appropriate authorities to take appropriate action to control the spread of plastic waste.