Farmer’s Act of 2020 : a hard realism of Human Rights

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August 18, 2021

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This article is written by Manasvee Malviya, from the University of Petroleum and Energy Studies, Dehradun. This article exhaustively deals with the Farmers’ act 2020 along with the need for implementation and the controversy involved.

Table of Contents

Introduction

In September 2020, the President of India assented to a long-overdue reform in the agricultural sector, that enacted two new laws, first, the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and second, Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 and the government amended the Essential Commodities (Amendment) Act 2020. The reforms in the agricultural sector have been pending for a long time, but the changes made by the government have garnered criticism and controversy. Due to the changes, farmers have been dissenting across the country.

The new Acts have been eminent as historic and path-breaking movements in the agricultural reforms in the country. The Acts are implemented for the benefit of the farmers, yet they protested against the farm bills (Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill 2020, Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill 2020, and the Essential Commodities (Amendment) Bill 2020).

Detailed analysis of the Farmer’s Act of 2020

History

India has been an agrarian economy. After independence, the agricultural sector faced many challenges, and it required reformative actions. Initially, the farmers used to sell their produce directly to the consumer. During independence, the zamindari system was prevalent, farmers used to take loans from zamindars or from money lenders to buy seeds, fertilizers, and other things required to do farming. Zamindars and the moneylenders used to charge a high- interest rate on the amount borrowed as a result, the farmers couldn’t pay the principal amount along with the high interest. To get the money back, the zamindars or the money lenders would buy all the produce; the farmers were paid very little and had no bargaining power as they were already in debt. This cycle continues again as they have to buy things to sow their fields and require money. Thus, it is an exploitative process.

From the 1950s onwards, the government focused on the agricultural sector, and priority was given in a five-year plan. Also, the government focused on helping farmers and protecting them from exploitative middlemen. In 1955, the Essential Commodity Act was passed to protect the consumers from exploitative traders/middlemen and to ensure the availability of essential goods to the consumers, therefore, the Act provided provisions regarding the production, distribution, and pricing of the essential commodities.

At the time of the green revolution in India, in the 1960s-1970s, the government enacted Agriculture Produce Market Regulation (APMR) Act. The Act established a well-organised market or mandis across India, where agricultural marketing would occur at a regulated price. These mandis were controlled by the Agricultural Produce Market Committee (APMC).

Around the same time, an American agriculturist- Dr. Frank W Parker ( adviser ) advised the Ministry of Food and Agriculture of the disadvantages faced by the farmers due to the low selling prices of the crops. To address this problem Minimum Support Price (MSP) for crops was implemented by the Minister of Food and Agriculture- C. Subramaniam. To ensure a strong foundation of MSP, Mr. Subramaniam introduced two major institutions, first, Commission for Agricultural Costs and Prices, with the responsibility to perform detailed analysis on cultivation costs and set up MSP and second, the Food Corporation of India (FCI), with the responsibility of procuring grains from farmers in the mandis established by AMPCs for the government.

These two institutions over the period have empowered the farmers to increase their agricultural produce and encouraged them to invest in modern and efficient agricultural methods. The existence of these institutions has protected the farmers, but the middlemen have found a way to exploit them.

The problem of agricultural stagnation is not only restricted to the APMC shortcomings but also after the 15-20 years of the green revolution, the objective of the International Monetary Fund and World Bank shifted from agriculture to industry. Due to the global perception that the economy can grow only with the growth of industrial sectors, the focus was shifted. Rather than developing small-scale agriculture, the produce was shifted to a highly subsidised rate from developed to developing countries. Thus, the farmers began to face the problems- limited income, huge debts, limited yields, etc.

Objectives

The Farmers Act 2020 was introduced to make structural changes in the existing rules and regulations. The idea behind introducing the law was to provide freedom of choice to the farmers and encourage corporate investments in the agricultural sector for the benefit of the farmers. The involvement of corporate sectors in the agricultural supply chain will reduce the wastage of the commodity and improve the price stability.

Decoding the three farm policies

The agricultural reforms were long overdue. In June 2020, three ordinances were introduced in the parliament to bring changes in some aspects of the agricultural sector and economy- price assurance, agricultural commodities, farm services, including farm contracts. Also, the Acts reform the agricultural marketing system by removing restrictions of the private stock-holding companies of agricultural produce or creation areas free of middlemen.

Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020

The Act provides a national structure for a farming agreement, that protects and empowers the farmers to engage with agricultural business firms, wholesalers, exporters, or retailers for farm services. Also, for the sale of produce at a mutually agreed fair pricing framework for any matters related to matters thereto. This Act is an improved and simplified version of the Contract Farming Act 2017. Up to date, 20 states have adopted the Contract Framing Act. The 2020 Act, removes the complicated system of smallholdings, the registration, and other provisions regarding contract farming, thus, shifting the balance in favour of farmers.

In India, contract farming has been practised at a limited scale, not on a long-term basis. This practice was instigated in the State of Punjab. In 1998 the State started production on contract farming, facilitated by PepsiCo. Although, the initiative taken by the company and the State was unsuccessful. On the other hand, since 1961 Nestle has been in a successful agreement with farmers in the dairy sector in the Moga district of Punjab. The agreement between the two is similar to the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Service Act. Nestle’s partnership with dairy farmers is a perfect example of success and economic development. Thus, it is evident that contract farming has been beneficial as well as unsuccessful. But, the success stories of contract farming are more than the unsuccessful ones. Thus, contract farming has proven itself to be advantageous for farmers.

This Act sets provisions for an agreement between the farmers and the private buyers (agri-business firms) before the start of production. For the agreement between the farmers and the buyers, the minimum period must be one crop cycle, and the maximum period is set out to be five years unless the production cycle for crops is longer than five years. Further, the agreement must include the method of price determination for the commodities and the final price. And the minimum guaranteed price must be set for crops with varying prices. The Act between the farmers and corporate is restricted to:

A fixed price to be paid as agreed between the farmers and the agri-business firms before the production to the farmers; and
Provide farm services to the farmer, if mutually agreed as per the terms and conditions of the agreement.

The production of the desired quality is undertaken by the farmers and not by the agri-business firms. The role of these firms is only restricted to buying the product at the price which was agreed between them. This Act is much more simple than the contract farming practices, and the provisions of the Act favours the farmers.

The Act has no provisions regarding the leasing out of land for production by the farmers to the firms or the buyers. The firms/ private buyers are prohibited from acquiring the ownership rights or making any kind of modifications to the farmers’ lands. Further, the Act protects the farmers from the long process of legal redressal grievances and the agreements made under the Act provide for dispute resolution through SDM – Sub-Divisional Authority. With an appellate authority as a collector or additional collector. Furthermore, no actions can be initiated against the land of the farmers for any kind of recovery of dues and if the private buyers/ agri-business firm fails to pay the farmer, the penalty provision states a penalty extending to one and half times the amount owed by the firm. If a farmer retracts the agreement then in this case the recovery shall not exceed the actual cost incurred by the buyers or the agri-business firm. Also, power has been given to the state government to make rules in order to carry out the provisions for the purpose of this Act.

The myth is that under contract farming the corporations will direct the farmer and the farmers will not be able to fix prices according to their will. The small farmers will not be able to do contract farming if not financed by the firms. And in case of disputes, the firms will have the say. But the reality is that under contract farming, the farmers have the authority to determine the price for the produce. After entering into an agreement the farmers won’t have to seek out traders, produce will be picked directly from the farm by the purchaser and in case of dispute, a separate redressal mechanism has been set up.

Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020

The Act reduces the interstate barriers and gives freedom to the farmers to sell the farm produce at any place in the country that is within APMC mandis or outside the mandis. It allows the setting up of an electronic platform for the sale-purchase of agricultural produce, thus promoting e-commerce in agriculture. There are provisions under the Act that prescribes modalities for registration of the trader and trade transaction in the trading area. Even if the new system doesn’t work according to the expectations, the government can interfere to regulate the system.

The APMC market’s ineffectiveness has led to the sale of more than half of the marketable surplus outside the mandis. Transactions outside APMC markets lack fairness and transparency as they violate APMC regulations, thus fear being busted by the APMC officials. The new Act legalizes transactions/ dealings outside the mandis, which is favourable for farmers. Also, the Act authorizes direct purchases from farmers at their doorsteps or farms- similar in the case of milk. The farmers will have the freedom to quote prices for their produce. If the State directs such reforms in the right direction, the agricultural procedures can become price dictators rather than remaining price takers.

Day by day the size of farms is getting smaller, the question is how the new Act sets provisions for benefiting the small landholder. If the farmers want to diversify their produce as high-value crops, the farmers need price assurance and a place to sell the small batches of their produce. Fresh fruits and vegetables being a high-value crop don’t mature on the same day, thus, it is harvested in small batches over time. This kind of harvesting requires a collection facility near the farm and sales options. Farm Produce and Trade commerce (FPTC) will facilitate the creation required by the smallholders for diversifications at small farms.

Traditionally, there are six to seven transactions in a supply chain for a product to reach consumers. Each transaction has its cost and margin, hence, a large price gap between procedures and consumers. FPTC compresses the value chains and eliminates all the excessive intermediation. As a result, in certain cases, farmers will be able to sell the produce directly to the consumer. The Act creates opportunities for rural youth in agricultural trading.

The myth is that the Act will stop the procurement of Minimum Support Price (MSP). The reality is that under the Act, the farmers will have the option to sell the produce at MSP along with an opportunity to sell outside the mandis.

Essential Commodities (Amendment) Act, 2020

The Essential Commodities Act has been amended for agriculture and food items. The government has the authority to regulate the production, supply, and distribution of essential goods including pulses, cereals, onions, oils, oilseed, and potatoes. The authority given to the government under this Act can be exercised only under extraordinary circumstances such as war, natural calamities, famine, and extraordinary price rises. The amendment in the Act lays transparent guidelines for imposing and regulating stock limits. The limit is a 100 percent increase in the retail price of horticulture or a 50 percent increase in the retail price of agri-food non-perishable items in the preceding 12 months or the average price of the last 5 years, whichever is less.

The amendment in the Act helps to predict the governments’ action to invoke the Essential Commodities Act based on price triggers. Further, the Act doesn’t diminish the power of the government to intrude in the market for controlling price.

The reason behind the protest

Farmers, political parties, and farm organizations have been protesting against the bill. Organizations such as the All India Kisan Sangharsh Coordination Committee (AIKSCC) and Bhartiya Kisan Union (BKU). The protestors claim that the ordinances are only intended to benefit the corporate sector at the expense of the farmers. All the Acts were opposed by the opposition parties, calling themselves anti-farmers. The farmers protested to gain more opportunities to keep their opinion and to be heard under the new bill since under the old existing system there were hardly any opportunities. Apart from this, the Acts affect the most powerful commission agents in mandis known as arhatiyas in Punjab and Haryana, as they don’t want to lose their hold on the farmers.

The state of Punjab and Haryana is affected the most due to Mandi tax loss- as the main source of revenue for the states. In addition, the Arhatiyas will not only lose their commissions but their traditional companies as well. Further, the concerns raised by the protestors also include the lack of relevance of mandis controlled by APMC, the end of the MSP regime, the risk of losing rights on their land under the framing contract, and the decrease in farm produce due to corporate agri-business dominance.

The need for implementation of the Act

The 1991 policy reforms in India didn’t focus and cover the agricultural sector, due to the perception that development in the industry sector will boost the economy. Nobody felt the need to enhance the agricultural sector. After a few years of implementing the reforms and liberalization, the Indian economy accelerated due to non-agricultural sectors. With the increase in non-agricultural income, the agricultural income in the country remained negative. Thus, the difference between both the incomes caught the attention and the need for reforms in the agricultural sector. This was followed by the liberalization of agricultural trade because of the World Trade Organization agreement and the rising number of suicides by the farmers and agrarian distress in the country.
India is a country that accumulates a large surplus of some commodities and, at the same time, imports immense quantities of edible oils and pulses, thus, the imbalance between the demand and supply in the country. India imports fruits and vegetables, which can be grown in the country. This is because of the poor market facility, logistics, and high risks of return.
Another reason for the need for the Acts is for improving the export competitiveness of Indian agriculture. The declining population growth rate in India has lowered the growth rate in domestic demand for some food groups and aggregate food to a certain extent. Over the coming years, as per the current trend of demand and supply, India is required to sell 20-25% of the incremental agri-food production in overseas markets.
The government either has no or negligible interference in the market related to agricultural segments like horticulture, milk, and fishery. In comparison to the growth rate in cereals, the MSP and other governmental interventions are high.
India is mostly dominated by smallholdings and has small surpluses. Most of the smallholding farmers lack resources and their ability to take the risk for high-value crops. For any farmer, it is not economically viable to take only a few kilos of fruits and vegetables to the market as these mature in lots. In this sector, there must be a collection unit with price assurance so that farmers are encouraged to diversify towards high-value crops. Collection units of vegetables and fruits are based on the idea of milk collection centers.
Although there has been development in the road networks, trade infrastructure, and communication, the agricultural sector is still disintegrated. The agricultural sector is fragmented due to price crashes, shortage, high prices, and between the harvest and lean months. The price difference of produce from a farm to retail shows an unjustified distribution, the reason being low investments in storage and the dominance of local traders in the market.
For accelerating the growth of food processing, as required to meet the rising demand in the market and along with the creation of more jobs in rural areas for the betterment of the rural economy. For fulfilling this, the processor needs raw material of desired quality and at the desired time. In scattered markets, buying raw materials in many different small lots adds to the cost of raw materials. Therefore, it requires a new arrangement between the processors and producers.
Lastly, the farmers are forced to go for remunerative prices through MSP and government procurement due to their disappointment with the existing marketing system in the country. Farmers must be given better options and a competitive environment to get better deals in the open market for their produce.

Why is it a controversial issue

Farmers’ issues

Since independence, the overall condition of the farmers hasn’t improved a lot. According to the 2011 census, farming as the main occupation has decreased from 103 million in 2001 and 110 million in 1991 to 96 million. Over the period the number of smallholding farmers in the country has increased. It is difficult for a farmer who is already poor and in debt to accept the drastic changes in the agricultural system.

The perception farmers have regarding the Act is not positive, they are least interested in the promises done by the government in creating the ecosystem where they enjoy autonomy in selling their produce. The farmers are resistant to any kind of changes in the existing system of minimum selling price and APMC, especially farmers from Punjab and Haryana who exceptionally benefited from the green revolution. Further, the farmers don’t want any kind of intervention in MSP and APMC. Also, they are not clear about the continuation of MSP.

The government has also deregulated its authority on the agricultural market by giving agri-business firms a free hand to deal with. Private corporations are profit-oriented, thus, the farmers fear that coming into an agreement with companies will blind them to unfavourable contracts and they will become helpless. Trading outside APMC will reduce the importance of mandis. Lastly, the farmers raised the issue that throwing agriculture into an open market during the economic crisis will not provide a profitable price to the farm produce.

Issues with corporation

Giving autonomy to corporations to a large extent in agricultural sectors will eventually vanquish APMC mandis. The big corporations could have a monopoly in the agricultural market with very limited government regulation. Due to this the small retailers and small business firms may not get enough opportunities to do trade with the farmers. Hence, the business will be under the corporates and market forces. Although there will be an opportunity for the private buyers to directly contract with the farmers, what if they prefer to enter into an agreement with farmers through a middleman as it will be simple and less effort required, so the problem of middlemen will remain.

Arguments for and against the Act

For the Act

The Agricultural Produce Market Committee (APMC) had criminalized the setting up of other competing markets for the sale/purchase of the agricultural produce, whereas the Farmers’ Produce Trade and Commerce Act will permit farmers to sell the farm produce as per their choice.
The issues related to middlemen under the APMC will now be eliminated as farmers have the choice to sell their produce anywhere according to their choice.
Contract farming will attract more private investment in the agricultural sector, thus, it will help modernize the infrastructure and development of this sector.
The institution of the Farmers’ Act will end the monopoly of APMC and competition to buy farm produce from the private buyers will help farmers to get better and high returns.
The Essential Commodities Amendment Act 2020 will help in stabilizing the prices. For example, if the supply of onion is more than its demand, it can be stored to prevent the price fall. It is resulting in the improvement of storage facilities in the country.

Against the Act

The Act’s validity has been questioned as agriculture and trade are the subject matter of the State, but the states were not consulted before passing the Act.
Contract farming may harm the contract farmers. Most of the farmers are uneducated, they will not be able to evaluate the terms and conditions.
It was feared that the Acts would result in the demolition of APMC mandis which were helpful for the small farmers to make price and production choices. In a way, this bill comes as a disadvantage to small farmers.
The states of Punjab and Haryana will lose a big source of State revenues as the state will not be permitted to levy market fees, rural and development fees, or arhtiya’s commission.

Curbing of Human Rights in light of the Farmer’s Act 2020

The Farmers’ Bill was introduced by the government, which led to protest by the farmers. According to the Universal Declaration of Human Rights, several human rights have been violated Including the right to freedom from torture, the right to speech, and the right to a fair trial. During the time of farmers’ anxiety, the Government of India had violated Articles of the Universal Declaration of Human Rights Act, Universal Resolution of Rights of Peasants and other People Working in Rural Areas, the Constitution of India, and the International Covenant on Civil and Political Rights.

The UN Human Rights during the protest had called for maximum restraint by both government and anxious farmers. Every individual has the right to peaceful assembly and expression, which should be protected. Freedom and expression must be protected both online and offline. It is important to find an equitable solution for human rights. Journalists, actors, and activists have supported and commented on the protest by the farmers, online. Charges of sedition against all the people supporting the protest by the farmers and attempts to restrict freedom of expression on social media have disturbed the essential Human Rights principles.

Conclusion

In India, farmers are heavily indebted, starved of funding and assured price mechanisms. Policy reforms in the agricultural sector have always been a hot topic for debate. The legislation somewhere has accentuated the crisis even further. But, the government of India through these reforms has addressed and created favourable conditions for modern agriculture. The new Acts will be able to match the demand and compete with the global agricultural market. The Bills introduced by the Central Government have faced much criticism and controversies, farmers have protested and have been subjected to a violation of human rights yet the bills managed to pass the threshold and became the Farmers’ Act 2020.

References

https://themanipaljournal.com/2020/10/17/farm-bills-2020-the-history-behind-agricultural-reforms-in-india/

https://niti.gov.in/sites/default/files/2020-11/NewFarmActs2020.pdf

https://www.researchgate.net/publication/344508649_Impact_of_India%27s_New_Farm_Act_2020_on_Farmers_and_Markets

https://themanipaljournal.com/2020/10/17/farm-bills-2020-the-unravelling-of-the-present/

https://www.indiainfoline.com/article/general-blog/farm-bill-2020-5-things-you-must-know-120092300301_1.html

https://timesofindia.indiatimes.com/blogs/economic-update/the-new-farmers-bill-and-its-effects/

https://prsindia.org/billtrack/the-essential-commodities-amendment-bill-2020

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Causes and prevention of illegal wildlife trafficking in India

By

Rachit Garg

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August 18, 2021

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Wildlife_Conservation — Image Source- https://bit.ly/2W14GIS

This article is written by Vanya Verma from Alliance University, Bengaluru. This article talks about the causes of illegal transportation and smuggling of animals and how to stop it. Further, it covers the Indian legal regime to combat illegal wildlife trafficking as well as the ways the UNEP works to address the illegal trade of animals.

Table of Contents

Introduction

We look at how the illegal wildlife trading sector is expanding and growing into a worldwide threat as India prepares to commemorate Wildlife Week from October 2 to October 8. Various attempts have been taken to prevent these illicit traffickers, but most have failed to stop them from murdering an increasing number of species, some of which are on the verge of extinction. Despite many initiatives to increase endangered animal populations, their numbers have been steadily declining. This is a worldwide issue, not simply confined to India. Illegal wildlife trade affects the entire world, including countries with better laws and penalties. The expansion of illegal wildlife trafficking can be linked to a variety of factors, including lenient law and order, high demand in markets, and large profit-making opportunities. But, before we get into the meat of the issue, let’s understand the term ‘wildlife trade’.

Wildlife trade: Legal and Illegal domains

Wildlife trade is the legal practice of transferring animals to conserve and repopulate a species. Legal wildlife trade is common in zoos and national parks. The term has a broad definition and refers to a variety of plants and animals. Illegal wildlife trade, on the other hand, is the illegal practice of exchanging animals and plants for personal gain. Animals are injured and killed for their body parts in the majority of illegal wildlife trading incidents.

In illegal international wildlife trade, 1300 rhinos were killed in South Africa in 2013 as a result of poaching. It is estimated that 95 per cent of elephants have been murdered in the last 100 years, with 33,000 elephants dying each year between 2010 and 2012. Every year, more and more species are added to the endangered species list. Poaching instances have increased in the last two years as the price of such animals has risen.

The following is a list of illegal wildlife trade figures that are poached every year around the world. This is only the registered number; the actual number could be higher.

Species of Animal	Year	Number of Killings by Poachers/ Hunters
Rhinos	2016	1054
Elephants	2013	20000
Dolphins	2016	20000
Minke Whale	2016	340
Tiger	2006-2016	1000
Snow Leopard	2016	460
Seals	2012-2017	1 Million

Causes of illegal wildlife trade

Lack of adequate legislation to prohibit illegal trading

Illegal traders get away with their crimes since there aren’t enough harsh rules to deter them. The consequences for such offences are overly light in comparison to the horrible crimes being perpetrated, as they have not been acknowledged as a priority until lately. In India, fines range from ten thousand rupees to twenty-five thousand rupees, with seven to ten years of imprisonment. However, due to inadequate prosecution, the majority of the poachers are acquitted. The conviction of a poacher for three years was seen as a rare sentence in India, demonstrating how liberal the legislation is. In 2016, the illegal trade business was projected to be worth over $3 billion by the United Nations Environment Programme. The list of statistics on unlawful trading is endless. In Africa, the leniency of the legal system is a concern, with South Africa naming illegal wildlife trade a national priority.

Harvesting exacerbates the problem

The new justification for killing an animal and utilising it for trade is “I didn’t murder the rhino, I harvested it.” Harvesting is the practice of eliminating a species that has become overpopulated, to restore ecological equilibrium. Informal harvesting practises can allow internationally protected wildlife to be unlawfully introduced into commercial streams, according to a report on the international illegal wildlife trade. Killing a species to maintain a natural balance is like consuming large amounts of sugar to raise blood sugar levels despite being diabetic. There is no scientific basis for the argument that hunting is done to protect the environment. Furthermore, the majority of these animals wind up on the black market. Deer harvesting has become a big concern in the United States, with an increasing number of people partaking in deer hunting.

Transferring of Illegal trade items into legal markets

These items wind up in legal markets despite their unlawful beginnings. Although it was often assumed that unlawfully traded wildlife was sold only and completely in black markets, different investigations have found that the majority of illegally trafficked wildlife is marketed in legal markets. As a result, demand rises, resulting in more poaching. Illegal wildlife trade occurs all across the world, not simply where the animals live. According to data on illegal wildlife trading, the United Kingdom is both a transit and a key destination country. The UK Border Force confiscated over 257 items between 2009 and 2014. Around 3000 unlawfully traded commodities were discovered, including rhino horns, tiger products, and ivory.

Offering a huge amount of money

It’s no secret that these illegally sold goods command a high price on European marketplaces, encouraging poachers to keep looking for more cash. This vicious loop of greed has been a constant fuel for the poaching industry, and it is one of the top reasons for poaching. In 2014, the black market price for a full rhino horn was around $60,000 per kilogramme, with some rumors of prices as high as $100,000 per kilogramme.

Undocumented species being lawfully traded

Thousands of undocumented species continue to be sold legally on the international market, despite national regulations. There has been a lot of clarification about which species are endangered. Despite being on the point of extinction, certain species are economically harvested on a massive scale due to a lack of documentation. Fishing for abalone in Africa and whales in the Antarctic, to name a couple of instances. South Africa would be proposing few proposals to update the lists of species subject to restrictive trade regulations, the responsible body stated in a statement to the media. “There are millions of species for which international trade is unregulated, and certain cases examined for this research imply that these species can be legitimately sold globally, even when collected or exported in violation of national law,” the authority stated.

The diverse demand and usage

The wildlife trade is employed in so many different ways, from medicines to carpets and rugs, that it can be difficult to confront it on such a large scale. It is possible to identify and stop one source of illegal trade, but researching thousands of sources is certain to leave some fronts unattended. Despite our country’s strict rules, over 100 million tonnes of fish, 1.5 million live birds, and 440,000 tonnes of medicinal plants have been recorded in trade in only one year. The African subcontinent is the hardest hit, with Asian fauna suffering as a result.

Mongoose hair, rhino horn, snake skins, tiger and leopard claws, bones, skins, whiskers; elephant tusks; deer antlers; shahtoosh shawl; turtle shells; musk pods; bear bile; medicinal plants; timber and caged birds such as parakeets, mynas, munias, etc. are among the products traded illegally in India. The majority of these illegally obtained parts are intended for the international market and do not have a direct market in India.

Illegal breeding at zoos and wildlife parks for the sole purpose of trading is one of the many complex reasons why the illegal trade market is thriving. Various human activities have posed significant hazards to endangered animals throughout the world. However, there has recently been a global awakening in the fight against the illegal wildlife trade.

How to Stop Wildlife Trafficking?

The prohibition of unlawfully traded wildlife

If all governments agree to make national law prohibiting the possession of wildlife traded or harvested illegally, demand will be reduced, and thus the trade will be reduced. For instance, the prohibition on turtle possession has resulted in an increase in the population of turtles in their natural habitat. Many animals have been banned from domestication over the years, with favourable results. The population expansion of peacocks, turtles, and rhinos has been a ray of optimism. We, as responsible citizens, should discourage the possession of animal artifacts in addition to legislation. Poaching would cease if the demand for such products is reduced.

Stringent domestic trade regulations

According to the Environment Protection Act of 1986, anyone who violates environmental protection standards would be sentenced to jail for up to 5 years or a substantial fine of INR 1,00,000 will be imposed or in some situations both. If the accused does not comply with the punishments, a daily fine of INR 5,000 will be imposed. If the offender does not appear after one year, he or she may be sentenced to seven years in jail.

The general notion is that the majority of traded goods end up in other countries, therefore local trade restrictions aren’t much focused upon. Imposing stronger domestic trade regulations could aid in the recovery of endangered animal populations. Kaziranga National Park has given its forest rangers the authority to shoot on sight any poacher who poses harm to the park’s rhino population. Because of such rules, 23 poachers had lost their lives, compared to 17 rhinos in 2015 according to park statistics. As a result of this, poachers have been deterred from smuggling wildlife and animals. Furthermore, the government has designated wildlife places as Animals Sanctuary over time, thereby conserving wildlife under the Environment Protection Act.

Increasing the funding to combat and prosecute illegal poachers

The amount of money available to combat poachers needs to be raised. Technical and financial support needs to be provided to the concerned authorities to improve the criminal justice response to wildlife crimes, particularly the recovery of traded products. Forest rangers in Africa have been outfitted with all of the necessary gear and equipment to prevent poachers from murdering animals. Similar up-gradation has been considered in India, concerning forest rangers. We have already witnessed the benefits of non-profit organisations focused on wildlife conservation, such as the World Wildlife Fund (WWF). The government should also try to support and assist organisations that are committed to preserving the safety of animals.

Empowering the people

Save the Tigers programs have been successful in the past in reducing tiger poaching. Social efforts involving ordinary people, such as these, can help to save endangered species. Poachers in West Bengal are now collaborating with forest officials to prevent additional rhino poaching, which has resulted in a drop in rhino poaching. Authorities have now begun working with local communities to raise awareness to keep poachers at bay. The WWF has been a major proponent of wildlife conservation measures. You can help stop wildlife crime throughout the world by donating to organisations like Save Animals Facing Extinction and the WWF.

Indian legal regime to protect wildlife

According to Article 48-A of the Constitution of India, the state must work to maintain and improve the environment, as well as the country’s forest and wildlife. As a result, the Constitution instructs the state to design a structure and enact legislation to protect animals through directive principles. Article 51A(g) of the Constitution of India imposes a fundamental duty on every Indian citizen to safeguard and develop the environment, as well as to have compassion for all living species. The Indian Legislation passed the Wildlife Protection Act in 1972. The purpose of the legislation is:

To prohibit the hunting of wild animals and birds, as well as to punish those who do so.
Wildlife habitat protection and management.
Establishment of protected areas.
Trade-in parts and products obtained from animals are regulated and controlled.
The management of zoos.
Protecting animals that aren’t on the verge of extinction.

In layman’s words, the Act protects nature, including flora and fauna, and gives the state the authority to make modifications and amendments as it sees fit. It also allows the state to declare any suitable region a national park or sanctuary, as well as pass further wildlife-protection legislation. The Act also gives the state the authority to punish anyone who breaks the law.

The following are some of the landmark cases against poaching and/or wildlife trafficking:

In the case of Wild Life vs. Ashok Kumar & Ors (2019), the accused was found guilty of trading in leopard skin and was sentenced according to Section 51 of the Act. Officers were able to apprehend the defendant after receiving a tip.
In the case of R. Simon vs. Union of India (1997), the petitioner questioned the legality of an Act prohibiting the trade in animal products. This indirectly takes away the fundamental right to carry on any trade or business as specified under the Wildlife Protection Act. The Delhi High Court, on the other hand, ruled that the Legislation is constitutional since fundamental rights can be regulated in the public interest, and wildlife protection is a public interest Act.
The case of Pradeep Krishen vs Union of India (1996) is significant because it casts doubt on the widespread notion that communities living near forests will always function following nature. The petitioner challenged the M.P. government’s decree allowing villagers and communities living near sanctuaries and national parks to get tendu leaves through contractors. Many trees have been destroyed as a result of the villagers’ activities, according to the petition. The Madhya Pradesh government has been ordered by the Supreme Court to bar any villager or tribal from entering wildlife conservation zones.

Based on the foregoing, one may conclude that both the Executive and the Judiciary of our country consider the conservation of our country’s wildlife to be an important issue.

Tools to combat wildlife crime in India

The Counter Wildlife Trafficking programme of WCS-India aims to assist mandated agencies in detecting, identifying, investigating, arresting, prosecuting, and convicting criminal groups that engage in wildlife trafficking. Their goal is to collaborate closely with the government to enhance wildlife trafficking conviction rates and, eventually, eliminate organised wildlife trafficking networks, ensuring that all of India’s species can thrive in their natural habitats. The initiative serves as a facilitator, allowing government authorities to have access to the knowledge, skills, technologies, and professional assistance needed to combat wildlife crime in India.
In 2008, TRAFFIC India was the first in India to train sniffer dogs for wildlife conservation. Over the course of four years, the organisation trained 13 dog squads, but after some failures, it returned to the programme in 2013 with fresh energy. A total of 25 anti-poaching dog squads, including the new members, were deployed in nine states across India.
In addition to the dog squads, TRAFFIC India and WWF have lately enhanced their training programmes for law enforcement authorities and forest professionals in collaboration with Indian government organisations. According to news sources, Interpol, in collaboration with the Wildlife Crime Central Bureau (WCCB), will begin tracking the rise in wildlife crime involving lesser-known species such as pangolins this spring. To gather intelligence, identify wildlife crime syndicates, and make arrests, the agencies will work together.

Ways the UNEP works to address illegal trade

The UNEP works to address the illegal trade in the following three ways:

UNEP supports the legal and sustainable management and trade of wildlife, in compliance with national and international law

Trade-in wildlife frequently has positive conservation consequences, since it provides incentives for effective management of both habitats and populations of species in trade, as long as it is handled responsibly and is adequately regulated. It can also create jobs for residents, reducing the temptation to overuse or alter natural environments. By providing revenue to assist wildlife management and conservation, sustainable trade can secure the long-term survival of wildlife.

UNEP and the CITES Secretariat have collaborated up to help nations and territories develop their environmental governance to meet Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) standards for combating illegal wildlife trading. This is accomplished by appointing at least one Management Authority and one Scientific Authority, forbidding specimen trade in contravention of the Convention, punishing illegal trading, and seizing specimens illegally acquired.

UNEP advocates for an end to illegal wildlife trade globally

UNEP is collaborating with other UN agencies and secretariats, such as CITES, to combat illegal wildlife trade both domestically and globally. It aims to enhance national legislation and assists countries in collaborating to address transboundary concerns with trafficking goods at ports of entry. Corruption is a major issue around the world, making it difficult to control the illegal wildlife trade. As a result, UNEP supports courts, law enforcement, and customs authorities in their efforts to combat wildlife crime and improve the rule of law.

UNEP also uses notable influencers, who may reach one billion people through their social media platforms, to improve public awareness and comprehension of the social, economic, and environmental implications of the illegal trade through its Wild for Life campaign. It hopes to improve international efforts to create and reduce demand for illegally derived wildlife goods in this way.

UNEP supports the conservation of the world’s biodiverse habitats

Human activity has altered at least two-thirds of the planet’s land and waters. Habitat degradation and devastation are contributing to the enormous loss of species that we are currently witnessing by some estimates, 1,000 times greater than at any other time in recorded history.

Destruction of habitat can potentially increase human exposure to zoonotic diseases (illnesses that arise from human contact with animals). Degraded environments, according to scientists, may even speed up evolutionary processes and disease diversification. This is why UNEP seeks to improve the scientific knowledge base available to policymakers.

Ebola, bird flu, Middle East respiratory syndrome (MERS), Rift Valley fever, sudden acute respiratory syndrome (SARS), West Nile virus, and Zika virus disease were all mentioned in UNEP’s Frontiers 2016 Report on Emerging Issues of Environmental Concern, which included a chapter on emerging zoonotic diseases. “Emerging diseases have cost more than US$100 billion in direct costs over the last two decades; if these outbreaks had become human pandemics, the losses would have been several trillion dollars,” the report stated. Significant progress has been made as a result of UNEP’s efforts in gaining global high-level support for environmental governance and organising political will to create greater influence at the country level.

Conclusion

Experts think there’s still a lot to be done, starting with stricter laws. India lacks legislation that allows the CITES to be enforced beyond entry and exit points such as airports. This means that police officers in India cannot confiscate a species whose commerce is illegal under CITES and then question the culprit about where they acquired it.

At a time when international wildlife crime is on the rise, decimating wild populations of indigenous and endangered species, international cooperation is critical to combating the problem. The United Nations General Assembly passed the first-ever resolution on wildlife trafficking, urging countries to “adopt effective measures to prevent and combat the serious problem of crimes that have an environmental impact, such as illicit trafficking in wildlife and wildlife products…as well as poaching.” Despite the global urgency to tackle wildlife crime, India’s initiatives appear to be on the right path.

The problem of illegal wildlife trading in India may be addressed by individuals like you. It will take a concerted effort from all of us; these mute creatures require our assistance. So, if you see illicit wildlife trafficking, report it to the appropriate authorities. It’s high time for us to take action against wildlife crimes.

References

https://www.tourmyindia.com/blog/illegal-wildlife-trading/

https://www.unep.org/news-and-stories/story/three-ways-united-nations-environment-programme-works-address-illegal-trade

https://news.mongabay.com/2015/10/india-steps-up-efforts-to-combat-wildlife-trade/

https://www.latestlaws.com/articles/wildlife-trafficking-and-poaching-in-india-law-and-judicial-perspective-by-lakhan-gupta/

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The TATA-Mistry case : analysing the differences in NCLT and NCLAT Orders

By

Shoronya Banerjee

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August 18, 2021

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INDIA-AUTO-TATA-HEALTH-FILES — Image source: https://rb.gy/uzs0e6

This article is written by Madhu Ayachit, pursuing a Certificate Course in National Company Law Tribunal (NCLT) Litigation from LawSikho.

Cause title

Tata Consultancy Services Ltd. v. Cyrus Investment Pvt. Ltd.

Introduction

The majority shareholders of a company have a superior position in the company as they are empowered to pass the special resolution of the companies. Therefore, the minority shareholders are generally at a disadvantage. However, the Companies Act, 2013 provides protection, though limited, to the minority shareholders. One of the protections granted to the minority shareholders is against oppression and mismanagement. Section 241 of the Companies Act, 2013 provides the minority shareholders protection against oppression and mismanagement. It enables the minority shareholders to file an application before the Tribunal if they feel that the conduct or the affairs of the company are being carried out in a manner that is prejudicial or oppressive to them or the interests of the public at large.

A similar issue was involved in the infamous case of Tata Consultancy and Cyrus investment in 2017. Both the companies have been in the limelight for quite a long time now ever since Mr. Cyrus Mistry was removed from the executive chairmanship of Tata Sons in 2016. Apart from that, issues regarding Shapoorji Pallonji Group, conversion from public to a private company, the status of Tata Sons as quasi-partnership of Tata Sons.

Brief facts of the case

Tata Consultancy Services (TCS) which is a unit of Tata Sons is a multinational information technology service. Mr. Ratan Tata who is one of the most well-known businessmen of India was the former chairman of Tata Sons and Tata Group. Mr. Cyrus Mistry is the director of Cyrus Investments Private Limited which is a non-government company and an investment advisor.

The selection panel of the Tata Group appointed Mr. Cyrus Mistry as the Chairman of Tata Sons Limited after Mr. Ratan Tata stepped down from his chairmanship. However, in 2016, he was removed from the chairmanship after a majority of the Board of Directors voted in this favour due to the loss of confidence. Moreover, after his removal, several attempts were made to remove him from all the group companies including Shapoorji Pallonji Group. Thereafter, in 2017, the Board of Directors of Tata Sons appointed Mr. N Chandrashekaran as the chairman, who was the Managing Director.

In view of the above, Mr. Cyrus Mistry filed an application under Sections 241 and 242 of the Companies Act before the National Company Law Tribunal, Mumbai (hereinafter referred to as “NCLT”) on the ground that there was the oppression of minority shareholders and operational mismanagement on part of Tata Sons Ltd. Thereafter the NCLT ruled in the favour of Mr. Cyrus Mistry.

Tata Sons Limited filed an appeal before the National Company Law Appellate Tribunal (hereinafter referred to as “NCLAT”) wherein the Tribunal ruled against Mr. Cyrus Mistry. Wherein the NCLAT overruled the judgment of the NCLT after giving conflicting views. The two judgments of both the Tribunals, i.e., the NCLT and NCLAT have given contrasting views with respect to each and every issue. Therefore, it is interesting to go through each and every issue for a better understanding of the judgments.

Issues involved in the case

Various issues and allegations were raised by Mr. Cyrus Mistry against Tata Sons Ltd. in relation to the following points:

Tata Sons misused their powers under a few articles and Tata Trust exercised control over the Tata Sons board.
Removal of Cyrus Mistry as an executive chairman from Tata Sons Limited.
Transactions made with Siva and Sterling Group of Companies by Tata Groups.
Fraudulent transaction worth Rs. 22 crores in Air Asia by Tata Trusts.
The losses suffered in the Nano car project clearly depict the oppression of minority shareholder rights and mismanagement by the Tata Group.
The acquisition of Corus at overpayment by Tata Trusts.

Statutory provisions involved

Section 241 of the Companies Act, 2013

Section 241 of the Act enables a member of the company to approach the NCLT if the member feels that the affairs of the company are being conducted in a manner that is prejudicial to the public interest or the interests of the company or the company is going through a material change and such change will be prejudicial to the interests of the members of the company.

Section 242 of the Companies Act, 2013

Section 242 of the Act deals with the powers of the Tribunal which it has in case an application has been made under Section 241 of the Act. This provision enlists the power of the Tribunal such as regulation of the affairs of the company, appointments, and removal, termination of agreements, setting aside actions taken by the management of the company, etc.

Contentions of TATA Consultancy Services

Tata Consultancy Services contended that there was no oppression on the part of Tata group and the decision of the Board to remove Mr. Cyrus Mistry from the Chairmanship of Tata Sons Limited. was “within its rights to do so.”

Contentions of Cyrus Investment PVT. LTD.

Mr. Cyrus Mistry contended that he was removed from the executive chairmanship of Tata Sons and thereafter from the directorship of other Tata companies by way of oppression by Tata Trusts, the promoters of the Tata Sons, having 68% of ownership.

The order passed by the NCLT

The NCLT, Mumbai Bench in 2018 dismissed all the charges which were made against Tata Sons on the ground that there was the oppression of minority shareholders on part of Tata Sons Ltd. and it had failed to protect and respect the interests of the minority shareholders. The Hon’ble Tribunal also held that the Board of Directors of Tata Sons had the right to remove Mr. Mistry from the chairmanship.

The order passed by the NCLAT

Aggrieved by the order of the NCLT, Mumbai Bench, Cyrus Investments Private Limited & Anr. appealed to the NCLAT wherein the NCLAT addressed the issue as to whether the affairs of the company have been or are being conducted in a manner ‘prejudicial’ or ‘oppressive’ to any member or members or to the public interest or the interests of the company.

The Hon’ble Tribunal overruled the judgment passed by the NCLT, Mumbai bench, and delivered its judgment in favour of Mr. Mistry. The NCLAT observed that Mr. Mistry was removed from the post of chairmanship illegally and the board of directors did not have a right to remove him on the grounds that such power can be exercised only in exceptional circumstances and in the interest of the company. Moreover, before exercising such power, reasons for removal should be recorded in writing and intimated to the respective shareholders whose rights will be affected. Therefore, the Hon’ble Tribunal ordered Tata Sons Ltd. to reinstate Mr. Mistry and held that the appointment of N Chandrasekaran as the chairman is illegal.

Comparative analysis of the orders passed by the NCLT and NCLAT

As mentioned above, it is pertinent to go through all the issues on which the NCLT and NCLAT gave contrasting views.

(i) Oppression of Mr. Cyrus Mistry

Section 241 of the Companies Act, 2013 comes into the picture when the affairs of a company are conducted prejudicially and are oppressive to the public interest, interests of the company, or its members.

The NCLT elucidated that the act of removal of an employee from the company does fall within the purview of Section 241. Since the company is incorporated for the benefit of its members and it is for them to appoint their Executive Chairman, the claim that they do not have any right to appoint a chairman, does not hold merit. Moreover, the NCLT also acknowledged the fact that the board of directors had lost confidence in Mr. Cyrus Mistry. Whereas the NCLAT observed that Mr. Cyrus Mistry was removed from his post without any discussions and records of the company did not show a lack of performance on his part. Therefore, the NCLAT ordered his reinstatement after four weeks of the date of its order.

(ii) Oppression of minority shareholders

Article 75 of the Articles of Association of Tata Sons enables it to ask any shareholder to sell his shares either to the existing shareholders or outsiders selected by the Board through special resolution. It was argued by Mr. Cyrus Mistry that this Article oppresses the minority shareholders as they are compelled to sell their shares.

The NCLT said that Article 75 which restricts the transferability of the shares was in vogue even before the applicants filed the application before the Tribunal and the applicants were very well aware of it. The Tribunal also observed that in order to prove oppression, alteration in the article of association needs to be done. However, it has not been done in the present case. Whereas the NCLAT acknowledged the consequences of Article 75 and therefore, ordered Tata Sons to not invoke this provision against the minority shareholders.

(iii) Conversion of public company into a private company

The issue related to the conversion of public companies into private companies was also raised before both the Tribunals. The NCLT observed that such a conversion of a public company into a private company does not fall under the ambit of Section 241 and Section 242. Whereas the NCLAT observed that in the present case, the conversion from public to a private company was done suddenly and in between the proceedings. Moreover, the correct procedure for the conversion was also not followed. Therefore, the NCLAT held that there was prejudice and oppression against the minority shareholders.

(iv) Quasi-partnership

The issue as to whether or not Tata Sons can be recognized as a quasi-partnership was raised before both the Tribunals. The NCLT invalidated the claim of the applicants that the company can be recognised as a quasi-partnership between Tata Group and Shapoorji Pallonji Group.

In spite of the fact that the NCLAT acknowledged this claim, they did not acknowledge the legitimate consequences arising from such partnership that can lead to oppression. Moreover, the NCLAT also ignored the principles established by the Hon’ble Supreme Court in various judgments on how to determine whether a company is a quasi-partnership.

(v) Mismanagement of TATA Sons

The NCLT did not pay attention to the allegations of prejudice towards Tata Sons Ltd. on the ground that they were majority shareholders and thus, cannot go against their own interests. Whereas the NCLAT opined that mismanagement was very much evident as Tata Sons incurred losses because of their prejudicial decisions and resolutions passed by the Board of Directors.

Further, the claim questioning the conduct of Mr. Ratan Tata as the director was held unreasonable and frivolous as the applicants could not establish or prove that he acted prejudicially to the interests of the company or the applicants.

Final verdict of the Supreme Court

Aggrieved by the order of the NCLAT, Tata Sons Ltd. appealed to the Hon’ble Supreme Court on the ground that the NCLAT undermined the corporate democracy of Tata Sons Ltd. The Hon’ble Supreme Court bench composed of Justices S A Bobde, V Ramasubraminain, and A S Bopanna decided the case recently in March 2021.

While setting aside the order of the NCLAT, the Hon’ble Supreme Court dismissed the charges of oppression and mismanagement against Tata Sons Ltd. and ruled against Mr. Cyrus Mistry. The Hon’ble Court acknowledged the corrupt conduct of Mr. Mistry and observed that he himself had invited the trouble as he was involved in the leaking of confidential data of the company to media in order to create sensation and therefore, his removal from the post of Chairmanship and directorship was justified.

The Hon’ble Court also made the following observations:

(i) Mere removal of a person from the post of Chairmanship shall not fall within the scope and subject matter of Section 241 if it is not prejudicial to the interests of the minority shareholders.

(ii) If the action is not prejudicial or oppressive to the interest of the company, its members, or the public at large, Tribunal cannot interfere with the removal of a person as a Chairman of a Company under Section 241 of the Companies Act, 2013.

(iii) Sections 241 and 242 of the Companies Act, 2013 do not expressly confer the power of reinstatement.

Conclusion

The case of Tata-Mistry is one of its kind as it was one of the most high-profile cases. It gave a clear and precise interpretation of Section 241 of the Companies Act, 2013. The conflicting opinions given by the NCLT and NCLAT created a lot of ambiguity as to the definition of Section 241 of the Companies Act, 2013 and the powers of the Tribunals with respect to oppression and management. However, the ambiguity was cleared by the Hon’ble Supreme Court related to the powers of the Tribunals. Despite the fact that the judgment was passed in the favour of Tata and Sons Limited, both the companies have suffered reputational damages as the allegations made against the companies were serious.

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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Top government exams that LLB graduates can give

By

Diganth Raj Sehgal

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August 18, 2021

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This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article attempts to collate all the information regarding the top government jobs that LLB graduates can appear.

Table of Contents

Introduction

Degree of law offers a very promising scope with a huge range of options that a law graduate could pursue. There are various respectable and uncommon examinations that a law student can apply for and make a career in. Contrary to popular belief, the career options are not restricted to just barristers and solicitors. It is now no longer limited to litigation and corporate and also extends to government sectors. Having a government job is a dream for many law students as it not only provides financial security but also ensures respect and prestige in society. The most popular government exams after LLB is the judicial services examination, which is conducted by the state public service commissions of almost all states. Apart from judicial services examinations, most government organizations have established their legal departments to handle their cases related to legal matters. The Reserve Bank of India, State Bank of India, Delhi Metro Rail Corporation, Security and Exchange Board of India are some of the examples of the government organisations that recruit LLB graduates.

Types of Government Sector jobs

The Government Sector provides the maximum number of law jobs for law graduates, eligible advocates and LLB candidates. The Government Sectors providing law jobs are:

District Court Judicial Services;
High Court Judicial Services;
Public Sector Companies;
Ministry of Law and Justice;
Government Universities/Colleges – National Law Universities;
Public Sector Banks;
Ministry of Railway;
Union Public Service Commission (UPSC);
Statutory corporation.

Jobs roles in government sector

Legal assistants;
Legal officer;
Legal advisor;
Legal professors;
Insurance law officer;
Judicial services;
District judge;
High Court judge;
Junior consultant (legal);
Young professional (legal);
Manager level – legal posts;

Under judicial services

Provincial Civil Service-Judicial Examination or commonly known as judicial services examination the entry points for law graduates. These are conducted by the state governments under the supervision of the respective High Courts.

Post & description

At the lower judiciary level, one can be selected as a civil judge whereas at the higher judiciary level one can become an additional district judge. Judges are responsible for performing various tasks both inside and outside the premises of the courtroom. Their duty inside the courtroom are as follows:

Hearing the accusations of both the parties, prosecution and defence.
Listening to the testimony of a witness.
Giving ruling on the evidence’s admissibility.
Informing defendants of their rights.
Questioning the witnesses.
Rule on motions presented by counsel.
Determine the guilt or innocence of criminal defendants and impose sentences on defendants found guilty in criminal cases.
Determine liability or damages in a civil case.

Eligibility & qualification

The judicial service examinations are taken at 2 levels: the lower judiciary level and the higher judiciary level.
The candidate must possess a degree of L.L.B and be enrolled as an advocate under the Advocates Act, 1961. However, an additional seven years of experience is required to be eligible to appear for the higher judiciary exams.
The age limit is usually between 21 years to 35 years and may vary from State to State with some benefit of age relaxation for the candidates in the reserved category.

Paper pattern & criteria

The examination is taken in three stages including subjects of civil law and criminal law along with a language paper.

Preliminary examination – After qualifying in the preliminary examination, a candidate is allowed to appear for the subsequent exam. It has multiple-choice questions (MCQs) which are objective in nature. However, for final selection, the marks secured in the preliminary examination are not counted.
Mains examination – The mains examination which is the second exam is a subjective type. It has three to four papers. For final selection, the marks secured in this exam is considered.
Viva-voce/personal interview – The last stage of selection is the interview where candidates are assessed on general interest, personality, and intelligence among other factors.
There are certain compulsory and optional papers that vary from state to state and one has to prepare accordingly. A brief overview of the same is given at https://www.toprankers.com/judiciary-exam-pattern .

Salary & allowances

The entry level basic salary of a judicial officer varies from State to State usually ranging from INR 30,000 to INR 50,000 per month along with other allowances as sanctioned by the Government which includes house rent allowance, medical allowance, refreshment allowance and dearness allowance. Other perks include paid holidays, government accommodation, transport facility, permanent house help, medical facilities, leave and travel concession, health insurance, child safety etc. It is also one of those few government jobs which still offer after-retirement pensions.

Under the public sector companies

The Government of India or state or corporations own the public sector undertakings (PSU) which offer massive job opportunities as the Union Government owns more than 50% of the shares of the same, either by the Centre of the State. Few PSUs conduct their own exams for the selection of law officers and others like ONGC (Oil and Natural Gas Corporation) and POWERGRID (Power Grid Corporation of India Limited). These companies hire their law officers on the basis of marks scored in CLAT-PG. The candidates are required to apply individually for specific positions in the PSU.

Post & description

There is no fixed recruitment policy at PSUs and its hiring solely depends on the vacancies available in a particular year. Almost all PSUs need graduates from various fields to carry out daily operations who are appointed to executive posts. As a fresh recruit one generally starts as a trainee and undergoes paid professional training for a short period of around 6 months – 1 year.

Eligibility & qualification

The qualifications are:

LL.B degree;
Selection based on CLAT score and private exams.

Paper pattern & criteria

The paper pattern is as follows:

The comprehension-based question in CLAT PG comprising of 100 MCQs from subjects like Constitutional Law, Jurisprudence, Contract law, etc.
The descriptive portion of the exam will have essay-type questions of 10 marks and 2 essays will be given to the aspirants.

Under the Ministry of Law and Justice and the Ministry of Defence

JAG (Judge Advocate General)

Post & description

The post is the legal branch of the Indian Army. JAG officers provide holistic legal aid services to the military, specifically giving advice to the presiding officers of courts-martial on military law. JAG officers conduct all legal procedures from framing drafts to appearing at courts and military tribunals. They deal with cases and litigation of military-related discipline and provide legal assistance to the army in matters related to human rights.

Eligibility & qualification

The qualification is:

The candidate must either be an Indian citizen or a subject of Nepal.
Any person who has migrated from Pakistan, Burma, Sri Lanka, and East African countries of Kenya, Uganda, United Republic of Tanzania, Zambia, Malawi, Zaire and Ethiopia, and Vietnam who is of Indian origin and intends to permanently settle in India, who holds a certificate of eligibility in his favour, issued by the government of India.
Applicants should be unmarried males and unmarried females have a minimum of 55% aggregate marks in LLB Degree which should be from a recognized college/university under the Bar Council of India.
Applicants should be eligible for registration as an advocates with the Bar Council of India/State.
The age limit is 21 to 27 years in the current year (not born earlier than 2nd July 1994 and not later than 1st July 2000, including both dates).

Paper pattern & criteria

The paper pattern is:

Stage I: Officer intelligence rating (OIR) Test, picture perception & description test (PP&DT), and narration & group discussion.
Stage II: Psychological test including thematic apperception test (TAT), word association test (WAT), situation reaction test (SRT) and self-description test (SDT). This is followed by a ground testing officer (GTO test) and a personal interview.
After the candidates clear the two-stage selection procedure, they will be called for a Service Selection Board (SSB) interview whose duration is five days. Those who qualify in the interview will undergo a medical test and then the final selection is made based on the merit list.

Salary & allowances

At the lieutenant level the salary is Rs 1056,100 – 1,77,500 (entry-level). Their promotion criteria are as follows: lieutenant on commission then captain on completion of 2 years. After the completion of 6 years, they are promoted to major and then as an lt colonel on completion of 13 years, followed by a colonel (TS) on completion of 26 years and colonel on selection basis subject to fulfillment of necessary service conditions.

Under the Government Universities/Colleges – National Law Universities

CLAT-PG

The Common Law Admissions Test for Post Graduate is a centralized entrance exam conducted yearly for law graduates seeking admission in 22 National Law Universities for admission to LLM programmes in India. Candidates often appear for this exam to secure government jobs in the top public sector undertakings (PSUs) such as Bharat Heavy Electricals Limited (BHEL), Indian Oil Corporation (IOCL), National Thermal Power Corporation Limited (NTPC), and ONGC. The public sector units recruit their officers based on the ranks of this examination which is followed by an extensive interview.

Eligibility & qualification

The qualification is:

Candidates must have a 3-year LLB degree or a 3-year integrated LLB degree or an equivalent LLB degree from a recognized university.
The candidate under the general/ OBC/ SAP category must have a minimum of 55% aggregate marks, and 50% for SC/ST.
There is no upper age limit to apply for the CLAT PG exam.
The candidate must be an Indian citizen of India and the NRI students are also eligible to apply.

Paper pattern & criteria

The paper pattern is:

The paper is divided into two parts. It has objective-type questions carrying 100 marks in the first section with every wrong answer getting a negative marking of 0.25 marks. The second section is descriptive in nature which includes writing 2 essays each of 800 words for 25 marks.
The paper is based on the mandatory subjects of the undergraduate program and includes Constitutional Law, Jurisprudence, Administrative Law, Law of Contract, Torts, Family Law, Criminal Law, Property Law, Company Law, Public International Law, Tax Law, Environmental Law, and Labour & Industrial Law.

UGC NET

The University Grants Commission organizes the National Eligibility Test is conducted twice every year by the National Testing Agency (NTA) for the selection of eligible candidates for the post of Assistant Professor for colleges/universities level lectureship and Junior Research Fellowship (JRF). Candidates who clear this exam are also eligible for PSUs.

Post & description

It is for those who want to pursue their careers as lecturers or researchers.

Eligibility & qualification

The qualification is:

A person must hold a Master’s degree or any other equivalent degree with a minimum of at least 55% marks from a recognised UGC universities/institutions in humanities (including languages) and social science, computer science & applications, electronic science etc. are eligible to apply. The candidates from Other Backward Classes (OBC) belonging to non-creamy layer/Scheduled Caste(SC)/Scheduled Tribe(ST)/persons with disability (PwD) category candidates are to be entitled to relaxation 5% marks ineligibility.
The post of assistant professor has no upper age limit.
The upper age limit for Junior Research Fellowship (JRF) is fixed at 30 years as of 01-06-2020, (age relaxation up to 5 years to candidates belonging to OBC) and 3 years of relaxation in age to candidates pursuing LLM.
RF awardees will be eligible to pursue research in their postgraduate subject from IIT’s or other national organisations. Such candidates are also eligible for the post of assistant professor in colleges/universities of India. The award of ‘Junior Research Fellowship and eligibility for assistant professor both’ or eligibility for assistant professor only depends on the performance of the candidate in both the papers of UGC-NET in aggregate.

Paper pattern & criteria

UGC NET comprises of 2 papers – paper 1 and paper 2

Paper-I consists of topics under teaching aptitude, research aptitude, reading comprehension, communication, reasoning (including maths), logical reasoning, data interpretation, information & communication technology, people & environment, higher education system including governance, polity and administration for 100 marks. Each correct answer will award you 2 marks. There will be no negative marking in the exam.
Paper-II is based upon the subject chosen by the aspirant for 200 marks.

Salary & allowances

UGC Norms for Assistant Professor Salary in Government Universities range from Rs. 55,000 – Rs. 1,05,000 per month. The fixed pay scale also includes basic pay, DA, HRA, LTA etc. The stipend of a JRF selected through CSIR-UGC National Eligibility Test (NET) will be Rs. 25,000/- per month for the first two years. In addition, an annual contingency grant of Rs. 20,000/- per fellow will be provided to the university/ institution.

Supreme Court Law Clerk/ Research assistant

The judicial clerkship exam is organised by the registry of the Supreme Court of India. This opportunity provides the first-hand experience to a candidate aspiring to be either a part of the bench or litigation in the future. It is a full-time job entirely contractual in nature.

Post & description

After joining as an assistant law clerk in the Supreme Court of India, candidates are exposed to wide judicial knowledge. It enhances the knowledge of the law aspirants once they are done with the recruitment process. It gives an insight and an opportunity of learning and understanding both the bar and bench in a single period which will contribute to the judgments by giving opinions that matters a lot in today’s competitive world. A Supreme Court Law Clerk has the following duties:

To prepare a summary of fresh admission matters.
To prepare a synopsis of regular hearing matters.
Sitting in the court during a hearing and taking notes of all the arguments.
To perform research work to assist the Hon’ble Judge in the preparation of the draft.
To prepare speeches and academic papers.
To prepare case briefs and oral brief’s
Proof-reading.

Eligibility & qualification

The qualification is:

The candidate must be a graduate of law (as on the date of appearing at interview) having an L.L.B degree (including Integrated Degree Course in Law) from any school/college/university/institution established by law in India and recognized by the Bar Council of India for enrolment as an Advocate.
Candidates studying in the fifth year of the Five-Year Integrated Law Course will also be eligible to apply subject to furnishing proof of acquiring Law qualification at the time of interview/before taking up the assignment as Law Clerk-cum-Research Assistant.
The candidates are required to have prior knowledge of computers including conducting research methods on various search engines/processes such as Manupatra, SCC Online, LexisNexis, Westlaw, etc.
The age limit for the candidates ranges between 18 years to 27 years as of the last date of receipt of applications.

Paper pattern & criteria

The selection process takes place in two parts:

Written Exam – This exam is divided further into two sections: (i) General Knowledge & English (ii) Law.
Interview – Only the candidates qualified in the written exam are called in for an interview which is conducted by a three-panel member consisting of Hon’ble Judges of the Supreme Court.

Salary

A fixed consolidated stipend of Rs. 65,000/- per month initially during the assignment session commencing from 01.07.2021 till the closure of the court for Summer Vacation, 2022.

Under the public sector banks

The Institute of Banking Personnel Selection (IBPS) Law Officer exam

The exam is held for the selection of various kinds of officers in the public sector banks, State Bank of India (SBI), Associate Banks of SBI, National Bank for Agriculture and Rural Development (NABARD), Reserve Bank of India (RBI), Small Industries Development Bank of India (SIDBI), Life Insurance Companies (LIC) & Insurance companies, and other regular member banks of the IBPS society. Different exams are conducted for different posts and positions in the departments such as IBPS SO exam for Specialist Officers, IBPS Law Officer Exam, and IBPS PO Exam for Probationary Officers, and IBPS RRB Exam for Officers and office assistants in Regional Rural Banks.

IBPS PO – This exam is conducted to recruit PO for 15 public sector banks in India.

Eligibility & qualification

The qualification is:

An Indian citizen or a citizen of Nepal or Bhutan or Tibetan refugees who have come to India to seek a settlement before January 1, 1962.
A person who has migrated from either Pakistan, Sri Lanka, Burma, Vietnam, Ethiopia, Kenya, Malawi, Tanzania, Zaire, or Zambia with the intention of permanent settlement in India and if of Indian origin.
Those candidates with a graduation degree with their age falling between the range of 20 to 30 years can apply for the IBPS PO.
The candidate must have a Graduation Degree or any Degree equivalent to Graduation for a university that has been recognized by the State/Central Government of India. Candidates must be enrolled with the Bar Council as an Advocate.

Paper pattern & criteria

The process of recruitment is a three step procedure including preliminary exam, main exam, and interview process.

IBPS PO preliminary has 100 marks of objective type question paper on English, quantitative aptitude, and reasoning ability.
IBPS PO main has both objective and descriptive papers. After the objective paper is qualified, only then the descriptive paper is examined. The subjects are English language, data analysis and interpretation, general economy or banking awareness, reasoning and computer aptitude and letter writing an essay,
The candidate who has qualified for the mains is called for an interview. The minimum qualifying mark is 40%. The SC/SC/OBC/PwD candidates get a relaxation.

Salary & allowances

For new joiners the basic pay is Rs. 23,700, after 7 years it is Rs 30560, after 2 more years it is Rs.32850 and after 7 more years, it is Rs.42020. There are several allowances other than basic salary which includes dearness allowance, house rent allowance, special allowance, and city compensatory allowance. Other perks involve leased accommodation provided by the bank as per the location. In such cases, the HRA is not provided. The amount goes directly to the owner of the accommodation. Traveling allowance, otherwise, the expenses on petrol are reimbursed, medical allowances, newspaper reimbursement, new pension scheme.

IBPS SO Law officer (Scale–I)

This opportunity is for candidates who want to work as law officers in a bank. Law officers provide legal advice as well as deal with various legal issues associated with the bank. They ensure all rules are followed, legal documents are prepared, initial drafts of legislation administered/to be administered by the bank are prepared. The eligibility and qualification criteria are the same as above.

Paper pattern & criteria

For prelims objective questions of 125 marks and duration, 120 minutes are on subjects of English language, reasoning and general awareness with special reference to the banking industry. It is followed by mains which include major sections from law and acts with direct and indirect implication on the banking sector like Contract Acts, Partnerships, Companies, Firm, Constitution and other related topics.

Salary & allowances

Their monthly salary for an officer scale I start at Rs. 36,400/- along with house rent allowance, dearness allowance, special allowance, city compensatory allowance etc.

IBPS RRB exam

IBPS RRB Exam is conducted every year by IBPS for selection to the post of both IBPS RRB Assistant and IBPS RRB Officer Cadre in Regional Rural Banks spread across the country. For selection to the post of both Assistant and Officer Cadre in Regional Rural Banks (RRBs) spread across the country, IBPS organises IBPS RRB Exam every year. The selection is made to the post of:

Office Assistant	Marketing Manager	Treasury Manager
Officer Scale – I	Banking Officer Scale-II	Agriculture Officer (Grade – II)
Law Officer (Grade-II)	Law Officer (Grade-II)	Chartered Accountant (Grade II)
Officer (Grade III)	IT Officer (Grade II)

Eligibility & qualification

Nationality/citizenship is the same as mentioned above. The age limit is for office assistants (multipurpose) – should be between 18 years and 28 years. For Officer Scale-I (assistant manager) – 19 years to 29 years. For Officer Scale-II (Manager) – 22 years to 31 years. For Officer Scale – III (senior manager) 22 years to 39 years. The educational qualification varies for all these posts and can be referred to from the official website.

Paper pattern & criteria

For IBPS assistants, the examination procedure is of two phases:

A preliminary exam which is of 80 marks and 45 minutes including questions on reasoning and numerical ability.
And main exams of 200 marks for 2 hours including questions on reasoning, general awareness, numerical ability, English/Hindi language paper, and computer knowledge.
For IBPS RRB officers, the exam is conducted in three phases, first, two being the same as above followed by an interview.

Salary & allowances

The salary varies based on different posts. For IBPS RRB office assistant, it ranges between Rs 15000 to Rs 19000, for an IBPS RRB Officer (Scale I), it ranges from Rs.29,000 to Rs 33,000, For Officer (Scale II), it ranges between Rs.33,000 and Rs 39,000 and for Officer (Scale III), it ranges between Rs 38,000 to Rs 44,000.

Under Reserve Bank of India

RBI is the primary financial institution of the country. Jobs under RBI are regarded as highly valuable employment opportunities. RBI appoints its Grade B officers, whose examinations are held every year which faces steep competition for the limited seats available for this prestigious opportunity. The post for the Grade B officer is the most sought for the position related to banking jobs.

Post and its description

The Grade B employees are recruited for the posts of Direct Recruits (DR), Department of Statistics and Information Management (DSIM) and Department of Economic & Policy Research (DEPR) in Common Seniority Group (CSG). The job of a Grade B officer is to handle the issuing of currency and the manners in which it is regulated, also to ensure if the financial stability of the system is intact, spreading awareness, and also to be a Government advisor and handle the accounts of the Government and Central Banks.

Eligibility & qualification

To appear for RBI Grade B Examination 2021, a candidate must be either:

An Indian citizen, or a subject of Nepal/Bhutan, or
A Tibetan refugee who is permanently settled in India before January 1, 1962, or
A person of Indian origin who has migrated from either Pakistan, Burma, Sri Lanka, Kenya, Uganda, Tanzania, Zambia, Malawi, Zaire, Ethiopia, or Vietnam to reside permanently in India.

The candidates belonging to other categories except an Indian citizen should hold a certificate of eligibility issued by the Government of India.

The age limit for the candidates falls between 21 and 30 years as of January 1, of the current year. The aspirants have not been born earlier than 2 January 1991 and not later than 1 January 2000. Also, for the aspirants, who possess M.Phil and Ph.D qualifications, the upper age limit will be 32 and 34 years respectively.

To become an RBI Grade B Legal officer bachelor’s degree in law is required which should along with a minimum of 50% marks or equivalent in the aggregate of all semesters.
At least 2 years of experience as an advocate/law officer in the legal department of a large bank/financial institution /statutory corporation /company and/or legal associate etc.

Paper pattern & criteria

It is a national level exam conducted by RBI every year under the name of RBI Grade B.
It is conducted both in online and offline mode, where the languages of the exam are English and Hindi.
The exam is conducted in three phases: preliminary, main exam, and interview round. negative marking is applicable for both papers.

For Grade B (DR) for General

The paper pattern for this exam is as follows:

Phase 1 consists of multiple-choice questions in four sections – a) general awareness b) english language c) quantitative aptitude d) reasoning – total 120 minutes and 200 marks.

Phase 2 consists of three papers on economic and social issues, English language and finance and management.

Paper I – 50 % Objective (30 minutes , 50 marks) + 50% descriptive (90 minutes , 50 marks) (descriptive answers is to be typed using keyboard) – total 120 minutes and 100 marks.
Paper-II – descriptive(90 minutes, 100 marks).
Paper III – 50 % Objective (30 minutes,50 marks) + 50% descriptive (90 minutes, 50 marks) (descriptive answers is to be typed using the keyboard) – total 120 minutes and 100 marks.

Candidates qualifying for Phase I and Phase II will have to face an interview which will be conducted for 75 marks.

For DEPR/DSIM post:

It is also conducted through online/written tests and interviews.

Paper 1: 120 minutes for objective type on economics (DEPR) and statistics (DSIM).
Paper 2: 180 minutes for descriptive type on economics (DEPR) and statistics (DSIM).
Paper 3: 90 minutes for descriptive type on English.

Salary & allowances

The basic salary for the RBI Grade B employees is around Rs. 67,933/- including all the allowances provided by the government of India which are medical allowance, dearness allowance, mobile allowance, HRA allowance, education allowance, fuel allowance, spectacles allowance, Sodexo coupon, briefcase allowance, and leave fare concession travel. It provides a yearly increment in salary of the Grade B employees by about Rs. 1750/- for up to the next nine years. The salary is Rs. 50900 /- in the executive band with a yearly increment of Rs. 1750 /- for the next two years. Then the salary comes up to Rs. 54400 /- and yearly increment of Rs 2000 /-.

Grade B employees can be promoted to various new designations like the manager, assistant manager, general manager, deputy general manager, assistant general manager, principal chief general manager, executive director, deputy governor and governor of the RBI along with several other perks based on eligibility.

Under statutory corporation

SEBI Grade A Officer

It is an assistant manager legal post at the Securities Exchange Board of India which is the only regulatory body of the securities market in India.

Post & description

Employees are posted in various departments ranging from policy formulation to intermediary registration, inspection, supervision, investigation, adjudication, etc. This depends on the stream opted at the time of recruitment. Officers are classified as Grade A to Grade F (i.e. A: Assistant Manager, B: Manager, C: Assistant General Manager, D: Deputy General Manager, E: General Manager, F: Chief General Manager) in SEBI.

Education & qualification

The educational qualification allows a candidate to have an L.L.B degree from a recognized University / Institute among other streams. The maximum age limit is currently 30 years i.e. the candidate should not be born on or before 01st March 1990 with certain age relaxation for the reserved categories.

Paper pattern & criteria

The recruitment process is divided into three phases:

The first phase is a screening exam consisting of 2 papers, each paper of 100 marks for multiple choice questions for 60 minutes on the subjects viz. general awareness (including some questions related to the financial Sector of easy to moderate difficulty level), english language, quantitative aptitude and test of reasoning for all the streams. And for the general stream, multiple-choice questions on subjects commerce, accountancy, management, finance, costing, companies act and economics.
The second paper also consists of 2 papers, each of 100 marks for multiple choice questions for 40 minutes on the specialized subject related to the stream. Only qualified candidates of phase I are allowed to appear for phase II.
Phase-II is an online examination that also consists of 2 papers, each of 100 marks. An aggregate mark of 40 % is required to score in Phase-II to qualify.
Paper I: Common for all streams includes English (Descriptive Test) to test the drafting skills of 100 marks, 60 minutes and for general stream: Multiple choice questions on subjects Commerce, Accountancy, Management, Finance, Costing, Companies Act and Economics for 100 marks and 40 minutes.
Paper-II: Multiple choice questions on a specialized subject related to stream for 100 marks and 40 minutes.
Interview.

Salary & allowances

The current pre-revised CTC offered to Grade A officers is more than 17 Lacs per annum which includes various benefits like leave fare concession, conveyance expenses, medical expenses, eye refraction, insurance, medical benefits, financial dailies, book grant, briefcase, house cleaning allowance, subsidized lunch facility, staff furnishing scheme, scheme for purchasing computers, scheme for acquiring professional qualifications & certifications, accommodation/ housing allowance, gratuity etc.

Under Ministry of Home Affairs

Post & description

The Office of the Custodian of Enemy Property for India, under the Ministry of Home Affairs, offers the post of Law officer (Grade-II) as a consultant. To assist the Law Officer Grade-I in the duties mentioned below:

To provide in house legal assistance to the office of CEPI.
To draft affidavits.
To put in place a mechanism for legal audit.
To monitor the status of litigations pertaining to enemy properties.
Any other task assigned by CEPI on legal matters from time to time.

Eligibility & qualification

The qualification is as follows:

Retired Government Officer of ILS/ Central Government Services who retired from the analogous post; or
On a contractual basis a person having a degree in law with a minimum experience of 3 years as a practitioner of law.
Along with working knowledge of computers.
The age limit is 65 years.

Salary & allowances

Remuneration of Rs. 35,000 is offered. For contractual employees, the increment will be allowed @5% per annum on the basis of deserving officials based on their performance on a case to case basis on account of special expertise/experience in the concerned field. No allowance is provided.

Under the Ministry of Railway

Based on the vacancy, the Indian Railway Finance Corporation, as a wholly Government-owned company under the administrative control of the Ministry of Railways Limited appoints for the post of joint legal manager (legal). Further state-wise different projects provide job opportunities on a contractual basis like assistant law officers. The incumbent of the post shall be responsible for aiding and assisting in the matter of statutory compliance/legal compliance and other matters related to Company law/ corporate law and providing secretarial assistance.

Eligibility & qualification

It varies from post to post but a candidate must be an LLB graduate. For chief law assistant in Indian railways university, a degree in law with 3 years standing to practise as a pleader at Bar. Serving railway employees who are law graduates are also eligible to apply for these posts, provided they have served for at least 5 years in any branch of the railway administration.

Paper pattern & criteria

For the Chief Legal Officer, there shall be a Single Stage Computer Based Test (CBT) followed by a Performance Test (PT) and document verification and medical examination thereafter. RRBs reserve the right to conduct the CBT in Single or multi-stage mode.

Salary & allowances

Varies from post to post. Rs 80,000 – 2,20,000 for joint legal manager. Rs 44900 p.m for chief law assistant.

Under the Union Public Service Commission (UPSC)

It is conducted by the Union Public Service Commission (UPSC) to recruit suitable candidates for the prestigious post of Administrative Service (IAS), the Indian Foreign Service (IFS) and the Indian Police Service (IPS) and other allied services.

Eligibility & qualification

The nationality must be Indian for IAS and IPS. The candidate must have graduated from any recognized university or if in their final year or awaiting results, are also eligible to appear for UPSC preliminary Examination. The age limit for appearing in the UPSC exam is 21 years to 35 years. The number of attempts is 06 (General and EWS); 09 (OBC); SC/ST (Upto age limit).

For all other services nationality/citizen is as follows:

The candidate must either be:

An Indian citizen, or a subject of Nepal/ Bhutan, or a Tibetan refugee who came to India before 1st January 1962 to permanently settle in India, or a person of Indian origin (PIO) who has migrated from Pakistan, Burma, Sri Lanka, East African countries of Kenya, Uganda, the United Republic of Tanzania, Zambia, Malawi, Ethiopia, Zaire, and Vietnam intending to permanently settle in India.
Except for a candidate who is an Indian citizen, all the others should hold a certificate of eligibility issued by the Government of India. Such candidates may take the exam before getting the said certificate of eligibility, but he/she would get the offer of appointment only after the certificate has been issued by the Government of India.

Note: A person belonging to other categories except for being an Indian citizen is not eligible for appointment to the Indian Foreign Service (IFS).

Paper pattern & criteria

Broadly, UPSC conducts the Civil Service Examination in three phases namely:

Preliminary examination;
Main examination;
Personality test (interview).

UPSC CSE Prelims has two papers namely General Studies I and CSAT (General Studies Paper-II). Both are objective in nature with 200 marks each for 2 hours. While CSAT is qualifying in nature, the marks obtained in the General Studies paper determine your selection for UPSC Mains. Additionally, the wrong answers are awarded negative marks which are 1/3rd of the marks allotted for the question as a penalty.

The IAS Mains Exam consists of two types of papers viz qualifying and merit-ranking. Paper A and Paper B namely the Language paper and English paper will be qualifying in nature. Paper I is an essay, paper II is general studies I (Indian Heritage and Culture, History and Geography, Society), paper III is general studies II (Governance, Constitution, Polity, Social Justice, International Relations), paper IV is general studies III (Technology, Economic Development, Biodiversity, Environment, Security and Disaster Management), paper V is general studies IV (Ethics, Aptitude, Integrity), paper VI is optional I and paper VII is optional II which are all merit ranking papers for 3 hours and 250 marks descriptive in nature.

The interview process is the last and final stage of the selection process. The interview consists of 275 marks which makes the total of maximum marks 2025. Some of the qualities that the board assess in a candidate are:

Mental acuity;
Critical thinking;
Analytical thinking;
Risk assessment skills;
Crisis management skills;
Ability to become a leader;
Intellectual and moral integrity.

Salary & allowances

The salary post qualification differs from post to post. The starting basic per month salary of an IAS officer is Rs.56,100 (excluding TA, DA, and HRA) and can go on to reach Rs. 2,50,000 for a Cabinet Secretary.

Public Prosecutor

Post & description

The prosecutor’s office has two different levels. One is the district prosecutor who is appointed for a period of three/five years, the other at the lower magistrate courts who are appointed permanently. The chief function of a Public Prosecutor is to protect the citizens. A Public Prosecutor’s duties also include instituting, undertaking, or carrying on criminal proceedings in any case against the Government and for the Government. One could be a public prosecutor, chief prosecutor, additional prosecutor, assistant public prosecutor or director of the prosecution.

Eligibility & qualification

The qualification is:

An eligible candidate to be appointed as a public prosecutor has to be an Indian citizen.
The candidate must have completed at least a UG degree in law and should have an aggregate score of at least 50-55%.
A person must possess experience of seven years of practice as an Advocate. A person who appears for this exam can get a District Attorney or the Assistant District Attorney position.
The age limit for the candidates ranges between 35 years to 45 years at the time of applying (the maximum age limit of the candidates belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes may be fixed by the Government from time to time).

Paper pattern & criteria

The paper pattern is:

The exam is conducted by UPSC. It is divided into two stages. A written test is conducted in the first stage which is then followed by an interview. The selected candidates are notified through mail.

Salary

An entry level public prosecutor would earn Rs. 3,50,000 per annum whereas a mid level and a senior level public prosecutor would earn Rs. 8,40,000 and Rs. 13,30,000 respectively.

As for 2021, current legal vacancies are as follows:

Name of Position – Total Vacancies	Govt Organization	Last Date
Law Clerk Trainee – 94	High Court of Allahabad	28/08/2021
Civil Judge (Junior Division) – 68	High Court of Andhra Pradesh	20/08/2021
Assistant – 55	High Court of Kerala	09/08/2021
Legal Assistant – 16	Gujarat High Court	10/08/2021

Conclusion

Legal services have now become one of the fastest growing and highly paid professions. So far as Government Sector jobs are concerned, many LLB graduates begin their career with the tax and labour department. From hereon, the job prospects go up the ladder. With time and experience, they even get into higher position jobs in State revenue or police or judicial departments. There are endless possibilities. The field has its own challenges but it’s also one of the most exciting, respected, and rewarding professions with its fruitful results. Regardless of the direction a candidate chooses to take, the sector has enough to offer everyone space depending upon what perfectly fits their interest and passion.

References

https://lawgiri.com/how-to-become-judge-advocate-general-in-indian-army-jag-indian-army-indian-army-lawyer/
https://prepp.in/ibps-po-exam#PO_Eligibility
https://www.ibtindia.com/ibps-so-law-officer
https://prepp.in/cbse-ugc-net-exam/exam-pattern#exam%20pattern%20details
https://www.lawentrance.com/article/other-law-exams.html

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Overview of Pegasus software

By

Shoronya Banerjee

-

August 18, 2021

0

Pegasus — Image source: https://rb.gy/5a2czc

This article has been written by Charishma. K.S, enrolled in the CA PROGRAM in LawSikho.

Introduction

We live in an era where all wars begin as cyberwars. Recently, the entire world was outraged by the revelations by an International media Consortium about Pegasus spyware which is developed by the NSO group, probably the most powerful virus ever created. Overnight, the virus had created headlines and ignited political skirmishes. Do you know the objective of this Pegasus spyware project and how it works, and what it costs?

How this spyware infringed the basic rights of an individual furnished in the Indian Constitution? Do you know the legislations concerned with surveillance laws in India? Do we need to take urgent action against the misuse of this spyware? The alleged use of the most powerful use of spyware on journalists, Human rights defenders, politicians, and others across the world including India, has given rise to issues concerning the right to privacy. Like this many basic questions have been driving the human mind insane. This article clarifies the basic yet serious /questions about this contradiction spying program.

The Pegasus spyware

The Pegasus spyware or software is a surveillance tool and the most powerful spyware ever invented. Across the world, This hacking software or spyware is marketed, licensed, and developed by the Israeli company “NSO Groups“. The document released by NSO groups presents the capabilities of this malicious software in detail. This spyware or software makes use of the “Zero-day” vulnerability which means faults in the OS of mobile which is unknown to the phone’s user and has not been patched. Hence, Pegasus identifies such flaws and enters into the operating system of the targeted person’s mobile.

The hacking can be accomplished through “Zero-click” records that don’t need any human interaction or human error. The new form of attack has rendered the Pegasus spyware the most hazardous software that jeopardises the individual right to privacy. It can hack billions of phones running either Android or ISO working networks. The spyware can also be installed over a wireless transceiver (radio transmitter and receiver) located near the target. It can turn your phone into a surveillance device.

Once it gets installed on the targeted phone, Pegasus contacts the attacker’s command and control servers to executive and receive instructions and send back the target’s private data. It allows you to trace the messages, call records, calendar events, and photos and can watch you through your phone’s camera, or turn on the microphone to tape your conversations. It can pinpoint everything starting from where you are to whom you meet. NSO groups sell this malicious software to the government only. To avoid extensive bandwidth consumption that may alert a target, Pegasus sends only scheduled updates to a C&C server. The spyware is designed to evade forensic analysis, avoid detection by anti-virus software, and can be deactivated and removed by the attacker, when and if necessary. A single license can be used to infect several smartphones and costs up to 70 Lakhs. According to a 2016 price list, NSO group charged the customers $650,000 to infiltrate 10 devices, plus an installation fee of $500,000.

The NSO groups

In 2010, NSO Group Technologies was established in Herzliya that is situated in the north of Tel Aviv, by Niv Carmi, Shalev Hulio, and Omri Lavie. The NSO group is an acronym of the first names of its three founders. NSO groups produce products that enable the government to spy on citizens. During terrorism and criminal investigations, NSO groups company helps “Government intelligence and law-enforcement agencies to use technology and meet the challenges of encryption by describing its products roles on its website.” Nevertheless, as you might imagine, the civil liberties and groups aren’t satisfied with the spyware-for-hire business, and restricting the business to government clients does little to hush their suspicions.

History of Pegasus

Back in 2016, the Pegasus spyware was first discovered by researchers at a Canadian cybersecurity organization infecting phones through text messages or emails that trick a target into clicking on a malicious link which is called spear-phishing. The Citizen Lab first discovered Pegasus on a smartphone of Ahmed Manor, a human rights activist.

In September 2018, The Citizen Lab published a report in which Pegasus spyware was used in 45 countries which included India.
In 2019, WhatsApp uncovered that the NSO’s software has been used to send malware to more than 1400 phones by taking advantage of a zero-day vulnerability. Malicious Pegasus code could be installed on the phone just by placing a WhatsApp call to a targeted phone, even if the target number didn’t answer the call. During that time also many human rights activists and journalists had been targeted by Pegasus in India.

Now, it has started taking advantage of vulnerabilities in Apple’s iMessage software, giving it backdoor access to hundreds of millions of iPhones. And Apple says that it has been continuously refurbishing its software to prevent such attacks. An international investigative journalism investigation showed that various governments used the software to spy on opposition politicians, journalists, activists, government officials, and many others.

The recent story of the Pegasus project

A list of 50000 phone numbers leaked by the news outlets of Forbidden stories, Paris-based journalism nonprofit, and right groups Amnesty International worldwide showed that we’re potentially targeted by Pegasus spyware or software and sent to media of different countries. The investigation on Pegasus spyware by forbidden stories called it a Pegasus project, during the investigation, forensic analyses and technical support were provided by Amnesty International’s Security Lab. We are not sure of how many were targeted for surveillance and how many of those attempts were accomplished.

According to the Washington Post, After performing forensic analyses it is been found that 22 smartphones in India are on the list, and at least 10 targeted with Pegasus, seven of them are successful Initially, a database of 50000 numbers have been targeted for surveillance by clients of NSO groups was revealed by the Forbidden stories.

The news organisations working on this new Pegasus project were able to find the owners of 150) numbers across at least 10 countries. Thus, an important attempt should be made to differentiate the names that appear on the list. Subsequently, On July 27, 2021, ‘The wire’ on its list so far the news has revealed 155 Names in collaboration. With 16 other media organizations. That list includes political figures, activists, students, lawyers, and journalists, among others.

The legal backing of Pegasus spyware

Concerning national security and public safety, there are legal provisions for communicating and thwarting, accessing digitally stored information. The Pegasus software is wholly private and initiates lives, which have no stance on any public interests. The data obtained through software have been used to negotiate institutions, steal elections, attack opposition campaigns and even dislodge the opposition government. This vulnerable sector is due to a lack of awareness and specialists in digital security. The other anti-social elements and terrorists started using most of the cyberspace which provides them more gateways.

Legislation for surveillance technologies like Pegasus in India

Pegasus, a modern surveillance tool that trembled the Indian democracy and there have been questions rising to the extent white importance of national security can be used as a protection by the citizens in the state for surveillance. Hence it argues for national security in the Pegasus scandal. There is more it requires that the Indian government must adhere to international democratic norms regulating surveillance technology.

NSO groups in its statement proclaimed that they sell the snooping malware only to intelligence agencies and the government. But the union government didn’t admit that they are using the Pegasus spyware or dealing with the NSO group. However, there are established procedures and protocols through which law interception of electronic communication is carried out for national security and safety “Ashbin Vishnu stated in the parliament. He also cited Section 5(2) of the Indian Telegraph Act, 1885, Section 69 of the Information Technology Act, and the Information Technology Rules, 2008 (procedure and safeguards for the interception, decryption, and monitoring of Information) as time-honored protocols for legal interception by the competent authorities.

And also the Government of India has contended that all communication surveillance takes place legally in India. The Telegraph Act, 1885, and the Information Technology Act, 2000 are the two laws primarily concerning communication surveillance in India. The Telegraph act deals with the interception of calls and the IT Act 2000 was legislated to deal with electronic communication, coming after the Supreme Court intervenes in 1966.

Telegraph Act, 1885

Section 5(2)f the Telegraph Act reads as “On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the government making the order or an officer thereof mentioned in the order: Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this subsection”.

Under Section 5(2) of the Telegraph Act, the government can intercept calls only in certain situations such as in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order, or for preventing incitement to the commission of an offence. Hence, the same restrictions are imposed on Article 19(2) of the Constitution.

In addition to this, Section 5(2) says that even this interception cannot take place against journalists,” Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained unless their transmission has been prohibited under this “sub-section.”

Public Union Civil Liberties v. Union of India : Intervention by Apex Court

In this case, the public union of civil liberties filed public interest litigation concerning telephone tapping in recent days. The petitioner challenged the constitutional validity of Section 5(2) of the telegraph act. And also a writ petition was filed by CBI in the wake of the report on “Tapping of politician’s phones.” The Apex Court observed that the authorities dealing in interception were not even logs on interception and maintaining adequate records.

Henceforth, the Apex Court said that ‘Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to sell telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, however democratic, exercises some degree of Sub-rosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day.”

Justice KS Puttaswamy (Red) and Anr. v. Union of India and others

In 2017, the nine-judge bench of the Supreme Court of India, in this case, held that the right to privacy to be a fundamental right. The Apex court premised the verdict on the principle that,” Privacy is the ultimate expression of the sanctity of the individual”. It also held that the following principle (i.e.) “Principle of proportionality and legitimacy must be satisfied to impose restrictions on right to privacy. While concluding this case, it is noted that Justice Sanjay Kishan Kaul observed that “Surveillance is not new, but technology has permitted surveillance in ways that are unimaginable.”

Information Technology Act, 2000

Apart from Article 19(2) of the Indian Constitution and Section 5(2) of the telegraph act 1885, the information technology rule 2009 and Section 69 of the Information Technology Acts further provides the legal framework for electronic surveillance such as the procedure for safeguards for the interception, monitoring, and decryption of information for the investigation of the offence.

Information Technology (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009

The detailed procedures for the safeguard of an individual are enshrined in IT Rules 2009, such as :

Taping of reasons for interception of any information.
Direction for interception shall not exceed 60 days from the date of its issue. It can be also renewed but the period shall not exceed the total period of 180 days. Destruction of records of information collected from such interception within 6 months unless such information is required for functional needs.
The confidential obligation of intermediaries is not to disclose any information acquired to a third party.

However, Section 69 of the IT act does not authorise any agency to install spyware to hack mobile devices for this. When the same section is read with Section 43 of the IT Act 2000, criminalises the hacking of the device

Need for proper reforms

The Pegasus outbreaks made us recognize the lack of a proper legal framework to deal with the advancement of surveillance techniques in many countries across the world. The cyber laws of most of the countries only focused on electronic commerce and electronic format. To name a few countries such as China, Vietnam, and Singapore have dedicated cybersecurity laws.

When it comes to the cybersecurity context of India, it is important to note that the last framework on an interception in India was laid back in the year 2000. Though, the use of spyware is illegal which constitutes cyber crimes under Section 66 read with Section 43 of IT Act, 2000. Hence, the advancement in surveillance techniques over the past decade requires the urgent need to have a dedicated cybersecurity law.

It is necessary to make appropriate checks and balances on the misuse of surveillance technologies, even the amendment of Section 69 of the IT Act. Required regarding the advancement of surveillance technology. The Pegasus scandal is a wake-up call for the proper legal framework of cybersecurity but also to limit the potential misuse of spyware.

Conclusion

Presently, cyber warfare is a steaming concept that would be inclined to be a weapon of any future conflicts. As the hell of war enhances conditional online, there is no need to send military troops into canals and onto the border to invade any other nation. Instead of weapons like guns and missiles, upcoming wars will be fought by hackers and terrorists using computer codes to damage the enemy’s infrastructure or to steal data from other nations to attain their political goals.

The Pegasus spyware is the best current example. There is an urgent need for a legal framework for the surveillance of such hacking spyware. The current situation shows that there is an immediate requirement for the proper legal framework to encounter cyber-warfare situations in the future. The government pretends like they don’t know anything about this illegal hacking on such a large scale, there is indirect de-democratization in darkness.

References

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Advertising law : walking a fine line between the law and online advertising

By

Diganth Raj Sehgal

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August 18, 2021

0

Consumer Protection — Image source - https://bit.ly/3b7GEml

This article is written by Udita Prakash, pursuing law from UPES, Dehradun. This article deals with online advertising and its importance. I have briefly dealt with the laws which are already existing in India related to the advertising law and also the conflicts between the regulating mechanism and online advertising. The misleading advertisement and how to deal with them accordingly, and at last the scope and the future endeavours of the Advertising law.

Table of Contents

Introduction

Advertising is the centre of a business debate that the Supreme Court has determined to be part of freedom of speech and is a fundamental right under Article19(1)(a) of the Constitution of India. In fact, without communication services with the general public, many industries and commercial companies are forced to close doors, and employers are banished. The definition of work and economy will disrupt advertising. It offers the most compelling sale possible at the lowest cost. So, it’s really a promotional message, the idea of a sale.

Online advertising is defined as an Internet-based commercial marketing activity used to increase consumer awareness of the value, presence and/or availability of a particular service or product. Various laws relating to online advertising take various forms, including the moral and ethical promotion of legitimate and illegitimate advertising strategies intended to ethically express details and functions pertaining to the product or service in question and existing in the jurisdiction. These laws and statutes are adopted to protect the rights and interests of consumer groups and legitimate business rights granted to some or all business activities and operations.

Advertising law – an overview of the existing regime

Advertising in India has undergone a major transformation. However, as the misuse of Doordarshan and Prasar Bharti advertising forms to modern television channels and media, such as banned drug advertising and alcohol advertising, has increased, the government has put in place various laws to control such advertising. The laws responsible for managing misleading ads are:

The Consumer Protection Act of 1986

Section 6 of the Consumer Protection Act, 1986 deals with the right to information regarding quality, quantity, potency, purity, etc. To protect trade and unfair practices, Section 2(r) of the Consumer Protection Act defines unfair business practices that cover the scope of false advertising and false deception.

The Indian Penal Code, 1860 – Advertising and terrorism-related crime, hiring contract killers, or inciting violence is illegal and punished under Indian criminal law.
The Cable Television Regulation Act, 1995 (Cable Television Amendment Act, 2006) – Under Section 6 of the Act, the announcement may not be broadcasted via a cable service announcement unless it complies with the advertising code. It is stipulated that Section 7 of the Cable Television Regulation Act ensures that advertising codes must not compromise people’s morals, dignity, or religious aspects.
The Cigarette and Tobacco Act, 2003 – Section 5 of this Act prohibits direct and indirect advertising of tobacco products in all forms of audio-visual media.
The Food Safety Standards Act of 2006 – It prohibits advertising related to grade standards, quality, quantity, or composition and states the need or use of food that is misleading, deceiving, or violates cannot be done.
The Young Persons (Harmful Publications) Act of 1956 – It is against criminal and violent atrocities, or otherwise against persons under the age of 18.

In a groundbreaking case between Tata Press Ltd v. Mahanagar Telephone Ltd (MTNL), (1995), the Supreme Court examined whether Tata Press was allowed to publish phone books and sell ads on yellow pages. The court found that while advertising or commercial speech was equated with the fundamental right of expression stipulated in the Constitution, the business entity was also protected.

The conflict between regulating mechanisms and online advertising

The term “online advertising” is not defined by Indian law. However, laws regulating the publication or advertising of content in the physical form are media-independent and apply to content on the internet. Therefore, content posted or promoted on the Internet must comply with applicable laws of Indian content and advertising. In India, there is a mechanism to regulate advertising, which is self-regulation and is regulated through statutory rules and regulations. However, most of the regulation of advertising is printed and electronic media is in the area of self-regulation.

For printed matter and electronic media, there are several self-regulatory bodies responsible for regulating media content. These organizations include the News Broadcasting Association (NBA), the Indian Broadcasting Foundation (IBF), and the Indian Publishing Guild, which are primarily related to printed and electronic media content. On the other hand, India’s Advertising Standards Council (ASCI) is the leading self-regulatory body that regulates advertising in the media.

Rules against misleading online advertising

In addition to certain industry-specific laws, the cost per action specifically prohibits the following business practices used to promote the sale, use, or supply of goods:

Misrepresents a product or service as a particular standard, quality, quantity, style, or model.
Rebuilt, used, reconditioned, refitted, or old as new deceptive items.
It represents that a product or service has sponsorship, approval, performance, characteristics, use, or benefits that said product or service does not have.
Make false or misleading statements about the need or usefulness of a product or service.
Generally provides warranties or guarantees of product performance or efficacy that are not based on adequate testing.
Allows the publication of advertisements related to the sale of goods or services at bargain prices that are not intended to be sold at bargain prices.

The Indian Advertising Standards Council (ASCI) is a self-regulatory body for the advertising industry. ASCI has created a self-regulatory code in the advertising industry intending to achieve fair acceptance of advertising practices in the best interest of end consumers. ASCI also has a similar code from time to time for advertising in specific sectors/industries. However, this standard is a voluntary discipline that people involved in the industry must follow and is in no way mandatory. As a result, code compliance is rare and ASCI rarely receives complaints about non-compliance. However, the Cable Television Network (Amendment) Regulation of 2006 requires that all advertisements published by cable services comply with the Cable Television Network Rules, 1994 under Section 7(9). According to the ASCI Code, anyone who finds them false, misleading, offensive, or unfair can file a complaint about diverted ads. The Consumer Complaints Redressal Council (CCRC) reviews complaints received from the general public, including complaints from government officials, consumer groups, certain advertisers, and even suo moto complaints from the ASCI Board of CCRC members.

Restrictions

Advertising of products such as tobacco, and its derivatives, alcohol, milk substitute, drugs, firearms, lottery, etc. is prohibited by various laws on the internet. But, there are no special prohibitions regarding advertising in online spaces. These restrictions and prohibitions are moderately independent.

Liability

The main obligation under Indian law lies with the content provider as they must ensure that the hosted or posted content does not violate any applicable law. Depending on the nature of the infringement, content providers may be subject to civil and criminal liability. However, electronic intermediaries such as internet service providers, search engines, and online marketplaces can benefit from the safe harbour provisions of IT law. To qualify for the benefits of the Safe Harbor Act, 2008 intermediaries must meet certain conditions, including:

The role of the intermediary should be limited to facilitating access to information provided by third parties.
The intermediary will not initiate the transmission of data made available by third parties.
Do not select a transmitter/receiver.
Do not select or change the information contained in the transmission. One must also prove that the broker “complies with due diligence in performing its duties under Telecom Implementation Law and Telecom Implementation Broker Regulations, which means that the broker collusions, incites, supports, or induces entrustment of illegal activity. Request that you do not, and once you receive the knowledge, quickly remove or disable access to unwanted content.
Shah Rukh Khan promotes equity cream to build consumer confidence in your brand or product. Madhuri Dixit feeds children instant noodles as a healthy snack and makes customers believe in the product. Even if viewers realize that celebrity-recommended products are just marketing gimmicks and may not be used by celebrities, the impact of this will increase product sales.
The Consumer Complaints Council (CCC) affirms Hindustan Unilever Co., Ltd. (HUL) claim for their Lever Ayurvedic soaps, based on the 5000-year-old Ayurvedic scriptures containing 15 Ayurvedic herbs.
Online offers companies that target well-educated, innovative and wealthy men or students with great potential for success because their segment is so representative. Products with a high degree of information aggregation and a large number of purchasers participation are also suitable for online promotion due to their high information capacity and low cost. The distribution opportunity is especially suitable for growing mail-order product channels. Companies with a low product or audience fit can use branding to establish user links or simply learn about interactive media. Traditional advertising is consumed passively, and its online implementation requires the understanding, commitment, and resource allocation of business owners to function properly. The marketing department must be responsible for developing and implementing online strategies, along with the advice of competent advertising agencies.

Scope for recommendations and future endeavours

Online advertising is steadily taking market share away from traditional media advertising. Given the growth potential in India and increased internet penetration, online advertising will skyrocket in the coming years. According to an IAMAI survey, 38.5 million Indian internet users are the main targets of many advertisers who are clouding the web. To take advantage of this growth, many online advertising networks have sprung up in India in recent years. This is an overview of the current group of online ad networks in India.

Examples of online advertising

Komli

Komli is India’s leading online advertising network, providing publishers with tools to help them manage, optimize and get the most out of their online advertising. Meanwhile, advertisers have access to millions of customers around the world to increase consumer engagement, brand awareness, leads, and sales. They offer a variety of options such as CPM and performance-based CPC and CPA marketing. Solutions for publishers and advertisers include the Komli Premium Network and the Komli Performance Network. Komli Premium Network offers a host of ad formats and many of the best brands using the latest web technology, giving advertisers a rich and targeted way to connect with consumers.

Tyroo

Tyroo is an Indian-based online advertising network that uses proprietary targeting technology to ensure that advertisers are accessing the right website through the publisher’s inventory. internet company Yahoo acquired at least 35% of Tyroo’s stake in July 2007 for a private amount. Incubated by Smile Interactive Technologies Group, a digital media company based in Delhi, Tyroo is an HT media group. Tyroo recently claimed to have reached 2.5 billion ad impressions a month. According to Tyroo, a strong network of 2,500 publishers includes Perfspot, Facebook, Dotdasht.com, SantaBanta, Smashits, Yatra and OneIndia. The company counts Microsoft, General Motors, PepsiCo, ICICI and Yahoo as advertisers.

Google

Though not in India, Google is the most popular ad network not only in India but all over the world. The five or more publishers listed above claim to be the largest ad network in India. With a market share of over 75% is Google.

The current bend towards what advertising is, what it contains and how it is designed has been shaped by the technical possibilities and limitations of traditional media. Due to the many formats and uses of advertising, it is difficult to make a complete generalization of what advertising is, but many different characteristics of advertising can still be observed.

Conclusion

Currently, many regulations in India monitor the display of obscene and misleading advertisements. In reality, most advertisements are ignored by consumers and go unnoticed by statutory agencies. Therefore, implementation of law always takes time to enforce. Advertising violates the public’s trust and regulators must take immediate action. The Broadcasting Bill proposed in 2007 is expected to revolutionize the advertising mechanism. The need for a unified statutory framework to regulate advertising is increasingly urgent, and we hope that the request for such a codification of the advertising law must be recognized by the national parliament.

In conclusion, advertising on the world wide web has many advantages and disadvantages. In my opinion, the strengths outweigh the weaknesses. By leveraging online advertising to show ads around the world, you can take your business to a whole new level, targeting a wider audience. Its low cost allows small businesses to invest in online marketing, which reduces the initial cost of marketing. The vast expanse of the internet also allows users to experience more of the services your business offers every day, making it a convenient place for shoppers. It allows people to take more time out of their lives, other traditional shopping methods, such as driving to a store to pay the bills. The internet has helped us humans in many ways. The most important thing is always the disadvantages. But in my opinion, as stated earlier, the most important thing is that the strengths outweigh the weaknesses. The world wide web is constantly evolving, creating a better place for online advertising in this case. It has proven to be the most important advertising method along with all other media and guarantees results from every time.

References

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Trinidad and Tobago M&A regime

By

Abanti Bose

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August 18, 2021

0

Port-of-Spain-Trinidad-Tobago (1) — Image Source: https://rb.gy/1d6ryu

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

Table of Contents

Introduction

M&A is the most prospective field in the matters of corporate restructuring. The most efficient method to increase an entity’s business operations is to merge with another entity working in the same or another business. Many organizations seek to develop their entities through restructuring. According to Thomson one bank SDC, no deals that have taken place from 1980-2010 are 4.5 lakhs. During these periods, takeovers recorded by Caribbean firms were worth US dollar 195 billion. The number of such takeovers surged drastically during these periods. M&A has helped Caribbean firms to compete in global markets and locally increase their stronghold.

History of M&A : Caribbean perspective

The story of M&A began in 1993 in T&T, where a merger of 3 banks took place to form First Citizens Bank. Concerning developed countries, M&A activity in T&T was very passive. The leading cause of liberalization was the debt crisis of the 1980s, which paved for this activity. It was precisely contrary to the government’s plan of nationalization during the 1970s. There was the insistence by premier lending agencies worldwide to liberalize their economy to expedite their growth and productivity. Specifically for T&T, there were 75 M&A taking place between the period the 1980s and 2009, out of which foreign firms undertook 52% of takeovers. The majority of acquirers were either from Europe or the American continent. The sectors targeted by foreign entities were telecom, manufacturing, petrochemical, and banking.

What is FTA?

The FTA, also known as the Fair Trading Act, establishes a framework for efficient implementation of competition policy in T&T and addresses issues like thwarting the use of monopoly and controlling 40% of the market mergers and agreements with anti-competitive objects. This act applies to all of the fields except telecommunication, banking, and securities industry. In addition, there are specific activities such as forming cartels, price-fixing, resale price maintenance, and bid-rigging, which are prohibited.

What is a merger in regards to FTA?

As per Section 13(1) of the FTA, defines a merger is a combination of two or more entities, like or alike. Therefore, it can be either through JV, amalgamation, or combination.

Laws governing M&A in Trinidad and Tobago

We know that M&A transactions can be complicated; the legislature imposes some more complexity through the Fair trading act, which is given in chapter 81:13 of the laws of T&T. Recent proclamation of FTA in early February 2020, has come as a welcome for the previously unregulated industry. The primary purpose of the FTA is to act as a watchdog for entities that combine and tend to bring anti-competitive practices in the industry. This type of regulatory legislation solved the age-long problem when the players used to abuse their power through mergers and acquisitions that were anti-competitive to the industry. Entities have to take the approval of the T&T FTA commission before entering into a transaction.

Merger control

Recently, the Commission has released specific Draft merger guidelines on its internet website, demonstrating the required regulatory approval steps. It clarifies the restriction imposed under Section 14 of the FTA. Section 14 of the FTA talks about the conditions for entering into the merger agreement to satisfy certain conditions. They have to take permission from the FTA commission where their assets should not go past the US dollars 50 million. One such party should conduct business in T&T. During January 2021, and the Commission published a press release to construe the provisions of the guidelines and comment on any controversial issue. Also, the Commission would provide help and cooperation concerning complying with any provision of the FTA. The two provisions mentioned above can create a level of vagueness that is clarified through the guidelines, e.g., the conditions for which asset test is to be measured and what it means to carry on the business in T&T according to the FTA? These guidelines also talk about which both parties must submit essential documents for the proposed transaction. For example, item 3 (16) of the guidelines talks about the need for parties to confirm that the parties intend to run or carry their business in Trinidad and Tobago. It must also fulfil the conditions mentioned under Section—14 (1)(b)(2) of the Commission.

The FTA speaks for conditions where the transaction does not constitute a merger as per the guidelines of the FTA. For example, the phrase mentioned that tends to bring some change in influence regarding the policy of the enterprise in a transaction does not come under the definition of the merger.

Penal sanctions by FTA

There is a specific provision of FTA, which contains penal sections. There should be strict construe of penal sections. Also, a person must be given punishment lest there is a gross violation of the law. They tend to observe transactions, and the vision of parliament is evident that it vigilantes that transactions tend to create anti-competitive impact. Such transactions should be analyzed and approved by the FTA before closing the transaction. There are restructuring ways that do not come into the definition of the merger, such as reorganization within an organization, transferring shares from one party to another, i.e., to subsidiaries to the holding company. These are some transactions that look like mergers at their face, but as per the FTA, these are not mergers.

T&T fair trading commission

TTFC is an independent body that was established after the FTA act,2006. T&T was the third country that established such a statutory body. The primary functions of TTFC are as follows; Guiding the company concerning compliance with laws, advocating competition as free and fair, thwarting anti-competitive conduct.

TTFC has many powers which makes it possible to start its function:

Starting the investigation;
Witness examination;
Examination of documents with regards to the investigation.

Present competitive index

T&T ranks 79 according to the global competitive Index,2019. Their ranking has increased as compared to previous years. It can be made possible due to the Commission’s proper functioning and developing business incubators.

Case of Trinidad and Tobago in the Caribbean

Rambarran and Elbourne (2006), these people studied the situation of M&A in Caribbean countries. They found out the main issues were an increase in market and monopoly power, no proper regulation regarding acquisition, and takeover regarding cross-border. There was a clear consensus that M&A helps build competitive preference, but there is a problem when it comes to the stage of post-merger integration. A chunk of activity is concentrated in the banking and financial sectors, three merged banks, and a Canadian Bank. It was regarded as having a positive impact on the financial system as there was a more substantial entity, but if we go to the other side, state control on the bank issues many transparency issues. However, still, M&A activity is at the dormant stage in the Caribbean Island as there are many family-controlled businesses that generally do not prefer merger and take it as the last option. Also, there is a limitation in financing instruments; M&A transaction sources are from merchant banks and investment banks, which often use project finance, equipment housing, and syndicated loans. Also, in 1984, the venture capital industry was established, but the growth rate is still low.

Recent M&A transaction

ANSA merchant bank limited subsidiary of ANSA Mcal acquired Bank of Baroda(Trinidad and Tobago). The central bank approved this agreement through a sale agreement. It includes three retail branches in San Fernando, Chaguanas, and Port of Spain. The cost of the transaction was between 175-200 crore. Bob Started its operation around 2007. The intention of BOB here is to rationalize its international operation. BOB signed the share purchase agreement for the sale of the business of BOB with approval from the Central bank.

The Trinidad-based company Trinity Exploration and production acquired moonsie oil company which is a private based Trinidad operator. The deal considers the US $3.5 billion, which is paid consideration from the company’s existing capital. It will help in adding more reserves as well as increasing production. Also, it will Enable Trinity to expand its new 3D seismic sequence stratigraphic interpretation approach.

Conclusion

Undertaking an acquisition without a proper strategy is always going to be a disastrous process. The history of the transaction in M&A has suggested a kind of a chart to achieve success, including management of top and middle, staff skills, physical resources, and operation. Companies now need to be careful in regulating their debt obligation and moving earlier to pave the way for negotiation with creditors to not be in an unfavourable position later. Also, the recipe for most of the failed mergers in history is poor execution and integration planning. Closing must not be the success measure; integration should be. A successful M&A transaction is dependent on many factors; picking the right team to manage, conducting a readiness assessment, carrying out DD through leverage technology, planning for post-merger processes. In future T&T, M&A activity would be swelling up. The new wave of M&A in T&T should be consolidating the financial regulation, competencies. Also, the government must bring such reforms, which would help in strengthening the financial market.

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Limitation of Copyright Law to protect fashion designs

By

Abanti Bose

-

August 18, 2021

0

FashionDesigner_1920x1080 (1) — Image Source: https://rb.gy/rzc6yx

This article is written by Zoya Mehta, pursuing Diploma in US Intellectual Property Law and Paralegal Studies from Lawsikho.

Table of Contents

Introduction

Fashion is a medium through which art transcends into our wardrobes. It is a form of art that thrives on new creations and ideas of designers. The intellectual property laws grant exclusivity and ownership to the creator for gaining economic and moral benefits. Furthermore, these laws provide remedies against fashion knock-offs and counterfeits, which is becoming a serious threat for designers. Having said this, let us examine how far is the existing legislation able to permeate through the fashion industry to protect the intellectual property of fashion designs.

Intellectual property (IP) law is grounded in incentive theory, giving exclusivity to the creator, enabling them to profit from their work, incentivizing the creator to create more work. The fashion industry has been described by many scholars as IP’s “negative space” areas where creation and innovation thrive without significant protection from IP law. “Many areas of creation function in the absence of intellectual property protection. A smaller group—those residing in IP’s negative space—are enhanced by that absence. Recent case studies have explored a number of these areas, which include such diverse industries as fashion, cuisine, magic tricks, stand-up comedy, typefaces, open-source software, sports, wikis, academic science, jam bands, hip hop mixtapes, and even roller derby pseudonyms.” (Rosenblatt 2010, 319-320)

Fashion designers and their IP tussle

It is a usual thing to hear about buying the first copy of some well-known designer of the fashion industry at much cheaper rates. Delhi’s Gaffar Market, Bangalore’s Brigade Road, Mumbai’s Linking Road, and Kolkata’s Vardhman market are places where one can find top-notch designers’ first and second copies at a minuscule price compared to the actual design article. Plagiarism in this industry exists between the designers as well, where there are many instances of one big design house copying the designs of another big design house. In 2017, Rohit Bal was the first designer to get copyright over his entire collection, and later, many prominent designers followed.

With this scenario, many questions arise regarding the standing of IP Laws in India in the context of fashion designs. Designers who create a design for economic leverage are at a loss when the design becomes common due to copying. Why don’t designers protect their designs through intellectual property laws? Do Indian intellectual property laws offer any protection to the fashion industry? If yes, then to what extent? And, why aren’t the designers finding incentives to protect their designs? I will be discussing all these questions in this article.

Understanding the law

Fashion designs can be copyrighted under two laws in India, the Copyright Act, 1957 as ‘creative works’ and the Design Act, 2000 as designs. Primarily, there are two aspects of clothes designs, which can be protected through these laws. Firstly the drawings/colour combinations on the garment can be protected as ‘artwork’ under the Copyright Act. Secondly, the shape of the garment attributing to its distinctive fabric and couture can be protected under the Design Act. In India, the Copyright Act, 1957 doesn’t make registration of artwork mandatory. Another vital aspect of the design is its logo. The Trademark Act in India allows protection to the logos, which become constituent of designer clothing and accessories.

Understanding the state of affairs in detail from the perspective of the Copyright Act, Section 15 makes things all the vaguer. It is a special provision regarding copyright in designs stating that copyright shall not subsist under this Act if registered under the Design Act. The Act makes it apparent that design registration and copyright over an article cannot co-exist. This restricts the tenure of the design to ten years, which can be further extended for five years. Section 15(2) of the Copyright Act. 1957 restricts the copyrightable limits based on production quantities of the design. The moment the production of the fashion article exceeds 50 units, the copyright would stop subsisting. If the designer wants to reproduce the article beyond 50 units, they would need to register the design under the Design Act to protect its copyright.

It is not contested that the moral rights of the copyright holder do not get affected. Section 22 of the Copyright Act, 1957, grants full authorship/ownership of their original artistic work for lifetime plus 60 years. Having said this, another aspect is about the improvisations on original works. The fashion industry thrives on improvisations of existing styles of clothes. Many big names in the fashion industry get inspiration from the existing designs.

For analyzing the Design Act, 2000, with reference to fashion designs, Section 11 and Section 22 are vital. Copyright emerges from Section 11 of the Design Act, 2000, where design is protected/copyrighted for 10 years on registration, which shall be extended for 5 more years if applied before the expiry of the copyright period. Section 22 prohibits piracy of a registered design by making it unlawful to use the registered design or any fraudulent or obvious imitation unless consent is obtained from the registered proprietor. Further, the section also prohibits imports of pirated designs for the purpose of sale. Furthermore, the Third Schedule of the Design Rules, 2001, mentions particular classes of articles under which various designs would be registered. Under these rules, “Articles of clothes and haberdashery” fall in class 02. One very big limitation of the Design Act is that the design proposed to be filed needs to be unique and novel.

The boundaries of IP protection in the fashion industry are very fuzzy and difficult to comprehend. There exists an overlap between the Copyright Act 1957 and the Design Act 2000 in establishing and protecting the intellectual property of fashion designs.

A question arose in Rajesh Masrani v. Tahiliani Designs Pvt Limited (2008 PTC (38) 251 (Del.)) whether patterns printed on fabrics qualify as artistic work or not and can these be protected under the Copyright Act and the Design Act? The present case was an appeal against the single judge interim injunction granted in favour of Tahiliani Designs, where Rajesh Masrani was prohibited from producing, selling, or advertising similar fabric. There were very cogent arguments raised by the defendant-appellant worthy of discussion. The first argument was that the garments and drawings were not ‘artistic works’ for the purpose of copyright protection, and the second argument was that the drawings are required to be registered as designs as per Section 15(2) of the Copyright Act. The Delhi High Court opined that such designs come under the ambit of copyright protection if produced below 50 in number and if not produced for commercial use, implying that the objective of creating a work is decisive for qualifying it to be copyright worthy. The fashion brand of Tarun Tahiliani created only 20 such pieces with the specific design due to which protection was granted, and printing, selling, or advertising of a similar design was prohibited.

Section 2(d) of the Design Act, 2000, while elaborating on the definition of a “design,” excludes any artistic work defined under Section 2 (c) of Copyright Act, 1957. The cross reading of these sections from these two acts defines the boundaries of intellectual property where artistic work is excluded from the design aspects. Design aspects require mandatory registration under the Design Act to protect against infringements.

International outlook

The UK Copyrights Designs and Patent Act 1988 protects drawings and graphic works on an item and 2-D items such as textiles during the lifetime of the owner and 70 years thereafter. Similarly, in the US, fabric prints are protected for a term spanning the life of a designer plus 70 years thereafter. Another form of IPR in the US, which is protected, as Design patents are “ornamental designs of a functional object,” such as ornamental designs on watches, mobile phones, jewellery, etc. The term of protection for design patents is 14 years and they are rarely granted to garments. The European Union grants three years of protection to fashion designs and creators can apply for an extension of up to 25 years.

A garment design comprises two elements- artistic design element and usability element. In order to be copyrightable, the original design elements must be separable from the useful nature of the article. An illustrative case, as cited in (Scruggs 2007, 124), is Masquerade Novelty. In Masquerade Novelty, at issue were “nose masks” designed to resemble the noses of a pig, elephant, or parrot. The district court held that the masks were “useful articles” that could not be protected under copyright law. The Third Circuit reversed this ruling, reasoning that “the only utilitarian function of the nose masks is in their portrayal of animal noses.”

IP predicament for the fashion industry

It’s a catch 22 situation for designers to seek design patents for their apparel for reasons which are apparent if the ground reality is considered. Firstly, the design patent applied for registration should qualify as distinct from the prior art already existing. Secondly, the fashion life cycle is very small and by the time the design patent is obtained, the fashion styles change. It is a very big de-motivator for the designers. This makes the fashion industry susceptible to piracy and plagiarism. Fashion designers invest their time and money to create designs, and the fruits of their labour dissipate into the hands of copycat designers. The pain of the designer is further aggravated if they decide to file infringement suits against knock-off designers due to the high litigation costs, energy, and time they would need to invest. By the time the court concludes a case, the fashion style would have changed and it wouldn’t offer any benefit to the designer. Moreover, the pecuniary damages granted by the court do not exceed more than 50,000 rupees.

On the contrary, Kal Raustiala & Christopher Sprigman argued that copycat designers benefit the fashion industry by pushing the fashion cycle forward by creating trends incentivizing the fashion houses to create the next big fashion trend. They termed this as the “piracy paradox.” The fashion industry is very dynamic. We all know that fashion trends get exhausted when everybody starts wearing similarly styled clothes. Knock-off/copycat designers help to make the design common quickly by flooding its respective market with counterfeits. For a designer, the sooner the trend ends, the better it gets for them to bring new trends into the market, ultimately leading to people demanding a new style of clothing, bringing economic gains for the designers.

Conclusion

We can very well conclude that the IP laws do not protect the design as a whole since most fashion apparel is deemed functional. Instead, IP laws protect the rare elements of the garment design that are physically and conceptually separable from the garment’s function. For example, fabric, patterns, sketches, graphics, logos, etc. The IP of a fashion design exists through these various ingredients and not for the design as a whole.

We have seen an increase in IP litigation due to the designer not being able to get credit for the article she creates without being able to exploit his work. The design labels like H&M, Zara, Levis, Uniqlo, and the like should be proactive to file for registration of their designs if the design is new or original, as they produce in bulk quantities. Designers who produce under 50 in quantity should also register their designs under copyright law.

Intellectual property protection promotes innovation. Without the protection of IP, there is no incentive for the creator to create novel artwork or designs. Creativity and innovation are indicators of a healthy society. The fashion industry is in need of a sui generis protection of its IP similar to the proposed fashion bill in the US to protect the rights of designers. There is a need for comprehensive fashion law. If policymakers are not keen enough to bring separate legislation categorically dealing with fashion law, they can at least initiate amendments in the existing legal mechanisms to make them more conducive to the fashion industry.

References

2008 PTC (38) 251 (Del.)
Masquerade Novelty Inc. v. Unique Indus., 912 F.2d 663 (3d Cir. 1990).
Rosenblatt, Elizabeth L. “A Theory of IP’s Negative Space.” Colum. JL & Arts 34 (2010): 317.
Scruggs, Brandon. “Should fashion design be copyrightable?” Nw. J. Tech. & Intell. Prop. 6 (2007): 122.
https://freakonomics.com/2010/03/12/should-fashion-be-protected-by-copyright-laws-a-guest-post/
https://www.mintz.com/insights-center/viewpoints/2014-11-05-its-material-ip-world-trademarks-copyrights-design-patents

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Understanding IT procurement contract

By

Abanti Bose

-

August 18, 2021

0

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

Table of Contents

Introduction

For any business to survive and grow, it has to ensure that it produces maximum output at minimum cost. Accordingly, when any entity or any organization undertakes a project, it aims to complete it within the minimum cost of resources and maximum profit.

For this purpose, a key decision top management of any organization has to make is whether a certain project or task can be completed using the internal resources available in the company or whether outside vendors need to be hired. Obviously, they would prefer to use internal sources as much as possible but there will be instances where they will need external support by way of outsourcing. This process of outsourcing the services is called ‘procurement’. When this procurement is incorporated in the technological domain, it is called ‘IT procurement’.

IT procurement is performed typically on the basis of a contract. An IT procurement contract is a document detailing the legally binding agreement between a vendor of IT products and services and a purchaser where they will be bound by the terms of agreement throughout the process.

Why is it important for an organization to engage in IT procurement?

IT procurement helps in providing the acquisition of goods or services with the correct timing, location, quality, and quantity requirements of a business project at the lowest possible cost.

It gives the technology companies the liberty to focus on more important aspects such as research and development, fundraising, intellectual property, etc.

Vendors, most of the time, provide such IT services cheaply and ensure a comprehensive service because they specifically operate on a larger scale through contracts with similar other entities thus, being more productive since organizations focus on what they are good at in their respective fields.

Many organizations do not give much time and importance to these IT procurement contracts. But without due consideration, procurement can have disastrous consequences including breach of one’s own confidential information. When a complication arises, the project will succeed or fail based on the strength and comprehensiveness of the original procurement contract which is where IT procurement contracts become very powerful.

Types of IT procurement contracts

IT procurement contracts are mainly of 3 types:

Fixed-price contracts

Where the terms of the project are laid down clearly. The seller knows exactly what they are required to supply, and the buyer knows exactly how much to pay once the contract is complete;

Cost-reimbursable contracts

Where the buyer pays for the cost of the work completed along with indirect costs (like salaries and utilities) that are directly involved in creating a product or service;

Time-and-materials contracts

Where vendors are reimbursed for the materials used along with payment for the amount of time (in hours) spent on the project. This is the most used type of procurement contract in the IT sector.

Essential elements in a successful procurement contract

Due consideration of all involved sourcing processes;
Robust and comprehensive negotiations;
Detailed project management requirements;
Precise definitions of key contract terms;
Essential clauses that balance the interest of all the parties;
Awareness of stakeholders regarding all the terms and conditions.

If the above-mentioned points are kept in mind beforehand, you create an IT procurement contract that not only will protect your company but also develop trust with the vendor. Thus, a well-vetted contract is very important in this aspect and for that one has to have knowledge of all the key clauses involved in that aspect. Let’s discuss these key clauses in detail.

Key clauses in an IT procurement contract

The basic clauses which are to be included in any IT procurement contract are as follows:

Defining the scope of services

Procurement contracts in the IT sector heavily deal with services. Therefore, detailed terms must be provided that specifies the product or service being offered by the supplier, as well as to what extent and to whom. This eliminates any misunderstandings about the vendor’s responsibilities. It can be drafted in the following manner:

“The services under this agreement must meet the descriptions, quantity, shape, performance, and functions set forth in Appendix 1, or such additional specifications as the parties may agree to in writing.”

Payment

Payment is a very important clause as it simply refers to how payments are to be made and received, and under what circumstances payments will not be allowed.

Generally, the payment is through a particular schedule. The sample clause is as follows:

“Payment for the first system acquired by the buyer will be made according to the following schedule:

30% when the sellers issue the order, and 20% to be billed when the product is delivered, and
50% on acceptance of the products.”

Confidentiality

Confidentiality is a very important clause in IT procurement contracts. It is advisable to have a separate non-disclosure agreement in this regard between the parties considering a lot of confidential information could be shared breach of which can have dire consequences. This clause shall state the details and nature of confidential information, what can and cannot be shared and exceptions if any. It usually also contains details as to whether the clause will survive termination or not.

Intellectual property and its ownership

This clause ideally states what intellectual property is involved, what are the rights associated with its usage and who will have ownership of such property. It can be drafted in the following manner:

“Except as expressly stated in this Agreement, nothing shall grant or be deemed to grant either party any right, title or interest in any intellectual property rights owned by the other party and nothing in this Agreement shall entitle either party to use the other party’s intellectual property rights in any way whatsoever without the prior written consent of the other party other than as provided for under this Agreement.”

Breaches and indemnity

Just like every contract, breach and indemnity form an integral part of IT procurement contracts as well. It can be framed in the following manner:

“If the other party is in significant breach of any material terms or condition of this agreement, the other party may terminate this with prior written notice of 30 days. The failure of any party to enforce any right or remedy provided at any time shall not be considered a waiver of such right or remedy with respect to any subsequent breach by the other party.”

Governing law and jurisdiction

Jurisdiction issues are very important especially if the procurement contract deals with organizations from separate countries. It shall be drafted as follows:

“1. The courts in Delhi shall have the sole and alone jurisdiction in all the matters arising out of, incidental to/ concerning this agreement.

Further, Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, can be referred to and resolved by Arbitration in India in accordance with the Arbitration and Conciliation Act, 1996 for the time being in force, which rules are deemed to be incorporated by the reference in the agreement.
The Tribunal shall:

Consist of three arbitrators. Each party shall appoint one arbitrator and the two appointed arbitrators would further appoint a third arbitrator;
The language of the Arbitration shall be English;
The venue of the Arbitration shall be Delhi, India.”

Relationship between the parties

Since services are being outsourced, it is important to define the relationship between the parties which shall be drafted in the following manner:

“This Agreement does not create a joint venture, partnership, or principal-agent relationship between the Parties, and nothing in this Agreement may be used to imply such a relationship between the Parties. Neither Party has a right, power or authority to obligate or bind the other in any manner unless authorized in writing by the other Party in a specified instance.”

Keep in mind that the above-mentioned clauses are a list of some essential clauses in a contract. Apart from these clauses, you should also include a few important clauses which are essential in every contract such as the recitals clause, rights and obligations clause, representations and warranties clause, definitions clause, interpretations clause, survival clause, notice clause, etc.

The clauses may also differ from business to business. Remember that protecting the interest of your business is the main objective and you must incorporate all such clauses which shall protect the interest of your business.

Conclusion

IT procurement contracts are regularly used as they tend to be a more effective and efficient method and sometimes, even more, cost-saving as we discussed. Further, a well-balanced procurement contract builds business relationships by protecting both the buyer and seller and develops a sense of trust.

They are of various types but in the IT sector, time and material contracts are most commonly used considering their matching characters with that of the IT sector. We further discussed essential elements an IT procurement contract just possesses.

And ultimately, including a few important clauses such as the scope of services, delivery times, fees, costs, payments, confidentiality, protection of IPRs, etc. in a procurement contract which provides a blueprint that allows all the parties to collaborate confidently which is ultimately the aim of every organization.

References

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Basic guidelines for contract risk management

By

Abanti Bose

-

August 18, 2021

0

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

Table of Contents

Introduction

In our day-to-day life, we constantly enter into agreements. It can be as simple as travelling in an autorickshaw. The first party agrees to pay the fare for the travel and the second party agrees to take him to an agreed destination. With this exchange, both the parties accept the rights and obligations arising out of the non-written contract. However, these are very simple types of contracts and the stakes in such types of contracts are relatively low. Likewise, businesses enter into contracts for performing their regular day-to-day activities where the stakes are relatively higher and greater risks are involved but by applying correct management strategies such risks can either be avoided or minimised. Let us dive further into this topic to get a better understanding of what exactly is a contract risk and understand how it can be managed.

What is contract risk?

Typically, contract risk is defined as one of the two things:

The chance of facing losses because the other party to the contract is unable to fulfil the terms, or
The deal performs badly and hence the risk of losses arisesIt is of the most common knowledge to people that the more the chances of earning profits from a deal, the more the risks are involved.

Contract risks

All business endeavours involve taking certain risks, however; the level of risk is decided to depend on the project. With proper management, the risks involved in these projects can be reduced to a certain extent and ensure that the company makes the most out of the project deal.

For most parts, the most common types of risks involved are:

Financial risks such as monetary profits or losses.
Legal risks such as breach of contracts or infringement, etc
Security risks involved in the business.
Risks surrounding the public image of the company such as negative publicity, poor staff morale.

Financial risks

Financial risks are the risks involving money risks regardless of how it results in changes in the top line and bottom-line figures of the financial statement of the company. Money loss can be a result of anything ranging from missing out on important contract dates, missed delivery dates, compensation on behalf of termination of contracts. For example, let’s say your company was supposed to introduce country related goods on 15th of August and the client fails to deliver them on time and because of that the launch was unsuccessful thus, resulting in huge financial loss for the company.

Legal risks

Legal risks arise when one fails to comply with any of the clauses in a contract. Legal Accountability helps to control the limit of legal risks. Legal risks may also arise on account of missing out on using the right legal clauses such as confidentiality clauses, disclosures, etc. Let’s try to understand this better, say the contract does not include a confidentiality clause and the companies freely discuss the terms and context of the contract with everyone and the information gets leaked to the general public, in such a case there will be little to nothing that the company can do because of non-inclusion of the confidentiality clause in the contract.

Security risks

Security risks exist when the contracts are stored in insecure locations, there are certain security risks when all the information regarding a contract is shared with all the employees of the company. There is certain high-risk information that should be kept only between the high authority employees of the company or if and when necessary, only to be shared with the required departments and after making them sign an NDA, so that sensitive information is not shared with the public or competitors.

Brand risks

Brand risks are the risks associated with how the public sees the company. Negative branding relates to negative consumer reactions, low employee morale. A brand’s reputation is directly related to its financial statements. Word, these days spread quickly. Negative reviews impact the reputation of the brand. One of the latest examples of this that we saw recently was Ronaldo asking for Coca-Cola’s bottles to be replaced with water in front of the media and the huge negative impact that it had on the brand.

How to identify and assess risks in your contract?

Reviewing a contract and negotiating terms are crucial steps in risk management but sometimes we are forced to accept terms we do not like, maybe because the contract is too important for the company to lose out on and the client is adamant on his terms and you are willing to take on those risks. Whatever the reason, but it definitely shouldn’t be because of your own company’s fault and because no proper risk reviewing procedure was followed by them as identifying and assessing risks in every contract is of utmost importance

The risk review team can follow certain steps to mitigate the level of risk involved, such as:

Evaluate the technical aspect of the contract

Consider whether the scope of services mentioned in the contract is within the company’s technical expertise to ensure the smooth execution of the contract. The team will also need to review the scope to make sure that it is clearly defined and reasonable and it is within the company’s power to perform them. If there are any gray area matters in the contract then proper evaluation can help the company discuss and clarify such matters with the client.

Term of the contract

Review whether the schedule of the contract is reasonable. If there is any delay in fulfilling the terms of the contract, does the contract provide for the damages of such delay. Studying such concerns will help the team draft a reasonable schedule and address any possible contract risk.

Pricing policy and payment terms

Reviewing the pricing policy and payment terms of the contract can help the team analyse whether the contract with the client will be a profitable gain or loss or whether such losses are acceptable or not.

Location of contract

Reviewing the cost of the location of where the contract is to be executed is important as well. The risks associated with laws and regulations of a particular location where the contract is to be executed have to be assessed beforehand

Assessment of the potential client

Before entering into any type of contract with a potential client, the risks of such contracts are to be evaluated such as, whether the clients have a good standing with respect to financial, reputation in the market, their behaviour with their previous clients, did they complete their contracts within stipulated time etc. Such a type of analysing helps a company make thoughtful decisions before entering into any type of contract.

Review the mandatory provisions of a contract

Mandatory provisions of a contract are those provisions which a company considers very important while reviewing and negotiating contracts with potential clients and cannot do away with under any circumstances. A few of those provisions are:

“Standard of care” the standard of care mentioned in a contract should be reasonable, where the highest standard of care induces a lot of risk on the company therefore the company should review such provision carefully before entering into a contract.
Limitation of liability: The company should review the scope under the limitation of liability clause induced by the client whether such provision probably increases the risk of your company and if it does how your company can mitigate it.
Mutual indemnification: Both the company and the client should agree to indemnify each other for their own negligence. The Company should consider how likely it is that the client shall behave negligently and cause damage to the company.

“Nice to have” provisions in a contract

Nice to have provisions are terms which are not necessary to be included in a contract but if included helps both your company and the client to reduce the risks associated with the contract. Provisions such as “notice of error” and “Opportunity to care” fall under this ambit. Many clients do not provide for termination or suspension of contract in case of breach by the client. You should be ready with the ways you would deal with the client in case of such a breach.

Heightened risk provisions in a contract

There are certain high-risk provisions in a contract that can increase the risk to your company. For example, guaranteed service provisions such provisions are generally of high risk for companies providing services. Here the risk management team can assess if it is viable for your company to agree to such terms. Here’s another one, the provision related to liquidated damages which are usually related to scheduling issues. If the client is unable to deliver the product/service on time then, is there any provision for payment of liquidated damages to be payable by the client till the day the mistake is rectified by them.

Conclusion

Let’s be honest, we cannot avoid these risks associated with contracts but we can definitely evaluate and mitigate the risks associated with such contracts. There needs to be a team dedicated to managing such risks. These risks that the team identifies during the preliminary review will not act as deal-breakers but will bring great value to the negotiating table with the client. The risk management team will bring about good value to contract review and will help identify and reduce the risks. Ultimately, it is not about avoiding risks but about providing solutions regarding mitigating the risks for your clients while also giving reasonable protection to your own company from such risks.

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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iPleaders

Farmer’s Act of 2020 : a hard realism of Human Rights

Introduction

Detailed analysis of the Farmer’s Act of 2020

History

Objectives

Decoding the three farm policies

Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020

Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020

Essential Commodities (Amendment) Act, 2020

The reason behind the protest

The need for implementation of the Act

Why is it a controversial issue

Farmers’ issues

Issues with corporation

Arguments for and against the Act

For the Act

Against the Act

Curbing of Human Rights in light of the Farmer’s Act 2020

Conclusion

References

Causes and prevention of illegal wildlife trafficking in India

Introduction

Wildlife trade: Legal and Illegal domains

Causes of illegal wildlife trade

Lack of adequate legislation to prohibit illegal trading

Harvesting exacerbates the problem

Transferring of Illegal trade items into legal markets

Offering a huge amount of money

Undocumented species being lawfully traded

The diverse demand and usage

How to Stop Wildlife Trafficking?

The prohibition of unlawfully traded wildlife

Stringent domestic trade regulations

Increasing the funding to combat and prosecute illegal poachers

Empowering the people

Indian legal regime to protect wildlife

Tools to combat wildlife crime in India

Ways the UNEP works to address illegal trade

UNEP supports the legal and sustainable management and trade of wildlife, in compliance with national and international law

UNEP advocates for an end to illegal wildlife trade globally

UNEP supports the conservation of the world’s biodiverse habitats

Conclusion

References

The TATA-Mistry case : analysing the differences in NCLT and NCLAT Orders

Cause title

Introduction

Brief facts of the case

Issues involved in the case

Statutory provisions involved

Section 241 of the Companies Act, 2013

Section 242 of the Companies Act, 2013

Contentions of TATA Consultancy Services

Contentions of Cyrus Investment PVT. LTD.

The order passed by the NCLT

The order passed by the NCLAT

Comparative analysis of the orders passed by the NCLT and NCLAT

(i) Oppression of Mr. Cyrus Mistry

(ii) Oppression of minority shareholders

(iii) Conversion of public company into a private company

(iv) Quasi-partnership

(v) Mismanagement of TATA Sons

Final verdict of the Supreme Court

Conclusion

References

Top government exams that LLB graduates can give

Introduction

Types of Government Sector jobs

Jobs roles in government sector

Under judicial services

Post & description

Eligibility & qualification

Paper pattern & criteria

Salary & allowances

Under the public sector companies

Post & description

Eligibility & qualification

Paper pattern & criteria

Under the Ministry of Law and Justice and the Ministry of Defence

JAG (Judge Advocate General)