World Sport Group (Mauritius) Ltd (“WSG”) v. MSM Satellite (Singapore) Pte. Ltd

By

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August 3, 2021

This article is written by Abhishek Sharma, pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho.

Table of Contents

Introduction

The present case study is a pro-arbitration decision delivered by the Supreme Court of India. It is a landmark decision delivered by the Supreme Court with reference to Section 45 of the Arbitration and Conciliation Act, 1996. Usually in domestic arbitration, the cases relating to fraud, misappropriation, criminal misappropriation are dealt with by the courts and not by the arbitral tribunals. But a tricky situation is when it comes to the international seat involving International Arbitration, whether the view will remain the same as in the case of domestic arbitration or it is opposite to it. One such case arose before the Supreme Court of India where it dealt with the same situation. To check what was the decision of the Supreme Court in the matter, let’s read this case study.

Background and facts of the case

The facts in the given case are closely related to the Board of Control for Cricket in India. Indian Premier League (IPL) is the biggest T20 cricket league event across the globe where hundreds of players participate from multiple countries. BCCI issued a tender where it wanted to give the broadcasting rights for the Indian Premier League. After the tender process, the Board of Control for Cricket in India (BCCI) awarded the media rights to broadcast the IPL and selected MSM Satellite (Singapore) Pte Ltd (MSM). MSM broadcasted the T20 league for the initial year of the tournament but after the opening season i.e., after one year, the BCCI decided to terminate the agreement with MSM.

The BCCI then decided to enter into a fresh agreement with World Sport Group (Mauritius) Limited. It was shortly thereafter; the World Sports Group (Mauritius) were not interested and simultaneously they entered into another agreement with MSM (the Facilitation Deed) under which it decided to give up (relinquish) its media rights and allowed MSM to re-enter/ re-acquire the media rights directly from the BCCI for broadcasting the league. As part of this facilitation agreement, World Sports Group was paid a sum of 1.25 billion rupees which is roughly around Rs. 4,250,000,000 (approximately) by MSM as part of facilitation fees.

It is important to note that the agreement was governed by English Law and both the parties agreed that the dispute shall be settled through arbitration before the International Chamber of Commerce (ICC), and decided the seat of arbitration shall be Singapore. However, MSM rescinded the agreement (facilitation agreement) entered by it and alleged that there were certain misrepresentations by WSG at the time of entering the agreement. MSM alleged that WSG claimed to relinquish certain rights it did not have. It made fraudulent misrepresentations about the rights it had.

The civil suit in the Bombay High Court

After the fraudulent conduct of the WSG, MSM decided to file a civil suit in the High Court of Bombay against the World Sports Mauritius and misrepresented the BCCI, and claimed inter alia that the facilitation agreement was illegal and void. MSM also claimed recovery of money already paid to World Sports Group.

It was shortly after the filing of a civil suit by MSM, relying upon the arbitration clause in the Facilitation Deed, World Sports Mauritius also referred the dispute to the seat of arbitration i.e., Singapore under the ICC rules. ICC issued a notice to MSM to file its answer in response to the application filed by WSG for commencement of the arbitration. To this effect, MSM was proactive in seeking an injunction in order to prevent the arbitration proceedings in Singapore.

Impugned judgment

Surprisingly or not, a two-judge bench of the Bombay High Court granted an injunction in favour of MSG to stop the arbitration proceedings in Singapore. The court was of the view that, in dealing with the matters related to public funds and alleging fraud, the court was more appropriate as a forum to deal with such cases. A dispute where allegations are related to fraud and serious misrepresentation on the part of any party, the court is a better forum to decide it by way of judicial evidence and such issues cannot be properly dealt with by an arbitrator.

It is most important to note that the High Court of Bombay was the only one and the only judgment where an Indian Court had held allegations of fraud and misrepresentation as a bar to foreign seated arbitrations. Although such finds are common in the area of domestic arbitration.

In response to the injunction granted by the Bombay High Court, World Sports Group was active enough to file an appeal in the Supreme Court of India against the decision of the Bombay High Court granting the injunction in favour of MSM.

Contentions from both parties

MSM

MSM contended that the arbitration agreement was contained in the facilitation deed, and since the deed was null and void on account of fraudulent misrepresentation, therefore the arbitration agreement itself becomes null and void.

WSG

WSG contended that whether the facilitation deed was fraud or not is a dispute which shall be decided by the arbitral tribunal for which the clause was incorporated in the deed. Whether the deed is misappropriated or not is a matter which shall be brought before the tribunal which was pre-decided in the deed itself by inserting the relevant clause. The tribunal shall have the jurisdiction to decide the scope and validity of the arbitration agreement.

The decision of the Indian Supreme Court

One of the key issues that arose before the Supreme Court of India was whether Indian Court(s) was appropriate to try a case involving allegations of fraud when the agreement already had a clause incorporated which referred the matter to the Arbitral tribunal having an international seat. The counsel on behalf of MSM relied upon the same contention that the arbitration agreement was contained in the facilitation deed, and since the deed was null and void on account of fraudulent misrepresentation, therefore the arbitration agreement itself becomes null and void. The counsel cited the reference of the case N. Radhakrishnan v. M/S. Mastero Engineers & Ors. “N Radhakrishnan”, when the dispute involves fraudulent misappropriation or criminal misappropriation, the court is in a better position to try out the matter by the furtherance of judicial evidence, which cannot be adequately dealt with by the arbitrator and therefore had to be tried by the court.

In considering the above argument by the counsel on behalf of MSM, the Supreme Court referred to Section 45 of the Indian Arbitration and Conciliation Act, 1996 which states that, in essence, that where the court is presented with a matter in respect of which parties have entered into an arbitration agreement, it shall refer the parties to arbitration at the request of one of the parties unless it finds that the arbitration agreement is “null and void, inoperative or incapable of being performed.”

The court was quick enough to recognize that the language used in Section 45 was taken by a reference from the New York Convention on Enforcement of Foreign Awards. Therefore, a corresponding provision in the New York Convention should be adopted. The court was of the opinion that arbitration may be held null and void when there was any flaw in the agreement because of which the matter could not be referred to the arbitral tribunal. The reference cited by the counsel may be rejected on the ground that there was an attack on the facilitation deed which was fraudulently misappropriated and may not necessarily impact the arbitration agreement.

In the present case the Supreme Court held that the fact that the deed was fraudulently misappropriated is a thing to be decided, but if it was accepted by MSM, then in such case the arbitration agreement is valid and not void. It is separate from the rest of the contract. The court, therefore, refused to hold the arbitration agreement null and void. The court said that an arbitration agreement cannot be held inoperative or incapable of being performed simply because the contract for which it was inserted was fraudulently misappropriated. The court in such a case cannot refuse to refer the matter to the arbitral tribunal under Section 45. The reference cited by MSM was valid only for domestic arbitration. The court also rejected the argument that BCCI was a public body that involved public funds/interest which was accepted by the High Court of Bombay. The Supreme Court categorically held that such a ground did not fall within the exceptions in Section 45 of the Arbitration Act and therefore cannot form the basis for refusing to refer a matter to arbitration.

Conclusion

It is a very important and welcome step taken by the Supreme Court which should be admired. It clears all the doubts that there should be minimal or no interference of the court in foreign seated arbitrations. It is also a positive outlook towards the development of arbitration to try out cases of diverse fields. The act of the Supreme Court is a positive sign which is consistent with pro-arbitration jurisprudence. However, it is advised that parties must be careful in entering the contracts because the validity of the contract does not inherently invalidate the arbitration agreement. Parties must be mindful that where an allegation of fraud goes to the arbitration agreement itself, a reference to arbitration may still be refused. In the Indian context, the decision in the case of N. Radhakrishnan v. M/S. Mastero Engineers & Ors still prevails and issues relating to fraud are less likely to be referred to arbitration when it comes to domestic arbitration.

References

White Code VIA Mediation and Arbitration center, Case Study World Sport Group (Mauritius) Ltd (“WSG”) V. MSM Satellite (Singapore) Pte. Ltd, available at https://viamediationcentre.org/readnews/MjY4/CASE-STUDY-World-Sport-Group-Mauritius-Ltd-v-MSM-Satellite-Singapore-Ltd (last Visited 7 July 2021)
Casemine, Case Study World Sport Group (Mauritius) Ltd (“WSG”) V. MSM Satellite (Singapore) Pte. Ltd, available at https://www.casemine.com/judgement/in/5767b109e691cb22da6d1495 (Last Visited 8 July 2021)
Indian Kanoon, World Sport Group (Mauritius) Ltd (“WSG”) V. MSM Satellite (Singapore) Pte. Ltd, available at https://indiankanoon.org/doc/48872488/ (last Visited 9 July 2021)
Lexology, Indian Supreme Court sets the playing field in cricket dispute, available at https://www.lexology.com/library/detail.aspx?g=c313569b-4453-4bfd-80e9-8756b60679e7 (Last Visited 9 July 2021)
Nisith Desai Associates, Dispute Resolution Hotline, available at https://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/newsid/2215/html/1.html?no_cache=1%5D (last Visited 7 July 2021)

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Covid vaccination models : learning from Kerala, Jammu & Kashmir

By

Diganth Raj Sehgal

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August 3, 2021

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This article is written by Sahaja, studying at NALSAR University of Law, Hyderabad. This article talks about the PIL filed by Dhruti Kapadia concerning the door-to-door vaccination model implemented in Kerala and Jammu and Kashmir.

Table of Contents

Introduction

On January 16, 2021, India began administering COVID-19 vaccinations. India had dispensed 323,663,297 doses in total as of June 27, 2021, including first and second doses of currently licensed vaccines.

Two vaccines have been approved for administering in India- Covishield, and Covaxin. Oxford University and AstraZeneca collaborated to create the Covishield Coronavirus vaccine. The shot can be produced in India by the Serum Institute of India (SII), the world’s largest vaccine manufacturer. Covaxin, on the other hand, is created by Bharat Biotech in Hyderabad. It is also India’s first homegrown anti-viral vaccination. The vaccine was created by the Hyderabad-based pharmaceutical company with the support of the Indian Council of Medical Research (ICMR) and the National Institute of Virology.

Vaccination programmes

Phase 1

Health personnel and frontline employees, such as police, paramilitary forces, sanitation workers, and disaster management volunteers, were involved in the implementation phase. Only 14 million healthcare and frontline employees have been vaccinated as of March 1, falling short of the 30 million target. This first phase of vaccination began on 16 January 2021.

Phase 2

All residents above the age of 60, residents between the ages of 45 and 60 with one or more qualifying comorbidities, and any health care or frontline worker who did not receive a dose during phase 1 were included in the next phase of the vaccination deployment. In order to avail of the vaccines in this phase, residents had to register for the vaccine online, on the Aarogya Setu app and the cowin website.

In March 2021, as the country began to see a big second wave of illnesses, vaccine exports were halted, and the government purchased 110 million Covishield doses from SII.

All inhabitants over the age of 45 have been eligible since April 1. Prime Minister Narendra Modi announced on April 8 that a four-day Teeka Utsav (“Vaccine Festival”) will be held from April 11 to 14, to speed up the vaccination programme by vaccinating as many eligible residents as possible. India had reached a total of over 111 million vaccination doses by the end of the Utsav.

Phase 3

The DCGI (Drugs Controller General of India) licensed Russia’s Sputnik V vaccine for emergency use in India on April 12th. In September 2020, a phase 3 trial was done in the country, with 91.6 percent efficacy.

On April 19, it was announced that the next phase would begin on May 1st, allowing any citizens over the age of 18 to participate. Individual stakeholders were also given more flexibility in how they ran the vaccine program during phase 3. Only half of the vaccines procured from manufacturers by the Central Drugs Laboratory would be distributed by the federal government under this scheme.

Vaccination model in Kerala

When there is a critical scarcity of vaccinations in the country and COVID-19 instances continue to rise, the focus is shifting to the necessity for states to encourage vaccine waste. Tamil Nadu had the highest vaccine wastage rate of 12 percent in April, while Kerala had 0% wastage.

Kerala has considerably reduced wastage. This was possible because of the strong immunization heritage, tight storage, transportation, and usage standards, skilled health staff, especially ASHAs (frontline social workers), and efficient inventory control. The field personnel have been told that the vaccination is a limited supply and that they must ensure that everyone receives it.

Many states have reported vaccine waste as a result of their failure to build regional vaccine centers in each district and evenly distribute vaccines, according to the Indian Medical Association, which is involved in vaccination promotion and coordination. Kerala’s achievement in reducing vaccine waste might be ascribed to the state’s rapid establishment of multiple regional centers.

Kerala has also rolled out the door-to-door model of vaccination for the elderly and the disabled who find it difficult to get to vaccination centers to get themselves vaccinated.

Vaccination model in Jammu and Kashmir

The Nomad Village Weyan in Jammu & Kashmir’s Bandipora district has become the first village in which the whole population over the age of 18 has been vaccinated. This achievement is credited to the ‘J&K Model,’ in which the government decided to reach out to the public rather than relying on individuals to come to the vaccination center.

The local health department states that the whole population over the age of 18 was vaccinated, with a total of 362 recipients. It’s worth noting that during the summer, the residents of the village travel to the upper reaches with their livestock, so it was critical to reach out to them before they left.

Apart from this success, with almost 67 percent of its population over the age of 45 previously vaccinated and three districts obtaining 100% coverage in this age group, Jammu and Kashmir are emerging as one of the country’s leading regions in terms of Covid-19 vaccination.

Different strategies were adopted in Kashmir to attain such high rates of vaccination. Religious leaders were brought in to help raise awareness in Kashmir, particularly during the Islamic holy month of Ramzan. The local media was also recruited to guarantee that the message about the importance of getting vaccinated was conveyed to the general public.

Micro-planning i.e., a decentralized process that involved the district authorities, panchayats, and tehsil level officers who worked in tandem with the J&K administration. Door-to-door surveys were conducted with the assistance of panchayat and booth-level election officers to guarantee that no one was left behind.

PIL (Public Interest Litigation) filed for door to door vaccination

Issues put forth

The Bombay High Court stated on 11 June that the Union government should examine Kerala and Jammu and Kashmir’s successful door-to-door vaccination programmes and make an informed judgment on its current policy, which claims that door-to-door immunization is not viable.

Advocates Dhruti Kapadia and Kunal Tiwari filed a public interest lawsuit requesting door-to-door immunization for senior residents over the age of 75, as well as people who are particularly abled, wheelchair confined, or bedridden.

Chief Justice Dipankar Datta and Justice G S Kulkarni of a division bench said they could not understand why the Centre was having trouble initiating door-to-door vaccination campaigns when states like Kerala and Jammu and Kashmir were already doing so.

One of the main issues raised was how the door-to-door vaccination was not possible presently when states like Kerala and Jammu and Kashmir were already implementing the same. The court was also pleased with the BMC’s (Brihanmumbai Municipal Corporation) performance during the pandemic and inquired as to why the civic body was hesitant to implement door-to-door immunization. To this, the BMC counsel Sakhre cited a letter from civic commissioner Iqbal Chahal to the Union government. In this letter, he stated that the civic body was eager to conduct door-to-door vaccination and wanted guidelines from the Union government.

The Bombay HC’s stand

The Court found that a policy that leads to the aforementioned conclusion that senior persons must choose between life and vaccine is arbitrary and unreasonable because the elderly citizens have the same right to protection under Article 21 of the Indian Constitution as the young and able-bodied inhabitants. As a result, such a justification is difficult to sustain.

With regard to this it was pointed out that, if long exposure to the vaccine causes contamination, it is the responsibility of the government’s appropriate department to investigate ways to prevent contamination as well as exposure beyond the recommended temperature so that the vaccination program can be brought to the doorsteps of the elderly and disabled.

There is no reason why this particular reason should prevent the adoption of a door-to-door vaccination policy if proper temperature control measures are taken and personnel well trained to vaccinate along with the vaccine are made to travel in appropriate vehicles to reach duly identified elderly and disabled citizens who could benefit from such vaccination.

The panel ordered Additional Solicitor General Anil Singh to seek instructions on the letter from the Union Ministry of Health and Family Welfare’s Health Secretary and adjourned the case to June 14.

The COVID-19 epidemic has a nationwide impact, according to ASG Singh, and all states must work together with the Centre to ensure speedy and maximum vaccination of the residents.

Instructions from the Union Ministry of Health

The Municipal Corporation of Greater Mumbai (for short, “the MCGM”) informed the Secretary, Ministry of Health and Family Welfare, Government of India, in a letter dated June 10, 2021, of the MCGM’s willingness to conduct door-to-door vaccination, and that such a course of action could be initiated by the MCGM if permitted by the Government of India.

Dr. Manohar Agnani, Additional Secretary, Ministry of Health and Family Welfare, Government of India, has responded to the MCGM’s letter, informing the Municipal Commissioner, among other things, that vaccination is provided at designated Government and private vaccination centers in accordance with COVID 19 vaccination guidelines.

The letter also states that technical experts debated the issue of door-to-door vaccination for the disabled and elderly at a meeting of the ‘National Experts Group on Vaccine Administration for COVID-19′ (NEGVAC), who concluded that vaccination cannot be given at the doorstep due to various issues and risks.

Mr. Singh was also asked by the court if the Indian government had taken any steps to prevent the state of Kerala, the Union Territory of Jammu and Kashmir, and other states from starting door-to-door vaccination campaigns. The reply to this was that the guidelines issued were only advisory and that there was no prohibition on the door-to-door vaccination programmes.

The Court thus decided that the state government would decide on door-to-door vaccinations.

Vaccination in Mumbai

The Maharashtra State Government, in collaboration with local governments, has been working to vaccinate a huge number of individuals across the state. However, many people have reported problems with vaccination centers, as well as large lines and waiting times.

BMC authorities want to start a door-to-door immunization program in Mumbai to solve these challenges. Permission has been obtained from the appropriate departments, and the campaign is now being carried out across the city’s many societies.

Meanwhile, the federal government has not issued any policies or plans in this regard, but comparable programs have already been implemented in the state to assist the disabled and old. Associations have also requested the same, as it will save many individuals in the state from getting vaccinated.

The door-to-door vaccination model that has been implemented by the authorities in Mumbai is a consequence of the PIL filed by Dhruti Kapadia and this has been replicated in Mumbai with reference to the models in Kerala and Jammu and Kashmir.

Conclusion

The door-to-door vaccination models adopted by many States and cities in India have indeed produced successes when it comes to vaccinating the residents of the country.

In the ongoing fight against the Covid-19 pandemic, Bikaner, Rajasthan, is prepared to launch a door-to-door immunization program.

During the vaccination drive, the state will inoculate people in Bikaner who are above 45 years old. The state government has set up a WhatsApp helpline for people to register for the Covid-19 vaccine by providing their name and address. It has dispatched two ambulances and three mobile teams to conduct a door-to-door immunization campaign in the town. If at least 10 people sign up for the Covid-19 vaccine, a vaccine van will visit their homes to avoid wasting doses. One dose of the Covid-19 vaccine can be given to ten persons from a single vial.

This vaccination model needs to be implemented and executed most efficiently and cautiously. The transportation and storage of these vaccines need to be done in such a way that there is no wastage of vaccines or unintended consequences. The State Governments permitting this vaccination model must also specify guidelines and must ensure to set up more and more ‘near home’ vaccination centers in order to streamline the process.

References

https://thefederal.com/covid-19/how-kerala-has-zero-vaccine-wastage-and-even-gets-more-from-its-vaccine-vials/

https://zeenews.india.com/india/jk-model-success-story-of-weyan-first-village-in-country-to-vaccinate-entire-adult-population-2367497.html

https://theprint.in/health/news-to-celebrate-from-jammu-kashmir-two-thirds-of-45-vaccinated-leads-in-india/666771/

https://www.scconline.com/blog/post/2021/04/23/door-to-door-vaccination/

https://indiankanoon.org/doc/85599702/

https://www.ndtv.com/india-news/no-door-to-door-vaccines-but-plan-near-to-door-jabs-for-senior-citizens-centre-to-high-court-2459335

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Expulsion of a member of the company : Indian scenario

By

Abanti Bose

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August 3, 2021

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This article is written by Ankit Rao, pursuing Diploma in General Corporate Practice: Transactions, Governance and Disputes from Lawsikho.

Table of Contents

Introduction

There is no provision under the Companies Act, 2013 under which a member can be expelled by the board of directors or the management. And, if there exists a provision in the Article of Association or Memorandum of Association that empowers the Board of directors to carry out the said unlawful activity, it will be deemed void as per Section 6 of the Companies Act, 2013. Section 6 of the Companies Act stipulates that the Act overrides the Memorandum and Article of Association and any provision contained thereto repugnant to the provision of the Companies Act, is void. The only exception to the said rule is provided under Section 235 whereby power is provided to acquire shares of shareholders dissenting from scheme or contract approved by the majority. This article will talk about the legal provision and case laws discussing the expulsion of a member from a company.

Who is a member?

As per Section 2(55) of the Companies Act, 2013, ‘member’ in relation to a company means;

The subscriber to the memorandum of the company who shall be deemed to have agreed to become a member of the company, and on its registration, shall be entered as member in its register of members.
Every other person who agrees in writing to become a member of the company and whose name is entered in the register of members of the company.
Every person holding shares of the company and whose name is entered as beneficial in the records of a depository.

Public company v. company limited by guarantee

The concept of the expulsion of members stands different with regard to public limited company and company limited by guarantee. In the former, expulsion by alteration of the articles is not allowed and such has been clarified by Circular No. 32/75 issued by the Ministry of Company Affairs. It can be further supported by judgment laid down by the Supreme Court in the case of Bajaj Auto Ltd. v. N.K. Firodia, whereby it was stated that assumption by the board of directors of a company of any power to expel a member by amending its articles of association is illegal and void. Thus, there exists an absolute bar on the expulsion of members from the membership of a public limited company.
However, as far as the company limited by guarantee is concerned, the bar is not in place which was clarified in K. Leela Kumar v. Government of India, the Hon’ble Court stipulated that the respective circular does not apply to clubs, associations, etc. and its usage is only applicable to public limited companies. The Delhi High Court in the case of Siddharth v. The Delhi Golf Club Ltd. & Anr. elaborated the power of expulsion in case of a company limited by guarantee. It was held that even though such companies like social clubs, professional and cultural, etc. are empowered to expel members, that must be done keeping in mind the procedure laid down in the Article of Association. A member can only be removed after following the due process of law along with the terms and conditions incorporated in the Article of Association. A person does not stand disqualified unless he is removed respecting the terms stipulated in the Article of Association and such a person can continue to avail the benefits.

Is alteration of Article of Association to remove members allowed or not?

When the clauses inserted or which form part of the Article of Association violate or infringe the provision of statutory law which is Companies Act, 2013. In such cases as per Section 6 of the Act, provision contained under the respective legislation will supersede the clauses forming part of Memorandum and Article of Association to the extent to which it is void.
The authority established under the Companies Act, 2013 is vested with ample power to deal with such contravention, whereby if the Article of Association of the company or the resolution adopted at the meeting or by directors is in contravention to the legislative language inserted under Section 111, then the authority can outrightly deny the registration of the articles of association or the resolution.

Not long ago, a case was filed which grabbed the Central Government’s attention. The facts of the case were such that public limited company had amended or altered its article of association by passing the special resolution at the extraordinary meeting thereby empowering the directors of a company with such powers so as to remove or expel a member in case activities are conducted by such individuals are prejudicial to the future of the company. The question that arose for contemplation of the department, in this case, was whether such an amendment of the Article of Association of a company is valid. The Department of Company Affairs vide circular no. 32/75 herein was of the view that alteration of the Article of Association and the resulting expulsion of the member of management was in contravention with the fundamental principles of the company’s jurisprudence and ultra vires the company. Such a provision is in direct contravention to numerous provisions incorporated in the Companies Act which empowers members of a public limited company. If such alteration is allowed, it will have a nullifying effect on the powers vested with the Central Government under Section 107 and 395 of the Act. Therefore, in order to conserve the power allotted to the Central Government and for the protection of investors, such provisions would be void by the operation of the provision of Section 9 of the Act. Moreover, Section 23 of the Indian Contract Act, 1872 stipulates that an agreement that is repugnant to any law, act or opposed to the public would be deemed to be unlawful and void.
Hon’ble Supreme Court in Bajaj Auto Ltd. v. N.K.Firodia stipulated the conditions in the assistance of which directors could refuse to admit a person as a member. The observation made in K. Leela Kumar v. Government of India provides that the principle laid down by the court in the Bajaj Auto case, even though it relates to the refusal of admission of a person as a member in the corporation, is germane even to the case of expulsion of a member. The position was further clarified in the case by stipulating that the assumption by the board of directors of a company of any power to expel a member by altering its articles of association is illegal and void.

The exception to the established principle

Where a scheme or contract involves the transfer of shares or any class of shares in a company to another company, which has been approved by holders of not less than nine-tenths in value of shares whose transfer is involved, it shall give notice to any dissenting shareholders that it desires to acquire his shares. In such cases, the shares of dissenting shareholders can be acquired, in exchange for a sum or any other consideration. So, if a shareholder is not assenting to the scheme or contract, his shares can be acquired and the said person will be removed from the company in exchange for reasonable consideration.

Position under Companies Act, 1956

The Court of Appeals in the case Sidebottom established that a corporation had the power to amend its articles, the only condition attached is that such an amendment must be carried for the welfare and interest of the company. However, if that is not the case and the amendment is carried for the benefit of shareholders even if they form the majority of the shareholders, alteration of the article cannot take place. The principle established in this case was further taken the assistance of, in Gowthami case, wherein the Articles of a corporation was altered to incorporate a provision providing for cancellation of membership by passing of the special resolution. Consequent to the passing of such a resolution, the member was expelled. Hence the controversy which arose before the Hon’ble Court was whether Articles could be framed in such a way so as to empower the corporation to expel members. The court also referred to Sidebottom’s case and provided that the mandatory transfer must be for the welfare of the corporation and not for shareholder’s benefit. Considering this view, the court stated that the expulsion of the member was not in any way beneficial for the company, therefore the appeal was dismissed and the expulsion was reversed.

Conclusion

The directors or the board of directors are thereby not entitled to expel or remove a shareholder by inserting a new clause in the articles. This can be established by relying upon the departmental Circular no. 31 of 1975, which provides that insertion of the article providing for the expulsion of a member is ultra vires the powers of the company. In furtherance, Supreme Court held in the case of Bajaj Auto that the assumption by the Board of Directors of a Company of any power to expel a member by amending its articles of association is illegal and void. Therefore, articles cannot contain any provision which provides for expulsion or removal of the members of the company which outrightly strikes at the very core of the Company Act, which was enacted for the protection of shareholders of a corporation.

References

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Handbook on marriage and divorce under Muslim Law

By

Abanti Bose

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August 3, 2021

0

Dower in Muslim law (Mahr) — Image Source - https://shorturl.at/m1OwY

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

Introduction

The concept of marriage and divorce under Muslim law is developed through ancient perspectives and from a historical point of view among Muslims. The source of development of these are personal laws, which happen to be Quran (holy book of Muslim), Sunna (precedent), Ijma (consensus) and Kiyas (analogical deductions), among these four sources Quran is the primary source. It is considered to be so fundamental and sacred in the Muslim world that it is immutable according to Muslims. Marriage is considered a civil contract under Muslim law, unlike sacrament under Hindu law. It is necessary for the establishment of a family, which is considered a fundamental entity of society. Under Muslim Law, marriage is only the halal or legal way for the intimate relationship between men and women and legitimacy of children. It is a social necessity that regulates social life through the creation of certain rights and duties which both the partners are required to fulfil.

In Pre-Islamic Arabia condition of women was very pitiable, they were seen as objects, polygamy, buying and selling of women, temporary marriage for the fulfilment of lust, marrying two real sisters simultaneously, freely divorcing wife etc. was prevalent. In short, people were unaccountable towards women. It was only after the emergence of laws/rules made by Prophet Muhammad, in Muslim society status of women became better, but certain patriarchal notions are still prevalent such as polygamy and the notion that men are considered superior to women due to their masculinity and intellectual superiority etc. These thoughts, customs, precedents, Ijtihad (independent individual reasoning based on justice, equity and good conscience) and legislations have shaped the modern Muslim Law of marriage and divorce.

Due to the division of Muslims into various sects and different schools, there are more than one type/form of marriage accepted among Muslims. There are different types of marriages such as Muta marriage, Sahih marriage, Batil marriage. Before entering into the union of marriage there are certain essential conditions that must be fulfilled by both the prospective husband and the prospective wife, such as the age of majority, consent of the parties, Mehr etc. As Muslim marriage is a civil contract by nature, there must be an offer from one party and acceptance from another party. Divorce under Muslim law is divided into different categories such as divorce my husband (Talaq-ul-Sunnat, Talaq-ul-Biddat, Ila, Zihar), divorce by wife (Talaq-e-Tafweez), divorce by mutual consent (khula, mubarat) and divorce by judicial decree under The Muslim Dissolution of Marriage Act, 1939 (lian, fask).

Marriage under Muslim Law

Muslims are broadly divided into two major sects Shias and Sunnis and there are four schools of thought under Muslim law, Hanafi, Hamabil, Maliki, and Shafi. Out of these four, the Hanafi school is dominant in India. Due to these different sects and schools of thought, there are different types of marriages and divorce that are accepted in Muslim society. Different types of marriages are Muta marriage, Sahih (valid) marriage, Batil (void) marriage, Fasid (irregular) marriage.

According to Ameer Ali (political and social reformer and scholar of Islam), marriage is necessary for the protection of society. It is an organisation that protects society from foulness and unchastity. According to Abdur Rahim(Indian jurist), marriage is an institution that partakes in both the nature of devotional arts (ibadat) and dealing among men (Mumlat). Thus, under Muslim law marriage is a solemn pact that gives validity to the intimate relationships between men and women and legitimises children born out of that wedlock.

Nature of marriage

The nature of marriage under Muslim law is the same as a civil contract. It is entered into by both the parties by their free volition. In its formation it also takes the form of contract as there is offer and acceptance between the parties, giving same right to husband and wife. But during the dissolution of marriage, the husband is given more rights than the wife as they are considered superior to women due to the patriarchal notion that men are physically and intellectually superior to women. Though generally marriage under Muslim law is considered a civil contract, some people also treat it as a religious sacrament.

In the case of Abdul Kadir vs Salima, it was observed that the character of Muslim marriage is similar to that of a civil contract, as like civil contract marriage under Muslim law requires of offer (Ijab) from one side and acceptance (Qubul) from another side, which must be out of the free will, without any coercion, undue influence and fraud on the part of both the parties. In case of both the parties being minor, they have the right to either set aside or follow the terms of marriage. When they become major, as it is in the case of a contract, unless and until it is opposed to public policy it is right of the parties to enter into antenuptial/prenuptial agreement, though it is not socially acceptable there is also a provision for breach of contract of marriage. However, there is a constant debate regarding the nature of marriage, some consider it as purely a civil contract while others consider it as a religious sacrament. Chief Justice Sir Shah Suleman, in the case of Anis Begum vs Muhammad Istafa, gave a more balanced view about this unending debate by stating that marriage under Muslim law is both civil contract and religious sacrament.

Essentials of Muslim marriage

Capacity to marry

According to the Koran, a person who is to be married must be of sound mind, attained the age of puberty. In Muslim society age of puberty for a man is considered to be 15 years. The Indian Majority Act 1875 does not apply to Muslims in case of marriage, dower or divorce, but The Prohibition of Child Marriage Act 2006 is secular and it is applicable to all irrespective of religion, thus according to it the age of majority for a girl is 18 years and for a boy is 21 years.

Offer and acceptance

There is an offer (Ijab) from one party and acceptance (qubul) from the other party, the acceptance is subsequent to the terms of the contract and both the offer and the acceptance must happen at one time on the same occasion. If an offer is made at a particular time and it is accepted after some days/months/years, it is not accepted.

Consent of the parties

Both the parties must consent to the terms of the contract in the same sense without any fraud, undue influence, coercion or ill-will.

Mehr

It is a consideration payable to the wife during Muslim marriage, as a mark of respect to her from her husband. Mehr is one of the fundamental criteria for the legitimacy of Muslim marriage.

No legal impediment

For the validity of marriage, there should not be any legal hindrance, some of which are the following:

Absolute impediment

It renders marriage null and void.

Consanguinity

Prohibition to marry some of the blood relations, such as a male Muslim cannot marry his mother, grandmother, daughter, granddaughter, niece, aunt or great-aunt (mother and father side both) and sisters full, consanguine or uterine.

Affinity

It prevents a man from marrying all relations of the woman with whom he married, such as once wife’s mother, grandmother, grandmother’s mother, etc.

Fosterage

It prevents relationships with relations of a foster mother, such as foster grandmother, foster mother’s daughter etc.

Relative impediments

These conditions render the marriage irregular; if irregularities are removed then the marriage becomes valid.

Unlawful conjugation

A Muslim male cannot marry women who are related to each other by consanguinity, affinity or fosterage, had they been the opposite gender it would have been unlawful marriage. If the first wife dies, marriage with her ends, then he can marry another. In Sunni Law, unlawful conjugation is merely irregular but under Sharia Law it is void.

Marriage with women undergoing Idda/Iddat

Idda/Iddat is a period observed by women after the death of her husband or divorce, to remove the confusion of paternity in case she is pregnant. The time of observance of Idda/Iddat depends on the manner in which marriage is dissolved. If the marriage is dissolved by divorce a menstruating woman is required to observe Idda/Iddat for a period of three menstruation courses, while a non-menstruating woman is required to observe Idda/Iddat for a period of three lunar months. If a woman is pregnant then the period of Idda/Iddat continues till the delivery of the baby. In case of dissolution of marriage due to the husband’s death, a woman is required to observe Idda/Iddat for four lunar months and ten days. If a woman is pregnant at the time of her husband’s death then the period of Idda/Iddat is either four lunar months and ten days or until delivery, whichever is earlier. Under Shia Law marrying a woman during the period of Idda/Iddat is void.

Marriage in violation of the doctrine of equality

It is a belief in Muslim society that a man should marry a woman of equal rank, for example, a high ranked marry a high-rank woman. There are several conditions of equality under different sects and schools of Muslim law. Though marriage is not invalid on account of violation of the doctrine of equality, it is merely an irregular marriage.

Polygamy

Polygamy is allowed in Muslim law, but it is restricted to marrying four wives. Thus, one marries a fifth woman while already having four wives, the marriage will be considered irregular and not void.

Marriage with Non-Muslim

Muslim women cannot marry non-Muslim (kitabiya), but under Sunni law, a Muslim man is allowed to marry a Christian or Jew. However, under Shia Law marriage with a non-Muslim is void.

	Marriage with Non-Muslim	Shia Law	Sunni Law
Woman	Not valid	Void	Irregular
Man	Not valid	Void	Irregular

Types of marriages

The validity of a marriage depends on the conclusion of the marriage contract, no writing is necessary while making a contract, it can be oral or written. The different types of marriages are following:

Temporary marriage (Muta marriage)

This type of marriage is practised among Ithna Ashari of the Shia sect, it is also known as ‘pleasure marriage’, while all other Muslim sects discard this type of marriage. Ithna male can marry any number of wives, who must be Muslim, Jewish or a fire worshipper but Ithna female is restricted to marry only Muslims. At the time of entering into the contract, all the terms of the marriage must be mentioned and any term entered afterwards is not valid.

Characteristics of muta marriage

There must be a contract.
There must be an offer and acceptance between the parties.
Dower must be specified.
Duration of marriage must be specified, hours/days/weeks/months/years, if the term is unspecified union is stipulated to be permanent.
Parties do not have the right to mutual inheritance.
Unless specified in the marriage contract, the wife is not liable for maintenance.
If marriage is consummated, the wife is entitled to full dower, if it is not consummated, she is entitled to half dower.
In case of the consummation of marriage, the wife is required to observe Idda/Iddat.
Even without the permission of the wife, the husband has the right to refuse procreation.
Offsprings have the right to inherit the property of both the parents and hence, have the status of legitimate children.
Unless extended, Muta marriage ends with the expiry of the term of marriage mentioned in the contract.

Permanent marriages

The different aspects of permanent marriages are following:

Sahih (valid) marriage

A marriage between two parties, where all the necessary legal formalities are fulfilled is called Sahih (valid) marriage. This type of marriage is accepted by both Shia and Sunni sects.

Characteristics of Sahih (valid) marriage

The status of husband and wife is recorded at the parties.
There exists a mutual right of inheritance between the parties.
Due to any reason such as death, divorce etc., if marriage is dissolved, then the husband is barred from marrying her wife’s sister.
It confers upon children borne out of this wedlock, a legitimate status.
In addition to the above-mentioned terms and conditions, any terms and obligations can be added to the marriage contract, which must not be opposed to public policy in Muslim society.

Batil (void) marriage

When there is a violation of absolute or relative impediments while performing the marriage, it is still called Batil (void) marriage. Though it is still called marriage, as both the parties have performed the necessary formalities of marriage. This type of marriage is void because the parties totally lack the capacity to marry each other, and there are not any legal provisions described in Muslim Law through which their marriage could become valid. This type of marriage is recognised in both Shia and Sunni sects.

Characteristics of Batil (void) marriage

It is not a marriage as no legal rights and obligations occur from it.
The status of husband and wife is not confirmed by the parties.
Children born out of such marriage are illegitimate.
Both the parties are free to enter into another marriage without committing the offence of polygamy and bigamy.

Fasid (irregular) marriage

Marriage performed in violation of relative impediment is called Fasid (irregular) marriage. It is neither a valid nor void marriage, but it can be validated by removing the relative impediment (irregularity). This type of marriage is also accepted by both the Shia and Sunni sects, except the Itna Asari school of the Shia sect.

Characteristics of Fasid (irregular) marriage

Until and unless terminated by law it continues to exist.
Both wife and children and liable to be maintained.
The marriage becomes effective after confirmation.
Both the husband and the wife have the right to terminate the marriage at any time.
Wife is required to observe Idda/Iddat, in the course of death of husband or divorce with hum.
Children born out of this wedlock are fully legitimate and have the right of inheritance.
Husband and wife do not have the right of mutual inheritance.

Divorce under Muslim Law

The only essential condition for divorce under Muslim Law is marriage between two parties. There are different forms and ways through which marriage can be dissolved under Muslim Law, which are following:

Divorce by husband

There are four ways a husband can give divorce.

Talaq-ul-Sunnat

This form of divorce is based on Muslim Personal Laws. It is further sub-divided into the following categories:

Ahsan

Husband has to make an announcement of divorce in a single sentence when the wife is free from the menstrual cycle.
After divorce women have to observe Iddat for a certain period of time, during which the husband cannot indulge in any form of sexual intercourse, if he indulges then revocation of talaq becomes impliedly revocable, otherwise, it becomes irrevocable.
This type of talaq can be pronounced even when the wife is undergoing menstruation, but for that marriage must not be consummated between the parties.
It is the most approved form of talaq.

Hasan

It is a less approved form of Talaq Ahasan.
There is a provision for revocation of divorce.
The word talaq is to be pronounced three times simultaneously.
Three announcements should be made in the three states of purity if the wife has not crossed the age of menstruation.
If the wife has crossed the age of menstruation, pronouncement must be made at the 30 days interval between the successive pronouncements.
During the period of three pronouncements, no sexual intercourse should take place, if it happens divorce is revoked.
After completion of the iddat period, this type of divorce becomes irrevocable.

Talaq-ul-Biddat

it is this disapproved/sinful form of divorce.
It is also known as triple talaq, after pronouncing talaq three times it becomes irrevocable immediately.
This form of divorce is only recognised under Sunni Law and not by Shias and Malikis.
Parties can remarry only after performing nikah halala by the female partner, under which she has to marry another man and then get divorced from him.
This type of divorce is unconstitutional in India, through the judgement of the Supreme Court in the case of Shayara Bano vs Union of India and Others.

Ila

It is a form of divorce under which the husband has the power to pronounce that he would not indulge in sexual intercourse with his wife.
Subsequent to this pronouncement, the wife is required to observe iddat.
If the husband cohabits with the wife during this period, then the Ila is revoked.
Once the period of iddat is over, divorce becomes irrevocable.
This type of divorce is not practised in India.

Zihar

It is also constructive divorce like Ila.
In this form of divorce, the husband compares his wife with a woman who comes under a degree of prohibited relationship, such as his mother, sister etc, and pronounces that she is like his mother or sister.
For doing this the husband must be of sound mind and above the age of eighteen years.
The wife has the right to seek judicial remedies such as restitution of conjugal rights, cohabitation etc., but cannot seek judicial divorce.
Husband can revoke such divorce by observing two months fast, feeding sixty people and freeing a slave.
This type of divorce is no longer in practice.

Divorce by wife

Talaq-e-Tafweez

It is also known as delegated divorce.
The husband has the power to delegate such power to the wife, he must be of sound mind and above 18 years of age.
This type of talaq is also called an agreement, which may be entered between the parties before or after marriage.
If the terms of an agreement are not fulfilled, the wife can ask for a divorce.
It is the only way through which a woman can ask for a divorce.
The right of the husband to divorce his wife remains intact, it does not deprive the husband of his right to pronounce the divorce.

Divorce by mutual consent

Khula

It means ‘laying down’, where the husband lays down the authority over his wife.
This is done through mutual consent between husband and wife, where the wife pays the consideration from her property to the husband, for her release.
Wife releases Mehr and other rights for the benefit of her husband.
Thus, divorce is purchased from husband by wife.
There is an offer from the wife, which is accepted by the husband.
Women are required to observe iddat after Khula.

Mubarat

It means ‘release’, it releases/discharges parties from marital rights.
Divorce is with mutual consent among parties to become free from one another.
Its formalities are the same as Khula, where there is an offer from one party and acceptance from another.
Women are required to observe Iddat.

Divorce by judicial decree under Muslim Dissolution of Marriage Act, 1939

Lian

This type of divorce occurs when a wife is falsely charged with adultery by her husband.
She can move to court to file a regular suit for dissolution of marriage, under the Muslim Dissolution of Marriage Act, 1939.
The ground of divorce must be a false charge of adultery on the wife, his husband.
The husband imposing charge must be sane and above 18 years of age.
Marriage is not dissolved until dissolution degrees are passed by the court, once it is passed divorce becomes irrevocable.
The husband can prevent divorce by the withdrawal of false assertion of adultery on the wife, before passing of the decree by the court.

Faskh

If husband and wife feel that they are not compatible together, they can file for divorce.
Section 2 of The Dissolution of Marriage Act, 1939, states grounds on the basis of which the wife may sue for divorce.
Whereabouts of husband not known for 4 years.
Husband has failed to maintain wife for two years.
Husband is sentenced for imprisonment of 7 years or more.
Husband has failed to perform marital obligations for three years, without any reasonable cause.
The husband is impotent.
Husband is suffering from insanity (for two years), leprosy or virulent venereal disease.
Wife being married before 15 years, rejects the validity of marriage after attaining the age of 18 years, provided marriage must not be consummated.
Husband treats her with cruelty, such as imposing physical assault. making defamatory statements that affect her reputation etc.

Rights conferred by personal laws based on religion is not absolute. For instance, the two most popular and important judgments of the Supreme Court in this regard are discussed hereinafter, in the case of Mohd. Ahmed Khan vs Shah Bano, Shah Bano at the age of 62 was divorced by her husband Mohammed Ahmed Shah, and she along with her five children were disowned and tossed out from her marital home. When she approached Madhya Pradesh High Court to restore her maintenance amount of rupees 200 which was halted by her husband, and to increase its amount to rupees 500, she was divorced by her husband through instant triple talaq or Talaq-ul-Biddat, who used it as a defence not to pay maintenance as she no longer was his wife. But the court granted maintenance to Shah Bano under Section 125 of CrPC on the grounds that she is unable to earn and maintain herself. Though it was against the provisions of Islamic law, Section 125 of CrPC override the personal law and gave effect to the judgement.

Similarly, in the case of Shayara Bano vs Union of India, Shayara Bano married to Rizwan Ahmed, was a victim of domestic violence, while she was visiting her parents, Rizwan Ahmed sent her a divorce letter of Talaq-ul-Biddat declaring instant divorce. She filed a petition before the Supreme Court to declare triple talaq, nikah halala, and polygamy to be unconstitutional. Although the court took into account only the plea of triple talaq declaring it to be unconstitutional and it also held that until the government formulates a law regarding instant triple talaq, there would be an injunction against the pronouncement of triple talaq by husbands on their wives.

Talaq-ul-Biddat or triple talaq is unconstitutional as it violates Article 14 of the Constitution in two ways; firstly, it discriminates Muslim women from Muslim men on the basis of gender, as only Muslim men have the right to declare triple talaq, and secondly, it is discrimination on the basis of religion, women of no other religion are subject to cruelty and unjust behaviour of triple talaq except Muslim women. Talaq-ul-Biddat also violates Article 21 of the Constitution on the grounds of the right to live with human dignity, Muslim women are subject to derogatory and cruel behaviour of the Talaq-ul-Biddat, which reduces their presence to mere unwanted beings in the eyes of their husband and society. A divorce that is arbitrary, without justified reasoning and a reconciliatory process is never allowed by the Koran. Thus, personal laws of Muslims are given prominence unless and until they are against the right of women to live a dignified life or are unconstitutional.

Changes brought by the Muslim Women (Protection Of Rights On Marriage) Act, 2019

The Muslim Women (Protection Of Rights On Marriage) Act, 2019 brought the following changes:

Section 3- Pronunciation of triple talaq on wife by husband in any manner (including electronic), by words either spoken or written, is void or illegal.
Section 4- Any person who pronounces talaq to his wife in a manner prescribed in section 3, shall be subject to imprisonment extendable to 3 years or shall be liable to a fine.
Section 5- Muslim women who are being divorced can seek allowance from their husband to maintain themselves and children dependent on them.
Section 6- Muslim women divorced by husband are entitled to seek custody of their minor child.
Section 7- Magistrate can grant bail to the accused after hearing both the parties, if he feels that reasonable ground exists for granting bail. The offence is compoundable and there is also an option of compromise at the instance of a married Muslim wife, which will drop the charges on the basis of fulfilment of certain terms and conditions.

Need for Uniform Civil Code (UCC)

Implementation of the Uniform Civil Code is the need of the hour. Article 44 of the Indian Constitution talks about the creation of the Uniform Civil Code for all the citizens of India. The creation and implementation of UCC will bring drastic changes in the Muslim personal laws, this is the reason it is being opposed by the Muslims. It will lead to the permanent abolition of triple talaq, all the marriages will be dissolved through Court proceedings. The practice of polygamy will be abolished and monogamy will be the norm. It will also bring change in maintenance provisions; Muslim women will be able to claim maintenance for a lifetime. Civil contractual nature of marriage will be abolished. Registration of marriage will be compulsory practice, and implementation of UCC will also lead to a violation of the period of iddat. These changes are pro-women and are actively welcomed by Muslim women, as it will lead to the positive betterment of women and society as a whole. But these changes are opposed by Muslims as a whole because they feel the imposition of UCC as an imposition of Hindu law over their personal laws, which is the wrong notion. Uniform Civil Code will be secular in nature containing essentials of all the diverse religions in India. Thus, Uniform Civil Code is necessary for strengthening national unity and integrity among citizens of India.

Conclusion

Under the Muslim Law, there are more than one form of ways through which marriage can be solemnized and divorce can be initiated for dissolution of marriage. To cater to the needs of changing circumstances along with Muslim personal laws certain legislations are brought by the Government of India such as the Muslim Dissolution of Marriage Act, 1939, the Muslim Women (Protection of Rights on Marriage) Act, 2019 etc., to govern Muslim marriage and divorce. However, apart from these legislations and personal laws, there is a need for the Uniform Civil Code for creating single informed laws governing all the citizens of the nation to strengthen national unity and integrity.

References

https://www.lawctopus.com/academike/marriage-under-muslim-law/
https://indianlegalsolution.com/marriage-under-muslim-law/
https://blog.ipleaders.in/marriage-under-muslim-law/amp/
https://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html
https://www.legalserviceindia.com/legal/article-5479-divorce-under-muslim-law-the-concept.html
https://blog.ipleaders.in/muslim-law-divorce/
https://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html
https://www.latestlaws.com/articles/all-about-muslim-women-protection-of-marriage-act-2019/
Partha Pratim Paul, Talaq Is a Reasonable and Justified System of Divorce for Muslim Women in India, 2 INDIAN J.L. & Just. 98 (2011)
https://blog.ipleaders.in/ucc-in-muslim-personal-law/amp/

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How does the Digital Markets Act under EU Competition Act impact the M&A of social media giants

By

Abanti Bose

-

August 3, 2021

0

M-A-in-the-CRO-industry-The-Good-The-Bad-and-The-Ugly_wrbm_large (1) — Image source-https://rb.gy/6skh71

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

Table of Contents

Introduction

The European Union Competition Law is the law regulating the competition aspect of the market in the whole of Europe. This law prevents anti-competitive practices like creating monopolies or cartels in the markets that damage the interests of society. In Europe, only a handful of digital players capture the largest part of the online economy, and hence to regulate the fast-growing digital market, European Commission in the year 2020 proposed the Digital Markets Act. This Act aims to ensure that no abuse of power takes place in the digital market by the big tech giants and tries to build a safer environment for new digital players to enter.

Any law regulating competition has a major impact on M&A transactions. This is because any combination via M&A can have significant effects on the competitive aspects of the market as it can lead to agreements that cause anti-competitiveness in the supply or distribution of a particular product or service. Digital Markets Act impacts M&A of social media players to a great extent by regulating the gatekeepers of the digital world and subjecting their every M&A deal to scrutiny. This article will throw light on the provisions of the Act that will impact M&A transactions of social media giants.

The concept of “gatekeepers”

Digital Markets Act has coined the term “gatekeepers” and is used for those platforms which have a presence in one or more than one digital world’s eight-core services ( online search engines, online intermediation services, online social networking services, video-sharing platforms, operating systems, interpersonal communication services, cloud computing, and advertising.) and are operating in at least 3 EU states. These platforms meeting the following conditions will be considered as gatekeepers.

The platform has a significant impact on the internal market (defined quantitatively as an annual turnover of 6.5 billion Euros or a market capitalization of 6.5 billion Euros)
The platform serves as an important gateway for business users to reach end-users (user base larger than 45 million monthly end-users and 10,000 business users yearly: and
The platform enjoys an entrenched and durable position or is likely to continue to enjoy such a position (meets the first two criteria over three consecutive years).

The choice of the word ‘gatekeeper’ is interesting. The big digital platforms have formed an ecosystem of agglomerate services and a business must use the service of these companies to enter the market. Big digital platforms act as a gatekeeper between businesses and users. For example; if a local business wants to switch online to sell its products, it must provide its products over Amazon for better reach to the public. In such a situation, a person has no choice but to accept the policy and pricing of Amazon to run a successful online business. (The Act does not list down any company as gatekeeper, the reference to Amazon is just an example under the author’s view of gatekeeper).

How is the Act affecting M&A of social media gatekeepers?

The Act regulates the social media gatekeepers’ M&A deals by imposing an extra scrutiny process by the Regulator even when the target is not subject to Merger Control. Digital Markets Act in its Article 12 provides for an obligation of the Social Media Giants to inform the Competition Commission of any M&A deal they might enter or contemplate entering. This provision by itself does not attract any oversight mechanism. This is clear from Recital 31 of the Digital Markets Act proposal which clarifies this process and states that this is only to ensure that the Commission can adjust the status of the platform being a gatekeeper and update the core services provided by the platform in consequence to that M&A transaction.

In Europe, mergers and acquisition deals are governed by Merger Control Regulations. Not every deal falls within the purview of these regulations. There is a prescribed threshold to attract the scrutiny of the Commission. But the new Digital Markets Act is expanding the scope of jurisdiction of the Commission by mandating an obligation on digital platforms to inform the Commission of every deal.

If the provision of the new Act is read with Article 22 of the Merger Control Regulation, it becomes aggressive. Article 22 of the Merger Control gives authority to the nations to approach the Commission and scrutinize an M&A deal even if the deal is beyond their national threshold.

A combined reading of Article 12 of the Digital Markets Act and Article 22 of the Merger Regulation gives the Competition Commissioner vast jurisdiction in M&A deals. Every deal in the social media sector can be subject to scrutiny.

The positive side of the coin

Prevention of abuse by gatekeepers

This law specifically targets Giants. This is because they hold the capacity to alter several fair market practices. They can easily acquire entities to form monopolies and dominate the market, resort to predatory pricing, several giants can form cartels and manipulate the price of services, etc. Since not even a small M&A of gatekeepers is left unnoticed by the Act, this Act is sure to prevent abuse by the giants.

Consumer welfare

With the increased oversight over Social Media giants, the ultimate beneficiary is the public at large. This Act will ensure that consumers have a vast choice in terms of social media engagements (by preventing anti-competitive takeovers) and have a lesser cost to pay towards using these services.

Better environment for new entrants

These regulations are for the primary benefit of the new social media platforms. This Act will ensure that they aren’t targeted or side-lined by the gatekeepers and make a safe environment for every entrant to play their cards.

The negative side of the coin

Slow conclusion of deals

This Act by putting the extra measure to control mergers of every kind will slow down the process of conclusion of M&A deals.

Reduce the overall deals

Since all the deals can be subjected to Commission’s oversight, not all the M&A transactions will inevitably be approved by the Regulator. This in turn will reduce the number of deals.

Increased cost

This provision is bound to increase the cost of deals as the Regulator will subject the platforms to various procedures and compliances which they ordinarily won’t do.

Impact on innovation

Digital Markets Act has adopted the precautionary principle (ex-ante) towards M&A deals of the gatekeepers. It does so by imposing an obligation on the gatekeepers to inform the Commission. It is a well-known fact that the precautionary principle kills innovation as it requires the subject to unnecessary interference and interruption. Hence by adopting this approach, it is believed that this Act will seriously hamper the innovation in Social Media.

What can be done further?

The basic principle of competition law is to regulate abuse of the dominant position of the company. Dominant position in itself is not a crime until the company abuses its dominant position for anti-competitive gains. This act has objectively targeted big social media houses by designating them as gatekeepers. Not every company which qualifies the above definition of gatekeeper is having a dominant position in the market. Even if they are having a dominant position, they don’t need to be misusing this. This leads to viewing every transaction by these companies with suspicion. Hence, a second look must be given to the definition of gatekeeper to comply with the principles of competition law.

Conclusion

The behaviour of consumers about social media is an important consideration. Most of the consumers prefer a platform that can be a single fit for all, i.e. they can use it to connect to all their family and friends, access multiple opinions, share their content, sometimes even shop, etc. This behaviour favours using a single platform for multiple purposes. This consumer behaviour can be monetized easily by the social media giants by entering into various M&A transactions. This makes users extremely vulnerable to abuse by social media giants such as unilateral contracts, charging a high fee, manipulating behaviours, etc. It is at this juncture the Digital Markets Act becomes very important. The extra scrutiny by the regulator to every M&A deal prevents abuse by the giants and protects the consumer interest. Apart from this, the Digital Markets Act also prohibits combining data by the platforms collected by them from different sources without the permission of the user. This clause prevents the advantage a gatekeeper would have over the other digital platforms and, hence preventing abuse.

The downside of such regulation is that it hampers innovation. Social media thrives on innovations and experiments. They can provide innovative and new services and make the consumer experience more enjoyable by entering into various M&A deals with different kinds of companies. But these regulations have the potential to shape the relationships of social media platforms as per the convenience of the Regulator.

Nevertheless, the Digital Markets Act marks a significant step towards regulating social media giants by preventing abuse of their power.

References

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France adopted anti-waste law with a goal of recycling 100% of plastic by 2025 : key takeaways for India

By

Abanti Bose

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August 3, 2021

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000_1ki27h_0 (1) — Image Source: https://rb.gy/4snjth

This article is written by Vaibhav Raghuvanshi, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com.

Table of Contents

Introduction

Around 300 million tonnes of plastic waste are produced each year around the world. India alone contributes approximately 9.46 million tonnes of plastic waste each year.

Researchers have estimated that around 8.3 billion tonnes of plastic have been manufactured to date from 1950. Out of which 60% of the plastic has ended up in the natural environment or landfills as plastic waste. Despite various efforts, only 9% of the plastic waste has been recycled and 12% has been incinerated to date. The remaining 79% is still accumulated in our environment.

Today plastic waste has become a major problem for every government around the globe. To deal with this problem the French government has taken a unique initiative by adopting a new law on the fight against waste and the circular economy Law no. 2020-105, as known as the “Anti-Waste Law” with a goal of recycling 100% of plastics by the year 2025.

This article will help you understand the Anti-waste law passed by France’s government, its aims and will pinpoint a few things which can be adopted in Indian for the management of plastic waste to have a better and environment-friendly tomorrow.

What is anti-waste law?

The European Commission has been working on an action plan since 2015 for the transition of Europe toward a circular economy. France’s government on 10 February 2020 passed “The Anti-waste law” on the fight against waste and to promote a circular economy.

The law contains fifty measures addressing different aspects and principles such as polluter pays, full transparency in environmental and health aspects of a product, transparency on the waste management plan, prohibition on the use of singular plastic, provision to combat wastage of both food and non-food product, strict punishment for offences against the environment, provision to supporting companies in their eco-friendly initiatives, etc.

What does France’s government aim to achieve by anti-waste law?

France’s government wants to recycle 100% plastic by the year 2025. They want to decrease the household trash and waste from economic activity by 15% and 5% respectively by the year 2030. By 2040 the French government aims to impose a complete ban on singular-use plastic packaging.

Content of anti-waste law

The anti-waste law contains 50 measures broadly emphasizing the obligation, transparency, waste management, prohibition to combat plastic, greater power to Mayors to fight against the illegal dump, provision to support companies for their innovation of easily recyclable products, and assisting citizens to get familiar with the new consumer as per the Anti-waste law.

140 billion units of disposable household products are circulated and 180,000 tonnes of packaging is thrown away immediately after use each year in France. The French Government by enforcing an anti-waste law wants to ban all singular-use plastic by 2040. To achieve this the government plans to implement a five-year plan that will target reduction, reuse, and recycling of plastic. It will be implemented in 4 stages 2020-2025, 2025-2030, 2030-2035, and 2035-2040.

Strategic implementation of anti-waste law

The European Commission in order to accelerate the transition of Europe toward a circular economy adopted an action plan in the year 2015 which focused majorly on the transition of five different sectors namely plastic, food waste, critical raw materials, construction, and demolition, biomass, and biomaterials.

To implement the objective of reduction of the impact of plastic on the environment as the Directives of the Circular Economy Package which was adopted in 2018 and completed in 2019 the French Government adopted Law No. 2020-105 Regarding a Circular Economy and the Fight Against Waste also known as “the Anti-waste Law”.

The French Government aims to implement the Anti-waste by strategically focusing on the heads such as the polluters pay principle, awareness among consumers, transparency, acting against obsolescence, reducing the waste and harmonizing the reuse, incentivizing the manufacturer of easily recyclable products, penalizing illegal dumping of waste, etc. Now let us discuss each head in detail.

Discontinuing the use of single-use plastic

Following are the steps which are taken or will be taken to realize the dream of discounting the use of single-use plastic in France’s under anti-waste law:

On 1st January 2020 ban was imposed on cups, plates, and cotton buds.
In the year 2021, the French Government banned the use of disposable straw, stirrers, etc in fast-food restaurants.
From 1st January 2021, both the manufacturing and import of single-use plastic was prohibited.
On 1st January 2021, the use of polystyrene boxes was banned for on-site or take-away customers of the restaurant.
On 1st January 2021, the use of plastic confetti was prohibited.
From 1st January 2021, the French people will be allowed to bring their containers to the retail store, though the seller will be able to prescribe the specific type of container as per the hygiene standards.
On 1st January 2021, the France government prohibited both the manufacturing and import of single-use plastic.
To send a strong message to the producer and the distributor, selective sorting bins will be installed in each supermarket from 1st January 2021 at the check-out area so that the customer can get rid of packaging as soon as he leaves.
From 1st January 2022, it will be prohibited to use non-biodegradable plastic for tea bags and marketing of tea.
Ban will be imposed on the use of plastic packaging for fruits and vegetables for the waving below 1.5 Kg from 1st January 2022.
From 1 January 2022 supply of plastic toys with the menus will be prohibited.
From 1st January 2022 sponsors will not be allowed to distribute paid or free bottles at cultural, sports, or festivals.
From 1st January 2022, all public places such as schools, libraries, universities, etc will be equipped with drinking water fountains.
From 1st January 2023, the France Government plans to make it compulsory for the restaurants to use reusable tableware for the onsite use of the customer.
Newspapers, magazines, and advertising will be prohibited from using plastic wrap from 1st January 2023
As of 1st January 2025, the household and professional washing machine will be equipped with a plastic microfiber filter.
Plastic containers for cooking as well as heating baby food will be prohibited in pediatric, obstetric, maternity wards, and perinatal centres from 1st January 2025.

Educating the consumer

To spread awareness among the consumer the French Government under the new Anti-waste law will be implementing the following steps:

The claims such as biodegradable are prohibited to be used on the product as they are found to be vague and misleading for the consumer.
Triman Logo along with the sorting information will be indicated on the packing of the product from 2021 mandatorily.
By 31st December 2022, the France Government aims to harmonize the colour of waste bins.
To better inform consumers any person marketing a product containing a substance that can cause endocrine disruptor to property according to ANSES must publish the list of these products and sustain contained in each of such products in an open format from 1st January 2022.
From 1st January 2022, the consumer should be properly informed about the legal guarantee on a product so that the same is not confused with a commercial guarantee.
Prohibition will be imposed no later than 31 December 2023 prohibition on unsold non-food inventory such as clothes, beauty products, shoes, books, or consumer electronics, etc. from destruction.
50 million euros have been allocated for developing technology for reuse in order to reduce thousands of tonnes of waste.
From 1st January 2022, the patient will only get the number of medicines as prescribed by the doctor.
Use of pamphlets catalogue and advertising printed matter on cars will be prohibited from 1st January 2022.
Automatic printing of cash-till and credit card receipts when money or vouchers are withdrawn will be banned from 1st January 2023 although the consumer will be able to ask for a printed receipt if he wishes to do so.

Transparency

In order to promote transparency, the France Government under anti-waste law has enforced the following things:

From 1st January 2021, every internet service provider and mobile operator shall display the data usage and greenhouse gas emission.
The compulsion for all computer and cell phone manufacturers and vendors to inform the buyer about the time frame during which their device is subjected to a software update from this year 2021.

Acting against obsolescence

To fight against obsolescence the anti-waste law provides that a 6-month legal guarantee should be extended if the appliance undergoes repair during the timeline of legal guarantee from 1st January 2022. The law also provides that if in case the spare part of the product is not available in the market the manufacturer or the importer is subject to the provision of IPR on request from the vendor or repairer can provide the spare part by using the 3D printing technology applicable from 1st January 2022.

As per anti-waste law building sector professionals, local associates and the French Environment and Energy Management Agency will come together to determine the number of new waste collection centres required so that waste does end up in the environment. These collection centres will take back any waste of the building sector professional, required that it is sorted.

Fighting the waste and harmonizing the reuse

The French Government has aimed to achieve a 60% repair rate in electric and electronic products for this the manufacturer will be required to provide a repairability index on the product which will allow the consumer to know whether the product is repairable with ease, difficulty, or non-repairable. The law also makes it mandatory that from 1st January 2021 at the time of purchase the consumer should be made aware of the availability of spare parts by the display of the list of available spare parts. It will be made compulsory for the manufacturer to make the spare part available to the seller or the repairer within 15 days of the request from them.

Making better product

In accordance with the provision of the Anti-waste law every five years, there will be an analysis of the producer or the manufacturer subject to the polluter pay scheme and a new action plan will be designed to increase the manufacturing of recyclable material in France’s territory.

The France government also intends to change sanctions for the pro-producer in order to make them more responsible to achieve the target set by the government in terms of recovery, reuse, repair, and eco-friendly design of their product.

The manufacturers of things like windows, carpets, concrete, or other building sectors as per the polluter pay principle under the anti-waste law need to ensure the free recovery of waste sorted by their craftsman and the waste should not be exposed in the environment from 1st January 2022.

Imposing penalties

The anti-waste law provides for a provision of a fine upto $16,760 (that is approx. 1500 euros) for illegal dumping of waste and for impounding vehicles used for illegal dumping. The law also provides for penalties according to the size and turnover of the business.

The key takeaway for India

Though, India is not one of the major plastic waste producers in the world. It produces approximately 9.46 million tonnes of plastic waste each year but due to its poor waste management most of the plastic waste ends up in the natural environment. Approximately 85% of the total plastic waste produced in India is inadequately managed. To counter this Indian government has passed Plastic Waste Management (Amendment) Rules 2021. Under this amendment, the government intends to enforce the ban on the Manufacturing of carrying bags below 120 um thickness from 30 September 2021 and by 1 January 2022 Manufacture, import, stocking, distribution, sale, and use of plastic sticks in earbud, balloons, flags, candy sticks, ice-cream sticks, polystyrene for decoration will be banned in India. The manufacture, stocking, distribution, import, sale, and use of single-use plastic items like plates, glasses, cups, cutlery, invitation cards, cigarette packets, plastic/PVC banners less than 100 µm thick, and stirrers will also be banned from 1 July 2022.

As India is a country with a very large population, trying to make people aware of the hazard of plastic waste will involve a lot of effort and money. Rather, the Indian government can focus on tackling the problem from a different point of view. The Indian government can first focus on the production aspect of plastic, especially the singular-use plastic which cannot be recycled and is one of the major reasons for plastic pollution, and then work on the recycling plan. But it is not the making of the law that seems to be a problem in India, it’s the implementation.

France’s Anti-waste law provides for many effective schemes which can help the Indian government to solve its waste management problem by curtailing the production of single-use plastic and the same focusing on the recycling plan. Such as:

Manufacturing and import of single-use plastic should be prohibited and a ban should be imposed on cups, plates, cotton bud’s disposable straw, stirrer, plastic confetti, polystyrene boxes, etc. The sponsor should not be allowed to distribute paid or free bottles at cultural, sports, or festivals and all public places should offer drinking water for free. Newspapers, magazines, and advertising should not be allowed to use plastic wrap.
Moreover, the polluter pays principle should be enforced in the building sector of things like windows, carpets, concrete, etc to ensure the free recovery of waste sorted by their craftsman and the waste should not be exposed to the environment. There should be provision for heavy penalties i.e., up to 0.1% of the total turnover if in case anyone is found to be exposing waste in the environment. The claims such as biodegradable should not be used on the product as they are vague and misleading for the consumer. As there are many needy people in India, unsold non-food inventory such as clothes, beauty products, shoes, books, or consumer electronics, etc. should not be allowed to be destroyed, rather it should be donated and distributed among the poor section of the society.

Conclusion

According to the environmental ministry of India, 40% of the plastic waste generated each year remains uncollected in India. We don’t consider plastic as a big issue now as the per capita plastic waste produced is still lower than in other countries. But at the same time, due to our inefficient management of plastic waste, there are a lot of problems such as waste piles up in landfills, chokes, drains and rivers. This plastic waste is flowing into our sea where it is ingested by marine animals and is thus causing a huge loss of marine life each year. This water is sinking into our groundwater, contaminating the natural environment with poisonous dioxins. If we act quickly, we can curtail this problem before it gets any bigger. All we need is good management of plastic waste focusing on reducing, reuse and recycling. Some strict rules are needed to stop the manufacturing of singular-use plastic. France’s anti-waste law offers some really good and feasible solutions in the fight against plastic. The government of India should definitely consider it before making any new policy regarding waste management.

Reference

https://ourworldindata.org/grapher/inadequately-managed-plastic?tab=table

https://ourworldindata.org/plastic-pollution

https://www.indiaspend.com/india-wants-manufacturers-to-manage-plastic-waste-heres-how-proposed-rules-fall-short/

https://www.unep.org/interactive/beat-plastic-pollution/

https://datatopics.worldbank.org/what-a-waste/tackling_increasing_plastic_waste.html

https://perma.cc/9YRB-SQGQ

https://www.loc.gov/item/global-legal-monitor/2020-03-20/france-new-anti-waste-law-adopted/

https://www.signaturelitigation.com/wp-content/uploads/2020/03/Signature-Litigation-Paris-Briefing-Note-Frances-new-anti-waste-law-March-2020.pdf

https://circulareconomy.europa.eu/platform/sites/default/files/anti-waste_law_in_the_daily_lives_of_french_people.pdf

https://www.thefashionlaw.com/retailers-may-soon-be-breaking-the-law-by-destroying-unsold-inventory/

https://www.waste360.com/legislation-regulation/france-announces-anti-waste-circular-economy-law

https://www.theguardian.com/world/2020/jan/30/france-passes-landmark-law-to-stop-unsold-goods-being-thrown-away

https://chemycal.com/news/df3592f8-9345-4f7e-8510-d7f660d88c42/Regulations_controlling_plastics_production_plastics_waste_and_recycling_in_India

https://science.thewire.in/environment/india-draft-plastic-waste-management-rules-2021-environment-ministry-ban-plastic-pollution-weak-regulation/

http://164.100.24.220/loksabhaquestions/annex/172/AS82.pdf

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Childcare institutions under the Juvenile Justice (Care and Protection) Act, 2015

By

Diva Rai

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August 2, 2021

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This article is written by Ms. Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. This article discusses briefly the childcare institutionalisation facilities available in India under the JJ Act 2015.

Table of Contents

Introduction

Many children in this country do not have a secure home or family. These children include orphans, abandoned, surrendered, and trafficked children, as well as children whose families are unable to care for them. Children in need of care and protection are put in places like children’s homes, open shelters, observation homes, special homes, places of safety, and specialized adoption agencies. According to a study conducted by the Ministry of Women and Child Development, the country has over 9,500 institutions housing over 3,70,000 children. The Juvenile Justice (Care and Protection) Act 2015 (hereafter referred to as JJ Act 2015) was enacted to cater for the best interest of the child, and in 2016, the Juvenile Justice (Care and Protection of Children) Model Rules (hereinafter referred to as JJMR 2016) were enacted by the Ministry for the said purpose.

In compliance with the Convention on the Rights of the Child, India’s commitment to such children is reaffirmed in the National Policy for Children of 2013. “The State shall endeavour to secure the rights of children temporarily or permanently deprived of parental care by ensuring family and community-based care arrangements, including sponsorship, kinship, foster care, and adoption, with institutionalization as a last resort, with due regard for the child’s best interests and guaranteeing quality standards of care and protection.”

Observation Homes

An Observation Home (hereinafter referred to as OH) is a child-care facility that is “for the temporary reception, care, and rehabilitation of any kid claimed to violate the law, while an inquiry is pending.” as per Section 47 of the JJ Act 2015, the State Government shall create and operate Observation Homes in each district or set of districts, either independently or through voluntary organizations or non-governmental organizations (NGOs). The JJMR, 2016, Rule 29(1)(i) states that separate OHs for boys and girls, as well as age-based segregation, should be implemented, taking into account physical and mental health, as well as the severity of the offence committed.

During the pendency of any investigation, these homes will be constructed in every district or for a group of districts for the temporary reception, care, and rehabilitation of any child believed to violate the law. Rule 9 of the JJMR 2016 states that if a child cannot be brought before the Juvenile Justice Board (JJB) or a single member due to odd hours or distance, the Child Wellbeing and Protection Officer (CWPO) should hold the child in the OH or suitable facility and produce the child before the JJB within 24 hours after arrest. If a child is denied bail, he or she may be placed in an OH.

Special homes

A Special Home is an institution that is responsible for “housing and providing rehabilitative services” to children who have been found guilty of a crime and ordered by the JJB or the Children’s Court to be placed there as defined under Section 2(56) of the JJ Act, 2015. Section 47(1) obliged the State Government to create and maintain Special Homes also in each district or group of districts, either independently or through volunteer organizations or non-governmental organizations (NGOs).

Rule 29 (1)(ii) of the JJMR 2016 states that there should be distinct Special Homes for girls beyond the age of ten, boys between the ages of eleven and fifteen, and boys between the ages of sixteen and eighteen. Children in the Special Home should be divided into groups based on the nature of their offences and their mental and physical condition.

Place of Safety

A “Place of Safety” is a child-care facility for children who have been accused of or found to violate the law as per Section 49 of the JJ Act 2015, at least one haven should be established by the state government. Separate arrangements and facilities should be created for children or people under investigation and children or people who have been convicted. As noted in Section 2(46) of the JJ Act 2015, it must not be a police station or a jail. It can be set up on its own or as part of an Observation Home or Special Home. The person in charge of the safe-haven should be willing to accept the child if the JJB or Children’s Court issues an order. After being found guilty, people can be held in a safe facility while their case is being investigated and while they are being rehabilitated.

The JJB or Children’s Court can order a person to be transported to a safe place in six different circumstances as per Section 18, 19, and 49 of the JJ Act 2015 along with Rule 29 of JJMR 2016:

For juveniles aged 16 to 18 years who are suspected of committing a heinous crime while the investigation is ongoing;
Juveniles aged 16 to 18 years are found to have been involved in a heinous crime after the investigation is completed;
For persons above the age of 18 who are accused of committing an offence while under the age of 18 pending investigation;
For persons over the age of 18 who are found to be involved in an offence after the investigation is completed;
For children placed in protective custody by the Board under clause (g) of sub-section (1) of Section 18 of the Act because their conduct and behaviour are such that the JJB believes it is not in the child’s or other children’s best interests to keep them in a Special Home;
For a person whose claim to be a child is being investigated and is required to be kept in protective custody.

Section 49 of the JJ Act states the setting up of a place of safety. It notes that a person above the age of eighteen years or a child in conflict with the law who is between the ages of sixteen and eighteen years who is suspected of or guilty of committing a heinous offence shall be placed in at least one place of safety in a State listed under Section 41 of the JJ Act. Every place of safety must have separate preparations and facilities for the accommodation of such children or persons throughout the investigation process, as well as children or persons who have been convicted of committing an offence. The State Government may prescribe the types of sites that can be recognized as places of safety under subsection (1), as well as the amenities and services that can be offered there, through laws.

Every year, the District Child Protection Unit (DCPU) is required under Model Rule 85 (iv) to perform an evaluation of the child put in the place of safety and transmit the report to the Children’s Court. There is uncertainty over whether a person or a kid who has crossed the age of 18 at the time of apprehension or during the investigation should be placed in an institution. The JJ Act makes this extremely plain. It stipulates (under Section 49) that the State Government shall establish at least one place of safety in a state, fully registered under Section 41, in which such persons or children shall be lodged if apprehended after the age of 18 years. A CICL between the ages of sixteen and eighteen who is accused of or convicted of committing a serious crime will be placed in a Place of Safety as well.

As observed in the Handbook of Advocates, when the child’s Place of Safety and Special Home is not established in the district where the child’s family lives or in the district where the concerned JJB/Court Children’s has jurisdiction over the child’s case, the child’s right to contact with family is denied. All of this could have an impact on the child’s reformation assessment when he or she reaches the age of 21. In such cases, the attorney can file a video-conferencing application. The lack of rehabilitative services within the Place of Safety can also be brought to the attention of the Children’s Court and the JJB. This implementation gap could also be brought to the attention of the High Court Committee and Juvenile Justice.

Fit facility

The JJ Act allows for the temporary or short-term placement of children in a “Fit Facility.” Section 2 (27) defines a fit facility as one that is managed by the government or by a voluntary or non-profit organization and is prepared to care for a child temporarily for a specific purpose.

Section 51(1) of the JJ Act 2015 empowers the JJB or the Child Welfare Commission (CWC) to recognize a facility run by a governmental organization or a voluntary or non-governmental organization (NGO) registered under any law currently in force as being fit to temporarily take responsibility for a child for a specific purpose. This is done after a thorough investigation into the facility’s and the organization’s suitability to care for the child in the manner that may be prescribed.

It’s critical to distinguish between a fitness centre and a residential residence. While a residential home (Observation Home, Special Home, or Children’s Home) strives to provide long-term care, a Fit Facility is simply supposed to care for the child temporarily. Some instances are as follows:

A child with a substance abuse problem may be placed in a de-addiction centre by the CWC or JJB if the institution is deemed suitable for the child.
A specialized hospital may be deemed a suitable institution if a child is suffering from a sickness that necessitates special treatment or quarantine.
The JJB has the authority to release a child on probation and place him or her in a suitable institution, as well as to order that the child be supervised by a Probation Officer who must provide periodic reports in Form 10 for three years.
After speaking with the child, the CWC may issue orders for the child to be placed in safe care in a suitable facility until he or she can be put into a home or returned to their parents or guardians.

According to Model Rule 11(8), if the child is placed in a fitness facility, the JJB shall consider the fit facility or special home that is closest to the child’s parent or guardian’s house, unless it is not in the best interest of the child to do so.

Any facility seeking to be recognized as a fit facility must meet the following requirements:

Meet the basic standards of care and protection for children;
Provide basic services to any child placed with it;
Prevent any form of cruelty, exploitation, neglect, or abuse of any kind to any child placed with it; and
Follow the Board’s or Committee’s orders.

The procedure followed if a child runs away from a child care institution

Section 26 of the JJ Act 2015 describes the situation where if any child has escaped from an Observation Home, Special Home, or other places of safety, or from the care of a person or institution under whom the child was put by a JJB/Court Children’s order, can be taken into custody by the police. The child must then be produced within 24 hours of the JJB that approved the original order or the JJB closest to the location where the child was discovered. The JJB should figure out why the child ran away and then issue instructions for the child to be returned to the same or a comparable location or person. It can also include extra instructions for any specific actions that must be taken in the child’s best interest.

There should be no further procedures brought against such a youngster. For example, if a child runs away from an Observation Home because of sexual assault by a staff member, the JJB may opt to move the child to a different facility. It could also mandate counselling and medical evaluations in the child’s best interests, as well as direct the police to file an FIR.

Gaps within the CCIs

Systematic abuse

“It will not be an understatement to state that juvenile justice homes….have become India’s hell holes where inmates are subjected to sexual assault and exploitation, torture and ill-treatment, apart from being forced to live in inhuman conditions,” according to a 2013 report by the Asian Centre for Human Rights (ACHR), “India’s Hell Holes: Child Sexual Assault In Juvenile Justice Homes.” The study goes on to detail 39 examples of minors in juvenile justice facilities, including government-run observation houses, children’s homes, shelter homes, and orphanages, being sexually assaulted repeatedly.

Systemic abuse can be avoided by establishing a culture inside the institution that makes it undesirable. A written code of behaviour for employees and visitors, awareness training for trustees, staff, and children, and huge visible posters encouraging reporting are all examples of ways to foster such a culture. Children can also be empowered through life skills training and the development of child committees. Regular visits from partner charities and counsellors can also help to foster an open and secure culture.

Gaps in funding and data collection

The Integrated Child Protection Scheme (ICPS) includes adequate funding for childcare facilities. In practice, however, implementation varies from state to state, and funding is inconsistent and unpredictable. Furthermore, while the Child Welfare Committee and the District Child Protection Unit are in charge of overseeing childcare facilities, they lack current data on children and rely on occasional inspections. We propose that, in addition to inspections, supervision be guided by child-level data, which is difficult to falsify and represents reality on the ground.

The number of children in an institution and the outcomes achieved can be used to determine how much money is disbursed under the ICPS. Data can be collected and kept up to date by digitizing the various registers kept by the Juvenile Justice Department (JJ Act). We also need to gather outcome-based data, such as BMI, illness prevalence, children requiring major medical intervention, and so on. For example, doing six-monthly checkups is a fantastic approach to analyze BMI, disease prevalence, children requiring serious medical intervention, and so on. Similarly, children’s educational standing can be assessed once a year with an assessment test.

Lack of training for children

When children reach the age of 18, they must leave the institution, and most youngsters have little assistance after that. Aftercare is a big gap in all institutions, and it isn’t even a focus area in most of them.

While the child is in the institution, preparation should begin around the age of 14 or 15. Career awareness, life skills, and basic financial literacy are all crucial in preparing a child for the day when they must leave and become self-sufficient. By the time the child reaches the age of 18, they should have a clear path to a respectable living and the support they need to get there. Not just financial assistance is essential, but also mentoring and handholding, similar to how a parent would look after a child during these formative years. CCI must form partnerships with nonprofits that can provide follow-up services. The overarching goal must be rehabilitation, and until the problem of the “final mile” is addressed, our corruption will become a reality.

Lack of technical staff

Most childcare facilities have good intentions but lack the necessary expertise and human resources. For example, they require assistance in comprehending the JJ Act’s processes, documentation, and compliance requirements, as well as the ICPS scheme’s compliance requirements. Similarly, the trustees and employees need child care training or nutritionist assistance to improve their diet using locally available food. Institutions also require ‘know how’ in areas such as life skills and vocational training, as well as the preparation of child plans. Most childcare centres are too small and inexperienced to provide these services.

Conclusion

As noted above, there are laws and rules in India concerning Childcare institutions but what is required is a stricter implementation by the legislature then only we can expect a better life for the juveniles, which is the ultimate purpose of the enactment of juvenile justice administration. The objective of the enactment of the Act will be fulfilled only when there is a stricter implementation of the laws relating to it.

References

http://www.pecuc.org/Upload/CenterOfRight/Handbook%20for%20Advocates-1.pdf

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The Basic Structure Doctrine : perceptions of the Kenya High Court

By

Bushra Tungekar

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August 2, 2021

0

This article is written by Srishti Sinha, a student at the Institute of Law, Nirma University. This article deals with the basic structure of doctrine of the constitution with the recent verdict of Kenya High Court which has ruled that doctrine of Basic Structure is applicable in Kenya.

Table of Contents

Introduction

The term “Basic Structure” is nowhere mentioned in the Indian Constitution. The concept that the Parliament cannot pass laws that change the Constitution’s essential framework has evolved throughout time and in various circumstances. The goal is to defend people’s rights and liberties while preserving the character of Indian democracy. This doctrine aids in the protection and preservation of the Constitution’s spirit.

The case of the Doctrine of Basic Structure in Kenya is solely based on people’s rights and preserving the aim of the Constitution. The justices based their decision on several factors, including Kenya’s constitutional making history, reasoning that the unmaking of the Constitution must be led by the people in the same manner that the making of the Constitution was.

Basic Structure Doctrine in India – an overview

What is the Doctrine of Basic Structure?

The Constitution is a vast document that can be amended according to the needs and requirements of society. Till today, there have been various amendments in our Constitution, as over time the requirements and expectations of societal changes and so, there is a need to change the laws. Article 368 of the Indian Constitution grants the power to the Parliament to make amendments in the Constitution, whenever necessary.

The Doctrine of Basic Structure is nothing more than a judicial invention designed to prevent Parliament from abusing its amendment power. The concept is that the core aspects of the Indian Constitution should not be changed to the point that the Constitution’s uniqueness is lost. The idea of basic structure supports that the Indian Constitution upholds certain principles that are the governing norms for the Parliament. No amendment can modify these principles.

Evolution of Doctrine of Basic Structure of Constitution

The constitution’s underlying foundation has evolved throughout time. In this part, we’ll look at how this concept has evolved with the assistance of several important cases.

In the case of Shankari Prasad v. Union of India (1951), the First Constitution Amendment Act of 1951 was challenged. The amendment was contested because it violated Part III (Fundamental Rights) of the Constitution and should thus be deemed unlawful. The Supreme Court ruled that the Parliament has the power to change any part of the Constitution, including basic rights, under Article 368.
In the case of Sajjan Singh v. State of Rajasthan (1964), the Supreme Court gave the same ruling, i.e., the Parliament has the power to change any part of the Constitution, under Article 368.
The Supreme Court overruled its earlier decision in the case of Golak Nath v. State of Punjab (1967). The Supreme Court ruled that Parliament does not have the authority to modify Part III of the Constitution since basic rights are eternal and unchangeable. According to the Supreme Court ruling, Article 368 simply lays out the mechanism for amending the Constitution and does not grant the parliament full power to modify any part of the Constitution.

Later, in the year 1971, the 24th Constitution Amendment Act, 1971 was approved by Parliament. The legislation provided parliament with the unrestricted authority to amend the Constitution, including basic rights. It also made it mandatory for the President to give his assent on any Constitution Amendment legislation that was brought to him.

The Supreme Court upheld the legality of the 24th Constitution Amendment Act in the Kesavananda Bharati v. State of Kerala (1973), after reconsidering its verdict in the Golaknath case. The Supreme Court ruled that the Parliament has the authority to change any provision of the Constitution, but that the Constitution’s basic structure must be preserved. In the judgment, the Apex Court did not mention any specific definition of the Basic Structure.
Kesavananda Bharati case is considered as the landmark case which brought this doctrine into the limelight. In this case, the justices determined that the Constitution’s “fundamental structure could not be repealed even by a constitutional amendment”, and they also created a list of essential aspects of the Constitution.
In the case of Indira Gandhi v. Raj Narain (1975), the Supreme Court used the basic structure theory to strike down Clause(4) of Article 329-A, which was added by the 39th Amendment in 1975, because it was outside Parliament’s amending power since it undermined the basic structure of the Constitution.
In the case of Minerva Mills v. Union of India (1980), the concept of Basic Structure was developed by adding two features to the list of basic structure features: Judicial Review and balance between Fundamental Rights and Directive Principle of State Policy.
In the case of Kihoto Hollohan v. Zachillhu (1992), the list of Doctrine of Basic Structure was further amended by adding free and fair elections into the list.
In another landmark case of Indira Sawhney v. Union of India (1992), the Rule of Law was added as the basic feature of the Constitution.
In another landmark case of S.R Bommai v. Union of India (1994), federal structure, unity and integrity of India, secularism, socialism, social justice, and judicial review were included in the list of basic structures.

With these cases, a list of Doctrine of Basic Feature was made ready and any amendment made into these features is considered as a breach of the Constitution’s Basic Structure.

How did the Basic Structure Doctrine become applicable in Kenya

Background

In the recent Kenyan case of David Ndii v. The Attorney General (2020), the High Court of Kenya has declared that the idea of Basic Structure is applicable in Kenya. The Constitution of Kenya (Amendment) Bill, 2020 was disqualified by 5 High Court judges on 13th May 2021. This Bill was disqualified because it aimed to implement the President’s Building Bridges Initiative (BBI).

The Bill was a comprehensive constitutional reform proposal that attempted to “build a permanent unity in the country” by introducing certain major amendments to many chapters of Kenya’s 2010 Constitution. Among the many changes made by the Bill was the redesign of the legislature by returning the Government to Parliament, the expansion of the national executive by creating the Office of the Prime Minister and Deputy Prime Ministers, the inclusion of the Leader of the Official Opposition in Parliament, and the creation of 70 new constituencies.

Contentions

The following are the arguments made by both parties:

Arguments of Petitioners

The petitioners argued that the amendment powers enshrined in Articles 256 and 257 of the Kenyan Constitution can only be used to amend the Constitution’s “ordinary provisions,” and that they do not include the power to destroy the Constitution, nor the power to establish a new form of government or enact a new Constitutional Order. The petitioners contended that the Bill threatens to overturn the Presidential form of governance by amending Chapter 9 of the Constitution, which goes against the decisions and reasoning of the Constitution’s framers. The petitioners argued that the Basic Structure Doctrine imposes logical constraints on the right of modification.

They claimed that the doctrine exists to defend the Constitution’s basic features and that the ability to change the basic structure is restricted since doing so would damage the Constitution’s basic character. To give authority to their contentions, the petitioners took a famous and landmark Indian case of Kesavananda Bharati v. State of Kerala (1973), to stress their point that when it comes to parliament’s amending authority, the Constitution imposes certain inherent limits on that power.

Arguments of Respondent

The respondent claims that the petitioner’s contention that the Basic Structure should be applied in Kenya ignores “the Kenyan Constitution distinctive cultural, historically evolved Constitutional standards, and national identity.” The respondents responded to the petitioners’ citation of the Kesavananda Bharati case (India) by stating that the Kesavananda Bharati decision recognizes the uniqueness of the Indian Constitution and the applicability of this doctrine within the Indian context, which is not at all similar to the Kenyan perspective.

They contend that, unlike in India, the Constitution’s modification authority does not lay only with Parliament, because Kenyans have the last say in a referendum. They claimed that the basic structure doctrines, as well as the amenability and eternity provisions, do not apply in Kenya. They chastised the petitioners for conflating the notions of Basic Structure Doctrine, the concept of amenability, and eternal clause, which they claimed needed to be separated. Furthermore, the respondents said that the Basic Structure Doctrine is not universally accepted.

Observations by the Kenya HC

After analyzing the arguments of both sides, the bench of 5 Justices observed the following:

The basic framework of the Constitution is made up of the preamble’s basic structure, the eighteen chapters, and the six schedules of the Constitution. The design of the judiciary, parliament, executive, independent commissions and offices, and devolved forms of government are all outlined in this framework. It also lists the exact substantive topics that Kenyans believed were significant enough to be included in the Constitution. As a result, without recalling the people’s primary constituent power, this core cannot be changed. Thus, the basic structure of doctrine is applicable in Kenya.
The basic structure doctrine limits the amending authority of Articles 255 to 257 of the Constitution. The doctrine, in particular, restricts the ability to change the Constitution’s basic structure and perpetuity sections.
The entire BBI process, crowned in the launch of the Constitution of Kenya Amendment Bill, 2020, was done unconstitutionally and in the usurpation of the people’s exercise of sovereign power, and that the President violated Chapter 6 of the Constitution and Article 73(1)(a)(i) by initiating and promoting a constitutional change process contrary to the Constitution’s provisions on amendment of the Constitution.
That only the primary constituent power can modify the Constitution’s basic structure and eternity articles, which must comprise of 5 consecutive processes: civic education, public involvement, collation of opinions, constituent assembly discussion, and, finally, a referendum.

Indian precedents crossing boundaries- a proud moment for the Indian legal system

The controversial Constitution of Kenya Amendment Bill, 2020 has finally got its verdict on 13th May 2021. The High Court was hearing a slew of constitutional petitions challenging the Building Bridges Initiative (BBI), as well as the consequent Constitution Amendment Bill and its related popular initiative, in various ways.

The contentions and arguments of both parties have given the support of an Indian landmark case of Kesavanada Bharati. Both the parties heavily relied on this case for presenting their arguments. It is a proud moment for India that its landmark case of Kesavanada Bharati is being cited as a supportive case in deciding a Constitutional matter of any foreign country. Further, the change that is brought in Kenya’s Constitution signals winds of change for constitutionalism in Africa.

Conclusion

The transformational ethos is one of the most prominent elements of Constitutions in the global south, including Kenya. Constitutions in the global south are not just tools for establishing and restricting political authority, but also for facilitating greater societal change.

This is critical not only for Kenya, but also for much of the global south, where societies may not be able to afford violent revolutions that might undo beneficial socioeconomic and political achievements, and where post-revolutionary constitutional outcomes may not be certain.

The controversial judgment of the Kenyan Court on Doctrine of basic structure analyzes the fundamental problems that the decision was based on while placing them within Kenya’s larger constitutional and socioeconomic framework. It is expected that the change which has been brought into the constitution of Kenya will improve the condition in Africa and the rights of people will not be affected further.

References

https://www.clearias.com/basic-structure-doctrine/

http://www.iconnectblog.com/2021/05/transformative-constitutionalism-and-the-basic-structure-doctrine-a-new-account-from-kenya/

https://www.scconline.com/blog/post/tag/Basic_Structure/

http://desikaanoon.in/breaking-kenya-high-court-rules-doctrine-of-basic-structure-applicable-in-kenya-petitioners-rely-on-kesavananda-bharti-case/

https://www.jagranjosh.com/general-knowledge/basic-structure-doctrine-of-the-constitution-1437127016-1

https://byjus.com/free-ias-prep/landmark-cases-relating-basic-structure-constitution/

https://www.the-star.co.ke/opinion/2021-05-31-high-courts-bbi-judgment-the-basic-structure-doctrine/

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Analysis of an award under Arbitration Act

By

Bushra Tungekar

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August 2, 2021

0

blog-1615442961 (1) — image source-https://rb.gy/8eu1fn

This article is written by Nandini who is pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from Lawsikho.

Table of Contents

Introduction

Alternative Dispute Resolution (ADR) includes arbitration. ADR procedures have several advantages, including lower costs, better procedural flexibility, increased confidentiality, increased possibility of settlement, choice of forum, choice of remedies, and so on. Arbitration, on the other hand, is one of the most well-known and widely used kinds of ADR.

The Act of 1996 is the fundamental source of Indian arbitration law. An act enacted to bring together the laws governing domestic and international arbitration, as well as their enforcement. Some substantial revisions were implemented in the years 2015 and 2019 to make arbitration a favoured form of resolving commercial disputes and to make India a centre of international commercial arbitration. The current law is made up of multiple similar revisions, the most recent of which were enacted in 2019.

Definition of award

The passing of decisive reasoning to the questions, issues, and disputes that are brought before the arbitral tribunal to be resolved is known as an award. After all parties have had a reasonable opportunity to state their case and exhibit evidence, the award is made. The form and content of arbitral awards are governed by Section 31 of the Arbitration and Conciliation Act which was enacted in 1996. The following are the fundamental parts of a legitimate Award, as determined by a cursory perusal of this Section: –

The award shall be made in writing. [Section 31(1)]
Subject to the exclusions set forth in Section, it must be signed by all members of the panel.
Subject to the exceptions set forth in Section 31(3), the award should describe the reasons for its existence.
The date of the award should be stated. [Section 31(4)]
The award shall identify its location; [Section 31(4)]
An interim award can also be given under Section 17; and
After the award is made, each party should receive a signed copy. [Section 31(5)]
In the case of a Tribunal with more than one Arbitrator, Section 31(2) states that signing the Award by the majority of the Arbitrators is sufficient as long as the Award reflects the reasons for any of the Arbitrators’ refusal to sign the Award.
The Award may be made without stating any grounds if the parties agree. [See Section 31(3) of the Code of Federal Regulations.] Giving reasons for the award is not required in the case of a settlement [Section 30].
Arbitration proceedings are stopped after the final award is made, as per Section 32 of the Arbitration and Conciliation Act, 1996. The Parties may, however, approach the Arbitral Tribunal for rectification and/or interpretation of the judgement and/or additional award under Section 33 of the Arbitration and Conciliation Act, 1996. Upon receiving such a request, the arbitral tribunal may analyse it, and if it considers the request to be reasonable, it may make any necessary corrections or interpret the request as it sees fit. It may also pass any Additional Award that is warranted. Any such corrections, award interpretations, and/or additional Awards will be included in the final Award.
Award as may be justified. Any such correction, interpretation of award and/or additional award shall form as a part of the final Award.
An Award becomes final either upon expiry of the period provided under the statute to challenge the Award or if challenged, after the final decisions on such challenges.
As may be justifiable. Any such corrections, award interpretations, and/or additional awards will be included in the final Award. An Award becomes final either when the statute’s challenge time expires or, if challenged when the final decisions on the challenges are made.
It is important to note that, in addition to the above applicable statute requirements, there are a number of guiding best practises supported by judicial precedents and provisions in the Arbitration and Conciliation Act,1996 that must be observed in order for the Award to be valid in law. Here are a few examples:

The Award must be rendered within the provisions of the reference, and the Arbitral Tribunal’s jurisdiction should not be exceeded while passing the award.
The Award should not be in violation of public decency or the law of the state.
An Award cannot compel the parties to undertake something that is impossible or illegal in and of itself.
The Award must resolve all pertinent and substantial questions addressed and implicated in the Arbitration.
The Tribunal must provide the parties with the opportunity for fair hearings when adjudicating the issues, and
The Award should not be arbitrary or contrary to the evidence on the record, and it should not be based on assumptions or speculations.
Stamp duty payable on the Final Award must be paid so as to make it enforceable in the eyes of the laws.

It is further pertinent to note that the Act also cast a duty upon the Arbitrator by virtue of Section 12 of the Arbitration and Conciliation Act, 1996 to disclose any kind of interests in any of the parties which may give justifiable reasons for doubt as to impartiality or independence of the Arbitrator.

Similarly, the Arbitrators are also duty-bound to disclose any compelling circumstances, which is likely to prevent them to discharge their duty. However, Party/s may opt to waive that. A court of law’s ruling is analogous to an arbitral award. In other terms, an arbitral award is a decision made by the arbitral tribunal on numerous matters in a case that the parties had brought before it.

There are numerous types of awards: Interim Award and Settlement Award are included in the final award. Because a Settlement Award is made by agreement between the parties, it is not appealable. The 1996 Arbitration and Conciliation Act establishes specific standards for arbitral awards. The following are the requirements:

Must be a majority decision – An Arbitration Tribunal of three arbitrators must issue an award based on a majority consensus, and they must also record the objection of the arbitrator who is not in agreement with the other two arbitrators.
Must be in writing, signed, and dated – An Award must be in writing and signed by the majority of the arbitral tribunal members.
Must be justified – An Award must be justified. The Award would be void if the reasons were not stated. It can’t be ambiguous. The Arbitral Award should be certain and specify which party is responsible for what.
Capable of being carried out – In addition to being enforceable, it should be reasonable in what it proposes and not require parties to undertake something that is impossible or illegal. Unenforceable awards would be overturned.

Grounds on which award can be set aside.

Awards can be contested and overturned in a variety of ways and on a variety of reasons. An award can be contested under Section 34 of the Arbitration Act by filing a court application to set aside the Award on the following grounds based on the Arbitral tribunal’s record: The arbitral Award decided on a dispute outside the scope of the reference to arbitration or contains decisions outside the scope of the submission to arbitration; the arbitration agreement being invalid under the law.

Improper notice of the appointment of an arbitrator or of the arbitral proceedings to the applicant, or the applicant was unable to present his or her case; the Arbitral Award decided on a dispute outside the scope of the reference to arbitration or contains decisions outside the scope of the submission to arbitration; the subject matter of the dispute cannot be resolved by arbitration under the law in effect at the time; or the Arbitral Award is in violation of public policy (this includes awards that are: tainted by fraud or corruption;) in violation of fundamental policy of Indian law or basic notions of morality or justice; and those that violate confidentiality and admissibility of evidence).

An application to set aside an Award must be filed within three months of the day the applicant received the arbitral award unless the court extends the time limit for a further 30 days provided the applicant shows good cause for delay.

Judicial precedents elaborating what is an award.

Parties to a foreign-seated arbitration no longer have recourse to any Indian courts after the Supreme Court’s ruling in Bharat Aluminium Company v Kaiser Aluminium Technical Service Inc 2012 (8) SCALE 333 (the BALCO verdict). Courts in India have likewise given public policy a broad interpretation, holding that even a violation of Indian law is against public policy.

Any party to a foreign-seated arbitration no longer has the option to set aside an Award under Section 34, which was previously expanded by the courts through judicial interpretation. Upon receipt of an Award of a foreign arbitration, all parties to the arbitration must: If such an award is necessary to be executed in India, it must be presented for enforcement under section 48 of the Arbitration Act.

To the extent permitted by Section 48, an Indian court can review a Foreign Award to determine whether it should be enforced. BALCO applies to all agreements that have been executed after 6 September 2012 for foreign-seated arbitrations.

By inserting a caveat to Section 2 of the 2015 Amendment Act, the reversal of position in the BALCO verdict was clarified (2). Sections 9 (interim relief by courts), 27 (court assistance in taking evidence), 37(1)(a) (appeals in respect of interim relief by courts) and 37(3) (appeals to the Supreme Court) will be made applicable to international commercial arbitrations, even if the seat of arbitration is outside India, according to the proviso.

In the case of Shri Lal Mahal v Progetto Grano Spa Civil Appeal No. 5085 of 2013, decided on July 3, 2013, the Supreme Court not only limited the interpretation of “public policy” in enforcement proceedings, but also held that the scope of public policy under section 48 is narrower than under Section 34.

The court ruled that enforcement under Section 48 can only be challenged on public policy grounds if it is in violation of Indian law’s fundamental policy, the country’s interests, or justice and morality.

The extent of public policy under Section 34(2)(b)(ii) of the Arbitration Act was once again considered in the case of ONGC v Western Geco International Ltd Civil Appeal No. 3415 of 2007. The Supreme Court lowered Western Geco’s award by one-third, citing a “palpable error” on the part of the Tribunal. In addition, the court expanded the scope of “fundamental policy of Indian law” to include three principles to be followed by the tribunal: a judicial approach, natural justice principles, and the Wednesbury principle of reasonableness, while determining whether the Award was in conflict with “public policy of India.”

In the matter of Associate Builders v Delhi Development Authority Civil Appeal No. 10531 of 2014, the Supreme Court held that section 34 of the Arbitration Act does not allow courts to reconsider arbitrators’ conclusions of facts, and so reinstated the award. The court just defined and did not limit the legislation relating to public policy, stating that an award might be set aside if it is in violation of Indian law’s fundamental policy, India’s interest, justice, or morality, or if it is clearly illegal.

An application for setting aside an award on the grounds of “patent illegality” as a violation of the public policy will only be relevant to awards in domestic arbitrations, according to the 2015 Amendment Act’s insertion of section 34(2A). Furthermore, an award will no longer be subject to reversal only based on an incorrect application of the law or reappraisal of the evidence.

According to the change to Section 36 of the Arbitration Act, just filing a challenge to an award under Section 34 does not render the judgement unenforceable until the challenged party files an application with the court, whereby the court may issue a stay on the award’s enforcement. To put it another way, submitting a Section 34 application does not automatically result in a stay of enforcement proceedings. It will be necessary to submit a second application for permission to stay.

Conclusion

The preceding article covers the fundamentals of statutory legislation pertaining to the Award. Award writing is a difficult task. It should begin with a description of the Arbitral Tribunal’s introductory narration, terms of reference, disclosure of the Arbitrator’s interests and circumstances, etc., the parties’ presences’ position, notices status and presence of the parties, brief of proceedings, rival parties’ cases, issues framed, evidence led, contentions raised during arguments, and the Tribunal’s views on. It also determines who is responsible for the costs and how they will be paid. It also documents the dates, location, and conclusion of the Award proceedings on the date of the final award’s signature. On all of the issues, an award must be given.

Reference

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An analysis of the European Union data protection law system

By

Sneha Mahawar

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August 2, 2021

0

European Union — Image Source: https://rb.gy/ikhmws

This article is written by Shikha Pokhriyal from the School of Law, Delhi Metropolitan Education, GGSIPU. This article talks about the European Union Data Protection Bill 2018 and General Data Protection Regulations (GDPR) and how these bills will help protect people’s personal data.

Introduction

European Union data protection law aims at protecting the personal data of the citizens from breaches or hacking. The companies often reveal the personal data or the information shared with them, by their customers. European Union recognized the right to protection of personal data as a fundamental right. The General Data Protection Regulations (GDPR) is a piece of legislation that helps regulate and control an individual’s data. Customers share their personal information with companies when they associate with them in some kind of business trade like selling and buying. The customers for smooth functioning of relationship with the companies have the name, address, mobile number, email ids, etc. The companies often share this personal data and leak this information that results in harassing the consumer.

There is a need for the legal provisions that would frame required guidelines to protect the consumer’s confidential information. European Union took a step towards this issue and introduced the European Union Data Protection Bill in the year 2018. This Bill is the need of the hour as so many cyber-related cases are recorded and in large numbers, people hesitate to file a complaint regarding the issues like hacking and cyber fraud.

General Data Protection Regulations (GDPR)

General Data Protection Regulations is considered as the most difficult and appreciated security law in the whole world. This regulation is drafted by the European Parliament and aims to protect the data of the citizens belonging to the European Union and it imposes obligations on any organizations operating in the world. The main aim to introduce this law was to introduce a universal rule that would apply to every member of the European Nation. The GDPR is applicable when a consumer who belongs to European Union buys goods or services from any seller in the world, that seller is a citizen of the European Union or not will be obligated under the provisions of GDPR.

If any seller or business owners violate the provisions of the GDPR they would be obligated to submit huge fines. The GDPR includes four terms that define the general data protection regulations. Legal terms like personal data, data processing, the data subject, the data controller, and the data processor are used to understand data protection law better.

Personal data

Personal data is confidential information that helps to identify the person. Pieces of information like name, contact number, email addresses, and any other information that a consumer shares for the requirement to buy goods or services. Location services, web cookies, gender, and political opinions are also considered as personal information.

Data processing

Data processing includes actions like collecting, recording, organizing or storing, or any other action that is performed on the data of a person.

Data subject

Consumers or site visitors are considered as data subjects. The personal pieces of information of these people are processed.

Data controller

A data controller is a natural person or any authority who determines the intention behind processing the data. This person controls how and why the personal data should be processed.

Data processor

A data processor is the third party who can process the personal data but on behalf of the data controller. The GDPR contains separate rules and regulations for the people belonging to a third party.

Principles of data protection

Accountability

The data controller is held accountable for the protection of the personal data of the consumers. When the data controller hires the data processor or the third party and gives them access to the personal data, the data controller must ensure that the data processor or the third party is following the provisions of the general data protection regulations. When the data controller delegates the work to the third party that means to the data processor and gives them access to the personal data of the different consumers, and if the data processor uses that information for any illegal purpose then the liability falls upon the data controller.

Lawfulness and transparency

Whatever data is being processed by the data controller, that data should be processed within the ambits of the law and with fair intention.

Data minimization

The data controller should use the personal data as much as it is required of the consumer and should not use the extra information to indulge in illegal activities.

Integrity and confidentiality

The data controller must confidentially use the data. The data should be processed in such a way that it ensures all the security of personal information is not compromised.

Purpose

The purpose of using the personal data of the consumer should be legal and limited. The data collector should use the data according to the subject matter.

Storage

The data collector should store the data for the required period only and not beyond that unnecessarily.

Jurisdiction

The jurisdiction of the General Data Protection Regulations extends to the citizens who are not members of the European Union. The regulations apply to the organizations or individuals established in European Union whether their data processing takes place inside or outside the territory.

For instance: if the United State based business is selling goods and services and also supplying them to the consumers in the European Union, and collecting their data from them for smooth functioning then the provisions of GDPR are applicable.

Consent

The data collector before using the personal data of the consumers should always take consent of the data subject that is of the consumers or the people who are viewing the website. For instance, whenever we use a site to watch free movies, the notification pops up asking to accept all the cookies and there are terms or conditions stated by the website that depends upon a person to accept it or reject it.

European Union Data Protection Bill 2018

The European Union and the council passed the European Union Data Protection Bill on 23rd October 2018. This Bill was introduced to ensure the protection of natural persons concerning the processing of personal data by the Union institutions, bodies, offices, and agencies and on the free movement of such data.

The Data Protection Bill included the following provisions:

The European Parliament considered the processing of personal data as a fundamental right and therefore a natural person is entitled to get some protection. Under Article 8(1) of the Charter of the Fundamental Rights of the European Union and Article 16 (1) of the Treaty on the Functioning of the European Union (TFEU), ensure that every person is entitled to get the right of protection against the personal data concerning them. The right of protection of personal data of a natural person is also considered a fundamental right under Article 8 of the European Convention of the Treaty on the Functioning of the European Union (TFEU).
The European Data Protection Officer is appointed. The European Parliament specifies that the right to data protection is legally enforceable. To ensure the protection of the natural person, and create the processing of data within the institutions and bodies, an independent body to monitor this issue is appointed. The Data Protection Officer is obligated to monitor and regulate the processing of personal data by the Union institutions and the bodies. This provision does not apply to the bodies and Union institutions processing the personal data that falls outside the ambit of Union law.
When the Union Institutions and the bodies process the data of the people, the reason being they are employed there, their data should be protected. This provision does not apply to the person who is dead. This provision is also not applicable to the legal person and especially when the undertakings are established as legal persons.
Any information concerning an identified or identifiable natural person shall be liable under the principles of data protection. Information that reveals the true identity of a natural person should be used carefully and reasonably by the data controller.
Application of pseudonymization to personal data can reduce the risk concerning the subjects of the data. Pseudonymization of data means replacing or removing the valuable information of a data subject that can act as an identifiable source. Also, it would help the data controllers and processors to complete their data protection obligation.
Consent of the data subject is an essential requirement and should be given in a written statement. This means whenever we visit a new website, they ask for consent while stating all the terms and conditions, and if we agree, we have to tick right.

General Provisions

Subject matter and objective: Chapter 1

Chapter 1 of the Data Protection Bill deals with the subject matter and the objective of the Bill.

For the protection of natural person data processing, these regulations lay down certain provisions that should be followed by the Union institutions and bodies while using the data.
This regulation protects fundamental rights and freedom of natural persons and specifically their right to the protection of personal data.
To monitor the application of this regulation, the European Data Protection Officer will be appointed to oversee all the data processing by the Union institutions and bodies.

Important keywords in the Bill: Article 3

Article 3 of the Data Protection Bill deals with definition following terms:

Operational personal data

Personal data that has been processed by the Union bodies and institutions to carry out to fulfill the objectives.

Processing

Processing means taking action on personal data or sets of personal data. Such as collecting, recording, storage or organizing.

Union institutions and bodies

This includes the Union institutions, bodies, offices, and agencies set up by or based on, the Treaties of the European Union(TEU), or the Euratom Treaty.

Genetic data

Personal data that is related to acquired genetic or inherited features of a natural person helps to provide some special knowledge about that natural person.

Data concerning health

Personal data consists of the contents regarding physical and mental health.

The European Union Data protection law will help to reduce the frauds that happen due to information leaks. India also needs legal provisions like this so that cybercrime can be controlled here. In India, cyber crimes are still governed by the Information Technology Act 2000 and have few provisions regarding protecting personal data. Section 43A of the Act deals with the payment of compensation for failure to protect sensitive personal information. The Supreme Court in the year 2017, in the case of Puttuswamy V. Union of India, recognized the right to privacy as the fundamental right and included it under Article 21 of the Indian Constitution. This right to privacy includes the protection of the personal data of an individual. The court said provisions to protect personal data are insufficient, and there is a need to create laws like General Data Protection Regulations. The law that should be introduced to protect the personal information of the people should be fair and transparent.

Conclusion

In a world where whole lives are dependent upon the digital world and internet, the crimes regarding the cyber have increased massively. Cyber frauds, hacking, and using personal information for illegal purposes have affected the lives of millions of people just because they were surfing a website or were shopping. These fun activities turned out to be the most disastrous activities for the people who suffer from cybercrimes. The data protection law will ensure to protect every person of the European Union. To protect the person from frauds and scams that happen due to misuse of personal information, it can only be prevented when a country implements strict punishments on these activities. It is the duty of the companies and the websites to secure the data shared by the consumers or viewers.

References

https://gdpr.eu/what-is-gdpr/

https://ec.europa.eu/info/law/law-topic/data-protection/data-protection-eu_en

https://blog.ipleaders.in/a-comparative-analysis-of-international-data-protection-rules-regulations/

https://carnegieindia.org/2019/05/15/will-gdpr-style-data-protection-law-work-for-india-pub-79113

https://digitalguardian.com/blog/what-gdpr-general-data-protection-regulation-understanding-and-complying-gdpr-data-protection

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