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The legal gameplan : a guide for law aspirants

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This article is written by Adithya Prasad, pursuing Diploma in International Business Law from LawSikho. 

Introduction

More often than not, law welcomes students and young aspirants from generational influence in the industry. Times, however, do not remain so constant, with the emergence of new generations, law as an industry is being and will be subject to newer generations. Being one can be intimidating due to the lack of a clear path. 

So, what do first-timers say about the legal field? They find it intimidating and time-consuming, allowing one to rethink their entire life choices. This is by no means to scare a prospective student of law, it is but a reality check. The law demands patience, perseverance, and ambition. Make no mistake, it is not for the faint heart. Such reality checks are important due to the sheer ignorance that is professed by our education system. It spends more time on what is to happen with the syllabus than what is to happen with the child’s future and prospective career. This can especially be seen by many who, when first touching law realise that the law isn’t just the Indian Constitution. 

This article will seek to highlight the following points for the newly initiated and/or prospective candidates who want a dip into the pools of justice:

  1. Where does learning actually happen in law?
  2. What should be your goal and how to identify it?
  3. Is experience really king? Why should there be active participation always

Get started for your law school

The biggest question that law aspirants ask often; what do they need? Which skills are necessary to sustain and climb the ranks of this competitive industry? The three most important things that any law aspirants can focus on are there:

1. Skills

Skills such as patience, confidence, public speaking, drafting, research etc. 

2. Experiences 

Such as internships, court visits, sessions with industry experts.

3. Opportunities

A combination of the above, with such access to people who happen to be in the industry. Such interactions can create a perfect opportunity for one ‘career. 

The basics of what makes a great lawyer. Now, given that many of those who read this will be young lawyers both budding and fresh into the industry, it is pertinent to understand the power of such aspects. Enhancing one’s skills through activities, projects or even working can go a long way to make a person that much stronger than their art.

5 pointers that will help you be at the top of your game 

With that being said, here is a list of things that law aspirants can do through their academic careers:

1. Understand your subjects

Education in India is a controversial understanding. It is often said that the system is designed to impart mass education over quality education, focusing more on the generality and teach styles and methods rather than an in-depth understanding. Well, this is true in many but not all accounts, education in India is difficult theoretically if not in the right university or college. Practical knowledge is often a lost cause when it comes to a schooling experience.

This is the first complaint; any student will have when going to law school in India would be the lack of emphasis on industry needed skills. Often, practical experience is restricted to a monthly experience at the end of terms, unless students decide to work through the term as apprentices. This was the original practice, a study in the morning, an apprentice in the evening and work at night. However, with the rise in competitive industry placements, students often need to put in all their hard work to keep above the average for better placements. Despite being told, students often forget to understand that the industry looks for skills that they can work with rather than what one possesses. Academic excellence is required for the best placement, however, that does not remain the only criteria, if anything it acts as a bonus rather than a determining factor. 

So, understand your subjects through experiences. If one were to learn contract law in the first half of law school, learning how to draft contracts and other specific agreements can go a great way to help you understand the subject while also adding the required experience that testifies to your skill.

2. Never narrow your vision

When going through law school, it is often easy to lose sight of the broader picture of the law. Students often come into law school for specific reasons, money being among the larger reasons sighted. While it is true that patience and perseverance pay in the legal world, such reasons often see students succumbing to the pressure that law school and the industry bestows on them. It is a sad reality that is often lost when people speak through school and college addresses. 

Another notable way that students narrow their vision is through the choice of field. Students often enter law school with dreams, hope and a determined mind towards a certain field or job. It is important to have a vision, but to be constrained to that vision can be detrimental. 

Having a broader vision keeps students ready for new interests and fields, during their initial years. Students must intern at places with multiple disciplines, authoring articles for a legal publication to working under an associate or partner, running around courts and observing cases. This method, albeit very crude at first glance, helps you understand the nature of things. After completing such small opportunities, events, projects, etc. You will find yourself forming strong opinions on certain topics, seeking certain areas. That process of elimination that is fuelled through physical exposure to the work environment creates a more firm decision for one’s career backed by experience and not reading from google. 

3. Swim through experiences

Following the first two points, experiences are the greatest teachers. Law schools will often stress moots, client counselling and other such experiences. Albeit that such events do have the capacity to mimic an ideal circumstance to that of the real world, however, they are just mimicking. Well, there are times when it is difficult to enrol on a competition, stand in front of people and talk. Rest assured, that is not the only way to get the necessary skills. Internships and mentorship have always been the best way to learn the ropes. 

Unlike legal competitions, this is the close one can get to the real world. Internships help in gaining the perspective required for practical application. When mentoring under someone, it gives you the real workaround on live cases and how each one is taken in the court of law. We are in a world where the law is supposed to look like the television show ‘Suits’, and the disappointment we face when it isn’t. But that is just the point, law, as we study it, is not how it is in real life. 

During such internships, students can understand how the court works, from the layout to callings. In many internships, judges often encourage younglings to sit in court and see these proceedings. When a case that your senior is handling is called up, you get a sense of how things happen. In their basic nature, internships and mentorships are the reality check that young aspirants need when studying the law and for the bar.

4. Importance of networking

A more general tip for everyone, never ignore a chance to network. The world of being great at what you do is over, the rise in competent and skilled population took care of that slight issue. Networking is now king for all, especially first-generation career holders due to their first introduction without outside help in most cases. Now the question arises, where do you network? How do you network?

It is quite simple, any person you meet, take your time to get to know them. An interesting idea to pursue is called the ‘elevator pitch. The situation goes like this;

You are stuck in the elevator with the person who is most renowned in the world and/or in their field. You believe that this person can enrich your career with opportunities that they can provide. Then in that 30-second elevator journey, pitch them yourself, an idea or anything that you believe will remind them to contact you when they need a person for the job”.

The elevator pitch may sound simple but do not be mistaken. To impress someone whose entire life at that point would be to see dozens or hundreds of applicants, all wanting an opportunity from them. Create a simple way to impress them and the chance just might be yours. Now do not mistake this for some scenario that you will never come across, in fact, many people will often arrive at such opportunities without head or tail of knowing what to do about it. 

Get in front of a mirror and practice an elevator pitch, whittle it down to 30 seconds and you got something unique to you. 

5. Participate! Participate! Participate!

All things said and done; participation is the one thing that a majority of students hold themselves against. It is “cringe” to say that the most important thing is to participate yet, however, nothing can be further from the truth. Experience is the harshest yet the best teacher there is. This should not be restricted to just events and fests, any opportunity provided that there is time and effort to spare, for the best work through one’s capacity must be explored. Here is a list of things that you can do:

  • Moots, any moot with a good team and topic can go a long way to prepping you. Feeling confident, then try Jessup, Lach’s or other reputed moots and test your skills. 
  • Debates, debates are it solo or with a team, through Asian parliamentary or British Parliamentary are all good events to sharpen your oration and research skills. In India, most national law schools have highly competitive events, for the daring of course. 
  • Internships, any internship can give new perspectives that they could not have explored before. A great suggestion would be to start with legal publication and media, where you can have the opportunity to write about various law topics and fields giving a chance to research a majority, if not all. Post which, finalizing your area should become much simpler than it is, from then onwards, target tier one firm in that field to earn your keep and network like a diplomat.

For further details on any opportunities, websites like Lawoctupus, Memo Pundits and Lawsikho often have articles, blogs and even classified for upcoming opportunities. With the age of the internet, searching for opportunities is quite simple and easy to approach. 

Prospective internship/work experiences plan for law school

1st year 

Focus on at least one or two months of litigation to see the courts inside and out, work with NGOs and their legal teams to see how they handle the legality of their organization. The idea is for you to see what the law looks like in operation yet not jump in too deep. Write and publish blogs with reputed websites, journals, and other such platforms as they help you sharpen your researching skills whilst also introducing drafting into the mix. Work on your research skills and prepare yourself for mooting and other mock legal events. This can be done with the help of your seniors or even on your own. 

2nd year

Focus on participating in your mock law events. By now, you should have a solid team that you can continue to work with in the future. If you find yourself drawn to litigation, then continue through with similar firms and places of work. However, many students by now should try going into the corporate side, editing and publication of articles and research papers and also even contracts and agreement drafting. This is important as it is at this time when you will often see the introduction of Indian law into your syllabus. 

3rd year

By now, you should have a decent idea of where you want to go and where you see yourself in the future. Note that this doesn’t mean a clear-cut idea, but more on general classification. Do you want to do criminal or civil, corporate, or otherwise, international or domestic laws? However, if you still feel lost, then you could try internships in multiple fields on a one-month basis to further help you make a call. For those who know where to go, this is where the real game begins. 

Using sites such as Legal 500 and Chambers & Partners, try to identity the law firms that you see yourself wanting to work for. Go through their corporate profiles, see their website and determine which institutions you believe are the best for your skills as a person. Whilst doing this, as most tier 1 and 2 law firms only take penultimate and final year students, your goal would be to prepare yourself for that institution/field. If you are going into a firm that specializes in contract negotiations, then you best be sure how to draft a good contract without any hiccups. 

4th and 5th year

The final years of law, ones with the most amount of opportunities, these two years will decide your canon into the field, lest you do your masters. Spend most of your time publishing articles with reputable journals, scoring big internship opportunities with reputed people in the field of your choice. These two years must be dictated by your experience in the field and not in your class.

Conclusion

Coming from a personal perspective, being a first-generation lawyer can be tough but possible. It all boils down to how much you can work and for how long you can keep at it. Think of it this way, all you need to do is prove that you are the better option and lucky for you, every experience counts as one tally against your competition. Outperform and you’ll do just fine. 

A student’s toolkit is their set of skills and experiences that they can and must have to climb the industry ladder. It is understood that these skills often take time to work on and improve, considering – “Perfection is an art form of patience and persistence.”

References


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

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

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

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All you need to know about the destination management company (DMC) agreement

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This article is written by Ananya Mondal, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Introduction

No doubt, the travel market operates extensively. The travel agencies including both online and offline services provide a large number of services to a large number of tourists, so they have less control over the resources at the immediate destination. destination management companies or DMCs build the connection between travellers and service providers. The essence of the DMC is their local knowledge. DMCs offer plenty of opportunities for travel agencies.

Destination management companies work as the intermediaries between a connection of local suppliers and travel agencies who again sell such services to travellers. They work within the distribution chain of tourism products and services. Destination management companies negotiate at favourable rates and execute agreements with several, distinct suppliers on the spot: restaurants, local hotels, guides, car rental companies, etc. Therefore, they blend the services, bunch them into fascinating packages and resell.

Nowadays destination management companies operate as a single point of contact for the B2B and B2C clients. As a B2B client, a travel agency links to the DMC database and provides those services to the clients. A DMC ensures the suppliers accomplish their responsibilities and also is always there to provide further services if everything doesn’t go as per the plan.

What is a destination management company?

A destination management company (DMC) is a company based on local, for-profit tourism business, and whose function is for providing groups as well as individuals with services to fulfil the requirements and interests of their meeting, travel, and entertainment at a certain time and place. It is important to note that a DMC may either be a home-based business with one person or it may be a worldwide company including 500 employees located in major cities.

What is a destination management agreement?

A destination management company (DMC) agreement is a legal contract between an event or tour planner or travel agency and the local supplier or service provider, where the local supplier provides to the event or tour planner the professional services for planning and implementing out-of-town event programs and services.

Destination management company agreement can also be helpful for a professional meeting or a corporate event.

Benefits of destination management company agreement

1. Arrival and departure assistance

It is the main transfer service with meet-and-greets. According to many DMC services, the local representatives wait for the visitors with a welcome indication at the meeting spot, assist with the luggage, take them to the predetermined shelters, and again take them to the airport on the day of departure through the prearranged vehicles.

Many operators advance their service level by including an excursion or a story for enjoying the ride. For example, SunTours Caribbean, additionally the transportation, allots some tour representatives to visit in-resort clients for guiding them with the area they’re locating in. A few operators like Mautourco provide cold towels, flower garlands, and corporate gifts to their new visitors.

2. Tours and excursions

Destination Management Company offers safaris, cruises, traditional excursions, rubberneck tours, and many more extraordinary experiences which will not be provided by the travel agencies on their own. For example, Orient Tours, a DMC of Oman and the UAE, provides a number of packages in the Arabian Desert such as enjoying the sunrise behind the sand dunes, a ride in the desert on a quad bike, and a nightlong camel riding on dune drive, sandboarding, and many more Arabic entertainments.

3. Event or activity planning

Having connections with domestic suppliers, hotels, and venues, destination management companies have a tremendous advantage over other travel players in the condition of coordinating tailor-made activities for groups, events based on a theme, and programs. Many destination management companies make plans for educational programs, weddings, sports events, concerts, roadshows, etc. For instance, SNTTA Emir Tours organizes golfing experiences based on the smallest details from hotels and tee times to transfers and excursions.

4. Accommodation

The operators of destination management companies can also provide accommodation services in remote areas. As an example, the name of the Turks and Caicos Islands in the middle of the Atlantic Ocean can be taken. Olympia Destination Management offers a lounge with VIP facilities at the local airport and arranges luxury hotels and villas for vacations.

5. Meeting, Incentive, Conference, Event (MICE) tourism

Destination management companies help to make plans for team-building travels and organize in-resort meeting events. DMCs are a helping hand for travel or event planners at companies. According to Kim Parizek, a travel expert, destination management companies help her to serve her clients at a larger level.

6. Corporate social responsibility programs (CSR)

As the tourism business is getting famous day by day even from the social and environmental perspective, DMCs are receiving an increasing number of requests for CSR, as they are a key source of their experiences.

Beyond Experiences, a DMC in Australia sets up CSR into the boardroom of the destination and corporate group packages as there will be the chance for travellers to contribute to the local community by helping koalas who survived the bushfires.

7. Car rentals

For having relationships with local car rental fleets, Destination Management Companies get cars at reasonable rates and deliver the cars for rent. In some DMCs, the car rental widgets are added to the websites of the company.

8. Travel-associated services

Some destination management companies provide the whole process of travel, like arranging visas, insurance, and many more related documents.

Factors to be considered when developing a destination management company agreement

1. Relevant expertise

The destination management company agreement should deal with the demand from the perspective of the customer. This is how one can check if his/her travel plans will work for the clients.

2. Providers

Before entering into a DMC agreement, the travel or tour planner is supposed to check in the best possible way about the details of the number and types of local service providers the DMCs are associated with, including the owners of the property, activity offerers, ground transportation companies, and even the government entities under which the DMCs are registered.

3. Technology

There is no doubt that many destination management companies are lagging behind in digital advancement, particularly the smaller ones. However, one is suggested to keep searching for a better replacement for the smaller one.

4. Quotes and commissions

Once one narrows the choice to a few capable destination management companies, he/she surely wants to get the best rates, and he/she is suggested to compare the quotes with any other similar service. Probably one chooses to leverage the transfer services at one destination management company and buy tours from another one. Additionally, the event or tour planner may ask for a full breakdown of commissions, as there could be some undisclosed fees. For example, several DMCs implement an event management fee that alters depending upon the custom charges.

5. Reliability

Care and caution should always be taken into consideration. Accordingly, one should not jump to conclusions but first gather information about working with similar entities and examine their business license. 

Important clauses for drafting a destination management company agreement

However, a verbal agreement is not sufficient for the travel or event planning business. One is always supposed to have a written destination management contract in order to form the terms and conditions of the service. The contract will be the source of solution in case a dispute arises.

1. Payment schedule

In maximum event or tour planning programs, an initial deposit should be made, and further, the remaining part should also be paid after the event.

In a DMC agreement, a due date is supposed to be mentioned for the deposit which is made initially. DMCs should not begin work until the initial payment is made by the client.

The rest can be paid by the client while the event ends. One must ensure to examine the line items, for example, venue rental, equipment, catering and mention taxes and other added fees.

2. Terms for cancellation

It may happen that a client will back out halfway through the event or tour planning process. 

In that case, only the contract can protect the company from monetary loss. Although, it should be noted that all the payments that the DMC received before the cancellation are not refundable.

It is also noted that clients have the responsibility for event costs made since the last payment. Accordingly, if in case the last payment of the client was the initial deposit, then the DMC will be compensated for all the work it has done till then.

3. Cancellation-by-you clause

Opting out halfway is not rare for clients of the DMCs. Even the event or travel planner may want to pull out for enough reasons such as, after getting a last-minute request from a high profile client, backing out of a vendor hired by the event planner, facing an unexpected health emergency. In that case, this type of clause, which is used in the hospitality industry, is considered a cancellation-by-hotel clause.

Therefore, in the destination management agreement, it is advisable to include the scenarios which allow the event planner to back out. In addition to it, one is also expected to mention the provisions for the client he/she is backing out on. 

4. Termination clause

A termination clause should not be puzzled by the terms of cancellation. Termination refers to cancellation for uncertain events which are beyond the control of either party.

It may include incidents related to weather, a government shutdown, a pandemic, or any other disaster. A termination clause defines the situation where none of the parties can be held liable. 

5. Indemnification clause

An indemnification clause safeguards one from the liability he/she is sued by a third party for negligence on the client’s end. For instance, if an attendee is injured, the clause makes sure that the attendee cannot hold the DMC legally responsible. Another instance is damage to the venue. In that case, the venue operators are supposed to hold the client liable, not the DMC.

After all, termination deals with cancellation for unexpected events beyond the control of each party.

Conclusion

Destination management companies provide services directly to the customers, but a large number of them also give out their travel products through travel agencies and tour operators. Firstly, it is noted that some estimation management companies set up groups for better efficacy and readiness in working with them. Independent DMCs collaborate on the basis of destination, the market they operate in, and the type of services they offer. They also share business ethics and principles.

A destination management company agreement is the safety net. Parties should never agree to work on the basis of only a verbal agreement, even when one works with a loyal client with whom he/she has developed a relationship. The agreement not only safeguards each party financially but also restricts needless disputes that can spoil the business relationships.

References


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

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

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

Download Now

Decoding Section 66A of the IT Act : why was there a need for its deletion

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This article is written by Buddhisagar Kulkarni, pursuing Diploma in Business Laws for In-House Counsels from LawSikho.

Introduction

The Information Technology Act (IT Act) was introduced in 2000 when the internet was still in its infancy in India. Social media websites were not popular at the time. Smartphone mobile apps were not in vogue at the time.

No one could have anticipated the IT explosion that occurred thereafter, affecting towns, villages, and cities all over India. It’s no surprise that the problem of cybercrime was not thoroughly considered in the IT Act. Cybercrime was just mentioned briefly in the IT Act. Following a widespread outcry over the IT Act’s flaw, substantial changes were enacted in 2008. Through the 2008 amendment, Section 66A was inserted in the IT Act. In this article, we will decode Section 66A of the IT Act (“Section 66A”) and look at why the Supreme Court had struck down Section 66A as unconstitutional.

Section 66A decoded

The use of a computer or other communication equipment for example; a mobile phone to deliver insulting communications was made illegal under Section 66A. The cops had to figure out whether or not the information given in the communication was insulting.

To book any person under Section 66A, the content in the message which includes any attachments in writing, picture, sound, video, and any other electronic record that may be transmitted with the messages required to be:

  1. Extremely insulting, 
  2. Incorrect and intended to cause displeasure, trouble, danger, obstruction, insult, injury, criminal intimidation, hostility, dislike, or ill feeling, 
  3. Designed to mislead the receiver as to the source of such messages.

The offence was punishable by imprisonment for a term of up to three years and a fine.

Misuse and abuse of social media platforms became a challenge to the government as they achieved popularity in India. As a result, in 2009, Section 66A came into force.

However, the rise of social media has resulted in a large number of allegedly “grossly offensive” posts or messages. Several complaints were filed, and many people were arrested and booked.

Section 66A empowered the government to make arrests for supposedly “offensive and menacing” online postings. This legislation was adopted without debate in the Parliament.

Section 66A authorized the police to make arrests for the conduct that those officers, in their discretion, deemed “offensive” or “menacing,” or to cause irritation, discomfort, or other harm.

Identifying the culprits and victims

One key aspect where Section 66A failed to address some critical norms was how it defined the number of culprits and victims. Was the law intended to be applied between two people, or could it be used for many-to-many, many-to-one, and one-to-many interactions?

Why was Section 66A condemned?

One of the main issues was that there was no clear definition provided in the IT Act of what was “offensive.” Because the word had such a broad meaning, it could be interpreted in a variety of ways. It was regarded as open to interpretation, and what appeared to be harmless to one person could result in a complaint from another and, as a result, an arrest under Section 66A, if the police initially accepted the latter person’s point of view.

Section 66A also hampered the freedom of speech and expression, which is enshrined in the Constitution as a fundamental right. The section was primarily used to arrest people who made unpleasant remarks or condemnations about politicians.

Section 66A finally came up for Supreme Court’s examination

The first petition was filed in court in November 2012, following Thane Police’s arrest of two girls in Maharashtra based on a Facebook post. The girls had commented on Mumbai’s closure for Shiv Sena’s chief Balasaheb Thackeray’s funeral. The arrests sparked anger from all quarters due to the way the cyber law was applied. Shreya Singhal, a 21-year-old law student at the time, filed the Public Interest Litigation (PIL) for protecting the freedom of speech and expression. Other interested parties who had borne the brunt of the misuse of this section later joined her in her petition.

Arguments against Section 66A

While the goal of the 2008 amendment was to stop the abuse of information technology, especially social media, the petitioners contended that Section 66A had extremely broad parameters that allowed for arbitrary viewpoints by law enforcement agencies.

The petitioners contended that the law was a possible tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed by the Constitution, going outside the bounds of “reasonable restrictions” on that freedom.

Shreya Singhal v. Union of India

A bench of Justices J. Chelameswar and R.F. Nariman, On March 24, 2015, held in Shreya Singhal v. Union of India that Section 66A was unconstitutional for “violating Article 19(1)(a) of the Constitution of India and not being saved by Article 19(2)of the Constitution of India.” Article 19(1)(a)of the Constitution of India guarantees the right to free expression, while 19(2)of the Constitution of India empowers the state to enforce “reasonable restrictions” on the exercise of this right. The judgment was hailed as a watershed moment in the legal fight against state infringement on free speech and expression.

Supreme Court’s take on Section 66A

The Supreme Court has also explored the scope of Section 66A under several broad headings, which are briefly explained below.

1. Freedom of speech and expression

  • Section 66A has been criticized on the ground that it spells a very wide net, encompassing “all information” distributed via the internet. As a result, the definition of “information” provided in the IT Act is broad, and secondly, the definition does not pertain to the content of information, but rather to the channel through which such information is transmitted.
  • Furthermore, because of its broad scope, the information, whether annoying, inconvenient, or downright offensive, does not differentiate between discussion, advocacy, or provocation. 
  • The simple discussion or even advocacy of a particular cause, no matter how unpopular it may be, is the central part of Article 19(1) (a) of the Constitution of India. Article 19(2) of the Constitution of India applies only when such debate or advocacy reaches the level of provocation.
  • The Supreme Court denied the State’s claim that the Section 66A can be backed under the headings of public order, defamation, incitement to an offence, and decency or morality, and affirmed our Constitutional System, which states that it is not available to the State to restrict Freedom of Speech to encourage general public interest.

2. Public order

  • A cursory reading of Section 66A reveals that it aims to penalize anyone who uses the internet to distribute any information that falls under the sub-clauses of Section 66A.
  • The receiver of the message is unimportant, and similarly, the information provided may be to one individual or several individuals, blurring the line between mass distribution and distribution to one person.
  • As a result, such a message may not have the possibility to disrupt the community as a whole.
  • The link between the message and any reasonable man’s action based on the message is notably missing. 
  • The Supreme Court went on to rule that there is no direct link between Section 66A and public order.

3. Vagueness

  • It is a fundamental concept of legal jurisprudence that an enactment is null and void if its restrictions are not made clear. 
  • Several important values are violated by ambiguous laws.
  • It is stressed that laws should provide a reasonable opportunity for a person of ordinary intelligence to know what is banned so that the innocent do not become stuck as a result of a lack of fair warning.
  • It was also determined that penal law is not valid for vagueness if it fails to define the criminal act with adequate clarity.
  • A layman should be able to distinguish between what is forbidden and what is permissible behaviour. Also, those who oversee the law must be aware of the nature of the crime so that unjust application of the law does not occur.
  • Thus, based on the standards established in the preceding decisions, it is clear that the phrases used in Section 66A are completely open-ended and unclear.

4. Too wide for application

  • It is a well-established concept that the law should not be used in a way that restricts “freedom of speech and expression.”
  • Section 66A spells such a wide net that nearly any viewpoint on any subject would be covered by it, as would any major opinion disagreeing with the mores of the day.
  • Such is Section 66A’s reach, and if it passes the constitutionality test, it will almost freeze free speech.

Section 66A conflicted with the Indian Penal Code, 1860

Some of the provisions of IPC which are overlapping with Section 66A are defamation, incitement to an offence, public nuisance, obscene acts and songs, misconduct in public by a drunken person. 

Furthermore, both laws imposed different punishments for ostensibly similar offences. This could have complicated the application and interpretation of the law across the country.

Several instances of arrests under Section 66A being prevalent even though it has been struck down

In October 2017, police in Muzaffarnagar, Uttar Pradesh, jailed Zakir Ali Tyagi (18-year-old boy) under Section 66A for making some comments on Facebook.

Mohd Sakir was arrested in 2013 under Section 66A. Section 66A was overturned by the Supreme Court two years later for being “draconian,” but Sakir’s case was heard in Delhi’s Tis Hazari court. He later deposited Rs. 2,000/- against the cancellation of a non-bailable warrant, even though the law under which he was booked had been deemed unconstitutional.

An even more intriguing case was unfolding in Karnataka. Dilip Shetty was charged under Section 66A and later acquitted. Six years after the trial began, the final order was issued in February 2021. As a result, the accused, despite being released on bail and eventually acquitted, were subjected to a court hearing for more than six years, at a significant personal cost to his freedom and a cost to the state in terms of judicial time and money.

Section 66A was triggered in the case of Shekhar Rahul Nikam in Nashik, Maharashtra, for “offensive messages” sent in 2010. The charges were established in 2020. The case has progressed to the level of evidence.

Even though Section 66A was repealed in March 2015, 332 cases were filed in that year. In 2016, there were 216 reported cases. This increased to 290 in 2017, 318 in 2018, 253 in 2019, and 34 in February 2020.

The question now turns to the fundamentals of enforcement agencies: what is the point of that landmark judgment if the police continue to put people in prison under unconstitutional laws?

Why is the problem still present even after the Supreme Court’s rulings?

In July 2021, the Supreme Court gave notice to the centre regarding the operation of Section 66A of the IT Act, which was struck down several years ago, and mentioned that it is disturbing that the ruling that struck down the law is still not being imposed.

The centre then appealed to state governments, urging that they take action on this and that any cases brought under Section 66A must be dropped.

The notification came during the proceeding of a petition filed by PUCL, which stated though that after 7 years of the law being repealed, as of March 2021, a total of 745 cases are still pending and active before district courts in 11 states, with the suspects being put on trial for offences under Section 66A of the IT Act.

The petition is based on information compiled by the Internet Freedom Foundation, which has been monitoring cases involving the “Zombie provisions,” which have been deemed unconstitutional but are still being used by police to arrest people.

It demonstrates that 1,307 cases were filed under the law even after the Shreya Singhal Judgment, which repealed Section 66A in March 2015.

Conclusion

Section 66A was very horrifying because for example, if someone just expressed his/her opinion on Facebook or tweet something on Twitter and if police view it as offensive under Section 66A, then police have the powers to put the person behind bars. In such a case, citizens of India would be scared to speak up and put forth their views and opinions.

Section 66A is frequently misunderstood and misapplied. In any democratic nation, freedom of speech and expression has an important role in the legal system.

The Supreme Court has rightly struck down Section 66A as unconstitutional. The Supreme Court’s decision in Shreya Singhal v. Union of India was a landmark judgment against the State’s invasion of freedom of speech and expression.

It is shocking to see that even after the Supreme Court struck down Section 66A, draconian law is still being used by law enforcement agencies. The disparity between the court’s decision and the growing number of Section 66A cases may be clarified by a political environment in which sensible discussion, disagreement, and free speech are viewed as acts of bad faith, and current rules are used as weapons to detain reporters and residents for a tweet, a slogan, or a Facebook post. The note from the centre to the states is appreciated, but the continuous review is the only way to make sure that the law is followed in letter and spirit.

References


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

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

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How does the new IT rule affect Google : Google’s first transparency report

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This article is written by Buddhisagar Kulkarni, pursuing Diploma in Business Laws for In-House Counsels from LawSikho.

Introduction

We rely heavily on Google and various other social media sites for news, entertainment, and other purposes in this digital age. Our reliance on social media is unsafe because there is a high risk of abuse. As a result, there was an apparent need for strict rules governing any form of information and communication via intermediaries. In response, the Ministry of Electronics and Information Technology published for public comment the draft Information Technology (Intermediary Guideline) Rules, 2018.

Accordingly, the Ministry of Electronics and Information Technology, Government of India published The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”) on 25th February, 2021.

The IT Rules, 2021 have been notified under Sections 69A(2), 79(2)(c) and 87 of the Information Technology Act, 2000 (“IT Act”).

The Information Technology (Intermediary Guidelines) Rules, 2011, have been superseded by the IT Rules, 2021.

The IT Rules, 2021, aim to accomplish two goals: 

  1. Rising the responsibility of social media platforms (such as Facebook, Instagram, Twitter, Google and others) to prevent their abuse and exploitation; and 
  2. Empowering social media users by setting up a three-tier redressal mechanism for efficient grievance settlement.

In this article, we will look at the background for the introduction of IT Rules, 2021, its consequences on Google, the purpose of the monthly transparency report and the publishing of Google’s first transparency report. 

Background

The Supreme Court in suo-moto writ petition (Prajwala case) by its order dated 11th December, 2018 observed that the Indian government should develop guidelines to eliminate child pornography, rape, and gang rape images, videos, and websites on content hosting platforms.

In 2020, a Rajya Sabha Ad-hoc Committee presented its report on the issue of social media pornography and its influence on children and society as a whole and suggested that the original creator of such content be identified.

The current IT Rules, 2021 have been drawn up with all previous decisions in mind, as well as the suggestions of the relevant authorities. Furthermore, it was enforced to keep children away from content that could harm their mental development.

Purpose of IT Rules, 2021

The purpose of the IT Rules, 2021 are as stated below;

  • The IT Rules, 2021 intend to have a strong complaint mechanism for users of social media and over-the-top (OTT) platforms to resolve their complaints.
  • The focus of the IT Rules, 2021 is on the protection of women and children from sex crimes on social media.
  • Online content publishers and social media intermediaries should abide by the country’s Constitution and local laws.
  • Before the IT Rules, 2021 came into force, we did not know to whom we should complain if we came across any issue on social media regarding harassment, morphing or fraud. So, what the Government is trying to do through the IT Rules, 2021 is that they are providing us with the framework to lodge our grievances.  

Intermediaries under Section 2(1)(ua)(w) of IT Act

Internet intermediaries are entities that facilitate access to the internet or the provision of internet-based services. Intermediaries include internet or telecom service providers, online marketplace, search engines, online payment sites, online auction sites and social media platforms.

Classification of social media

Under the IT Rules, 2021, social media intermediaries are divided into two parts:

  1. Social Media Intermediaries (SMI): This category would include social media platforms with less than 50 lakhs subscribers; and
  2. Significant Social Media Intermediaries (SSMI): Those social media platforms with more than 50 lakhs subscribers would be classified as significant social media intermediaries, with stricter rules and stricter compliance requirements.

The term SMI refers to an intermediary that primarily or solely facilitates online communication between two or more users by allowing them to create, upload, share, disseminate, modify or access information through its services.

Under the IT Rules, 2021, Google is treated as SSMI since – (a) it allows users to access information available on the internet, (b) its video-sharing platform YouTube allows users to upload, share and access videos and (c) it has more than 50 lakh subscribers. We will now have a look at how the IT Rules, 2021 affect Google.

Compliances under IT Rules, 2021 for Google

  1. Sections 3 and 4 of the IT Rules, 2021 enumerates due diligence provisions to be undertaken by the Social Media Intermediaries and Significant Social Media Intermediaries.
  2. Many people use Google in India. Google being an SSMI has to follow due diligence for SMI as well as SSMI as enumerated below.

Google must adopt grievance redressal methods

  • Google must designate a Grievance Officer to handle complaints and provide the name and contact information for such personnel.
  • The Grievance Officer must admit the complaint within twenty-four hours and solve it within fifteen days of its receiving.

Google must make sure its users’ online safety

  • Google shall take away or deactivate access to content that exposes individuals’ private areas, shows such individuals in full or in a partially nude state or in a sexual act, or is in the nature of imitation, including morphed images, within twenty-four hours of receiving complaints.
  • A complaint of this nature can be lodged by the person or by another person on his or her behalf.

Google must delete unlawful information

Google, upon receiving actual information in the form of a court ruling or being informed by the appropriate government or its agencies via the appropriate officer, must not sponsor or upload any information that is restricted under any law concerning India’s sovereignty and integrity, civil order, closer ties with foreign countries, and so on.

Google needs to conduct the following additional due diligence

As stated in Section 4 of IT Rules, 2021, Google, being an SSMI, must observe additional due diligence as follows:

  • Google shall designate a Chief Compliance Officer. He will have to ensure that the IT Act and IT Rules, 2021, are followed. A person of this type must be a senior employee of Google and should be a citizen of India.
  • Google shall designate a Nodal Contact Person to collaborate with law enforcement officials twenty-four hours a day and seven days a week. This person must be an employee of Google and a resident of India.
  • As mentioned earlier, Google shall designate a Resident Grievance Officer to fulfil the duties outlined in the Grievance Redressal Mechanism. This person must be an employee of Google and a resident of India.
  • Google shall notify a monthly compliance report detailing the information of complaints received, actions taken in response to the complaints received and the particulars of content taken away proactively by Google.

Consequences of non-compliance with IT Rules, 2021

The consequences of non-compliance with IT Rules, 2021 are as follows;

  • Section 79 of the IT Act defines safe harbour provisions, which safeguard SMIs and SSMIs by shielding them from legal liability for any content published on their platforms.
  • If Google fails to exercise due diligence, the safe harbour provisions will not extend to it.
  • If Google loses its safe harbour protection, its officials are technically liable to be punished if any content, even if uploaded on its platform by a third party, violates local laws. 
  • It means that the law enforcement officials would be fully within their powers to prosecute not only the individual who shared the content, but also Google’s employees if any content on Google breaches local laws.
  • The lack of Section 79 of the IT Act’s umbrella protection could lead to circumstances where Google’s employees are held accountable for no fault of their own.
  • This could create a situation where employees of Google are held personally accountable for failing to ensure that Google complied with the law. Employees of Google could be held accountable even if they were not at fault.

Google: not an SMI?

Google moved the Delhi High Court division bench in June 2021 to seek interim protection against the step to assert its search engine an SMI under the IT Rules 2021. Google asked the court to overturn an order issued by a single-judge bench on April 20 that concerned the company in regards to certain offensive content on a pornographic website.

A single-judge bench had instructed Google to erase morphed images of a woman from certain pornographic websites within 24 hours of receiving the order. The woman claimed that her photos from Facebook and Instagram were stolen, morphed, and posted on various pornographic websites. The order stated that if Google fails to erase the questionable content from all sites worldwide, the company will lose its protection as an intermediary under Section 79(1) of the IT Act, and its officers will be responsible for the action as mandated by Section 85 of the IT Act.

Google argued in its appeal to the division bench that the single judge erred in referring to its search engine as an SMI rather than an aggregator. Furthermore, it asserted that while it can remove questionable content in India, it may not be feasible to do the same on a global level.

Google contended that the contested directive is impossible for a search engine to follow due to its automated and passive operation. It also violates the established principles that no proactive tracking can be aimed because it thaws free speech and may result in over-blocking of otherwise valid content. According to Google, search engines do not host content; rather, they index available data. It further said that the role of search engines is reactive rather than proactive, as suggested by the Court.

Google requested that a portion of an April order that “mischaracterizes” its search engine as an SMI required to comply with the IT Rules, 2021 be set aside. Google informed the court that it is “merely an aggregator,” and that the IT Rules, 2021 describe SMIs as channels for online interaction or the formation and posting of content. “Google is an intermediary, not an SMI,” it claimed while requesting immunity from any forcible action for failing to follow the template or guidelines established by the single judge.

The division bench did not stay the order, but instead issued notices to the Centre, Delhi government, Internet Service Providers Association of India, Facebook, the pornographic site, and the woman, whose petition had resulted in the single judge’s ruling, requesting replies to Google’s petition by July 25, 2021. Experts concurred that Google’s appeal not to be identified as an SMI may have value. It is interesting to note what judgment the division bench of the High Court passes – whether Google is merely an intermediary or SMI. The above judgment will have implications on other search engines also.

Transparency report under IT Rules, 2021

As mentioned earlier, under IT Rules, 2021, SSMIs such as Google have to publish a monthly transparency report. As per Section 4 (d) of IT Rules, 2021, every month, SSMI must publish a compliance report detailing (a) the details of complaints received, (b) the action taken in response, (c) the number of particular communication links or parts of information that SSMI has removed or deactivated access to following any proactive monitoring undertaken using automated tools, and (d) any other relevant information as specified.

Government can check the actions taken by SSMI during a particular month for any complaints received by it for any objectionable content on its platform through such a monthly transparency report.

Google’s first transparency report under the new IT regulations

Google India has released its first-ever transparency report under the IT Rules, 2021, which contains information about complaints received from users in the country as well as actions taken across Google’s platforms that are categorised as SSMIs under the IT Rules, 2021. The current report includes grievances received and handled between April 1 and April 30 of this year. Google stated that there will be a two-month reporting lag to allow for information processing and verification.

The report is important because Google is the first tech company that meets the definition of an SSMI to submit the report under the IT Rules, 2021. For April 2021, Google got a total of 27,762 complaints, with 59,350 removals as stated in the report. Any content that Google’s community rules, merchandise policies, or local legal requirements are removed.

Almost 96% of complaints (26,707) are about copyright issues, while 1.3% are about trademarks (357). Approximately 1% dealt with defamation (275). Other legal demands accounted for 1% (272), contraband accounted for 0.4% (114), and circumvention accounted for 0.1%. (37). According to Google, some demands may allege a violation of intellectual property rights, while others may allege a contravention of local rules forbidding certain types of content, such as defamation.

The IT Rules, 2021, which were announced on February 25, 2021, require SSMIs, or those with more than 5 million users, to publish a monthly compliance report detailing the particulars of complaints received and actions taken, as well as the set of specific communication links or parts of data that the intermediary has erased or disabled access to following any proactive monitoring performed using automated tools. Each unique URL in a particular complaint is considered an independent “item” by Google. A single complaint may include various units that likely be associated with the same or separate pieces of content.

According to Google’s report, when it receives complaints from specific users about supposedly unauthorised or harmful content, it evaluates the complaint to see if the content infringes its community guidelines or content policies, or if it fulfils local legal requirements for deletion. Google also mentioned that there could be a variety of reasons why they did not delete content based on user complaints. According to the report, some requests are not detailed enough for Google to know what the user wanted it to erase (for example, no URL is listed in the request), or the content has already been deleted by the time the complaint is handled.

According to Google, future reports will include information on removals as a result of automatic identification, as well as data on imitation and graphic sexual content complaints received after May 25, 2021.

Conclusion

The control of content hosted by intermediaries like Google is essential particularly when cyber-crimes against women and children are on the rise.

Government should not use the diligence clauses under the IT Rules, 2021 as a mechanism to control and threaten the people. It must strike a balance between the reasonable restrictions on freedom of speech and expression and privacy. It also cannot use national security as a cover for spying.

The stricter compliances can have an adverse effect as they are likely to result in increased quantities of user complaints and access requests by government entities, making it more difficult for Google to address them within the limited time frames stipulated by the IT Rules 2021. Their effect on content delivery over the internet is substantial, involves practical threats, and compliance costs for organisations such as Google.

The definition of social media intermediary is unclear and may comprise any service providers that facilitate user interactions.

Google has moved to Delhi High Court stating that it is “merely an aggregator” and not an SMI under IT Rules 2021. The said case’s outcome is awaited. 

References


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

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

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

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Blog competition winner announcement (Week 4th May 2021)

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Image source - https://bit.ly/2WVMFfR

So today is the day! We are finally announcing the winners of our Blog Writing Competition for 4th week of May 2021 (From 24th May 2021 to 30th May 2021). 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants, who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at iPleaders under the direct mentorship of Ramanuj MukherjeeAbhyuday AgarwalHarsh Jain, and Komal Shah. Their articles will get published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and have been crowned the winners!

S.no

Name

About Author

Article

1

Abhisekh Nair

Student pursuing Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from 

LawSikho

Here is what every startup needs to keep in mind while approaching any investor

2

Sneha Asthana

Student pursuing Diploma in Business Laws for In-House Counsels 

from LawSikho

How an ESOP scheme works for listed and unlisted companies

3

Rashi Singh

Intern

MSME loan schemes and its beneficiaries

4

  Kalpalathikaa M

Guest Post

Motor vehicle insurance : rights of third party against insurers

5

    Charu Atrey

Student pursuing Certificate Course in Arbitration: Strategy, Procedure and Drafting 

from 

LawSikho

The maintainability of a suit in light of arbitration

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj MukherjeeAbhyuday AgarwalHarsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

S.no

Name

About Author

Article

6

Yashika Kapoor

Student pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting 

from 

LawSikho

All you need to know about partition suits in India

7

Oruj Aashna

Intern

GDPR compliance challenges

8

Raslin Saluja

Intern

The legality of fantasy sport games

9

Triveni Singal

Student pursuing Diploma in Intellectual Property, Media, and Entertainment Laws 

from 

LawSikho

The compulsory licensing application filed by Natco Pharma for COVID-19 drug Baricitinib 

10

Shivani Garg 

Student pursuing Diploma in International Business Law 

from 

LawSikho

The untold about the unsold: The new French fashion law 

Click here to see all of the contest entries. Click here to see our previous week’s winners.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, chose the winning entry based on how well it exemplified the entry requirements.

Certificates will be sent on the email address given by the contestant while submitting the article. The contestants have to claim their prize money by sending their account details as a reply to the mail in which they received their certificate within 1 month (30 days) of the date of declaration of results and not afterwards. 

For any other queries feel free to contact Vanshika (Senior Managing Editor, iPleaders) at [email protected]

LawSikho credits can be claimed within twelve months from the date of declaration of the results (after which, credits will expire).

Congratulations to all the participants!

Regards,

Team LawSikho

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Blog competition winner announcement (Week 3rd May 2021)

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Image source - https://bit.ly/2WVMFfR

So today is the day! We are finally announcing the winners of our Blog Writing Competition for 3rd week of May 2021 (From 17th May 2021 to 23rd May 2021). 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants, who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at iPleaders under the direct mentorship of Ramanuj MukherjeeAbhyuday AgarwalHarsh Jain, and Komal Shah. Their articles will get published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and have been crowned the winners!

S.no

Name

About Author

Article

1

Akash Deep Bandhe

Student pursuing Certificate Course in Advanced Criminal Litigation and Trial Advocacy from 

LawSikho

Human Rights Law in Magna Carta, Constitution of India and International Conventions – iPleaders 

2

Saloni Neema

Guest Post

Economic and legal analysis of the Future Group – iPleaders 

3

Shrikar Ventrapragada

Student pursuing Diploma in Cyber Law, Fintech Regulations, and Technology Contracts 

from 

Lawsikho

Latest technologies for cyber defence – iPleaders 

4

 Rhea M B

Guest Post

The sound that sells : a study of auction sale and its implication with respect to the Contract Law – iPleaders 

5

Manya Dudeja

Intern

Guaranteed fundamental rights of animals – iPleaders 

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj MukherjeeAbhyuday AgarwalHarsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

S.no

Name

About Author

Article

6

Shweta Singh

Guest Post

Dying declarations and their importance to rape victims – iPleaders 

7

Vishwajeet Singh Shekhawat

Student pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution 

from 

LawSikho

Law on amendment of pleadings in India – iPleaders 

8

Nihar Ranjan Das

Student pursuing a  Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution 

from 

LawSikho

All you need to know about target contracts – iPleaders 

9

Anmoldeep Kaur

Guest Post

Emerging trends in the digital Copyright Law 

10

Shrey Mohan

Guest Post

Abolition of Intellectual Property Appellate Board : was it a right move or a mistake by the legislature – iPleaders 

Click here to see all of the contest entries. Click here to see our previous week’s winners.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, chose the winning entry based on how well it exemplified the entry requirements.

Certificates will be sent on the email address given by the contestant while submitting the article. The contestants have to claim their prize money by sending their account details as a reply to the mail in which they received their certificate within 1 month (30 days) of the date of declaration of results and not afterwards. 

For any other queries feel free to contact Vanshika (Senior Managing Editor, iPleaders) at [email protected]

LawSikho credits can be claimed within twelve months from the date of declaration of the results (after which, credits will expire).

Congratulations to all the participants!

Regards,

Team LawSikho

Download Now

Pendency of Cases and Vacations of the Courts

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This article is written by Arundhati Roy

Introduction

The Indian Justice Delivery System seems to have taken a backseat due to a plethora of factors such as lack of workforce, failure to fill up vacancies in the judiciary, piling up of cases over the years, and the never-ending litigation process itself. Adding to the woes of the people litigating, the Covid-19 pandemic has created severe disruptions in our Justice Delivery System. 

The saying “Justice delayed is justice denied” has become the current prevailing scenario of the Indian judiciary. As per various reports, the pendency of cases has crossed 4.4 crores across all courts during the pandemic. This consists of the accumulation of cases across the Supreme Court, High Courts, and 19000 District Courts, and subordinate courts. 

Despite the adoption of the Digital platform to conduct urgent hearings soon after the lockdown was lifted, the judicial administration failed to cope up with the pandemic situation. Amidst the surge in the pendency of cases, it is appalling to see that the Supreme Court and the High Courts are enjoying their vacation period without being concerned about the plight of the litigants. 

Endeavours were taken by the Law Commission as well as by litigants through various Public Interest Litigations (PILs) to highlight the huge pendency of cases, yet there has been heedlessness on the part of the Indian Judiciary. In the present article, the author has attempted to show the lacunae in the existing justice delivery system and how disillusioned the system is.

Importance of High Courts

The High Courts in India are vested with the supreme powers of the judiciary for each State. The role played by the High Courts is remarkable in delivering justice in its true essence. It is regarded as the second most potent authority after the Supreme Court for ensuring conviction to a criminal and freedom to an innocent person. 

Articles 214 to 231 of the Constitution of India deals with the provisions relevant for the High Courts in India. Article 226 of the Constitution of India empowers the High Courts to issue the writs to enforce the fundamental rights that have been violated. 

The Constitution of India has entrusted the Supreme Court and the High Courts with the writ jurisdiction in any case of infringement of fundamental rights. As it has been said, with great powers comes great responsibilities, the impugned question is, “the High Courts, whom we consider paramount with regard to Indian Judiciary, is it genuinely functioning in upholding and imparting justice to all?”

Vacation period of High Courts

It is pertinent to note that the duration of vacations in the High Courts is governed by the Rules or Procedures which the concerned High Court itself frames. In general, the High Courts enjoy Christmas and winter holidays as well as summer vacations. 

Apart from these three vacations, the High Courts have 20 other holidays in a year which is fixed. The total number of working days of the High Court has not been prescribed; it only says that the number of working days of the High Court generally does not fall below 222 days in a year.

Need to increase the working days of High Courts

Recently in 2018, a writ petition was filed by a petitioner Ashwini Kumar Upadhyay in the Supreme Court of India seeking directions to be issued by the Court to reduce the pendency of cases by filing up the vacancies in the subordinate judiciary. The petition highlighted the need to increase the working days of the Court. 

It was prayed in the petition that the working days of courts be increased to 225 working days in a year and 6 hours of working per day. 

It is significant to note that the petition emphasized the right to speedy justice while stating that the said right is a Constitutional reality that requires to be given its due respect. It has been correctly stated in the petition that “a guilty person deserves to be punished promptly and an innocent should be released immediately because his protractions in the legal system can be most traumatic.” 

There is an urgent need to bring reformation in the present judicial structure. Furthermore, the petitioner pointed out that there has been a constant violation of Right to Speedy trial as enshrined under Article 21 of the Constitution, which imbibes the Right to Life due to the unreasonable delay in the litigation process. 

The Supreme Court has time and again clarified that “speedy trial is the essence to criminal justice, and there can be no doubt that the delay in trial by itself constitutes a denial of justice.”

It is nothing but denial of justice when the court of law fails to fulfill its duty of imparting justice to all. The legal regime has been formulated over the years to safeguard the Right to Speedy Trial. 

However, the protracted pendency of cases has led to the creation of not just physical suffering but also mental suffering for the litigants and their families. People’s confidence has been shaken in the judiciary caused by the inordinate delay in every step of the litigation due to numerous contributing factors such as adjournments, vacations of courts, inadequate judges, etc.

According to the petition, 320 years would be taken by the Indian Judiciary to unload the burden of pending cases, which comprises 31.28 million pending cases in all the courts in India. 

It further mentions the cause of such logjam of cases that deficit in the number of judges appointed. As per the data, the Indian Judiciary has only 13.05 judges per one million people. This manifests the wretched condition of the judicial administration. 

Factors contributing to such delays

It is noteworthy to go through the reasons as laid down in the petition for the accumulation of cases over the years. The disposal of cases takes an eternity, but who cares? Indeed, it is the common man, fighting for justice before the court of law, who actually grieves. The factors contributing to the delays in disposal of cases have been stated below:

  1. Pre-trial delays 
  2. Delay during trial 
  3. delay during appellate proceedings and 
  4. delay during the execution proceedings. 

In addition to these factors, there are other elements causing such unreasonable delay. They are as follows: 

  1. Judicial vacancies/delay in appointment of judge,
  2. Lack of accountability of judges, 
  3. Too many vacations in the courts,
  4. Misuse of public interest litigation, 
  5. Witnesses turning hostile 
  6. Writ jurisdictions and 
  7. Delay by the judges.

The above-specified causes to name a few, are the common causes contributing to the arrears of cases in India. However, with utter dismay, these causes do not have an end here; they go hand in hand with the other supplementary causes such as the adoption of dilatory tactics by the litigants and their lawyers to delay the proceedings in court, recurrent adjournments for trivial reasons, unskilled judicial staff, etc, lead to overburdening of cases.

What is the need for so many vacations in High Courts?

It has nowhere been clarified that why the High Courts need so many vacations. When the country is in dire need to lower the surge in the piling up of cases, the High Courts are busy enjoying their vacation periods. The litigants had already been traumatized during the Covid-19 lockdown period in March 2020. 

The adversity caused by the lockdowns has shattered millions of lives, yet the High courts took no notice of the plight of litigants. With the High Courts taking up only urgent matters, what about the other cases which require attention and need to be resolved. 

The High Courts have been established to fulfil the Preamble’s object, which states, “to secure to all its citizens: Justice – social, economic and political.” How can justice be secured to all the citizens when the judiciary is in fact, enjoying vacation. 

There should be no doubt that each human being should relish vacations, but there should be an appropriate balance between the duties and the vacations.

The Law Commission has pointed it in several reports presented by it since 1955. All the Reports from the 14th 38th  78th 79th 80th  117th 120th 121st 124th  125th  154th  139th  197th 221st 222nd 229th 230th and 245th reports addressed the issues of delay, pendency, backlogs, and vacations of High Courts. 

The Government failed to consider the recommendation made by the Law Commission from time to time. This makes it obvious that the Government has neglected the needs of the citizens and rather focused on making efforts for its own enjoyment. 

As the present situation prevails, it has become the need of the hour to cut the vacation period of Judges and subordinate staff. In order to dispose of the pending cases, the judges should dedicate the whole day; this will help relieve the piling up of cases and remove the burden on the judges who will be appointed in the near future. 

Our country’s situation demands that courts reduce their long vacation periods, i.e., the summer vacation, winter vacation, Christmas vacation, etc. The petition filed by BJP leader Ashwini Kumar Upadhyaya has rightly said that “Every Court including Apex Court must function at least six hours per day and 225 days per year.”

What does the 221st and 230th Report of the Law Commission say?

The 221st Report of the Law Commission:

The 221st report presented by the Law Commission in April 2009 was titled “The Need for Speedy Justice- Some Suggestions.” The report was formed taking into account the huge arrears of cases, specifically in High Courts and District Courts. It was stated in the report that huge pendency is a cause of great concern not only for the litigants but for the State as well. The report read as “It is a fundamental right of every citizen to get speedy justice and speedy trial which also is the fundamental requirement of good judicial administration.” Accordingly, various suggestions were given in the Report to provide speedy justice and control frivolous, vexatious, and luxurious litigations. 

With the presentation of the 221st Report, the Law Commission was confident that if amendments, as stated, are carried out, not only litigants will get speedy and less expensive justice, but the pendency of the cases will be reduced and frivolous litigation will be under observation.

The 230th Report of the Law Commission:

The presentation of the 230th Report of the Law Commission was done in August 2009. The report was titled “Reforms in the judiciary – Some suggestions.” The report suggested that there is a need to bring about radical changes in the formation and functioning of the High Courts in India. 

This will enable the citizens to have fair and speedy justice and will increase their faith in the justice delivery system. The report stressed that under our Constitution, the post of judge holds a significant place. The incumbent mustn’t be just fair, independent, and unbiased but also intelligent and diligent. 

Further, the committee suggested that the strength of judges be increased and new benches of High Courts should be created. 

While suggesting various reformatory measures, the Law Commission took into that account that almost every High Court has a large amount of backlog of cases; on the other hand, the strength of judges does not suffice to deal with such a distressing situation. Moreover, the committee focused on increasing the number of working days and keeping a check on the vacations enjoyed by the High Courts 

Conclusion

Contemporary times require the judicial mechanism to adapt to the changing times. It is high time for the judicial administration to understand that a long vacation period won’t do any good to the citizens nor lessen cases’ arrears. Citizens pay taxes which, according to the Government, are directed towards the infrastructural development of the country, in turn benefitting the citizens of the country. 

However, when we take a look into the present system of judicial administration, there is no such enhancement for availing the litigants of the simplified procedure in both civil and criminal cases. It is to be stressed that a simplified procedure would help ease the obstacles faced by the litigants in filing complaints and applications. 

The delay in the litigation process increases the financial burden on the litigants. The Hon’ble Judges fail to realize what a litigant has to get a date fixed for their matters and how much disturbance is caused in their lives due to the postponement of hearings. 

It has become a necessity that the legislatures carry out reformations in the present judicial system as recommended by the Law Commission. The vacation period of the High Courts and the Apex Court needs to be curtailed, filing up the vacancies by appointing judges, using the funds collected from the citizen to build up a strong and efficient judicial system, providing infrastructure to deal with all kinds of problems, only then the objective in the Preamble of the Indian Constitution can be achieved in its true spirit. Citizens should have faith in the judiciary. 

Every litigant should be aware of its right of Speedy Justice and Speedy trial; in the absence of both, the citizen will be deprived of his Right to Life as guaranteed by the Constitution. In addition to this, it should not be forgotten that delay in justice frustrates the very purpose of it. As per the existing judicial mechanism, it takes 20-30 years or sometimes even a life span of a litigant to finally dispose of a matter. 

Needless to say, that the present attitude of the judicial administration has to be eradicated by taking all the effective steps towards that direction, or else the whole judiciary might collapse.


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An analysis of drafting a Service level Agreement for Mcdonald

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Image source-https://rb.gy/maecoh

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

Introduction 

A service level agreement used to be a part of service agreements to specify the technical specifications of the services. SLA describes the nature, quality, and other scopes of the service to be provided. Each specific area of the service scope should be subjected to the same degree of scrutiny.

McDonald’s is a globally successful fast-food restaurant.   It has gained enormous success, growth and expanded the business and the services at the international level.  It makes a powerful entry through the franchise system. The strategy of standardization and adaptation plays an important role in gaining growth and a successful McDonald’s brand.

What is Service Level Agreement

A service level agreement (SLA) is defined as a contract between a service provider and a customer. It details the nature, quality and scope of the services to be provided to the customer. 

 In other words, a service level agreement is a legally binding contract between the owner and the service provider, to deliver a quality service, particularly with an agreed price. Service level agreement also incorporates 

The aspirations, aims, goals and objectives of the owner along with the corresponding strategies and technical Solutions as guaranteed by the service provider. 

Types of service level agreement

There are two major types of service level agreement in recent times:

B2C

This type of service level agreement is the announcements made by the various telecom companies, for example, IT, ISP’s and non-technology service providers that announce the service level guaranteed by the company to the public including their customers. The reason these companies make SLAs’ are to convey the prospective and their current customer, what is level of service they are able to guarantee and what kind of compensation shall be paid to the customer if these companies fail to maintain their guaranteed service level.

For Example some telephone service providers announce their SLA’s:

Connection in 24 hours, complaint, resolution in 12 hours, shifting in 12 hours and in case of any failure, 1 month rent is free.

These types of service level agreement is not negotiated and signed between the Parties as these agreements are unilaterally announced by the service providers to impress the customers at large. In case of failure by the service providers they are voluntarily adhered to the penalties/credits to the affected customers.

B2C

These agreements are between the two business houses that is service providers and the commercial customers. These SLA’s have substantial financial impact on the business of the customer in case of any breach by the service provider. These types of agreements have necessarily negotiated between the Parties signed and registered also. The companies follow the recommendation to follow the process of SLA for effective business management.

Why Service Level Agreement

  1. . The advantage of SLA will make commitments that a company makes to a customer very clear and ensure that the customer service that is provided is satisfactory and maintain the goodwill of the company.
  2. SLA creates performance indicators very clearly and these indicators essentially create benchmarks that need to be met in order for a company to meet their customer satisfaction level.
  3. SLA clearly defines the parameters of a relationship between the customer and the service provider, ensuring the services are received and paid for their services.

Main components of an SLA 

The main components of an SLA as follows:

Negotiation 

Negotiation between the Parties is confined in order to ensure the optimum service provision agreements in all the aspects including the responsibilities that will be undertaken between both the Parties.

Agreement

   Establishing on all aspects of the agreement is fundamental for its successful implementation. It includes the service scope, which looks at the specific service offered by the agreement, for example, telephone support. service provider requirements are also a part of the service agreement.

Quantifying service levels

All the service outcomes will quantify through the performance indicators defining wat the customer will receive. Quantifying service levels involves examining the customer’s requirements to establish the benefits and cost justification of various service levels.

The statues, Goals and Objectives

The purpose of the agreement including the ability to obtain a mutual agreement between the Parties will be outlined.

Service Management

The final level of the service level agreement is service management. It includes both service availability and service requests.

Essential Clauses of the Agreement

Agreement Parties

There are two Parties to the Agreement: Customer who buys goods and services and Service Provider is a company that provides its subscribers access to the internet.

For example, McDonald’s. The Service Provider is McDonald’s where the company has its head office as American Fast Food which provides the access to online services is Service Provider, and the individual who gains the service satisfaction and online access is the Customer.

Recitals

  • It is considered to be the world’s leading food service retailer with more than 30,000 restaurants in 118 countries serving 46 million customers increasing each day.
  • McDonald’s expanded the chain by selling Franchises, and the number of restaurants grew rapidly and capitalize the global opportunities.
  • It is outstanding brand recognition, experienced management, expertise in the development of the site,  operational systems advanced and has unique global infrastructure over the world.
  • McDonald’s operates and controls the online services accessing or using any websites, mobile apps, email newsletters, subscriptions and other digital properties.

Purpose of McDonald’s

The purpose of McDonalds is to specify the requirements of their service as defined herein with regards to:

  • McDonald’s aims to provide chances to its customers and its employees not only with money but by providing them with help and support.
  • The service provided to customers to reach their satisfaction levels such as hygienically clean place or high-quality food.
  • McDonald’s’ try to offer opportunities to its employees by providing them with the superior training and higher equal opportunities to its employees and great satisfaction levels for its customer.
  • It aims to increase the growth and expand its business capacity to produce more stock and provide better or greater service.
  • It also aims at helping the poor with their needs and has always been their concern towards charity grown into their disaster Relief organisation, fundraising organisation etc.
  • It also aims to promote and sustain a working environment and to achieve a global strategy called “Plan to Win”, which focus on creating an extraordinary customer experience.
  • It is a publicly-traded company maintaining constituent profits for its shareholders, it aims to Plan to win encompasses all the factors that are essential to the company’s growth and dominance in the market.

Grant and Scope of McDonald’s License

  1. In consideration by agreeing to abide by the Terms, McDonald shall grant a non-transferable, non-exclusive license to use the App on any devices, subject to the Terms its Privacy Policy and the App store Rules which is incorporated into the Terms by reference. All the other rights are reserved.
  2. It shall:
  • Download a copy of the App on any device for an unlimited number in any device to view, use and display the App on the devices for personal purposes. and
  • The Documents are to be used for personal purposes only.

Copyright and IPR

  • McDonald’s copyright infringement that complies with the Digital Millennium Copyright Act (“DMCA”).
  • All the rights in the app shall remain the exclusive property of Premier restaurants or their licensors.
  • The App is licensed and is not allowed to sold, in case of transfer of any such rights to, or to vest any such rights shall take action of jeopardise, limit or interfere with Premier restaurants or its licensor’s rights.
  • Trademarks, service marks and all graphical elements appearing on the App are distinctive and protected.

Terms and Conditions of McDonald’s

The terms and conditions to be applied by the McDonalds using online or electronic access:

  • By accessing, installing or using the App on which the terms and conditions are referred and enter into a binding agreement with Premier Restaurants.
  • The Privacy Policy describes how to collect, use and share the information and incorporated it into, a considerable part of this Agreement.
  • The App is not intended to be used, or targeted to, any minor under the age of years old. 
  • In case if the terms are not agreed by a major he/she shall immediately stop using the App access and request to close the App account.
  • The App users must provide true and honest information by providing the users with proof identification.

Employee Responsibilities

Employees to perform their responsibilities to the highest standards set by the company.

 Employees must treat fellow workers, supervisors and all the customers with respect and cooperate with them.

An employee shall not harass anyone or intimidate any customers and their Abusive behaviour is not allowed.

It is the employee’s responsibility to create a healthy environment and does not cause any offence.  

Employees cannot utter offending words or actions. An employee must practice safety at all times to ensure not only his well-being but that of others. Alcohol or illegal drugs are forbidden.

Limitations on liability and disclaimers

The Limitations on McDonald’s liability as follows:

  • McDonald nor any other members of the McDonalds system, direct or indirect shall be liable for the lost profits or any business damages.
  • It shall not be held liable for lost data, personal damages or any other property damages related to or arising out of the online services.
  • To limit its liability for the damages caused by McDonald’s own gross negligence or any unlawful conduct.
  • It reserves all legal rights to recover damages and compensation as per the terms and conditions as allowed by the law.
  • In case of any events beyond the control, McDonald’s nor any other members of its system shall not be held responsible for the failure of its performance of any of its obligations.
  • McDonald’s provides online services without any warranties and disclaims the warranties of merchantability for a particular purpose.
  • Premier Restaurants reserves all legal rights to recover damages or other compensation under the Terms or as allowed by law.
  • In the event of the damages or loss caused by the third party, it shall not take any responsibility.

Advertising and Marketing

  • McDonald’s is widely recognised as being a leader in projecting its brand through marketing and advertising through many agencies for co-operative advertising.
  • McDonald’s maintains the approach, investing in the online and offline marketing strategies that promote the brand-centric messaging to broad customers using through other channels such as a mobile app to reach large numbers and retain loyal customers.

Termination Clause

The App shall terminate immediately by written notice:

  • In case if a person commits a material or any kind of persistent breach of the terms and conditions which fail to remedy.
  • In the event of a breach of any of the license restrictions or the acceptable use is restricted.
  • All rights granted under the terms shall cease.
  • The customer shall be instructed to delete or remove the App from all devices and to destroy all the copies of the App and documents which controls and certify the terms.

Acceptable uses and Restrictions

  • Not to use the App or any Service in any unlawful manner and for any unlawful and fraudulent purpose and use it maliciously. for example by hacking the devices or inserting malicious code, creating viruses, or harmful data into the App or any Service in the operating system.
  • Any person shall not infringe Intellectual Property Rights or any third party in relation to the use of the App or any Service which includes the submission of any material to the extent such use is not licensed by the Terms.
  • Shall not be allowed to transmit any material which causes defamatory, offensive in relation to the use of the App or any Services.
  • Not to use the App or any Service in a way that causes damage, overburden and compromises the systems and interfere with the others use.

Advantages of SLA’s

The advantages of SLA’s as follows:

  • The specific services of customers and providers are clearly identified. For all the outsourced services it is important to specify the minimum acceptable service levels and to establish the procedures to ensure the agreed levels are met.
  • Customers are aware of what kind of services they receive and what additional service and levels is offered by the service provider.
  •  It is clear that what are the real needs and level of service required by the customer and whether these can be modified at a possibly reduced cost.
  • Customers have heightened awareness of what a service or level of service costs and then evaluate the service level on the cost/benefit basis.

Disadvantages of SLA’s

The disadvantages of SLA’s as follows:

  • The installation of measurement procedures and negotiation of SLA’s are costly to both the customers and providers.
  • There is a potential increase in bureaucracy.
  • Staff training may be needed in the working of SLAs and to overcome possible initial resistance to their introduction.

Reasons for SLA failure

The various reasons for the failure of SLA are as follows:

  • Tendency to include everything.
  • Tendency to have too much in detail.
  • To include the thing which are not measurable.
  • Tendency to not to be honest and to set the unrealistic targets.
  • Lack of commitment by the customers and service providers.
  • Lack of an adequate support structure.
  • Inadequate staff training.
  • Some SLA’s are not detailed enough.

Sample draft of SLA

SERVICES AGREEMENT

This Services agreement (the “Agreement”) is made on this ________ (“Effective Date”)

BY AND BETWEEN

________, son of ________, resident of ________ (hereinafter referred to as the “Service Provider”

which expression shall unless excluded by or repugnant to the subject or context be deemed to include its legal heirs, administrators and permitted assigns) of the ONE PART

AND

________, son of ________, resident of ________ (hereinafter referred to as the “Client” which

expression shall unless excluded by or repugnant to the subject or context be deemed to include its legal heirs, administrators and permitted assigns) of the SECOND PART

(The Service Provider and the Client shall hereinafter individually referred to as “Party” and collectively as “Parties”)

WHEREAS

  1. The Service Provider is in the business of providing the Services (as defined hereunder) and has the skills, qualification and expertise required to perform the Services.
  2. The Client desires to engage the Service Provider to provide the Services and the Service Provider has agreed to do the same.
  3. Pursuant to the above, the Parties seek to enter into this Agreement to confirm and record the terms and conditions on which the Service Provider shall provide the Services to the Client and other agreements in connection therewith.
  • DEFINITIONS AND INTERPRETATION

(a) “Applicable Law” shall include all applicable (i) statutes, enactments, acts of legislature or parliament, laws, ordinances, rules, bye-laws, regulations, listing agreements, notifications, guidelines or policies of any jurisdiction; and (ii) judicial quasi-judicial and/or administrative decisions, interpretations, directions, directives, licenses, permits, judgments, writs, injunctions, arbitral awards, decrees, orders, terms and conditions of governmental or regulatory approvals or agreements with any governmental or regulatory authority.

(b) “Approvals” shall mean sanctions, permissions, consents, validations, confirmations, licenses, and other authorizations obtained and/or required to be obtained from any Government Body.

  1. SERVICES

(a) The Client agrees to avail the Services from the Service Provider and the Service Provider agrees to provide the Services to the Client on the terms and conditions specified in this Agreement.

(b) The Service Provider shall:

 (I) Provide the Services in compliance with this Agreement and Applicable Laws. If any Approvals are to be obtained for the provision of Services the same shall be obtained by the Service Provider. 

(II) Retain and utilize a sufficient number of qualified personnel to perform the Services.

(lll) Ensure that all personnel who are deputed to perform the Services are appropriately trained and qualified to perform such Services.

(c) The Service Provider shall keep the Client promptly informed of all material matters which come to Service Provider’s attention relating to or affecting the business of the Client or any matters concerning the provision of Services hereunder by the Service Provider.

(d) The Service Provider shall work for a minimum of: ________ for providing Services to the Client during the Term of the Agreement.

(e) The Service Provider shall keep the Client informed regarding the time spent on provision of Services and in the event, the time spent exceeds: ________ the fee payable shall only be increased if prior written approval is obtained from the Client regarding time in excess of: ________.

(f) In the event the Service Provider does not spend at least: ________, the fee payable shall be reduced proportionately based on the actual time spent or otherwise as may be agreed between the Parties.

(g) The Service Provider shall complete the Services on or before the ________. In the event of delay in completion of Services by the Service Provider, the Service Provider shall be liable to pay an amount of Rs. ________ (________) per day of delay.

  1. REPORTS

The Service Provider shall from time to time provide information and reports in relation to the performance of the Services as may be requested by the Client.

 

  • REPRESENTATIONS AND WARRANTIES

 

(a) Each Party hereby warrants and represents to the other Party that:

(I) It has full power and authority to enter into this Agreement and perform its obligations hereunder;

(II) This Agreement has been duly executed by it and this Agreement constitutes its legal, valid and binding obligation enforceable in accordance with the terms contained herein;

(III) The execution, delivery and the performance by it of this Agreement does not and will not (i) breach or constitute a default under its constitutive documents, or (ii) result in a breach of, or constitute a default under, any agreement to which it is a party or by which it is bound.

(b) The Service Provider hereby represents and warrants to the Client:

(I) It will provide the Services in compliance with the provisions of this Agreement;

(II) It will act in good faith and use reasonable skill and care in the provision of Services under this Agreement;

(III) It will comply with all Applicable Laws in the provision of the Services;

(IV) It has all requisite corporate and other approvals, licenses and permits from relevant governmental authorities to provide the Services.

  • Terms and Termination

This Agreement may be terminated as follows:

(I) By either Party upon providing a written notice of ________ (________) days prior written notice to the other Party; or

(II) By the Client, in the event a material breach of any provision hereof is committed by the Service Provider, by providing 15 (fifteen) days written notice to the Service Provider with reasons of termination stated thereunder; or

(III) By the Service Provider, in the event a material breach of any provision hereof is committed by the Client, by providing 15 (fifteen) days written notice to the Service Provider with reasons of termination stated thereunder.

  • Indemnity

The Service Provider hereby agrees to indemnify and hold the Client harmless from all damages, costs, attorney’s fees or other losses arising out of or relating to:

(a) breach of this Service Agreement by the Service Provider.

(b) breach of any representation or warranty by the Service Provider.

  • Dispute Resolution 
  1. a) Any dispute(s) arising out of this Agreement shall, as far as possible, be settled amicably between the Parties hereto failing which the following shall apply:

(b) The courts in ________ shall have exclusive jurisdiction over any dispute, differences or claims arising out of this Agreement.

(c) If either Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover reasonable costs and attorneys’ fees.

  1. GOVERNING LAW

This Agreement and all issues arising out of the same shall be construed in accordance with the laws of India

Conclusion

McDonald makes the main purpose to attribute by providing the large number of customers with fast and friendly services. The world’s largest restaurant companies, McDonald’s has the responsibility to take on some of the most pressing challenges and embrace the opportunity to lead by example and effect meaningful change.

Good governance is critical to managing the impact on the world. The governance structures help to prioritize ESG issues effectively and guide actions and performance across issues.

Reference

  1. https://www.mcdonalds.com/us/en-us/mccafe.html
  2. https://corporate.mcdonalds.com/corpmcd/terms-and-conditions.html
  3. https://www.pocketpence.co.uk/mcdonalds-code-ethics-employees-
  4. https://www.slideshare.net/dankjohn/project-report-and-market-survey-of-mcdonalds
  5. https://www.slideshare.net

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Can words spoken in anger be treated as abetment to suicide

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Abetment to suicide

This article is written by Anusha Misra from NALSAR University of Law. This article evaluates whether words spoken in anger amount to abetment of suicide.

Introduction

The word suicide (felo de se in Latin) implies the deliberate ending of one’s own life. In the case of M.Mohan v. State (2011), the Supreme Court expressed that the term ‘sui’ signifies self, and ‘cide’ signifies killing, inferring self-killing. Thinkers, moralists and sociologists have not concurred on what establishes suicide. This is because suicide might be depicted by various networks contrastingly relying upon the conditions and socio-strict practices predominant.

Suicide or self-annihilation is a common incident affecting people of all classes throughout the globe. It is an exceptional crime where both the accused and victim are the same person. This crime has been elaborated in the Indian Penal Code, 1860 and provides for the punishment as well to control further commission of offences. Attempt to suicide and abetment of suicide are two different concepts that are punishable under Section 306 and Section 309 of the Indian Penal Code. Section 306 deals with the punishment for abetment of suicide while section 309 punishes for the attempt to commit suicide.

The term ‘abetment’ in criminal law indicates that there is a distinction between the person abetting the commission of an offence (or abettor) and the actual perpetrator of the offence or the principal offence or the principal offender.

What is instigation

In the case of Ramesh Kumar v, State of Chhattisgarh (2001), the Supreme Court clarified the term ‘instigation’ and expressed that – “instigation is to spur, ask forward, incite, actuate or urge to do a demonstration”. 

To fulfil the prerequisite of instigation, however, it’s anything but important that real words should be utilized with that impact.

In the case of Vijay Kumar v. State of Rajasthan (2018), it was observed that the word ‘instigation’ signifies to counsel or make a decent attempt to convince someone to accomplish something and to make an individual move all the more rapidly or in a specific way.

To establish abetment, it should be shown that the accused continued encouraging or irritating the deceased by words, insults until the deceased responded. Besides, the accused had the goal to incite or ask or urge the perished to end it all while acting in the way noted previously. Without a doubt, the presence of mens rea is urging. 

In this way, to bring a case within the domain of Section 306 of IPC there should be an instance of suicide and in the commission of the said offence, the individual who is said to have abetted the commission of suicide, and more likely than not, assumed a functioning part by a demonstration of urging the commission of suicide.

In the case M.Mohan v. State, it was held that abetment includes a psychological interaction of prompting an individual or deliberately supporting an individual in doing something. Without a positive follow up on the piece of the condemned to induce or help in ending the individual’s life, the conviction cannot be supported. 

Abetment of suicide of wedded ladies 

The Criminal Law (Amendment) Act, 1983 states that where a wedded young lady carries out suicide within seven years of her marriage, the court may assume that her better half and family members of her significant other had abetted her to carry out suicide by the prohibition of consolidation under Section 113A in the Indian Evidence Act, 1872.

Based on legal announcements and obiter dicta, to convict an individual under Section 306 IPC there must be a reasonable mens rea to establish the offence. It is anything but a functioning demonstration or direct demonstration which drove the deceased to die by suicide.

Mens rea – an essential ingredient to establish offence under Section 306 of the IPC

In the case of Sanjay Singh Sengar v. State of MP (2002), the Apex Court subdued the charge sheet for an offence under Section 306 of IPC to hold that the words articulated in a squabble or on the prod of second, can’t be taken to be expressed with mens rea.

In the case of S.S. Chheena v. Vijay Kumar Mahajan and Anr (2010), the Supreme Court mentioned some noteworthy facts on the law relating to abetment of suicide under Section 306 of IPC. The court decided that – “Abetment includes a psychological interaction of inducing an individual or deliberately helping an individual in doing a thing. There must be an unmistakable mens rea to submit the offence”.

In the case of Madan Mohan Singh v. the State of Gujarat and Anr (2010), it was accepted that to draw out an offence suicide under Section 306 of IPC, express abetment as inspected by Section 107 of IPC concerning the accused of an assumption to accomplish the suicide of the individual stressed as a result of that abetment is required.

In the case Gurcharan Singh v. The State of Punjab (2020), the Apex Court observed that the essential elements of Section 306 of IPC are self-destructive demise and the abetment thereof. To establish abetment, the expectation and contribution of the blamed to help or incite the commission of suicide is basic.

Contiguity, progression, culpability and complicity of the indictable demonstrations or oversight are the corresponding lists of abetments. Section 306 of IPC, in this way, condemns the supported impelling for self-destruction. 

In the case of Randhir Singh v. State of Punjab (2004), the Supreme Court articulated the substance and implications of Section 306 IPC and believed that – “abetment includes a psychological interaction of affecting an individual or purposefully helping that individual in doing a thing. The more dynamic job which can be portrayed as inducing or helping the doing of a thing is needed before an individual can be supposed to abet the commission of an offence under Section 306 of IPC”. 

In the case of the State of W.B. v. Orilal Jaiswal (1993), the Supreme Court observed that the courts ought to be cautious in surveying current realities and conditions of each case and the proof illustrated in the preliminary to discover whether the accused is guilty of abetment.

The constitutional validity of Section 306, IPC

In the case of Naresh Morotrao v. Union of India (1994), the legitimacy of Section 306 was laid down. It is organized on the standard of public strategy that no individual ought to include himself in, or induce, or help the commission of wrongdoing. 

Abettor versus perpetrator

With regards to abetment of suicide, the norm was that the challenge to the constitutional validity of Section 309 had been rejected, hence no serious challenge survives for the constitutional validity of Section 306. It was also held that Section 306 enacts a separate offence that survives independently of Section 309. The apex court stated that the arguments for not punishing a person attempting suicide cannot be used to benefit a person who assisted a person who had committed suicide or attempted to. The law views the abettor differently from the perpetrator of the crime, as he abets the extinguishment of the life of another person.

However, other judgments of the Supreme Court also laid down guidelines regarding abetment of suicide.

In the case of Madan Mohan Singh v. The State of Gujarat, it was stated that baseless allegations could not be used for prosecution for a serious offence under Section 306. The court added that in such there must be an allegation that the accused had instigated the deceased to commit suicide or had engaged with some other person in a conspiracy to do so.

However, in a landmark and controversial judgment, the Rajasthan High Court, in Nikhil Soni v. Union of India (2015), declared that Santhara or Sallekhana was punishable under Sections 306 and 309. Santhara is a revered Jain practice of giving up food and water till one dies of starvation. There was an appeal made in the Supreme Court stating that it was improper and unwise to relate Santhara to suicide in concept and act. The plea said that this vow is not taken either in passion or in anger or deceit but is a conscious process of spiritual purification where one does not desire death but seeks to live his life in a manner to reduce the influx of karmas. 

The international scenario of laws regarding abetment to suicide

A few nations and wards across the world like Bangladesh, Ghana, India, Kuwait, Nigeria, Pakistan, Rwanda, and Singapore have tough laws in regards to the offence of suicide. 

  • In England and Wales, the Suicide Act of 1961 has overcome law and order whereby it’s anything but wrongdoing for an individual to perpetrate suicide. Section 2(1) of the Act ascribes criminal risk for involvement in another’s suicide and makes the abettor obligated for the detainment which is for a term not surpassing fourteen years. 
  • In African nations like Botswana, supporting or abetting the suicide of someone else establishes a criminal offence named ‘Helping Suicide’. 
  • Gambian law denies endeavoured self-destruction. The country’s suicide laws are covered under the Gambian Penal Code
  • Consequently, abetment to suicide has been made culpable in a large portion of the nations and suicide is certifiably not an individual decision until impacted by others and thus the tough laws undermine the general public and control the commission of offences.

Current scenario

To constitute instigation, an abetment by the accused should be associated unequivocally. Assume, A says – “go, kick the bucket” to B, and B ends up falling to death accordingly. Here, A can’t be accused of abetment to suicide. First and foremost, A didn’t plan to affect B and just expressed the words furiously. In such a case, the court would investigate the person’s overall conduct towards B and decide the expectation. 

In a similar case, if a spouse and his family have exposed the wife to persistent maltreatment since the marriage and drove her to end her life, they can be expected to take responsibility for the offence of abetment. Abetment must have a certain coherence, happening persistently throughout a reasonable timeframe. Suicide should likewise be an immediate outcome of incitement and can’t be a simple fortuitous event or exceptionally distant to the act of suicide.

The Madhya Pradesh High Court had, in Smt. Kamrunisha v. The State Of Madhya Pradesh (2018), held that words expressed out of resentment cannot be treated as an abetment to suicide. 

The solicitor Kamrunisha had tested an argument enlisted against her under IPC 306 (abetment to suicide) after the individual with whom she had a supposed affair with committed suicide. As indicated by police, she was compelling her lover to marry her. On January 17 2020, she went to remain with him in his home and purportedly took steps to stop an FIR against him and his family if he would not marry her. She left after his relatives interceded, however, returned to his home on January 26 that year and supposedly rehashed the danger. The man committed suicide on January 28 2020, and police enrolled an FIR against her. Kamrunisha moved the high court. 

The HC Judge said the accused had not uttered a word that might have driven him to end his life. She had not harmed him in any way, he stated, adding that if she had taken steps to hold up an FIR and was compelling him for marriage, he ought to have taken to alternative means as opposed to committing suicide.

Conclusion

Instigation cannot be defined as a word used in a fit of rage or emotion with no intention of the consequences occurring thereafter. If the court uncovers that a victim who committed suicide was hypersensitive to ordinary circumstances and differences in life that were common in the society to which the victim belonged, then the court’s conscience will be convicted, for basing a finding that the accused charged for abetting the offence of suicide should be found guilty.

References 

  1. https://www.latestlaws.com/latest-news/words-in-anger-can-t-be-treated-as-abetment-to-suicide-says-high-court/
  2. https://www.vakilno1.com/legal-news/important-judgments-on-abetment-of-suicide.html
  3. https://lawtimesjournal.in/abetment-to-suicide/ 

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Side letter agreement

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Image source: https://skloverworkingwisdom.com/side-letter-use-to-amend-standard-or-existing-agreements/

This article is written by Aakriti Bansal pursuing a Diploma program in Advanced Contract Drafting and Negotiation and Dispute Resolution from Lawsikho.

What is a side letter agreement?

It is conventional practice for parties engaging in a contractual relationship to enter into “side letter agreements”, usually in corporate and commercial dealings. As the name suggests, side letters are instruments that are supplemental and auxiliary to the main principal contract. It can be used for clarifying, supplementing, varying, or as a detailed extension to some of the terms of the main contract. There are plenty of reasons for parties to enter into a side letter agreement pursuant to the primary contract, instead of including the contents of the side letter in the principal document. These are versatile and useful in cases where the parties aspire to complete their transactions without actually finalizing the terms of certain aspects of the business operation, the underlying broad aspects of which can be included in the side letter agreement, for ratification after closing.  They can prove beneficial for further clarifying the relationship and other private engagements between the parties to the main contract. Since contracts as such can be available in the public domain, there might be some information related to the transaction which might be highly private, confidential, or sensitive information, between the parties and if made available in the primary contract, might prove detrimental to the interest of the parties and is therefore preferred to be put in a side letter agreement.  

What side letter agreements are used for?

The primary uses for side letter agreements can comprise of the following: 

 

  • Clarification 

 

In commercial and corporate transactions, the agreements between parties relating to their business dealings can be very elaborate and run into a number of pages, and it might be possible that there exist certain terms and clauses which require in depth enumeration. A side letter may be used in such scenarios to clarify some of these terms of the principal contract. It is also usually used were, at the time of the finalization of the contract, some of the details and information were unknown or doubtful and became known thereafter, for confirming such additional details. For example, it can be used to enumerate what would constitute “all reasonable endeavors”, wherein there is a clause in the contract relating to the same.

 

  • Supplementation 

 

As stated above, commercial and corporate transactions and agreements in pursuant to those transactions are complex and are often multi-party transactions, in such situations, side letters serve as evidence for a binding contract between two parties to a multi-party transaction, even in situations when it has not been disclosed to other parties. Thus, the serves the purpose of being a supplementary document. Side letters are usually expended in the formation of investment funds, generating several surplus obligations or permitting exemptions between the fund and a specifically limited partner. 

 

  • Variation 

 

Once the primary contract has been drafted and initiated for legal formalization, there may arise a need for incorporating last-minute changes. In such scenarios, it is preferable to draft a side letter agreement, instead of amending the principal contract altogether. If a situation arises wherein the parties wanted to make changes to the main contract, before it is finalized or even after finalization, making changes to the main contract could require redrafting the entire agreement or major clauses, which could be time and resource inefficient and this problem can be resolved by a side letter varying and incorporating the desired changes. 

 

  • Maintaining confidentiality 

 

When parties engage in commercial and corporate transactions, there is always some information that is so sensitive and confidential in nature, that any leak of such information could prove detrimental to the entire business of the parties.  It may be possible that such confidential information cannot be disclosed in the principal contract, given that the contract is available in the public domain, in such situations, a side letter agreement incorporating all such details of the sensitive information can be drafted. 

Types and forms of side letter agreements

Side letter agreements can take many forms and may be known by various other terms, depending upon the nature of the transaction and engagement between the parties to a principal contract. A side letter agreement can be in the form of an MOU drafted before the finalization of the primary contract, it can be a letter of intent, a term sheet, comfort letter, or it can also be in the form of a letter of appointment pursuant to a principal contract of employment, it can be in the form of a document giving out details for investment in an investment agreement. Therefore, irrespective of the term used to connote a side letter agreement, they fall within the same category of side letters.

Legal enforceability of Side Letter Agreements

Regardless of the fact that side letter agreements are extremely useful, they give rise to a variety of legal issues with respect to their enforceability. Questions like, whether a side letter is a legally binding contractual agreement between parties that could be enforced by a court of law arise. Although there is no forthright answer to these questions, the courts in different countries have tried dwelling into such questions and discussing and deliberating on the same, on the basis of which some clarity can be gained. In the case of Barbudev v. Eurocom Cable Management Bulgaria, the English Court decided upon the enforceability of a side letter agreement and laid down certain principles. The main points of discussion were:

 

  • Intention to create legal relations 

 

One of the requirements that determine the enforceability of contracts is the intention of the parties to create legal relations. The court in this case examined the language of the side letter to infer the intention of the parties. Through the language of the side letter, it was concluded that the side letter was not intended to be legally binding. The court held that the side letter made a reference to the principal Investment Agreement (which was to be entered between the parties), and was reflective of the fact that the side letter was not to be binding and only the Investment Agreement would be binding. 

 

  • Agreement to Agree

 

Under English law, there is a principle that “an agreement to agree is legally unenforceable.” The court emphasized this principle and although the broad terms of the investment were set out in the side letter, the court couldn’t be convinced of its certainty and sufficiency and concluded that it was merely an agreement to agree.   

  • Certainty of terms 

The court was of the view that in order for a side letter to be legally enforceable, all the essential terms should be certain as they would be in a principal contract. It could be understood as the side letter should be self-sufficient and self-effectuating. If it lacks to contain the terms which are crucial for its implementation, then it would be invalid as it would be too incomplete or uncertain to be enforceable by law.

Thus, it can be inferred from the above that in order for a side letter to become binding and have the force of law, it should satisfy the identical standards and requirements that all contracts have to fulfill: (i) offer; (ii) acceptance; (iii) consideration (iv) certainty; and (v) the intention to create legal relations. With respect to the question of intention of parties to create legal relations, if clear wording is used in the contract, the court will interpret the same to carve out the intent of the parties, as was held in the case of Rose & Frank Co v JR Crompton and Bros Ltd. With respect to the question of certainty of language, the court generally draws a distinction between “interpreting” and “making” a contract and the role of the court is confined to the interpretation of the contract and not make the contract for the parties as was held in the case of Scammell and Nephew Ltd v Ouston. Consideration is also an important aspect to look into to give the side letter agreement a binding force of law. It was held in the case of British Nuclear Group Sellafield Ltd v Kernkraftwerk Brokdorf GmbH & C,  that where a side letter constitutes a legally binding contract, normal rules of interpretation will apply, including the law of mistake and misrepresentation. Thus, on the basis of the above discussion, it can be culled out that the basic requirements that apply to a principal contract should also apply to side letter agreements in order for it to be enforceable. 

Indian scenario with respect to legal enforcement of Side Letter Agreements

In order to determine the enforceability of side letter agreements, the facts of each case have to be analyzed individually with respect to the provisions of the Indian Contract Act, 1872 and no straightjacket formula can be devised for the same. The conditions for a valid side letter agreement as laid down under the Indian Contract, 1872 read with the judicial pronouncements of the common law countries can be summarized as under:

  • The clear intention of the parties to create legal relations
  •  The agreement shouldn’t merely be an agreement to agree 
  • The terms should be clear and unambiguous
  • The subject matter is certain 
  • There is some form of consideration 

In order to understand the Indian position with regard to the enforceability of side letter agreements, we have to look at some case laws in that context. 

In the case of Kollipara Sriramulu (dead) by L.R. v T. Aswatha Narayana (dead) by L.R, it was held by the court that in relation to a side letter agreement that “Where the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of a further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will, in fact, go through. In the former case, there is no enforceable contract, while in the latter there is a binding contract.” In the case of Nanak Builders and Investors Pvt. Ltd. v Vinod Kumar Alag, the Delhi High Court held that in a situation where the essential and important terms have already been agreed upon between the parties and have further been formalized into writing, and the agreement indicates no reference or mention of another formal agreement that is to be executed by the parties, the Court will not regard the agreement as an incomplete agreement. In the case of Rickmers Verwaltung Gmbh. v. Indian Oil Corporation Ltd., the court giving regard to the facts and circumstances of the case and analyzing the evidence on record came to the conclusion that the correspondences between the parties are indicative of the fact that they were merely negotiating and there was no agreement and the negotiates on the side didn’t imply an intention to enter into a legal relation, therefore no binding contract exists. 

On the basis of the decision of the Indian courts, it can be understood that the court would look into the unique facts and circumstances of each case to determine the legal enforceability of each side letter agreement to analyze whether the basic requirements of a valid contract are fulfilled or not. 

Conclusion 

From the above discussion, one striking conclusion that can be made is that the legal enforceability of a side letter agreement to a substantive extent depends upon the language of the side letter agreement, and therefore it is necessary to draft such side letter agreements with utmost diligence. The courts construe the nature of the relation of parties through the document itself, and hence, it is compelling that attention is paid to make the terms of the side letter as clear, comprehensive, and coherent as possible. If from the very beginning, the parties wish to give the side letter agreement a binding force, they could insert a clause to that extent and clearly lay it down in the side letter agreement in order to evade any future dispute. On the other hand, if the parties don’t want the side letter to be binding, they can do this by inserting a clause in the agreement. Hence, the language and the structure of the agreement need to be taken into consideration while drafting a side letter agreement. 


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

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

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