The Rise in E-commerce and the law connected thereto
The usage of the Internet has a lion’s share in our lives. The Last three decades witnessed shedloads of people shifting to digital platforms for commercial purposes. E-Commerce can be defined as buying or selling of goods or services including digital products over a digital or electronic network, according to Sec 2(16) of Consumer Protection Act, 2019. E-Commerce can be classified into three – business-to-business, business-to-consumer and consumer-to-consumer. In Amway India Enterprises Pvt. Ltd v. 1 Mg Technologies Pvt. Ltd and Another(1) (decided on 08.07.2019), the Court held that “the continued sale of the plaintiff products on the e-commerce platforms, without the consent of the plaintiffs, results in inducement of breach of contract, and tortious interference with contractual relationships of the plaintiffs with their distributors.” The case was a compilation of seven suits filed by Direct Selling Entities against famous e-commerce platforms for selling, offering for sale or advertising the plaintiff’s branded products without consent/authorization. The main concerns raised here in this case –● Whether the 2016 guidelines are binding upon the e-commerce platforms?● Whether the sale is valid or amounts to violation of trademark rights?● Which platforms are ‘intermediaries’ and whether the safe harbor provision u/s.79 of the IT Act is entitled to the platforms?● Whether the e-commerce platforms such as Amazon, Snapdeal, Flipkart, 1MG and Healthkart are guilty of tortious interference with the contractual relationship of the plaintiffs to the direct sellers? Observations and HeldThe Court observed that the plaintiff’s products were tampered. Expired products were sold by the defendant, after giving them fake re-manufacturing dates. The Court also laid down the eligibility criteria for being an intermediary. But aggrieved by the order passed, the defendants made an appeal(2). The Delhi High Court reversed the said order which restrained the e-commerce platforms to breach the third-party contracts and held that these e-commerce platforms like Amazon, Snapdeal, Flipkart, Healthkart and many other to sell, offer to sell, advertise, display products without the consent of the Direct Sellers/Direct Selling Entities. The order passed by the Competition Commission of India(3) giving direction: to establish a committee and investigate the anti-competitive nature of the e-commerce platforms and the abuse by dominant positions in the marketplace. It is challenged before Karnataka High Court(4) to set aside the order and quash the direction to investigate the practices of the platforms. The acts that are directed to be investigated: deep discounting; preferred sellers on the marketplaces; preferential listing and promotion of private labels; and exclusive agreements in respect of launch of mobile phone brands on their platforms. The Court held the dismissal of all the writ petitions stating ‘it would be unwise to prejudge the issues raised by the petitioners in these writ petitions at this stage and scuttle the investigation. The contention of the petitioner that there is no res judicata in this case and the order passed by the CCI as it appears that the Act looks after the competitive forces in the market. At variance, relying on how the Commission did not order an investigation in CCI’s AIOVA order, both of them should have been treated in a similar way. But later the court found that the AIOVA order is set aside and an investigation is ordered, also stated that Competition Act operates in ‘rem’ and not in ‘personam’, since it concerns public interest(5). Oberdorf v. Amazon.com Inc, No.18-1041 (3d Circ. 2019) The complainant to the case, Heather Oberdorf sued Amazon for the permanent injury caused to her because of the dog leash (the product bought through Amazon) claiming the strict liability and negligence. But the District Court found that the injury had nothing to do with Amazon as it is not liable under the Law of Pennsylvania. The DC ruled that, ‘Amazon is not subject to strict products liability claims because Amazon is not a seller under Pennsylvania law and that the claims are barred by the Communications Decency Act because she seeks to hold Amazon liable for its role as the online publisher of the third-party content.’ The product was directly shipped to Oberdorf. The order of DC is rejected as the Francioni test is applied and the factor is supposed to explain the fact that the test guides if damages is caused by defects in the products supplied by a particular supplier, whether such supplier can be held liable.The dispute regarding the case is very interesting though the SC of Pennsylvania issued 4 factors to justify the sellers in the matter of liability. The factors being whether amazon –● only member of the marketing chain available to the injured plaintiff for redress● Imposition of strict liability upon Amazon would be an incentive to its safety.● In a position to receive reports of defective products● the actor can distribute the cost of compensating for injuries resulting from defects by charging for it in his business. It is held that Amazon is a ‘seller’ and is liable for strict product liability. It rationalized with the following factors:● The admission of the VP of Amazon that the precaution to ensure the third-party vendors and providing them with flexible legal procedure under the state laws is absent. Hence, Amazon now stands as the only member of the marketing chain available to the injured plaintiff for redress.● The strife is that there is a lack of direct relationship with product manufacturers but the court found that there is an agreement between Amazon and the third-party vendor that gives Amazon the sole discretion to accept or reject the product that is considered unsafe. Hence, imposing strict liability upon Amazon would be an incentive to do so.● The constant reports regarding the unsafe products to Amazon is one of the factors it can consider and remove the product from list and Amazon is in a better position as it has sole discretion to manage the listed products. Hence, this also favors imposing strict liability.● Leaving the customers unguarded is the situation of every customer since they have no knowledge of the whereabouts and whatabouts of the third-party vendor. But Amazon having authority and tie-up with them can keep
Doctrine of contra proferentem in insurance law
Contra proferentem rule is applied universally to interpret the ambiguities strictly in an insurance policy against the insurer and in favor of the insured even if both the parties had gone through the entire provisions of the contract(1). It is a contra-insurer doctrine best known for the construction of policy in insurance. The supreme importance is the intention of the parties which is similar in a way of interpreting the insurance policies(2). The vagueness and unclear draft is unavoidable which is a risk to the draftsman as per this ambiguity rule. “the party drafting an agreement should bear responsibility for any ambiguities in it, as ‘he is likely to provide more carefully for the protection of his own interests than for those of the other party(3).” This rule is applied when the party challenges the clauses or an entire contract before the court of law. The rule happens to be applicable only if it satisfies the three-step process(4):1. To determine the ambiguity, the court has to examine the entire contract language in the policy.2. When the court finds it is unclear, it looks forward to the foreign evidence and determines the intention of the parties at the time they enter into a contract. If such evidence dismisses the uncertainty, then the court allows the parties to perform the contract in the true sense as it is meant to be.3. When the court ascertained the fact that evidence is still obscure, then the rule of contra proferentem or “guilt of the drafter” is applied. The Supreme Court held in a recent decision that, “The Common Law rule of construction ‘verba chartarum forties accipiuntur contra proferentem’ means that ambiguity in the wording of the policy is to be resolved against the party who prepared it.(5)” The same court in the same case held that before applying this rule, the court had to examine the ambiguity in the contract. The fact is, there is no difference between insurance and ordinary contracts. The court has no duty to draft a new contract but only to interpret and find if the words put by the parties in the contracts are reasonable(6).In the case of K Mohan Das(7), the question of interpretation arose regarding the clauses executed in Voluntary Retirement Scheme 2000 and Judge Lodhia held under the knowing fact that the bank has drafted the scheme that, “the optees of voluntary retirement under that Scheme will be eligible to pension under Pension Regulation, 1955,” so in order to seek the clarification, the risk lies upon the bank. But this case has no relevance if the parties to the contract have mutually agreed upon the terms of the contract ‘with open eyes’ even if there is an ambiguity, i.e., the situation will not attract the contra proferentem rule(8). In absence of such ambiguity, the party to the policy cannot invoke the principle of this rule to his case and also, in presence of such ambiguity but sine qua non being the policy language cannot invoke to interpret the clauses to decide the issues involved in the case, the doctrine of contra proferentem cannot be applied(9). It is an established rule of interpretation that the court has to decide on the clearness of the words to the contract regardless of the consequences.EXEMPTION CLAUSE AND CONTRA PROFERENTEM RULESushilaben Indravan Gandhi and another v. The New India Assurance Company Ltd(10)A case of a motor vehicle accident that happened 23 years ago heard before the Supreme Court, claiming insurance compensation resulted in an interpretation to the exemption clause. The contract of insurance made between the deceased or insured, who was an eye doctor in a hospital. The legal representative of the insured claimed for the insurance compensation as the insured was not an ordinary employee but a professional who cannot be covered under the Workmens’ Compensation Act, 1923. As per the policies of the hospital. if the insured is considered as an employee of that hospital, he cannot claim such compensation.The Apex Court raised an issue about whether the insured was an employee. Based on the observations made by the Court of law, it cleared the ambiguous issue. It held that the insured, being a professional, qualified to do the services cannot be treated as an employee. Instead he was an independent professional. This resulted in the applicability of the contra proferentem rule, which allowed the court to order the insurer to pay the compensation of Rs. 37.5 lakhs. The ambiguity is resolved.It is further held that medical professionals can never be mistaken as ordinary employees of any organization or an establishment since the contract they make is ‘contract for service’ and not ‘contract of service.’ The ‘contract for service’ is a contract made between the professionals. Therefore, the insurance company or the insurer is bound to pay the compensation. The Hon’ble Supreme Court applied the rule in this case of ambiguity, “it is well-settled that exemption of liability clauses in insurance contracts are to be construed in the case of ambiguity contra proferentem.(11)”The insurer or the contract of the insurance has no permission to state the rule of contra proferentem does not apply to the wordings and language of the contract. The Supreme Court of Canada has a say in the matter, “Equitable insurance principles of subrogation, though not the principle of interpretation contra proferentem, may be altered by the terms of the contract between the parties.(12)”LIMITATIONS TO THE CONTRA PROFERENTEM DOCTRINEThe applicability of this rule is often to those contracts that are genuine and hold inadequacy. Nevertheless, both the parties knowingly and wantonly put on the clause that is ambiguous, then the doctrine is of no use. The rule has no applicability when the ambiguity is not genuine. It mostly occurs in commercial insurance contracts.Commercial insurance contracts are contracts that are entered between two sophisticated companies where both the policyholder and the insured are well aware of the clauses in the contract. While procuring the contract, the policyholder offers the insurance broker or the respective counsel of their entity to make them understand the clauses and negotiate
Causa proxima on fire insurance
The Latin phrase ‘Causa Proxima’ means proximate cause. The cause that is caused at the initial stage which results in a loss or damage. All the causes that caused previous to the immediate cause which is remote were rejected in this case. Lord Bacon in dealing with causa proxima states: “It was infinite for the law to consider the causes of causes and their impulsions one of another therefore it contended itself with the immediate cause.” According to the principle of proximate cause, an Insurance policy is bound to provide compensation only for such loss as are caused by the peril covered by the policy. When the loss is the result of two or more causes, the proximate cause means the direct, most dominant and most effective of which the loss is a natural consequence(1).Therefore, the proximate cause is defined as an action that leads to an unbroken chain of events ending in someone suffering loss. Tests for determination The rules for the determination of causa proxima are formulated by the judiciary.● When the perils happen as a chain of events, the perils and the consequences are to be treated concurrently and follow one another.1. when the peril insured succeeds the peril excepted, then the insurer is not liable. The loss was caused immediately by the expected peril. The insured premises was burnt due to an earthquake fire and hence no causa proxima(2).2. In Lawrence v. Accident Insurance Company(3), the insured peril precedes the expected peril here. The insured died after falling on the train track but the death was caused by the hit of a train and not by falling.● When the perils are not a chain of sequence but a broken one. Then, the perils are independent of one another.1. the insurer is not liable for any loss that is caused by the excepted peril but liable for the insured peril.2. If an expected peril precedes the insured peril then the insurer is liable for the loss caused by the insured peril. Taking advantage of the fire that broke out in the insured premises, the mob entered and committed theft causing to break off the plate glass which was the insured peril. The court held that the insurer is liable as the damage that occurred was by the mob and not by fire as covered in the clauses of the policy(4).● The perils found are acted simultaneously. In such cases where the parties cannot invoke the legal provisions, they have to compromise with the help of insurers based on the facts interpreted.1. If excepted peril is distinguished from the insured peril, in such case the insurer is liable only to the insured peril.2. In case of undistinguishable losses, the insurer is not liable. APPLICATION OF THE DOCTRINE In 1828(5) The insured premise was damaged by fire during the process of demolition. It was held by the court that the fire was the causa proxima because even though it was a wall which created the damage but the injury caused to the insured was due to fire. The insurer should pay for the loss caused.To determine the liability of insurers for loss caused by the immediate cause, there are terms in the policy as exclusions and their wordings such as, “directly or indirectly caused by, resulting from or in connection with” or “unless damage by a cause not excluded in the policy ensues and then the Company shall be liable only for such ensuing damage” which all reflects the application of the doctrine.The applicability of proximate cause in fire insurance as observed in the case of Stanley v. Western Insurance Co.(6) is stated that: “Any loss resulting from the fire and resulting from the necessary and bonafide efforts to put out the fire whether by the spoiling of goods by water or throwing the articles out the window or pulling down a house for the purpose of preventing the spreading of the flames are within the policy of fire insurance.” The application of the legal maxim “causa proxima, non remota, spectatur” is allowed(7). A warehouse consisting of cotton was covered in a fire insurance policy. The exception to this case is“by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power, explosion, earthquake, or hurricane.” In this case, the fire did not directly catch in the place where the cotton was stored but in a warehouse across the street. Because of that, there was a major explosion which resulted in a fire of cotton in an insured’s warehouse. The fire spread which destroyed the whole cotton was a continuous action and immediate cause of the explosion of an actual fire. WAIVER OF CAUSA PRÓXIMA The policy wordings or the terms and conditions in the policies help the insurers to waive the causa proxima doctrine. The expected perils included.Everett v. London Assurance Company (1865):A third person’s property was damaged which is half-mile away. The loss resulted from an explosion. Caused by fire. The question was whether the immediate cause was fire or explosion. It is said by Wiles J., that the damage should be immediate/proximate but not remote. There is no chain of events by fire, but because of the air spread from the explosion triggered by the fire in some other place and it cannot be the proximate cause. Hence, no application of causa proxima.The insured was involved in moving the goods of his shop to a safe house when the fire broke out in the adjacent building which resulted from a chance for the looters to loot the property by breaking down the insured’s shop windows and shutters causing damage. The claim made by the insured was held not liable. The damage and loss caused were completely because of the mob’s action and not fire(8).Excepted perilA case(9), where the court held in favor of the insurer and allowed the same to repudiate the claim. where the insured entered into a policy that covers fire. After some period of entering into a policy, the building of the insured caught
What happens to our Unclaimed bank deposits
The unclaimed bank deposit is the deposit amount of a deceased person that was left unclaimed from the bank. The usual circumstances when a person dies, is to report the death to the authority of the bank and claim the amount of the dead person’s account. The two things the bank takes into hold are: ● If the bank account is joint (means that have survivor clause); single account (no survivorship clause but have a nominee)● If the account has no nominee How do we claim? RBI made a press release to not make any hardship for the claimant and settle the claim within 15 days’ time.For a joint account, the co-account holder is eligible to run the amount or withdraw the money. The same goes when there is a nominee and the nominee/legal heir has ATM access to the deceased account holder, the money can be withdrawn. Or the nominee/legal heir can claim the amount by producing the death certificate and copy of the ID proof of the deceased. The other documents required:● The deceased account holder original passbook● PAN card● ID proof● Death certificate● ID proof and address of the nominee● ATM card and cheque book (if the holder hold) When the nominee is absent or not registered, or when the account is single and has no joint account holder and the account holder died intestate without any Will, then the legal heir shall claim the amount. The documents required: ● Death certificate (photocopy)● Address proof, ID proof of the legal heirs● Revised Claim Form● Declaration in the Revised Claim Form● Letter of indemnity Another Scenario There is a possibility where the legal heirs of the deceased account holder have no idea of the deceased having a bank account. The banks follow the RBI guideline regulation that states, if any of the deposit bank account is not in operation for more than 10 years, then the deposit amount in the bank account shall be directly transferred to the Depositors Education and Awareness Fund (DEAF) and it is introduced in the year 2014 by the RBI, DCBR.BPD.(PCB/RCB).Cir.No.18/13.01.000/2014-15 Yearly, many of the bank accounts go unclaimed and thousands of crores money transferred to the Fund. But RBI has the regulation given to the banks to provide details of the unclaimed accounts in their respective websites so that when the legal heir of the deceased account holder comes to the knowledge of the bank account, can claim the amount. The unclaimed bank details can be viewed in websites after providing the details required or asked in the criteria of the website like DOB, Passport No, PAN No. Procedures to claim unclaimed deposits:The legal heir, who wants to claim, fill and submit the unclaimed deposits claim form. After the thorough verification by the bank authorities, the amount will be settled or as per the request of the claimant, the bank account shall be brought back to operation. The information needed to fill out the unclaimed deposit claimant form:● Details of the claimant● Address and contact number of the claimant● Account number● The capacity of the claimant to the deceased a/c holder● DOB, Passport No, PAN No., and contact number● Other relevant documents to prove the capacity/authenticity. Authors:
SEBI and The Laws Governing Shares and Securities
SEBI is the Securities and Exchange Board of India that protects the interest of the investors in securities and to promote the development of, and to regulate the securities markets and for matters connected therewith or incidental thereto. The capital and securities market of India is monitored and regulated by SEBI. The Board was established under the SEBI Act, 1992. The SEBI is an administrative body and the Board consists of members who are officers from the Indian Union Finance Ministry and RBI. Functions and objectives of SEBI As mentioned earlier, the functions of SEBI are to protect, promote and regulate the security market. In order to protect the investors’ interest, the SEBI look into the matters that cause commotion like –● insider trading (to avoid buying own shares);● price rigging (malpractices that affects the market price and create loss for investors);● to keep unfair and fraudulent trade practices under control;● awareness strategy for the investors to avoid such malpractices. To regulate and develop, SEBI took several steps like –● prepared guidelines;● code of conduct;● levying fees;● regulation to follow while undertaking inquiries;● to provide, promote and launch training sessions, online trading options, and DEMAT. The Government has established a quasi-judicial, quasi-legislative and quasi-executive body and that is SEBI. Insider trading The term ‘insider’ in the Insider trading is defined in s.2(e) of the SEBI (Prohibition of Insider Trading Regulations) Act, 1992. The trading though is generally considered as illegal due to the information of those bonds, stocks and securities that trade here is the secret information of the company and the investors or the insiders who have the access to such information may use it for their own profit. The Patel Committee defined insider trading as “trading in shares of a company by the persons who are in management of the company or are too close to them, based on and disclose the price sensitive information, regarding the working of the company which they possess but are not available to others.” The insider trading is first made illegal in USA in the case of United States v. Newman(1). There are cases when India has less to no regulations regarding insider trading and when the insider trading cases were filed before the court, Indian courts relied on the foreign laws to decide the case. One such case is Hindustan Lever Limited v SEBI(2). In India, there are several strict regulations and recognition in the PIT Act. Till date, the Act has been amended several times, new Chapters inserted and new definitions of terms. The Act is amended thrice and the amendment of 2002 prohibits the deal of insider trading. Indiabulls Insider Trading case(3) The insider trading standard is what the non-executive director, CS of the company failed to comply with. The fact is that the Price Sensitive Information is associated with the possession of the non-executive director and the employee of the firm. The firm sets a period for trading (trading window) the securities and these people have violated the specified period and performed the trading after it is closed. The profit is worth more than 69 lakh rupees. After the investigation, the fine of Rs. 25 lakhs for each is placed. Also, when the subsidiary company was selling its stake for 685 crores, the shares worth 8.55 lakhs were bought by the above said non-exec director and the employee. Again, the trading period ended and violated the norms. The consequent violation is noticed by the authorities and it is believed that the actions are not in the interest of the securities market and also the insiders have misused their positions. The subsidiary India Bull is also equally responsible as it failed to notify the trading period. The monitoring of the same is also failed by the authorities of the company. The order to take criminal action against the non-executive director and her husband/employee is made by SEBI along with the direction to confiscate the 87 lakhs that were unlawfully gained by them. Rakesh Agarwal v Securities Exchange Board of India(4) The appellant party Rakesh Agarwal is MD of ABS Industries. Along with a German Company, he entered into an agreement which resulted in him undertaking 51% shares of ABS. There are allegations that said purchase is made even before the announcement of such purchase. Through the investigation of the said allegation, SEBI found that the Managing Director through his Brother-in-law sold shares before the German Co.’s substantial acquisition. Hence, the appellant is guilty of insider trading. The intention to make profit is in question and that the law prior amendment is that insider trading on the basis of unpublished price sensitive information is a sine qua non. To take criminal action against the accused, the proof of the mens rea and unfair gain is must. The Appellate Tribunal, after making through study and interpretation of the concept ‘insider trading’ and its jurisprudence held that the regulations of SEBI prohibiting the insider trading, the motive shall be the acquaintance. It is true that the regulation does not specifically bring in men’s Rea as an ingredient of insider trading. Likewise, a case in 2017 where the UPSI of several entities was leaked in whatsapp prior to the announcement made by the company. Even though there is no criminal intent and no knowledge of the actual financial figures and earnings, the information leaked is UPSI. The information may have been received from others but such disclosure is a breach of rule of parity and is a violation of provisions 12A(d) & (e) of SEBI as well as Regulation No. 3(1) of PIT, 2015. Hence, the penalty of Rs. 15 lacs is charged to each Notice. Market Manipulation In the matter of IPO Irregularity – Chandrakanth Amratlal Parekh case(5) An ad interim ex-parte order was passed after the report of irregularities in the transactions. The order itself is a show cause notice. The investigation took place. SEBI after the completion of the investigations issued a show cause notice that states there is a
The Law Governing Market Competition in India
I. ABUSE OF DOMINANT POSITION The company that acts with negative intention to dominate the competitors in the market. Such kind of business practice is considered to be anti-competitive. The abusing position is prevented through section 4 of the Competition Act. Certain activities that imply the abuse of dominant position are: “impose of unfair or discriminatory condition or price in purchase or sale of goods, limits or restricts the production of goods or services or market therefore, technical or scientific development relating to goods or services to the prejudice of consumers, indulges in practices resulting in denial of market access makes conclusion of contract subject to acceptance by other parties of supplementary applications and related to the subject of such contracts, or uses its dominant position in one relevant market to protect another relevant market.(1)” The dominant position of an enterprise can only be determined based on its position in the relevant market. Consequently, the relevant market shall be necessarily identified. The definition of the relevant market is defined in Section 2(r) of the Act: “the market which may be determined by the commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets.”The relevant product market and the relevant geographic market has been defined in section 2(t) and 2(s) respectively. The case(2) stated that in order to determine the relevant product market and relevant geographic market the commission has to comply with the following factors. Factors for relevant product market:● Physical characteristics or end use of goods● Price of goods or service● Consumer preferences● Exclusion of in-house production,● Existence of specialised producers and● Classification of industrial productsin terms of the provisions contained in section 19(7) of the Act. Factors for relevant geographic market:● Regulatory trade barriers● Local specification requirements● National procurement policies● Adequate distribution facilities● Transport costs● Language● Consumer preferences● Need for secure a regular supplies for rapid after sale servicesin terms of provisions contained in section 19(6) of the Act. Case Law:Google, a multinational tech Co., is ordered to have comply with the investigation procedure as ordered by the Competition Commission of India for violation of s.4 of the Act(3). i.e., abuse of dominant position. Under s.19(1)(a) of the Act, the case is filed as Google is believed to abuse its position in the OS market.The allegation is that Google has entered into agreements of MADA and AFA which is Mobile Application Distribution Agreement and Anti-Fragmentation Agreement with majority of the manufacturers. This agreement resulted in the pre installation of Google related services in the android mobile phones. Microsoft Windows and iOS are excluded from the primary relevant market since they are highly secured products that pay attention to the developers who are strictly not third parties.The pre-installation reduces the technological development as well as reduces the interest of the consumers to choose the relevant product of their choice. The mandatory tying up of the applications with the agreements is violation of s.4 of the Act. Google caused hindrance to the market in order to eliminate the competition by taking a dominant position.The position of google has put denial of market access and the commission directed an investigation to be made appropriately with proper examinations to the pre-installation conditions. The investigation was ordered under s.26 (1) of the Act. II. ANTI-COMPETITIVE AGREEMENTSAny agreements that are likely to cause AAEC are anti-competitive agreements. Such agreements are prohibited to prevent disputes in the market. There are two types of anti-competitive agreements: horizontal and vertical. The classification between them is stated in section 3(3) & 3(4) respectively. Horizontal agreementsThe easy term of identification for the horizontal agreement is ‘cartel’(4) and it is defined as: “cartel is therefore an association of producers who by agreement among themselves attempt to control the production, sale and price of the product to obtain a monopoly in any particular industry or commodity. Analysing the object of formation of a cartel in other words, it amounts to ending the trip practice which is not in the public interest.” The enterprises with similar level of business enters into this agreement and they determine the sale and purchase price directly or indirectly; limited and controlled production; collusive bidding; by dint of geographical location the markets are shared. When an enterprise acts in a collusive manner to obliterate the competition in the market and also does end up in exploiting the bidding process, it is considered to be a hard core cartel. When an agreement reaches a hard core cartel it is because it divides the market so that the matter shall be dealt with asperity(5). The commission imposed a fine which is twice its profit. When it comes to bid rigging, the court expects to have a conclusive proof to prove there is a parallel pricing in bidding among the bidders(6). Failure to do so does not make it an agreement. The court has also laid down a test in this case which is called ‘test of standard of proof.’Even though hard cartels are against the public interest, it raises a practice in the market to determine the price of sale and purchases. Such price fixation and collusion are very common elements of a cartel. It includes price recommendations and discounts(7). The enterprises in the pharmaceutical market include the enterprises who are wholesalers, suppliers, chemists, druggists, distributors, sellers, stockists and also those involved in manufacturing of the medicines. In this case, the association of drug dealers, chemists and druggists, and distributors, sellers and stockists have adopted the abuse of dominant position that is in breaking with the provisions of the Competition Act. The allegations are that there has been a civil dispute when the enterprises along with others stopped the supply of the products and that these associations have been using their dominance to enjoy the position they are in for the distribution and supply of the drugs. The court stated that there is a violation of s.3(3)(b) r/w s.3 (1) of the Act when the court found that
Law against Pornography in india
I. PORNOGRAPHY AND ITS TYPESThe expression pornography is defined as “relating or presentation sexual acts in arrange to cause sexual stimulation through books, films, videos, etc.,” and the expression ‘child pornography’ is defined under section 2(da) of POCSO Act, as “any visual depiction of sexually explicit conduct involving a child which includes photographs, videos, digital or computer-generated image indistinguishable from an actual child and an image created, adapted or modified but appear to depict but appear to depict the child.” The addiction to pornography escalates and desensitizes the behavior of both men and women in a relationship. Homosexual pornography is not widely available as it is considered taboo against socio-culture but the statistics show it is mostly viewed in India. II. PORNOGRAPHY – LEGAL PROVISIONS IN INDIAIndian Penal CodeAn act or content is said to be obscene when it is lascivious or appeals to be of the prurient interest as mentioned in section 292. The sale of such content through books, paintings, pamphlets, writing, drawing & other kinds of representation and the sale, distribution, publication, import, export, advertisement, and/or make profit from committing such offense is punished with two years of imprisonment or fine or both.The exception to this is the publication for the public good and bonafide religious purposes.Section 293 deals with the above-mentioned acts to young persons who are not legal to have access to adult publications. The sale, distribution, and publication to persons below 20 are punishable with imprisonment of seven years or a fine.Information Technology Act, 2000Chapter XI Offences Section 67A and 67B of the Act deals with the obscene information publication or transmitting in the digital/electronic form and such publication is punished with imprisonment of five/ten years or a fine that extends up to one to two lakhs rupees. Section 67B deals with sexually uncensored content uploaded in electronic form which directly or indirectly involves children. It results in search of such content in the search engine with downloads and advertisements, and if any of the material is involved in abusing children, shall be punished with imprisonment of five to seven years or a fine that extends up to ten lakhs.The violation of privacy where a private area of any person is being captured under any circumstances shall be punished with 3 years of imprisonment or fine or both as per s.66E.Many GOs have been passed to ban the upload and remove the obscene content from online platforms or websites as specified in s.79(3)(b) of the Act. Also, Digital Media Intermediary Rules, 2021 ensure not to host any kind of obscenities and pornographic content that intrude the privacy of others.The Indecent Representation of Women (Prohibition) Act, 1986The ban of any material on women that is considered ‘indecent’ under this Act is punishable. As per Section 2(c), The indecent representation means the figure of a woman; her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals.Protection of Children from Sexual Offences Act, 2012Section 13 of the POCSO Act prohibits the use of children for pornographic purposes. Section 14 punishes such persons with imprisonment of a minimum of 5 years or a fine or both. POCSO Act also punishes a person for storing/ possessing child pornography with imprisonment of 3 years or a fine up to Rs.5000/ Rs.10,000 for subsequent offenses, according to Section 15. III. LEGALITY IN INDIA – NEITHER LEGAL NOR ILLEGALThe publication of obscene material and its transmission is illegal while watching or viewing porn on personal devices and downloading is not illegal. Forcing a person to view such adult material is illegal. Several laws in India are different compared to other countries. and viewing porn in our country is a thing where it is neither made illegal nor legal. Having possession of child porn material is illegal and using a child for such purposes is an offense and is punishable under the POCSO Act. Section 14 and 15 of the POCSO Act states the punishment for offenses of child pornography used for commercial purposes.V. KAMLESH VASWANI V. UNION OF INDIA(1)The petition is filed seeking the ban of availability of the porn materials and criminalization of such harmful acts. The petition focuses on how graphic the materials can be and the lust it creates among the minds of the viewers which cannot be erased. The pornographic materials are brutal, violent, and abusive. In India, it creates a ‘n’ number of social and cultural issues and many of the taboos related to it. It is believed in India that the content degrades women and gives no equal treatment to women as enshrined in the Indian Constitution. So, the prayer is to prohibit the sources that give access to such content.Concerning the precedent, the court said “Only those sex-related materials which tend ‘exciting lustful thoughts’ can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards. (2)”The ban on public access is requested and not any private viewing. The Constitution gives an individual the liberty to view porn in private and enjoy the liberty of the same. The private happiness and the intimacies are listed out in R Rajagopal v. State of TN(3) and the right and liberty of privacy as per Art.21 are highly explored and expanded in another case by the High Court of Delhi.There is inconclusive proof on the concerns about unequal treatment of women in pornography as it is always considered consensual while creating the content material. But the court ensures the filtration in the genre and classification and ban on extreme explicit uncensored videos and contents from the websites.VI. RAJ KUNDRA, BRITISH-INDIAN BUSINESSMAN CASE – TODAY’S DISPUTE AND DEBATESAs we all know, the production, transmission of porn videos in India is illegal. Raj Kundra, a known businessman, is accused of producing films and is charged for several offenses under sections 292 and 293 of IPC, also for
Rights of persons with disability
The definition of the Person with Disability of 1995 Act is replaced by the definition of the 2016 Act. A person with disabilities means “a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.” Rights provided in RPwD Act:The 2016 Act has provided disabled persons a right to legal capacity which in simple words we can say: an equal recognition.The rights include (1)—1. Right to inherit property2. Voting rights3. Educational rights4. Reproduction rights5. Right to choose a legal guardian; which includes the right to change the guardian as well.6. Reservation rights consisting of –● 4% reservation to all persons with disability for employment● 5% in higher education● 5% reservation that prioritize the women are for: housing; the land of cultivation; schemes relating to scarcity and poverty; and the allocation of land at concessional rates.● The reservation of 1% for the people with specific nature of disabilities like autism disorder, SLD, locomotor disabilities, mental illness, and the intellectual disability7. Accessibility rights: transport in all modes; communication and information technology and ensure that the PwD should be provided with all the contents they need in a form that is feasible for them to access. RTE and the PWD & the RPwD Act The term “inclusive education” in the RPwD Act has come with statutory backing. It is defined as “a system of education wherein students with and without disability learn together and the system of teaching and learning is suitably adapted to meet the learning needs of different types of students with disabilities.”Section 12(1)(c) of the Right to Education Act mandates the state to provide free and compulsory education to the children belonging to the weaker sections and underprivileged groups including the ‘children with disabilities.’ It further urges the mandate to reserve some percent, i.e., 25% of the strength of a class to such children in private schools and the schools that are categorically specified for this purpose.The three major glitches that distress these functions which do not make the children with disabilities fit in are: collaborating the disabled children with other groups; neighborhood criteria restriction; and the lack of the environment. The outcome of the lack of proviso for special category or reservation for children with disabilities in the s.12(1)(c) is the admission of the other group children getting admission under the 25% of the class strength category and the disabled children being left out.Regarding this, some states have been taking valuable and useful steps for them while most of the cities are still in ignorance. Pramod Arora v. Hon’ble LG of Delhi(2) Facts: The lack of guidelines in the institutions to provide proper care, attention, and infrastructure to the students with special needs is making the opportunities of the disabled and special children very less. The submission is to provide access to children till the age of 18 years in an apt and suitable environment. The advantages of such children have to be provided since their preliminary education to gain access and the benefits, if not they would never be able to obtain the advantage of it. The main argument made is “The entire object of full participation of differently-abled persons in national life would be defeated if they are screened and discriminated at the primary education stage itself.” Held: For the children with special needs and care, it is a necessity to ensure the education of such children till they attain the age of 18. The nature of provision under RTE is imperative and essential. So, the court held that“The neighborhood principle cannot prevail over the need to admit CWSN if in a given case, the school is equipped to deal with or handle some or one kind of disability (blindness, speech impairment, autism, etc). The state, therefore, has to tailor appropriate policies to optimize admission of CWSN in those unaided schools, in the first instance, which are geared and equipped to deal with particular disabilities, duly balancing with the dictates of the neighborhood criteria.”Without considering and contemplating the neighborhood criteria, admission for 3% of seats has to be allotted to disabled children under the EWS quota as regulated by the Delhi Government in its circular. The circular of guidelines is thereby issued especially after the judgment in the Pramod Arora case.AccessibilityThe observation and principles laid down about judicial precedents are as follows:In Rajive Raturi v. Union of India,(3) The court looked into the rights of disabled persons at the international level using the International Human Rights Law and stated that,“Equality, in international human rights law, founded upon two complementary principles: non-discrimination and reasonable differentiation. Non-discrimination seeks to ensure that all people can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities of equal participation. Equality not only implies preventing discrimination but remedies discrimination against groups suffering systematic discrimination in society i.e. it embraces the notion of positive rights, affirmative action, and reasonable accommodation.”The fact that there is a special need to provide for persons with disabilities with proper care and safe access to transport and roads is in no denial.HARMONISED GUIDELINESThe directions issued by the Ministry of Urban Development, which is named ‘harmonized guidelines’ were submitted by the petitioner before the court of law. The court pointed out the guidelines related to transportation. The harmonized guidelines were pulled out and made in the case of Nipun Malhotra vs Government Of Nct Of Delhi & Ors. (4)“11.7 Public Transport11.7.1 Land Transport11.7.1.1 General● Buses, trams, taxis, mini-buses, and three-wheelers should be designed as far as practicable to include facilities that can accommodate people with disabilities.● New vehicles when purchased should comply with accessibility standards to enable all people, including those in wheelchairs, to use the service provided.● Equally important, travel routes to bus stops should also be barrier-free to ensure that persons can travel from their homes to their chosen pick-up point. Training should be provided for drivers to help them become aware of the needs