Competition Law: Mergers And Acquisitions
Introduction Have you ever wondered how large corporations collaborate or acquire one another? It’s more than just a business choice; it’s a procedure governed by rules and regulations to maintain market equity. Competition Commission Of India in preserving market competition In India, Competition Commission of India (CCI) oversees those procedures by reviewing and assessing mergers and acquisitions. CCI serves as the fair trade regulator and antitrust ombudsman of Indian enterprises. CCI was established under the provisions of Competition Act, 2002.[1] The Goal of the Act is to make sure one company doesn’t get too big and eliminate the chances of other companies competing which will create an appreciable adverse effect on competition. For example: PVR Ltd and Inox Leisure Ltd, India’s top two Multiplex Chains, merged because the merger plan did not require CCI approval because both were closed for months due to the pandemic, affecting their combined sales of less than ₹1000 crore. There have been allegations that the PVR-Inox transaction created a Competition gap since they would not have qualified for exemption from statutory merger scrutiny by CCI if it had not been for COVID-19 lockdowns. However CCI squashed those allegations stating that any fear of probability of anti-competitive practices by an entity cannot be a subject of investigation (Section 29 of the Act governs the “procedure” for the investigations) .[2] When Foreign enterprises enter the market through merger or acquisition, the CCI will scrutinize whether they comply with the Competition Act, 2002. One such notable example is Walmart’s (USA corporation) acquisition of Flipkart (Indian e-commerce company) in 2018. CCI approved the deal after accessing its impact on competition in the market. The merger intensified Competition in India’s e-commerce sector.[3] Another example is Acquisition of a 98% share of Essar Oil Limited ( Indian company) by Rosneft( Russian based Oil Company), Trafigura, and United Capital Partners Consortium in 2017 which was authorized by CCI and paved the way for substantial foreign investments in India’s energy sector.[4] Effects of the Amendment in 2023 ● India recently approved the Competition (Amendment) Act, 2023 which made many modifications to the Competition Act of 2002.[5] One of the key modifications brought about by the amendment is the introduction of a fresh threshold for deal value. Transactions like amalgamations, acquisitions or mergers that exceed ₹2000 crore and involving entities with considerable business presence in India will require clearance from the CCI. Section 43(a) explains gun jumping imposing penalties if the companies proceed without the approval of CCI after they exceed the threshold limits. Gun-Jumping Accusation: Zomato – UberEats merger avoided being scrutinized under India’s anti-unfair competition laws by using a small transaction exemption. The Act, Section 5(a), necessitates CCI scrutiny, yet the deal escaped it using the exemption Despite being considered too small for review initially, the deal is now under investigation because the regulator has the authority to look into transactions that might impact fair competition, even if they initially fall below the scrutiny threshold. ● This new threshold guarantees that even deals that would normally fall within the minimum exemption are subjected to inspection if their transaction value exceeds the statutory maximum. Example of CCI penalties issued for non-compliance The CCI fined an investment manager ₹20,00,000 for failing to report an acquisition involving real estate and private equity fund management firms. The penalized Investment Manager assumed managerial authority of venture capital and alternative investment funds registered with SEBI as a result of the purchases. Despite the investment manager’s claim of a lack of direct asset ownership, the cci found that the transaction gave the funds operational control over their assets. The CCI highlighted that control over portfolio entities was contingent upon shareholding and contractual rights held by the Investment Manager. Regarding turnover calculations, the CCI emphasized that acquiring material influence over an entity mandated considering its entire financials for threshold determination[6] ● The revision has also been shortened for executing combinations from 210 days to 150 days. ● In addition, the CCI must now make an initial opinion on a combination within thirty days; otherwise the combination is automatically accepted. Detailed Explanation of Section 5 and Section 6 In the Competition Act, Section 5 and Section 6 specifically deals with combinations and its Regulations. Section 5 sets a benchmark for what constitutes a net worthy merger or acquisition and warrants further scrutiny by defining the thresholds for combinations and determining asset values. Section 6 is considered as the “permission slip” phase because enterprises that merge must inform CCI upon execution of agreements in relation to such combinations. Section 5: Conditions for Combinations Details Acquisition Thresholds Acquisition or merger leading to a combination if: Limit for Enterprise level : In India- Assets>₹2,000crores or Turnover > ₹6,000croresOutside India-Assets>$1bn with at least >₹1000 crores in India ; Turnover> $3bn with at least >₹3000 crore in India Acquirer and acquired jointly have assets or turnover exceeding specific thresholds in India or internationally. Limit for Group Level: In India-Assets>₹8000 crore or Turnover >24000Outside India- Assets>$4bn with at least >₹1000 crore in India or Turnover>$12bn with at least >₹3000 crore in India[7] The resulting group, post- acquisition, meets set asset or turn over criteria Control Over Similar Enterprises The regulation applies when a person/ entity gains control over an enterprise engaged in similar/ substituted goods or services if: When a person already in control gains further authority over enterprises in comparable goods/ servicesEnterprises jointly controlled possess assets or turnover meeting defined thresholdsThe resulting group holds assets or turnover beyond specified limits after acquisition. Section 6: Regulation of Combinations Details Boundary Prohibits combinations likely to significantly affect competition Notice to CCI Entities proposing combinations must notify the Commission within thirty days. Waiting period of one hundred and fifty days imposed after notification to the Commision or its orders The Commission processes the notice as per specified provisions. Exceptions Share subscriptions, financing facilities or specific acquisition by financial entities are exempt from regulations ●
Fashion And IPR
Introduction– Intellectual property (IP) encompasses intangible creations of human intellect[1], and intellectual property rights serve as a set of regulations safeguarding these creations, including copyright, patent, trademark, trade dress, and trade secrets. The significance of protecting intellectual property in the fashion industry is growing, given its vast scope in designing, manufacturing, and selling various items. Registering IP is crucial to prevent the unauthorized replication of fashion trends amid the global emergence of diverse styles. Amidst a market flooded with counterfeit products, IP registration provides recognition to designers and manufacturers, acting as a deterrent against duplication or imitation. While producing similar products with different labels is not inherently unlawful, legal action can be taken if the resemblance is deemed deceptive. Notably, major fashion brands invest significant sums in lawsuits against counterfeiters to protect their unique designs. Original work protection is essential as new market entries often lead to imitations rather than the creation of original products. Intellectual property rights play a pivotal role in enhancing a brand’s reputation, fostering reliability and authenticity in the eyes of customers within this competitive market. Fashion And Copyright- Copyright, defined as the legal entitlement to reproduce something, is governed by The Copyright Act, 1957. It ensures that the original creators and those authorized by them hold exclusive rights to replicate their creations. Copyright protects all forms of creative, artistic, musical, and literary works, including artistic designs on textiles, fabrics, apparel, and garments[2]. According to Section 2(c) of the Copyright Act of 1957, artistic design work, encompassing paintings, sculptures, sketches, or any unique artistic creation, is safeguarded[3]. However, the functional aspect of a design is not covered by copyright; instead, The Design Act, 2000 safeguards the aesthetic and design elements like shapes, patterns, and colours for 15 years, with registered designs automatically gaining copyright protection. The Copyright Act grants a ten-year protection period for designs from the date of registration, and copyright lasts for the author’s lifetime plus 60 years from their death. Notably, only artistic designs or architectural works fall under copyright protection, leaving items like clothing and footwear excluded. Copyright plays a crucial role in the fashion industry, safeguarding the creativity of artists, such as fashion illustrators. For instance, a fashion illustrator’s work can be protected from unauthorized replication through copyright, ensuring exclusive usage by the creator or those permitted to use the design. Section 15(2) of the Copyright Act specifies that no copyright can subsist in drawings and sketches under the Indian Copyright Act once they exceed 50 reproductions.[4] A legal precedent in the case of Unicolor, Inc. v. Urban Outfitters[5], Inc highlighted that the print pattern of a woman’s dress can be copyrighted, and infringement may lead to legal action. Fashion And Trademark- A trademark, as defined by the Trademark Act, 1999, is a distinctive sign that sets apart the goods or services of one company from those of others[6]. It plays a vital role in averting confusion among consumers about brand elements like names, symbols, and quotes. Trademarks, exemplified by recognizable symbols such as Nike’s tick mark, Adidas’s three stripes, Christian Louboutin’s red soles, and Bettina Liano’s pocket stitching, provide exclusive recognition to brands. Major players like Zara, H&M, Michael Kors, and Louis Vuitton use trademarks unique to them, enhancing their visibility in a competitive market. Registering a trademark is essential to shield brands from imitation, ensuring they don’t bear an identical mark that could mislead customers. The term “trade dress,” a subset of trademark law, encompasses a product’s overall design, including exterior and interior features, packaging, size, texture, colour combinations, and arrangement. It also extends to the distinctive colour and sound of items, like the specific style and colour of an Adidas shoe. Designers often opt for trademark protection over designs and patents due to its cost-effectiveness and efficiency. To register a trademark, designers can complete the e-trademark application on the Intellectual Property India website under the Trademark Act, securing protection for their products.[7] Fashion And Patent- A patent, granted under the Patent Act, 1970, and the Patent Rules, 2003, is an exclusive right for an invention – be it a product or a process that introduces a new method or provides a technical solution to a problem[8]. Governed by patent law, it serves as a property right, allowing the holder exclusive benefits from the invention for a limited period. This exclusivity prevents others from selling, manufacturing, or utilizing the innovation. There are three primary types of patents: utility patents, plant patents, and design patents, offering protection for 20, 14, and 20 years, respectively, from the filing date. Once this period concludes, the invention enters the public domain. While the fashion sector infrequently uses patent law, mainly because artistic creations can’t be patented, it is more prevalent in the technological and industrial sectors. In fashion, patents are typically granted for technical and industrial innovations, such as wrinkle-free fabrics or water-repelling textiles. Unlike design patents, patents for new creations like a pair of shoes are not feasible. Obtaining a patent involves disclosing technical information about the invention in a patent application[9]. Notably, patent registration is a costly and time-consuming process, exemplified by cases like NIKE, Inc. v. SKECHERS USA[10], a widely-known instance of patent violation. Nike Inc. sued Skechers USA for using footwear cushioning originally invented by Nike, highlighting the frequency of patent infringement lawsuits in the fashion industry. Conclusion- The global fashion industry is experiencing remarkable growth, continually evolving with the creation of new styles and designs. Intellectual property plays a pivotal role in safeguarding these developments, making the use of copyright, patent, trademark, and other protections essential. Effectively securing innovations makes it challenging for copied products to proliferate, rendering infringement of intellectual property rights virtually impossible. In the symbiotic relationship between fashion and intellectual property, both are indispensable for each other’s advancement. Intellectual property laws provide crucial protection against the threats of imitation and plagiarism in the creative realm, not only for fashion but also for any industry driven by innovation. However, the existing provisions of intellectual property rights
Legalities Surrounding Organ Transplants In India
The demand for organ transplants surpasses the available donors, leading to the emergence of illicit practices like the commercialization of organ transplantation. In response, legislative measures were introduced to curb these activities. The legal framework for organ donation in India is primarily outlined in the Transplantation of Human Organs and Tissues Act, 1994 (as amended in 2014), along with the Transplantation of Human Organs and Tissues Rules, 2014. These laws aim to eradicate trafficking and prevent the commercial trade of human organs. Brain Stem Death Brain stem death is a crucial consideration in organ donation. A living individual has the option to become an organ donor and authorize the extraction of any organ or tissue for therapeutic purposes during their lifetime, following the guidelines outlined in Section 3 of the THOT Act 2014. Additionally, organ removal is permissible after the declaration of brain stem death. The act defines “brain-stem death” as “the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3 of the act;”[1] Under the act the definition for “deceased person” is defined as “a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place;”[2] Certification of “brain-stem death” in a patient requires evaluation by a Board of medical experts. This board includes the registered medical practitioner overseeing the hospital where the death occurred, an independent registered medical practitioner nominated by the initial practitioner, and a neurologist or neurosurgeon nominated by the registered medical practitioner. Suppose a neurologist or neurosurgeon is not accessible. In that case, the initial practitioner may nominate an independent registered medical practitioner, surgeon, or physician, along with an anesthetist or intensivist, ensuring they are not members of the transplantation team for the recipient.[3] However, the determination of brain death remains a controversial topic. In 2023, the Kerala High Court summoned a hospital and its doctors for declaring a patient dead without conducting an Apnoea Test, subsequently transplanting the liver to a Malaysian National.[4] Types of organ donation There are two primary categories of organ donation: i) Living Donor Organ Donation: During their lifetime, an individual can contribute specific organs to benefit others. This includes the option to donate one kidney (as the remaining kidney can sufficiently maintain bodily functions), a portion of the pancreas (with half being adequate for sustaining pancreatic functions), and a segment of the liver (with regeneration occurring in both the recipient and donor over time). A Living Donor is an individual, aged 18 or older, who voluntarily consents to the removal of one or more organs and/or tissues during their lifetime, following prevalent medical practices for therapeutic purposes. Subcategories of living organ donation include: Living Near-Related Donors: Human organs or tissues removed from a donor before their death cannot be transplanted into a recipient unless the donor is a near relative of the recipient.[5] section 2(i) of the act defines “near relative” as “spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter” Living Non-Near Relative Donors: These donors, not near relatives of the recipient, contribute organs out of affection, attachment to the recipient, or for special reasons. SWAP Donors: In cases where a living near-relative donor is incompatible with the intended recipient, a provision for swapping donors between two pairs is possible. This occurs when the donor from the first pair matches with the second recipient, and vice versa. However, this is only permissible for near relatives as donors. If a non-relative donor wishes to authorize organ removal for a recipient based on affection or special reasons, prior approval from the Authorisation Committee is necessary.[6] ii) Deceased Donor Organ Donation: After (brain-stem/cardiac) death, an individual can donate multiple organs and tissues, which continue to function in another person’s body. A Deceased Donor can be anyone, regardless of age, race, or gender, who becomes an organ and tissue donor after their death (brainstem/cardiac). Consent from a near relative or a person in lawful possession of the deceased body is required. If the deceased donor is under 18, consent must be obtained from one parent or another near relative authorized by the parents. The determination of medical suitability for donation is made at the time of death.[7] Punishments under the act Section 18: Unauthorized Removal of Human Organs Individuals providing services at a hospital engaged in such removal for transplantation purposes without proper authorization could face severe penalties, including incarceration for a maximum of ten years and a fine of up to twenty lakh rupees. If the perpetrator is a registered medical practitioner, additional measures may be taken: · The Appropriate Authority will report their name to the State Medical Council. · The Council may initiate disciplinary action, including removing the practitioner’s name from the register: · Three years for the first offense. · Permanent removal for subsequent offenses. Moreover, subsection (3) specifies that individuals rendering services at a hospital involved in the unauthorized removal of human tissue may encounter: · Imprisonment for up to three years. · A fine of up to five lakh rupees. Section 19: Commercial Transactions Involving Human Organs Anyone involved in activities such as making or receiving payment for the supply of human organs, seeking potential donors, or initiating transactions may face Imprisonment for a term not less than five years but up to ten years and A fine ranging from twenty lakh rupees to one crore rupees. Section 20: Violation of Act Provisions and Rules Section 20 deals with the punishment for violating any provision of this Act, any established rule, or any condition outlined in the registration granted under this Act, in the absence of specific penalties elsewhere. Individuals contravening such provisions may be subject to: · Imprisonment for a term up to five years. · A fine extending to twenty lakh rupees. [1] section 2(d) of the Act. [2] section 2(e) of the Act. [3] section 3(6) of the Act [4] Order
Blasphemy Laws in India: How India Balances Freedom of Expression and Religious Sentiments
Introduction Blasphemy laws in India are a contentious subject, with the recent controversy involving Bollywood actor Ranbir Kapoor adding fuel to the debate (no pun intended). Kapoor got into legal trouble when a video from his family’s Christmas lunch became popular online. It showed him dousing a cake with alcohol and lighting it up while saying “Jai Mata Di.” This resulted in a complaint accusing him of hurting religious feelings and the filing of an FIR. The complainant claimed that Kapoor’s actions insulted Hindu beliefs.[1] While most of us might it absurd, such lawsuits are common in India. Let us examine the legal framework that enables such complaints to be filed. Current Legal Framework Section 295A of Indian Penal Code states, “Whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.” Section 295A is often invoked along with section 153A of the Indian Penal Code which penalizes promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to the maintenance of harmony and Section 505 of the IPC that punishes statements conducing to public mischief. If someone engages in online speech that could lead to charges under Section 295A IPC, Section 66A of the Information Technology Act, which penalizes sending offensive messages through communication services, would be applicable. However, Section 66A of the Information Technology Act, 2000 was declared unconstitutional by the Supreme Court of India in Shreya Singhal v. Union of India, (2015) 5 SCC 1, due to its “vagueness” and infringement on free speech. As a result, it is no longer valid. Recent legal developments Section 299 of the Bharatiya Nyaya (Second) Sanhita, 2023 mirrors the IPC provision, emphasizing the consistent legal stance on blasphemy. Historical context of blasphemy laws in India The amendment to section 295 was a response to the Lahore High Court’s acquittal in 1927 of a case known as Rajpaul v Emperor, commonly referred to as the Rangila Rasool case, under Section 153A of the IPC. This case revolved around the publication of a tract called Rangila Rasool, containing scandalous references to Prophet Mohammed’s personal life. Despite acknowledging its offensiveness to the Muslim community, the Lahore High Court ruled that the writing couldn’t legally sustain prosecution under Section 153(A) because it didn’t incite enmity or hatred between religious communities. the judgment was so controversial that the publisher of the tract was murdered in court. The Muslim community’s outcry for a legal change resulted in the enactment of Section 295A.The Select Committee’s report before the enactment stressed that Section 295A aimed to punish those vilifying or attacking religions. It also highlighted that criticism, even if insulting, made in good faith to facilitate social reform, should not be penalized. Therefore, the Committee recommended inserting the words “with deliberate and malicious intention” into the Section. [2] Blasphemy case laws in India The Supreme Court in Ramji Lal Modi v. State of UP 1957 AIR 620 stated, “Section 295A only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of clause (2) of Article 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Article 19(1)(a).” The Supreme Court in In Mahendra Singh Dhoni vs. Yerraguntla Shyamsunder (2017) 3 MLJ (Crl) 92 (SC) reiterated the principle laid down in the Ramji Lal case and held that “Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section.” However, In the Baragur Chandrappa v State of Karnataka (2007) 5 SCC 11 Para 22 case, the state government banned a Kannada novel called “Dharmakaarana.” This novel depicted a fictionalized version of Saint Basaveshwara’s life. The followers of Basaveshwara urged the ban, arguing that the book constituted hate speech due to the author’s suggestion of Basaveshwara’s nephew being born out of wedlock. The Supreme Court upheld the ban noting that “no person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered. It cannot be ignored that India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted”. Criticisms and Challenges Subjectivity Differentiating between genuine disagreement and purposeful targeting of religious beliefs is tough due to the subjective nature of what’s offensive. While the court has ruled in Ramlal Puri v State of Madhya Pradesh AIR 1971 MP 152, the Supreme Court said that the “test that is to be applied to such cases is not that of an abnormal or hypersensitive man, but that of an ordinary man of ordinary common-sense and prudence.” What constitutes abnormal or hypersensitive and ordinary common sense is subjective and differs from person to person. Striking a balance means understanding where the limits are, especially with social media making things
Ctrl+alt+deceive: The Growing Threat Of Online Identity Theft In India
Introduction India is undergoing a rapid digital transformation, with more and more people accessing the internet for various purposes, such as banking, shopping, socializing, and entertainment. However, this also exposes them to new risks and challenges, especially in the realm of online identity theft. This is a type of cybercrime where a hacker gets hold of personal information from unsuspecting users and misuses it for illegal activities, such as cloning credit cards, applying for loans, extorting money, or pretending to be the user online. Online identity theft is a widespread issue that affects millions of people in India. It involves obtaining personal information from users through different techniques, such as phishing, hacking, or malware. The hacker can then use the information for malicious purposes, such as accessing bank accounts, applying for loans, or impersonating someone else. Statistics and Trends This scenario is not far-fetched, as online identity theft is a widespread and growing problem in India. According to recent reports, India has a high prevalence of online identity theft cases. In 2022, India ranked first among researched countries worldwide by the number of identity theft cases with an estimated 27.2 million adults affected. This shows the need for more awareness and protection measures to prevent online identity theft in India. According to the National Crime Records Bureau (NCRB) reports, there were 4,071 cases of identity theft (section 66C of IT Act) and 11,422 cases of cheating by personation using a computer resource (section 66D of IT Act) in India in 2021. The data also indicates a decline in identity theft and cheating cases compared to 2020, but a significant increase in fraud cases, highlighting the need for attention to address the high crime rate related to fraud in India. The NCRB data further showed a 24.4% increase in cybercrime in India in 2022, with fraud, extortion, and sexual exploitation being the top motives. Cyber fraud constituted the majority of cases (64.8%), followed by extortion (5.5%) and sexual exploitation (5.2%). A study by an IIT Kanpur-incubated start-up revealed that financial frauds accounted for over 75% of cybercrimes in India from January 2020 to June 2023, with nearly 50% of the cases related to UPI and internet banking. The study also highlighted that social media-related crimes accounted for 12% of the online offences during the same period. Legal Consequences of Online Identity Theft in India Section 66C of the Information Technology Act, 2000, deals with the punishment for identity theft. The section states “whoever, fraudulently or dishonestly makes use of the electronic signature, password, or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years. This section aims to protect individuals from unauthorized use of their electronic signatures, passwords, or other unique identification features. According to this provision, offenders can face imprisonment for up to three years and fines of up to Rs. 1,00,000 (Rupees one lac). Section 66D of the Information Technology Act, 2000, deals with the punishment for cheating by personation using a computer resource. The section states that whoever, by means of any communication device or computer resource, cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years In addition to these sections, the Indian Penal Code introduces Section 419, penalizing cheating by personation. Those engaging in actions such as assuming another person’s identity, knowingly substituting one person for another, or falsely representing themselves or others may face imprisonment for up to three years, fines, or both. This provision is slated to be replaced by Section 319 of the Bharatiya Nyaya Sanhita, 2023, defining the offense of cheating by personation. In cases of identity theft, Sections 463 and 468 of the Indian Penal Code, addressing forgery and “forgery for the purpose of cheating,” may also be relevant. Section 468 prescribes imprisonment for up to seven years and a fine for forgery with the intent to cheat, while Section 463 defines forgery as creating a false document to cause harm, injury, support a claim, induce property exchange, enter into a contract, or commit fraud. Sections 463 and 468 of the Indian Penal Code have been substituted with Section 336 and Section 336(3), respectively, under the Bharatiya Nyaya Sanhita, 2023. Section 420 of the IPC specifically addresses cheating, indicating that those inducing someone to deliver property, alter or destroy a valuable security, or anything convertible into a valuable security may face imprisonment for up to seven years and fines. The Bharatiya Nyaya Sanhita, 2023, replaces this provision with Section 316, addressing Criminal breach of trust under the same legal framework. The key distinction between the IPC and the IT Act concerning identity theft lies in the IT Act’s requirement for the offense to involve the assistance of a computer resource, with no maximum cap on fines imposed by the IPC. On August 12, 2023, the Digital Personal Data Protection Act, 2023, came into force, receiving the President’s assent on August 11, 2023. Expected to aid in reducing data-related cybercrimes, including identity theft, this Act applies to digital personal data collected in both digital and non-digital forms. Rise of Deepfakes The surge in deepfakes and artificial intelligence has worsened the problem of digital identity theft. It’s now easier than ever to manipulate people’s voices, faces, and identities. Malicious individuals have taken advantage of this, using deepfakes to scam innocent people. For instance, a man from Kerala was tricked out of Rs 40,000 through an AI-based deepfake. Since deepfakes have only recently become a significant issue, there hasn’t been much legislation addressing the problem. However, this is likely to change soon. As deepfake technology continues to improve and become more realistic, it’s inevitable that regulations and strict measures will be necessary to prevent its abuse. This is crucial to safeguard people from potential harm. Protect Yourself from Online Identity Theft? Creating strong and unique passwords is paramount in safeguarding your online identity. Avoid using easily guessable
Understanding Suicide Attempt And Severe Stress Within The Framework Of The Mental Healthcare Act, 2017
Introduction: In this context, the continued classification of “attempt to commit suicide” as a crime under the Indian Penal Code (IPC) of 1860 is seen as irrational. Section 309 of the IPC prescribes penalties for individuals who attempt to take their own lives or engage in acts that may lead to such an outcome. However, it is essential to recognize that the IPC was formulated in a different era when mental health was not a central concern. In the present, mental health issues are receiving increased attention, particularly due to the detrimental effects on mental health by the recent pandemic. In 2017, the government finally recognized the need for reform regarding Section 115 of the Mental Healthcare Act, marking a commendable acknowledgment that prosecuting and penalizing individuals already in distress is inhumane. However, rather than resolving the issue, Penal Code further complicates the matter. While Section 115 of the Act assumes the innocence of individuals attempting suicide and prohibits their prosecution and punishment, Section 309 of the IPC “Section 309. Attempt to commit suicide. – Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year 4 [or with fine, or with both.]” There is little justification for penalizing an individual who has chosen to end their own life, as this decision is often a result of severe mental suffering and not a rational choice. This research aims to analyse how the Indian judiciary has interpreted various landmark judgments related to Section 309 of Indian Penal Code, which criminalizes the attempt to commit suicide. Despite conflicting with the constitutional right to life (Article 21) and the provisions of the Mental Healthcare Act, 2017, this section continues to impose penalties on individuals attempting suicide. I. Attempt to Commit Suicide: 1. Definition and Historical Context: The act of attempting suicide has long been a complex and sensitive issue globally. The historical criminalization of suicide reflects societal attitudes that have evolved over time. The Mental Healthcare Act, 2017, marks a departure from this historical approach, seeking a more compassionate and understanding stance. 2. Legal Framework and Section 309 of IPC: Before delving into the Mental Healthcare Act’s provisions, it is essential to understand the legal landscape pre-2017. Section 309 of the Indian Penal Code (IPC) criminalized attempted suicide, subjecting individuals to potential legal consequences. The implications of this legal provision were far-reaching, affecting not only the legal system but also perpetuating societal stigma around mental health challenges. II. Severe Stress and the Mental Healthcare Act: 1. The Presumption of Severe Stress: Section 115(1) of the Mental Healthcare Act introduces a unique perspective on the mental state of individuals attempting suicide. It establishes a rebuttable presumption wherein an individual attempting suicide is presumed, unless proven otherwise, to be undergoing severe stress. This presumption is a pivotal aspect of understanding the person’s mental state and is specifically focused on the presence of severe stress. 2. Autonomy and Separation from Prosecution: Crucially, the Mental Healthcare Act’s language, particularly in Section 115(1), introduces an autonomous and self-contained framework. This framework involves two separate mandates, both commencing with the term ‘shall.’ The first mandate establishes the presumption of severe stress, while the second indicates the exemption from prosecution. These clauses operate independently from each other, with the crucial distinction that the exemption from prosecution does not rest upon the presumption of severe stress. III. Decriminalization and Legal Implications: 1. Significance of Autonomy: The autonomy established by the Mental Healthcare Act is pivotal in understanding the decriminalization of attempted suicide. By separating the presumption of severe stress from the exemption from prosecution, the Act emphasizes that individuals attempting suicide are exempt from legal consequences, irrespective of the confirmation or refutation of the presumption. 2. Legal Implications for Mental Health: The shift towards decriminalization has profound implications for mental health legislation and the broader legal landscape. It signifies a recognition of the need to prioritize mental health as a public health issue rather than a criminal one. This change aligns with global trends emphasizing the destigmatization of mental health challenges. IV. Challenges: 1. Ambiguity in Severe Stress Determination: While the Mental Healthcare Act takes significant strides in decriminalizing attempted suicide, challenges arise in determining and proving severe stress. The subjective nature of mental health assessments raises concerns about consistency and fairness in applying the presumption outlined in Section 115(1). 2. Societal Attitudes and Stigma: Despite legal advancements, societal attitudes towards mental health challenges remain a significant hurdle. Stigma associated with mental health issues can deter individuals from seeking help, perpetuating a culture of silence and hindering effective mental health interventions. Conclusion: In conclusion, the analysis of the current legal framework concerning attempted suicide in India exposes a range of significant problems, including the failure to address mental health concern adequately and the lack of respect for individual autonomy and the right to protest. While the call for the removal of Section 309 IPC is justifiable; it is clear that mere decriminalization falls short of addressing the law’s inherent ambiguities, notably those arising from Section 115 of the Mental Healthcare Act. To comprehensively address this issue, India should move beyond mere decriminalization and establish a national suicide prevention policy, acknowledging the complex factors contributing to suicidal behaviour and aiming to destigmatize mental illness while promoting help-seeking over self-harm. This approach is supported by international examples and the guidance of organizations like the World Health Organization,20 emphasizing the need for a holistic strategy to reduce suicide attempts. Key focus areas for India’s policy should include improved access to mental healthcare, mental health awareness among youth, collaboration with civil society groups, restricting access to suicide aids, and launching public campaigns promoting mental well-being. Ultimately, it is crucial to remove Section 309 IPC and Section 115(1) of the Mental Healthcare Act to create a more humane legal framework that considers mental health as a vital factor in leading a fulfilling life and not subjecting individuals to harsh punishment for their suffering. The emphasis should be on protection and
India And Maritime Law: A Simple Overview
The election manifesto accountability saga seems to be never-ending. A puzzle that the law can solve but lawmakers refrain from solving. Section 123 of the Representation of People’s Act, 1951, brings on record acts deemed corrupt practices. Still, the section is not exhaustive enough to include political parties for inducing citizens to vote by providing freebies in their election manifestos. The courts have held that election manifestos are not hit by promissory estoppel or the doctrine of legitimate expectations. In ANZ Grindlays Bank Pie Vs. Commissioner, MCD 1995 II AD (Delhi) 573, where dealing with an argument of promissory estoppel and legitimate expectations based on an election manifesto, it was held that the election manifesto of a political party, howsoever boldly and widely promulgated and publicized, can never constitute promissory estoppel or provide a foundation for legitimate expectations. The Supreme Court of India in S.Subramaniam Balaji vs. Government of Tamil Nadu (2013) 9 SCC 659 directed the ECI to frame guidelines for regulating election manifestos of political parties. Guidelines issued by the Election Commission of India were incorporated in Part VIII of the Model Code of Conduct. The ECI guidelines directed that the election manifesto shall not be against the ideals and principles of the Indian Constitution and shall be consistent with the spirit of the Model Code of Conduct. It further directed political parties to ensure the credibility of their manifesto to explain the rationale for their promises along with indicating the ways and means, and financial requirements to achieve the same. The Election Commission has further directed all political parties to send a copy of their election manifestos and a Hindi/English version (if the original version is in the regional language) whenever released, within three days of its release, for the Election Commission’s record. The political parties have also been requested to submit a declaration and a manifesto that the program/policies and promises made therein are in consonance with Part VIII of the Model Code of Conduct. Courts have consistently dismissed the legal enforceability of election manifestos. It is pertinent to point out the principle of caveat emptor (buyer beware). May the electorate beware.
Doing The Right Thing By Law
Introduction In the Indian legal system, the threads of justice are knitted with the principles of professional ethics. As members of the legal community, lawyers have a duty to respect not only the law but also the fundamental ethical principles that underpin their profession, such as telling the truth, treating everyone fairly, and protecting client privacy. These guidelines assist lawyers in doing their duties while ensuring that they are doing the right things in the correct way. Let’s examine these rules in more detail through The Advocates Act of 1961 which establishes professional conduct requirements for attorneys and also authorizes the Bar Council of India (BCI) to make regulations prescribing the professional behavior required of advocates practicing in India as well as Seven Lamps of Advocacy which serves as a informal guide for attorneys to preserve their ethical conduct in this noble profession. The Advocates Act, 1961 The Advocates Act of 1961 is a statute that consolidates and amends rules pertaining to legal practitioners in India. Section 29(1)(c) of the Advocates Act, 1961 specifies the professional standards that advocates must follow under Chapter II, Part VI of the Bar Council of India. The Act specifies the obligations of advocates to the Court, Client, Opponents, and other advocates, as well as their rights which I have tried to condense those duties into a succinct but accurate summary here: Rules on Advocate’s Duty towards the Court Advocates must maintain self-respect and dignity while presenting their cases. If there are legitimate grievances against a judicial officer, they have the right and duty to report them to the proper authorities. Advocates must show respect towards the court, understanding that the dignity of the judicial office is crucial for a free society. Advocates cannot use illegal means to influence court decisions. Private communications with judges about ongoing cases are strictly prohibited. Advocates should discourage their clients from using unfair tactics in court. Advocates must follow the prescribed dress code when appearing in court Advocates cannot engage in legal matters where specified familial relationships exist between them, ensuring no bias Utilizing gowns or bands in public places outside court is prohibited. Advocates who hold positions in the executive committees of organizations are restricted from representing those entities in legal matters. Rules on Advocate’s Duty towards the Client Advocates must accept cases within their practice areas at a suitable fee. In specific circumstances, they may refuse a case. Once committed to a case, an advocate should not withdraw without a valid reason, providing adequate notice to the client. If they do withdraw, any unearned part of the fee should be refunded. Full disclosure of connections and interests affecting the case’s judgment should be made to the client. Advocates must defend their clients honorably and avoid fostering unnecessary litigation. Advocates are required to keep an account of the money the client has entrusted to them After a case, any remaining funds can contribute to the advocate’s fee. If fees are unsettled, they can deduct the appropriate fee and refund the balance to the client. Duties of an Advocate towards Fellow Advocates An Advocate must avoid publicizing his job through circulars, ads, and other means. The Signboard and Nameplate must be of fair size and contain no indication of the advocate being President or Member of a Bar Council or having been a judge or the advocate being a member of any affiliation If a colleague advocate has previously submitted a vakalatnama or note, the advocate shall not represent the same case unless the fellow advocate has approved. When a client can pay more, an advocate must not use his name to promote unauthorized practice of law and must not take a charge less than the amount. Duties of an Advocate towards opponents Prohibition of direct negotiation with the opposing party Fulfilling legitimate promises made[1] Seven Lamps Of Advocacy The book “Seven Lamps of Advocacy” coined by Judge Edward Abbot Parry outlines seven essential qualities for advocates: COURAGE – Advocacy demands bravery in facing courtroom battles and societal issues. WIT- for example: During a trial, an advocate encounters an unexpected legal loophole that weakens their case. Utilizing quick thinking and clever reasoning, the advocate can skillfully redirect the argument, turning a setback into an advantage INDUSTRY – Hard work and skill are crucial; ignorance of the law can be detrimental to both the advocate and their clients HONESTY- Integrity must underpin all actions, reflecting in work, conduct, and transparency with clients, earning trust and reliability FELLOWSHIP- Maintaining respect and camaraderie with fellow advocates is vital, fostering a positive attitude despite adversities. JUDGEMENT- Sound reasoning and anticipation are crucial for interpreting laws, strategizing arguments, and providing accurate legal counsel ELOQUENCE- Effective oratory skills, honed through practice and education, are essential for advocates to persuade judges and positively impact cases[2] Case laws that underscore the importance of maintaining professional ethics High stakes for advocates’ professional behavior Mahipal Singh Rana v. State of U.P.(2016) 8 SCC 335 Facts: The case involved Mahipal Singh Rana, an advocate, who faced allegations of contempt such as using foul language and inappropriate conduct on specific dates. The Allahabad High Court convicted Rana of contempt based on these allegations. Issues: Whether Rana could continue practicing as an advocate after the conviction and if there were any reason to overturn the High Court’s decision convicting Rana for contempt. Judgment: The Bar Council of India emphasized that even minor offenses by advocates could be considered moral turpitude, and advocates’ conduct should align with the profession’s high standards. The Supreme Court upheld Rana’s conviction and emphasized that in case of the Bar Council’s failure to act against misconduct, the Supreme Court can intervene under Section 38 of the Advocates Act. Rana’s enrollment as an advocate was suspended for 2 years under Section 24A, with an additional 5-year suspension of his license.[3] Withholding information violates the client’s right to know about the case. R.D. Saxena v. Balaram Prasad Sharma, AIR 2000 SC 2912 Facts: The appellant, an advocate and legal advisor