By Mayank Grover & Gurleen Kaur

April 14, 2022

Wireless communication involves transmission of information by using electromagnetic waves without wires and cables. The wireless revolution began in the 1990s with the advent of digital wireless networks which sparked a social revolution and switched technology from wired to wireless.

What is ETA?

The Wireless Planning and Coordination Wing (WPC) of Government of India’s Department of Telecommunications (DoT) is the National Radio Regulatory Authority in charge of frequency spectrum management and licensing, as well as catering to the needs of all wireless users. Products with radio and/or wireless functionality which are manufactured in India or imported and function in the de-licensed frequency band / license free radio frequency band must obtain an Equipment Type Approval (ETA) certificate from the WPC under the Indian Wireless Telegraphy Act, 1933 and the Indian Telegraph Act, 1885.  This includes devices with bluetooth, wireless local area network technology (Wi-Fi), digital radios (Zigbee technology), radio frequency identification (RFID) tags etc.

Scope of Approval

The scope of ETA from WPC covers mobile phones, RFIDs, Wi-Fi and Bluetooth devices like earphones, speakers, microphones, drones etc. Some frequency bands have been assigned a license-free status and therefore, a license from WPC is not required for products operating in those frequencies. In order to obtain an ETA, a detailed test report of the equipment obtained from a well-recognized laboratory has to be submitted to WPC for evaluation. 

Documents required for ETA

Procedure to apply for ETA / WPC License

Who can apply for ETA?

Manufacturers/Importers of products with radio, wireless or both features are required to obtain ETA Certificate from WPC and Import License Certificate from the Principal Commissioner of Customs (Import). As per Public Notice No.12/2017 dated 23.08.2017 issued by the Office of the Principal Commissioner of Customs (Import), for import of wireless equipments, the Applicant has to obtain valid import licence after getting ETA.

Devices eligible for ETA

Transceivers, transmitters, receivers, all blue-tooth devices, wireless home appliances,  RFID tags and readers, wireless mouse and keypads, wireless headphones, small digital radios, wireless medical products used for patient profiling laptops, mobile phones, digital radios, remote key for entry, wireless music players, wireless remotes and any other radio frequency modules.

Exemption from ETA by filing a self-declaration

The online facility for obtaining ETA through self-declaration is available on the Saral Sanchar portal of DoT. As per Office Memorandum dated 26.02.2019 issued by DoT[1], ETA through self-declaration is permitted for:

which operate in license exemption bands as permitted in India.

A self-declaration from an importer/authorized Indian representative is sufficient for wireless equipments operating in license exempt bands with low transmission power for clearance by the Customs and Central Excise Authorities.

ETA through self-declaration is applicable to the products which meet two conditions:

These products may be imported by submitting a self-declaration to Custom Authorities and informing WPC via email.

As per another Office Memorandum dated 26.02.2019 of DoT[2], the requirement of ETA is exempted for R&D/ testing/ demo/ prototype/ pre-launch devices in the categories of mobiles, laptops, electronic notepads, smart watches, Short Range devices (including accessories), microphones, speakers, headphones, earphones, printers, scanners, cameras etc. and Test & Measurement equipment operating in license exempt bands as permitted in India.   

A self-declaration from an importer/authorized Indian representative is sufficient for clearance by the Customs and Central Excise Authorities permitting 1000 units per model. The importer is also required to undertake that after completion of test/prototype exercise, equipments would either be exported back to the country of origin or destroyed as per destruction guidelines of WPC and may not be sold in the Indian market.    

Thus, ETA clearance is required for wireless equipments which operate in license exempt frequency bands in India. With the introduction of self-declaration mechanism and exemption for prototypes, the process to obtain ETA license has been simplified by WPC to expedite launch of new devices and ensure ease of doing business in India.

[1]https://dot.gov.in/sites/default/files/ETA%20through%20Self%20declaration%20for%20Certain%20Categories%20of%20Wires%20Equipment%20dt%2026-02-2019_0.pdf

[2]https://www.tuv.com/content-media-files/master-content/rs/Attachments/1075_WPC%20Notification_Exemption%20ETA-Test-Prototype%20dt%2026-02-2019.pdf

Mayank Grover is a Partner and Gurleen Kaur is an Associate at Seraphic Advisors, Advocates & Solicitors in New Delhi.

By Kumar Shashwat

March 3, 2022

In this article, I argue a proposition that a challenge to an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 [“the Act”] though not inform, but in substance assumes the flavour of appellate proceedings.

Section 34(2) (a) of the Act mentions certain grounds on account of which the Court can set aside the arbitral award, if the party proves that:

Moreover under section34(2)(b) of the Act the court may set aside the Award if:

Despite specific grounds mentioned in Section 34 of the Act,the proceedings under the said section assumes the nature of an appellate court. The reasons in support of this argument are elaborated herein below:

Reasoning:

In support of my argument, I have relied upon three classes of cases on propositions that (i) the qualitative nature of the appreciation of the material on record in an adjudication under Section 34 of the Act, (ii) instance where the Arbitration Court has upheld a minority Award of the Ld. Arbitrator Tribunal, and (iii) permissibility for the Arbitration Court to examine material not propounded before the Ld. Arbitrator.

The proceedings under Section 34 of the Act being of a first instance before a Court is only legal fiction since the same assumes existence of Arbitral Award, arrived at, at least theoretically, pursuant to a rigorous judicial process, akin to a civil trial, which is the first marker of an appellate proceeding.

The qualitative nature of appreciation of the Award, as well as pleading and material relied upon therein, i.e., of award being arbitrary, capricious or perverse, or when the conscience of the Court is shocked, or when the illegality is not trivial but goes to the root of the matter is when interference of the Court is warranted. Though the burden to discharge may be high, however, the qualitative nature of appreciation of material is no different from appreciation in appellate proceedings.

Ordinarily, the appellate court assumes the jurisdiction as the court of first instance in the manner of appreciation of evidence, facts, law, etc.

While, the Arbitration Court under Section 34 of the Act undertakes the same qualitative nature of analysis. However, statutorily, its jurisdiction is limited to arrive at only a singular finding that the Award is liable to be set aside.

In fact, curiously Courts have departed from the outcome mandated under Section 34 of the Act of setting aside the majority Award and have upheld award of the minority of the Tribunal.(Ssangyong Engineering And Construction Co. Ltd v. National Highways Authority Of India). This was premised on the logic under the scheme of Section 34 of the Arbitration Act, the disputes that were decided by the majority award under challenge would have to be referred afresh to another arbitration once the said award would be set aside, the Court held that adopting the said procedure would cause considerable delay. It was further observed that the same would be contrary to the objectives of the Act, namely, speedy resolution of disputes by the arbitral process.

However, in ONGC Ltd v. Interocean Shipping (India) Pvt. Ltd., 2017;ONGC Ltd v. Schlumberger Asia Services Ltd, the High Courts also adopted the course of setting aside the majority Award and upholding award of the minority, but sans any reasoning adopted for such course of action.

The Courts have also adopted a course of action, though as an exception rather than rule that ordinarily it will not examine material beyond the record of the Ld. Arbitrator. However, in the event that there are facts not stated in such record, and are relevant to the determination of issues, the Court may permit the parties to bring such facts on record by way of affidavits, wherein cross examination of persons swearing to the affidavits should not be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both the parties (Emkay Global Financial Services Ltd v. Girdhar Sondhi)

Similarly, if certain facts were concealed, having a causative link with the facts constituting or inducing the award, such facts become relevant for the purpose of deciding adjudication under Section 34 of the Act proceedings. If such facts are discovered after the filing of challenge proceedings (underSection34),they maybe brought on record by way of amendment. (Venture Global Engineering v. Satyam Computer Services ltd and Ors.)

Thus, proceedings under Section 34 of theActhave the colour of appellate proceedings.

Conclusion

In view of the fact that (i) the Arbitration Court under Section 34 of the Act is a Court of First Instance but only as a result of a legal fiction since it assumes existence of ‘judicially’ arrived at Award (ii) the qualitative nature of the proceedings in terms of appreciation of evidence, pleadings, Award, etc, (iii) the assuming of jurisdiction to uphold “minority view” of the Tribunal, while setting aside the “majority view” (iv) permissibility of the parties to bring fresh material on record before the Arbitration Courts, germane for the issues in the Award, leads to a conclusion that a proceeding under Section 34 of Act is though not inform, but in substance, in the nature of appellate proceedings.

Kumar Shashwat is Partner, Kumar & Singh Associates, New Delhi. 

By Krishnamohan Menon

February 12, 2022

On December 11, 2019, the Joint Parliamentary Committee on the Personal Data Protection Bill, 2019 (“JPC”) was established to investigate and examine the Personal Data Protection Bill, 2019. The JPC was supposed to give its report to Parliament during the 2020 Budget Session, but after receiving a two-year extension, the JPC tabled its report in both houses of Parliament on December 16, 2021.

The JPC report includes a list of policy recommendations, an examination of key sections of the 2019 Bill, and a draft bill titled the Data Protection Bill, 2021, among other things. The JPC report focused on answering questions and clarifying issues relating to public policy concerns about data protection in India, as well as making recommendations in that regard while taking into account the Honourable Supreme Court’s decision in Justice K.S. Puttaswamy (Retd.) v. Union of India and the Justice B.N. Srikrishna Committee’s recommendations.  Read on to find out the recommendations provided by the JPC on the PDP Bill.

One of the JPC’s first recommendations is to alter the bill’s name from ‘Personal Data Protection’ to ‘Data Protection,’ because it is impossible to distinguish between personal and non-personal data, and thus it is necessary to have a single law that covers both datasets. But the stakeholders are concerned that integrating both personal and non-personal data in the same legislation may weaken the PDP Bill’s goals, which were to provide a framework for personal data protection.

According to the PDP Bill, only members of the Ministry of Legal Affairs and the Ministry of Electronics and Information Technology were allowed to participate in the DPA selection process. However, the Report recommends that the DPA selection committee should include more technical, legal, and academic expertise, as well as the bureaucrat officers who make up the selection committee. As all members of the selection committee are nominated at the Central Government’s request, the DPA members will be indirectly in control of the Central Government.

According to the report, social media intermediaries should be scrutinized more strictly. The Report recommends that all user accounts on social media intermediaries should be verified in order to combat the threat of fake news and accounts. Further, the report suggests that social media intermediaries be recognized as “publishers” in certain circumstances, particularly when it comes to content from unverified accounts. Furthermore, it has been suggested that no social media platform should be permitted to operate in India until the parent company behind the technology establishes an office in the country.

With the object of protecting the national interest, the PDP Bill granted the government an exemption for compliance with the proposed legislation. The Report adds restrictions to this exemption, recommending that the government only be exempted from the provisions after following a fair, just, reasonable, and proportionate method. This is in keeping with the Supreme Court’s ruling in the Right to Privacy Case, which established the legality, legitimate goal, proportionality, and procedural safeguards that must be met for the government to infringe on people’s right to privacy under the exemptions available to it.

Companies must report personal data breaches when they cause harm to the data principal, according to the PDP Bill. In addition, the Report not only compels the keeping of a log of all types of data breaches, regardless of whether the breach involves personal or non-personal data, and regardless of the possibility of harm to the data principal, but also sets a 72-hour reporting deadline for such breaches. As a result, in addition to reporting obligations for personal data breaches, the keeping of a log will be required for both personal and non-personal data, and will not be contingent on the data principal suffering any harm.

The PDP Bill included special safeguards for the protection of children’s data. The notion of a guardian data fiduciary was described in the PDP Bill as a data fiduciary who maintains commercial websites or online services aimed towards children or processes vast amounts of personal data about children. The PDP Bill exempted such a guardian data fiduciary from taking approval of the child’s parent or guardian. However, the Report recommended that the concept of a guardian as a different class of data fiduciary should be eliminated,  because it may undermine the goal of protecting children. Further, the Report recommends that all data fiduciaries should be prohibited from profiling, tracking, or behavioral monitoring of children, or targeted advertising intended at children, as well as processing personal data that may cause serious harm to children. Previously, this bar only applied to guardian data fiduciaries.

While measures for data localization were previously included in the PDP Bill, the JPC has strongly recommended that all data be stored in India for national and security considerations. According to the report, the government should bring back mirror copies of all sensitive and vital personal data that is now housed outside of India, and all organizations operating in India should gradually move toward data localization. In addition to data localization, the Report recommends that the Central Government should draft a comprehensive data localization policy aimed at developing adequate infrastructure for local data storage and aiding start-ups in complying with localization requirements, all while keeping the Government’s ‘ease of doing business’ objectives in mind.

Several members of the Lok Sabha have dissenting opinions against the Report’s recommendations. The following are the key issues about the Report’s recommendations and the proposed “Data Protection Bill”:

While the JPC Report and the 2021 Bill are positive steps forward towards addressing various difficulties that people face in today’s digital world, they have also been faced with criticism. Critics of the 2021 Bill believe that in its current form, the bill is prone to be misapplied by the state, jeopardizing people’s fundamental rights. Privacy and data protection assume primacy in the digital era, and both must be protected to the same extent. The way the powers provided in the 2021 Bill are used will determine whether they are necessary for state function or whether they leave digital data rights unsecured and diminish the code’s aim.

Krishnamohan Menon is Managing Partner, Mimansa Law Offices

By Kumar Shashwat

June 22, 2022

Character merchandising can be defined as the revision or secondary utilization, by the creator of an imaginary character or by a real human being or by one or several sanctioned third parties, of the indispensable personality characteristics (such as the name, image or appearance) of a  character in relation to a range of goods and/or services with an outlook to creating in potential consumers a yearning to get hold of those goods and to use those services because of the customers’ attraction with that character. It should already be highlighted that the person or legal entity which will systematize the merchandising activity (the merchandiser) will infrequently be the creator of the fictional character or the real person concerned. The various property or personality rights vesting in the character will be the subject matter of contracts (such as transfer or license agreements or product or service endorsement agreements), enabling one or more than a few involved third parties to be regarded as authorized users of the character. 

Registration of Character Trade Marks

The primary function of marks that are symbols in its real sense is to indicate the origin of the goods so that the consumers can distinguish who is responsible for the goods that are placed in public. On the one hand, the creator of the fictional characters is not themselves engaged in such merchandising activities. Still, they may want to procure the trademark rights for their characters in order to regulate and license their use for commercial or merchandising purposes. On the other hand, sportspersons, actors, and pop stars use their characters most rewardingly.

However, in English Law, the Trade Marks Act 1938 prohibits the use of the trademark for trafficking, dealing mainly in a commodity in the right and not primarily to indicate or identify merchandise in which the owner of the trademark is interested; do not contain such restrictions with respect to the registration of trademarks.

In Tarzan,[1] the candidates who were solely qualified to produce movies, records, and commercialization concerning the renowned anecdotal character Tarzan were denied enlisting the word Tarzan in relation to movies, attractive tape recordings, amusement toys and merchandise. The Court of Appeal held that since the word Tarzan was outstanding and was a piece of the dialect, it neglected to meet all requirements for enrolment as a developed or invented word. It was additionally held that the word had an immediate reference to the character and nature of the items since a film managing the endeavours of Tarzan would be portrayed as a “Tarzan” film, and the candidates’ different items were merchandise connected with Tarzan. Hence, the trademark was not considered to be fit for recognizing the candidates’ merchandise. Tarzan couldn’t be enlisted as a trademark because of the way that it spoke of the character and subsequently did not appear to show the origin of the items.

The idea that fame acts as the central impediment to getting the registration of a trademark was further explained in the Elvis Presley case[2]. The candidates, who were the legitimately perceived successors of any promoting exercises carried for the famous personality Elvis Presley, were denied enlisting of the words ” Elvis” and “Elvis Presley”, and the mark “Elvis A. Presley” regarding toiletries. The Court said that every one of the products for which enrollment was looked for was legitimately viewed as memorabilia since they were promoted principally because of their connection with the name and picture of Elvis Presley. It was in this manner held that the imprints were not unmistakable; buyers obtained stock identifying with Elvis Presley, not because they considered that Elvis Presley Enterprises showcased it, but since it conveyed the name or picture of Elvis Presley. The Court’s view was that the general population is occupied with acquiring the merchandise identified with a most loved name as a famous person and is not concerned whether licensees of such a big name create such items. Finally, the Court held that when a character is well known, it is exceptionally far-fetched that the check will mean the inception of the item.

Also, in the Diana case,[3] the executrices of the Estate of Diana, Princess of Wales connected to enlist as a trademark the words “Diana, Princess of Wales” for a wide variety of products and ventures. However, the application was rejected since it was held that the words Diana, Princess of Wales needed peculiarity. It was held that while most individual names might be considered to symbolize the inception of the merchandise, this is not the situation where an acclaimed name is worried; in such cases, it is conceivable that the name will serve to mean the topic of the items, rather than its beginning. It was further held that a normal customer would not expect that all memorabilia bearing the Princess’ name were marketed under the control of one undertaking in charge of their quality.

“Copyrights

Exactly when an anecdotal character is introduced in academic work, as a creative work, or an abstract work, it is spoken to by the gauges of copyright law. Usually, the makers of the works hold copyright over these characters. When these characters are a part of a film or the producer has copyrights over the character. Note that the copyright may not come to exist in any fictional character appearing in a copyrighted work without any other person’s information. For such a character to be freely secured under the degree of copyright certification, the character must be managed independently of the story, cartoon or movie that it belongs to. In this instance, Star India v. Leo Burnett, the above was noted:

“The fictional characters are generally drawings in which copyright subsists, e.g., cartoon, and celebrities are living beings who are otherwise very famous in any particular field, e.g., film stars, sportsmen. It is necessary for character merchandising that the characters to be merchandised must have gained some public recognition, that is, achieved a form of independent life and public recognition for itself independently of the original product or independently of the milieu/area in which it appears. Only then can such character be moved into the area of character merchandising. This presumes that the character has independently acquired such reputation as to be a commodity in its own right independently of the goods or services to which it is attached or the field/area in which it originally appears. It is only when this is established on evidence as a fact, that the claimant may be able to claim a right to prevent anyone else from using such a character for other purposes.”

Identity rights

The producer of a film won’t have full rights to exploit the characters that can’t be disengaged from the performer portraying the same. In such a case, the character benefits of the performing craftsman apply despite the producer’s copyrights. This, from time to time, offers a climb to a battle between the two sorts of rights. For example, there has been a conflict between a performing artist assuming the part of a well-known character Gutthi in an Indian TV show and a TV station, which is additionally the maker of the arrangement. Because of this conflict, the performing artist moved out of the show and went ahead to begin his new show on an alternate TV slot. The principal TV slot issued an open proclamation that the character Gutthi had been made for the first show. Thus, it has copyright over the same. The on-screen character issued another announcement declaring his identity rights and saying that it is he who has accomplished acknowledgement as and is constantly related to Gutthi. Inferable from this conflict of rights, none of the parties could utilize the character Gutthi in their separate shows amid the season of the conflict. Identity rights unmistakably apply in instances of superstar marketing. Copyright is relevant just to the degree there are photos of superstars, and they are to be popularized; the picture takers have rights over the photographic works.

Trademarks

Since the vital character components of fanciful and authentic people are utilized as a part of the connection to business articles, trademark law standards likewise come into light in instances of character promotion. For example, in India, a trademark is known as any gadget, heading, plan, mark, word, name, signature, and so on which is fit for a graphical representation and which ought to be equipped for recognizing merchandise and/or administrations of one gathering from those of the other. This broad clarification makes it conceivable to have any anecdotal or real individual’s crucial identity elements as trademarks. For example, the name of a character and his picture, signature, character outlines, voice, catchphrases he utilized, and so forth could be ensured under trademark law.

When it comes to craftsmanship, one needs to consider the most unmistakable identity properties that are celebrated and deserving of trademark security. Character promoting is the initial step for treating acclaimed anecdotal characters or genuine identities as exchange signs. Famous people additionally authorize their identity and name rights under the laws of passing off. For example, in a noteworthy case concerning the identity and trademark privileges of the well-known pop singer “Daler Mehndi”, the pop star and his partner, the offended party, could effectively uphold trademark rights over the name “Daler Mehndi” against the respondents who earned tremendous financial gains by the offering of toys in light of his identity. Even though the name of Daler Mehndi or his fundamental identity components were not enrolled as trademarks, custom-based law gives exclusive privileges to the pop star in his name and identity. The productive instance of passing off could be brought for the execution of customary law marketing rights by the proprietors of such characters in case crucial parts of their characters’ personalities are used without their endorsement. Getting statutory trademark security is also profitable in bringing actual blue instances of trademark infringement against manhandling. The proprietors of universally acclaimed characters like Batman, Harry Potter and so forth have likewise procured statutory rights by enlisting the characters’ names as trademarks in India. On the Indian side, the proprietors of the fictional character Munnabhai (that showed up in the motion picture titled “Munnabhai MBBS” and its continuation “Lage Raho Munnabhai”) have additionally enlisted such character name as a trademark.

[1] Tarzan Trade Mark  [1970] FSR 245, CA.

[2] Elvis Presley Trade Mark  [1997] RPC 543.

[3] Diana Princess of Wales Trade Mark  [2001] ETMR 25. See also the similar view of Isaac,B., ‘Merchandising or Fundraising? Trade Marks and the Diana, Princess of Wales Memorial Fund’ (1998) 20 European Intellectual Property Review 441.

Books:

1. Ahuja V K, Law Relating to Intellectual Property Rights (English), Lexis Nexis, 2nd Edition, 2013.

2. Wadehra B L, Law Relating to Intellectual Property (English), Universal Law Publication, 5th Edition, 2012.

3. Ananth Padmanabhan, Intellectual Property Rights HB (English), Lexis Nexis- New Delhi, 1st Edition (Hardcover), 2012.

Articles:

1. John Perry Barlow, The Economy of Ideas, Wired, Mar. 1994

2. Emem Uduak Udobong, Copyright infringement in the search engine, December 2005.

Kumar Shashwat is Founding Partner at Kumar & Singh Associates.

January 21, 2022

The Hon’ble Supreme Court of India on March 23, 2020(“Order”) took suo moto cognizance of the pandemic due to Covid-19 in Suo Moto Writ Petition (Civil) No. 3/2020) and passed an order vide which the period of limitation in filing petitions, applications, suits, appeals and all other proceedings, irrespective of the period of limitation prescribed under the general or special laws was extended with effect from March 15, 2020 till further orders. Thereafter, on March 8, 2021, it was noticed that the country was returning to normalcy and since all the courts and tribunals had started functioning either physically or virtually, extension of limitation was brought to an end by the Supreme Court in March, 2021.However, on an application being filed by the Supreme Court Advocate on Record Association vide Miscellaneous Application No. 665/2021 in SMW(C) No. 3/2020, the Apex Court restored the Order till further orders, on April 27, 2021.Thereafter, on September 23, 2021 the Miscellaneous Application No. 665/2021was disposed of by the Hon’ble Supreme Court with the order that with effect from October 2, 2021, the limitation period will not be extended any further, due to imminent normalcy. Presently, the Hon’ble Apex Court has again restored the Order, on January 10, 2022 passed in Miscellaneous Application No. 21 of 2022 in Miscellaneous Application No. 665/2021 in SMW(C) No. 3/2020, by virtue of which the period from March 15, 2020 to February 28, 2022 shall stand excluded for the purpose of limitation in respect of all judicial or quasi-judicial proceedings. 

The bone of contention here is the impact of this Order on the Arbitration & Conciliation Act, 1996 (“Act”), which is a special statute, especially on the timelines envisaged under Sections 34(3) and 36 of the Act. Section 34(3) of the Act provides that an application for setting aside an Arbitral Award has to be preferred within a period of three months from the date the award was received or if an application for correction or modification of an award has been preferred, three months from the period on which such application was disposed of by the Arbitral Tribunal. The proviso to Section 34(3) furnishes an additional 30 days to challenge an award provided the applicant shows reasonable cause.

Section 36 of the Act deals with enforcement of arbitral awards passed in India. As per Section 36(1) of the Act, after the time prescribed for making an application to set aside an award under Section 34 has elapsed, an award is to be enforced as a decree of a court. From a conjoint reading of Sections 34 and 36 of the Act, it clearly emerges that an arbitral award is to be enforced as a decree of the civil court upon the expiration of three months or in the event the proviso has been invoked, 120 days from the date the award was received. Sections 34 and 36 are set out hereunder for the sake of convenience:

“Section 34 – Application for setting aside arbitral award

…………………..

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

……………

“Section 36 – Enforcement

Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).

Provided further that where the Court is satisfied that a prima facie case is made out that,-

Explanation.–For the removal of doubts, it is hereby clarified that the above proviso shall apply to all court cases arising out of or in relation to arbitral proceedings, irrespective of whether the arbitral or court proceedings were commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015 (3 of 2016).”

The Supreme Court had explained the importance of Section 34(3), while interpreting it strictly and had held in Dakshin Haryana Bijli Vitran Nigam Ltd. Vs Navigant Technologies Pvt. Ltd. that the phrase “but not thereafter” used in the proviso to Section 34(3) would amount to an express bar on the application of Section 5 of the Limitation Act, 1960. The Apex Court also held that –

“To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose.”

The Court further referred to its decision in Simplex Infrastructure Vs Union of India wherein it had held that “the phrase “but not thereafter” provided under Section 34(3) of the Act makes it evident that the statutory period of limitation for filing an application for setting aside is three months, which is extendable by thirty days, if sufficient cause is made out. No further period of time can be granted for the filing of an application under Section 34.”

In simple words, the period of enforcement of an Award commences as soon as the period for filing objections provided under Section 34(3) is over. Even a mere petition under Section 34(2) for setting aside the arbitral award shall per se not render the award unenforceable, unless the court grants an order of stay of the operation of the arbitral award in accordance with Section 36(3)on a separate application made for such purpose. This was enunciated by the Calcutta High Court in Kolkata Metropolitan Development Authority Vs South City Projects (Kolkata) Ltd. and Ors. while expounding that, “…Sub-Section (2) of Section 36 has recognised that, an application for setting aside of the arbitral award by itself shall not render the award unenforceable, unless the Courts grants an order of stay of the operation of the arbitral award in accordance with the provisions of sub-section (3) of Section 36 of the Act of 1996, on a separate application made for such purpose. …”

However, the pandemic, and the subsequent ruling of the Supreme Court, have left parties befuddled about whether to file an application for enforcement after 90/120 days are over or whether to wait for further orders of the Apex Court. There is not much precedential basis to take a stand on this, although the Calcutta High Court in SREI Equipment Finance Limited Vs Marg Limited has adopted the Supreme Court’s order stricto sensu. The High Court held that an award cannot be enforced until the period of limitation for filing a Section 34 application has not expired in the following terms:

“11. The question in the present case is whether the time for the award-debtor to apply under Section 34 for setting aside of the award has elapsed or continues to run. The answer to the question then must entirely turn on the effect of the order of the Supreme Court dated 27th April, 2021. The portion set out above makes it clear that the earlier order of 23rd March, 2020 was being restored as an extraordinary measure to lessen the difficulties faced by litigants in the upsurge of the pandemic. The order clarifies that the period of limitation whether under general or special laws or in respect of judicial/quasi judicial proceedings, shall stand extended till further orders. The intention of the Supreme Court is to preserve the rights of litigants who would otherwise have missed the statutory deadlines for instituting proceedings in the courts. The applicant’s time to file the Section 34 expired on 7th December, 2020 and the applicant hence comes within the zone of benefit given to litigants commenced from 15th March, 2020 and continued to run as on the date of filing the present application – 21st June, 2021. Simply put, the time to apply for setting aside of the award dated 31st August, 2020 has still not expired.

12. Any other interpretation of the orders passed by the Supreme Court would lead to an absurd result. If the Supreme Court orders were construed as not limiting an award holder from enforcing the award under Section 36(1) and (2) of the Act, it would in effect take away the benefit given to litigants who failed to institute proceedings within the period of limitation. It would lead to a scenario akin to opening a window but drawing the curtains to prevent the sunlight from coming in; a more topical analogy would be lifting of travel curbs but shutting down places where people may visit. This surely cannot be what the Supreme Court intended.”

As such, the award cannot be enforced. However, the Calcutta High Court’s decision was not unconditional. While applying the Supreme Court’s decision to extend the limitation periods to challenging an arbitral award under Section 34, the High Court also added that the rights of the award holder cannot be kept in abeyance indefinitely and thus, the award debtor was directed to take requisite steps under the Act within 10 days from the date of the judgment, as the law protects litigants who are vigilant and not those who take their rights for granted indefinitely.

The authorsdo not completely concur with this decision of the Hon’ble Calcutta High Court, as Section 36 enables a party to apply for enforcement of award when the period for challenging an award under Section 34 has expired and it cannot be deemed that the period would stand extended for an uncertain period by the orders of the Hon’ble Supreme Court. It is essential to note that the Supreme Court’s intent was to pass a welfare ruling to diminish the inconvenience of the stringent limitation periods. But if the Calcutta High Court’s proposition were to be accepted, then enforcement of an arbitral award can be delayed by an award debtor taking recourse to the order of the Supreme Court, thereby, defeating the ethos of speedy alternative dispute redressal enshrined in the Act.

This is reinforced by a recent decision of the Hon’ble Delhi High Court in Bharat Kalra Vs Raj Kishan Chabra wherein the following observation was made with respect to the Order:

“13.  While it is true that the power to condone delay is intended to advance substantive justice, nevertheless, procedure cannot be given a complete go by. The powers of the court to condone delay is to be used in appropriate cases. No litigant can assume that, as a matter of right, the delay in taking steps would be condoned, because procedure is the handmaiden of substantive justice. Rights accruing to the opposite party on account of the delayed action need to be also kept in mind. The reasons given for explaining the delay are of paramount importance and not the length of the delay. The shortness of delay alone ought not to suffice for exercise of discretion to condone it. Cogent and clear explanations have led the courts to condone the delay, even of five years in filing the pleadings. …

…15. It was thus made clear that the benefit of the order dated 23^rd March, 2020 would be available only to those who were vigilant of their rights and not lethargic.”

Although the Hon’ble Supreme Court expressly mentioned in its order dated July 10, 2020 (Cognizance for extension of limitation, In Re) that all periods of limitation under the Act shall stand extended as the Order will be deemed applicable to the Act as well, however, the dubiety regarding the enforcement of award is still an open-ended question and is yet to be decided finally by the Hon’ble Supreme Court but until then, in the humble submission of the Authors, the perk of the Hon’ble Supreme Court’s order should not be misused to cause inconvenience to award holders.

Anant Garg is Partner, and Sreejita Mitra is Associate, at L&L Partners Law Offices.

January 13, 2022

A crime is an act or omission declared to be crime by the State. A crime or offence is hazardous not only to an individual but also to the society at large or the state. In recent years, the crimes, based on their nature, objective, modus operandi and consequences, have been classified as ‘blue-collar crimes and ‘white-collar crimes’.

Blue-Collar Crime:

General cluster of crimes is widely referred to and categorized as ‘blue-collar crime’, though that is not an official legal classification. For the ease of understanding, a crime which is committed for immediate benefit or gain to the individual or a group involved is referred to as blue-collar crime.

The term ‘blue-collar crimes’ was originally coined to loosely define those crimes committed by someone from the working or lower echelons of society. It is understood that generally the people belonging to the lower-echelons of society are more likely to be pushed into crime due to their quest of survival than for greed or power. During the1910s in America, manual laborers who were from society’s lower-segment often opted for blue shirts so that stains gained from days at work were less visible. The term ‘blue-collar workers’ was attributed to them as defining low income earners.

Mostly blue-collar crimes are those crimes that are considered to be triggered by passion, rage or other emotions, unemployment etc. Crimes that cause injury to people or property, such as burglary, property crimes, theft, murder and other violent crimes, assault, sex crimes, breaking and entering and drug crimes are considered to be blue-collar crimes.

White-Collar Crimes:

In contrast to blue-collar crimes, ‘white-collar felony’ refers to financial shenanigans, non-violent crimes committed by persons who, often by virtue of their occupations, exploit social, economic, or technological power for personal or corporate gain. Typically, it includes fraud, bribery, ponzi schemes, insider trading, embezzlement, cybercrime, copyright violation, money laundering, forgery, corruption etc.

A white-collar criminal belongs to the upper socio-economic class who is skirting the law for economic gain while performing his professional assignments. White-collar crimes are committed with a cool mind, planned calculation and deliberate design. In general, the fundamental cause of white-collar crime is economic greed. It is often said “white-collar crimes are committed for greed, not for need”.

There are other contributory causes as well, such as opportunity to commit crime, situational pressure on the individual etc. Some offenders, in fact, do not really consider it a crime because the acts involved do not resemble street crimes. Some business people feel justified in committing white-collar crimes because they believe that government regulations do not really understand the business world or their activities or the problems of competing in the free enterprise system. These crimes are committed by persons who are socially, economically and occupationally well established as well as influential in society. Usually common people cannot make out these types of crimes, although they can perceive the effect of such crimes on them.

One of the prime causes of white-collar crime is ignorance of people about such crimes as their nature is totally different from traditional blue-collar crimes. Rationalizing greed is a common trait of white-collar criminals. Some white-collar criminals believe that everyone violates business laws, so it is not so bad if they also do so. Most white-collar crimes are, directly or indirectly, connected with distribution of wealth, encouraging growth of monopolies, the rise of a managerial class and intricate institutional mechanism.

The concept of white-collar crimes has seen phenomenal growth after colonization and industrialization in the eighteenth century. White-collar criminality has become a global manifestation with advancement of commerce and technology and the reason for its monumental growth is a meteoric rise in economies and industries in past decenniums.

White-collar crimes are dangerous to wider sections of society as these crimes directly affect the financial condition of the country itself by putting the nation into great financial hardship.They have a serious impact on society and thus they are serious offences. The methods by which taxes are evaded or black money is floated in the market and money laundered are all examples of such offences, which are committed purely for personal gains at the cost of heavy loss to the State.

White-collar crimes’ cause economic misbalance, which impacts society in the form of poverty, unemployment, economic slowdown, inflation etc. As a result, there is an artificial economic crisis in the market and the price of goods ultimately rises. When white-collar criminals evade taxes, partially or as a whole, the entire fiscal policy of the Government is disturbed. Therefore, due to the malpractice, the society is affected in many ways.

Legislations on White-Collar Crimes:

The Parliament from time to time brought legislations to deal with white-collar crimes and it has proved to be deterrent to an extent.

The Criminal Law (Amendment) Ordinance, 1944 (XXXVIII of 1944) was brought to prevent the disposal and concealment of properties procured by means of corruption, breach of trust and cheating. However, not all crimes under the Indian Penal Code are covered by the said Law.

The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 covers penalty of illegally acquired properties of smugglers and foreign exchange manipulators and for matters connected therewith and incidental thereto.

The Narcotic Drugs and Psychotropic Substances Act, 1985 provides for the penalty of property derived from, or used in illegal traffic in narcotic drugs.

The Prevention of Corruption Act, 1988 and The Lokpal and Lokayuktas Act, 2013 are also legislations aimed at curbing white-collar crimes, though in a specific categories of persons.

The Fugitive Economic Offenders Act, 2018 covers the acquisition of properties, in India and abroad, which are Benami in nature or are covered under the concept of Benami transactions. The act works in coherence with the Prevention of Money Laundering Act, 2002 since the enforcing agency is the Enforcement Directorate. It lays down that a person would be qualified to become a fugitive economic offender only when a non-bailable warrant has been issued with regard to the scheduled offences as mentioned in the Act against the individual and in order to avoid criminal prosecution, the aforesaid individual has left India; or he is refusing to return to India to face the criminal prosecution. The Act has been accompanied by a schedule which provides a list of exhaustive offences under which a Fugitive Economic Offender can be booked. Further, the Fugitive Economic Offender must have committed a fraud or a crime of over Rs 100 crores to be booked under this Act. Lately, the Special courts have declared as fugitives Vijay Mally, Nirav Modi, Asif Iqbal Menon, Junaid Iqbal Menon and Hajra Iqbal Menon (Late Iqbal Mirch’sf amily), Nitin Sandesara, Chetan Sandesara, Dipti Sandesara and Hitesh Patel (Directors of M/s Sterling Biotech Ltd) among others.

The Prevention of Money Laundering Act, 2002 (PMLA) forms the core of the legal framework put in place by India to combat money laundering and obviate white-collar crimes. It has dual parallel provisions: firstly, provision for attachment and confiscation of property, secondly prosecution before the criminal court which has a maximum sentence of 7 years and in exceptional cases it is 10 years.

The Enforcement Directorate (ED) is a law enforcement agency responsible for enforcing economic laws and fighting economic crime in India. One of the main functions of the Enforcement Directorate is to investigate offences of money laundering under the provisions of PMLA and to take actions like attachment of property if the same is determined to be proceeds of crime derived from a Scheduled Offence under PMLA, and to prosecute the person involved in the offence of money laundering. India is a full-fledged member of the Financial Action Task Force and follows the guidelines of the same.

The evolving threats of white-collar crime and money laundering supported by the emerging technologies need to be addressed with equally advanced anti-money laundering mechanisms and laws.

Nitesh Rana is Counsel for the Enforcement Directorate.

January 3, 2022

Since the era of the barons in England, the legal profession and legal education have come a long way. Lawyers, usually classified in the common law system as advocates, solicitors and barristers, face a host of challenges in the profession. Amongst the umpteen number of challenges which lawyers face, the one that stands out the most is not just their specialization in a particular field but their super-specialization, that has become imperative for their survival as professionals. However, the crucial element to achieving specialization is to have a strong rudimentary understanding of the law and how it works in the real world.

After practising on the criminal side for almost a decade, I have witnessed and fairly understood the systematic functioning of our criminal justice system. The defence side is the most challenging one, where the defence lawyer lays down the basic foundation of the case’s defence and the strategy which is to be adopted at the appellate stage, where need be. The defence strategy  adopted by a lawyer at the trial stage becomes a bedrock which cannot be flustered with and therefore the job of a defence counsel is the most crucial while determining the path towards obtaining relief for the client.

The working of the legal profession and court proceedings, in particular, are substantially different from how they are portrayed in movies or television shows which are mostly far from reality. The life of a defence lawyer is way more tiring, time consuming and mostly aggressive (rather than defensive).Being a defence lawyer is a twenty four hour job and we are always on our toes.

Although there is potential for higher pay and considerable job autonomy, defence lawyers face a number of challenges in their roles, including negative public perceptions, demanding clients, lack of proper instructions, uncooperative prosecution, overwhelming evidence records, high expectation of clients, anxiety of the family members of the clients, impractical timelines, professional commitments, etc. With the advancement of technology, insurmountable  amounts of information has been made easily accessible to everyone, which poses a new challenge for the defence lawyers in dealing with their clients and the public at large.

INITIAL YEARS

The first few years in litigation, particularly as a budding defence lawyer, are often time consuming and involve less remuneration which becomes a concern for many young lawyers who contemplate shifting their area of practice to the corporate sector. While the corporate sector/law firms do provide good salary packages to fresh graduates, the work often gets monotonous and involves less to minimal client interaction. All this, of course, is subject to the setup or firm one is in. In criminal litigation, on the other hand, one has to dedicate her/himself to understanding and learning the procedure in the formative years without expecting an attractive pay cheque or returns whatsoever.

WORK-LIFE BALANCE

Every line of work demands some sacrifice but in a defence lawyer’s life most of his time is spent doing work and one’s relationship with family and friends often suffers. The workload coupled with extensive hours makes forming and maintaining relationships quite cumbersome. Be it a trial strategy, a bail or a cross-examination, one has to put long hours for preparing the same. If one doesn’t totally dedicate her/himself in this tangent of the profession then this not the right career path.

NEGATIVE PUBLIC PERCEPTION

Due to the widespread access to social media and new media,  the public at large often have a wrong perception about lawyers practising on the criminal side. The public, after viewing any article or news piece about a matter, may question the lawyer, his client and his ethics or morals – without being sure of the veracity of the message, which is further circulated causing irreparable damage. People forget that an accused is innocent unless proven guilty and the Advocates Act, 1961 casts a duty upon the Advocate to defend a person whether in his opinion he is guilty or not.

CLIENT HANDLING

A lawyer deals with numerous people but in this profession one has to keep himself/herself apart from their clients emotionally. No matter how stressed a defence lawyer is, emotions should not reflect on one’s professionalism and the quality of work must not be compromised. When clients lie or withhold information from their lawyer, they harm no one but themselves. Additionally, some clients commit crimes that are symptomatic of a deeper problem, such as lack of parental oversight, personal accountability or regard for people. One must not forget that ignorance of law is no defence. Ignorantia juris non excusat. Clients may sometimes also have demands and expectations from their defence attorney that are unrealistic given the facts of the case. At the start of a criminal case, the clients often change lawyers for quick relief which is disheartening.

PRESSURE AND STRESS

Defence lawyers may also experience ethical and moral dilemmas. They may experience a burnout if they consistently find themselves preparing for court at the last minute and staying up late to research. This accentuation is usually compounded when new evidence is presented. Lawyers  may spend hours in the evening after a day in court researching and preparing notes for the next day. If an innocent client is railroaded and found guilty, it not only impacts the lives of the client and his family and the reputation of the attorney representing them as well.

THREATS / SECURITY

A defence lawyer may often deal with defending an accused having a relatively different background, association or belonging from a different community. There are instances which may pose a threat to his life. Often, when a lawyer is unable to secure a desired result for his client, such accused or their associates may cause harm or attack the lawyer. Depending on the threat level, prominent lawyers handling high profile matters are often given security by the local /state police.

Though there may be some downsides to practising as a defence lawyer as briefly explained above, there are no shortcuts to success and one needs to burn the midnight oil to see the shining light on the brighter side of this profession. At the end of the day you know that you are responsible for one’s personal liberty, rights, liabilities etc, therefore, one should  be focussed and work hard. I am certain that success maybe delayed but it would not be denied.

As his lordship Justice Shiavax Jal Vazifdar rightly stated,  “Only a trial court lawyer is a complete lawyer. A trial court lawyer is an artist, while an appeal court lawyer is an art critic”.

The author is a defence lawyer based in Delhi and is the Founding partner of MS Law Chambers.

Disclaimer: This article was first published by Legitquest in partnership with Forbes magazine at https://www.forbesindia.com/legalpowerlist2021/

By Bithika Anand & Nipun Bhatia

December 29, 2021

When we use the word ‘technology’ in the context of law firms, we relate it to virtual courts, paperless offices, a seamless work-from-home environment, and the use of software to streamline the operations. However, in this article, we move a step beyond these aspects of technology and discuss the pervasive adoption of technology in the functioning of law firms.

Today, technology has acquired the role of digital revolution, whereby law firms are envisioning how several aspects of working of a law firm can be transformed with the use of technology. In other words, the true essence of technology in law firm management is the amalgamation of disruption with resources, efficiency, and ability to adapt to the changing commercial-legal environment in which law firms are operating.

While technology started making inroads in the law firm operations at least a couple of decades back, its role was limited to automating operations that were prone to human error. These primarily included time-keeping, deadline monitoring, document management, and the likes. This gradually paved the way, not only for more sophisticated management software systems like Client Relationship Management (CRM) software, Managing Partner Dashboards, but also software that eases the practice of law by facilitating access to court judgments and allowing triggers/reminders related to the court cause lists.

The dependence on technology, however, saw an all-time high once the world came to a halt due to the Covid-19 pandemic. For the first time, law firmshad to fall back on technology and adopt an altogether new way of conducting their operations, with technology playing an integral part of this makeover. While traditionally, law firms are able to leverage their goodwill to continue to attract clients, they realised that lack of technology could severely hamper them permanently, pushing them out of service. Technology acquired the status of a ‘necessity’ from a ‘luxury’.

It inspired the law firms to look for alternate and long-term solutions, rather than relying on available resources. In the midst of crisis, the adoption of new technology became critical to survival and success of law firms. Right from remote workplaces, e-filing to conducting technology-based research and virtual hearings, the role of technology in streamlining the functioning of law firms enhanced manifold. Today, technology has assisted in minimizing the amount of time required to handle cases, the cost of providing legal services, and the probability of human errors. It has also streamlined communication with clients and is fostering the use of Artificial Intelligence (AI) for improvising and innovating legal services and ensuring compliances. 

Perhaps, it’s important to highlight here that the biggest advantage of technology is the efficiency it lends to the management of law firm operations. As you read this article, several law firms have already adopted software that works on algorithms to automate repetitive tasks, scrutinize users’ behaviour, and drafting style to create drafts using AI. Analytical tools are being combined with user behaviour to optimize the time spent on basic factual research. AI is also increasingly being considered to scrutinize documents and automate other mundane work, allowing lawyers more time to practice law and work on matters that require their core legal expertise. Ultimately, it enhances the value proposition of the legal service provided by law firms.

However, we can’t just focus on the silver lining and must also understand that while navigating the law firm technology landscape, there are challenges that need to be addressed as well. The three challenges that are key to imbibing technology in law firm management are the security threats, the cost of creating a digital environment, and most importantly, the acceptance by human resources.

Security and confidentiality remain at the top of the possible concerns of digitization. When the pandemic hit the world in 2019-20, most Indian law firms were swift to announce that they are available 24/7 and that their teams are equipped to work from home. However, not many of them realised that without adequate security systems in place, their data is prone to serious threats. A few law firms had to incur considerable costs in getting their IT systems audited for security and obtain certification to convince their multi-national clients. Law firms handle sensitive information and there is zero-tolerance for any compromise on confidentiality. Firms must adhere to security best practices on all devices used by their resources, whether at workplace or home. Most breaches can, however, be prevented by technical security measures deployed by the company (for instance, firewalls). However, law firms must ensure that digital security is as much a priority as digitization, to enhance clients’ confidence in the firm.

The second limitation is cost. Setting up a tech-based environment could appear to be expensive, especially in cases where the initial outlay is large. However, most of the technology or software providers now offer ways in which the investment is spread over a long-time. Of course, costs incurred towards maintenance, upgrade and security will be of recurring nature and require a financial commitment from the firm. However, if the firms have capital to make the initial investment, the switch to technology is profitable in the long term.The Return on Investment (RoI) on technology is not just positive, but massive in most cases and cannot be achieved through any other alternative when evaluated over a period of time.

Lastly, the adoption of technology can neither be done because ‘others are doing it’, nor because it’s the ‘in thing’. It’s a shift of mindset to move to a more seamless working environment and the willingness to adopt the change whole-heartedly, even if it entails initial teething issues. The focal point of imbibing technology in your law firm has to be twofold – the clients and the human resources. The technology must operate for the benefit of the client and must make your human resources more ‘enabled’. The initial human reaction to every change is aversion, but with the right dialogue and messaging,human resources can be made to understand that technology can also be to their aid by addressing mundane and repetitive tasks. This also enhances lawyer satisfaction as they can be engaged in more meaningful and high-end tasks.

To sum up, technology has had an impact on every aspect of legal industry – from corporate practice to law firms and courtroom proceedings. With ever-increasing competition and to ensure that India’s law firms walk shoulder to shoulder with their foreign counterparts, law firms cannot function oblivious of technology. Technology can upgrade the operations and efficiency of law firms, provided the challenges are addressed. Today, technology is forward-thinking, solution-oriented, and is changing the face of the way law firms are being managed and run.

The article has been authored by the team of Legal League Consulting comprising of Bithika Anand, Founder & CEO and Nipun Bhatia, President – Strategic Legal Management. The research has been contributed by Tejas Khurana, Consultant and Kashish Grover, Knowledge Intern.

Disclaimer: This article was first published by Legitquest in partnership with Forbes magazine at https://www.forbesindia.com/legalpowerlist2021/

By Kunal Doshi & Somrita Chatterji

December 27, 2021

For about the last two years while we have all become accustomed to the news being dominated byCOVID-19 and its effects, there is another important story that has perhaps not been getting the recognition that it should – that investments and deal making in India are at all-time highs despite the pandemic. While there have undoubtedly been ill-effects on the economy on account of the pandemic, a closer look at the numbers reveals that there has been a flurry of M&A activity at the same time. 

Industry reports and Government databases alike suggest a continual growth in investments in India, and M&A activity in India in 2020 excelled and surpassed expectations. The year 2021 seems to be following the trend. Ata time when people had to adapt to unique working conditions, India recorded its highest value of foreign investment received. This, however, is not an unexpected or erratic peak in the graph. It is the result of systematic reforms and policy changes, geo-political shifts and the inherent nature of the Indian demographic.

In order to facilitate higher levels of overseas investment into India, the legislative policy in recent years has seen further liberalization and rationalization of investment norms, permitting investments in a large number of sectors without many regulatory hurdles while simplifying investments in many others. A good example of this is the streamlining of the regime for single-and multi-brand retail trading, which has undergone multiple revisions in the recent past. This has made it easier for the likes of not just Amazon and Walmart, but a number of other players to make investments into India. Where approvals are needed, the process has been rationalized with approvals now being required from sectoral regulators.

In addition, the Indian antitrust and competition law regime is also among the most evolved in the world, and has also facilitated quicker transactions by prescribing certain exemptions which, if applicable, do not require specific approvals. In addition, where an approval is needed, the CCI has recently introduced a ‘Green Channel’ route which provides for automatic approval of certain transactions immediately, which has resulted in fast tracking of a considerable number of transactions.

It is also worth highlighting that key regulators in India dealing with M&A activities such as the Reserve Bank of India (RBI), the Securities and Exchange Board of India (SEBI) and the Competition Commission of India(CCI), are sophisticated institutions and informed market administrators who have adopted a commercial and constructive approach in the discharge of their duties.

There have also been significant and far ranging changes made to disputes laws in India, with the introduction of designated ‘Commercial Courts’ and a thorough reworking of arbitration law, all designed to lead to quicker outcomes for commercial disputes. This has translated into the M&A space, resulting in increased investor confidence and a general fillip to investments.

This increased investment activity is also apparent at a global level. Based on published figures, India’s inbound investment for the first quarter of 2021 (USD 15.4bn across 42 deals) is half of the total inbound deal value in the whole South Asia region, and outpaces investments into China (USD 9.4bn across 18 deals). Given recent geo-political realities, more and more investors are increasingly looking to India as an avenue for opportunities, and it is apparent that India is benefiting from the reduced levels of investment into its neighbours.

India’s large population is also a key factor driving investments, with rising urban disposable incomes and internet connectivity, among other things, making India the final frontier for many international companies. It also doesn’t hurt that the average age of the Indian populace is 29 years, making it one of the youngest national populations globally.[1]Apart from being a huge consumer base, access to a large, young, English-speaking workforce, who are increasingly tech-savvy, India is an ideal pick for many international companies who are looking to grow or base their operations. This is perfectly illustrated by the tremendous growth of IT-based businesses in India, with massive investments being made into start-ups founded by young, skilled founders. Ultimately, though, the bottom line is the real clincher. There has been a spate of hugely successful IPOs of private equity backed companies like Zomato, Nykaa, and Policy Bazaar, to name a few, with big returns to investors.

While these along with other economic and social reasons have contributed to the growth of M&A activity in India, the journey isn’t over, and there are many more steps to take to improve the landscape further. Work needs to be done to spread investments more evenly (currently it is largely concentrated in a few states), not to mention creating more opportunities in manufacturing and supply chain activities, and other under-invested sectors. Policy makers must continue the process which has been well begun to maintain these levels of investment and activity.

The authors are both Partners at Veritas Legal Advocates & Solicitors, Mumbai.

Disclaimer: This article was first published by Legitquest in partnership with Forbes magazine at https://www.forbesindia.com/legalpowerlist2021/

[1]https://indbiz.gov.in/one-of-the-youngest-populations-in-the-world-indias-most-valuable-asset/#:~:text=India’s%201.3%20billion%20people%20make,create%20a%20’demographic%20dividend‘.

By Nilesh Tribhuvann

December 22,2021

In the past decade, the reserved and exclusive nature of the legal industry has spontaneously opened to wide ranging democratization which has brought forward path breaking synergies for all involved stakeholders. Owing to multiple sections of life whether personal or professional being governed by growing number of laws and regulations, the world of law is now not the exclusive patronage of huge conglomerates, but lately it has sincerely aspired to become more accessible to the layperson.

The exceptional state of affairs brought in by the Covid-19 pandemic has been instrumental in bringing about an unparalleled shift in our collective perspective towards life and the way we choose to live and simplify it. Being the reflection and the indispensable underlying support to the society, the legal world is fast embracing an unprecedented, steady but necessary change. The industry is proliferating into smaller organizations rather than large law firms which the layperson and even small and medium businesses have historically found difficult to deal with owing to inherent procedural complexities and massive cost considerations. During the difficult times of the raging pandemic, these boutique law firms rapidly adapted to the changing legal and judicial system and skilfully catered to the needs of the clients even in a digital and remote world.

The advancement of boutique law firms has adeptly shifted focus to fostering close-knit people-to-people relationships, put greater emphasis towards changing the erstwhile lopsided work-life balance, and has enhanced the level of personal attention and expertise to individual matters by provision of proficient client-oriented legal services.

In the current scenario, experienced practitioners are increasingly choosing to join boutique law firms spearheaded by like-minded individuals in pursuit of all-inclusive value creation. The positivity and the personal touch associated with emerging full-service law firms has heralded the provision of well-suited legal solutions to a diverse clientele and facilitated a favourable workplace environment for senior partners, associates, and juniors alike.

With the eclectic mix of senior practitioners having a remarkable repository of proven competence and Tier-1 law firm experience, these boutique law firms integrate integrity and ethics and exhibit professional excellence in every step of client association. This trend is giving legal luminaries the chance to lay the foundations of legal organizations based on their own core beliefs and domain expertise with ample flexibility to innovate without the pressure of assimilating into the rigidity posed by the work culture ofbig law firms. For the client, this is a win-win situation as the boutique law firms represent the fine culmination of Tier-1 law firm expertise but with optimal pricing owing to minimal overhead costs – thereby giving the clientele the best of both the worlds. Clients also prefer such value-for-money law firms because the operations are more streamlined, the enthusiasm is pervasive, and it is easier to work with a focused and attentive team which leaves great room for collaboration rather than mere delegation. The client can play an important and active role by reiterating their core objectives every step of the way, proactively participating in the legal strategy and changes,if required and also being a part of a continuous feedback system which is seriously tended to by the team on a real-time basis.

At the core, the boutique law firms listen more and work with clients directly and personally while exhibiting eagerness to learn, unlearn and relearn the fast-changing legal processes and crafting innovative and custom legal solutions in a timely manner. Due to the highly personalised nature of client interactions in boutique law firms, time-saving and prompt legal remedies are natural consequences.Such law firms are also personally invested because they want to secure goodwill in the industry, earn long-term reputational gains and create an impressive repertoire backed by happy clients.

Further, in a boutique law firm, the in-house talent team is self-motivated and independently takes on challenges with full vigour due to the culture of trust, personal accountability, and natural sense of responsibility towards the collective vision for the firm.Such law firms also usually bring together previously successful and compatible teams which not only induces a harmonious work environment and unidirectional planning synergies but also allows cross collaboration with independent experts, thereby allowing best resourcing for the client.

Apart from its human capital, boutique law firms are also well-known for being responsive and agile. This results into an organic first-mover advantage to newer and more challenging practise areas, such as cyber security, data privacy, blockchain, crypto currency, artificial intelligence, andavant-garde investment structuring for the complex requirements of the corporate world.

Being a Founder and Managing Partner of one such law firm, ours is a first-hand example of a successful boutique law firm steadily expanding its client base across geographies because of proven competence, reliable legal advisory, technology-led solutions,innovative approach, and diversified industry-wide acceptance from high-value clientele. We efficiently provide clients with specialised legal services in existing and emerging areas of law such as Banking& Finance; Capital Markets; General Corporate & Commercial Advisory; Litigation & Dispute Resolution; Mergers & Acquisitions; Private Equity & Venture Capital; Taxation, Trade & Custom; Telecommunication & Media; and White-Collar Crimes & Compliances.

As a staunch believer of making law accessible to more stakeholders especially laypersons and transforming the legal industry to truly become client-friendly, I personally look forward to the continuation of this positive trend and aspire to reinforce the credibility and trustworthiness of this honourable profession of law with the honest efforts of my organization.

Nilesh Tribhuvann is Founder and Managing Partner, White and Brief – Advocates and Solicitors

Disclaimer: This article was first published by Legitquest in partnership with Forbes magazine at https://www.forbesindia.com/legalpowerlist2021/

By Anand Desai & Vikrant Singh Negi

December 8, 2021

Since the liberalization of the Indian economy in 1991, the Indian Government has shown an unwavering commitment to economic reforms.  Today, India is the world’s sixth-largest economy by nominal GDP,with a positive market sentiment and increased investor confidence. This growth has been accompanied with a proliferation of business operations, commercial transactions, and entrepreneurship.

India’s laws can be broadly bifurcated into civil laws and criminal laws.  While civil laws are intended to protect the personal and business rights of people, criminal laws deal with maintaining law and order, and identify offences with corresponding punishments. Criminal offences are considered to be either against the State, or against individuals, or both.

India has a separate set of Courts for criminal and civil cases, until the case is in a High Court or the Supreme Court of India, in which case also separate benches are constituted to hear and decide criminal cases and civil cases.Thelarge backlog of cases in Indian Courts is not new. Despite efforts of constituting special tribunals, encouraging arbitration and conciliation, and having provisions in law for compounding offences, the number of cases pending in Courts keeps growing. Naturally, the delays in hearing cases and passing judgments has an adverse effect on the efficacy of our legal process.

Over timepenal provisions have been introduced in several civil and commercial laws, for example for dishonour of cheques, and violations of company law. These include imprisonment on being convicted and sentenced. Further, the power of pre-conviction arrest is made available to an increasing number of agencies.In addition to the police,this currently includes the Central Bureau of Investigation, Enforcement Directorate, Narcotics Control Board, and Serious Frauds Investigation Office. With the backlog in pending cases, and the increasing complexities of commercial transactions, matters such as alleged fraud, cheating, money laundering and criminal breach of trust have resulted in several alleged white collar crime undertrials being arrested and held in prison, awaiting bail or acquittal for such alleged offences.

The access to information technology and the quick rise of the digital economy to vast sections of population has changed the economic and social background of criminals.  Crimes involving fraud, bribery, corruption, cyber threats such as ransomware, spear phishing; counterfeiting, insider trading, embezzlement involving publication of falsified balance sheet of business, passing of goods, concealment of defects in the commodity for sale etc., racketeering, larceny as well as terrorism are now crimes that are agnostic tothe educational, economic and social background of perpetrators.    

In the recent past, India has witnessed several pre-trial arrests of corporate heads and directors, in what are alleged to be large scale frauds. This also results in change of the management/ boards, criminal proceedings against the conspirators including directors/ promoters, attachment of assets of large conglomerates, and a spate of insolvency actions. 

The Indian Penal Code has different provisions dealing with offences affecting the human body, and offences against property and in respect of documents.  Though the nature of these offences is different, the Criminal Procedure Code does not differentiate between them, and white collar crimes are considered to be at par with certain heinous offences.  For instance, in white collar crimes the evidence, which is mainly documentary in nature, is collated and kept in the custody of the prosecution very early in the investigation.  However, of late the investigation agencies often take coercive action against the accused persons, including arrest, travel restrictions, and attachment of property, claiming that evidence can be tampered with, or that the accused person may flee the country.

Imprisonment involves the loss of personal liberty, a fundamental right enshrined in Article 21 of the Indian Constitution.  Yet, in case of ultimate acquittal, there is no accountability or consequence on the State or arresting agency.

There are undertrials who have been in prison for longer than the maximum sentence that can be imposed on them for the crimes they are charged for, which is a fallout of the delays in the judicial system.

Safeguards are often spoken of in judgements of the Supreme Court and High Courts, but the reality of such undertrials being in prison continues. In the case of Arnab ManoranjanGoswami vs The State Of Maharashtra decided on 27 November, 2020, the Supreme Court said “Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.”and further “The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many.” 

Though the courts enunciate the doctrine of “bail is a rule, jail is an exception” on the premise that it safeguards the fundamental right to life and liberty,when it comes to several alleged offences, including white collar offences, the same principle is too oftenignored on the premise that economic offencesare committed with cool calculation and deliberate design with an eye on personal profit, regardless of the consequences to the larger community.

Another critical issue is the relatively inadequate understanding of complex corporate and financial matters, such as the nuances of intricate accounting or financial transactions. Law enforcement agenciesmay also belacking the sophisticationofcomplex market practices, which underlieseveral corporate transactions.

On the subject of the technological revolution, while it has benefitted several aspects of life across the country,it has largely left the subordinate judiciary untouched, particularly the trial courts that have the bulk of work in criminal matters. Even the higher judiciary could well use available technology, with adequate safeguards, to enhance efficiency in categorising and deciding cases, and also increase the involvement of appropriate experts to aid in complex cases. 

Anand Desai is Managing Partner and Vikrant Singh Negi is Partner, DSK Legal. 

Disclaimer: This article was first published by Legitquest in partnership with Forbes magazine at https://www.forbesindia.com/legalpowerlist2021/