COMPETITION COMMISSION OF INDIA HAS HELD MULTIPLEX OWNERS NOT LIABLE FOR ANTI-COMPETITIVE PRACTICES

Recently, the Competition Commission of India (C.C.I) has dismissed a case filed in Unilazer Ventures Private Limited v. P.V.R. Ltd. and others 24-07-2019 in which the Informant made the following main allegations:

  1. That lavish multiplexes colluded charge higher virtual print fee (V.P.F) from Indian film producers/distributor than Hollywood producers/distributors
  2. That multiplexes play longer duration advertisements to make profits, as a result of which the efforts of the producer in curtailing the length of the film are disrupted
  3. That the multiplex owners being in a position of strength unilaterally prescribed terms of revenue sharing with the producers/distributors.

But the CCI dismissed the aforesaid allegations on the following grounds:

  1. That there was no evidence of any anti-competitive agreement amongst the multiplex owners leading to imposition of common V.P.F on Indian producers. 
  2. That the allegation pertaining to longer duration of advertisements does not fall under the ambit of the Competition Act 2002 as amended thereof (the Act).
  3. That the revenue sharing arrangement between producers and multiplex owners was made with mutual consent and due deliberations.

Thus, the C.C.I held that the multiplex owners were not liable for carrying out any anti-competitive practices in contravention of the provisions of the Act.

Govind Gupta

Associate

The Indian Lawyer

PARLIAMENT PASSES RIGHT TO INFORMATION (AMENDMENT) BILL, 2019

The Rajya Sabha on Thursday passed Right to Information (Amendment) Bill 2019, which was cleared by Lok Sabha on Monday. This caused a stir not only in the political houses but also across the nation, as the Amendment received mixed reactions.

The Bill has basically amended two sections i.e . Section 16 and Section 27 of the Right To Information Act 2005 (Act), but its implications are said to be highly political. Bill proposes to change the fixed term of the Information Commissioner, and make their pay and service conditions subject to the executive rules to be made by the Government.  As per the current Act the Chief Information Commissioner and Information Commissioners have fixed term of five years, but the new Bill changes that and instead, states “ for such term as may be prescribed by the Central Government”. Even the term of State Information Commissioner is curtailed by the Amendment.

Other Section, which has been amended i.e. Section 27, will now give rule-making power to the Central Government to determine the pay, allowances and service conditions of Information Commissioner. The present Act states that the salary and allowances of Chief Information Commissioner and Chief Election Commissioner will be same, which are fixed as per the provisions of the Constitution. It is assumed that the RTI Act has consciously given similar status to both in order to ensure that they function independently and autonomously.

Although while introducing the Bill, Jitendra Singh, Minister of State of Ministry of Personnel, Public Grievances and Pension, said that Information Commission was a statutory body and it was an anomaly to equate it to a constitutional body like Election Commission. Making Information Commissioners equal to the status of Election Commissioners means that they are at par with Supreme Court judges. However, the orders of Information Commissioners can be challenged in the High Court. Therefore, there is an apparent anomaly in the status of Information Commissioners, which needs to be rectified, explained the Minister. The attempt of the government is not to undermine the autonomy of Information Commissioners, but to bring in uniformity in services, said the Minister. He also pointed out that the Sections 12(4) of the Act, which ensures the autonomy of Information Commissioners, has been left untouched by the amendment. The process of appointment of Information Commissioners as specified in Section 12(3) has also been kept the same, the Minister added.

The political parties along with former Information Commissioner have assailed the Bill, as they said that this Bill will weaken the whole structure and will make them subservient to the political executive and will defy the whole purpose of the Act itself.

Sourabh Kumar Mishra

Senior Legal Associate

The Indian Lawyer

IMPROVED RANKING OF INDIA IN THE GLOBAL INNOVATION INDEX 2019

The Global Innovation Index (GII) has recently released its innovation rankings of various economies, in New Delhi on 24-07-2019. India has shot-up five places to improve its position from 57th in 2018 to 52nd in 2019, whereas, Switzerland has bagged the first place in the GII Index.

GII is said to be a leading reference on innovation, as over the years, it has been indicating the innovation capabilities and results of developed and emerging economies across the world. The GII determines the rankings based on various criteria such as (1) institutions, (2) human capital and research, (3) infrastructure, (4) market sophistication, and (5) business sophistication (6) knowledge and technology outputs and (7) creative outputs.

Various knowledge partners have collaborated with GII including the Confederation of Indian Industry (CII), believing in the role of innovation in increasing the competitiveness of nations, economic growth, etc.

The Union Minister of Commerce and Industry and Railways, Shri Piyush Goyal, congratulated all those who were involved in the process of innovation and further stated that India aims at positioning itself among the top 25 countries of the GII Index. Thus, he has urged the research and development (R&D) institutions, universities, private sector and the World Intellectual Property Organization (WIPO) to provide innovative solutions to tackle various issues such as pollution, water crisis, depleting natural resources, climate change, food wastage, healthcare, etc that are prevalent in the country.

These continued and innovative efforts to resolve various issues predominant in the country would help to improve the quality and standard of living of people of the country and also help in transformation of the country into a hub of innovation.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

Apostille and Hague Convention

One might wonder when there is attestation, why the need for apostille? Well, both the terms basically mean the legalization of documents. The major difference is the countries. There are countries that accept certificate attestation of documents, while some countries mandate document apostille. And the countries for which apostille of documents is compulsory, have signed the petition for the Hague Convention.

This article is two-parter, the first part is about apostille as an individual term and its role and significance in the process of document legalization. Secondly, the Hague Convention or Apostille Hague Convention is explained in detail with its history and importance.

What is Apostille?

Apostille, pronounced as ‘ ah-poh-steel ’, is a French word that means certification of something. The term has a different meaning in the formal context. Certificate apostille is a process that is carried out for the legal documents of three types – personal, educational and commercial. It is done at the time when there is a requirement for particular documents by the concerned authorities. It is simply the process of obtaining an apostille sticker and stamp on the public documents. The documents are authenticated by the department of central government that attends to the foreign affairs of the country. It varies from country to country.

Why is it required?

In certain cases, an attestation simply is not sufficient. Not every country approves an attestation, and as a result, in cases where the documents have to be used in countries belonging to the Hague Convention, an apostille is required. This can include documents used for several purposes such as applying for a visa or permanent residency, performing business-related work, and so on. By doing an apostille, the document possesses a higher value and becomes valid in all those countries.

Apostille procedure

With the documents, the procedures for the same vary too. Personal and educational documents are generally legalized by a government department, while the commercial documents are authenticated by a non-governmental organization named Chamber of Commerce. The general apostille procedure is as follows:

  • Regional Level: It is the beginning stage of the certificate legalization procedure. This stage of verification can be done by the notary or the board or University from where the documents were issued, as per the requirement or from the Chamber of commerce in the case of commercial documents. This is generally the same for all the countries.
  • State Level: The verification of certificates from the state is carried out by different departments as per the requirement of the document type. Secretariats or the Desk Officers at the State Government perform this procedure. For instance, apostille in India is done by the Home Department or HRD Department. On the other hand, in the USA, the Secretary will attest your documents. There are respective officials and departments in different countries.
  • Central Level: In this step, the central government department provides a sticker which contains the name and other details of the applicant. It is the final step of apostille attestation and is performed by the central government. The Ministry of External Affairs in India and the US Department of State in the USA are the government organizations that apostille the documents. The departments vary from country to country.

Depending on the type of document, the classification of the procedure is given below:

Personal document apostille

The documents that contain personal information of an individual are classified as personal documents. These documents are certified for the issuance of resident, student visa and at times employment visa as well. The step-by-step procedure is as follows:

Educational document apostille

Educational documents are those that contain details of your academic performance like mark sheets or grade sheets, your curriculum and formal documents like school-leaving certificate, migration certificate or the degree certificate. The procedure for the apostille of educational documents differs as per the specific requirement of the country and the institute and state of issuance. The processes are as follows:

Commercial document apostille

Business-related documents that witness the already settled business like the Memorandum of Association, Trademark, Company Profile, and others, are all categorized as commercial documents. The procedure for the apostille of commercial documents is as follows:

When the processes are done on the documents, they are ready to be submitted to the respect Apostille documented authorities. Unlike the attestation process, embassy attestation is not required for the apostilled document. The process is completed by the officials at the Ministry of External Affairs (MEA) by providing a stamp and an apostille sticker on the document.

What is the Hague Convention?

The Hague Convention is a treaty that was passed in order to abolish the necessity for the authentication of documents and promote liberalization. The treaty was signed on 5th of October, 1961 in the Netherlands. Effective from January 14th, 1965, the convention now has 117 country members. When one obtains an apostille on documents once, there is no need for the same documents again for another signatory country. Due to the introduction of the Hague Convention, barriers in trading and other areas have been reduced and there is better accessibility through the nations.

The Apostille Convention was drafted under the Private International Law which is an organization that functions to resolve legal conflicts that occur when one crosses international boundaries. The Hague Conference was the party that drafted the convention.

Apostille in India

Apostille in India is being carried out for 14 years now since it has been a recognized member of the convention. India has been a member of the Apostille Hague Convention since 2005, being accepted in almost all the Hague countries. The Ministry of External Affairs (MEA) is the central government department that carries out the apostille procedure. It is the department that deals with all the foreign matters. In India, the validity of the apostille sticker is six months. The procedure is an indirect course of action that involves attestation readily from the regional and the state government before approaching the MEA.

Generally, the document apostille is done with the assistance of professionals. It is so because the documents that need to be legalized are sensitive and must be handled properly. Apostille services provide facilities in order to make the process convenient for the customer. With the chain of vendors, getting apostille becomes facile.

Article contributed by Ms. Nilam Bhong,

Director, PEC Attestation, Apostille & Translation  Pvt Ltd

THE INTERNATIONAL COURT OF JUSTICE HAS HELD THAT ESPIONAGE IS NOT AN EXCEPTION TO RIGHT TO CONSULAR ACCESS UNDER VIENNA CONVENTION

Recently, the International Court of Justice (ICJ), at The Hague, Netherlands, has directed the Pakistan Government to allow consular access to Mr. Kulbhushan Jadhav and for India to arrange for Mr. Jadhav’s legal representation. It further held Pakistan liable for the violation of Vienna Convention on Consular Relations 1963 (the Convention) by not informing Mr. Jadhav about his rights to consular access under Article 36 (1) (b) of the said Convention.

The said Convention lays down the framework for consular relations between various countries with the object of protecting the interests of their countrymen in the host country, and also, for furthering the commercial and economic relations between the two states.

In the present case, Mr. Jadhav was earlier arrested by the Pakistani forces in Baluchistan Province of Pakistan alleging that he was a spy and that he posed a threat to the sovereignty of Pakistan. Later on, he was charged with the offences of espionage and was sentenced to death penalty by the Military Court of Pakistan. Throughout this period, India had been requesting the Pakistan Government for consular access for Mr. Jadhav under the said Convention, but it had been denied to him. Thereafter, the Military Court of Pakistan sentenced him to death, without granting consular access to him and without informing the Indian Government about his arrest/detention.

To this, the Pakistan Government primarily argued that under customary international law, consular access cannot be allowed to a spy and that the Convention is also not applicable in espionage cases.

But the ICJ had rejected these contentions of Pakistan and held that after the codification of consular rights in the form of Vienna Convention, there has been no scope left for applicability of customary international law. Further, that the Convention does not distinguish espionage cases with other cases, and therefore, the Convention is equally applicable to espionage cases. Thus, the ICJ stayed the death penalty awarded to Mr. Jadhav by the Military Court of Pakistan and allowed consular access to Mr. Kulbhushan Jadhav and the Indian Government.

This decision finds significance with regard to international criminal law as it strengthens the applicability of Vienna Convention and at the same time its enforceability among its member states.

Sourabh Kumar Mishra

Senior Associate

The Indian Lawyer

GOVERNMENT PROPOSES KEY AMENDMENTS TO INSOLVENCY AND BANKRUPTCY CODE 2016

Recently, the Government of India had proposed certain changes in the Insolvency and Bankruptcy Code 2016 as amended thereof (the Code) which have been passed by the Union Cabinet on 17-07-2019.

The said proposed amendments to the Code are as follows:

  1. That a time limit of 330 days has been fixed for bankruptcy resolution of a debtor company. Once the time limit expires, the corporate debtor would be liquidated.
  2. That the bankruptcy resolution or the liquidation of a corporate debtor, as the case may be, would have a binding effect on authorities including the central, state and local governments, to whom the bankrupt firm may owe dues.
  3. That there may be a clarity with regard to the position of financial and operational creditors in the order of priority for the purpose of distribution of sale proceeds after liquidation of debtor’s assets. Although the proposed amendments indicate primacy of secured financial creditors over operational creditors and unsecured financial creditors.
  4. That in cases where there are a large number of creditors such as homebuyers and bondholders, etc, if more than half of these creditors, present and voting in the CoC meeting, approve a resolution plan, it would be considered that the entire class of creditors has approved it. The said voting threshold of 50% has been brought down from the earlier 66% voting threshold.

In this way, these proposed amendments are aimed at facilitating decision-making in the case of bankrupt entities such as property developers, which have a large number of creditors, including homebuyers, and also, in ensuring a speedy resolution of insolvency and bankruptcy process.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

THIRD PARTY FUNDED ARBITRATION IN INDIA – A WAY AHEAD

With a rapid enhancement in cross-border transactions, international commercial and investment arbitrations have gained its relevance. Though, arbitration is the more efficient and time saving procedure especially in Indian jurisdiction, where legal disputes are most time consuming, here arbitration exists with limited beneficiaries. The prime reason for limited use of arbitration in Indian jurisdiction is the exorbitant costs attached to it which makes it expansive process. Parties with disputes involving small amounts don’t prefer arbitration due to high handed fees of arbitrators and other incidental costs.

The concept of third-party funding agreements has helped financially weaker claimants to successfully pursue their legitimate interests without putting their businesses at economical risk. Under third party funding arrangement someone who is not involved in an arbitration provides funds to a party to that arbitration in exchange for an agreed return. Typically, the funding will cover the funded party’s legal fees and expenses incurred in the arbitration. The funder may also agree to pay the other side’s costs if the funded party is so ordered, and provide security for the opponent’s costs.

The concept of third-party funding is statutorily recognized in civil suits under the Civil Code of Procedure in states such as Maharashtra, Gujarat, Madhya Pradesh and Uttar Pradesh. This consent to third-party funding can be adduced from the Civil Procedure Code 1908, which governs civil court procedure in India. Order XXV Rule 1 of the code (as amended by Maharashtra, Gujarat, Madhya Pradesh and Uttar Pradesh) provides that the courts have the power to secure costs for litigation by asking the financier to become a party and depositing the costs in court. The Arbitration and Conciliation Act, 1996 does not mention about third-party funding and therefore its validity need to be checked under Indian Contract Act, 1872.  There are other issues with respect to the enforceability of the award which may be challenged on the grounds of illegal funding arrangement.

Thus, the concept of third-party funding is still new to Indian jurisdiction but it may have positive implications. Especially in India where the amounts involved in the disputes are less, there it becomes pertinent to provide financial assistance to parties with lack of funds. Further this would promote specialized agencies who would finance arbitration and ensure timely enforcements of the awards. Third party funding would make India a pro-arbitration jurisdiction and also bring it in line with international practices.

Saksham Mishra

5th Year, UPES, Dehradun

Intern, The Indian Lawyer

THE NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION HAS HELD DOCTOR AND HOSPITAL LIABLE FOR POST-SURGERY NEGLIGENCE

The National Consumer Dispute Redressal Commission (NCDRC) has recently in a matter of Pankaj R. Toprani and 3 others vs. Bombay Hospital and Research and Medical and 2 others passed a Judgment dated 04-07-2019, whereby the NCDRC held the doctor and hospital liable for post-surgery negligence and further held that the duty of care of doctors and hospitals towards their patients does not end with surgery.

In this case, the doctors of the Bombay Hospital and Medical Research Centre of the Bombay Hospital Trust had performed a surgery on a 73-year old patient (Patient) for Carcinoma of the Sigmoid Colon, after having gone through his medical history of urticaria, glaucoma tension in the eyes, chronic depression, etc (Operation). After the Operation was performed, the family members of the Patient were informed that the Operation was successful and that they would transfer him to the ward. But instead of doing so, they transferred the Patient to post-operative ICU on third floor for keeping him under observation. The following day the Patient had complained of lack of sleep and pain in the abdomen, throat pain, breathlessness, chocking sensation and suddenly had convulsions. The family members of the Patient were then informed that he had suffered a Bradycardia Attack, which is said to be a condition wherein an individual’s heart rate goes low as much as under 60 beats per minute, as a result of which the heart cannot pump enough oxygen-rich blood to the body. After a few hours the Patient was transferred to the ICU on twelfth floor of another building stating that it had better equipments. Thereafter, when the Complainants did not give permission for a CT Scan to be performed on the Patient on the grounds that he was in a state of convulsions, he was transferred back to the ward in an unconscious state and later on taken back home in the same vegetative state, where eventually he passed away.

The NCDRC has held the doctors and the Hospital liable on the following grounds:

  1. That there was an unexplained delay of 2 ½ hours in shifting the Patient, who was not in a stable condition, from post-operative ICU on third floor of one building to another ICU on twelfth floor of another building. That the doctors and the Hospital should have taken due care and caution in shifting the Patient who had already suffered Bradycardia Attack. As a result of this negligence, the Patient slipped into coma and remained in a vegetative state for a period of almost three years and eventually, passed away.
  • Having regard to a number of Supreme Court Cases, the NCDRC herein has held that the duty of care of a medical professional, who possesses a certain degree of skill and knowledge, starts from the time the patient gives an implied consent for his treatment and the medical professional accepts him as a patient for treatment with a reasonable degree of skill, care, and knowledge, and extends beyond surgery.

Thus, the NCDRC held the concerned doctors and the Hospital liable for negligence in the treatment rendered to the Patient after the Operation was performed, on the ground that the duty of care of a doctor and a hospital extends to taking proper care of a patient, post-surgery. The NCDRC herein directed the Hospital to pay Rs. 30,00,000/- and the Doctors to jointly and severally pay Rs. 1,00,000/- as compensation to the family members of the deceased Patient.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

KEY POLICY CHANGES IN THE EDUCATION SECTOR IN THE UNION BUDGET 2019

The Union Finance Minister while presenting the Union Budget 2019 gave importance to the education sector by introducing major education policies. The Union Government has allocated Rs 94,854 crore for the education sector in this Budget for 2019-20. This is an increase from the revised Budget 2018-19, which was at Rs 83,625.86 crore. Of the total Rs 94,854 crore education Budget, Rs 56, 536.63 crore has been allocated to the school sector and the rest Rs. 38,317.01 crore has been pegged for the Department of Higher Education. In the school sector, a total amount of Rs. 36447.4 crore has been allocated to National Education Mission also called as Samagra Siksha Abhiyan, which amalgamates other schemes namely Sarva Shiksha Abhiyan (elementary education) and Rashtriya Madhyamik Shikha Abhiyan (secondary education). Along with this a mid-day meal programme has been allocated an amount of Rs 11,000 crore. 

 Major announcements:

  1. New Education Policy to transform India’s Higher Education System to one of the best global education systems.
  2. Creation of National Research Foundation to fund, co-ordinate and promote research. A total amount of Rs 608.87 crore has been allocated under the head ‘Research and Innovation’.
  3. ‘Study in India Program’ to help India attract foreign students to make India a global Higher Education Hub.
  4. Setting up ‘Higher Education Commission of India’ to promote autonomy and focus on academic outcomes. HECI will replace the University Grants Commission.
  5. Setting up of National Sports Education Board for development of sportsperson under Khelo India Scheme.
  6. Rs. 400 crore provided for “World Class Institutions”, for FY 2019-20.
  7. To prepare youth for overseas jobs, focus to be increased on globally valued skill-sets including language training, Artificial Intelligence (AI), Internet of Things (IoT), Big Data, 3D Printing, Virtual Reality and Robotics.

India is now poised for entry of foreign business in various sectors. The fact that the Budget has made an allotment for foreign students goes a long way to show India’s global approach not only in business but also in education. The Indian Intelligence is recognized worldwide as being superior. This is proved by the fact that most CEOs of large multi-nationals are from India.

Suchitra Upadhyay

4th Year

IIMT And School of Law, GGSIP University Delhi

Intern

The Indian Lawyer

HIGHLIGHTS OF THE UNION BUDGET 2019-20: FOCUS OF THE GOVERNMENT ON DEVELOPMENT OF INFRASTRUCTURE SECTOR IN INDIA

The 89th Union Budget 2019-20 has been recently presented by Finance Minister, Smt. Nirmala Sitharaman (the Minister) on 05-07-2019. The Government has planned to invest Rs 100 Lakh Crore in infrastructure over next 5 years.

Focusing on the infrastructure sector, the Minister has proposed several measures with a vision for the next 5 years for the development of infrastructure sector. The highlights of such measures are as follows:

  • Under the Pradhan Mantri Gram Sadak Yojana:

The Bharatmala Programme: It would help develop national road corridors and highways

The Sagarmala Programme: It would enhance port connectivity, modernization and port-linked industrialization.

The Jal Marg Vikas Project: It aims at smoothening internal trade carried out through inland water transport and at reducing the cost of transportation through waterways.

The Ude Desh Ka Aam Nagrik (UDAN) Scheme: It would make way for cheaper air travel and also, connect remote parts of the country.

  • The Metro Rail Projects: Out of a total route length of 300 kilometers approved during 2018-19, about 210 kms metro lines have been operationalized in 2019.
  • Incentives for advanced battery and registered e-vehicles:

GST rate on electric vehicles is proposed to be lowered from 12% to 5%

Proposed additional income tax deduction of INR 1.5 Lakh on the interest paid on loans taken to purchase electric vehicles. Provided the loan has to be taken on or before 31-03-2023

Customs duty would be exempted on certain parts of electric vehicles such as e-drive assembly, on board charger, e-compressor, charging gun

  • Roadways: Comprehensive restructuring of National Highways and development of State road networks. Further, the Government has proposed to increase Special Additional Excise duty and Road and Infrastructure Cess each on petrol and diesel from Rs 8 per litre to Rs 9 per litre.
  • Waterways: Movement of cargo on River Ganga to increase four times with the construction of two more terminals at Sahibganj and Haldia
  • Water supply: Jal Shakti Mantralaya to focus on creation of local infrastructure including rainwater harvesting, groundwater recharge and management of household wastewater for reuse in agriculture
  • Railways: Proposal to use Public-Private Partnership to hasten the process of development and completion of tracks, rolling stock manufacturing and delivery of passenger freight services.
  • Power connectivity: Proposal to implement One Nation, One Grid that would ensure power availability to states at affordable rates

Thus, the Government has aimed at increasing investments for the development of the aforesaid infrastructure sector and also other sectors including digital economy, job creation in small and medium enterprises, and water management in India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer