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The Supreme Court has recently passed a judgment in Dr. Subhash Kashinath Mahajan vs. the State Of Maharashtra and Anr. on 20.03.2018 and held that there is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.

Herein, the Respondent-Complainant, a store-keeper at the Government Distance Education Institute, Pune (College) and a member of Scheduled Castes/Scheduled Tribes (SC/ST), had lodged an FIR against the Directors of the College, under various provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act) and the Indian Penal Code (IPC) for making adverse entry in the Respondent’s annual confidential report to the effect that his integrity and character was not good. Thereupon, the investigating officers applied for sanction to the Appellant, the then Director of Technical Education in the State of Maharashtra, under Section 197 Cr.PC against the Directors of the College. But the sanction was refused by the Appellant and five years after passing such order, the Respondent filed an FIR under the Act against the Appellant on the grounds that the he was not competent to grant or refuse the sanction as the Directors of the College were Class-I officers and that in such cases only the State Government could grant or refuse sanction.

After being granted anticipatory bail, the Appellant applied to the Bombay High Court under Section 482 CrPC for quashing the proceedings on the ground that he had merely passed a bonafide administrative order in his official capacity. But the High Court rejected his petition stating that it cannot exercise its inherent powers to quash the proceedings as it may send a wrong signal to the downtrodden and backward sections of the society. Therefore, the Appellant filed an appeal before the Supreme Court against the aforesaid High Court judgment.

The Supreme Court made the following observations and held that:

The provisions of the Act may require a check on any false implications and accusations against innocent citizens on caste lines.

Section 18 of the Act provides that provisions of anticipatory bail under Section 438 of CrPC shall not apply to any case involving the arrest of any person on an accusation of having committed an offence under this Act.

The Object of the Act was that the members of SC and ST are highly vulnerable and often subjected to humiliation and harassment. In the event that the accused-perpetrators of atrocities under the Act are granted anticipatory bail, they may misuse their liberty and threaten/intimidate the victims and prevent or obstruct them in the prosecution of such offenders.

On the other hand, there has also been rampant misuse of such provisions to make false complaints or wreak personal vengeance against public servants/quasi judicial/judicial officers, etc.

Thus, the Supreme Court herein held that the express exclusion under Section 18 of the Act is limited to only genuine cases and is inapplicable where the accused is able to prove that he has not committed any atrocity against a member of SC/ST and that the allegation was mala fide and prima facie false. It further held that limiting the exclusion of anticipatory bail in such genuine cases is essential for protection of fundamental right of life and liberty under Article 21 of the Constitution.

Otherwise, it may be difficult for public servants to conduct their official duties. People may take undue advantage of such provisions of the Act and black mail public servants with the threat of registering a false case under the Act and the public servants may be left with no protection of law. This could not have been the intention of the Legislature behind enacting the Act.

Further, there cannot be a presumption of guilt so as to deprive a person of his liberty without an opportunity of being heard before an independent forum or Court of law.

Furthermore, the innocent persons against whom no prima facie case is made out cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime.

Thus, in case the Appellant apprehends arrest, he is entitled to show to the Court that there is no prima facie made out against him.

Thus, the Apex Court quashed the proceedings filed against the Appellant and further held that any arrest of a public servant under the Act can only be upon approval of the appointing authority and of a non-public servant upon approval by the Senior Superintendent of Police of the concerned district based on reasons recorded, which have to be scrutinized by the Magistrate for permitting further detention. Further, before making any arrest of a public servant, a preliminary enquiry may also be conducted by the concerned Deputy Superintendent of Police to find out whether the allegations make out a case under the Act and the allegations are not frivolous or motivated.

The Government has reportedly taken note of the aforesaid Judgment of the Supreme Court with regard to diluting the provisions of the Act to the extent of automatic arrest and registration of criminal cases under the said law, but the Government has also decided to file a review petition against the said Judgment in the Supreme Court in the coming week.

 

Harini Daliparthy

Senior Legal Associate

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On Tuesday, 13th March 2018, the Supreme Court in the matter Bar Council of India vs. A.K. Balaji and Ors., held that foreign law firms and lawyers cannot open offices or practise profession of law in India either on the litigation or non-litigation side. However, the Supreme Court allowed casual visits by foreign lawyers on a “fly in and fly out” basis for rendering legal advice to clients in India.

The matter was heard by a Bench comprising of Justice A.K. Goel and Justice U.U. Lalit. The matter arose from two appeals which were challenging the Madras and Bombay High Court Judgments on foreign lawyers practising in India.

The Judgment of the Bombay High Court on 16th December, 2009 in Lawyers Collective vs. Bar Council of India, held that the RBI was not justified in allowing foreign law firms to establish liaison offices in India. It had then ruled that such foreign law firms can establish their offices in India only after being enrolled as advocates under the Advocates Act, 1961. This Judgment was challenged in the Supreme Court by the Global Indian Lawyers Association.

The Judgment of the Madras High Court in February 2012 in Global Indian Lawyers vs. Bar Council of India &Ors., held that foreign lawyers and law firms are not permitted to practice law in India either on the litigation or non-litigation side without complying the requirements of the Advocates Act and the Bar Council of India (BCI) Rules. The Court had held that there is no bar on such persons from visiting India for a temporary period on a “fly in and fly out basis”, for providing legal advice to their clients regarding foreign law or their own system of law and on diverse international legal issues. It had further held that there is no restriction against them coming to India for conducting arbitration proceedings in disputes involving international commercial arbitration. This decision of the Madras High Court had been appealed against by the Bar Council of India. (BCI).

However, the Supreme Court in the present matter modified the direction of the Madras High Court in Para 63(ii) that there was no bar for the foreign law firms or foreign lawyers to visit India for a temporary period on a “fly in and fly out” basis for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues. The Supreme Court held  and thereby clarified that the expression “fly in and fly out” will only cover a casual visit not amounting to “practice”. In case of a dispute whether a foreign lawyer was limiting himself to “fly in and fly out” on casual basis for the purpose of giving legal or whether in substance he was doing practice which is prohibited can be determined by the BCI. The Court ruled that, “If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration in view of Sections 32 and 33 of the Advocates Act. However, they will be governed by code of conduct applicable to the legal profession in India. Bar Council of India or the Union of India are at liberty to frame rules in this regard.

The Court said Business Process Outsourcing (BPO) companies providing a range of services to customers like word processing, secretarial support, transcription and proof reading services, travel desk support services and others would not come under the Advocates Act. Thus, the Court ruled that BPO’s would not violate provisions of the Advocates Act only if their activities do not amount to ‘practice of law’ as defined earlier.

On the issue whether the expression ‘practise the profession of law’ includes only litigation practice or non-litigation practice also, the Court held that the practice of law includes litigation as well as non-litigation activities. It relied on the Judgment in the case of Pravin C. Shah vs. K.A. Mohd. Ali to hold: “Ethics of the legal profession apply not only when an advocate appears before the Court. The same also apply to regulate practice outside the Court. Adhering to such Ethics is integral to the administration of justice. The professional standards laid down from time to time are required to be followed. Thus, we uphold the view that practice of law includes litigation as well as non-litigation.”

The Supreme Court has finally put to an end a burning topic that was of great interest to the legal profession. It is now clear foreign law firms/companies or foreign lawyers cannot practice profession of law in India, neither in the litigation nor in the non-litigation side.

Taruna Verma

Senior Associate

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Ranked at No. 16 in the Top 40 Indian Law Blogs published by the Feedspot in https://blog.feedspot.com/indian_law_blogs/ on 06.03.2018.

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A five-Judge Constitution Bench of the Supreme Court of India has recently in a Judgment Common Cause vs. Union of India and Another dated 09.03.2018 upheld that the fundamental right to life and dignity includes the right to refuse medical treatment and die with dignity under Article 21 of the Constitution of India.

Herein, a Writ Petition was filed under Article 32 of the Constitution by the Petitioner seeking declaration that right to die with dignity comes within the fold of right to live with dignity guaranteed under Article 21 of the Constitution. On the other hand, the States had argued that saving a life is the primary duty of the State and that Article 21 of the Constitution means availability of food, shelter and health and does not include the right to die with dignity.

The Supreme Court herein has analyzed the case and concluded as follows:

Euthanasia is an intentional premature termination of another person‘s life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia) either at the express or implied request of that person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia). Further, that euthanasia is an act which leads to a good death.

The Supreme Court in Gian Kaur vs. State of Punjab 1996 SCC (2) 648, had observed that the following constitute a right to live with dignity:

i) right of a dying man to die with dignity when the life is ebbing out, and

ii) in the case of a patient terminally ill or in a persistent vegetative state (PVS), where there is no hope for recovery, the acceleration of process of death to reduce the pain and suffering.

Further, that the Supreme Court in Gian Kaur (supra) has not held that passive euthanasia can be introduced only by way of legislation.

The advancement in medical science and technology has made it possible to prolong the death of patients. A patient, terminally ill or in a PVS, who has come of age and is of sound mind has a right to refuse a specific medical treatment, or all treatment or opt for an alternative treatment, to avoid protracted physical suffering even if entails a risk of death. This is different from an act of suicide, which is a self initiated act with an intent to cause one’s own death. Whereas, a patient refusing medical treatment would merely allow the disease to take its natural course and if, in this process, death occurs, the cause for it would primarily be the underlying disease and not any self initiated act.

Whereas, in cases of incompetent patients who are unable to take an informed decision, the Supreme Court herein held that “the best interests principle” may be applied and such   decision   be   taken   by   specified   competent   medical experts. It may be implemented after providing a cooling period to enable the aggrieved person to approach the court of law. Also, there are advance medical directives which are used across other jurisdictions in such cases. For instance, a living will, medical power of attorney, etc which are documents which prescribe the wishes of a person regarding the medical treatment he/she would want if he/she was unable to share his/her wishes with the health care provider or appoint a trusted person to take health care decisions when the patient is not able to take such decisions.

Dignity of an individual has been internationally recognized as an important facet of human rights and the first and foremost responsibility of the State is to protect human dignity. The Supreme Court in S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1 has held that dignity has been reaffirmed to be a component under Article 21 of the Constitution.

Thus the Supreme Court herein has reiterated that right to life including right to live with human dignity is a part of Article 21 of the Constitution as held by the Supreme Court in Gian Kaur case and further held that the right to live with dignity including smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery/revival falls under the purview of Article 21 of the Constitution of India.

The Supreme Court, therefore, has by this Judgment dated 09.03.2018 made the choice and decision of a patient who is terminally ill or a person in PVS and undergoing a prolonged medical treatment or is surviving on life support, binding for the doctors subject to being satisfied that the illness of the patient is such that it is incurable and there is no hope of his being cured.

 

Harini Daliparthy

Senior Legal Associate

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Ranked at No. 16 in the Top 40 Indian Law Blogs published by the Feedspot in https://blog.feedspot.com/indian_law_blogs/ on 06.03.2018

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The concept and scope of informed consent has been one of the most critical and highly debated issues in medical treatment in India and elsewhere. According to the Supreme Court in Samira Kohli vs. Dr. Prabha Manchanda and Another (2008) 2 SCC 1, consent in the context of a doctor-patient relationship, has been defined as the grant of permission by a patient for an act to be carried out by a doctor, such as a diagnostic, surgical or therapeutic procedure.

The Medical Council of India (MCI) has laid down in the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 that a physician, before performing an operation, should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be. Otherwise, it shall constitute professional misconduct on the part of the physician rendering him/her liable for disciplinary action by MCI.

The Supreme Court in Samira Kohli (supra) has discussed about the following essentials elements of informed consent:

A doctor must give a patient adequate information for him to understand the various aspects of the proposed treatment as given below so that he can make a balanced judgment as to whether to submit himself to the particular treatment or not:

the nature and procedure of the treatment;

its purpose and benefits;

its likely effects and any complications which may arise;

any alternatives if available;

an outline of the substantial risks; and

adverse consequences of refusing treatment.

Such adequate information need not include remote risks, rare complications and possible results of a hypothetical negligent surgery.

Further, the consent obtained by the doctor from the patient before commencing a treatment (including surgery) should be real and valid, which means that: i) the patient should have the capacity and competence to consent; ii) his consent should be voluntary; and iii) his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.

Also, even if a doctor deems necessary any additional procedure or treatment for a patient, then he/she cannot perform such procedure without the consent of the patient unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay the further procedure until the patient regains consciousness and takes a decision. The Supreme Court in another case of Martin F.D’ Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 has also laid down that a doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.

Further, the consent given for a specific treatment procedure will not be considered valid for conducting some other treatment procedure. Moreover, the correctness or appropriateness of the treatment procedure, does not make the treatment legal, in the absence of consent for the treatment. This principle has been reiterated by the Supreme Court in Nizam’s Institute of Medical Sciences vs. Prasanth S. Dhananka & Ors (2009) 6 SCC 1.

The Supreme Court in Samira Kohli (supra) has held that performance of such a surgery was an unauthorized invasion and interference with the patient’s body which amounted to a tortious act of assault and battery and therefore, a deficiency in service under the Consumer Protection Act 1986. The Courts in India have in various other cases also held doctors liable for performing medical treatments and surgeries, etc without obtaining informed consent from the patient.

 

Harini Daliparthy

Senior Legal Associate

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The Competition Commission of India (CCI) has issued an order dated 31.01.2018 against Google LLC and Google India Private Limited for abuse of its dominant position under Section 4 of the Competition Act 2002 (‘the Act’). In the year 2012, two companies, namely, Consim Info Private Limited (now, Matrimony.com Limited) and Consumer Unity & Trust Society (CUTS), (‘the Informants’) had filed two cases No. 07 and 30 of 2012 against Google Inc. (now, Google LLC) and Google India Private Limited, (‘Google’) alleging contravention of Section 4 of the Act.

The Informants had alleged that while conducting the core business of search and advertising, Google has been manipulating the search results and favoring its own services and partners, such as Google Video, YouTube, Google Maps, Google News, etc. Thus, pages in the search results do not appear according to their relevance, popularity, etc. For instance, when we search for a song in the Google Website, we primarily receive links to the videos of that song from Google Video or YouTube, etc. It was further averred that Google is widely recognized as enjoying a dominant status in the search advertisement market because of its market share, size, resources, reputation etc. Therefore, such practices of search bias, search manipulation, denial of access to competing search engines, creation of entry barriers etc amount to abuse of dominant position.

The CCI had directed the Director General (‘the DG’) appointed under the Act to investigate into the matter in 2012. Considering the Investigation Report submitted by the DG in 2015, the CCI made the following analysis:

  1. That online search falls within the ambit of Section 4 of the Act:

Online search engines like Google are a platform connecting advertiser/businesses, etc on one side and users/consumers on the other side. When a search request is made by a user, the platform seeks certain information from the users such as their IP address, device information, location, etc. Such huge volumes of data are used by the search platforms to attract advertisers, target relevant ads and conduct their search business. The platform also earns revenue when a user clicks on any ad displayed by the advertiser through the platform.

  1. Dominant position:

According to the explanation (a) to Section 4 of the Act, “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to— (i) operate independently of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the relevant market in its favor.

Based on the DG Report, the CCI confirmed that Google is a dominant enterprise in both the relevant markets of Online General Web Search Services and Online Search Advertising in India (‘Markets’) based on factors like its size and resources, economic power and commercial advantages, entry barriers, etc.

It further noted that the market share of Google and its competitors show that none of the competitors of Google has so far been able to match Google’s market strength in either Market. The market share, consumers’ and advertisers’ dependence on Google, continuous innovation, etc indicate that the users and businesses are unlikely to switch to a competing search engine. Also, Google’s insurmountable scale advantage and high barriers of entry (as only online general web search market can compete in the search advertising market), etc effectively restrict entry into the search advertising market. Thus, all such market conditions clearly indicate Google’s dominance in the Markets.

  1. Abuse of Dominant Position:

i) The CCI held that Google was wrong and unfair in displaying the search results prior to 2010 in pre-determined/fixed positions instead of ranking them in order of relevance.

ii) The CCI further held that when a user clicks on ‘more results’, the link leads to Google’s specialized services and not any other vertical search service. For instance, the most relevant search result for maps was Google Maps, for flights it was Google Flights, and such others.

Moreover, by doing so Google could collect large volumes of user data but the other competing vertical search pages, which may be equally efficient, could not reap the same benefit, thereby deteriorating their ability to further innovate on their products and sustain and survive in the market.

Further, such practices of search bias cause harm to its competitors, as it adversely affects the competitive landscape in the Markets, as well as to its users, as they may not receive the most relevant results.

iii) Google also prevented partners with whom it entered into search agreements from implementing on their websites any search services which are the same or substantially similar to Google’s search service. This online search exclusivity condition was held to be unfair as it restricts the choice of the partners and denies its competitors access to the search business. Google also had agreements with publishers of ads which restricted the publishers from posting ads in any other search engine which were same as or substantially similar to the ads posted in Google. The other restrictive conditions imposed on such publishers and partners included prohibition from using competing services, or restrictions relating to the manner of placement of ads of competitors, etc.

The aforesaid restrictive conditions imposed by Google on such publishers and partners prevented the competing service providers from achieving necessary scale resulting in creation of entry barriers for them.

Thus the CCI held that the aforesaid conduct of extending and preserving Google’s dominance in the Markets has been held to be violative of Section 4 of the Act. The CCI has, therefore, imposed a penalty of Rs. 135.86 Crores on Google, which is to be deposited within 60 days of the receipt of this Order.

 

Harini Daliparthy

Senior Legal Associate

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The Finance Minister of India, Mr. Arun Jaitley, has laid down the Union Budget 2018-19 on 01.02.2018 in the Parliament of India. The Budget has made an allocation of Rs. 5.97 lakh crore for infrastructure sector including roads, railways, airports, ports and inland waterways (Sector). The Government of India considers this Sector as the growth driver of the economy. Thus, the Budget allocation for this Sector has been increased in 2018-19 (Rs. 5.97 lakh crore) against an estimated expenditure of Rs 4.94 lakh crore in 2017-18.

The Budget has focused on development of the following infrastructure projects:

  • Development of existing infrastructure: The Budgetary allocation is more focused on developing the existing infrastructure projects, both urban and rural, thereby, providing maximum livelihood and long term employment opportunities through education and skill development and has, therefore, refrained from making any new project announcements.
  • Development of rural infrastructure: This includes development of rural roads, rural houses, household electric connections, animal husbandry sector, irrigation, rural electrification, potable drinking water and access to toilets etc.
  • Creation of infrastructure for seaplanes: For the purpose of boosting regional connectivity, the Government has planned to introduce seaplanes and a passenger-friendly toll policy. It has also planned to encourage investments in seaplane services for tourism and emergency medicare purposes.
  • Facilitating air travel: Under the Government’s Regional Connectivity Scheme that has already connected 16 new airports and aims to connect 56 unserved airports and 31 helipads, the Government proposes that at least half the seats on every flight should have a fare cap of Rs. 2,500 per seat per hour of flying.
  • Railway infrastructure: The Government has pegged at Rs. 1,48,528 crore for 2018-19 to enhance railways’ carrying capacity and to strengthen the railway network. It has aimed to redevelop 600 major railway stations, provide WiFi and CCTV at railway stations, etc.
  • Connectivity in border areas: The Government has aimed to enhance the connectivity in border areas by construction of tunnel under the Sela Pass in Arunachal Pradesh.
  • Development of industrial corridors: This includes development of roads and services, administrative and business centre, water treatment plant, common effluent treatment plant and sewage treatment plant in Dholera Special Investment Region (Gujarat), Shendra Bidkin Industrial Area (Maharashtra), Dighi Port Industrial Area (Maharashtra), Multi Modal Logistics Hub, Nangal Chaudhury (Haryana), Vikram Udyogpuri (in Ujjain). The Government expects to allot plots measuring 350 hectares to industrial units by March 2019, as this may open avenues for development of greenfield industrial area.
  • Execution of Bharatmala Pariyojana and Sagarmala Projects: The Government had approved this roads and highways Project during 2017-18 for providing seamless connectivity to interior and backward areas of India and to develop about 35,000 km in Phase-I at an estimated cost of Rs. 5,35,000 crore. While the total investment for Bharatmala is estimated at Rs. 10 trillion, but an additional Rs. 8 trillion of investments will be needed for executing the Sagarmala Project, focused on development of ports, coastal economic zones, etc, until 2035.
  • Tourism: The Government has proposed to develop ten prominent tourist sites into iconic tourism destinations
  • Enhancement of digital connectivity: The Budget has allocated Rs 10,000-crore for creation and augmentation of telecom infrastructure and to roll out 5 lakh WiFi hotspots to boost broadband connectivity. It has further stated that under the BharatNet initiative, around 2.5 lakh villages already have optical fibre connectivity and that the Government aims to expand it to remaining 1.5 lakh villages.

The Government has proposed to raise and arrange for finances for execution and completion of the infrastructure projects in the following manner:

  1. Creation of Special Purpose Vehicles and use of innovative monetising structures like Toll, Operate and Transfer (TOT), Infrastructure Investment Trust (InvIT), etc by National Highways Authority of India (NHAI). The Government has also permitted NHAI and Metro to raise bonds from the market.
  2. Development of monetizing vehicles like, InvIT and Real Estate Investment Trust by the Government and market regulators.
  • Proposal to make necessary amendments to the Indian Stamp Act 1899 with regard to stamp duty leviable on financial securities transactions.
  1. Access of equity and bond markets by state-owned firms to raise resources.
  2. Levy of road and infrastructure cess of Rs. 8 per litre on imported petrol and diesel by the Budget.
  3. Government to purchase surplus solar power, generated by solar water pumps installed by farmers to irrigate their fields. Allocation of Rs 4,200 crore for capacity addition in wind, solar and green energy corridor projects.
  • Finance from India Infrastructure Finance Company Ltd, a wholly-owned Government of India Company, to help finance major infrastructure projects including investments in educational and health infrastructure.
  • Market regulators to consider investments in A-rated bonds.
  1. Securities and Exchange Board of India to consider mandating, beginning with large corporates, to meet about one-fourth of their financing needs from the bond market.
  2. Listing of 14 Central Public Sector Enterprises (CPSEs), including two insurance companies, on the stock exchanges; Initiation of strategic disinvestment process in 24 CPSEs; Strategic privatization of Air India; Merger of 3 public sector general insurance companies namely, National Insurance Company Ltd., United India Assurance Company Limited and Oriental India Insurance Company Limited into a single insurance entity and then the subsequent listing of such entity on the stock exchanges.

There have been mixed responses from various industry experts. A few experts have stated that they do not see any significant job creation from the Budget proposals. Whereas others have stated the focus of the Government on execution and completion of the existing infrastructure projects and increase in Budget allocation towards the same may have a positive outcome on the economy, and that the investments in such projects may lead to employment generation.

Thus, the aforesaid Budget proposal and allocation to the infrastructure sector reflects the Government’s firm commitment to boost investment for growth and development of the Sector.

 

Harini Daliparthy

Senior Legal Associate

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Finance Minister Mr. Arun Jaitley on 1st February 2018 while presenting the Union Budget 2018-2019 said that the Government is steadfast to take additional measures to further strengthen and support angel and venture capital (VC) investors operations in India.

Mr. Jaitley also said that the VC funds and angel investors need an innovative and special development and a regulatory regime for growth. Adding to which he further said, “We have taken a number of policy decisions, including launching of Startup India programme, building a very robust alternative investment regime in the country and rolling out a taxation regime designed for the special nature of VC funds and angel investors,”.

However, the Investors have been expecting a relaxation in the angel tax levied on angel investors who put in their money across early stage start-ups which is considered a high investment risk. Presently, funds from angels are taxed at over 30% if it is more than the fair market value (FMV).

Angel Tax Clause was introduced in Budget 2012, this clause in Section 56 of the Income Tax Act explicitly states that all startups are liable to pay taxes on money invested as capital, including on angel funds.

He further said that the Government’s main focus is to have better regulation to govern angel and VC investors by fixing regulatory issues to reinforce the environment for angel investors growth and successful operation of the alternative investment fund in India.

The Finance Minister emphasized the importance of using Financial Technology (FinTech or fintech). FinTech is the application of technology by the financial industry to improve financial activities. FinTech will help the growth of micro, small and medium enterprises (MSMEs). He further said, “A group in ministry of finance is examining the policy and the institutional development measures needed for creating the right environment in the fintech companies to grow in India,”.

Financial technology companies consist of both start-ups and established financial and technology companies trying to replace or enhance the usage of financial services provided by existing financial companies. The use of smartphones for mobile, banking and investing services are examples of technologies aiming to make financial services more accessible to the general public.

Hence, the Government’s measures to help the expansion of financial technology start-ups will make it easier for MSMEs to access capital.

Taruna Verma

Senior Associate

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Prime Minister Narendra Modi delivered the keynote speech at the World Economic Forum, 2018 at Davos, Switzerland. At the Forum, speaking of India’s incredible growth story, he mentioned issues that have affected India and also the growth that business, economy and technology have attained here.

Mr. Modi also suggested the business community to do business with India while speaking to global CEOs in the Forum.

Some of the major issues addressed by Prime Minister Narendra Modi in his keynote speech are:-

Prime Minister Narendra Modi on India’s future

India will be the world’s fastest-growing major economy in 2018, according to the International Monetary Fund’s latest World Economic Outlook update.

India’s GDP has been growing at around 7% per year since Prime Minister Narendra Modi’s Government and next year India’s economy will be one-third bigger than when he came to power. He also addressed major economic and social challenges such as income inequality, gender disparity and extreme levels of pollution.

Terrorism

Talking about terrorism, which is the next biggest problem in the world, Mr. Modi referred terrorism to be the second biggest challenge. All the Governments are aware of India’s concerns and the serious threats posed to the mankind. A greater danger is the artificial distinction created between good terrorism and bad terrorism. Another danger is that educated youth are being radicalized and getting involved in terrorism.

Technology

Addressing on technology and data in today’s world, Mr. Modi said that the Technology-driven world is changing lives.  Technology has impacted every aspect of our lives.

Technology is creating the greatest opportunities, but also huge challenges. He also addressed the problems faced by a technology-driven world, saying that “cyber security and nuclear security” are challenges faced by the world.

Democracy

Prime Minister Narendra Modi said that Indians are proud of their democracy and diversity. For a society with diverse religions, cultures, languages, attires and cuisines, democracy is not just a political system but a way of living. In India democracy, demography and dynamism are giving shape to development and destiny.

Growth in India

Narendra Modi’s Government implemented a one nation, one tax regime in the form of Goods and Services Tax for the first time in India and the business community from all over the world appreciated it.

FDI in India

Mr. Modi also talked about how working, travelling and manufacturing in India is way easier now and added that all sectors of India are open for FDI.

India’s GDP

Mr. Narendra Modi also noted that in 1997 when the then current Prime Minister visited Davos, India’s GDP was a little more than USD 400 billion, but now it has increased more than six times.

In conclusion, Prime Minister Narendra Modi impressed the audiences at the World Economic Forum in Davos. His speech was not just motivating and thought-provoking but also highlighted India as the country of the future.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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Around 3000 world leaders from the fields of business, politics, academics, etc had attended the 48th World Economic Forum (WEF) Annual Meeting from 23rd January 2018 to 26th January 2018 in Davos, Switzerland to discuss major global issues and to brainstorm on probable solutions to address those issues.

The Prime Minister of India, Shri Narendra Modi had also attended the Meeting and addressed the gathering of world leaders and global Chief Executive Officers (CEOs) to discuss about the three most significant challenges to civilization i.e. “climate change, terrorism and an increased self-centredness.” He also spoke about the growing opportunities and dangers of technology, and India’s efforts to adopt green technology, to attract foreign investments in India, etc. As reported by the WEF, India will be the world’s fastest growing major economy in 2018 (source: International Monetary Fund).

According to the 21st survey of CEOs conducted by PricewaterhouseCoopers Private Ltd (PwC), a global consultancy Company, during August to November 2017, India has emerged as the fifth most attractive destination for investments from across the world, leaving behind Japan. The CEOs covered under this Survey included CEOs, primarily, from the following companies:

The revenue of 40 per cent of the companies was at least $1 billion and 35 per cent of firms’ revenues ranged between $100 million and $1 billion. Around 20 per cent of the companies had revenues of up to $100 million while 56 per cent of the entities were privately owned.

As per the Survey, the structural reforms that have taken place in India in the past one year, the efforts of the Government to address serious concerns like infrastructure, manufacturing in India, cyber security, climate change, etc may have positively affected the minds of global CEOs.

Although the global CEOs seem to have some concerns about investing in India, such cyber threats, terrorism, climate change, availability of key skills and recruits, exchange rate volatility, changing consumer behavior, threat of over- Government regulations and increasing tax burdens, etc.

But in the Meeting, Shri Narendra Modi had stated that investing in India, manufacturing in India has become easier because India has pledged to end License Raj, remove red tapism, etc, thereby inviting global investors to invest in India. He further stated that India is poised to become $5 Trillion Economy by 2025. Moreover, the Government of India has made the following efforts to encourage increased foreign investments in India:

  • Reduced compliances and documentation for foreign investment in India,
  • Further relaxation of foreign direct investment (FDI) norms in Single-Brand Retail Trading, Civil Aviation, Construction Development and Power Exchanges, and other FDI reforms,
  • Implementation of Goods and Services Tax (GST) laws, whereby GST will subsume most of the existing multiple indirect taxes which may reduce the cost of tax compliance, logistics cost, transaction cost, etc and bring a stability and transparency in the tax regime making it easier to do business in India,
  • Enactment of Insolvency and Bankruptcy laws, to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner,
  • Setting up of bodies/agencies such as the Securities Exchange Board of India (SEBI) to protect the interests of investors, to educate the investors to make informed investments, to address investor grievances, etc,
  • Creation of an investor facilitation cell in ‘Invest India’ to guide and assist the investors during the entire life-cycle of the business, etc.

Therefore, the Government of India has relaxed FDI norms and introduced other reforms in its efforts to make foreign investment in India less complicated, and to make India the most attractive investment destination across the globe.

 

Harini Daliparthy

Legal Associate

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Recently, in Vishwas Bhamburkar v. PIO, Housing & Urban Development Corporation Ltd., CIC/HUDCO/C/2017/164658, the Central Information Commission (CIC) was confronted with an issue relating to denial of information on lack of producing identity proof by the Applicant under the Right to Information Act (RTI), 2005.

In this case, the Applicant held misuse of funds of The Housing and Urban Development Corporation Limited (HUDCO) and therefore filed an RTI Application seeking information about the amounts spent from the funds of HUDCO on gifts for years 2013 to 2016, renovation of official residence of its Chairman and Managing Director, electricity bills of official residence. The Central Public Information Officer (CPIO) stated that information could not be furnished by them as the Applicant failed to provide proof of identity and proof of address by producing Aadhar Card, Voter’s ID Card or Passport as proof of citizenship.

The CIC criticized the CPIO’s act in not furnishing information to the Applicant and made the following observations:

  1. The Right to Information Act, nowhere prohibited ‘person’ from securing the information due to failure to prove citizenship. A person cannot be denied information on the pretext that he did not produce proof of citizenship.

 

  1. That the CPIO can deny information only under Section 8 (exemption from disclosure of information) and Section 9 (grounds for rejection to access in certain cases) of RTI Act. It cannot invent new grounds for denial like lack of Aadhar Card, Voter Id Card, and Passport etc.

 

  1. Section 6(2) of RTI Act says an applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.With reference to the facts of the present case the CIC observed that the Applicant gave address to which information could have been dispatched.

 

 

 

Sanchayeeta Das

Legal Associate

The Indian Law

 

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