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In the recent times, a number of cases have come to light where one or more persons are tortured or beaten to death by a group of people who take matters of law and order into their own hands and decide to punish the alleged culprit themselves. For instance, a woman was, reportedly, beaten to death by a mob of 30 people in Ahmedabad on the basis of a suspicion that the woman was a child lifter. As per few newspaper reports, India has witnessed the killing of approximately 27 people in 15 cases of lynchings in the past one year.

The Supreme Court has recently passed an order in Tehseen S. Poonawalla vs. Union of India and others on 30.07.2018 (Order) and stated that in a civilized society, it is the fear of law that prevents crimes, and therefore, recommended the Parliament of India to create a special legislation against lynching. The Supreme Court further made some observations which are as follows:

That law would ensure an orderly society and that every citizen who is entitled to enjoy his rights and interest conferred upon by the Constitution of India 1950 and any other law in force, would also be obligated to follow the command of law.

Moreover, no person other than the law enforcement agencies is empowered to take matters related to enforcement of law and order in their own hands and punish the violator either in his own capacity or as a part of a group.

That every person is deemed innocent unless proved guilty after a fair trial, except as provided in any law. Therefore, the community or society cannot adjudge any person as an offender or criminal under the guise of protectors of law.

In the event such cases come to light, it is the duty of the law enforcement agencies to bring such violators of law before the law adjudicatory authorities.

Following are some of the guidelines issued by the Supreme Court in the said Order:

The State Governments to designate nodal officers in each district who would constitute a special task force to take measures to prevent incidents of mob lynching, procure intelligence reports about the people who are likely to indulge in such activities and spread fake news and incite violence amongst public.

The State Governments to identify districts where mob lynching cases have been reported in the past so that they issue directives to nodal officers to be extra cautious and to increase police patrolling in such places.

To spread awareness amongst public that such cases of lynching would invite serious legal consequences.

To take steps to curb the spread of fake news and explosive messages capable of inciting mob violence.

The police to register first information report (FIR) against persons disseminating such fake news and explosive messages. Thereafter, to intimate the concerned nodal officer in order to ensure conduct of proper investigations.

The State Governments to prepare a lynching/mob violence victim compensation scheme within one month from the date of this Order.

The trial in case of mob lynching incidents to be conducted in special fast track courts to be set up in each district.

Failure to comply with the aforesaid guidelines by an police officer or an officer of the district administration to prevent or obstruct the expeditious trial, it would be considered as an act of deliberate negligence and/or misconduct for which appropriate action would be taken.

The aforesaid measures to be carried out within four weeks by the Central and the State Governments and reports of compliance to be filed within the said period in the Supreme Court Registry.

The Supreme Court has further recommended the Parliament to create a separate offence for lynching and provide adequate punishment for the same. Accordingly, the Ministry of Home Affairs held a discussion with various stakeholders and settled that the Ministry of Law may decide whether to create a new law or to amend the existing Indian Penal Code 1860 as amended thereof for the purpose of criminalizing mob lynching.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

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The Government of India has recently released the Personal Data Protection Bill, 2018 as well as a report by Justice B.N. Srikrishna Committee of Experts on data protection (Report) on 27.07.2018, which would ensure regulation of personal data collected by various entities and protection of privacy of people.

The Supreme Court of India has recently recognized right to privacy as a fundamental right under Article 21 of the Constitution of India, in Justice K.S. Puttaswamy (Retd.) v. Union of India in 2017. In this digital era, there is a high potential of misuse of personal data shared by people on various websites and media. In view of the above, the Committee has felt the need for a data protection framework for protecting citizens from dangers to informational privacy originating from state and non-state actors.

The essential features of the Bill are as follows:

The Bill casts a duty on a person, determining the purpose and means of processing personal data (Data Fiduciary) of a natural person (Data Principal), to provide requisite details about the nature and procedure of use of the personal data to the Data Principal.

The personal data may be processed on the basis of the consent of the Data Principal.

Upon receipt of such consent, the processing may be done by the Data Fiduciary for his own interest or if otherwise required by law, courts or Government, say, to provide medical treatment or health services, etc.

Personal data such as passwords, financial data, biometric data, etc (Sensitive Personal Data) may be processed only with prior explicit consent, i.e. specific, clear and informed consent for the aforesaid purposes.

The Data Principal may also file an application along with a prescribed fee to an Adjudicating Officer (AO), appointed under this law, to restrict or prevent continuing disclosure of personal data by a Data Fiduciary. The AO would then review the said application and pass orders based on the sensitivity of the personal data, the nature of the disclosure and of the activities of the Data Fiduciary, etc. Appeal against the orders of the AO may be made to an Appellate Tribunal established hereunder and, further to the Supreme Court against the orders of the Appellate Tribunal.

The Data Fiduciary has to take adequate measures to identify and avoid any harm that may be caused to the Data Principal due to misuse, unauthorized access, destruction of data, etc. For instance, the technology used to process personal data has to be in accordance with commercially accepted or certified standards, methods such as de-identification and encryption may be used, etc. Any such breach of use of personal data has to be notified to the Data Principal.

A Data Protection Authority of India has been established hereunder to protect the interests of Data Principals, promote awareness of data protection, etc.

The data fiduciaries, if, registered with the Data Protection Authority of India (Significant Data Fiduciaries) would have to keep proper records of its operations, etc, get its policies, etc audited annually, and so on.

The Data Fiduciary is not permitted to transfer any personal data overseas and has to ensure its storage on a server or data centre located in India. Cross-border transfer of personal data other than Sensitive Personal Data may be allowed only with prior approval of the Data Protection Authority of India or in other prescribed circumstances.

In the event of contravention of provisions of this law pertaining to processing of personal data and Sensitive Personal Data , etc, the Data Fiduciary would be liable to a maximum penalty of fifteen crore rupees or four per cent of its total worldwide turnover of the preceding financial year, whichever is higher. Further, the Data Principal may seek compensation in such cases from the Data Fiduciary.

The Report also recommends amendments to be made to the Information Technology Act, 2000, the Right to Information Act, 2005, and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 in order to incorporate provisions related to privacy protection. A few experts have reportedly lauded the Bill stating that it lays down a strong foundation for privacy protection in India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

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The National Register of Citizens of India (NRC) is a register of all the legal citizens in a State. It was first made in 1951 after the first census and the date was preserved in each of the district.

The draft Assam National Register of Citizens that was published on July 30, a document which is considered proof of Assamese identity, sparked a nation-wide debate after it left out names of approximately 4 million people from the list. It is alleged that these odd 4 million people are illegal Bangladeshi Muslims and the State is set out to remove them from the territory of Assam.

Following the agitations, the NRC process is all set to be updated in the State of Assam with the Supreme Court, vide its Order dated 31.07.2018 in the case of Assam Public Works vs. Union of India and others, ordering the State Government to release a new draft in a fair manner and ensure that no innocent case is left out.The Supreme Court also directed the authorities to not initiate any action against the 4 millions considered ineligible for inclusion..

The Bench of Justices Ranjan Gogoi and Rohinton Nariman ordered the State Government, in consultation with State NRC Coordinator Mr. Prateek Hajela, to frame a ‘fair’ standard operating procedure (SOP) to deal with the claims and objections of those who did not find their names in the draft NRC. Attorney-General K.K. Venugopal informed the court that the Ministry concerned is working out the modalities of the SOP, which would “deal with the different dimensions of the exercise of hearing the claims and objections to ensure that the process is fair, and the same would be placed before the court by mid-August.”

Now, we want everybody to get a fair opportunity, considering the complexities and numbers, etc, involved. You (government) place it before us. If it is fair, we will approve. If not, we will disapprove. If there is anything missing, we will fill it,” Justice Gogoi told Mr. Venugopal.

Mr. Hajela said time has been given till August 7 for people to ascertain their names in the NRC. From August 8, those excluded can approach the Local Registrar or the NRC Sewa Kendras to find out the reasons for their non-inclusion. Their claims and objections would be heard from August 30 to September 28.

The Court has posted the case for August 16 for further orders on timelines leading to the publication of the final draft of NRC. The much-anticipated second and final draft of the NRC shows 2.9 crore names out of the total 3.29 crore who applied in Assam.

The 4 million whose names have left out from the list have been given three options. “They can come with a fresh set of documents which are correct. Or they can provide us with a mix of documents which will include a part of the old documents and some fresh ones. Or finally they can resubmit what they had submitted earlier and we will consider all three cases equally,” Mr. Hajela has said.

Surabhi Aggarwal

Senior Associate

The Indian Lawyer

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As part of a memorial and tribute for the 150th anniversary of Mahatma Gandhi, the Union Cabinet, chaired by the Honorable Prime Minister Shri Narendra Modi, has approved the scheme of a nationwide remission of certain categories of prisoners as a gesture of generosity and benevolence on 18th July 2018.

The scheme of remission is planned in three phases –

In Phase-I, the prisoners would be released on 2nd October, 2018 on the occasion of Birth Anniversary of Mahatma Gandhi.

In Phase-II, prisoners would be released on 10th April, 2019 on the Anniversary of Champaran Satyagrah.

In Phase-III, prisoners would be released on 2nd October 2019 on the Birth Anniversary of Mahatma Gandhi.

The Union Cabinet has listed the following categories of prisoners who would be considered for such remission:

Women convicts of 55 years of age and above, who have completed 50% of their actual sentence period.

Transgender convicts of 55 years of age and above, who have completed 50% of their actual sentence period.

Male convicts of 60 years of age and above, who have completed 50% of their actual sentence period.

Physically challenged/disabled convicts with 70% disability and more, who have completed 50% of their actual sentence period.

Terminally ill convicts.

Convicted prisoners who have completed two-third (66%) of their actual sentence period.

Further, special remission would not be granted in the following cases:

Prisoners who have been convicted of heinous crimes like dowry death, rape, human trafficking;

Certain prisoners whose offences have constituted the punishment of a sentence of death or where death sentence has been commuted to life imprisonment;

Prisoners involved and convicted under various laws as amended thereof including the Unlawful Activities Prevention Act 1967, the Narcotic Drugs and Psychotropic Substances Act 1985, the Terrorist and Disruptive (Prevention) Act 1987, the Prevention of Corruption Act 1988, the Foreign Exchange Management Act 1999, the Prevention of Money Laundering Act 2002, the Prevention of Terrorism Act 2002, the Protection of Children from Sexual Offences Act 2012, etc.

The Ministry of Home Affairs would issue advice to all states and union territories in India and would direct the state governments to process the cases of eligible prisoners. The administrations in charge would be further advised to constitute a Committee to examine the cases. The state governments would then place the recommendations of the Committee before their Governor for his/her consideration.

The Constitution of India 1950 has empowered the following authorities to grant pardons, etc and to suspend, remit or commute sentences in certain cases:

In case of a union territory- say, the President of India (Article 72)

In case of a state- the Governor of such state (Article 161)

Although, such remissions have earlier taken place in various states of Assam, Punjab, Delhi etc but this special remission of releasing the aforesaid categories of prisoners, comes at a significant time and is being considered as a befitting homage to the humanitarian values that Gandhi advocated.

 

Harini Daliparthy,

Senior Legal Associate

with

Srishti Banerjee

Faculty of Law, ICFAI Foundation for Higher Education (IFHE), Hyderabad

Intern,

The Indian Lawyer

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The Department of Industrial Policy and Promotion (DIPP) under the Ministry of Commerce and Industry, India has recently decided to implement yet again the guidelines issued for foreign direct investment (FDI) in e-commerce as provided by DIPP in its Press Note No. 3 (2016 Series).

According to the Press Note No. 3 (2016 Series), FDI in business to consumer (B2C) e- commerce is permitted in case a manufacturer/single brand retail trading entity wants to sell its products in India through e-commerce retail, etc. Further, a foreign e-commerce entity providing an information technology platform for facilitating transactions between buyers and sellers in India is allowed to enter the Indian e-commerce market under ‘100% FDI’ automatic route category. Although such an e-commerce entity is permitted to do B2B business with sellers registered on its platform, it cannot permit more than 25% of the sales/transactions conducted through its platform from a single vendor or their group companies.

A number of seller associations have earlier filed complaints before the Competition Commission of India (CCI) against the preferential treatment given to selected seller entities by a few e-commerce giants. The selected entities then become the major sellers on such e-commerce platforms to the disadvantage of smaller seller entities who do not get a fair opportunity to conduct B2C transactions in the e-commerce space. Further, the selected entities are allowed to give sharp discounts on such e-commerce platforms.

Reportedly, it is believed that this may have led the e-commerce giants to gain a bigger and dominant market share in the Indian online retail space, thereby making it difficult for other e-commerce entities to gain a market share in the e-commerce space. For instance, as per a few reports, Snapdeal and Shopclues merely have a share of 2-3% each in the total marketplace, whereas Flipkart and Amazon, together capture about 70% of the marketplace, thereby putting them in a place of dominant position.

Thus, the Government of India has proposed to formulate a national policy to regulate the e-commerce sector. Until such a policy is brought in force, the Government of India has proposed to create a separate wing comprising of certain officials from the DIPP and the Enforcement Directorate who would monitor and handle any violations of the FDI Policy governing e-commerce platforms, strengthen the implementation and enforcement of guidelines governing online retail platforms etc.

Thus, this move of the DIPP may help to maintain a level playing field for the sellers and the marketplace, and also promote and sustain a fair competition amongst the sellers and amongst the e-commerce entities.

Harini Daliparthy,

Senior Legal Associate

with

Siddharth Gupta

NorthCap University, Gurugram

Intern,

The Indian Lawyer

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The Government of India has time and again felt the need to control the sprouting tax related litigations. The Economic Survey of 2018 had noted earlier this year that even though the success rate in such litigations is around below 30%, but there has been a high rate of filing of petitions by the Indian tax authorities including the Central Board of Direct Taxation (CBDT) and the Central Board of Indirect Taxes and Customs (CBIC) [Authorities] against defaulters. It further stated that the success rate for appeals in cases of indirect tax was only 11%, whereas in cases of direct tax, it was 27% in the Supreme Court of India. With a view to manage the indirect and direct tax related affairs and to eliminate minor litigations, the Government has hiked the threshold limit for appeals by the Authorities before the tribunals and the courts on 11th July, 2018 as follows:

APPELLATE FORUM PRESENT LIMIT FOR FILING APPEAL

(in INR)

CHANGED LIMITS FOR FILING APPEAL

(in INR)

Income Tax Appellate Tribunal (ITAT)/ Customs, Excise and Service Tax Appellate Tribunal (CESTAT) 10 Lakhs 20 Lakhs
High Courts 20 Lakhs 50 Lakhs
Supreme Court 25 Lakhs 1 Crore

 

In addition to this, the CBDT has decided to withdraw an aggregate of 41% cases that it had filed in ITAT, High Courts and Supreme Court except those cases that involve a substantial question of law. Further in case of CBIC, the litigation from its side in CESTAT, High Courts and Supreme Court would reduce by 18% except those cases involving substantial points of law.

According to the Economic Survey 2018, the delay and pendency of economic cases may have a severe toll on the economy in terms of delayed projects, accumulating legal costs and diminished investments. It further highlighted that the Authorities continue with the litigation despite high rates of failure in the appellate stage which adds to the pendency.

This decision of the Government aims to promote ease of doing business in India and to minimize the pending grievances of taxpayers pertaining to tax matters. It aims to reduce future litigation flow from the Authorities. This may also benefit small and medium taxpayers as they can focus on doing business than being bothered about litigating in the various fora.

Harini Daliparthy,

Senior Legal Associate

with

Sukriti Goyal

School of Law, University of Petroleum and Energy Studies

Intern,

The Indian Lawyer

 

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The Union Cabinet, presided over by Prime Minister Shri Narendra Modi, has recently approved the DNA Technology (Use and Application) Regulation Bill, 2018 on 4th July, 2018. The Department of Biotechnology had drafted the Bill with a view to develop the forensic technologies pertaining to DNA for establishing a stronger justice delivery system in the country. The use of DNA technology in criminal investigation may be for various purposes such as for finding missing persons, victims of mass disasters, offenders, suspects, under trials, unknown deceased and for solving cases where offences are categorized as affecting the human body such as murder, rape, grievous hurt, etc, and those against property such as theft, dacoity, etc. This may help in providing speedy justice and increasing the conviction rate for heinous crimes.

As per the Press Information Bureau, India, the Bill provides for mandatory accreditation and regulation of DNA laboratories in India so that the DNA test results derived from the use of the DNA technology is reliable. It also ensures that there is no misuse of data of citizens and thereby no abuse of privacy in the hands of third parties.

Reportedly, the Bill further provides for an enforcement agency, the DNA Profiling Board, for authorizing the creation of state level DNA databanks, approving the methods of collection and analysis of DNA technologies. These databanks so established can be used only for the purpose of storing and recording information related to and used in forensic criminal investigation.

The Bill aims to set up an institutional mechanism to collect and utilize DNA technologies to collect samples from the crime scenes and identify people by using it.

The Bill may seem to be a move to reform the justice system in India. But it would have to ensure protection from misuse and abuse of the sensitive data so collected which relates to the privacy of the citizens of the country.

Harini Daliparthy,

Senior Legal Associate

with

Sukriti Goyal

School of Law, University of Petroleum and Energy Studies

Intern,

The Indian Lawyer

 

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The Ministry of Corporate Affairs (MCA) in India has issued an order dated 13th July, 2018 thereby notifying the formation of a Committee to review certain offences under the Companies Act, 2013 (the Act) and decriminalize them in order to facilitate the courts to focus on offences of serious nature.

The ten member Committee would be chaired by the Secretary of MCA, Shri Injeti Srinivas. The Committee comprises of a number of prominent members including Shri T.K. Vishwanathan, the Ex-Secretary General of the Lok Sabha; Shri Shardul Shroff , the Executive Chairman of Shardul Amarchand Mangaldas & Co.; Shri Ajay Bahl, the Founder Managing Director of AZB & Partners; Shri Uday Kotak, Managing Director of Kotak Mahindra Bank; Shri Sidharth Birla, the Past President of Federation of Indian Chambers of Commerce & Industry (FICCI) and others.

The Committee may also invite experts from the Securities and Exchange Board of India, the Reserve Bank of India and the Comptroller and Auditor General of India for broad based consultation. The Committee has been constituted for the following purpose:

To examine the nature of acts categorized as compoundable offences, that are punishable with a fine or imprisonment or both, and recommend whether such acts can be re-categorized as civil wrongs or defaults. Further, whether non- compoundable offences, that are punishable with imprisonment or with imprisonment and fine, can be made compoundable.

To examine the current mechanism of levy of penalty/fine under the Act and to make recommendations for possible improvements.

To lay down an in-house adjudicatory mechanism to resolve such disputes without having to approach the courts.

To take necessary steps for the formulation of draft changes in the law and any other steps as may be relevant.

The Committee would have to submit any recommendations so made within thirty days of its first meeting.

A number of experts have welcomed this move of the Government as it may help to reduce the burden on the courts and enable them to pay attention to more serious offences. Thus the in-house adjudicatory system would hear and determine cases involving simple violations where only fine/penalty may be imposed.

Harini Daliparthy,

Senior Legal Associate

with

Sukriti Goyal

School of Law, University of Petroleum and Energy Studies

Intern,

The Indian Lawyer

 

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The Central Information Commissioner (hereinafter the ‘CIC’) has held in the favour of an accused-appellant, charged with the allegation of sexual harassment, holding him entitled to seek and receive complete information pertaining to the charges against him in order to enable him to defend himself appropriately.

The CIC in Balkrishna Porwal v. PIO, Department of Posts, decided in June, 2018, imposed a penalty on the Central Public Information Officer (hereinafter the ‘CPIO’) for not disclosing the information sought by the accused-appellant to defend himself.

The accused-appellant was facing an enquiry on a complaint of alleged sexual harassment and sought information through an RTI application on 15 counts, which also included statements of some of the witnesses pertaining to the case. The CPIO had disclosed information with respect to only 3 points and denied the rest under section 8 of the Right to Information Act, 2005 and section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (hereinafter the ‘SHW Act, 2013’). Section 8 of the Right to Information Act, 2005 deals with ‘exemption from disclosure of information’ while section 16 of the SHW Act, 2013 deals with ‘prohibition of publication or making known contents of complaint and inquiry proceedings’.

The decision was upheld by the First Appellate Authority.

However, the accused-appellant thereafter appealed to the CIC. The CIC held that during the appeal the appellant is not a charged official but he is an official who is seeking justice and collecting documents for his safeguard provided under the Constitution of India. These are the safeguards against misuse and to protect the accused from false allegations. Principles of natural justice demand that certified copies of all documents relating to the inquiry report including copies of the statements of witnesses should be given to him to facilitate him to substantiate his defence and for conduct of the enquiry in a fair manner.

The CIC concluded by holding that “the charge of sexual harassment is a serious allegation which if falsely made and proved by suppression of information to the accused, it can ruin the career of the accused, cause permanent and irreparable damage to the reputation and also disturb his domestic life affecting his relations with his wife and children. Society will look him down and people will talk badly about him in his absence and some may even insult him openly. As per SHW Act 2013 he would be shifted, and he might even face criminal prosecution under IPC which in our country would span over a decade or more involving huge expenditure and going to courts for several rounds as an accused person. A false allegation can render his life a hell and if innocent, he might suffer serious mental torture also. It can destroy a person totally. The due process, principles of natural justice and legal provisions of the SHW Act 2013 provide him a right to information to secure all those related documents will strengthen that right.”

 

Surabhi Aggarwal

Senior Associate

The Indian Lawyer

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Recently, the Law Commission of India headed by Justice B.S Chauhan has been conducting various discussions with various political parties regarding the possibility for the conduct of simultaneous polls for Lok Sabha and State Assemblies in India.

During the discussion, Prime Minister Shri Narendra Modi emphasized the need of holding simultaneous polls which may later be worthwhile in conserving valuable resources such as time and money and the political parties would be more focused on building good governance. The then President of India, Shri Pranab Mukherjee and the Chief Election Commissioner of India, Shri Om Prakash Rawat have also consented to his view. But according to a few experts, multiple elections may help strengthen the democracy.

The Law Commission has proposed certain suggestions in the discussions which have been listed below:

Amendments to the Constitution of India, 1950, the Representation of the People Act, 1951 and the Lok Sabha and State Legislative Assemblies’ Rules of Procedure.

Addition of definition of simultaneous election in the Representation of People Act, 1951.

Amendment of the Rules of Procedure and Conduct of Business to replace ‘vote of no confidence’ with ‘constructive vote of no confidence’.

Ratification by majority of states of the proposed Constitution amendments, etc.

According to a few experts, these simultaneous elections may have the following pros and cons:

Pros

More time may be invested on developmental issues rather than wasting time on designing strategies and actions against opposition parties.

The Government of India may reserve and utilize money for implementing essential schemes and not waste the money in conducting elections throughout the year.

This system may help in diminishing corruption, casteism, communalism which is generally prevalent in elections and campaigns.

Cons

Conducting elections at the same time may lead to various complexities including requirement of huge numbers of electronic voting machines, enormous deployment of central forces, i.e. Central Reserve Police Force, Central Industrial Security Force and the Border Security Force, as cities and villages together will gear for voting, etc.

Upon clubbing both the elections there may always be dominance of national issues over state issues.

The politicians may, after the elections, become serene and lethargic during their term and become ignorant towards their responsibilities.

This idea of simultaneous elections has been highly debated over the years and may soon prove to be a colossal step taken towards a major reform in India but it is believed that the criticism should also be taken into consideration before this path-breaking idea is turned into a reality.

 

Harini Daliparthy,

Senior Legal Associate

with

Shubham Mongia

Law College Dehradun, Uttaranchal University

Intern

The Indian Lawyer

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