Friday, November 28, 2014

The Right to Digital Privacy – why is it fundamental?

As the E-Governance functions are becoming increasingly pervasive in India, they are starting to touch citizens’ lives in many ways – be it Unique Identity, passport issuance, immigration control, driving license or vehicle registration certificate; filing of income tax returns; land records, and many more. Not only financial services, but social media and entertainment websites have been gaining a lot of attention from the public due to easy accessibility.
Due to the highly liberalized existence of the digital system, persons who aim to violate the rapidly developing technological facilities are taking utmost advantage of this global trend.
In such a situation, the fairer sex of the society is an easy target for such cyber crimes. If you ask a contemporary woman the following questions, most of them will reply in affirmation to them.
1.    Are you aware of various cyber crimes as per laws, such as cyber stalking, data thief, contamination of data and personal information, hacking, etc.? Are you afraid that it might happen to you? 
2.    Whether your personal details on your personal accounts have been circulated on social media sites without your knowledge? 
3.    Have you ever been a victim of sexual abuse on the internet by people with unknown identity? 
4.    Have your photos ever been uploaded /circulated on social sites without your permission by someone you may or may not know?
Getting cyber stalked by someone can prove to be even more upsetting than being stalked in person. This was proved by an American citizen named Hunter Moore, who started his own website (which is now defunct) in which he posted personal pictures and videos of regular ladies without either their knowledge or consent. These people were mostly his ex-girlfriends or persons with whom he had sour relations. The victims were rendered utterly humiliated and hurt and they claimed that this work was done by Miller to take revenge on them.
Since the trend was started by Moore, it has gone viral and similar acts of digital privacy violation have been committed in India on a large scale. A lot of Indians too have resorted to getting a kick out of such monstrous acts. Such sites are run by Indians either on Indian servers or they have tied up with foreign websites who have their servers located in countries like Hong Kong where it is virtually untraceable.
Countless unsuspecting Indian women (even the ones who live in rural areas with no access to the virtual world and hence, no knowledge of the way they are being portrayed on the internet) are being targeted every day.
When cyber criminals like Moore could not find victims to target, they started creating morphed pictures using editing applications like Photoshop. In fact, this technology is now very easily accessible to anyone and everyone.
·        How can one acquire justice when they aren’t even aware that they are being wronged?

·        Which Indian laws protect a girl after her personal pictures have been made public by someone?

·        More importantly, how is she treated by the community in general? As a victim? As a laughing stock? I would bet on the latter. What law protects her from that kind of treatment?

·        Not only that, what about when an ex-husband releases his ex-wife’s private photographs on the internet? And what if this is being done by him while they are still married? What are the laws which protect her then?

·        Why do couples look down upon pre-nuptial agreement when it is that one thing that can save them in this kind of situations? Most law firms make their revenue from such agreements, not because they divorce rates are high, but because people are becoming cautious and taking appropriate steps to protect themselves.
On January 23rd 2014, Moore was indicted in a federal court in California following an arrest by the FBI on charges of conspiracy, unauthorized access to a protected computer, and aggravated identity theft. Even after having proved such serious crimes against him, Moore was released on bond merely days after his arrest and is allowed to access the internet now.
After reading this, if you call American cyber laws as slack, then you will call the Indian cyber laws as non-existential.
All industries be it banking, telecom or others rely heavily on IT infrastructure and use them for providing services to the end customers. However, most Social Media and Internet Forums, whether large or medium, continue to deploy and operate systems to meet their objectives without fully appreciating the need for effectively governing enterprise-wide information security.
Serious thought needs to be given by our lawmakers to the laws which are in force at present and the change in times from the day they were first drafted and enforced. Lawmakers need to visualize the future and anticipate such situations and they must not be reluctant in amending outdated laws as they always have. What are the precautions to be taken to avoid such crimes? Whether Information Act sufficient to protect this victim and to get redressed to victim in fair manner? Regulatory and law-enforcement agencies require proof of compliance with a plethora of security regulations by which time, the criminal has virtually vanished into thin air. What needs to b e done to speed up the process? India boasts of giving birth to the most innovative thinking computer engineers. Then why do the officials working in cyber cells have hardly minimalistic knowledge about computer programs?

While technological innovations in IT systems continue to happen, it is important that the laws for security and privacy to be implemented in our country to provide a feeling of trust to our citizens.

Wednesday, November 26, 2014

India Installing “Smart-country” App - Digitization and IPR issues.

A variety of concerned stakeholders comprising of esteemed academicians, former diplomats, scientists, lawyers and public health organisations have written a sharp open letter to Narendra Modi’s government on the decision to review India’s position on IP laws ahead of his visit to the United States, strongly cautioning against coercion from the foreign state to align India’s IP laws with the interests of transnational corporations. While the government was formulating the first steps that could lead to a fulfillment of the grand vision of “Make in India” campaign, we should look towards the new opportunities that the government’s various new programmes which are being launched, such as the Digital India Programme.

The Growth in Demand-Supply Equation
Indian electronics hardware production constitutes around 1.31% of the global production. At the current rate of growth, the domestic production can cater to a demand of $104 billion in 2020 and the remaining would have to be met by imports.  Reports from Department of Electronics & Information Technology estimates that the demand for electronics to reach $400 billion by 2020, and at that point of time our electronics import bill will overtake the petroleum import bill. Now that the government is planning to build several Smart Cities in the country, and there is the massive Digital India programme, it is possible that that the demand for electronics goods could surpass the estimated $400 billion by 2020.
The success of this initiative will lead to a dramatic change in the way the products manufactured in India are perceived. The Digital India programme is not about big expenditure by the government, it involves new ideas and restructured schemes.

Recognize and Resolve.
The market prefers to buy cheap Chinese products as compared to products made in India. That is why we are now exploring international markets like Dubai and Singapore for export of made in India products, he adds. It is the higher cost of production that is the root cause of the lack of investments in electronics manufacturing in India despite the fact that we are the world’s largest consumer of electronics products.
The government should not only think of creating an ecosystem to “make in India”, it should also enable the companies to “sell in India”. Both, creating and selling, are equally important for driving the ecosystem.

Innovative Avenues for development
Telecommunication - The telecom is a crucial sector in the entire digitization plan. Companies are looking at the 4G networks with interest, as they feel that 4G will open several new opportunities for domestic players.
Set top boxes, wearable electronics, medical electronics, telecom equipment, infrastructure (for bridge monitoring systems, disaster warning systems), smart energy metering systems and infrastructure for “Smart Cities”, are the key segments and areas of growth where the new investors can lay down their money.
Defense - Up to 40% FDI is now permitted in the defense sector, and about 60% of defense products consist of electronics. The electronics manufacturing industries sees light in the area defense. It is believed that India might soon have global electronics giants participating in the creation of defense related products.
The reason why many companies are hesitant to manufacture in India is due to lack of stringent IPR (Intellectual Property Rights) regulation in the country which is why our government needs to clear the basic operational roadblocks.

Monday, November 24, 2014

E-discovery legal jurisprudence, imperative if not mandatory for the courts and law firms to adopt.

Past 5 years has witnessed paradigm, huge, and cultural shift amongst the progressive law firms in Mumbai, Delhi, Bengaluru and other metropolitan cities of getting away from paper-based communications and moving towards electronic standards. New technological tools are emerging to help solo, small medium and large firms navigate the incredible amount of data we generate every day, particularly in regards to litigation. Those firms that have resisted such shift are on the verge of dying or have already perished.
It’s becoming imperative that modern lawyers leverage technology to gain sense of the scope of evidence that’s available, as well as the costs, burden, and delay that would be associated with finding the best pieces of evidence. Time and cost are especially important as courts may be ruling on litigation issues, with those two factors as guiding principles. The production of electronic evidence is becoming overwhelming and so we have identified three requirements below that should help a law firm to narrow their
1. Forward and Backwards Looking
In order to advise the clients properly, solo and small firms need systems in place that can deal with litigation holds and backups—being able to access information already in storage, and preserve information going forward. Clients need a data management policy to determine what qualifies as evidence and must be kept.
This policy may be based on prescribed rules determined by industry standards or statutes, or as simple as advising on social media records (for example, advising a client not to delete Facebook posts). This solution should also work with clients’ existing data repositories—a major argument in favour of cloud solutions. Many businesses, from Fortune 500 giants all the way to the closely-held family business, are storing their records in cloud services.
E-discovery legal jurisprudence in India is still evolving. Electronic discovery or e-discovery refers to discovery in civil litigation or government investigations which deals with the exchange of information in electronic format (often referred to as electronically stored information or ESI). Some of the techno legal aspects of e-discovery laws and regulation in India are being formulated rapidly. These include optical character recognition (OCR) legal issues India, e-discovery for social media in India, data rooms, legal compliances and merger and acquisitions in India, virtual data rooms and legal compliances in India, e-discovery for cloud computing in India, electronic discovery (e-discovery) challenges in India, etc.
E-Discovery solution should also be capable of tracking compliance with litigation holds to prevent evidence spoilage and ensure that you don’t miss the preservation stage of eDiscovery. This involves tracking notification being sent to all responsible parties, and also logging their acknowledgement and agreement to comply with evidence preservation.
eDiscovery solution should also be capable of tracking compliance with litigation holds to prevent evidence spoilage and ensure that you don’t miss the preservation stage of eDiscovery. This involves tracking notification being sent to all responsible parties, and also logging their acknowledgement and agreement to comply with evidence preservation.
Cloud solutions definitely have a leg up over on-premise solutions in this regard; they’re cheaper and easier to roll out and provide a centralized hub that unifies your business applications from messaging to file storage, as well as giving IT (whether it’s a department of many or a department of you) the control and administrative capabilities required to govern and protect sensitive data.
2. Agnostic
The eDiscovery solution should be file-type agnostic — meaning it should be able to import as well as export data from and to a multitude of file types. The EDRM states that there are over 200 suggested file types for Electronically Store Information, including PDFs, image files, video files, audio files, and even the venerable Wordperfect. As new software solutions are introduced, file types will only increase exponentially, so your eDiscovery software should be able to adapt to emerging data standards as well—with the capability to present in native, near-native, image, or paper
3. Collaborative
eDiscovery is, at its core, a collaborative effort, requiring participation from both internal parties (staff, clients), and external parties (opposing counsel). Your eDiscovery solution should enable you to identify and share relevant and necessary information easily, while also recognizing and withholding privileged documents. The Civil Procedure Code in India should encourage communication and negotiation between parties on eDiscovery, including dates, formats, and methods of presentation. Look for a provider with the native capabilities to keep track of changing deadlines, and inline communication methods for easy notifications and sharing.
With the incredible amount of data human beings generate every day, a proper eDiscovery solution is no a longer a ‘nice to have’ for the modern litigator. Choosing the right solution will help ease the burden of Discovery for the firm and increase likelihood of success.

Friday, November 21, 2014

Contract Psychology – why one needs skill for drafting contracts?

In the world of contract drafting, a set of universal rules and idioms govern the way in which a contract should be drawn. However, facts vary from case to case and sometimes you are faced with a dilemma. It is okay in such situations to tamper with those rules, but bending or breaking of those rules no matter how practical it is, should be done only with eyes wide open.
Essentially, lawyers are of two types: Litigators, who appear in court on behalf of clients and specialize in disputes; and Commercial/Corporate lawyers (in context of this article, let us call them Transactional Attorneys), who work towards avoiding disputes by specializing in transactional procedures and principles. Transactional attorneys focus on what is necessary to get the deal done and to ensure that the parties understand what they are saying and what they must do under a contract. A litigator is called upon in the context of a dispute and almost reflexively searches for the interpretive provisions of a contract. As transactional attorneys, we need to now and again put on our “litigator’s cap” when drafting contracts in order to develop a unique perspective on contract drafting, interpretation, and analysis.
In context of a dispute, a judge would merely focus his limited amount of time in hearing on whether the arguments regarding the interpretation of a provision in contract is commendable enough to grant or deny a judgment. Given this, the use of plain English and breaking out the key provisions into separately enumerated sub-paragraphs, rather than piecing them into a single long paragraph can quickly and undoubtedly direct a judge to the accuracy of facts and deliver the result.
 The formatting of a provision can sway the outcome of a dispute. Well, logically, the formatting of an unambiguous text in a contract between sophisticated parties represented by counsel should not matter. Whether it is in bold or in italics, in Times New Roman or in Arial, or any other format, assuming that that content is unambiguous, still the import of the provision does not differ. But as a matter of psychology, it will make all the difference in the world. Not only the judges, but it can influence the parties even before dispute arises, which is more important consequence of clean and crisp formatting of contracts.
The same reasoning can be applied backwards too. If formatting has psychological effects on the contract reader, it can be also used to put off the other party, in order to get away with some controversial fact. For example, a party can “stuff” in a one-sentence provision, substantive matter in such a way that it eviscerates the crux of the entire provision of that contract. This will be unknown to the other party, but a transactional attorney can spot the difference and remedy it accordingly.

All of this may seem troubling from an intellectual standpoint, but at the same time, an attorney with his skills of drafting contract would find it exciting and would have the capability own up the challenge equally well.

Wednesday, November 19, 2014

Behind every successful businessman is his attorney.

An experienced entrepreneur will always tell you how important it is to build up a business incisively and carefully right from the start. Selling eminent goods and services starts from the right contacts and astute advertising strategies. But most of the times, even a prudent business owner will fail to give its due importance to the one aspect of running a successful business: Legal advice.
Legal matters are not something one can afford to handle precariously. In fact, it is indispensable without question. Essentially, most law firms in Mumbai are hired on retainer basis by big as well as small companies because that’s how important legal advice is for operating a successful business.
There are countless situations that business owners have come up against during which they would require urgent legal advice from someone who knows their business and on whom they have a certain amount of reliability. It would be easier to comprehend those situations if you go through our earlier article A day in the life of a commercial attorney where we talk about various duties of a commercial attorney pertaining to reviewing and drafting contracts, disputes, merger and acquisition of businesses, business management corporations, LLCs and partnership firms and intellectual property laws. There are also certain other rights of commercial businesses that are subjugated by other parties, such as: rental rights, intellectual property rights, negotiation rights, rights at the time of expansion of business, etc.
What are your responsibilities as a business owner when it comes to going green? What are the lists of things to consider if you are developing your property and what to do if you discover that it may be leading up towards a dispute? These are issues that aren’t anticipatory in nature, and as experienced commercial attorneys, we are the ones who know exactly who to call and what needs to be done. Environmental issues can involve the state and federal troupe, and a good attorney can keep you on top of your rights and diligently advise you on what you need to do.

If there is any chance for your company to grow or change over the next few years, you are going to find yourself in a place where you need to have an attorney on your side. Hence, in order to make a difference to your chances of success, find the right business professional for your business and be equipped to face the business world with the much needed help and the right information by your side.

Tuesday, November 18, 2014

India - A palliative retreat for Medical Tourism.

Medical tourism is a sector which has been expanding since the past decade. Since the costs for medical treatments in the western countries have been booming to great proportions, the foreign residents have been travelling to different countries to seek medical treatments from there instead. Whether the person is uninsured, or covered, he/she saves a great margin of their costs by opting to get medical treatments from countries which offer them the same quality of services at lesser costs. The costs are less not due to lack in the standard of services, rather it is a simple reason of favorable currency exchange systems.
India is among the leading countries providing the service of medical tourism for people throughout the world. Ever since India was recognized as the third largest economy in the world, it has become more and more popular as a tourist destination as the standard of living has been continually getting better. Not only for regular tourists, but for medical tourists too, India is becoming a hub for getting medical treatments, as India is said to have some of the most highly qualified physicians throughout the world.
At present, India’s medical tourism industry is worth approximately 1.5 billion USD. It is said to have an annual growth of 30% and hence, it won’t be long till India crosses its turnover to 2 billion USD. The norms for getting a medical visa of up to one year for India have been relaxed and it is now very easy to get one.
Medical/surgical treatments which are becoming a forte for Indian physicians include elective procedures such as cardiovascular surgeries, hip and knee replacements, cosmetic surgeries, dental procedures, infertility treatments, or other procedures which are usually not covered by the insurance companies in developed countries making them really expensive for ordinary people. Another advantage of India to develop in this industry is the fact that English is its official language; hence, making it easy for foreign nationals to communicate and better yet, develop a bond with their doctors as is required in tough operations.
India is a hotspot for medical tourism not only because of the physicians and the low costs. India is popular because of the vast variety of post-treatment recuperation packages offered here. Since centuries there has been a cultural emphasis on education in India, and hence, India has advanced itself along with the modern times and yet has preserved the goodness of customary traditional medical ways of rejuvenation due to which numerous relaxing and rejuvenating options are made available to the medical tourists, such as Yoga, Ayurveda, Allopathic and Naturopathic medicines, meditation therapy, etc.

There is immense growth potential for becoming the most popular medical tourism destination at least in the continent of Asia within the next few years. If only India could optimize the quality of its healthcare infrastructure, by making all the big hospitals eligible for being recognized by the insurance companies of countries like US or UK.

The golden rules for buying business insurance.

Your life, business and assets are valuable and must be protected against unexpected mishaps and loss due to unfavorable circumstances. All business owners need to consider many things and must be aware about all the requirements about applicable insurance policies in case any issue arises with a customer. While running a business, it is important to get yourself and your business insured by buying the best plan suitable to your requirements and circumstances.
So what are the most important things to keep in mind before buying your business insurance?
1.    Choose the right insurance policies as per your needs-
Whether yours is a start up business or an accredited company, there are a lot of business insurance options available in the market to choose from. What a business owner should look for is an insurance policy which covers business property and equipment, loss of income, extra expense, liability and other additional protection.

2.    Purchase an insurance policy for the right reasons-
A lot of people make haste in purchasing insurance policies at the end of a financial year just for the sake of saving on tax. They have wrong priorities in mind. Availing tax benefit from your policy is good, but one certainly should not let it dictate the coverage, and other information of your policy rather it should focus more on product merits and other requirements.

3.    Know how much to trust your insurance service provider-
Insurance agents are always on the look-out for their profit. Hence, it is your job as a policyholder to make sure you know all the key aspects about your policy. No matter how trustworthy and successful your insurance service provider may be, they lack that specific acumen which is much needed to understand your financial requirements and hence, may not be able to offer you the ideal insurance policy.

4.    Do not make a choice based on how expensive the insurance policy is-
Most people choose the policy that is least expensive, which a human tendency. But what a business owner must remember is that his insurance policy must be known by the maximum coverage it provides and how affordable it is for him, according to his requirements.

5.    Never combine your insurance with your investment-

Insurance provides either “limited” or “no” returns and it should be the last place where one should invest their savings or wealth. An insurance policy’s purpose and designation is risk protection, and it does not prioritize on making profit for the policyholders. Investment-cum-insurance plans may work best for some investors, but one should have a clear idea about his purpose for buying the policy and must choose wisely. 

Monday, November 17, 2014


CSR or Corporate Social Responsibility is a form of corporate self-regulation integrated into a business modal. CSR policy honours the triple bottom line: people, planet, profit. It’s like a corporate conscience, integrating the public interest in corporate decision making by encouraging community growth and development and voluntarily eliminating practices that harm the public, regardless of legality. The idea is that the company makes more profit by operating with perspective though some argue that it distracts from the economic role of business.

Government of India has repeatedly emphasized on its mandate to make growth “Inclusive” and has incorporated the same principle not only in Government schemes and projects but also in policies meant for private sector and others. The Companies Act 2013 is a step forward in that direction, with inclusion of section 135 CSR provision mandating private companies to spend a minimum of 2% of their net profit on developmental activities. The Ministry of Corporate Affairs (MCA) has vide its notification dated 27 February 2014, and in exercise of powers conferred by section 1(3) of the Companies Act, 2013 (‘the Act’), notified 1 April 2014 as the date on which the provisions of section 135 and Schedule VII of the Act shall come into force.

With effect from April 1, 2014, every company, private limited or public limited, which either has a net worth of Rs 500 crore or a turnover of Rs 1,000 crore or net profit of Rs 5 crore, needs to spend at least 2% of its average net profit for the immediately preceding three financial years on corporate social responsibility activities. The CSR activities should not be undertaken in the normal course of business and must be with respect to any of the activities mentioned in Schedule VII of the 2013 Act.

The activities that can be undertaken by a company to fulfil its CSR obligations include eradicating hunger, poverty and malnutrition, promoting preventive healthcare, promoting education and promoting gender equality, setting up homes for women, orphans and the senior citizens, measures for reducing inequalities faced by socially and economically backward groups, ensuring environmental sustainability and ecological balance, contribution to the prime minister's national relief fund or any other fund set up by the Central Government  for socio economic development and relief and welfare of  SC, ST, OBCs, minorities and women, contributions or funds provided to technology incubators located within academic institutions approved by the Central Government and rural development projects. The concept of CSR is controversial and experts do not even agree on how to define it, but both critics and enthusiasts do agree that CSR is voluntary by its nature.

The law making CSR compulsory in India is severely criticized. While India has experienced rapid economic growth, the benefits of this growth have not been distributed equitably. Inequality, which was already high, has increased even more.. Trickle-down economics are not working. The proposed law does not go far enough in reducing inequality and helping the disadvantaged. Without a coercive enforcement mechanism, it is unlikely that the law will result in widespread compliance. In other words, “mandatory” CSR will remain largely voluntary.

Many activities that companies undertake are both profitable and good for society. Companies would undertake these activities regardless of the law, since they are profitable activities. Under the new law, they will be able to classify these activities as CSR with no real change in social welfare.

Even to the extent that there would be a real increase in socially beneficial activities, the spending would not go to democratically determined priorities, but rather to whatever the companies prefer to emphasize. It is the government's responsibility to determine high-priority needs of society and target public expenditures in these areas. With the proposed law, the government is abdicating one of its primary functions. It would be preferable for the government to impose a tax on companies and use the additional funds to provide public goods and reduce inequality in a systematic and democratic manner.

The proposal would be an enforcement nightmare, exacerbating an already bad situation where many laws are poorly enforced in India and further undermining respect for law.

Wednesday, November 12, 2014

A day in the life of a Commercial attorney.

"Law is nothing else but the best reason of wise men applied for ages to the transactions and business of mankind." - Abraham Lincoln
A commercial deals with issues pertaining to business management and transactions. They often practice in law firms on behalf of multiple clients of the firm's commercial transactions department. Some commercial lawyers work for a single corporation and are known as in-house attorneys/counsel. They also might be employed by the government or international agencies. In these positions, they review international business transactions or negotiate trade, employment and other agreements.
A Commercial attorney’s daily tasks depend on his client’s needs and whether he is specialized in a particular area of law, but he could be doing some or all of the following: 
·        Negotiating (not all cases will end up in court)
·        Explaining the law and giving general legal advice 
·        Settling disputes and supervising any agreements
·        Researching and gathering evidence
·        Analyzing legal documents
·        Supervising legal assistants
The career of a commercial lawyer is versatile. It involves reviewing and drafting contracts, business disputes, breach of contract, buying and selling of businesses, business management of Corporations, LLCs, Partnerships, etc and last but not the least, Entertainment law.
Reviewing and drafting contracts- In order to make the terms of contract clear to both the parties from the beginning, it is vital to draft and review the contracts properly. An experienced commercial lawyer can provide useful guidance while drafting contracts and will help you in determining whether accepting a contract is in your best interest. But the main goal in drafting a winner contract agreement document is to avoid all kinds of future disputes.
Disputes- Business disputes arise mostly when there is a disagreement between parties regarding the terms of a contract, or sometimes due to issues pertaining to billing, business practices or other issues.
Merger and acquisition of businesses- The process of merger or acquisition of businesses can be very complex and drawn-out, but the rewards at its end are worth it. Purchasing an existing business means purchasing a pre-existing client base, staff, patents and much more. It is the job of your commercial lawyer to make sure you get the best deal.
Business management Corporations, LLCs and Partnership firms- Corporations, LLCs, Partnerships all have different kinds of management forms. A commercial lawyer has the knowledge of working or each of these organizations as they are all clients for him. Sometimes he deals with the senior business executive (such as the CEO of a company) or sometimes he does overflow work of the general counsel of a largish corporation. Either way, it is his duty to come up with ways in which his clients will benefit the most in each transaction.
Intellectual Property Laws-Intellectual property law blends with entertainment and media law and covers trademarks, copyrights, and it is the job of the commercial lawyer to be well versed with these laws as they often form a part of contract deeds.

Representing a client and advising them on their legal situation is what a lawyer does on a daily basis. From individual cases to whole companies, from court proceedings to disputes behind closed doors, it’s his job to act in his client's best interest. It is ultimately the clients who make the intelligent decisions; it is however, our work as commercial lawyers to make sure that the clients makes an informed decision.

Monday, November 10, 2014

Do our laws protect us from epidemics like Ebola?

The outbreak of Ebola virus in West Africa has been the biggest epidemic by far. Major countries of the world have been already hit and the death toll is continually on the rise. What makes this virus dangerous is that there are no sure-shot ways to prevent it from spreading, and neither do the symptoms of the virus become visible for as long as 20 days in most cases, hence, rendering border screening methods ineffective. No Indian has been diagnosed with the Ebola virus yet, but due to its extreme virulent nature, simply taking preventive measures won’t be of much help. Proactive steps against the current widespread disease must be taken.
Statistics say that 9 out of 10 infected persons die from Ebola. The major form of transmission of the disease is by coming into contact with the body fluids of an infected person. Keeping this into mind, Indians should dread the day it spreads into our country. Not only is India a densely populated country, our public health system is not of its optimum standard. Indian atmosphere is mainly humid, especially the densely populated coastal areas like Mumbai, can become a breeding ground for the virus. Such a scenario should be avoided at any cost.
Our health system is a socialist medley of a government that produces and contributes private goods. We run primary health centers, hospitals, and such. But our health system fails in doing the things that a public health system should do; such as the analysis and control of epidemics. We lack the intellectual precision that the public health system is not about the health of the public; it is about public goods and R&D in the problem of public health. This could prove to be a costly mistake in coming weeks and months, if Ebola spreads into our land.
There are certain legislations in India, which are quite important but are ignored in some or the other way. One such legislation is “The Epidemic Disease Act, 1897”. This act is a century old and has not been keeping up with the changing times. It is perhaps the shortest statute ever made by us comprising of merely 4 sections. The first section describes the title and the extent, the second section empowers state and central government to take special measures and prescribe regulations that are to be observed by public to contain the spread of disease. The third section defines penalty for violating the regulations, whereas the fourth section gives legal protection to the persons acting under this act. As I made out earlier, the problem of public health is being completely neglected by our system.
It is clear that the act needs a complete revamping in order to protect the needs of the public health priorities which are changing with time. Perhaps the lawmakers can follow in the footsteps of the National Disaster Management Act, 2005 having definitions of technical terms and an unambiguous description of all the implementing measures and agencies to be instituted in the event of any emergency.
What is India doing to prevent the spread of this epidemic into its boundaries?
However, India isn’t doing everything wrong. State governments have been corresponding with the Central government and have been gearing up the hospitals and isolation wards to identify for Ebola treatment. The Centre will keep track of adequacy of preparations at these hospitals. Also, Personal Protective Gear (PPE) has been provided to the states by the Central government.
The Integrated Disease Surveillance Programme which was established by the National Centre for Disease Control of India in 2004 has been taking a lot of proactive steps towards preventing the virus to enter India. International travelers by ship or road or air, are being made to have compulsory medical checkups and are thereby segregated into 3 categories; those who are at low risk, medium risk and high risk. People with low risks are being advised on general safeguard from the virus, whereas, the people with medium and high risks are being detained for further checkups and are being kept under observation for a period of one month. For those Indians who are abroad in countries which have been exposed to Ebola and for the foreign nationals who are visiting India, it is their duty and responsibility to adhere to all such regulations which have been laid down to prevent the spreading of the Ebola virus.
The Dengue fever amidst the Ebola scare.

It is more than fitting to write about the epidemic control regulations carried out by our government in wake of the Dengue scourge. Since the rise in dengue cases in the past few months, numerous campaigns have been held to spread awareness about preventive measures from forming breeding grounds for Aedes mosquitoes and stricter attention is paid to adherence of all such preventive measures. With recording more than 350 cases in less than 2 months, the government has become more serious about the issue and allowing police to make surprise inspections in residential areas and complexes and furnishing approximately 13,000 notices threatening arrest to the negligent persons under IPC sections 269 and 270 for aiding further spread of diseases. Even though it seems to be like fighting a losing battle, since we do not have relevant laws protecting our country in the state of medical emergency, it is our duty as a community of active and prudent citizens to be privy to the preventive measures from dengue, Ebola, or any other disease if we want to lead a healthy life.

Friday, November 7, 2014

Why we love law! (And you should too)

Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
It is a generally observed that people are keen on staying aloof from law and order. A fear in their minds exists which is associated with lawyers or police or even courts for that matter. Most of the times, it is very much valid, wise even, to be fearful of getting caught in the clutches of the legal system. But that is not always advisable. Maybe lawyers are not the most favorite persons in the world because a lawyer comes into a person’s life usually when he is in trouble and is going through a bad time. So they associate them with that sad or difficult time in their life, such as a divorce or a robbery.
Peace in a civilized society is based on law and justice. A lawyer is one of the threads that bind the protective net to hold it into place. It is the job of a lawyer to ensure that justice exists in this world. The law has been there forever, but we lawyers are building a great monument out of the cases we argue and the ways in which we shape these laws so that they may be used for their rightful purpose, day in and day out.
What we do not realize is that a lawyer is just like a doctor. He assures you that you will get through this bad time and he does his best to mend your situation. Most lawyers will tell you that they entered the profession because they get pleasure in helping others who are in need. Perhaps the discomfort we feel towards doctors and lawyers is of the same kind, because they get us out of a situation which we are not capable of resolving ourselves.
A lawyer’s profession is a thinking profession, and most law firms in Mumbai would agree with us. One does not simply go about their business in a routine fashion and expect to have mundane or monotonous work if one is a lawyer. It is the basic instinct of a lawyer to read, write, think and argue, something similar to how in school days, monitors would stick up to the bullies make sure the weaker kids were not harassed. We love the law because every day brings with it a new challenge which may never have been faced before. It requires a lawyer to come up with possible ways to shape the law’s applicability.

We love the law because it requires mutual observance of established set of laws resulting in orderly resolution of disputes that no other part of our society can resolve. We love the privilege of representing others and the wisdom and experience required to do so effectively. Lastly, even though lawyers are not always loved by their clients, successful lawyers are always the ones who have loved the law along with all its interpretations, and of course it is also because we love our clients to whom we dedicate our blood and sweat because their success is our success.

Wednesday, November 5, 2014

Top 5 Indian “money launderers” most likely to leave a mark on history.

The term “money laundering” is an offence of concealing or camouflaging of money gained through illicit means by making it appear legitimate. History has seen many powerful people have abused their power to gain money via illegal means and not all have been always caught. This is a global crime and one which has the power to push nations into poverty. Here are five such “money laundering” cases which infamized the offenders in such a way that they might never be forgotten as they undoubtedly caused the collapse of Law and Order in the country they originated from.
1.    A. Raja and Kanimozhi from the 2G scam
The great 2G spectrum scam opened up a new chapter in money laundering cases in India. It was listed the second in the list of Time Magazine’s “top 10 abuses of power”. Quite a few politicians and government officials were accused in 2008 for charging lesser rates to mobile telecom companies for allocation of frequency licenses for creating 2G subscriptions for mobile phone users. The CBI estimated a loss of Rs. 30,984.55 crore in the 2G scam and also proved involvement of former Telecom Minister A. Raja and DMK chief Karunanidhi’s daughter Kanimozhi amongst various other government officials as well as telecom companies such as Swan Telecom, Kalaignar TV, etc.
2.    Dawood Ibrahim from Hawala scam
This head of a multi-thousand member criminal syndicate which has its operations mainly in Pakistan, India and United Arab Emirates and was the mastermind and financer of the 1993 Mumbai bombings and he also laundered about $5 billion from these countries on behalf of Osama Bin Laden. Hie was involved in the Rs.5000 crore Hawala scam and had bribed countless Indian politicians during that time.
3.    Suresh Kalmadi from CWG scam
The Organizing Committee of the Commonwealth Games that took place in India from 3-14th Oct, 2010 along with many private companies are contesting approximately two dozen cases worth Rs. 350 crore. The president of the Indian Olympic Association Suresh Kalmadi was sacked in April 2011 for corruption and money laundering charges and was arrested by the CBI but is now out on bail. The snail-paced justice system of India is yet to convict the offenders of the CWG scam.
4.    Raju Ramlingam from Satyam scam
Satyam Computer Services was considered as one of the most promising IT companies of India. The investors, the foreign clients as well as the Indian masses were left flabbergasted upon the revelation of Rs. 1400 crore worth corporate scam by Indian government, who controlled the situation by saving the jobs of its employees due to take over by Tech Mahendra.
5.    Abdul Karim Telgi from Telgi scam
This notorious master of conning had printed fake stamp papers and sold them to numerous financial institutions and banks. This scam was worth Rs. 20000 crore exposed the major failure of the Indian political and judicial systems by proving the involvement of various politicians in it.
There are two more infamous personalities who have already made a mark on history as the most notorious money launderers the world has seen yet and hence, I feel obligated to mention them too.
·        President Suharto of Indonesia
The former president of Indonesia is considered as one of the most corrupt leaders throughout the world. It was alleged by Time Magazine that about $15 billion of wealth were placed in 11 different countries in the name of his family. Additionally, Indonesia’s wealth and assets worth $73 billion had passed through his family member’s hands, all during his tenure as the President of Indonesia.
·        Al Capone

Perhaps the most famous American mobster is considered as the man at the forefront of modern money laundering methods. Ironically, he used cash-operated laundry machines for disguising his illegal gains which were estimated to about $7 billion. It is also debated by some that this is where the phrase “money laundering” came from. Eventually though, inspite of committing several crimes of money laundering, bootlegging, prostitution, and gambling; Capone was arrested in 1931 for another crime of Tax evasion.

Tuesday, November 4, 2014

Bowling Out Hostile Takeover

Mergers and acquisitions is a way for companies to grow, establish and gain entry into new markets. They can be categorized as either friendly or hostile. A hostile takeover occurs when a company gains control over a targeted company without the consent from either the board of directors or the management of the target company. Instead the aim of the acquirer is to persuade and charm the shareholders of the targeted company to sell their stock. In order to prevent a hostile takeover, many companies protect themselves by implementing various strategies and mechanisms. Some of the commonly used hostile takeover strategies are as follows:
Poison Pill: Poison pill is one of the most used and controversial defense strategy used. It is also commonly referred as shareholders rights. The logic behind the pill is to dilute the targeting company’s stocks in the company so much that bidder never manages to achieve an important part of the company without the consensus of the board and thus loses both time and money on their investment. Its features can be categorized as acquisition cost enhances and force the bidding company to pay more for the stocks and in return makes the targeted company less attractive.
Golden parachute as a defence strategy is a special and lucrative package, which aims to stagger and make hostile takeovers more expensive by distributing what is usually a lump sum payment to the board of directors of the target company. A golden parachute measure discourages an unwanted takeover by offering lucrative benefits to the current top executives, who may lose their job if their company is taken over by another firm. Benefits written into the executive’s contract include items such as stock options, bonuses, liberal severance pay and so on. Golden parachutes can be worth millions of dollars and can cost the acquiring firm a lot of money and therefore act as a strong deterrent to proceeding with their takeover bid.
White knight: In this case, the targeted firm seeks for a friendly firm which can acquire a majority stake in the company and is therefore called a white knight. A white knight can be chosen for several reasons such as; friendly intentions, belief of better fit, belief of better synergies, belief of not dismissing employees or historical good relationships. The intention of the white knight strategy is to make sure that the company remains independent but could also be used to play the other two parties against each other to further sweeten the bid.
Pac-man defence: The Pac-man defence tactic is seen as an aggressive defensive tactic and the name comes from the famous videogame with the same name. Using this strategy, the target company fights fire with fire and starts buying shares in the company that has placed the hostile takeover bid. The strategy is in most cases a hard and complicated way to go and is best suited for targets which are larger than the hostile bidder. One incentive to use this strategy is that the target company finds the idea of a combined organization attractive but wants to control the final outcome, and therefore tries to buy the hostile bidder.
Shark repellent:  In this case, the target company makes special amendments to its bylaws that become active only when a takeover attempt is announced. The objective of the special amendment is to make the takeover less attractive to the acquirer. In such a case, the acquirer is termed as the shark and the proposed amendments are repellents that prevent the shark from attacking.
Macroni defence: It is a strategy wherein the target company issues a large number of bonds in the market carrying a peculiar condition, that is, if the company is taken over, the bonds will have to be redeemed at a very high price. High redemption price of the bonds acts as a deterrence and the acquirer may be forced to give up the takeover bid.
Crown Jewels: These are precious assets of the target often termed as Crown Jewels, which attract the raider to bid for the company’s control. On facing a hostile bid the company sells these assets at its own initiative leaving the rest of the company intact and hence removes the incentive for which bid was offered. Instead of selling the assets, the company may also lease them or mortgage them so that the attraction of free assets to the predator is suppressed. By selling these jewels the company removes the inducement that may have caused the bid.

There are several different defence measures one could use to fend off a hostile takeover against a firm that is targeting your company Selection of defence system against a hostile takeover is strategic decision. Careful and advance preparation is necessary to cut off such unfriendly bids. It is also important to remain flexible in responding to changing dynamics of takeover techniques. 

Monday, November 3, 2014

Copying the copyrighted in right manner

Copyright grants exclusive rights to the creators of original literary, scientific and artistic works. It prevents unauthorized reproduction, public performance, recording, broadcasting, translation, or adaptation, and allows the collection of royalties for authorized use. However, Copyright only prevents copying, not independent derivation. But, does it means that copyrighted work cannot be used by anyone else without paying royalty? The answer to the question is no; one of the ways in which that particular work can be used to a limited extent is by way of ‘fair use’ of the work.

Fair use is an exception to the rights of the author which allows limited use of copyrighted material without the author's permission. For instance, fair use does not allow reproduction of a whole work or a substantial part of such work, but, rather, extracts or quotations from the work are permitted, such that they do not appear to snatch the first author's expression of his or her idea. To be clear, any unauthorized use of a copyrighted work is normally an infringement and fair use acts as a defence thereof — the defence of fair use does not necessarily mandate a non-infringing action. The unlicensed user admits that he has used the work, which would normally constitute copyright infringement, but justifies his use as covered within the fair use exception.
There is a minor difference in terminology with regard to the concept of fair use in the US and India. US law uses the term "fair use," while British and Indian law uses the term "fair dealing."
In India, fair dealing is covered under Section 52 of the Copyright Act 1957. Indian law allows fair dealing as a defence for specific acts that would not be deemed as infringement for the four specified categories of copyrighted works (viz. literary, dramatic, musical and artistic works).
To help evaluate whether a proposed use is a fair use, consider the following:
·        Copyrighted material used for the purpose of criticism or review of another work or its performance or reporting current events, does not amount to infringement. (Nevertheless, remember, it must be followed by an acknowledgement).

·        The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original.

·        If you use a major chunk or vital feature of the work, it amounts to infringement. However, if you use only few features of the work which does not affect the original; it does not amount to infringement. Taken into consideration whether the work is published or unpublished, and whether circulated or not in case of an unpublished work.

·        If you wish to take a conservative approach, avoid verbatim copying. Synthesize facts in your own words. Keep in mind, however, that close paraphrasing may constitute copyright infringement if done extensively.

·        Never copy more of a copyrighted work than is necessary to make your point understood. The more you borrow, the less likely it will be considered fair use.

·        Do not take the "heart" of the work you're copying from. If what you've copied is important to the original, it will weigh against finding fair use.

·        Courts invariably look at the alleged infringer's literary objective. Make certain you comment upon the material you borrow or can otherwise justify its use. By commenting on the original, does it transform the character, meaning, or message of the original? If so, that's a socially productive use, which leans -- when all four factors are tallied -- towards fair use.

·        Never copy something to avoid paying permission fees, or to avoid creating something on your own.

·        Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit will not, alone transform a "foul" use into a "fair use”.

·        Parody (not satire), which is a work that that ridicules or mocks an original work by borrowing elements of the old work, is sometimes protected by fair use. If the new work clearly mocks the old one, it may provide some justification for invoking the fair use defence.

·        Being a non-profit educational institution does not let you off the hook. Even non-commercial users can be sued if the use exceeds the bounds of fair use.

·        Don't compete with the work you are quoting or copying from. If the use diminishes the market for the copyrighted work (or portions of it), including revenues from licensing fees, it is probably not a fair use. If permission is denied and you feel use is essential to your own work, seek legal advice. Do not quote from copyright material simply to "enliven" your text.

·        Remember that fair use is a "defence" to copyright infringement, not a right. When in doubt seek permission or consult an attorney.

Thus, Indian legislature, through the fair dealing doctrine purports to maximize the promotion of creativity and dissemination of information at the same time. In recent fair dealing cases the court’s approach generally has been to examine the cases by going through each of the factors as a check list, weighing each of them in favour of the copyright owner or the user and then tallying up the net score. This approach has in a way been effective to prevent the doctrine from freezing. I am sure a lot of law firms in Mumbai would agree with us.