Tuesday, January 27, 2015

What has the 'Trust Barometer' got to say about India?

Through a survey which comes as a pleasant surprise to many, India became second most trusted nation in the world. It just goes to say how much this new development has affected India’s ties with other countries, as we have already welcomed the US President Obama in our country for a 3-day visit with a view to strengthen India-US ties, and we are certain more such trips from other world leaders shall follow.
As per an article published by the Economic Times, India has gained the position of the second most trusted country in the world in terms of faith reposed in its institutions even as globally, trust levels have fallen.
This is the result of a survey which is conducted on the terms of faith that the people reposed on its institutions. Trust on the Indian institutions in our country has taken a toll high very sharply in the New Year 2015 which helped our country to move up 3 notches, where India has settled in the second place among twenty seven nations across the globe.
A study by public relations firm Edelman has found that general levels of trust in institutions among college-educated people around the globe are at levels not seen since 2009 in many of the markets it surveyed.
While the numbers of “truster” countries are at an all-time low of six in 2015 including UAE, India, China and Netherlands, the number of "distruster" countries has grown significantly to 13 including Japan, Russia, Hong Kong, South Africa and Italy.
Brazil, Malaysia, France and the US are among the 8 "neutral" nations as per the trust index, the survey said.
Trust levels in Indian politicians too increased drastically to 82% in 2015 from 53% less than a year ago. India, which last year saw BJP-led NDA government storming to power at the Centre, stands tall.
According to the report, an "alarming evaporation of trust" has happened across all institutions, reaching the lows of the Great Recession in 2009.
From fifth most trusted in 2014, India has now become the second-most trusted in 2015 with a score of 79 per cent in the barometer. The study has put Indian Prime Minister Narendra Modi's image on the first page.
Globally, the overall trust index was down a percentage point from the previous year at 55 per cent. Trust levels in major developed economies, such as the United States, Germany and France, hovered around 50 per cent.
Government was the only institution to gain trust in 2015, driven by improvements in 16 countries, including India.

Since this change in the global scenario is attributed to the new Government of our country, let us hope that it takes full advantage of this new position held by us and develop mutually beneficial relations with other members of the top group of countries of the world.

Wednesday, January 21, 2015

Battling Stress: Coping with the legal substance, without substance.

“Wellness” in its true sense isn’t about being perfect; rather it is about nourishing your body as well as your spirit. It is known to us that attachment to unhealthy people and bad habits leads to loss of balance and control of one’s life.
A Lawyer is one such professional who has an extra-ordinarily complicated and busy lifestyle. The court dates and the client meetings along with a million other responsibilities which come along with the job are expected to be met with efficiently and on time. Tackling such an amount of work is not for the faint-hearted.
Studies show that lawyers lead a kind of lifestyle in which they are not healthy, they are not happy, or they feel like they are on a one way track to ill health, unhappiness and lack of fulfillment in life. Why is it so? Maybe because when we practice law, we tell ourselves that having a successful career would mean sacrificing that health and happiness in our lives. This kind of thinking would definitely hike up the stress level even more.
Unrealistic deadlines by clients
Clients are always setting unrealistic deadlines upon their lawyers to get any work done. Sometimes the associates of a law firm are made to work overnight in order to meet a deadline. But what we forget to consider is the level of productivity, which drastically decreases with each passing hour. A person is bound to make serious mistakes in his work if he is made to work for more than 8 hours a day, let alone 15-20 hours.
Multitasking can seem like an advantage, especially in the business world, but constantly performing several tasks at once can lead to a drop in productivity. The bad effects of multitasking take their toll by not allowing you to recover from excessive stimulation that bombards you on a daily basis. Be aware of the negative side effects of trying to accomplish too much at once, and complete one task at a time to regain control over your responsibilities. The bad effects of multitasking for a lawyer can take their toll on your life and livelihood. Last thing we need in our hectic lives is to make things more complicated and more difficult to attempt 10 tasks at a time.
Stress cannot be dissolved without any solution. Meditation can be a helping hand to eradicate stress. It makes one feel more energetic and enthusiastic which in turn helps deliver better quality of work. The best part of yoga is it keeps your mind body healthy. Be it an athlete or a businessman or a lawyer, a fit mind and body is needed to sustain a happy life.
In a world where time stops for no one, where medication is needed to escape stress, a lawyer’s job is to put people at ease and to bring a solution to their problems using their skills. Owing to that, the lawyer must be the last person to fall in the clutches of stress and medications. Yoga is one of the best ways to remedy stress every lawyer should adopt to be stress free. Even closing one’s eyes for 10 minutes or so can drastically improve one’s immunity and inner senses, thereby help the individual feel the contentment in life (if only for those 10 minutes).

Taking frequent and short breaks can actually make you more productive. Lawyers are dealt with work load which at best can be described as humungous and sometimes, even the effect of getting up and stretching your body for 2 minutes will eradicate at least 30% of the stress. Positive vibes are essential to be present at any workplace. The aura that surrounds any individual is depicted by the way they communicate not only with their clients, but also with their colleagues and their boss. Communication about some things non-work related can bring out the real you and make you feel more comfortable.

Wednesday, January 14, 2015

When Law meets the Press: Connection of the Legal field to the fourth estate.

Law and journalism are two fields which demand up-to-date knowledge in this proliferating world. Neither of them is stagnant and obsolete. A layman’s outlook towards the legal profession is only that it involves arguments in courts. Contradictorily, a legal field has no periphery or a border line or limitation to knowledge and possibilities of application of both, the law and the mind and is as vast as any field could possibly be.
Legal journalism deals with a vast arena of report, criticism and appraisal legal issues. With the increase in the audience interaction via the mediums of television channels and in the readership of newspapers and magazines, people have found it extremely difficult to keep themselves away from the media. People have been increasingly demanding transparency and easier availability of information through the media and to give in to these demands is the job of a journalist.
Ethics are very important in the life of a journalist, whereas ethics and law are separate spheres forever overlapping in theory as well as in practice. Ethics justify the laws and legal practices but certain situations in journalism raise both legal and ethical questions and it is very important at such a time, to consider if an action is legal, before any ethical issues are raised against it. This is important because ethical standards such as fairness and accuracy are used in court cases to evaluate stories for various legal problems.
From a legal perspective, the “freedom of the press” is guaranteed constitutionally, but that fundamental freedom in a democracy can be limited for justifiable reasons. Hence, press freedom is not absolute, legally.

Restrictions on the media:

There are many laws, criminal and common, provincial and federal that place legal restrictions how the press gathers information and what it publishes. Some of these laws and procedures are:

1. Court decisions involving news media, based on the Charter

2. Criminal laws: against trespass and recording communications; to force journalists to reveal their confidential sources, to appear as court witnesses

3. Restrictions on trial coverage, such as publication bans on evidence and identity of witnesses.

4. Search warrants and injunctions: warrants for searching newsrooms and homes of reporters. Injunctions to stop publication.

5. Civil or non-criminal law related cases where the main restriction is defamation law, but there is a host of other restrictions in covering family court, disciplinary tribunals and so on.

6.  Restrictions on newsgathering and publication due to:
·        Anti-terrorism laws
·        Elections Act
·        Juvenile Justice Act
·        Privacy laws and access to information laws
·        Copyright law
·        Broadcast law and decisions of regulators, etc.
As far as contempt of any law via the media goes, the press need to be very careful because the actual intention of a journalist can sometimes be considered irrelevant as every journalist learns in his/her career, there are various types of possible reporting restrictions, some of which apply automatically; others are at the discretion of the court as the main idea is to protect the legal process against outside influences.
All journalists need a detailed understanding of the law and how it affects their working life - including defamation, contempt, copyright and privacy. If not a comprehensive account of the law, but a journalist should be competent enough to be relied upon to judge the legal aspects of a story and should always take specific advice from the legal team. After all, the press is the unofficial fourth wheel of our democratic state and hence, it has to be as responsible as the parliament, the judiciary and the Government of our country.

Accepting Conflict Resolution as a Fact of Life Rather Than a Legal Hazard.

A conflict is better resolved when it is neither viewed as good nor bad, but as a fact. Dealing with facts is easier than dealing with “problems”. What is important is how professionally and eloquently; a company manages or handles its disputes. In this article we are not just talking about conflicts, but about the various effective ways of conflict resolution. Negotiation techniques are often central to resolving conflict and as a basic technique these have been around for many thousands of years. Alternative Dispute Resolution (ADR) refers to a variety of streamlined resolution techniques designed to resolve issues in controversy more efficiently when the normal negotiation process fails.
Alternative Dispute Resolution (ADR) is an alternative to the Formal Legal System or litigation. It was being thought of in view of the fact that the Courts are over burdened with cases. The said system stems from the discontent of various parties to dispute with the way in which disputes are traditionally resolved resulting in criticism of the Courts, the legal profession and sometimes lead to a feeling of hostility from the whole legal system- thus, the need for Alternative Dispute Resolution.
Although the concept of dispute resolution through alternate methods is relatively new in India, this mechanism has been found to be non-adversarial in nature and which basically upholds the justice dispensation system of India more effectively, which has previously been under great stress. The advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case has been successfully provided by the course of ADR and is found to  be more private, viable, economic and efficient.
The Indian Arbitration and Conciliation Act, 1996 provides the law relating to Arbitration and Conciliation that is almost the same as in the advanced countries. Statutory Recognition of processes like Conciliation as a means for settlement of the disputes in terms of this Act has been provided for. Guarantees Independence and impartiality of the arbitrators, irrespective of their nationality is also a feature which can mean gold for foreign companies seeking Indian investments. The new Act of 1996 brought in several changes to expedite the process of arbitration. Hence, this legislation has developed confidence among foreign parties interested to invest in India or to go for joint ventures, foreign investment, transfer of technology and foreign collaborations.

The advantage of ADR is that it is a more supple and flexible process and avoids seeking remedy from the courts. Via ADR, parties can withdraw of their own free will at any stage of time. It has been seen that resolution of disputes is quicker and cheaper through ADR. The parties opting for ADR do not develop strained relations; rather they effectively succeed in maintaining as well as sustaining relationship between among themselves.

A brief introduction to the various types of Alternate Dispute Resolution mechanisms is as follows-
·        Arbitration:
This process is sought after only through predetermined valid Arbitration Agreements in the written form between the parties when discussing the emergence of a dispute. The contract, regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. An award made by an arbitration tribunal has the strength of a decree by any higher courts.

·        Conciliation:
Conciliation is a less formal process which does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. The decision of opting for conciliation as an ADR has to be mutual between the parties to dispute, meaning it cannot be enforced by one party on the other.
Parties that opt for this method, submit statements to the conciliator describing the general nature of the dispute and the points at issue. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.
When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.

·        Mediation:
Mediation is that form of ADR which aims to assist two (or more) disputants in reaching an agreement by allowing the parties themselves to determine the conditions of any settlements reached; rather than accepting something imposed by a third party. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. The disputes may involve (as parties) states, organizations, communities, individuals or other representatives with a vested interest in the outcome. Mediators use appropriate techniques and skills to open and improve discussion between disputants, aiming to aid the parties in reaching a fair agreement with definite effects on the disputed matter.

·        Negotiation:
As we have discussed in our previous article (add hyperlink), Negotiation is a skill which lawyers have developed in order to explore all potential avenues of resolving future disputes, including methods which do not involve litigation as stated above. Negotiation plays a pivotal role in international peacekeeping efforts by understanding what each party wants and trying to find a workable legal solution to it. Legal experts are largely spending their time negotiating effective settlements rather than advising on law. Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the primary method of alternative dispute resolution.

·        Lok Adalat:

This unique Indian concept of ADR is termed as roughly meaning a "People's court". It is a non-adversarial system, where by mock courts called Lok Adalats are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, periodically for exercising jurisdiction on minor disputes arising in due course of business between parties. These are usually presided by retired judge, social activists, or members of legal profession. There is no court fee and no rigid procedural requirement which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts. This type of ADR is not for big company disputes, but it acts as a boon for the litigant public by being highly effective for small or Start-up Company facing disputes as the focus is on compromise leading to a binding agreement which is enforceable in any court.

Monday, January 12, 2015

Legal Aspects of the Human Resources Management By Companies.

Human resource management is going through an immense modification that will transform career paths in as-yet uncertain ways. Employers are placing greater emphasis on business expertise and are upgrading their administrative functions, which will have impact on HR professionals to show new skills and compete for new, sometimes unfamiliar roles. Moreover, the field of human resources management is very much influenced and shaped by the state and federal laws governing employment issues. In fact, regulations and laws govern all aspects of human resource management—recruitment, placement, development, and compensation.
Human Resource Management is a highly dynamic field that has advanced from its early days when it was simply personnel management. Today more than ever, it is affected by a huge number of forces from demographic shift through to legislative amendments and technological innovation.
The difficult talk of a human resources manager may be the interview a potential employee. Human Resources department put its best efforts and organizes its employees and staff for a better productivity.  Most of the Human resources may be called in to interpret aspects of an employment contract and in charge of terminating employees.
Here are some of the clauses that need to be present in an employment contract of any company while hiring a new employee-
  • Specified date of joining
  • Specific post assigned to the employee
  • Total amount of compensation that the employee is eligible for each month.
  • The tax regulations to which the employee will be subject to
  • Other benefits that may be enjoyed by the employee, including number of paid leaves permitted throughout the year, etc.
  • Agreement of confidentiality of the company’s information
  • A clause of “non-conflict” which specifies that the employee shall not act in conflict with those terms and agreements.
  • An indemnity clause against any suit for damages or penalties , etc. to which the company or firm are subject to, arising out of breach of any agreement to which the employee was a party.
  • Terms regarding disclosure and exclusivity of information.
  • Term of employment of that employee after which his term shall be reviewed based on his/her performance and the causes that may lead to premature termination of the employee.
  • Non-solicitation of clients belonging to the company.
  • Terms relating to the intellectual property of the company.

The major issue faced by human resource professionals is that in spite of better facilities employees generally fail to give their optimum performance at work. A solution to this problem can be proposed by improving inter-departmental coordination, appreciation of efforts by each employee and increasingly optimized result inducing work environment for each employee.
There are various issues which commonly experienced by employers consist of establishing productivity, employees recruitment, arrangement of training, and prevention of discrimination. Staffs in personnel management also face challenges such as resolving disputes and keeping workers safe. Establishing and distributing benefits, encouraging and maintaining diversity, and handling outsourcing are major concerns as well. How each business deals with its specific human resources issues depends on the HR manager or director as well as company policy. No matter what approach a business takes, addressing these issues usually is an ongoing process.
In the current global work environment, most companies focus on lowering employee turnover and retaining the talent and knowledge held by their workforce. New hiring not only requires a high cost but also increases the risk of the newcomer not being able to replace the person who was working in that position before. The main goal of the human resource department of any company is to avoid conflict with their employees based on industrial disputes or disciplinary matters, severance packages, harassment or discrimination at work, etc. while achieving long-term commercial goals so as to ensure that the best course is followed be it in a crisis or when dealing with forward planning and strategy of the company.