Copyright license for playing music

INTRODUCTION

These days various people are coming in the field of music and various new artists are coming in front of us but they all in their starting sing the songs which have been already sang by other people before them and for this a question arises in everybody’s mind that whether there is any kind of license or copyright for playing music which has already been sang by someone else. These rights are covered or protected by the “Copyright Act, 1957” as it has prescribed the provisions relating with grant of license and laying on penalties on people singing song of other person without obtaining license and under this Act societies can be formed which have the right to collect royalties or deal with copyright issues and grant license to the person.

DEFINITIONS

Section 14 of the Act defines “Copyright”:-

“Copyright” means the exclusive right of a person over literary, musical works as no other person can use them without taking license or permission from the owner of that work .The person who is having the exclusive right over the work can circulate his work to general public and can also store that in any of the electronic means and can also give that work to other person for rent and that person may circulate the copy of the work in general public. The person who is having the exclusive right is the owner of that work and has the copyright over it regarding its circulation in general public or granting license to use it.[1]

Section 2(p) of the Act defines “Musical work”:-

“Musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music.[2]

Section 2(ff) of the Act defines “communication to general public”:-

·        It means as making any work or performing anything which is seen by the general public as directly by them or through any other medium or through the issuance of the physical copies of that work.

·        Whether they have been communicated that work simultaneously or at different places or at different times regardless of that they enjoyed that work or performance which is circulated or made available to them.[3]

Provisions relating with the assigning and granting of license to person for playing music:-

Section 18 of the Act deals with the Assigning of Copyright:-

·        The person who is having exclusive rights over the musical or literary work he can be regarded as the owner of the copyright of that work and he may assign the copyright to use that work wholly or partly. The owner can also prescribe some limitations for using that work but the assignment will take effect only when the work will come into existence.

·        The person who had assigned the right is called as the “assignor” and the person to whom the right to use the work is assigned is called as “assignee” and till the rights are not assigned the assignor will be treated as the owner of copyright of the work.[4]

Section 19 of the Act deals with the Modes of Assigning of Copyright:-

·        The assignment must be in writing and signed by the assignor himself or by his authorized agent and that shall specify the time period and extent of the assignment.

·        The assignment shall also specify the terms and conditions regarding the amount of royalty to be paid by the assignee to the assignor.

·        Where the royalty is not paid or neither of the conditions laid down in writing are fulfilled by the assignee within one year then the assignment shall be deemed to be lapsed after expiry of such period.[5]

Section 30 of the Act deals with the Grant of License by the owner of the copyright:-

Under this section the owner of copyright grants license to use his works i.e. literary or musical works to the other person and that is in writing and signed by the licensor or by his duly authorized agent.[6]

To protect rights and to give copyrights and collect royalties on the behalf of the singers and to impose penalties on person who violate the copyrights of singers, this Act has a provision for the enactment of the Copyright societies under Section 33 of the Act of 1957.

There are generally 3 societies in existence in India for the providing copyrights for music and collecting royalties on the behalf of the owner of the copyrights and these are as follows:-

1.                  Indian Performing Rights Society (IPRS)

Indian Performing Rights Society issues licenses to users of music and collects royalties from them and on the behalf of its members, being authors or composers and even the publishers of music and distributes this royalty which they collect amongst their members after deducting their own administrative costs. The IPRS license governs live performances and performance through any electronic means.

2.                  Phonographic Performance Limited (PPL)

According to the Phonographic Performance Limited they claim themselves to be the owner of the musical works and having the exclusive rights and controls as a assignee has, they also control the public performances and all the radio broadcasting rights in all the languages which are being used in our country and those are Hindi, Telegu, Tamil, Bengali, Punjabi, Marathi etc .It also includes songs of films and songs like Ghazals or devotional songs etc, of its more than 250 members, who are music labels.

3.                  Indian Singers Rights Association (ISRA)

ISRA is a separate society which deals with the copyright issue of performers and claims to have the rights to collect royalties on their behalf.[7]

Case laws:-

In Indian Singers’ Rights Association v. Night Fever Club and Lounge[8]-The Delhi High Court held that since the Defendant was using the Plaintiff society’s repertoire of songs without obtaining a ‘Performers’ Rights Clearance Certificate’ when playing songs or during live performance, they were infringing the copyright of the singers and their right to receive royalties, which is protected under the Act.

In Reoti Saran Sharma v. Numero Uno International[9]-Court held that mere agreement to assign does not operate to pass the property right but gives equitable rights, i.e. it operates as an equitable assignment of copyright as and when the work comes into existence.

CONCLUSION:-

We can conclude that license for playing music of some other person is must and the person who does not comply with the provisions specified in the above Act then that person may be punished under Section 63 of the Act will be punished for with the imprisonment of  not less than 6 months which may be extend to 3 years and fine not less than fifty thousand but may extend to two lakh. The person who is owner of the work will have all the exclusive rights over that musical work.

1. DO'S AND DON'TS WHILE LENDING MONEY TO SOMEONE.
2. 
   
3. DO'S:
4. 1- Always pay the amount via cheque !
5. 2- If not cheque then pay by NEFT/ ONLINE so in case of any dispute in future at-least one can prove the transaction easily before Hon'ble Court.
6. ( Keep record of the transaction)
   
7. 3- Always do an agreement with the other person alongwith an affidavit. It is called Memorandum of Understanding. Get that agreement signed by the other person in presence of the witnesses and get it notarized.
8. 4- Try keeping a PDC as security so that in case the other person does not pay then a criminal case can be initiated against that person. Remember that an amount can be recovered more easily and within less time period as compared to a civil case.
9. 
   
10. DON'TS
11. 1- Never lend money by cash. NEVER !!!!
12. 2- Don’t take a blank cheque as PDC. Ask the other person to fill up the Cheque and then take it as a security.
13. 3- Never delete the whatsapp chats or Messages with that person. Such conversations can be used before Hon'ble Court in order to prove the case.
14. 
    
15. REMEMBER THAT IT IS ALWAYS BETTER TO DO SOME EXTRA WORK IN ORDER TO BE SECURED IN FUTURE. BECAUSE LAW HELPS PEOPLE WHO WATCH NOT SLEEP.
16. 
    

KANIKA BHARDWAJ

ADVOCATE

DELHI

9582000415

Contact Timings - 10:00- 10:00.

A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place. It provides the information regarding the origin of the product. With the passage of time, the very indication becomes the identity of quality, characteristics and reputation.

Recently, the battle between Madhya Pradesh and Chhattisgarh for the nativity of protein rich breed of chicken is being witnessed commonly known as ‘Kadaknath’. Both the states are making significant claims over the origin of the “Kali Masi” (fowl having black flesh) and want to be decorated with the GI tag. The two neighboring states have filed applications with the Geographical Indication registry office in Chennai to obtain the ‘GI tag’.As confirmed by many experts 'Kadaknath' is known for its high iron content and much lower cholesterol than other breeds, and sells at a much higher price than other varieties.

Madhya Pradesh claims that the origin of Kadaknath is in the Jhabua district of the state as confirmed by the Madhya Pradesh animal husbandry department's additional deputy director Dr BhagwanManghnani. The state claims that the it had set up the first poultry farm for this breed of chicken in 1978 in Jhabua.It is also claimed that the government-run hatcheries in Madhya Pradesh produce about 2.5 lakh chickens of the Kadaknath variety annually.

This is not the first attempt for the quest of GI tag. Earlier in 2012, National organisation namely “GraminVikas Trust of Jhabua has applied for the same.

Also, in the same line Chhattisgarh is claiming the GI tag. As stated by the chairman of Global Business Incubator Private limited(GBIPL) the chicken has origin of Dantewada district of the state.Many private poultry farmers are also engaged in rearing the bird in Chhattisgarh. It is believed that the chicken is reared in a natural environment in Dantewada and not fed with artificially ready-made fodder. Many tribal of Dantewada are engaged in the production of about four lakh chicken of the variety for meat annually. 

The state administration has applied for the same last month only while taking assistance from the Federation of Indian Chambers of Commerce and Industry(FICCI). The state has shown a considerable increase in the production of the said variety in recent five years and hence claiming the GI tag.

Both states have equally produces their evidences. Lets see which state comes with flying colour. 

Based on a whistle blower complaint received on September 4, 2017, the lnsurance Regulatory and Development Authority of lndia (hereafter referred to as IRDAI) on Tuesday suspended the certificate of registration issued to E-Meditek Insurance TPA Ltd (hereafter referred as E-Meditek TPA) without prior notice, with immediate effect.

However, “E-Meditek TPA may continue servicing the existing health insurance policies based on the discretion and direction of the respective insurers”, as described in the order passed by the IRDAI Member (non-life).

During the course of inspection of E-Meditek TPA, several irregularities were observed in violation of various provisions of IRDAI (TPA - Health Services) Regulations, 2016.

 “The irregularities observed against the E-Meditek TPA are of such grave nature that it is detrimental to the interests of policy holders and the insurers and allowing E-Meditek to continue their activities as TPA shall have adverse impact on the policyholders and insurers”, said the IRDAI members order.

The IRDAI order further said, “No lnsurer shall entrust servicing of new policies or servicing of new lives under the existing group schemes / policies to E-Meditek TPA. Further steps are being initiated as per provisions of lnsurance Act 1938 and IRDAI (Third Party Administrators - Health Services) Regulations 2016”.

It must be noted that the climate change is the major challenge for the manhood in the current period. Somehow the world is fast-moving towards a climate disaster. Our base is trapped on the accelerator and we are heading towards a gulf.

Many environmentalists believe that climate change has far triumph effects, concerns and consequence for entire sphere in common and emerging countries in specific. It is also an admitted fact that if genuine determinations are not made on war equilibrium, then it will become difficult to live on this planet.

Nowadays, seasons are changing, temperature is increasing of both earth and seawater and there is no end to it. The sphere is entering in era wherein the environment would get tangled in a curved of weakening and deprivation touching the obtainability and admission to water, nutrition, and liveliness in a vast manner.

Conferring to a study, biosphere over people would consume 10 per cent more water per year than nature could refill. Upsurge in global warming has been melting glaciers and withdrawing snowlines. Therefore, seventy streams have immobile flowing into the sea and as a result, aquifers are reducing.

In Indian context there are numerous reasons behind this climate change. In India Environmental Departments of each State is bound to take required actions to protect the environment and to prevent the Climate change. Climate change is a serious threat to environment. Even the State Legislative Assemblies are bound to make more sufficient piece of legislations to safeguard the environment and to eradicate the problem of Climate change. In this article we will discuss about the problem of Climate change. What are the serious effects of Climate change on Environment? How to prevent Climate change? What necessary steps should be taken to prevent the Climate change?

KEYWORDS: Climate change, Environment, Greenhouse Effect, Global Warming, Temperature,

The earth provides enough to satisfy every man’s needs but not every man’s greed.[1]

The above fourteen words quoted by ‘Mahatma Gandhi’, clearly states that earth has enough resources and all essentials that are prerequisite to satisfy man’s needs and wants but however not every man’s greed. But I think us human beings are so egocentric that in order to adopt modernization we are harming our environment and climate conditions in numerous ways. Time has changed and Technology has amplified. This is eventually affecting the climate conditions. At present the “Climate change is the biggest problem of 21^st century.” Many nations have taken various steps to preclude the climate change. “Climate is a typical configuration of weather over the long term. The earth’s climate has warmed and cooled for millions of years, since long before we appeared on the scene. Though climate transformation is not new, the study of how human movement affects the earth’s climate is.”[2] The author in his book has undoubtedly mentioned that climate modification isn’t a new concept, but however the study how climate change is happening and what are the reasons behind it, is new thing.

Now the question that arises is that what is the climate change? Climate change is a kind of modification in the climate due to human activities and other reasons. It has become major issues of 21^st century and also affecting the economic growth of the countries. “It is an acknowledged fact that ‘Greenhouses effect’ is the major factor for climate change. It relates to the gages which keep the earth warm. These gases are also responsible for global warming.”[3] Climate change is influenced by many factors like, earth temperature and wind patterns. Earth temperature is changing day by day and affecting the environment and climate conditions. “Climate change is one of the multidimensional problems facing manhood today.

Climate change includes variety of challenges with wide-ranging effects. It is predictable to have substantial impacts on conditions affecting agriculture, including temperature. It is also admitted that a change in worldwide climate forms apparent from the mid to late 20th century onwards, accredited largely to the increased levels of atmospheric carbon dioxide produced by the use of fossil fuels. A study on climate change is vital from this standpoint because it is deliberated that if human activity that causes unfavorable climate change is not reduced, the existence of the entire human race is under risk.

·         GREENHOUSE EFFECT:

‘Greenhouse Effect’ is one of the major factors causing climate change. It is a mixture of toxic gases which keep the earth warm. These gases are harmful for human beings and for environmental conditions. When these gases enter into environment it changes the climate. Greenhouse effect has been a major concern since long time. “It has been admitted that the balance between energy absorbed by the earth and energy reflected back into space is fundamental in determining how warm or cool the planets becomes.”[4] Environmental scientists believed that ‘Greenhouse Gases’ have been accountable for the weakening of the ozone layer, which shields the earth from injurious direct rays of the sun. Reduction of stratospheric ozone results in higher disclosure to the ultra-violet rays of the sun, leading to an increase in the occurrences of skin cancer.

·         GLOBAL WARMING:

It can be pointed out that global warming is the reason behind the melting of glaciers and it is also responsible for climate change. “Global warming has caused in decline in mountain glaciers and snow cover in both hemispheres and this is predictable to fast-track throughout the 21st century. This will lead to dropping water availability, hydropower potential, and would change the periodic flow of rivers.”[5]

·         IMPACT ON INDIA:

Climate change has great influence on India society. Climate change will make cloudbursts impulsive. It is also believed that the total agricultural production in India will go down. The crop harvest per hectare will also get affected desperately; will cause nutrition uncertainty and loss of means of support. The immense concern is the intensifying altitudes of the sea in the coastal areas which will undoubtedly damage nursery areas for fisheries, causing coastal destruction and flooding. Climate change in India has various impacts such as on environmental conditions, agricultural production including cereals production and on wind patterns also. Climate change has great impact on Indian Sand also. It destroys the essential ingredients of soil, which eventually lowers the agricultural production.

“In a recent global report, India has secured at a low 155th position in a global list. This global list places countries on the basis that how well they do on major environmental concerns. The cause India is so susceptible to climate change is because it is an outsized country with many living in poverty, poor arrangement, and lack of government preparation to deal with multifarious weather systems.”[6]

It becomes clear that India is badly affected by climate change. The Indian government also failed to bring proper steps to prevent climate change. India is so obsessed with technology advancement that it eventually destroying its environment. Indian Industrialization is also responsible for climate change. Industrialization has badly affected the climate in various ways. Due to Indian Industrialization air and water pollution has also increased, which has eventually affected the climate conditions. Smoke from industries made air polluted and harmful to inhale.

“India is exposed to unbalanced monsoons, flooding, rising sea levels, and higher temperatures. The monsoon period is vigorous to the Indian economy since many Indians are agrarian. Preparation for meteorological conditions abnormalities fetched about by climate change is therefore indispensable to protect the lives of the Indian people and the progression of the Indian economy.”[7]

Climate change has numerous dangerous impacts on environment. Global warming, Greenhouse gases effect and Ozone layer depletion are all outcomes of climate change. Climate change also affects the agricultural production and also affects the soil. It also causes soil erosion. It also has various impacts on human health.

“A changing climate is probable to affect all these conditions and hence have an influential effect on human health and well-being.”[8]

We can summarize the impacts of climate change in following points namely,

·         Death and injury due to flooding.

·         Reduced obtainability of fresh water due to saltwater intrusion.

·         Adulteration of water supply through contaminants from submerged waste dumps.

·         Change in the distribution of disease-spreading insects.

·         Health effect on the diet due to a loss in agriculture land and changes in fish catch

·         Health impacts associated with population displacement.

“As the earth heats up, sea levels increase since warmer water takes up more space than colder water. This progression is known as thermal expansion. It must be noted that melting glaciers and ice sheets have worsen the problem of climate change by adding even more water into the oceans. It is predictable that increasing seas will result in salt water entering bodies of fresh water. It is pointed out that hundreds of millions of folks about the world live in seaside low-lying areas could effortlessly be flooded. Sea Level Rise (SLR) will also wear away beaches and will harm numerous seaside wetlands. Sturdier hurricanes are caused due to warmer oceans and these could completely sponge out beaches and islands.”[9]

It may have certain other impacts namely,

·         Impulsive climate patterns.

·         Amplified risk of heat weaves and drought.

·         Enlarged jeopardy of flooding.

·         Increased risk of unembellished weather.

·         Rising sea levels.

·         Financial damage.

·         Loss of life.

·         Impact on agriculture and food prices.

·         Impact on ecosystems.

·         Impact on marine life.

·         Impact on human health and disease.

·         Impact on soil.

·         Impact on agricultural production.

These are certain dangerous impacts of climate change on environment. Climate change is one of the biggest problems of this century and proper steps must be taken by the competent authorities to prevent the issue of climate change. Various Environmental laws must be enacted to prevent the climate change. Law is the only tool which can prevent the climate change. Strict laws relating to environmental protection must be passed to prevent the climate change.

Various suggestions have been given by various persons of various fields namely,

·         Let people know that what the consequences of climate change are.

·         Must invest in flood defences authorities.

·         Make proper planning to prevent the climate change.

·         Conduct proper research on climate change.

·         Increase and connect green space.

·       &n

As per a new ruling by the UK Court of Appeal, the DWP benefit cap does not unlawfully discriminate against lone parents – with children under the age of two. 

Three Court of Appeal judges comprising of Justice Sir Brian Leveson, Lord Justice McCombe and Sir Patrick Elias on Thursday ruled in favour of the Work and Pensions Secretary by a two-to-one majority.

Previously, High Court Judge Justice Collins has ruled in favour of four single parent families in their action against the Department for Work and Pensions over the benefit cap last year.

The judge ruled that the Government’s benefit cap is unlawful, stating: "The evidence shows that the cap is capable of real damage to individuals such as the claimants. They are not workshy but find it, because of the care difficulties, impossible to comply with the work requirement.”

He further added: “Most lone parents with children under two are not the sort of households the cap was intended to cover and, since they will depend on DHP (Discretionary Housing Payments), they will remain benefit households. Real misery is being caused to no good purpose".

However, at the Court of Appeal in October last year, the lawyers representing the Work and Pensions Secretary urged three judges to overturn Justice Collins’ decision.

Judges ruled in favour of the Work and Pensions Secretary on Thursday by a two-to-one majority.

Clive Sheldon QC, one of the lawyers representing Work and Pensions Secretary, told three Court of Appeal judges that Justice Collins was “wrong and erred in law in determining on the evidence before him that the benefit cap unlawfully discriminated” against the claimants who brought the action.

Clive Sheldon further made a submission that there was “no discriminatory impact and, in any event, any such impact would be justified”.

Sir Brian then announced the court's decision allowing the Government's appeal. But, he also said that the families do have permission to appeal to the Supreme Court.

Carla Clarke, one of the solicitors representing the benefit cap claimants, said the ruling is “extremely disappointing”, adding it’s absurd that a Government policy recognises that the single parents should not only be expected to work, but also imposes a cap on them and their children if they do not have a paid job.

Bhumesh Verma, Managing Partner, Corp Comm Legal

Somashish, 5th Year B.A. LL.B. (Hons.) student, School of Law, Christ (Deemed University), Bangalore

Introduction

Recently, the government’s overdrive on making Aadhaar mandatory in every walk of life for Indians and the litigation pertaining to Aadhaar Unique Identification has brought forth the issue of data protection and privacy into civic debate spehere. Between MP Sharma[1] and Rajagopal[2], the Supreme Court in Justice K.S Puttaswamy (Retd.) v. Union of India[3] has decisively held in favour of the right to privacy recognised in the latter. Thus, right to privacy, the right to be free and protected from unwanted intrusion into one’s private life, is now a part of right to life and personal liberty under Article 21. It is worth noting that the judgment provides us profound conceptual insights into privacy while permitting necessary factual flexibility needed for deciding future disputes.

The judgement, inter alia, pertains to informational privacy. In other words, an individual’s interest in preventing and if necessary controlling access to and dissemination of private information is protected under Art. 21. Any encroachment upon this right can only be enforced by virtue of law which  serves a legitimate and compelling State interest and if the means adopted by the said law to achieve such interest are proportional in nature.

Simultaneously, the encroachment on privacy must not be disproportionate to the compelling State interest to be served by the law. Further, notwithstanding the presence of any such law, the State has a positive obligation to protect informational privacy from patently illegal intrusions.

It is noteworthy that hitherto the issue of data protection has been statutorily addressed in a manner which is friendly to the State and confusing for the individual. The legal framework under the Information Technology Act, 2000 (ITA) and rules thereunder has been continuously felt inadequate for protection of privacy and severely constrains the ability of individuals to hold violators liable for data theft and breaches.

In terms of government interception of digital/electronic communication, the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption) Rules, 2009 (Interception Rules) and sections 69 and 69B of the ITA now provide far greater surveillance powers to the Central Government and State Governments (the governments). Experts are unanimous about the fact that these powers are even greater than the powers granted by the Indian Telegraph Act, 1885.[4]

Arguably, the rules also make significant departure from the judgement of the Supreme Court in PUCL v. Union of India.[5] Nevertheless, going by the governments’ poor record in respecting these norms, one is tempted to believe that the Interception Rules are far more likely to be honoured in the breach than compliance. In any scenario, even the most literal conservative interpretation of the aforesaid norms does very little to control the governments’ all-pervasive powers of monitoring and interception.

Ultimately, when it comes to the privacy test laid down by the Supreme Court in Justice K.S Puttaswamy (Retd.) v. Union of India[6] one finds it difficult to defend the Aadhaar project, both constitutionally and practically for a number of reasons elucidated in this article. The Central Government’s record in protecting privacy is extremely poor and its Aadhaar project only adds to the existing problems in relation to privacy protection in India.

Aadhaar—an astronomical data project with big risks

Aadhaar Unique Identification project is a gigantic data gathering project which seeks to provide a Unique Identification to persons living and accessing government subsidies, benefits, and services in India. Section 2(a) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services), Act, 2016 (‘Aadhar Act’) defines “Aadhaar number” to be an identification number issued to an individual by a Central Government-recognised enrolment authority on the basis of the demographic information and biometric information. Thus, we find a 12 digit unique Aadhaar number on Aadhaar/Unique Identification cards.

The uniqueness of the Aadhaar number is confirmed by section 4 of the Aadhaar Act which declares that one person’s Aadhaar number shall not be assigned to any other and that it shall be a random number without any relation with the holder’s attributes.  Section 9 declares that Aadhaar is not a proof of citizenship. This means that the identity function of Aadhaar is connected to the economic activity of availing any government related subsidy, service or benefit. Hence, it is not surprising that one of the key contentions in favour of the Central Government in the ongoing case is purely economic. Thus, it’s argued by the government that Aadhaar is not about sneaking on citizens but on keeping identification of anyone availing any advantage or benefit from the government.

It would be pertinent to note the definitions of “biometric information” and “core biometric information” under section 2(g) and 2(j) of Aadhaar Act. Biometric information means photograph, fingerprint, iris scan, or other biological attributes as decided by regulations. Of the aforesaid, fingerprint, iris scan (and other biological attributes prescribed by regulation) are defined as core biometric information. Section 10 empowers the UIDAI to establish a Central repository containing the data of all Aadhaar number holders. Section 28 stipulates that protection of the aforesaid voluminous data is to be the sole responsibility of UIDAI. Thus, no civil suit or private lawful enforcement effort for Aadhaar data protection is permissible under the Act.

One of the key controversies which have arisen relating to Aadhaar is with respect to the merits of the Aadhaar project. Over 82 billion rupees have been spent on the project till now.[7] Maintenance and planned security upgrades might push up expenditure even further on an annual basis.[8] It would not be an exaggeration to suggest, as the World Bank has recognised, Aadhaar now contains identification data of more than one billion Indian citizens.[9] In such a scenario, one is bound to assess the benefits which arise on account of the project—a valuable consideration in overall constitutionality test of Aadhaar. 

There have been two highly diverging discourses on Aadhaar - Central Government’s optimistic propaganda has presented the project as a panacea for plugging economic leakages in the implementation of government benefits, whereas a sobering sceptical discourse of several legal and technical experts has doubted the efficacy, security of Aadhaar apart from the reliability of government’s tall claims. The Central Government has employed or engaged a plethora of private technology firms for implementation of Aadhaar, but without so much as initiating a tender based process.[10] This has also been one among major reasons for sceptics to be wary of Aadhaar project.

While, the authentication by Aadhaar is acclaimed as having earned global fame[11] on account of effectively plugging leakages in LPG distribution,[12] weeding out fake ration cards,[13] or providing citizens with a welfare-oriented identification mechanism,[14] it is not without its critics, which include constitutional experts. Therefore, the challenge to Aadhaar has both legal as well as technical facets.[15]

Like demonetisation spree 18 months back, India has been in a “linking” frenzy. Everyone’s email account and phone is flooded with messages from banks, insurance companies and who not. A large number of government schemes, apart from bank accounts and mobile connections, now require compulsory Aadhaar verification, flagrantly violating an interim Supreme Court order which was made during the course of the Justice KS Puttaswamy[16] matter. This gives rise to a worry that the Aadhaar based authentication may be akin to “signing a blank paper”.[17] As any lawyer would understand, such a signature can be used for all kinds of mischief, attributing them to its maker who may not even be aware of them.  Citizens do not know nor determine who all will have access to their Aadhaar information, it is the other way round. Citizens are being hounded from all corners to share their Aadhaar information. 

There are two reasons for the aforesaid conclusion—firstly, the authentication involves the separate but successive twin stages of Aadhaar number input and biometric/fingerprint verification over the internet; secondly, the separateness between the two stages enables the biometric/fingerprint information to be stored independently, albeit connected with the Aadhaar number.[18] As to how this independent fingerprint can be deployed without consent of the citizen is anyone’s guess in a country like India.

Least surprisingly, instances of serious data breaches have occurred during the Aadhaar linking processes in banks such as Axis Bank.[19] Axis Bank, Suvidhaa Infoserve and eMundhra were proceeded against by UIDAI for attempting unauthorised authentication and impersonation by illegally storing Aadhaar biometrics.[20] The said breach did not lead to any financial loss or fraud as per official replies.[21] Even if it did cause such loss to bank customers, under the Act, it is not possible for any civil/private enforcement or compensation in light of such breach.

Another illustration is the recent Airtel Payments Bank fiasco. Airtel used its customers’ biometric data provided for the purposes of mobile connection KYC requirements was used by the company to open hundreds of bank accounts in Airtel Payments Bank.[22] The principles of informed consent and purpose specificity affirmed in the UN Data Protection Guidelines[23] were disregarded.

The other threat which could strike Aadhaar data is a “Man-in-the-middle” attack by even the most novice hackers.[24] The very methods and structure of the Aadhaar infrastructure is such that in between the separate communication stages pertaining to Aadhaar number input and biometric verification over the internet, a hacker could divert to other servers, the crucial data being processed in any particular stage.[25]

Therefore, it is most alarming to note that the Tribune newspaper had last year revealed in an exposé that certain urban tech-savvy criminals in Punjab were capable of doing the business of providing access to crucial Aadhaar database for a relatively humble sum of Rs. 500.[26] The most shocking part of the exposé was that the hackers revealed that they had sold such access to more than one lakh different service providers.[27]

Even the Indian government’s computer systems have repeatedly been attacked by foreign hackers on an almost routine basis every year.[28] In 2017-18 alone over 114 government website-related servers were subjected to cyber invasion.[29] Thus, in the background of such weak security record of the government tech infrastructure a citizen might rightly consider his Aadhaar data to be insecure, despite newly added security features in the UIDAI website[30] and repeated assurances by the government.[31]

Most of the government’s claims on success of Aadhaar based economic initiatives such as LPG or PDS access verification, have fallen flat on closer scrutiny. Several reports[32] have found errors and exaggeration in the government’s claims of significant plugging of leakage of subsidies or huge reduction in subsidy burden by Aadhaar implementation, including the CAG’s Report on Implementation of Aadhaar-linked Direct Benefit Transfer in LPG subsidies.[33]

While achieving very little in comparison to the high expectations of the government, the Aadhaar linkage with LPG subsidies, large number of government welfare schemes, as well as the Public Distribution System in select villages has been found to make life difficult for the poor. A phenomenal study[34] by Jean Dreze, et. al, on the implementation of both DBT and Aadhaar verification for access to foodgrains, found that the technical discrepancies made the system so flawed that significant numbers among the poor often had to run pillar to post either to obtain their DBT entitlement or foodgrains under the PDS.[35] Even the most basic issues of low internet and weak mobile connectivity led to miserable delays in obtaining the aforesaid entitlements by the poor.[36] 

Thus, Aadhaar, as an astronomical data project with less-than-satisfactory security and reliability, is thus difficult to defend in both constitutional and practical terms.

Umbrella with holes: Data Protection under the ITA

Any person aggrieved by any data theft or system breach can sue for damages under section 43 of the ITA. The competent authority to decide such complaints is the Adjudicating officer established by different state governments in each state, having pecuniary jurisdiction to decide complaints for damage amounting upto Rs 5 crores. For complaints pertaining to damage beyond Rs 5 crores, the appropriate remedy shall be a regular civil suit. Unfortunately, section 46 of the Act uses the terms “damage”, “injury” and “compensation” interchangeably without regard for the long and rich jurisprudence that finds them to be different concepts.[37]

As per section 46(2) of the Act, the quasi-judicial adjudicating officer may impose penalties, thereby vesting him with some of the powers of a criminal court. The adjudicating officer can award compensation, the quantum of which is to be determined after taking into account factors including unfair advantage, loss suffered and repeat offences. The adjudicating officer may impose penalties for any of the offences described in section 43 of the Act. The law as to the appointment of the adjudicating officer and the procedure to be followed on all adjudications is prescribed by Information Technology (Qualification and Experience of Adjudicating Officers and the Manner of Holding Enquiry) Rules, 2003. Appeals are to be taken up by the Cyber Appellate Tribunal.

Section 43 provides for the following offences:

“(a) accesses or secures access to such computer, computer system or computer network or computer resource;

(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;

(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;

(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;

(e) disrupts or causes disruption of any computer, computer system or computer network;

(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;

(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;

(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,

(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;

(j) steal, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage.”

In respect of the aforesaid offences, as per section 66, the criminal punishment prescribed is a maximum of three years imprisonment and/or fine of Rs 5 lakhs. The jurisdiction lies with the Judicial Magistrate of First Class and the offence is both cognizable and non-bailable.

The Adjudicating officers have had a mixed record in deciding complaints. In most decisions, they have sought to literally apply the statute to the facts and awarded compensation. There have been at least 47 cases filed before the adjudicating officer in Maharashtra.[38] Of these cases, there are three decisions in which the adjudicating officer particularly interpreted the law relating to privacy.

Vinod Kaushik v. Madhvika Joshi[39] involved misuse of husband’s email access to take away his income details for the purpose of use in maintenance suit filed by the estranged wife. The first decision of the officer was that there was no violation of the Act because the wife had gained access owing to a special personal relationship of trust. On being challenged, in the Delhi High Court, the adjudicating officer finally re-decided that the lack of consent on the part of husband to allow access to his emails for the purpose intended by the wife was key to the case. Thus, it was a violation of the ITA. Delhi High Court, which was moved in appeal because the Cyber Appellate Tribunal was non-functional, upheld the final order in its decision of 27.01.2012.

In Nirmalkumar Bagherwal v. Minal Bagherwal[40] the facts were similar to the Vinod Kaushik complaint. The electronic records of bank account of the complainant was given away to the wife by the bank which was one of the respondents. A greater quantum of compensation was ordered by the adjudicating officer against the respondent bank. It is noteworthy that in its decision, the adjudicating officer reviewed decisions and laws from European Union and USA apart from the relevant consumer protection cases and RBI Master Circular.

Amit D. Patwardhan v. Rud India Chains[41] involved a claim against an employee who had revealed bank account statement of the complainant and other private data of the complainant to rival business before jumping ship. The confidentiality agreement had been violated by the respondent. The complainant specifically argued that his privacy had been violated. While accepting the contentions the adjudicating officer, granted only a token compensation liability on the respondent. The bank had not been made a party to the proceeding.

It is worth noting that the adjudicating officer’s jurisdiction does not extend to matters entailing loss beyond Rs 5 crores. This severely limits the ability of individuals to hold body corporates and governments liable for massive data theft or system breaches. Section 43A of the ITA and the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (SPDI rules), do hold body corporates liable for misuse of sensitive personal data or information of users or customers. But this is fruitless in situations such as the one caused by the recent fiasco pertaining to the unauthorised Aadhaar verification for Airtel Payments Bank in which almost Rs 190 crores of subsidies got redirected to newly set up accounts without informed consent of Airtel consumers.[42]

UIDAI fined Airtel Rs. 2.5 crore.[43] However, owing to the quantum of loss being greater than Rs 5 crores, Airtel consumers may not be able to proceed against the company before the adjudicating officers. The rules on jurisdictional issues in relation to wrongdoing spanning across multiple states are also unclear in the SPDI rules. Redundant to add that the Government/government bodies are not within the bounds of either the ITA or SPDI rules.

Interception by governments under ITA

In terms of government interception of digital/electronic communication, the Interception Rules and sections 69 and 69B of the ITA now provide far greater surveillance powers to the Central Government and State Governments (the governments). Experts are unanimous about the fact that these powers are even greater than the powers granted by the Indian Telegraph Act, 1885 (Telegraph Act).[44] The erstwhile Indian Telegraph Act, 1885 had been challenged in PUCL v. Union of India[45] in which the Supreme Court adjudged that the grounds mentioned under section 5(2), namely public emergency, public safety or matters under Art. 19(2) ought to be strictly complied for a valid surveillance order to be made.

The judgement provided that there ought to be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government. The other mandates declare that the total duration of a surveillance order must not exceed 6 months, and the order itself is valid only for two months at a time. The Review Committee can reverse orders and order destruction of material obtained from interception.

The Interception Rules by and large mimic the aforesaid judgement and the Telegraph Act. The only competent authority for passing interception orders under the rules is the Home Secretary to the State government or Union government. Rules 11 and 22 similarly embody the PUCL restrictions on the use of the power. The grounds for ordering interception are defined under section 69 and also include “investigation of offence”, which is a significant departure from PUCL. There are no similar limits to a cyber-monitoring direction under section 69B except that it should be for preventing a “computer contaminant”. Rule 23 also obligates the security agency to destroy records within six months unless necessary for lawful purposes. 

The problems are threefold- firstly, there is no redressal mechanism for citizens to hold the government accountable if the requisite interception powers are used in a manner contrary to the aforesaid ITA and rules; secondly, the destruction of all intercepted data leads information relating to criminal activity to be permanently lost to citizens who may have an interest in obtaining this data under the Right to Information Act; thirdly, there are different thresholds that the government has to fulfil for interception under section 69 and section 69B even though the surveillance activity is, for all practical purposes, equivalent under both sections, thus making these provisions vulnerable to a constitutionality challenge based on Art. 14.

The Ratan Tata[46] writ petition against the Union government for the tapping of phone calls between the industrialist and a lobbyist named Nira Radia, tending to implicate both for shady lobbying for favourable 2G spectrum allocation is yet to be decided.  However, some significant issues are posed by the case. The phone tapping by the Income Tax Dept. may have been legal under the Telegraph Act. Yet, this could be reversed in light of recent KS Puttaswamy[47] judgement granting that right to privacy is a facet of Art. 21.

If the constitutionality of Aadhaar could be struck down on the basis of the same judgement, it is likely that the disproportionately conducted phone tapping could also be declared to be in violation of Art. 21. Alternatively, if the tapping was held legal the fact that the tapes ended up with the media could be construed to be a violation of privacy of Ratan Tata, caused by the government’s failure to comply with the legal duty under the Telegraph Act viz. to maintain security of information obtained from phone tapping.[48]

Conclusion

The Supreme Court in Justice K.S Puttaswamy (Retd.) v. Union of India[49] has decisively held in favour of the right to privacy. Thus, right to privacy, the right to be free and protected from unwanted intrusion into one’s private life, is now a part of right to life and personal liberty under Article 21. It is worth noting that the judgment provides us profound conceptual insights into informational privacy while permitting necessary factual flexibility needed for deciding future disputes. It is definitely a step in the right direction for the apex court to steer public debate and constitutionality assessment of Aadhaar project on the touchstone of informational privacy. Unfortunately, for the astronomical expenditure incurred on the project, the Central Government may not succeed in defending the Aadhaar project because it is gravely vulnerable to any scrutiny based on the privacy test laid down by the Supreme Court. The Central Government’s record in protecting privacy is extremely poor and its Aadhaar project only adds to the existing problems in relation to privacy protection in India.

[1] (2017) 10 SCC 1.

[2] AIR 1954 SC 300.

[3] 1994 SCC (6) 632.

[4] Frost & Sullivan, Lawful Interception: A mounting challenge for service providers and governments https://wikileaks.org/spyfiles/docs/FROSTSULLIVAN-LawfInteA-en.pdf (last visited 14 Feb 2018).

[5] AIR 1997 SC 568.

[6] 1994 SCC (6) 632.

[7] Ronald Abraham, Elizabeth Bennet, et. al., State of Aadhaar Report 2016-2017, Omidyar Network http://stateofaadhaar.in/wp-content/uploads/State-of-Aadhaar-Full-Report-2016-17-IDinsight.pdf (last visited 12 Mar 2018).

[8] Id.

[9] World Bank Group, World Development Report 2016: Digital Dividends, 2-5.

[10] IANS, Aadhaar card projects over Rs.13,000 crore awarded without tenders, The Hindu, 19 Sept. 2015 http://www.thehindu.com/news/national/aadhaar-card-projects-over-rs13000-crore-awarded-without-tenders/article7668321.ece (last visited 12 Mar 2018).

[11] World Bank Group, World Development Report 2016: Digital Dividends, 2-5; Khanna, Tarun, and Anjali Raina; "Aadhaar: India's 'Unique Identification' System." Harvard Business School Case 712-412, January 2012. (Revised September 2012.); Amrit Raj, Aadhaar goes global, finds takers in Russia and Africa, LiveMint 19 Jul 2016 http://www.livemint.com/Politics/UEQ9o8Eo8RiaAaNNMyLbEK/Aadhaar-goes-global-finds-takers-in-Russia-and-Africa.html (last visited 12 Mar 2018).

[12] Prasanta Sahu, DBTL weeds out 3 crore bogus LPG connections, Financial Express, 27 April 2015 http://www.financialexpress.com/economy/dbtl-weeds-out-3-crore-bogus-lpg-connections/67103/ (last visited 12 Mar 2018).

[13] PTI, Aadhaar helped cancel 3 crore fake, duplicate ration cards: Minister, Indian Express, 26 Feb 2018 http://indianexpress.com/article/india/aadhaar-helped-cancel-3-crore-fake-duplicate-ration-cards-minister-5079183/ (last visited 12 Mar 2018).

[14] UNICEF, Why is birth registration important? http://unicef.in/Story/365/Why-is-birth-registration-important (last visited 12 Mar 2018); World Bank Group, World Development Report 2016: Digital Dividends, 2-5; Khanna, Tarun, and Anjali Raina; Jose Ragas, The Silent Revolution: How Id Cards are Changing the World, Harvard International Review, 38(2), 24-27.

[15] Ruchi Gupta, Justifying the UIDAI: A Case of PR over Substance? Economic and Political Weekly, Vol. 45, No. 40 (OCTOBER 2-8, 2010), pp. 135-136.

[16] (2014) 6 SCC 433.

[17] Prof. Jayanth R Varma, Why Aadhaar Transaction Authentication is like signing a blank paper, faculty.iima.ac.in/~jrvarma/blog/index.cgi/Y2017-18/adhaar.html (last visited 12 Mar 2018).

[18] Prof. Jayanth R Varma, Why Aadhaar Transaction Authentication is like signing a blank paper, faculty.iima.ac.in/~jrvarma/blog/index.cgi/Y2017-18/adhaar.html (last visited 12 Mar 2018).

[19] Suranjana Roy, Aadhaar biometric data breach triggers privacy concerns, LiveMint, 25 Feb. 2017  http://www.livemint.com/Industry/IKgrYL5pg3eTgfaP253XKI/Aadhaar-data-breach-triggers-privacy-concerns.html (last visited 12 Mar 2018).

[20] Id.

[21] Suranjana Roy, Aadhaar biometric data breach triggers privacy concerns, LiveMint, 25 Feb. 2017  http://www.livemint.com/Industry/IKgrYL5pg3eTgfaP253XKI/Aadhaar-data-breach-triggers-privacy-concerns.html (last visited 12 Mar 2018).

[22] Anand Venkatanarayanan and Srikanth Lakshmanan, Aadhaar Mess: How Airtel Pulled Off Its Rs 190 Crore Magic Trick, The Wire https://thewire.in/206951/airtel-aadhaar-uidai/ (last visited 14 Feb 2018).

[23] UN Guidelines for the Regulation of Computerized Personal Data Files, General Assembly resolution 45/95 of 14 December 1990.

[24] Nethanel Gelernter, Senia Kalma, et. al, The Password Reset MitM Attack, accessible at: https://www.ieee-security.org/TC/SP2017/papers/207.pdf (last visited 12 Mar 2018).

[25] Nethanel Gelernter, Senia Kalma, et. al, The Password Reset MitM Attack, accessible at: https://www.ieee-security.org/TC/SP2017/papers/207.pdf (last visited 12 Mar 2018).

[26] Rachna Khaira, Rs 500, 10 minutes, and you have access to billion Aadhaar details, 4 Jan 2018,

http://www.tribuneindia.com/news/nation/rs-500-10-minutes-and-you-have-access-to-billion-aadhaar-details/523361.html (last visited 12 Mar 2018).

[27] Id.

[28] PTI, Over 22,000 Indian websites hacked between April 2017-Jan 2018, LiveMint http://www.livemint.com/Politics/KPLenpHmMKDwQvVlNRbgWI/Over-22000-Indian-websites-hacked-between-April-2017Jan-20.html (last visited 12 Mar 2018);PTI, 33,531 cyberattacks in India in 2014-16, LiveMint http://www.livemint.com/Politics/EsLu5w25R9oZY0cxys2ldK/33531-cyberattacks-in-India-in-201416.html (last visited 12 Mar 2018).

[29] Id.

[30] Aadhaar: Security Concerns Linger, BloombergQuint, 4 Jan 2018 https://www.bloombergquint.com/in-the-news/2018/01/04/aadhaar-security-concerns-linger (last visited 12 Mar 2018).

[31] Id.

[32] Kieran Clarke, Shruti Sharma, et. al., Ghost savings: Understanding the fiscal impacts of India’s LPG subsidy, http://www.iisd.org/blog/ghost-savings-understanding-fiscal-impacts-indias-lpg-subsidy (last visited 12 Mar 2018); Jean Drèze, Dipa Sinha, et. al., Ration Bachao: Why do Protesters in Ranchi Want Food not Cash? 1 March 2018 http://www.epw.in/engage/article/ration-bachao-why-do-protesters-in-ranchi-want-food-not-cash

[33] Report of the Comptroller and Auditor General of India on Implementation of PAHAL (DBTL) Scheme (Pratyaksh Hanstantrit Labh Yojana), Union Government (Commercial) Ministry of Petroleum and Natural Gas Report No. 25 of 2016 (Compliance Audit), accessible at:

http://www.cag.gov.in/sites/default/files/audit_report_files/Union_Commercial_Compliance_Full_Report_25_2016_English.pdf (last visited 12 Mar 2018).

[34] Jean Drèze, Reetika Khera, et. al., Aadhaar and Food Security in Jharkhand: Pain without Gain?, 16 Dec 2017, Economic & Political Weekly.

[35] Id.

[36] Jean Drèze, Reetika Khera, et. al., Aadhaar and Food Security in Jharkhand: Pain without Gain?, 16 Dec 2017, Economic & Political Weekly.

[37] State of Gujarat v. Shantilal Mangaldas AIR 1969 SC 634; Ranbir Kumar Arora v. State of Haryana, AIR 1983 P&H 431.

[38] Adjudicating Officer’s orders – http://it.maharashtra.gov.in/1089/IT-Act-Judgements (visited on 30 September 2017).

[39] Rajesh Aggarwal, Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra, 10.10.2011.

[40] Rajesh Aggarwal, Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra, 26.08.2013.

[41] Rajesh Aggarwal, Adjudicating Officer, ex-officio Secretary, IT Government of Maharashtra, 15.04.2013.

[42] Anand Venkatanarayanan and Srikanth Lakshmanan, Aadhaar Mess: How Airtel Pulled Off Its Rs 190 Crore Magic Trick, The Wire https://thewire.in/206951/airtel-aadhaar-uidai/ (last visited 14 Feb 2018).

[43] PTI, Airtel deposits ‘interim penalty’ of Rs 2.5 cr with UIDAI, The Hindu https://www.thehindubusinessline.com/money-and-banking/airtel-deposits-interim-penalty-of-rs-25-cr-with-uidai/article9996332.ece (last visited 14 Feb 2018).

[44] Frost & Sullivan, Lawful Interception: A mounting challenge for service providers and governments accessible at: https://wikileaks.org/spyfiles/docs/FROSTSULLIVAN-LawfInteA-en.pdf (last visited 14 Feb 2018).

[45] AIR 1997 SC 568.

[46] Writ Petitions (C) No. 398 Of 2010 With No. 16 Of 2011.

[47] Writ Petition (Civil) No. 494/2012.

[48] §§23 & 24, Indian Telegraph Act, 1885. 

[49] 1994 SCC (6) 632.

In today’s corporate world, the concept of Corporate Governance has attained substantial prominence for systematic and well-organized management of day to day corporate affairs and complying with legal and regulatory necessities.

It is universally known that nowadays, Corporate Governance is at the heart of the corporate management and has the power to dictate the success or failure of a company in so far as complying with the legal obligations, achieving business objects and ultimately reaching the targeted financial projections.

As a result, more and more companies are enunciating their Corporate Governance policies and procedures of its own delineating the protocols to be adhered for:

·        The administration of the company affairs;

·        Effective dispensing of company’s business operations;

·        Dealing with the conduct of company personnel (e.g., Prevention of Sexual Harassment at work);

·        Handling client management; and

·        Complying with rules and regulations formulated by the government and regulatory authorities.

While formulation of the Corporate Governance policies and procedures is one side of the coin, numerous companies are despondently dwindling in austere execution of the Corporate Governance policies and procedures.

What is the reason for certain companies’ failure to maintain or comply with the Corporate Governance standards?

The fundamental reason for certain companies’ dismal performance in preserving and complying with the Corporate Governance standards and ending up paying hefty price for non-compliance in the form of penalties is either not having a legal department in the organization structure or engagement of inefficient personnel in the company legal department.

Certain companies blatantly ignore the importance of the legal department and engagement of qualified legal and compliance professionals on board to ensure effective and efficient compliance with the legal, compliance and regulatory requirements. They tend to be penny wise and pound foolish and fail to do the cost – benefit analysis.

Such companies, however, do not grasp the importance of legal department (which plays strategic character in companies’ compliance with legal and regulatory requirements) until they end up getting punished by way of penalty and facing court proceedings as a consequence of non-compliance with mandatory legal and regulatory requirements.

Why is it very important for a company to have legal department with qualified professionals?

We are witnessing numerous instances of companies’ failure to comply with the legal and regulatory requirements and frauds committed by certain corporations. As a consequence, most of the companies face hefty penalties and prosecution for violating laws and end up as defunct companies, some even defrauding banks, shareholders, creditors and the economy at large.

Recently, in a major crackdown, the Indian government declared companies (2.26 lakhs) as defunct companies for non-compliance with mandatory legal and regulatory requirements imposed on these companies by the law. This shows the magnitude of the consequences that a company has to face for ignoring the obligation of compliance with legal and regulatory requirements.

Most of these companies overlooked the consequences for non-compliance with laws as a result wrecked up disqualified to conduct its business operations and guilt less independent directors barred from acting as directors for no fault of them. It is evident that if these companies entrusted competent legal and compliance professionals, they could have avoided the embarrassment of garnering the status of defunct companies. Now, many among the disqualified companies are seeking relief and condonation from the government.

Further, Indian government is also intensifying laws to stringently deal with the companies continuously falling short of complying with the mandatory legal and regulatory requirements.

Considering all this, one cannot undermine the critical role that a competent legal department could play in ensuring compliance with the laws and regulatory requirements.

Role of Legal Department in formulation and Implementation of Company Corporate Governance and other polices:

An effective execution of the Corporate Governance and related policies involves two parts:

Formulation:

·        It is very important to articulate strong corporate policies concerning Corporate Governance and other key protocols to ensure company complies with all of its legal, business and financial commitments.

·        The primary aspect in formulating the policy should be to employ a team of legal and compliance personnel who would be competent and qualified.

·        Such legal team will consult all the stakeholders involved (legal, business and finance team) and incorporate all the representations received from them in the draft policy.

·        Legal team will review and fine tune the policies covering interests of all stakeholders and protecting company’s business interest and ensure that such policy is in line with the objectives of the laws of the nation.

Implementation:

·        Articulating a strong Corporate Governance and other related polices will not by itself serve the objective for which such policies are enacted.

·        Proper implementation of such polices is equally important to ensure that objective of the policies is accomplished in veracity and to ensure that such polices won’t end up as paper presentation.

·        Legal and compliance team will play mammoth role in enunciation and austere implementation of company policies.

·        Legal and compliance team will be responsible to ensure that:

1.      Company policies are implemented in a well-organized manner to make certain that company is complying with all existing laws and regulatory regulations without fail.

2.      All the personnel of the Company are complying with the company internal policies and procedures.

It is evident that the legal department is the knight in shining armor of the Company for articulating company polices and well-organized execution of such polices without fail aiding companies to comply with mandatory legal and regulatory commitments without default.

Functions of a legal department in a company from the Corporate Governance aspect:

The legal department of a company is responsible to:

·        Make certain company is complying with existing laws and regulations without flop.

·        Educate the company management about cutting-edge development of laws and consequences for botch to comply with such laws.

·        Articulate company policies and procedures with the objective to inculcate the elements of accountability and responsibility into the organization workflow.

·        Provide sound legal advice to the company and its personnel in relation to any legal and compliance transaction and guide them in right path to preserve clean Corporate Governance standards within the organization.

·        Maintain all legal, financial and business records of the company up to date with clean and spotless information to prevent any violation of laws and leaving no latitude for any fraudulent deeds within the organization.

·        Conduct workshops on the importance of compliance with the existing laws and regulations along with internal policies and procedures to all departments of the company.

·        Build a robust mechanism to identify the fraudulent intent of any company personnel at grass root level and ensure that such personnel getting punished for bad vices and no longer working in the company or any other company.

Right mix of talent and experience:

·        Most of the companies do not pay attention to the importance of employing competent and qualified legal professionals. This is a dangerous practice that needs to be changed to catch up with the ever changing landscapes of the legal and compliance field.

·        As a consequence, such companies willingly or unwillingly one way or the other join the bandwagon of the default or defunct companies for violation of laws which is a bad omen for the reputation and business of such companies and the country at large.

·        It is thus very important for every company to comply with legal and regulatory commitments to employ a legal / compliance department with right mix of talented and experienced professionals and allocate adequate funds to run the legal department without any glitches.

·        Such team should service the companies in the best possible way to fulfil their legal and compliance commitments and salvage the company a lot of time, money and most importantly the humiliation from getting punished for violation of the laws.

Conclusion:

It is evident that every company needs to employ well organized and equipped legal and compliance department to maintain the Corporate Governance standards mandated by the law. It is also responsibility of the government and legal fraternity to educate companies about the prominence of the employing good Corporate Governance practices.

No company should ignore the strategic role that the legal / compliance department will play in a company’s ability to successfully comply with the laws and regulations of the nation and effective implementation of company’s internal and external policies and procedures.

To conclude, a legal department comprising of competent, talented and qualified professionals in the armor of company to guide the company in right direction and ensure that company complies with all relevant laws and salvage the company from the humiliation of facing the punishment for non-compliance with violation of laws.

On December 09, 2013, India enacted the bill on women safety at workplaces as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) to address the issue of women safety outside their homes especially when they are interacting in workplaces.

This Act recognizes the lack of structured and confidential medium for accessing any justice for sexual harassment experience, or inability of a woman to not to report such incidents to authorities. Keeping this in context, the Act has introduced several new roles at State, District and Organization level to provide an accessible, confidential, timeline and process driven access to seek redressal in instances of sexual harassment experienced by women at workplaces.

One of the roles that has become extremely crucial and relevant for lawyers and legal professionals is the role of External Member on Internal Complaints Committees of organizations. Workplaces are currently actively seeking a professional advisory for not only completing the guideline requirement under this Act but also a professional to guide the Internal Committee on proper investigation and redressal procedures.

Finding an appropriately qualified individual to fulfil the role of the external member in the Internal Complaints Committee is one particular task that poses quite a few difficulties for organisations as they struggle to find someone with appropriate legal knowledge of the Act, understanding of organizational complexities and practical insights of this role.

So, what does it take to become an advisor to the Internal Complaints Committee?

As a lawyer, do you have the experience to extend your practice to organizations as an External Member?

What all do you need to acquire as part of the knowledge and skills to become an “expert” External Member?

What are organizations looking for when they seek an External Member to on-board on their Internal Complaints Committee?

We, at Ungender, have been working with workplaces and government for years now and are offering our latest offering in the form of an Online Training Program for existing and interested professional who wish to work as External Members.

Key elements of the program:

1.    Learn online, from anywhere, any time;

2.    Learn the knowledge and skills required for this role;

3.    Practical insights from industry;

4.    Case studies based learning; and

5.    Assessment and Certification at the end of the program

            Duration: 3 months

            Cost: INR 9,999

You may read the full program brochure here and the FAQ document here.

If you wish to proceed to the payment, you can proceed to the payment page or for questions call us on +91 90155 47392.

With this program and its completion, we also invite you to become part of Ungender’s External Member Affiliate Network and receive client assignment.

For questions pertaining to this program and understand the working dynamics of this field, feel free to get in touch with us on +91 9015547392. You are also invited to register your interest at our program detail page here.

With over 10 lakhs registered companies in India, India Inc. needs more trained and qualified professionals in the field of gender laws compliance through Sexual Harassment of Women at Workplace Act, 2013.

Come and be part of this.

Cybercrime is defined as a crime in which an electronic device is the object of the crime (hacking, phishing, spamming) or is used as a tool to commit an offense (child pornography, hate crimes, etc.).

These days, too many people and organisations are becoming victims of cyber-crimes. Cyber attackers/hackers are opting cyber-hacking as a weapon to generate easy money in single stroke without much hassle by hacking and intruding into personal data of persons, companies and government agencies using virus such as ransom virus.

As a consequence, common people feel that no data or information is safe in this digitalized world which is terrorized by the cyber criminals.

According to the official reports 1, 44,496 cyber security attacks observed in the country during 2014-16 period.  5,693, 9,622 and 11,592 cyber-crime cases were registered during 2013, 2014 and 2015 respectively.

Tremendous upsurge in the utility of computers, smart phones and internet by citizens and lack of knowledge amid most of citizens on the aspect to safe guard their data and information is considered as the major component that contributed to raise in cyber-crime cases.

These official statistics expose the imminent need to take certain immediate measures to build a robust cyber mechanism in place which will be well armored and equipped with right tools to hunt down the cyber criminals.

In order to sternly deal with cyber criminals who are habituated to commit cyber-crimes such as financial frauds, circulation of communal and pornographic contents, the Central Government is deliberating to establish an Indian cyber-crime coordination centre in Delhi - with the underlying intent to repose the lost confidence of common man about the safety of data or information stored in cyberspace.

States governments are also mandated to establish State cyber-crime coordination cells at the headquarter-level and also establish district cyber-crime cells.

Central government has further allocated funds to constitute a cyber-forensic laboratory-cum-training centre for police officials in each state.

As a part of its efforts to eradicate (or at lease reduce and minimize) cyber-crimes Central Government will preserve a list of suspects and the leads generated via cyber-crime cases investigations and share such list with law enforcement agencies.

Going forward, cyber hackers need to be aware of the hefty price they are going to pay for committing cyber-crimes as Central government will initiate stringent action against such hackers and websites which contravene India's laws and circulate child porn, and communally and racially sensitive content.

It is hoped that with the establishment of the Indian Cyber Crime Coordination Centre at Central level and associated bodies at State level will strengthen the cyber mechanism in the country and punish the cyber criminals with stringent punishment – ultimately triumph the end objective (i.e to make common man feel confident again that the data or information owned by them in cyberspace is secure, safe and free of cyber threats).

Research and inputs by Paruchuri Baswanth Mohan