Section-87 of the Arbitration and Conciliation (Amendment) Act 2019 quashed by the Supreme Court

In a case between Hindustan Construction Company v Union of India, WP (CIVIL) NO. 1074 OF 2019, the Hon’ble Supreme Court of India quashed Section-87 of the Arbitration and Conciliation Act (hereinafter referred to as “the Act”) through an amendment in 2019.

The quashing of Section 87 by the apex court marks another turning point in the arbitration law in India. The bench lead by Justice R.F Nariman criticized the respective provision by saying that “it turns the clock back and pushes the firms into insolvency due to the delay in enforcement of awards”.

Background/facts of the case: The case was filed by the Hindustan Construction Company (HCC) through a writ petition under Article 32 of the Constitution of India. The contention by the petitioner was,  due to this provision they were forced into insolvency even though the NHAI (National Highway Authority of India) owed them an amount which was over ₹6000 crore.

 Chronology of the issues: The core issue of this case involves two amendments to “the Act”, one was in 2015 and the other one was in 2019 and also with a provision that was present in the parent Act i.e. 1996.

Section 36 of the Arbitration and Conciliation Act, 1996 provided that an arbitral award would be enforceable as a decision only after either (a) a complaint pursuant to Section-34 of the Arbitration Act contesting an arbitral award has been dismissed or (b) the time limit for contesting an arbitral award pursuant to Section 34 of the Arbitration Act has expired. In other words, if a petition under Section-34 (Challenge to an award) is in its pending stage, an arbitral award, even though awarded cannot be enforced unless the conditions above are not fulfilled. This clogged the rights of a bona fide award holder and was subsequently termed as “Automatic stay”.

In 2015, an amendment was made in the Act with the aim of reducing delay in the arbitration proceedings and enforcement of awards. The main significance of the amendment was the substitution of Section 36 which implied that although previously challenging an award under Section-34 would constitute an “Automatic stay” but after the amendment mere challenging an award would not constitute an “automatic stay”, unless a specific stay has been granted by filing a separate petition.

Further, Section-26 of the 2015 amendment specifically specified that the 2015 amendment will extend to arbitral proceedings commencing on or after 23 October 2015 (hereinafter referred to as “Cut-off Date”).

Hence, despite the substitution of Section 36, the concept of “Automatic stay” was still holding its value in cases where petitions of Section 34 were pending as on the “cut-off date”.

Furthermore, in 2018, in the case of BCCI v Kochi Cricket , (2018) 6 SCC 287 the question of interpreting     Section-26 of the 2015 amendment and its applicability to the proceedings pending before such amendment was put before the Indian Supreme Court. The Supreme Court observed that Section 36 is a procedural provision and a judgment debtor is unable to enjoy the substantive right of an automatic stay on the execution of an arbitral award when filing a petition under Section 34 of the Arbitration Act.

In view of the observations made, the Supreme Court held that substituted Section-36 of the Arbitration Act also applies to arbitral awards in situations where a complaint has already been filed pursuant to Section-34 of the Arbitration Act as of the Cut-off Date.

Introduction of Section-87 to the Act by 2019 Amendment:  

The introduction of Section 87 in the Arbitration Act was one of the major amendments introduced by way of amendment made in 2019, which provided that 2015 amendment would apply only to the arbitral proceedings initiated on or after the “Cut Off Date” and to such arbitral proceedings. In furtherance to this, Section-15 of the Amendment also omitted Section-26 introduced by way of the 2015 Amendment.

The main impact of this legislation was that it nullified the ruling given in BCCI v Kochi Cricket case and it restored the position before the 2015 Amendment i.e. “Automatic stays”.

In the present case of Hindustan Construction Company (HCC) v. Union of India, the 2019 amendment was questioned before the Indian Supreme Court on the grounds of the application of Section 87 of the Act and the abolition of Section 26 of the 2015 amendment.

In BCCI v. Kochi Cricket, the Supreme Court of India explained that the new Section 36 adopted by way of the 2015 amendment would also extend to awards in cases where a petition pursuant to Section 34 of the Act had already been lodged as on / before the Cut-off Date, thus abolishing the grant of an automatic stay pursuant to Section 34 of the Act on merely pending of the petition. The Supreme Court's view was seen to be in line with the purpose of the 2015 amendment, i.e. reducing the delay in arbitration proceedings and enforcing the resulting arbitral awards. The apex court further observed that due to the delay in enforcing arbitral awards because of an automatic stay granted to the judgment debtor as a "claimed right" or "privilege" defeats the purpose of granting the relief by way of passing an award.

Justice Nariman, in his judgment stated that “An arbitral award-holder is deprived of the fruits of its award— which is usually obtained after several years of litigating— as a result of the automatic stay, whereas it would be faced with immediate payment to its operational creditors.”

For the aforesaid reasons, the Supreme Court has struck down Section-87 ruling that it defeats the purpose of the 2015 Amendment as it not only hinders the enforcement of arbitral awards and delays the arbitral proceedings but also results in interruption in seeking relief and justice leaving the scope of judicial intervention.  

Social media has loomed as the most effective tool in recent times to flag the causes, contents, opinions and direction of any social movement and has demonstrated that it will have a far-reaching effect on government as well. This study focuses on India which has emerged as the fastest growing community on social media. Social movement activists, in particular, have extensively utilized the power of digital social media to streamline the effectiveness of social protest on a particular issue through extensive successful mass mobilizations. This research analyses the role and impact of social media as a power to catalyze the social movements in India and further seeks to describe how certain social movements are resisted, subverted, co-opted and/or deployed by social media. The impact assessment study has been made with the help of cases, policies and some social movements which India has witnessed the assertion of numerous social issues perturbing the public which eventually paved the way for remarkable judicial decisions. The paper concludes with the observations that despite its pros and cons, the impacts of social media on the functioning of the Indian Government have demonstrated that it has already become an indispensable tool in the hands of social media-suave Indians who are committed to bring about the desired change.

Full paper link is below:

https://www.academia.edu

Seat of the arbitration

The arbitration seat is a vital aspect of any method of arbitration. The situs is not just about where an organization is located, where trials are going to be held, or where a good pool of arbitrators can be found. It also deals with which courts have supervisory jurisdiction over the arbitration and the scope of those powers.  A recent Commercial Court decision reminds us that while the governing law of an arrangement may provide for one national law that may suit the nationality of one or both parties, it is the seat of arbitration that is essential for the security and enforceability of an arbitral award.

In cases where a seat in the arbitration clause has not been allocated by the parties and there is no default seat under the arbitration rules, confusion may arise as to which statute governs the proceedings and which courts administer the arbitration. It is always recommended that parties specify the seat of arbitration in the clause, in case of failure of specification the arbitral rules will usually decide the seat. However, the rules can differ significantly in the same.

Parties should avoid giving the respondent the unilateral right to select a seat, as was the case in the case of Taizhou, because unless the parties have agreed on the law governing the arbitration clause, this approach will not only lead to uncertainties, but will also give the recalcitrant respondent the opportunity to try to frustrate the arbitration by selecting a seat under the law of which the arbitrator is responsible.

Confusion between “seat” and “venue” of arbitration

 Place of arbitration.—(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

The main difference between the “place/venue” of arbitration and seat of the same lies in the fact that place/venue only determines the physical location where arbitration will take place and “seat” of arbitration determines the court having jurisdiction over the nullity claim of an award

Cases with reference to the arbitration in Singapore and India.

Judgements:  The Supreme Court noted in the case of Union of India v Hardy Exploration and Production that “seat” and “place” of arbitration can be used interchangeably where there is no agreement between the parties on the place of arbitration, the arbitral tribunal the decide the same.

The Supreme Court stated that although the award had been signed and announced in Kuala Lumpur, the place of arbitration by the arbitral tribunal had not been specifically decided. The Court held that a constructive act and an express opinion would require "determination." The Supreme Court overturned the Delhi High Court's judgment and held that the Kuala Lumpur was the   venue. The Supreme Court held that the Indian courts would have jurisdiction to consider the appeal to set aside the award pursuant to s.34 of Part I of “The Arbitration And Conciliation Act, 1996”, as the award given is not an "international award."

Through this judgment, the Supreme Court has stipulated and reiterated the manner of determination of the seat of arbitration as below: Parties can expressly agree upon the seat or place of arbitration in their arbitration agreement; If the seat is not expressly agreed upon, it can be deduced from the arbitration clause and concomitant factors, such as the venue and an additional factor; The seat of arbitration can also be determined through the incorporation of rules such as the Model Law in the arbitration agreement, which stipulates that if parties do not agree on the place of arbitration, the same shall be determined by the arbitral tribunal.

Arbitration system in Singapore

Of 452 new cases earned in 2017, the Singapore International Arbitration Center or SIAC is one of the fastest growing arbitration institutions in the world. In compliance with the SIAC Arbitration Rules, the parties to a contract can agree to refer their disputes to arbitration. By doing so, the parties agree that their disputes will be decided in arbitration and that, in addition to any necessary rules at the arbitration seat, the arbitration proceedings will be controlled by the procedural rules in the SIAC Arbitration Rules. The arrangement between the parties is generally reported in an arbitration clause.

The Singapore courts ' approach to assessing the controlling or' proper' law of the contract is set out in Overseas Union Insurance Ltd v Turegum Insurance Co(' Teregum Insurance') and includes three phases not unlike those applicable in the arbitration agreement's governing rule:

 (a) Examine the contract itself to decide whether it clearly specifies what the governing law is.

(B) In the absence of an explicit clause, see whether it is possible to infer  from the circumstances the intention of the parties as to the governing statute.

(C) If none of the foregoing can be done, determine the legal system with which the contract has the most real and close connection.

Case law where the seat of arbitration was in question and further the law governing the arbitration

:BNA v BNB and another (2019) SGHC 142

The conflict between the parties emerged from a Takeout Agreement ("TA"). The agreement stated explicitly that it was regulated by PRC law. The arbitration provision provided for eventually "submitting disputes for arbitration in Shanghai to the Singapore International Arbitration Center" (SIAC), "which would be administered under the SIAC Arbitration Rules. Nevertheless, there was no clear choice of law provision in the arbitration clause.

Subsequently the defendants commenced the proceedings against the plaintiff in the SIAC (Singapore International Arbitration Centre). The plaintiff then challenged the tribunal’s jurisdiction stating that the arbitration was invalid PRC law as it prohibits any foreign arbitral institution such as SIAC from administering a PRC seated administration.

Singapore’s High Court decision-

The Court found that the arbitration clause applied to two geographical locations, namely Singapore and Shanghai, in deciding the seat of arbitration selected by the parties. The arbitration clause did not state clearly that Shanghai was the legal seat or just the location. The seat decides which legislation regulates and supervises the arbitration proceedings. The empirical site, on the other hand, is simply the geographical location where trials and other proceedings are conducted.

The Court noted that the SIAC Rules, which had been incorporated by reference into the arbitration clause, established that Singapore was the seat of any arbitration under the SIAC Rules in the absence of a counter-agreement by the parties or a counter-agreement by the court. The Court concluded that the specific reference to the SIAC Rules was the clearest possible expression of the intention of the parties to have all potential arbitrations under their Singapore arbitration clause.

The Court put particular importance on the fact that the arbitration clause of the parties merely referred to Shanghai as a city, rather than the PRC, being a "law district" that could be perceived as a reference to a location rather than a position. The Court contrasted this with the (indirect) reference to Singapore as the seat under the rules of the SIAC.

The problems in this case could have been avoided if the seat of arbitration was designated in clear terms and by avoiding giving mere references to geographical locations without designating them as “seat”.

The parties must also keep in check whether any restrictions under any applicable national law may apply as in this case the PRC law.

In case where “seat” of arbitration is not specified or there is conundrum on the determination of “seat” or the “venue” in the arbitration agreement, what can the parties sort to-

There can be sometimes a defect in the arbitration agreement with respect to either  “seat” or the “venue” of the proceedings. Firstly the difference between both the terminologies was given by the supreme court in the case of Union of India v Hardy exploration and production as mentioned earlier in the article that-

 The arbitration seat is a vital aspect of any method of arbitration. It  is not just about where an organization is located, where trials are going to be held, or where a good pool of arbitrators can be found. It also involves which courts are responsible for supervising the arbitration and the extent of those powers. The “seat” of the arbitration will decide which law will govern the dispute(if any arises)

in the future between the parties. There should be a clarity in the agreement by the parties as to the determination of the seat of the proceedings as in absence of that clarity it will lead to confusions and large amount of time and resources can be wasted.

Whereas the “venue” only means a physical location as to where the arbitration proceedings will be held it does not confer which law or institution will govern the proceedings. In an agreement “venue” only means where the case will be constituted physically and does not relate to the law governing unless there is no specific condition precedent attached to it or something, reference to the case of Union of India v Hardy exploration and production court held that “mere the arbitrator meeting and signing the award in Kuala Lumpur does not amount to the determination of the seat unless a condition is attached to it as a “concomitant”.

In case where there is a dispute which is subject to arbitration and in the agreement parties are failing to determine a “seat” for the proceedings and also there is a confusion as to which law will govern the proceedings, the issue will be settled as mentioned in the case of BNA v BNB and another  and it also provided the clarity on the what law will govern the proceedings. This case followed a three stage approach while determining the law governing the case, that approach was adopted by the tribunal from the “Sulamérica”  case. That approach involved three determinants as to find the seat in the arbitration agreement:

a)      Have the parties expressly chose the proper law on which the proceedings will be governed?

b)      If not, is there any implied intention by the parties of choosing the law governing?

c)       If there is no express or implied intention as to which law will govern the dispute, it is said to be the law which will have the most close and real connection with the dispute.

The cases mentioned above were adjudicated by the courts but in the end there was still a sense of ambiguity and confusion among the people as to the respective decisions and the court while deciding the cases also held that (a) the arbitration agreement must be treated as any commercial agreement, (b) the agreement should be construed as to reflect the parties intention to arbitrate,(c) if there is any defect in the arbitration the whole agreement should not considered void ab intio unless the defect is fundamental to the extent that it negated the parties interest to arbitrate.

In the end it is always recommended that while constituting an agreement parties should have a clarity and must clearly specify the “venue” and “seat” in the agreement if they want them to be distinct from each other.

Sexual Offences Against Children: “For an Inhuman Act there should be an Inexorably Punishment”

Children are prone to violence and abuse due to their tender age. They can also be vulnerable to adverse influences and ' at-risk ' behavior because of several reasons. As child exploitation has existed in the form of sexual molestation, child marriage, underfeeding, verbal abuse, child prostitution, child pornography, child abduction, incest, robbery, child labor, child trafficking, child abuse, etc. In this context, child protection is considered one of the main responsibilities of both the government and society to take preventive steps in a strong and positive way through various laws and policies while taking into account the difficulties and problems faced by the children.

According to the National Crime Records Bureau’s  report, in the last few months, i.e. between January 1, 2019 and June 30, 2019, there were 24, 212 cases of child abuse reported in India, meaning 4,000 cases in a month, 130 in a day and one in every five minutes. The judiciary has given paramount importance to ensure holistic development of child’s physical, emotional, intellectual and social faculties.

Recently  the Bombay High Court in the case Baburao @Sagar Rupaji Dhuri versus The State of Maharashtra , Criminal Appeal No. 1068 of 2018 IN POCSO SPL. CASE NO. 295 OF 2015   That, in her neighborhood, the victim, an five-and – a – half-year-old girl came to play a boy when the Appellant brought the girl to his home on the excuse that he'd have her songs on his cellphone and later PW 6 (eyewitness) asked PW 3 (mother relative of the victim) to see what the victim was doing when PW 3 looked at the house, when she saw that the victim was forced to lie on the ground. Victim told PW3-M that when she went to look for Babu to play, the appellant took her into the house, clamped the door from the inside, pulled her slacks down and put her lying on the ground in a prone position..

It was specified that, pursuant to Rule 33(7) of the POCSO Act, the victim's identity as well as all members of the family, friends, community or any other details disclosing the victim's identity must be concealed.

In compliance with Sections 376, 342, 366A, 377 of the IPC read with Sections 6 and 10 of the POCSO Act, Investigating Officer laid a charge sheet. Special Judge convicted and sentenced the defendant after considering the evidence on record and hearing the prosecution and defense.

By referring to the Forensic Science Lap report, counsel for appellant Aniket Vagal argued that there was no detection of male DNA in the victim's vulval swab or anal swab.

While opposing the claim of the appellant's lawyer, APP, S.V. Gavand argued that there was no need to refer the medical evidence because the appellant had been stopped from inserting his penis in the anus of the victim. Appellant has violated the victim's trust that used to call him ' Dada. ' She was with that of the appellant in a fiduciary capacity. Therefore, it is argued that this is not a case where the appellant must be shown leniency.

Appellant was about to commit aggravated penetrative sexual assault on PW 2 but he was unable to succeed in his malicious scheme due to PW 3's interference and thus the act was actually about to be completed by him as he had already begun to move his penis over the victim's back.

The appellant made an attempt to commit an act of aggravated penetrative sexual assault and, therefore, by passing an appropriate sentence of imprisonment, the trial court correctly appreciated all the circumstances and facts recorded.

Bench cited the case of the Supreme Court – Madan Gopal v. Naval Dubey, (1992) 3 SCC 204, in which it was held that "offenders threatening civilized society should be punished in the most severe terms mercilessly and inexorably." The bench also noted that the Court is loud and clear in the above-mentioned case as to how such crimes should be dealt with which are challenges to civilized society and should therefore be punished inexorably and mercilessly.

There is no question in the present case of the appellant's reformation as he was quite an adult male who knew the consequences of his act.

JUSTICE K.S. PUTTASWAMY (RETD.) AND ANOTHER

VS

UNION OF INDIA AND OTHERS [AADHAR JUDGMENT]

 CITATION:-  2017 10 SCC 1

The Hon’ble Supreme Court (hereinafter referred to as “the SC”) upheld the Aadhaar scheme's statutory validity. Nevertheless, the Supreme Court’s five-judge constitutional bench has stipulated some provisions in the Aadhaar Act. The Supreme Court upheld the validity of Aadhaar by stating that adequate security measures are being taken to protect data, and it is hard to initiate people's surveillance based on Aadhaar. A five-judge bench headed by Former CJI Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar and Justice Ashok Bhushan called on the government to provide more protection and reduce data storage times.  Justice DY Chandrachud delivered a dissenting opinion.

Take away from the judgment:

a) The SC has asked the Centre to bring a robust law for data protection as soon as possible

b) The SC has clarified that Aadhaar cannot be made compulsory for bank account openings and mobile connections.

c) The SC has expressly stated  that Aadhaar should not be made compulsory for admission to school and cannot be made compulsory by the administration

d) Aadhaar and PAN have been made mandatory by the SC

Former Chief Justice Dipak Misra ruled that Aadhaar is required to file income tax returns (ITRs) and Permanent Account Number (PANs) allocation under Section 139 AA of the IT ACT, 1961 . Rule 9 as amended by PMLA (Second Amendment) Rules, 2017 establishing the necessary links between Aadhaar and bank accounts is upheld and found not to be in breach of Articles 14, 19(1) (g), 21 & 300A. Circular dated March 23, 2017 Mandating Mobile Number Link with Aadhaar is deemed illegal and unconstitutional as it is not backed by any statute and is quashed hereby.

e) The SC has instructed the government to ensure that Aadhaar is not issued to illegal migrants in order to benefit from social welfare schemes.

f) The SC has declared that Private companies can't ask for Aadhaar.

g) In the verdict laid down by Justice Sikri , he has pronounced that  there is a fundamental difference between Aadhaar card and identity. It remains in the system once the bio-metric information is stored, he said.

h) The Supreme Court struck down the Aadhaar law provision requiring data to be exchanged on the grounds of national security

i) The SC through its verdict has also explained the basic difference between Aadhaar and other proof of identity as it is difficult to reproduce Aadhaar and is a unique identity. It added that Aadhaar is to motivate and provide an identity to the neglected sections of society.

j) Aadhaar satisfies the doctrine of proportionality, Justice Sikri said, adding, "Being unique is better than being better

CONCLUSION

The Aadhaar judgment is said to be the second longest case in terms of continuous hearing and underlines the importance and urgency of the case. The petitioners attempted to argue that Aadhaar was illegal, constituted by surveillance as an instrument of state oppression, and had to be scrapped. Aadhaar's data breaches have been cited to argue that the program could cause serious privacy violation issues as people ' biometrics could leak. They also claimed that basic services were refused due to the failure of authentication by Aaadhaar. The government argued that ensuring that the government's direct benefits reach the right people, reducing / eliminating corruption, was useful. Aadhaar introduced the Virtual Aadhaar ID even during the trial and made several moves to strengthen the system to ally fears of lack of security. UIDAI also clarified the security practices and tried to persuade the system to play a useful role in governance and not infringe privacy. Throughout the media's cacophony, each body forgot that the discussion had two other stakeholders. First was the "Honest Tax Paying Citizen" whose legitimate income and wealth was eroded as a result of corruption, black money and benami property holding, all threatened by the Aadhaar link. Second was the company that adopted the use of Aadhaar for e-KYC and electronic documents authentication via e-Sign in real time. The claims were not suggested by these stakeholders.  The Hon’ble Supreme Court upheld the Aadhaar scheme's statutory validity

a)    

IMPACT OF GST ON E-COMMERCE

Goods and Services Tax (GST) is an indirect tax levied on the supply of goods and services in India. It's a comprehensive, multi-stage, destination-based tax: comprehensive as it has subsumed almost all indirect taxes except for a few state taxes. Multi-stage as it is, the GST is levied on all stages of the production process but is supposed to be reimbursed to all parties at different stages of production other than the final consumer and as a destination-based tax is collected from the point of sale and not from the point of origin like previous taxes.

The implementation of GST has a major impact on the e-commerce sector in India. The implementation is being hailed as the country's largest reform so far. As part of its efforts to create a single market for the entire nation, the government is implementing GST.

Previously, business and consumers both interacted with the Indian economy's diverse segmentation, which is being dealt with within GST. The idea of a single supply tax has reduced the need for sellers to register with various tax channels and to file different returns.

According to the study conducted by the Internet and Mobile Association of India, India's e-commerce sector is estimated to have reached Rs 211,005 in December 2016. The report also claims that by 2020, India is expected to generate $100 billion in revenue from online retail. Electronic Commerce's rebellion in India has also led to online marketplace architecture.  Big players like Amazon or Flipkart, as well as small retailers and sellers, make the e-commerce industry in India. The GST has a significant impact on the industry, the effects on e-commerce are that it allows third-party sellers on their platform to register and sell online, Marketplace pays the selling value of a subscription fee / commission from listed sellers. Under this model, third-party vendors gain access to a larger marketplace-registered customer base.

Under such a scheme, the government also allowed Foreign Direct Investments to promote the business model of e-commerce in India. Marketplaces provided additional revenue and distribution outlets for sellers that were impossible for an offline seller.

The implementation of these regulatory requirements has forced the population of online sellers to adopt the GST regime. Such as a threshold cap has been set for all companies by the government. Once such a threshold cap is crossed, a company is liable to file for Goods and Services Tax. Nevertheless, this cap does not apply in the case of sellers of e-commerce, Most of these marketplace listed sellers are small and medium-sized enterprises. Under GST regulation, the government introduced a composition system. The primary objective of this scheme is to reduce the compliance burden for small and medium-sized enterprises. Under this scheme, firms must file returns on a quarterly basis instead of a monthly basis and pay taxes at nominal rates of up to 2% and under the new tax regime, marketplace operators are expected to deduct and deposit with government a percentage sum as the seller's GST liability. This mechanism is referred to under the GST legislation as "Tax Collection at Source (TCS). The marketplace seller would finally have to file monthly returns under GST to claim the marketplace operator's TCS credit. This will also affect these sellers ' liquidity and cash flow.

Where E-commerce is defined in the Model GST Law (MGL)?

E-Commerce is specified as such in Section 43B(d) of the MGL (Model GST Law) – E-Commerce means the supply or reception of goods and/or services or the transmission of funds or data via an electronic network, primarily via the Internet, using any of the Internet-based applications but not limited to e-mail, instant messaging, shopping carts, web services, universal definition Discovery and integration, File Transfer Protocol and Electronic and Data Interchange whether or not the payment is made electronically and whether or not the user makes the final delivery of the goods and/or services.

 GST has implemented a system of ' one country one tax, ' but its implications on different industries are slightly different. Based on whether the industry is concerned with manufacturing, distribution and retailing or providing a service, the first degree of distinction will come into play.

Effect on Manufacturers, Distributor, and Retailers of GST

GST is a boost to competitiveness and performance. Declining exports and high spending on infrastructure are just some of this sector's concerns. The administrative costs for manufacturers and distributors had also been increased by multiple indirect taxes, and with GST in place, the compliance burden has eased and this sector will grow more strongly.

But it will now have to file because of GST activity that was not previously under the tax bracket. This will result in less tax evasion.

Effect of GST on the service providers

 Much of the tax burden is borne by sectors such as IT, telecommunications, insurance, business support, banking and financial services, etc. Such pan-India businesses are already working in a single market and will see the pressure of compliance rising. But each place of business in each state will have to be reported separately.

India's e-commerce market has grown by leaps and bounds. GST will support the continued growth of the e-commerce sector in many ways, but the long-term effects will be particularly interesting as the GST law specifically proposes a system for Tax Collection at Source (TCS), with which e-com companies are not too pleased. The current rate of TCS is at 1%.

Some of the key areas of GST impacting the e-commerce sector-

Improved e-commerce reach

The GST has opened up new avenues to compete with larger companies for small and medium-sized sellers. Because of the looming tax rates in different states earlier, sellers were usually confined only to their states, limiting their free reach to far-flung areas. E-sellers will be relieved from varying tax structures by introducing GST.

Registration must be mandatory

The government defines a registry company if it has a maximum of more than 20 lakes. Around 10 lake rupees dropped this cap for northeastern states. The situation is different for the e-commerce sector as all sellers must be licensed even if their threshold does not reach 20 lakes. This is a limitation which if removed would allow more sellers to become a part of an online community.

Tax Collected at Source (TCS)

E-commerce marketplaces must subtract, apart from vendor liability, 2 percent of TCS net-value revenue and will be billed to government. In addition, it is important to count the sales announced by the marketplaces and the seller's sales per month. If any inconsistencies remain, the seller will have to pay the extra number. The goal of this measure is to root out fraudulent online marketplace activities and decrease the amount of tax evasion, building confidence between marketplaces and sellers.

Composition is not exempt

As part of GST acts, e-commerce sellers are not eligible to receive compensation. The composition scheme would have allowed sellers with a turnover of approximately 75 lakhs to file tax returns on a quarterly basis rather than on a monthly basis. The tax amount would have been a mere 2 percent, but for sellers the system was kept out of control.

Credit rise

The GST introduced e-commerce marketplace input tax credit, creating a direct contact between the input product and the final product. They will be able to take advantage of input tax credit.

Cash on delivery refund

Cash-on-delivery is a more popular option for users in developing countries such as India. After a period of 7-10 days, refunds are given on such orders if the taxes have already been paid. Under GST, this troublesome problem was taken care of.

Tax returns are filed

The method of filing the government's tax returns was made in the same way that brick-and-mortar stores bill. The form GSTR-1 must be submitted by 10th of each month, containing descriptions of outward supplies. By 11th of each month, the seller will receive the GSTR-2 form, details of the e-commerce marketplace's taxes. The seller will return the form by the 15th of each month after the analysis. It was necessary to resolve any inconsistencies by the 20th of each month. Until filing returns, this particular agency allowed sellers to collect their data from different sources.

Conclusion

The GST would definitely have a positive impact on our country's e-commerce market. The system would reduce operating costs by about 20 percent, which will also minimize distribution and warehousing costs. The move would enable sellers to maintain and operate warehouses efficiently at strategic locations. The cost of end-of-mile distribution will be lower due to quicker movement of goods, the profit can be passed on to the consumers. E-commerce markets will now be free to import products from small and medium-sized enterprises, thus enriching product quality. The long-term GST would create a level playing field for marketplaces in e-commerce, streamlining their offerings and enhancing business growth.

The Democratic-led House of Representatives has impeached United States President Donald Trump for obstruction of Congress and abuse of power linked to his relations with Ukraine. On 18 December 2019, historic impeachment votes come after House Democrats ' more than two-month review, accusing the president of forcing Ukraine to open an investigation into the matter.

"The votes only put Trump to the Court as the third president in the history of United States and set the stage for possible trial in the Republican Senate in January"

The Impeachment Enquiry against Donald Trump was started by Nancy Pelosy (House Speaker)  on 24 September 2019 after whistle-blower claimed that Donald Trump could have manipulated the presidential  power by withdrawing military aid as a way of forcing the newly elected president of Ukraine  Volodymyr Zelensky to achieve two favors:

a) To pursue investigations of Joe Biden and his son Hunter, and

b) To investigate a conspiracy theory  that Ukraine not Russia was behind interference in Presidential election 2016

The inquiry was focused on July 25 a 91minute call during which Trump asked Ukraine President Volodymyr Zelenskyy to open an investigation into Biden and his friend , Hunter who had served on the board of a Ukrainian Gas Company. There was no evidence of Bidden wrongdoing. The fatefull phone call is the key for the abuse of power charge on which Mr Trump has been Impeached. 

In October, three full Congressional committees (Intelligence, Oversight, and Foreign Affair’s) deposed witnesses including Ukrainian ambassador Bill Taylor, Laura Cooper (the top U.S. policy officer in the Pentagon) and former U.S. policy officer Fiona Hill in the White House.  On 8 October in a letter to House Speaker Pelosi from White House Council Pat Cipollone, the White House formally replied that it would not cooperate with the investigation due to the concerns including the fact that entire House of Representative had not yet voted and that interviews with witness were  conducted privately. On October 17, in response to a reporter's allegation of quid pro quo, White House acting staff chief Mick Mulvaney said "We do that with every Foreign Policy all the time. Get over it". He walked back his remarks later in a day saying that there had been "absolutely no quid pro quo" and trump had withdrawn militiary aid from Ukraine over concerns about the corruption of the nation. 

The House of Representatives voted 232–196 on October 31 to create public hearing rules, which began on November 13. When hearings began, Adam Schiff , Chairman of the House Intelligence Committee, said President Trump could have committed corruption, which is explicitly stated in Article Two as an unjustifiable crime in the Constitution. In November 2019, twelve government witnesses delivered private and public congressional testimony indicating that Trump sought political favors in return for official action.  On 10 December, the House Judiciary Committee released its impeachment articles: 

1. One for power abuse and,

2. One for Congress obstruction 

The House Judiciary Committee published a report on 16 December outlining criminal charges of corruption and wire fraud as part of the abuse of power charges. The House voted 230-197 on December 18 to approve the first of two articles of impeachment one alleging that he misused his office's power to force Ukraine to prosecute the Bidens. The House voted 229 to 198 on a second article accusing him of obstructing Congress.

The suspense will now shift to the Senate for next month's trial to be presided by U.S. Supreme Court Chief Justice John Roberts. With a two-thirds majority needed to convict the president, Trump's acquittal in the chamber run by the Republicans is not assured. Senate Majority Leader Mitch McConnell has already declared that he is “not an impartial juror” and is setting a course to bring the proceedings to a swift calculation. No firm date has been set for a Senate jury, but McConnell said that after returning to Washington, DC in the New Year, it will be the "first order of business" of the house.

Is Trump Out of Office?

No the trump is not out of office. The House's impeachment does not immediately remove an American President from office.  Impeachment means that “a majority of House members approved the articles presented against the President and set the stage for his Senate trial”. With the support of at least two-thirds of the Senate (that is 67 Senators in the 100-member U.S. Senate), a President may be convicted and removed from office. The Republicans have a total of 53 seats in the new Senate, while the Democrats have 47 (including two Independents). This means that for Mr. Trump to be convicted, the Democrats must ensure that none of their Senators cross the line of the party and that at least 20 Republicans do so and vote for the conviction— an impossibility given the Capitol's partisan mood. The Republicans have so far dismissed the charges against the President

In the unlikely event that Trump is convicted and removed from office by the Senate, Vice President Mike Pence would become president and complete Trump's term ending on January 20, 2021.

CITIZENSHIP AMENDMENT ACT

BACKGROUND

The Citizenship Act,1955 passed by the Indian government prohibited the acquisition of Indian citizenship by illegal migrants. This act described illegal immigrants as citizens of other countries who entered India without valid travel documents or who stayed in the country after the time permitted by their travel documents and also provided for the deportation or imprisonment of illegal immigrants.

 In 2016, the Hindu nationalist Bharatiya Janata Party (BJP), which won the 2019 Indian general election, introduced a bill to amend the law on citizenship that would have made non-Muslim migrants from Pakistan, Afghanistan, and Bangladesh eligible for Indian nationality. The bill focuses on allowing those who have fled religious persecution in neighboring countries faster access to citizenship

 Although the Lok Sabha passed this bill, it stalled in the Rajya Sabha after widespread political opposition and protests in Northeastern India that did not want any Bangladeshi migrants. With the exception of non-tribal cities listed under pre-existing regulations, it excluded Arunachal Pradesh, Mizoram, Nagaland, Tripura, Meghalaya and Manipur. It also left out Assam's tribal areas.

The Citizenship (Amendment) Act, 2019

The Citizenship (Amendment) Act, 2019(hereinafter referred to as (“the Act”)) was passed on 11 December 2019 by the Parliament of India. It amended the citizenship act, 1955 and the Persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution.

The Bill includes new provisions for the cancelation of the Overseas Citizenship of India (OCI) registration, such as fraud registration, in the case of OCI holder sentenced to two or more years ' imprisonment within five years of registration and strictly for the sake of Indian sovereignty and protection. It also includes a clause that violates any law notified by the central government. It also includes a provision on violation of any law notified by the central government and it adds the opportunity for the OCI holder to be heard before the cancellation.

But the law has removed Muslims from Pakistan, Bangladesh and Afghanistan, and the new Act does not give citizenship to refugees from non-Muslim countries. The amendment is limited to India's Muslim-majority neighbors and, second, it does not accept Pakistan, Bangladesh and Afghanistan's oppressed Muslims.

Protests

Protests and complaints stem from the Act. Protesters were against the naturalization of any and all refugees in the eastern regions of India. According to them, this Act's new provisions are contradictory to previous agreements such as the Assam Agreement. Political and student activists in other parts of India protested that the law "marginalizes Muslims is counterproductive to Muslims and sought that Muslim migrants and refugees should also be granted Indian citizenship per its secular foundations.

Despite the bill's clearance on December 4, 2019, violent protests broke out in Assam. Demonstrations took place in Agartala and six people died there and 50 people were wounded in demonstrations against the Act. Assamese women protesters said they "wanted peace, not migrants from Bangladesh," and the influx of refugees and migrants would destroy their state, culture, and community harmony.

Internet access in the state of Assam has been limited. Curfew was imposed because of the protests in Assam and Tripura. Tripura's royal family filed a petition against the bill in India's Supreme Court.[The army was called in as protesters challenged those curfews. Railway services were suspended and some airlines began offering refunds in those areas for the rescheduling or cancelation fee.

 As a result, the police entered the Jamia Millia Islamia University campus, where protests were taking place, and detained the students. The officers used the students with batons and tear gas. More than one hundred students have been injured and the same number have been detained. The police action has been widely criticized, resulting in nationwide protests. Seven demonstrations were also banned by the police in several parts of India with the enforcement of section 144, which forbids the assembly of more than 4 persons in public space as unlawful, including parts of the capital of Delhi, Uttar Pradesh and Karnataka, including Bangalore. Police in Chennai denied permission for marches, rallies or any other demonstration. Internet services were shutdown in several parts of Delhi.

National Scenario

·         Commentators expressed concern that people who are unable to produce the necessary documents to prove their citizenship and inclusion in the NRC will be recognized as migrants and granted Indian citizenship under the Bill, provided that they are "of any nationality other than Muslim;" the latter would risk being stateless because they are not protected by the Bill.

·          The CAB revolves around Muslim identity by announcing India as a welcoming place for all other religious communities. This seeks to establish Muslims legally as second-class Indian people by providing other classes with preferential treatment. It infringes Article 14 of the Constitution, the fundamental right of all persons to equality. And yet, the government maintains that it does not discriminate or violate the right to equality.

·          The Indian National Congress opposed the bill, which argued that it would generate communal tensions and polarize India.

·          The Indian Union Muslim League appealed to the Supreme Court of India to find the bill unconstitutional and more than 1,000 Indian scientists and scholars signed a petition against the bill. A similar number of Indian academics and intellectuals from various universities and institutions issued a joint statement in support of the bill.

International scenario

·          The Office of the High Commissioner for Human Rights of the United Nations (OHCHR) condemned the Act as' fundamentally discriminatory in nature.' "While the wider naturalization laws of India remain in place, these changes will have a discriminatory effect on people's access to nationality,"

·          The U.S. Commission on International Religious Freedom (USCIRF) called for sanctions against Amit Shah and "other big leadership" to pass the Bill. In response, the Ministry of Foreign Affairs of India issued a statement saying that the USCIRF's statement was "not true or justified" and that neither the CAB nor the NRC tried to deprive Indian people

·         .The United States House Committee on Foreign Affairs challenged the intention of the Bill and stated that "any religious test for citizenship violates this most fundamental democratic concept. However, on 19 December, the United States Secretary of State said that the United States values Indian democracy as it has a" robust "internal debate on the Citizenship Act.

·         Pakistan's Prime Minister, Imran Khan, criticized the Act for "violating both international human rights principles and bilateral agreements with Pakistan."

·          Prime Minister Mahathir Mohamad of Malaysia attacked the law saying that "India, which claims to be a secular state, is now taking action to deprive some Muslims of their citizenship."

Conclusion                                                                                       

The Bill amends the 1955 Citizenship Act and will, for the first time, offer religious citizenship to non-Muslim communities such as Hindu, Sikh, Buddhist, Jain, Parsi and Christian from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2014. The amendment relaxes the second criterion from 11 years to 5 years as a special requirement for applicants belonging to the six religions listed, and the three countries mentioned above. The Bill's underlying critique, however, was that it attacks Muslims directly. Critics argue that it violates the principle of secularism and Article 14 of the Constitution. Despite some exception given to some regions in the northeastern states, the possibility of citizenship for massive numbers of illegal migrants from Bangladesh has caused deep state anxieties. The Bill also provides no clarity on the scope of the laws that can be told by the central government. The Supreme Court acknowledged that this guidance is necessary in order to impose limitations on the powers of the authority and to prevent arbitrariness in the exercise of powers.

In today’s political and social climate in India, where there is a systematic attempt to pitch religions against each other, where does the youth of the country, those who are in crucial times of designing and determining their inner core, find out for themselves some sort of ‘transcendental morality’ which can guide them through life’s difficult times/phases. 

Having a moral code means having a set of core values, that one can truly apply, without being hypocritical and changing it to suit one’s needs. One of the question in this regard is can one find one’s morality in complete isolation from religion? This is important because what we see is a growing talk on the religion but completely devoid of any discourse on morality.

A lot of Indians identify themselves as believing in one religion but does this belief also lead them to believe in a stringent set of moral values that they can safely apply in all situations? 

Morality simply put, concerns itself with one thing – what is the right thing to do. Religion condensed in one line is about – what is your relationship with the maker. One can sense how these two questions overlap but are not the same. What we see is a growing talk on the religion but completely devoid of any discourse on morality. 

For e.g. if you are an Atheist – someone who does not believe in the existence of God/maker/some divine force, then your definition of ‘right’ or ‘wrong’ may not flow from your religion but may still have a bearing on it. Once you deny the existence of one/more Gods, your answers to ‘what is the purpose of life’, ‘what is the end-goal of life or is there one’, ‘can murdering someone ever be justified and if yes, under what circumstances’ etc. are questions on which you may have a range of answers, depending on how you have reflected on them and the position you have taken. These in turn will tie-in to concepts that all religions touch upon in one way or the other – for e.g. – existence of a heaven and a hell; intrinsic value of life; karma and its effects; concept of several lives – rebirth etc. 

On the other hand, if you are a believer – someone who follows any religion, then without being hypocritical, you will have to agree to the answers given to these questions as per your religion. 

But you can also like me, belong to a third category. You may be born in any one religion, agree with parts of it and disagree with other parts of it. You may similarly like somethings about other religions and dislike/disagree with other parts of that religion. You may just want to pick the best from every religion where-ever you find it. In this case, you neither have any one religion, nor any one set of moral values that you can abide by. This could either be because your secularism is shallow, which satisfies itself in the belief that all religions teach the same thing at the core, without actually subjecting your intellect to the rigour of studying all the religions deeply. 

Or in some rare case, your secularism is indeed the deep type where you arrive at this conclusion after having studied all the religions. In the latter case, hypothetical as it is, logical coherence would still escape you. For e.g., Quran does say that Allah is the only God and requires believers (Muslims) not to believe in different Gods (or multiple gods). Hinduism, on the other hand is polytheistic and deeply comfortable with the idea of several Gods. So, even on the face of it, a secular who believes that she takes only the best of different religions is still being hypocritical in some sense as she cannot believe in two contradictory things. 

So for someone who wants to know – what is the right thing to do, how does one develop one’s morality code – which may or may not overlap with religion. 

Here is an attempt :

You shall not kill anyone, without there being a higher cause. This will be apply as per one’s own subjective determination of what that higher cause is and whether it permits one to deviate from the general rule that you shall not kill.

You shall treat all human beings alike, irrespective of any differences in caste, colour, creed, language, religion or gender. 

You shall always be mindful of my actions and its direct, as well as indirect consequences on all things, environment and people around you. 

You shall always strive to be humble in your association with other people, and strive to be a simple and honest person.

You shall not say words that may hurt someone. 

You shall not steal.

You shall not harm any living or non-living creature.

And the list can go on. But one can think of exceptions to all of these. 

For e.g. if you are hungry and have nothing to eat – is stealing still immoral? 

If you are building a house, can you really practically ensure the non-killing of several insects that will die underneath it? 

Can you let others take your simplicity, honesty or humbleness as your weakness? 

You will treat everyone equally and try not to apply stereotypes, yet can you completely avoid those stereotypes?  

You may not want to identify with a nation, religion, caste or gender at the cost of being equal, yet you continue to use your surname, identify as a man or woman, carry an Indian passport and continue to live as belonging to any one religion.  

If there are exceptions to every rule, what then, if anything is your morality? Unless we ask ourselves this question seriously and find an answer either in our religion or independently of it, we are keeping ourselves from living our very best life. Imagine just sleepwalking through life, instead of setting a high benchmark of conscious living, where we as individuals and as a nation make it our obsession to do the right thing! 

Who Am I and what do I believe in? Isn’t that the fundamental question that we as individuals and as a nation need to find? We seem to have stopped exploring this question beyond our school moral science lessons. Is it any wonder then we seem lost – as individuals, as society, as a nation and perhaps as a civilization. We seem alien to the pain of the others, to inequality everywhere in society, living in our own bubbles, willing to do anything for narrow selfish gains. This not knowing of our morality afflicts us all alike – politicians, lawyers, doctors, industrialists etc. resulting in a world, where all of us feel like islands, than one  truly integrated whole. This lack of inner morality and spiritual revolution seems to be the biggest tragedy of our times – more tragic then perhaps poverty, hunger, lynchings, climate change, Babri and Kashmir. 

Perhaps, as a suggestion, our TV channels should debate about – what is our moral compass as individuals, as a society and as a nation. This could help steer our ships back in the right direction in the stormy weathers we are in. A discussion on this will also truly bring out the best in religions, then the ugly shape that religious discourses seem to be taking, only to suit narrow political interests. 

If this resonates with you, pls leave your comments or write to me at advocateavanibansal@gmail.com or WhatsApp me on 9165054322.

 The roads in the city have been taken hostage by the Three Wheeler Rickshaws (Autos). The hostage situation is even more evident outside the metro stations. They often squeeze widest of the roads to just one lane so that they are right outside to collect passengers. Most of the times I have seen Traffic Police alongside this hostage situation and they don't do thing about it and every one goes about doing their business.