Libertatem Magazine - Issue 21 [Oct 2016]

MAST HEAD LIBERTATEM MAGAZINEEdition 21ISSN: 2395-4418www.mylibertatem.comFounders: Ankita Ranawat & Rahul Ranjan Content Creators: Saakshi Sharma, Vaibhav Sharma, Vaisakhi Muddana, Shubham Patel, Adit Kesarwani,Editor In-chief: Swarnabh Dutta Prateek Mago, Prithwish RoyAdvisory Editors: Dr. Howard Williamson, Dr. AhmadGhouri, Dr. Dabiru Patnaik, Dr. Rachana Choudhary, Asst. From the Courtroom: Piyush Agnihotri, Swarnalee Halder,Prof. Silky Mukherjee, Dr. Harmik Vaishnav, Asst. Prof. Shashank Mishra, Peri PratimaOwais Hasan Khan, Asst. Prof. Victor Nayak, Shhaurya Sah,Fr. Peter Ladis, Adv. Asim Pandya, Adv. Jayesh Patel Igniting Minds: Jaya Gurnani, Suyash Jain, Akanksha Sikri, Jane Maria TomySenior Editor: Smriti Brar Graphics Designer: Haba CristianEditorial Associate: Sarthak Sonwalkar, Nada Faruqi Partner Relations: Shristi MathurAssociate Editor: Rachana K, Aishwarya Dhakarey,Shreeyash Uday Lalit, Nimisha Srivastava, Apurva Taran,Pragalbhi Joshi, Pragya Dhoundiyal, Anushka Jain, RitishaMukherjee, Anchit Bhandari, Somya Stuti, Richa SankhlaDistributed By: Apple NewsStand, Google Play Newsstand, Amazon Kindle, Joomag Publishers, ReadWhere Newsstand,Magzter Newsstand2 Issue 21

CONTENT CONTENTARTICLESDestruction of Public Property4during Bandhs............................................................Supreme Court's innovation on6Death Penalty.............................................................8Custodial Deaths in India......................................10Uri Attacks..............................................................14GST Council............................................................16Rafale Deal.............................................................COVER STORY18Cauvery River Water Dispute.................................20Indian Army Strikes back across LoC....................FEATURES22From the Courtroom..............................................30Igniting Minds......................................................... Issue 21 3

DESTRUCTION OF PUBLIC PROPERTYDestruction of PublicProperty during Bandhs:Legal Framework Governing Itby Adit KesarwaniDESTRUCTION OF PUBLIC PROPERTY and effective. [Tilak Marg, The Road to Justice, SupremeDURING BANDHS: LEGAL FRAMEWORK Court guidelines for damage to property duringGOVERNING IT agitations already exist, Feb 24, 2016]The word “Bandh” has its origin from Hindi word which Over a period of time it can be said that the losses to themeans “shutdown” or “closed up”. It has been popularly public property is increasing day by day due to theseused by the countrymen to show their anger, rage against bandhs, hartals and nothing is being done for controllinggovernmental actions or decisions or can be referred as a or putting any chains on the legs of the protestors. Themeans of protest projecting civil disobedience. The big incident of Patels in Gujarat and Jat agitations in Haryanaquestion arises as to whose rights should be given seeking reservations are still fresh and no one is able topreference, i.e. rights of the people who want to continue forget it, reports state that during the Jat movement lossestheir daily routine or the rights of the persons involved in up to the extent of more than 20,000 crore happenedthese bandhs. Law needs to come out with certain [Tilak Marg, The Road to Justice, Supreme Courtmeasures to curb this menace or else the country will have guidelines for damage to property during agitationsto suffer a lot. As Supreme Court in Destruction of Public & already exist, Feb 24, 2016].Private properties v. State of A.P, had taken suo motuaction and pronounced certain guidelines for determining CONSTITUTIONALITY OF BANDHthe quantum of losses that take place and fixing theliabilities upon the organizers of that protest, and further Court while considering the constitutionality ordeclared that until and unless legislator comes up with any unconstitutionality of Bandh, stated that this is an ideaappropriate legislation, these guidelines would be binding which projects that everything needs to be closed down or locked up, and all public, private works should cease on that day. Past experiences also show that if anyone tried4 Issue 21

DESTRUCTION OF PUBLIC PROPERTYto do anything or go against the order of the protestors, Apart from the above discussed recommendations, thethey have only become a victim of violence or have been guidelines majorly include the following [Law Mantra, Anthreatened badly. During bandhs, the fundamental right of overview and Critical Analysis of the legal Frameworkfree movement, access to medical treatment or usage of Regulating Bandh, Hartal and Similar Protests in India]public roads is all prohibited and all these rights areviolated due to all these agitations. The contention of the a.The police shall submit a report of the event andRight to Free Speech and Expression raised by political damages caused to the State government which shall thenparties can’t be allowed because this right under Article 19 present the report before the High Court or Supremeof the Constitution of India is subject to silent and peaceful Court, as the case may be;protest and not by violence. Taking into account all thedestruction caused to the public property, violation of b.High Court may issue suo motu action and canFundamental Rights of the people and the losses which set up machinery for determining the damage caused andthe economy suffered, it could be contended that Bandhs the compensation to be awarded;are illegal and unconstitutional. c.Absolute liability shall be imposed upon theLEGAL FRAMEWORK AND JUDICIAL offender;PRONOUNCEMENTS WITH REGARDS TOGUIDELINES d.Damages should be assessed and cost of actions taken by the police and the executive to take preventivePrimarily the state has the responsibility to ensure safety steps should be measured;of life and public properties during bandhs. Legislaturehad tried to come up with legislation for safeguarding e.Exemplary damages not exceeding twice theproperty, and Prevention of Damage to Public Property amount of the damages liable to be paid may be imposed.Act, 1984 being a special legislation enacted by thelegislature for protecting the public property from losses CONCLUSIONand it deals with mischievous people who cause harm anddamage to the public property. The act being specific in If we look at the previous instances of bandhs, it showsnature also lays down specific punishment for the type of that it has always caused damage and destruction to thelosses which occurred, for e.g., loss caused by way of fire public property and bodily injury to innocent people. Itor by the nature of property damaged. Indian Penal Code creates restriction on the free movement of people andalso recognizes certain offences of the like nature and violates the fundamental rights of the citizens and thementions punishment for the same. Code of Criminal public in fear of such violence also does not take the risk ofProcedure also gives vast amount of powers to the Police enforcing their rights. So, a new legislation or amendmentauthorities and under section 151 of the code, it in existing laws should be brought up in such a way so asrecognizes that in the wake of prevention of any crime or to restrain these people from causing harm to publicmishap, Police can make arrests without warrant or order property and protecting the general public from the ragefrom the magistrate. and anger of such violence. All such activities have huge impact on the economy and all these things are weakeningThe most important case in the event of ruling over the the Indian economy. Our constitution states that thedestruction of public property during bandh is In Re: welfare of the people is supreme but these bandhs areDestruction of public and private properties v. State of demolishing the basic structure of the Constitution andA.P.& ors. In this case the court set up two committees for hence should be declared unconstitutional.dealing with the issue of large scale destruction of thepublic and private properties. One of the significant Government came up with the draft bill for amending therecommendations given by the committee was an Prevention of Damage to Public Property and in this itamendment in the Prevention of Damage to Public incorporated the recommendations given by theProperty Act, which includes making the leader guilty of committees established under the Supreme Court in thethe act, cancelling the bail application and granting only in case of In Re: Destruction of public and private propertiescases where court has reasonable ground to believe that v. State of A.P.& ors.. Further it is a sign of relief and gives athe person accused either directly or indirectly was not positive signal showing that the Central Government isinvolved in the activity. Another major recommendation also sensitized with the issue and it had taken it intowas of imposition of strict liability on the persons who consideration. Now its time for the State legislature tocause damage to the property and are part of such show its dominance and to come up with a legislationagitations. The committee also recommended following dealing with the law and order situation during bandh,the principle of “restituto in interregnum” (making whole hartal and other similar other movements. Apart fromor restoring to original position) for deciding and awarding such legislations, Police authorities should try to devisecompensation, fine on the offenders. such a mechanism so that examinations are called off, public transport should never be stopped just because of these immoral activities, as it gives a clear message and motivation to the organizers that Police and Government have surrendered before us and now we have won! Issue 21 5

SUPREME COURT'S INNOVATION ON DEATH PENALTYSupreme Court'sinnovation on Death Penaltyby Prithwish RoyThe concept of “Judicial Innovation” formalized However, in the process one often needs to keep in mind by the Supreme Court in the Rajiv Gandhi the convict, the socio-economic conditions under which he killers case was once again brought into use in commits the crime, his behavior post the crime, for e.g. the Tattu Lodhi case wherein a child rapist and most terrorists come from a background of abject povertymurderer was given a “special category” of life sentence and are thus conveniently brainwashed by extremists intoand thus avoiding the death penalty. taking up arms and then again there are convicts such as Yakub Memon who lent out his full co-operation inThe debate regarding death sentence has gained mileage investigation into the Mumbai blasts and also while behindfor a long time now. Many developed countries have done the bars earned degrees in English Literature and Politicalaway with death penalty as a mode of punishment Science and also taught his fellow inmates, clearlyhowever in India still continues with it. It is highly indicating an inclination to the much sought afterparadoxical that India, a country which holds the principal “reformation” of criminal law jurisprudence, yet at the endof reformation so close to its criminal law jurisprudence of the day he was hanged.still has the practice of sending convicts to the gallowsalbeit on a highly vague doctrine of “rarest of the rare” Following each incident of hanging there is always a hugecase. hue and cry and the purpose of the punishment of death penalty is always dragged into the discussion. TheTo better understand the underlying rationale behind opponents of the concept put forward the main argumentdeath penalty one needs to consider the main stake that once a person is hanged he can’t be brought backholders in the act. The chief stakeholders are the convict, again even if there later appears to be evidence that couldthe victim and the state. For the victim or their dependents have stopped the death penalty. There are manyto see the person who caused them unimaginable agony proponents of the practice of death penalty and theirlet go after a period of undergoing imprisonment can be justification for the same is that it helps in creatingdeeply harrowing, for the state sending the convict to the deterrence, appeasing the wrath of the society etc.,.gallows, specially for cases like heinous rape cases, However, death penalty in itself is controversial and eventerrorism etc. appears to send a message of deterrence. one wrong sentence has a massive weightage owing to the fact that it can’t be set right again.6 Issue 21

SUPREME COURT'S INNOVATION ON DEATH PENALTY Maybe keeping these in mind the as they see the convict being punished for the offence and Supreme Court of India came up with removed from the society on a permanent basis or at least the “judicial innovation” doctrine for a very long period of time. For the victim it is important wherein the convict is permanently kept as he is not sent to the gallows and once proven that he is behind the bars and not released after capable of reformation and of being able to live in the 14 years in the name of life society he will be allowed to do so and if not then he will imprisonment which is truly a great be removed from it permanently. alternative to the extreme step of death penalty. The approach is laudatory in This is the kind of sentencing that a criminal jurisprudence the sense that it takes care of both the system like India has long awaited. Death Penalty via victims, including the society and also various statistics has not proven to be an effective the convict, i.e., he will be kept behind deterrent and the offence for which most death penalties the bars for the remainder of his life if he have been given, terrorism and heinous rapes resulting in is incapable of reformation and death, have been committed time and again even after considered unsuitable to join the society cases of the offenders being sentenced to death. The at large. primary reason for the same can be attributed to the fact that death penalties come to limelight only in sensational The observations of the Supreme Court cases, most death penalties don’t receive the amount of in a bench consisting of Justice coverage that is required to create the requisite awareness Chelameswar, Justice Kirti Singh, Justice which can create deterrence. For e.g. how many people Manohar Sapre, in the case of Tattu belonging to the lower rungs of the society, who are often Lodha was that while the case did not the chief perpetrators of death penalty seeking offenses, fall within the ambit of “rarest of the are actually aware of the number of death penalties rare” cases yet the imprisonment of only carried out and for which offenses they are being carried 14 years would not be a sufficient out. punishment for the offense committed. In the same case the Trial Court and the Thus, in such a social situation wherein death penalty fails High Court had awarded death penalty to the convict. The Supreme Court to achieve its desired objective there lies little sense in clearly held that 14 years would be too less a punishment and ordered that he continuing with it in its present form and also after relying shall not be released from prison till he completes an actual prison sentence of on a doctrine as vague as “rarest of the rare”, this 25 years, while at the same time holdingthat it would not be fit to send him to the gallows. innovative approach of the Apex court makes much moreLooking at it from a legal sense, both to the society and to the state, which isperspective thepunishment awarded welfare-oriented in nature and seeks to reform rather thanwhile bridging the gapbetween the extreme life to retribute.sentence and mere 14years’ imprisonment, atthe same time notviolating any provisionsand falling perfectlywithin the ambit of theIndian Penal Code andthe Code of CriminalProcedure.Looking at this sentencefrom a neutral point ofview, it addresses theconcerns of both theparties, the convict andthe victim and ensuresthat no party loses. It isimportant to the society Issue 21 7

CUSTODIAL DEATHSCustodial Deathsin India with Special Reference to Ramkumar’s Caseby Saakshi SharmaApoliceman walks into his police station in a Instances such as the above are not uncommon anymore. sour mood. He has just had a big quarrel with Custodial deaths have become a sad reality in India. The his wife back at home, followed by an angry concept has existed in India ever since the British rule call from his superior about some unfinished wherein numerous prisoners were mercilessly tortured,investigation that should have been completed yesterday. and while some died as the result of excessive torture,As soon as he walks in and takes his seat, the sub- others were purposefully killed by the wardens while ininspector informs him that a suspect in custody needs to custody. There are numerous reasons for custodial deaths,be questioned about a murder that he is alleged to have escalated torture leading to accidental death being one ofcommitted. He has been further told that the case has the most common of them. Another reason for custodialgarnered nation-wide media attention and hence, there is deaths is that sometimes a suspect may agree to pleadgreat pressure on the police to come with a conviction. guilty but his statement before the magistrate would bringWith so much going on in his head, he heads off to the up names of influential businessmen, politicians, sportsinterrogation room and when he finds that the suspect is stars, film actors, or in some cases even policemenunwilling to co-operate, his frustration reaches its peak themselves. So, to avoid the public disclosure of theirand he takes the interrogation techniques overboard, illegal activities, such influential personalities employ theultimately resulting in the death of the suspect. Once the policemen as their force to neutralize such threats.policeman realizes what has happened he dresses thescene in such a manner that the death looks like a suicide Based on a survey by the Indian Express, the following areand news is leaked to media houses in the morning that some random examples of deaths in police custody -the suspect committed suicide in the prison holding due to Devaki, a sweeper, was hauled in and tortured to death forfear of being sentenced. her husband's connection with a banned organisation; Naresh Pannika was picked up only for questioning;8 Issue 21

CUSTODIAL DEATHScarpenter Deodana was dragged to the police station to him. Since the suspect failed to respond to the first aidbecause one of his sons, allegedly involved in a local feud treatment, and his pulse was constantly declining, thewas not at home at the time; Ramesh Kumar, a truck doctors referred him to the Royapettah Hospital, wheredriver, was beaten to death for not allowing a police party Ramkumar was ultimately declared dead on arrival.to overtake his truck; Gangu was arrested and killed, fornot repaying a loan of Rs. 3028 which he had borrowed The public uproar following the notification of the incidentin1978 to install a gobar gas plant; Kamal of Howrah had by the police was significant with the relatives and lawyersallegedly attacked a hotel with a \"rowdy\"; Rattan Singh of of the suspect claiming foul play on the part of theGumana in Haryana had appealed to the village panchayat policeman. The death also received widespread mediafor help in a feud between him and his sons-in-law and it in attention with the Tamil media debating the involvementturn invited the police intervention; Naresh was trying to of the police in the death on their news channels. It wasgive up \"satta\" operations to which he had been also reported that an Advocate by the name of Shankarintroduced by the police itself; 19-year-old ShyamTane was Subbu had filed a petition in the Madras High Courtcaught watching a scuffle in front of his house; 65-year-old seeking judicial intervention to ensure that a fair postBadhuk Raghavaria was rounded up on the charge of mortem is conducted. He urged that the matter be heardgambling; Latoor Singh, a harijan of Hodal village in and ruled upon before the police conclude theirHaryana, landed in police custody for getting into a heated formalities. After the hearing of the petition the judge ruledargument with the SDM about the construction of a that a post mortem must be conducted by a team of fourHarijanchaupal. And so it goes on. All these people died in doctors and recorded.the custody of the police. And not in one case cited abovehad the police charged the victim and shown him to be On the 19th of September the State Human Rightsarrested. Hauling in a person without filing an FIR has Commission took suo motu cognizance of the incident andbecome a common practice. A formal registration of the directed the Additional Director General of Police/ Directorcase is done only after the accused has confessed to the Investigation Division of the SHRC to conduct an enquirycrime, given what the police consider are liberal provisions and submit a comprehensive report about the incidentof bail and judicial remand. within two weeks. The demand for an independent probe into the case has also been made by several politicalOne of the most recent cases in India in which the parties, civil rights activists and legal experts. Ramkumar’spresumption of a custodial death at the hands of the lawyers have made claims that the initial throat slittingpolice over a suicide was raised is the suicide by P. was also done by the police so as to make him unable toRamkumar, the lone suspect in the murder of Infosys speak and hence can be framed for the murder. They alsoTechie Swathi at the Nungambakkam Railway Station. The claimed that he had never had any contact with Swathi.murder of the techie had occurred in broad daylight on aplatform of the bustling Nungambakkam railway station, The latest update in the case is that the autopsy ofin view of the passengers awaiting the arrival of their Ramkumar’s body has been conducted by a team of fivetrains. The circumstances of the crime and mystery doctors, including an expert from AIIMS, and the wholesurrounding the motive and the killer looked like it would process was video-graphed and monitored by theend when Ramkumar was arrested from his native village. magistrate Tamil Selvi, who is investigating the death. TheThe arrest of the accused was also quite theatrical in that a autopsy report is expected to be submitted in a few daysspecial police team surrounded his house in the which will further shed light on the exact cause of death,Meenakshipuram Village area and finally nabbed him even and whether it can be ruled as a custodial death or as aas he supposedly attempted to commit suicide by slitting suicide.his throat. A confessional statement was also said to havebeen made by the accused wherein he claimed that he had Even though there have been multiple cases reported ofkilled Swathi as she had not reciprocated his love for her. It custodial violence, the case above being testament to thewas after this that he was taken into the police custody same, they are just the tip of the iceberg and there arewhere the suicide occurred. numerous other cases of the kind that go unreported every year due to the sheer clout of the police force as well as theThe alleged suicide is said to have been committed by the influential people pulling their strings. There is also ansuspect by “pulling and biting into a live electric wire” inherent fear in the victims of custodial torture as well asinside the Puzhal Central Prison. According to the official the families of the victims of custodial deaths that if theypolice statement, around 4:30 p.m. on the day of the try to pursue such cases, it will only increase the ordealsuicide, a jail warden heard an unusual sound and rushed they have already suffered and hence they find it easier toin its direction, only to find Ramkumar unconscious on the just let go of their loss. The need of the hour is thus tofloor with a live electric wire in his mouth, near the inspire the confidence of the public that even the policedispensary block. The warden immediately switched off force will be held accountable for its illegal actions andthe main power, and with the assistance of others, rushed that they should approach the judiciary without any fear ofhim to the prison hospital where first aid was administered backlash from the police for suits initiated against them. Issue 21 9

URI ATTACKSUri Attacks: Diplomatic Prospects and the Future by Shubham PatelPROLOGUE BEING NON OFFENSIVE: DIPLOMATIC CHANNELS ANDIt was a peaceful dawn on the 18th of the September in the beautiful PRESSUREvalley of Uri, a place connected to the LOC with Pakistan, until when agroup of 4 heavily armed men with AK 47s, Under Barrel Grenade The scenario of the present day modernLaunchers, and Grenades (both Hand and Barrel launched) terrorist world is that every nation depends uponattacked the Head Quarters of the Army Brigade, causing the death of 19 some or the other nations in relations toArmy Personnel. As the reports later revealed, all the attackers were fix its needs whether trade related,gunned down in the response and combing operations between the monetary or any other kind. No nationattackers and Army. The terrorists crossed the LOC and then the secured lives or is likely to live in isolation, thisfencing to reach out to the camp and were said to have complete phenomenon has reduced the need forknowledge about the areas to attack. The perpetrators of terror were an actual armed conflict to force aarmed with Pakistani standard Army issued weapons and this is deemed nation to do something, and it has cometo be one of the worst attacks ever on the Indian Army, though the to an almost end with alternatives ofscenario of these attacks has became very common and several attacks diplomatic channels and pressureof such nature have been carried out in the past one and a half years mounting techniques that are present.including the attack on the CRPF bus and Police Station, Pathankot Air India, in its front has several of thoseBase Attack and the present one. ways and techniques, how well they are being used or can be used has beenThe attack has brought a bitter phase to already tensed international discussed below.relations with Pakistan, with India trying to corner Pakistan in front ofthe international community, withdrawing from the G20 summit,deliberations over the Most Favored Nation Status to Pakistan and IndusWater Treaty are underway..10 Issue 21

URI ATTACKS intervention from the UN, it was met with almost no response. Indian foreign minister proved those allegations to be farce on one hand and on the other appealed directly to the international community that if nation states like Pakistan do not stop from harboring terrorists, the best way would be to isolate them. The present times are the one which marks a low in terms of foreign relations of Pakistan as U.S.A which once upon a time used to provide several aids to Pakistan, has reportedly severally cut down the amounts of security aid, 73% percent to be exact [The Dwan, US security assistance to Pakistan declines by 73pc: report, 26/08/2016]; they refused to grant subsidy to Pakistan on purchase F-16 and also blocked $300 million aid from Coalition Support Fund (CSF) to the Pakistan Army. A recent bill has also been put forward in front of the House of Representatives in USA to declare Pakistan a terror sponsoring state [H.R.6069 - Pakistan State Sponsor of Terrorism Designation Act, https://www.congress.gov/bill/114th-congress/house- bill/6069/text]. It can very well be made out that at the Pakistan is almost isolated in the international community, and the sub- continent. THE INDUS WATER TREATYDIPLOMATIC BLOCKADE The Indus Water Treaty was signed in 1960 between India and Pakistan on the instance of the World Bank (the thenDiplomacy is the best modern day remedy to compel International Bank of Reconstruction and Development)somebody to act on the desired terms, and India has been over the apprehensions of Pakistan that India might usedoing this in an impeccable manner to block and isolate those rivers to cause droughts or famines in Pakistan asPakistan, be it in the neighboring nations of the Sub- their waters majorly accounted for use in irrigationcontinent or the powers of the world at large, which it took purposes. India, under the agreement is allowed to useto a whole new scale after the Uri attacks, the example of Beas, Ravi and Sutlej (the eastern rivers) and Pakistan waswhich are India along with Afghanistan and other nations given Indus, Chenab and Jhelum (the western rivers), withboycotted the SAARC summit which was going to take a covenant that India can use 20% of the waters from theplace in Islamabad, Pakistan and Sushma Swaraj’s speech latter rivers for agricultural and other purposes.in UNGA deploring the role of Pakistan in sponsoring andharboring terrorism. Aftermath of the Uri attacks saw the government taking a decision that India would “exploit to the maximum” limit,In the recent pasts, Pakistan has witnessed failure in its the water of the western rivers which it is allowed to useforeign policy with only China to bring a sense of security via provisions of the treaty and also revoked the meetingto Pakistan., India has consistently tried to make relations of the Permanent Commission for Indus Waters (this iswith the nations in the sub-continent more peaceful, pertinent to note that the commission met every yeareconomical and co-operative, for example the $500 million before this even in times of all three wars after the treaty).investment in Iran’s Chabahar porthowever , is a factor in This action has raised a lot of concerns for PakistanPakistan’s isolation. because they have a serious implication as majority of its irrigation for agricultural purposes is provided by theseIn the present UNGA when Pakistan’s P.M. Nawaz Sharif rivers only.again raised the issue of Kashmir, and asked for Pakistan due to this has reached out to the World Bank, asking them to help and resolve the issue in hand,, They called for arbitration under Article IX of the Treaty which relates to dispute in interpretation or application of the treaty, which most likely is to turn to favor of India, as none of the steps still taken, amounts to violation of treaty and Issue 21 11

URI ATTACKSactions taken therefore are within the four walls of rights government on its stand ingranted. responding to the terrorist activities within the country it wasThe treaty was signed in goodwill and spirit of friendship thought and expected that theas per the Preamble of the treaty, when no such treatment present government wouldis returned from a party to the treaty the entire objective of respond to such attacks, in terms ofthe same can be questioned. But, a major implication to a counter attack or retaliation.take note is that China has an effective control over the During the immediate aftermath ofriver Brahmaputra, which is crucial to India taking into the attack, the governmentconsideration the North-East. The waters from Indus and condemned the attacks and did notthe treaty can be used very well as a tool to mount took any immediate armed action,pressure on Pakistan, but at the same time China which is which make it a party to heavya close associate to Pakistan, can do the same with criticism that it was going back onBrahmaputra (China blocked a tributary of Brahmaputra its instance.on 2nd October, reasons provided are that it was done as apart for construction of Lalho hydro project.), is a thing of On 29th September, the DGMOconcern provided India does not hav a treaty with China. though came publically that the Army had conducted a surgicalTRADE AND MOST FAVORED strike on the terrorist launch pads,NATION STATUS on the Pakistan occupied Kashmir, claiming that it had intelligenceThe formal trade between India and Pakistan is an that those launch pads were goingapproximate of $2.61 billion; with almost double in to be used to caused infiltrationinformal trading i.e. trading which includes foreign and that the operation causedcountries, this is due to the reason that Pakistan has a heavy casualties to the terroristsrelatively closed market and trade reactions with India. and people helping them, which if read with statements fromMost Favored Nation is a trade treatment accorded to Pakistanis counterparts that 2 of itsanother trade partner country to make sure that trade Army men were killed, from this itwould be non discriminatory. This is done under the can be implied that the forcesGeneral Agreements on Tariffs and Trades (GATT) whereby DGMO talked were indeed the members of the Pakistan’smembers of WTO agree that no discrimination would be Army.done to other member countries. India has granted MFNstatus to Pakistan, Vietnam and Bangladesh. India granted Pakistan has refuted the claims that such incidentMFN to Pakistan in 1996 but the reciprocal treatment for happened and claims that all this was cross border firingthe same is still awaited. In midst of this situation, India is and shelling, though at the first instance this seemsdeliberating on whether to revoke the MFN status granted unclear that why they are rejecting these strikes when theyto Pakistan . . can use the same to call international attention, but that case is more likely to cause them harm than good as theyRevoking the status granted to Pakistan would not hurt would be bound to accept the presence of terrorists insideIndian trade as much as compared to all of the Indian their borders, the actions from India have faced almost notrade, as formal trade with Pakistan amounts for mere criticism and all major powers, both internationally and0.4% of the total trade on top which not being granted nationally seem to be on the same page.MFN from them there are no beneficial import tariffs etc.On the other hand it is likely to cause trouble to Pakistan’s Moreover, India in the present case calls the actions a casetrade as from their side trade amounts to a 3.4% of the of ‘pre-emptive defense’, a term which is very ambiguoustotal trade, which is bound to go down when MFN status is in international law, and seeing the way U.S. has used therevoked as then the tariffs would rise. Thus, MFN and same as a defense of war on terrorism, there is hardly anyreducing the trade can be used as yet another means to nation that would criticize India for invoking it [Siddarthmount pressure on the other side of the border, specially Varadhrajan, The Wire, Indian Surgical Strikes Againsttaking into consideration the factor that it is not going to Terrorists in Pakistan: What We Know, What We Don’thurt much to the Indian side. Know, 29/09/2016]. The Indian DGMO partially settled the matter by saying that it was due to necessity and wouldON THE OFFENSIVE SIDE? not continue any further.THE SURGICAL STRIKESAs the present government during its election campaigns,came down heavily upon the inactions of the previous12 Issue 21

URI ATTACKSThough, the present instance was not the only case whensurgical strikes have been used since the same had beendone by previous governments in the past as well butwhat separates this from past events is that thegovernment had been vocal and reached out to thepublic, which was well received and appreciated by themasses and boosted the confidence of both the Army andthe masses. But, what needs to be taken intoconsideration is that the people may remember this as aprecedent and in any such future events , voices may risefor similar actions.CONCLUSION EPILOGUEAfter considering every aspect as to how India has reacted After the incidents that have occurred in Uri,and can possibly react in future events, it can be Pathankot and other places, voices raised fromconcluded that the doorways are multiple and each one of certain corners that India should try to be more onthem is effective in its own nature to bring Pakistan to its the offensive side, but what one should alwaysknees, be it being able to corner Pakistan in the remind is that “ANY KIND OF WAR IS BAD AND ANYinternational community or mounting pressure in trade KIND OF PEACE IS GOOD” and all we shall strive forand water resource related aspects or with capability of is peace.being offensive in nature, ultimately, it falls upon thegovernment and the leadership to decide as to which path Issue 21 13to take.

GST COUNCILGST Council Secretariat to be headquartered in New Delhi. The said by Vaibhav Sharma GST Council is described under Article 279A of the Constitution of India. The GST Council will comprise of theThe Goods and Service Tax (GST) is the latest Union Finance Minister as the Chairman of the Council. introduction to the Indian taxation regime. The The Union Minister of State for the Revenue will also be its GST system will replace the existing indirect member along with the Minister-in-charge of taxation taxes and thereby increase the coverage base nominated by each state government. The most importantfor the better collection of taxes. Pattern of leading aspect of the GST Council is that the important decisionstaxation laws of the European nations with respect to the of the Council will be taken by the three-fourth majority ofnovel methods of tax collection will remove the difficulties the Council. It is pertinent to note that under the saidof tax evasions and leakages at various levels and inter- provision, the Centre will have one-third of the votes andstate disparities in the rates of taxation. The Parliament the rest two-third will be between the various states. Thepassed the 122nd Constitutional Amendment, 2011 earlier provision is seen as a vital safeguard to prevent the Centrethis year to grant sanctity to the law. Among the salient from imposing its decisions on the State Governments.provisions of the said Amendment, The GST Council is themost significant one.NATURE OF THE GST COUNCIL FUNCTIONS OF THE GST COUNCILThe GST Council is the key decision-making body under Article 279A(4) of the Constitution provides that the GSTthe GST Tax regime. The Union Cabinet under the Council will be entrusted will the responsibility of makingchairmanship of the Prime Minister approved the setting recommendations as regards the various taxes, surchargesup of the GST Council on 12th September, 2016. The and cesses which will be subsumed by the GST Tax. It willCabinet also gave assent to create the GST Council also decide the items which will be exempted from tax and the threshold limit of the turnover for the application of GST Tax. It will make the model rules and regulations for14 Issue 21

GST COUNCILthe said Council’s working. The Secretariat will act as the Council. The critical consensus in the meeting was reachedexecutive support for the Council and will take care of the on the issue of the threshold limit of turnover for theaspect of documenting the law. The Revenue Secretary of business to be set at ₹20 lakhs in order to avoid the hasslethe Government of India will be the ex-officio Secretary of for smaller businesses. The meeting also saw thethe GST Council. The Chairman of the Central Board of incorporation of the draft compensation formula in orderExcise and Customs (CBEC) will also be the member of the to make good the losses suffered by the state due to theGST Council, though he will not be having voting rights. incorporation of GST. The Central Government has decided to grant the power to the state for the assessment of theThe GST Council will function as the dispute resolution annual turnover up to ₹1.5 crores which earlier remainedbody for the taxation regime. The various contentious with the Central Board of Excise and Customs (CBEC). Thisissues like the exemption of items, rate of taxation, etc. has been seen as an indication for the grant of greaterhave to be deliberated upon in the GST Council for working autonomy to the states in collection of the taxes. Theout the amicable solutions for the same. The Council will striking feature of the meeting was the commitment of thebe like the legislature for the GST system in which the Centre to evolve out a consensus over the main issuesrecommendations will be voted upon by the members. rather than trying to push the provisions through itsSince every state would have its nominated representative majority and support of allied state governments.in the Council, the concerns of all the states will be takeninto consideration by the Council. The Council will also be The second meeting of the GST Council was held on 30thtrying to evolve out a consensus on the various issues September, 2016. The meeting showed the first signs ofbefore going for the ballot. The most pivotal feature of the dispute arising as the minutes of the earlier meetingsGST Council is that it grants equal vote to every state of could not be adopted since Tamil Nadu and West BengalIndia. The equal vote feature would mean that whether it said that they still have reservations about the decisionsis the industrial states like Maharashtra and Karnataka, or taken in the meeting. This critical issue was discussed atthe hilly states like Sikkim or Himachal Pradesh, the length in the second meeting along with the treatment ofweightage of the vote will be the same. The provision has services, but no consensus could be adopted in this regard.been criticised by Tamil Nadu state government as being The GST Council decided to form a committee comprisingwrong since the interests of bigger states which collect of both the Central and state governments' officials ingreater taxes have not been paid heed to. But the provision order to resolve the issue. The breakthrough was achievedseems to be incorporated in the democratic spirit to with regard to draft rules pertaining to registration,counter the dominance of the larger states. The special payment, refund, returns and invoice mechanisms for granting the area-wise tax exemptions. The adoption of exemption provision has also the rules is being seen as a major milestone for the been made out in favour of the government in its adherence of the 1st April deadline for hilly states like Himachal Pradesh the law to become effective throughout the nation. or the North-Eastern States for which the different limits of RECENT DEVELOPMENTS taxation could be set. It is to safeguard their interests as they don’t contribute a larger quantum of tax for having a smaller tax base.MEETINGS OF THE GST The Finance Minister Mr. Arun Jaitley expressed hope that the issues will be resolved at the earliest. He also informedCOUNCIL that the contentious issue of the tax rates will be dealt with in the next meeting of the GST Council. The discussionsThe Union Government has will also be held on draft state and centre GST Bills. Therecently incorporated the GST second meeting also brought about the differencesCouncil and its Secretariat. It is between various states. It is a sign of fracture and it willseen as a major step for the serve in the future as a sign of caution for the Centralgovernment deadline of 1st April, Government to proceed carefully in the direction of2017 set for the enforcement of taxation. The next meeting of the Council is scheduled tothe GST law. The GST Council has be held on 18th October, 2016. The meeting is veryalready had two of its meetings in important as it will decide upon the issue of the rate ofthe month of September, 2016. In taxation. It will be in the best interest of the nation that thethe first meeting of the Council, government manages to resolve the deadlock over thethe intricate details of the pivotal issues and the provisions are ratified by the councilworking aspect of the law were at the earliest in order to set the new regime in motiondiscussed. The rules and that is seen as the roadmap of India’s robust taxationregulations of the Council, along system to augment the governmental resources for thewith the time intervals for its growth and development of the country.meetings being decided by the Issue 21 15

RAFALE DEAL Rafale Deal: A Game-changer for Indiaby Vaisakhi MuddanaAs a part of the $100 billion upgrade of its Soviet WHAT EXACTLY ARE RAFALE AIRCRAFTS? era military hardware, an Inter-Governmental Agreement has been signed between India and Rafale aircrafts are known as “Omnirole aircrafts” which France for 36 Rafale multirole fighter jets for are capable of performing a wide range combat roles such$7.87 billion dollars. These fighter jets are being as Air Supremacy, Aerial Reconnaissance, Ground Support,manufactured by a France Company “Dassault Aviation”. Interdiction, In-Depth Strike, Anti Ship strike and NuclearInitially, many bids have come up such as MIG-35, Deterrence. These Rafale Jets are equipped with theLockheed’s Martin F-16s, Eurofighter Typhoon, Sweden’s Meteor design, an Air-to-Air Missile with a range of 150 kmSaab’s Gripen and Rafale. After crucial analysis and tests, and Air-to-Ground range of 300 km, which can knock out ofRafale had bagged the bid by quoting the lowest bid for the other enemy aircrafts and cruise missiles. India will beproviding 126 Fighter Jets for $10.5 billion dollars. But Last the first country in South Asia where this class of aircraftsyear when the Prime Minister visited France, he announced is used. Neither China nor Pakistan has this class ofthat a government-to-government contract would come aircrafts in their military. After a hard bargain for about 17into force for 36 Rafale Fighter Jets soon after which he months, this deal has been signed between India andscrapped the process, in which negotiations were going on France.with the Dassault Aviation to purchase 126 Fighter Jets. During the negotiations by the Prime Minister Narendra Modi last year, France agreed on a “fifty percent” offset16 Issue 21

RAFALE DEAL being manufactured by France military manufacturer DCNS after a newspaper in Australia, “The Australian”; claimed that it had access to over more than 22,000 pages of the information report on the Submarine. The pages, which have been leaked, contained technical literature, manuals, presentations and specifications on the Scorpene submarine project, which means the entire combat capability of the six Scorpene Class Submarines that they have designed for the Indian Navy. Though there is no authenticated report as to from which country the information is stolen or leaked, it is believed that it has been from the side of France as the information, which has been leaked, also contains deals that are not related to India. At the face value, this leak hits a major nerve as it compromises the security, which the supposed stealth submarines have to provide as they being the Indian’s most modern stealthy weapon. There has been a discussion as to whether this leak affects the Rafale deal or not, which at that time is still in the process of negotiations. As per the Defense Minister Parrikar, he questioned whether one can stop using French products just because a leak has happened in another country. According to him “the companies are different, the type of equipment used is different and also said that the information is not leaked intentionally.” Therefore, it doesn’t affect the Rafale deal. Given the technological sophistication and the long range, the Rafales are expected to play a lead role as nuclear delivery platforms in India’s second-strike capability, replacing the Mirage 2000 fighters.clause. Due to this, thousands of jobs are created in India Closing of the deal was very important to India asand 3 billion Euros business is given to both big and small it is facing depleting fighter strength in the Indiancompanies. Air Force and if the deal is not closed then China and Pakistan are likely to have more strength than India whichThe signing of this deal has come as a breather for the could be dangerous.Indian Air Force, which has been grappling with dwindlingfighter strength. Recent attacks on the Line of Control, which have caused significant causalities are a pointer to this effect that moreA question arises as to why the Indian Government has attacks could be in line.made a deal for 36 fighter jets, which creates logistical andoperational complications and thrusts up the overall cost The Global Times article, titled “Asia arms imports on thefor reasons of economies of scale when it has gotten a deal rise as India buys new jets”, is an indication that both thefor $10.5 billion for 126 fighter jets. This projects that the government and strategic circles in China ,even if theygovernment is probably scouting for fighter jets, which are were surprised at the Indian operations, - are keeping amanufactured in India under the Make in India initiative to close watch on the developments in the region, especiallybe inducted in large numbers. the escalating tension between India and Pakistan. The above reasons indicate the need for an increase in theEarly this year, there has been a leak of detailed Fighter strength. It also shows that by signing the deal ofinformation in regard to stealth Submarines, which are 36 Rafale Fighter Jets with France, India has taken a correct decision without letting the Submarine leak issue coming in between the negotiations of this Rafale deal. Issue 21 17

COVER STORYCauvery water dispute:Advocating a modern approach toBasin Water Allocationby-Nada Zaim Faruqi Water being such an inseparable part of human existence has led to international\"Water is a and intra-national conflicts over the yearsfugitive resource and has beleaguered the areas of Middlethat cannot be East, Eastern Europe and South East Asia. Individuals,easily contained societies and nations; in their bid to maximize profit out ofby political this increasingly scarce resource have ran into conflictsboundaries or over rivers that flow across boundaries. One such majorproperty rights.\" source of conflict is the River Cauvery, a peninsular rain- fed river that largely flows through the States of Karnataka (formerly the Princely State of Mysore) and Tamil Nadu (formerly the Province of Madras) and discharges into the Bay of Bengal. Some of the main causes of a river water dispute are contested property rights, changes in established rights or use patterns, the degree of asymmetry, and the scope for collective action. (Water and Identity: An Analysis of the Cauvery River Water Dispute, P.B. Anand, Bradford Centre for International Development) The interplay of power politics, upstream and downstream demographics, the seasonal nature of the river; in other words the dependency of the river on monsoon, the question of issue-linkage between regions pertaining to other transactions, et al. call for a more broadened approach to the issue of water allocation mechanism in areas that are fraught with river dispute. In any major river water dispute, the bone of contention is about rights over resources. In most cases, the riparian rights are customary rights based on prior use rather than statutory rights and these are18 Issue 21

COVER STORYbased on agreements made several decades ago, for 3) The degree of complexity in an allocation plan shouldhistorical, social and political rather than economic reflect the complexity and challenges in the basinreasons. In the Cauvery dispute, this goes back to anagreement between the then states of Mysore and Madras 4) Considerable care is required in defining the amount ofin 1892. (Ibid.) But as the political situation and dynamics water available for allocationchange, it becomes the need of the hour to change theapproach towards dispute-settlement mechanism. In the 5) Environmental water needs provide a foundation onlight of the interim and the final award by the Inter-States which basin allocation planning should be builtWater Disputes Tribunal and the subsequent order of theSupreme Court, it can be argued that a more modern 6) The water needs of certain priority purposes should beapproach to basin water allocation rather than a mere set met before water is allocated among other usersof guidelines to release a fixed amount of water from theupstream to the downstream. The solution should involve 7) In stressed basins, water efficiency assessments anda thorough reading into the social, political, economical objectives should be developed in or alongside theand historical dynamics of the competing parties. allocation planIn 'Basin Water Allocation Planning: Principles, 8) Allocation plans need to have a clear and equitableProcedures and Approaches for Basin Water Allocation approach for addressing variability between yearsPlanning', authors have put forth the 'Ten golden rules ofbasin water allocation,' which says, \"The appropriate 9) Allocation plans need to incorporate flexibility inapproach to basin allocation planning will be determined recognition of uncertainty over the medium to long termby the local context, history, natural conditions, economyand institutions: there is no single correct approach.\" 10) A clear process is required for converting regionalHowever, there are certain principles that need to be borne water shares into local and individual water entitlements,in mind to ensure more dynamic results: and for clearly defining annual allocations1) In basins where water is becoming stressed, it is The underlying principle that emphasizes the importanceimportant to link allocation planning to broader social, of equitable distribution wherein the changing trends,environmental and economic development planning needs and priorities are appreciated and taken into consideration and rights and liabilities are determined on2) Successful basin allocation processes depend on the the basis of expediency deserves national attention in theexistence of adequate institutional capacity wake of the Cauvery row. India will, in the long run, need to consider such an approach to dispute-settlement to put the internal tensions at rest. Issue 21 19

Indian Armystrikes back across LoC by Prateek MagoThe day of 27th September 2016 will be marked operations on the other side of the Line of Control and as one of the most historic days in the history of also, about the positions of the Pakistani army. On 23rd India, as this date marks an occurrence which September, all the options put forth by Mr. Doval in India did for the first time. India, in the past, consultations with the three service chiefs were beinghas neither attacked any other country nor has it coveted considered, and after Modi met the Defence Minister, Mr.any sort of territory. Everything that resulted was in Doval ultimately authorised the surgical strikes.response to an incident that took place on 18th Septemberthat shook the minds of the citizens of our country. After this decision of conducting a military operation beyond the Line of Control was taken, all the top notchThe tension prevailing between India & Pakistan escalated people directly connected with the operation, for example,when on September 18, the Uri Army Base in Jammu & Mr. Doval, the Army Chief, etc. discarded their mobileKashmir was attacked, which led to the subsequent phones. All the communication was done through highlysurgical strikes by India on the other side of the Line of secured communication lines only. This was done keepingControl, which is a de-facto border. in mind the activation of all the Pakistani Radars across the Line of Control. Indian authorities constantlyPakistan has always been known for harbouring terrorists monitored and scrutinized the movements of the politicalin various camps situated all across the territories of its leadership in Pakistan, Pakistani army personnels, the X-nation. This incident completely transformed sparks into Corps which are based in Rawalpindi and are also the infire, which was ignited when a militant leader was killed in charge for the Pakistan occupied Kashmir, and the GilgitJammu & Kashmir in July. based commanders. On 24th September, Modi attended several meetings and also addressed a rally at Kozhikode,On 19th of September, after the Army Camp in Uri was wherein he said, “Will neither Forgive nor Forget Uri.”attacked, Prime Minister Narendra Modi asked the Meanwhile, the Indian Army gets ready. The Northern ArmyNational Security Advisor, Mr. Ajit Doval, to probe into the Commander picked the strike team from 1, 3, and 4Uri attack, identify the perpetrators and explore all the Parachute Battalions. All the Nitro programme satellitesoptions at hand, including the possible role of military . On were activated to monitor the possible targets. Provided21st of September, the Uri residents made a huge the fact that the Pakistani Radars across the Line ofcontribution to the whole plan as they caught two guides, Control were activated, conducting an operation throughwho helped the Army base attackers. On the very same helicopters was not considered to be a feasible idea.day, Pakistan officially denied any sort of role in theattacks in Uri. The Pakistan’s High Commissioner to India, On 27th September, the D-Day, at around 10 pm, all theAbdul Basit, was also summoned and was handed over a villages near the border in Punjab and Jammu & Kashmirletter stating the involvement of a terrorist group behind were evacuated. From 11 pm onwards, the strike teamsthe Uri attacks, being harboured in Pakistan. This day also started moving to the locations. The intention was to co-witnessed Mr. Nawaz Sharif, the Prime Minister of Pakistan, ordinate the attacks, hence, some teams which hadraking up and talking extensively about the Kashmir issue distant targets left a bit earlier.during his speech at the 71st Session of the United NationsGeneral Assembly. This was the time when thoughts of Sentries which were there at the launch pads wereopting for a military operation became more concrete. neutralised with the help of snipers before the strike teams went inside. One of the Indian soldiers, while coming back,On 22nd September, Lt General Ranbir Singh, the Director stepped on a land mine and was badly injured. Apart fromGeneral of Military Operations, briefed the Prime Minister, him, everyone else was successful in reaching back to theMr. Narendra Modi, the Defence Minister, Mr. Manohar base at around 9 am, and there was hardly any retaliatoryParrikar, National Security Advisor, Mr. Ajit Doval, and the firing from the side of Pakistan.Army Chief, on the conduction of certain military20 Issue 21

COVER STORYThe strike teams were successful in razing down 6 launch escalation between the two nuclear power nations. This ispads, and gunning down approximately 45 terrorists at supported by the fact that India only targeted non-militaryvarious locations, and it was very evident that the Uri facilities and communicating the necessary informationattackes were avenged. about the surgical strikes to the Pakistani Government first, before it talked about it in front of the press.After the operation, a Cabinet Committee Meet on Securitywas called by the Prime Minister, and the Director General There is another angle to this whole incident in terms ofof the Military Operations, Lt General Ranbir Singh foreign policy. This can be put as one of the remarkableinformed his Pakistani Counterpart about the strike. At events leading to the turnaround of Modi’s policy towardsaround 12:30 pm, the DGMO Lt General Ranbir Singh Pakistan. The symptoms were shown during his speech onaddressed the Media at a press-conference. He said, “The 15th August, wherein he talked about the human rightslaunch pads were targeted after a week of surveillance. violations by Pakistan in Balochistan and PakistanSignificant casualties have been caused to these terrorists occupied Kashmir.and those who are trying to support them.” The speech given by the Prime Minister of Pakistan, Mr.The whole operation seems to be like a very well-planned Nawaz Sharif, at the United Nations General Aseembly, wasand a sizeable in-scale operation. But still, there are a lot strongly responded by Ms. Sushma Swaraj, Minister ofof theories lingering about which claim that there hasn’t External Affairs, India, during her speech at the UN. Herbeen any strikes at all. If Pakistan contends that there speech clearly put Pakistani harboured terrorism as ahasn’t been any strike, people may also hope the fact that global threat and challenge. Pakistan has beenthey may not retaliate, because of a very simple reason continuously pressurized by the diplomatic actions of thethat you don’t retaliate against an incident that has never Republic of India. Now, the future course of actionoccurred. Even, the United Nations has also said that its completely depends on the approach of Pakistan towardsmission which is dedicated towards maintaining the cease this incident. The Pakistani army has a very vital role tofire between India and Pakistan “has not directly play in the administration. It is at a position where it is veryobserved” any firing on the Line of Control. Stephane likely that it its interests are staked and it loses its positionDujarric, the spokesperson for the United Nations in the international political arena. But again, thisSecretary General, Mr. Ban Ki Moon said that the UN argument is completely nullified by the fact that PakistanMilitary Observer Group in India and Pakistan (UNMOGIP) still gets an abundance of economic funding from the“has not observed any firing across the LoC related to the People’s Republic of China. Provided the fact that therelatest incident.” Still, in lieu of all these theories, I still has been a tremendous investment by China in Pakistan asbelieve the fact that India did conduct surgical strikes a part of several initiatives such as One Belt, One Roadacross the border and I appreciate the evidence on the initiative, etc., it is very likely that Pakistan wouldn’t haveside of India”. to worry about the international pressure and reaction with such a strong and an indispensable Chinese support.This incident brings along a moment for the Prime Ministerto tell all the Pakistanis about the change that has come in Whatever may be the actions, and whatever may be theirthe functionality in India and they must very well reactions, at the end of the day, it is us with whom therecognize that change. It is quite sure that as the general power lies. If we, as general public, are able to channelizeIndian public is well aware of the strikes now, it is this responsibility into something positive, then the day isdefinitely going to help in assuaging the domestic Indian not far, when there will be harmony between the twoanger against the Pakistani harboured terrorism. India nations.seems to have taken a lot of tremendously important stepsto minimize and decrease the military tensions and Issue 21 21

FROM THE COURTROOMby Peri Pratima, Shashank Mishra Swarnalee Haldar Piyush Agnihotri

FROM THE COURTROOMCOUNCIL FOR THE INDIA CAUVERY WATER DISPUTE: NEITHER ANYSCHOOL CERTIFICATE “BANDH” NOR ANY AGITATION CAN TAKEEXAMINATIONS DOES NOT PLACE WHEN THE COURT HAS PASSED AN ORDERCOME UNDER THE PURVIEW Hon’ble Supreme Court in the immediate case warned thatOF THE RTI ACT, 2005 neither “bandh” nor any agitation can take place when the court has passed an order. It is to be complied with and, inCalcutta High Court on while considering the any case, if there is difficulty, the concerned parties can writ petition filled, by the father of minor approach the court. The people cannot become law unto whose application under Right to Information themselves and, therefore, it is obligatory on the part of Act, 2005 seeking issuance of original answer the authorities of both the States, namely, the State ofscripts was rejected by the council on the ground that it is Karnataka and the State of Tamil Nadu to prevent suchnot a public authority, held that the Council for India actions. The Apex Court also took Karnataka and TamilSchool Certificate Examinations does not comes under the Nadu governments to task for failing to check violencedefinition of public authority under section 2(h) of the RTI following its order on the Cauvery dispute, asserting thatAct. Court said, “The council is not a public authority or its verdict “has to be complied with” and violent agitationbody or institution of self- government established or would serve no purpose as those aggrieved were free toconstituted under the Constitution, under the law enacted take legal recourse. When the court questioned his locusby the Parliament or by the State Legislature or body standi, Shivakumar said he was a social activist and aowned, controlled or substantially financed, directly or resident of Kanyakumari in Tamil Nadu and added that heindirectly by the fund provided by the appropriate was aggrieved by the violence in both states in whichgovernment. Therefore, it does not come within the public, private properties were being damaged by localpurview of a public authority under Section 2(h) of the said groups.Act.” The bench observed that as per media reports, the situation was returning to normal and asked the petitioner to specify what the present state of affair was. Counsel for petitioner then told the bench that due to the ‘rail roko’The council for petitioner Ekramul Bari contented that, theCouncil has sufficient representation of the Government ofIndia, State Governments and Union Territory anddischarges public function by way of “serving the nation’schildren, through high quality educational endeavours,empowering them to contribute towards a humane, justand pluralistic society. However the arguments wererebutted by the council for respondent by citing variousregulations of ICSE examination and evaluation of answerscripts concerning the results.The court opinioned that the evaluated answer sheets agitation, buses were also not plying in Karnatakawould fall under Section 2(f) of the RTI Act, 2005 as it apprehending violence and a similar ‘bandh’ call has beenbecomes the documents or records containing the opinion given in Tamil Nadu. Approximately Rs. 25,000 crore worthof the examiner but controversy in present case pertains to of properties have been damaged in violence in the twoCISCE being a public authority or not to which Court states states. The court had taken up the matter urgently due to“the council origin being established by the University of the spontaneous agitations in the various parts ofCambridge legally with the assistance of the interested Karnataka in the Cauvery basis which has paralysed theBoard for Indians by the Societies Registration Act No. XXI normal life besides destroying the public and privateof 1860 does not fall within the definition clause of properties.2(h)(d)(ii) of the RTI Act and cannot be said to be a publicbody in possession of a document or record and as it is notat par with the Central Board of Secondary Education andis not a state instrumentality within the meaning of Article12 of the Constitution.” Issue 21 23

FROM THE COURTROOMVIEWING PIRATEDFILMS ONLINENOT AN OFFENCEIn the immediate case JUDGES AND LAWYERS SHOULD UPDATEHon’ble High Court of THEMSELVES WITH THE LATEST TREND OFMaharashtra ruled that LAW“mere viewing of blockedwebsites and its content The Madras High Court observed that Judges and Lawyers(the pirated movie) is not should update themselves with the latest trend of lawan offence”. A warning while setting aside an order of Sessions Judge who hadmessage like- “This URL refused to order further investigation upon application byhas been blocked under de facto complainant. The De facto complainant hadthe instructions of the lodged a Girl-missing complaint and the Police hadCompetent Government submitted final report. The complainant then filed anAuthority or in compliance application before the Sessions Court seeking a directionwith the orders of a Court to conduct fresh investigation, under Section 173(8) CrPC.of competent jurisdiction.Viewing, downloading, Relying on the decision of the Hon’ble Supreme Court inexhibiting or duplicating Reeta Nag Vs. State of West Bengal and Others (AIR 2010 SCan illicit copy of the (Cri) 401), the Sessions Judge held that under Sectioncontents under this URL is 173(8) CrPC., the de facto complainant cannot ask for freshpunishable as an offence investigation and dismissed the petition. Also in Vinayunder the laws of India, including but not limited to under Tyagi Vs. Irshad Ali (2013) 5 SCC 762 and also in ChandraSections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 Babu Vs. State [2015 Cr.LJ 4538] case it has been deviatedwhich prescribe imprisonment for 3 years and also fine of that police alone can do further investigations.upto Rs. 3,00,000/-. Any person aggrieved by any suchblocking of this URL may contact at Now, it is well settled that not only at the instance of theurlblock@tatacommunications.com who will, within 48 Police, even at the instance of the de facto complainant,hours, provide you the details of relevant proceedings further investigation under Section 173(8) Cr.P.C. can beunder which you can approach the relevant High Court or undertaken by the Police to find out the truth of theAuthority for redressal of your grievance” will not land matter. But, Subordinate Court is not competent to directpeople in jail. fresh, new, de novo investigation, which is entirely different from further investigation. The Court observedThe Bombay Highcourt on its own took up the issue and that that learned additional Sessions Judge , Fastracksuggested amendment in the following form- “This URL Mahila Court, was not updated with the latest trend of lawhas been blocked under instructions of a competent in this aspect.Government Authority or in compliance with the orders ofa Court of competent jurisdiction. Infringing or abettinginfringement of copyright-protected content includingunder this URL is an offence in law. Ss. 63, 63-A, 65 and 65-A of the Copyright Act, 1957, read with Section 51,prescribe penalties of a prison term of upto 3 years and afine of upto Rs.3 lakhs. Any person aggrieved by theblocking of this URL may contact the Nodal Officer atabc@[isp-domain] for details of the blocking orderincluding the case number, court or authority to beapproached for grievance redressals. Emails will beanswered within two working days. Only enquiriesregarding the blocking will be entertained.” The offencewas not in viewing, but in making a prejudicialdistribution, a public exhibition or letting for sale or hirewithout appropriate permission copyright-protectedmaterial. The Court also noted that these irresponsiblyworded messages had created confusion among internetusers and that it was no longer possible to leave it to theseISPs to construct appropriate error pages.24 Issue 21

FROM THE COURTROOMNO INTERIM MAINTENANCE TO no straightjacket formula can be spelt out and the CourtPROFESSIONALLY QUALIFIED SPOUSE has to keep in mind the broad approach to be adopted inHAVING MEANS TO SUSTAIN ONESELF such matters on case to case basis.Hon’ble Delhi High Court while hearing an appeal against Respondent contended that Clause 4 of the Memorandumthe Family Court’s order declined to award interim of Settlement protects employees from indulging in anymaintenance to the appellant-wife as she is a qualified departmental proceedings till the completion of criminalchartered accountant having sufficient means to maintain trial. Single bench of High Court seconded the contentionherself. The Court observed that Section 24 of the Hindu raised by respondent and stayed the departmentalMarriage Act makes a provision for award of interim proceeding till the completion of trial but was latermaintenance to a spouse who has no independent income modified by the division bench allowing authority tosufficient to support her and fight the legal battle. The commence with the disciplinary proceedings as soon asappellant-wife being qualified and in profession for the case from the prosecution side is closed. Aggrieved by thepast 13 years need not be granted interim maintenance. decision of the High Court, bank approached SupremeThe family court refused to believe her claim that she was Court.getting only Rs 7,000 per month despite the fact that shehad been practicing as a Chartered Accountant since the Supreme Court interpreted the clause and said that “Onyear 2003. The Family Court, however, awarded a sum of the plain language of Clause 4, in our opinion, it is not aRs 22,900 per month towards the maintenance of her two stipulation to prohibit the institution and continuation ofchildren. disciplinary proceedings, much less indefinitely merely because of the pendency of criminal case against theDEPARTMENTAL PROCEEDINGS CANNOT delinquent employee. On the other hand, it is an enablingBE SUSPENDED INDEFINITELY OR provision permitting the institution or continuation ofDELAYED UNDULY DUE TO THE PENDENCY disciplinary proceedings, if the employee is not put on trialOF THE CRIMINAL CASE by the prosecution within one year from the commission of the offence or the prosecution fails to proceed against himSupreme Court while adjudicating upon the controversy in for want of any material.”issue whether disciplinary proceedings can be suspendedin a criminal case against an employee on the sole ground Supreme Court relied upon the judgement given inthat the proceeding was, initiated before the closure of Stanzen Toyotetsu India Private Limited vs. Girish V. & Ors. :recording of prosecution evidence, for indefinite period. “The pendency of the criminal case against the respondentTwo judges bench comprising of T.S. Thakur, CJ and A.M. cannot be the sole basis to suspend the disciplinaryKhanwilkar, JJ, observed that the disciplinary proceedings proceedings initiated against the respondent for aninstituted against the respondent cannot brook any indefinite period.” And held same shall be followed forfurther delay which is already pending for more than 10 large public interest. However with concern over prejudiceyears and held that pendency of suit does not qualifies it to respondent the court stayed the disciplinaryto be the sole basis for suspension of disciplinary proceedings till the closure of recording of evidence ofproceedings. prosecution witnesses cited in the criminal trial is due and further observed; “If the trial is not completed within oneThe present decision was in pursuant to the complaint year from the date of this order, despite the steps, whichfilled in February 2007, against an employee of State Bank the trial court has been directed to take, the disciplinaryof India, for criminal breach of trust and in September proceedings against the respondent shall be resumed by2008, the departmental enquiry was instituted against the the inquiry officer concerned. The protection given to theemployee. The criminal trial was in court for 10 years respondent of keeping the disciplinary proceedings inwithout any decision and stay upon disciplinary abeyance shall then stand vacated forthwith upon expiringproceeding initiated by bank was sanctioned by of the period of one year from the date of this order.”Chhattisgarh High Court until the disposal of trial.Chhattisgarh High Court in support of his order provided SUPREME COURT REJECTS PIL ONreasoning with regard to concern that employee( STOPPING FUNDS, FACILITIES TORespondent) if compelled to disclose her defence in SEPARATISTSdepartmental proceeding then that could be used by bankin course of criminal trial causing disadvantage and Supreme Court dismissed the PIL filed in order to stopprejudice to the respondent. Supreme Court differing from central funds and security provided to separatist leaders inthe High Court’s view said that It is well-settled that there the State of Jammu and Kashmir. The Ministry of Homeis no legal bar to the conduct of the disciplinary Affairs (MHA), Jammu and Kashmir Government and CBIproceedings and criminal trial simultaneously. However, were made parties to the PIL and were alleged for misusing of public office and funds. PIL has also sought a direction to the MHA and the State Government asking Issue 21 25

FROM THE COURTROOMthem not to “release/provide” any fund either from “the In the present case, appellant’s house was hit by a cycloneConsolidated Fund of India or State treasury” under any in 1999, and the house drowned in the flood resulting in“head or object”. The two judges bench of Supreme Court his belongings being vanished.comprising of Justices Dipak Misra and Uday U Lalitdescribed the PIL as “judicially unmanageable” and The Court held that it is clear that the appellant had nodenied interfering since the issue falls exclusively in the intention of committing breach of the undertaking given todomain of legislature. the court and that it was physically not possible for the appellant to produce the documents.Court castigated the lawyer who moved the PIL forreferring leaders of Hurriyat Conference as “separatists” .saying it to be just a perception. The bench expressedfurther displeasure when Sharma said that \"politicians are “ENVIRONMENTAL COMPENSATION” OFpromoting terrorism.\" The bench warned the lawyer for RS 100 CRORE IMPOSED UPON SHIPPINGuse of such words in the court saying \"You cannot use such COMPANY FOR CAUSING MARINEwords in court. You cannot brand everyone like this unless POLLUTIONsomeone is convicted. You can’t just generalise everyone.This language cannot be used in court\". National Green Tribunal, in its recent judgementSamir Mehta v. Union of Indiaordered an environmentalThe allegation made by lawyer in PIL that more than Rs compensation of Rs 100 croreon a Panama-based shipping300 crore was spent on the separatists on their stay at company and its two Qatar-based companies for causinghotels, security and other expenses by the government, an oil spill in 2011, when a cargo vessel sank in themisusing the money and stated the issue to be \"big threat Mumbai coast, and held that - “no party from any countryto the society\" and only the judiciary could protect the in the world has the right/privilege to sail an unseaworthycountry. The Apex Court denied any examination of fund ship to the Contiguous and Exclusive Economic Zone ofprovided to Jammu and Kashmir since it being a sensitive India and in any event to dump the same in such waters,issue and management of such states is within the hands causing marine pollution, damage or degradation thereof”of centre. Supreme Court also stated that “Judiciary canonly protect the constitutional provisions and values. Army Adani Enterprises Ltd., which is based in Gujrat, was alsoand police are there to protect from any kind of threat. It asked to pay Rs 5 crore as environmental compensationshould be left to the executive to decide what is best for for dumping 60054 MT Coal in the seabed and causingthe country\". pollution to marine environment. The ship, which was sailing from Indonesia to Dahej in Gujarat, was carryingThe bench stressed over the purpose of PIL and stated about 60,000 metric tonnes of coal for Adani Enterprisessuch are out of the domain for which PIL is meant to be. It Ltd along with 290 tonnes of fuel oil and 50 tonnes ofwas done to deal with issues like environment,encroachment and with the passage of time; it alsoincluded issues like corruption.IF A PERSON FAILS TO DO SOMETHINGWHICH IS IMPOSSIBLE, HE CANNOT BEHELD GUILTY FOR CONTEMPTHon’ble Supreme Court, in its recent judgment - GyaniChand v. State of A.P, held that as the appellant wasunable to produce documents before the Court becausethey were destroyed due to a natural calamity, he was notguilty of committing any contempt since there was nowillful breach of any undertaking given to the court in thepresent case.The Court stated that it would not be fair on their part togive direction to do something which is impossible and ifhe fails to do so, he should not be held guilty of contempt.The Court held that a person can be held guilty forcontempt only if that person has willfully disobeyed anyjudgment, decree etc. of the court or has willfullycommitted any breach of an undertaking given to thecourt.26 Issue 21

FROM THE COURTROOMdiesel. It sank 20 nautical miles off the South Mumbai the appellant is allowed to come out of the prison oncoast in the Arabian Sea on August 4, 2011. completing the usual period of imprisonment for life i.e. 14 years for certain purposes and therefore held that theAn environmental activist alleged before NGT that due to appellant should undergo life imprisonment of 25 years.the oil spill, there had been damage to the mangroves andmarine ecology of the Bombay coast. OWNERS OF INTELLECTUAL PROPERTY RIGHTS NOT BASED IN INDIA ARE NOTThe tribunal stated that the ship was not seaworthy, right EXIGIBLE TO TAX UNDER INCOME TAX ACT,from the inception of its voyage. The tribunal also stated 1961that there was serious marine pollution caused by the oilspill and observed that there will be continuous pollutionresulting from the ship and finally held that it was a clearcase of negligence.MAN GUILTY OF SEXUALLY ABUSING ANDMURDERING A 7-YEAR-OLD GIRL TOUNDERGO LIFE IMPRISONMENT FOR 25YEARSHon’ble Supreme Court in its recent judgement - Tattu In the recent judgement of Cub Pty Limited v Union ofLodhi v. State of Madhya Pradesh, found the appellant India,Hon’ble High Court of Delhi held that the transfer ofguilty of kidnapping and sexually abusing a minor girl, intellectual property rights, whose owners were not basedaged about seven years, murdering her and destroying the in India, will not be taxed in the country. The courtevidence relating to the same. The Hon’ble Court punished observed that it is an internationally accepted rule that -him with imprisonment for life with further direction that “The situs of the owner of an intangible asset would behe will not be released from prison until he completes a the closest approximation of the situs of an intangibleperiod of 25 years of imprisonment. asset”, unless it is changed by the local legislation.The court observed that the deceased was a helpless childwho fell victim to a crime of lust at the hands of theappellant who was 27-years old at that time and theremight be possibilities of such crime being repeated in case The question raised was in relation to the situs or location of intellectual property rights such as logos, brands, trademarks, which are capital assets, but intangible in nature. The petitioner stated that in the cases of intangible capital assets, the situs needs to be determined by referrring to the situs of the owner, because trademarks, logos etc., are intangible and do not exist in any physical form, and therefore, cannot be said to be located at any physical place. Therefore it was contended that the petitioner, being an Australian company, the intellectual property rights of the petitioner were also located in Australia. Therefore, transfer of those assets would not be eligible to be taxed in India. The Respondents contended that since the intellectual property rights were being used in India, and also some of them were registered in India, the same were therefore situated in India. The court ruled in favor of the petitioner, stating that the intellectual property rights were not taxable in India under the Income Tax Act, 1961. Issue 21 27

FROM THE COURTROOMSEARCH sub-serve the cause of justice. Elaborating further, he saidENGINES that when a broken wall falls and someone gets injured orDIRECTED TO a person dies, Section 304-A is also attracted. He alsoDEVISE A submitted that some people drive while keeping theirMETHOD OF mobile phones on their ears as a consequence of which“AUTO-BLOCK” disastrous consequences take place and the effect is thatIN SEARCHES the person gets into misery or he causes miseries toRELATING TO others. These kinds of people are booked under SectionGENDER 184 of the Motor Vehicles Act, 1988 which provides forSELECTION imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000 in case ofRecently the Apex Court in light of a meeting with Google commission of offence for the first time.India, Yahoo India and Microsoft Corp. Pvt. noticed that allthe three respondent companies are bound to develop a He submitted that the aforesaid provision is not sufficienttechnique so that no one can enter/see advertisement or for adequate handling of the situation at present andmessage or anything which is prohibited under the Pre- asked the Court to list the matter on 06.12.2016. Showingconception and Pre-natal Diagnostic Techniques grave concern over the vehicular accidents, the Court said(Prohibition of Sex Selection) Act, 1994, specifically under that it is a matter of common knowledge that the driversSection 22 of the said Act by adopting the method of “auto drive because of their profession but there are individualsblock”. The Solicitor General had produced a “proposed who drive the vehicle because of their uncontrolledlist of words” like ‘gender selection’, ‘prenatal sex propensity for adventure. They really do not care for theselection’, ‘baby gender selection’, etc., in respect of which lives of others. It can be stated with certitude that thewhen commands will be given, there will be an “auto number of vehicles in the country has increased inblock” with a warning and nothing would be reflected on geometrical manner and the people are in a competitionthe internet, as it is prohibited in India. to pick up the speed.Agreeing to this, the counsels appearing on behalf of theRespondents said that apart from the aforesaid words, ifanyone, taking recourse to any kind of ingenuity, feedcertain words and something that is prohibited under theAct comes into existence, the “principle of auto block”shall be immediately applied and it shall not be shown,however, they can only do this when it is brought to theirnotice. The Court further observed that the Respondentsare under an obligation to see that the “doctrine of autoblock” is applied within a reasonable period of time. Thematter will be taken up on 16.11.2016 for final disposal.SC FAVOURS HARSHER PUNISHMENT FORTALKING ON MOBILE PHONES WHILEDRIVINGThe Hon’ble Supreme Court had asked the Attorneygeneral to assist the Court and said that Section 304-A IPCrequires a re-look because the punishment providedtherein is absolutely inadequate in the context of themodern day. In pursuance of the order dated 26.08.2016,on the issue relating to inadequate punishment underSection 304-A IPC, the Attorney General submitted thatSection 304-A covers all kinds of deaths by negligence and,therefore, mere providing of higher punishment may not28 Issue 21

FROM THE COURTROOMCCI REJECTS PREDATORY PRICING similar complaints against taxi hailing apps Ola and Uber,ALLEGATIONS AGAINST OLA the regulator said the present case does not bring out any new or additional fact which would warrant a differentCompetition Commission has dismissed allegations that decision. Noting that there are various other players, CCIANI Technologies, which runs taxi and auto services under said the market is competitive and none of the players canthe name of Ola brand, abused its dominant position in be said to be dominant in the market for radio taxi servicesthe national capital with predatory pricing ways. ANI in the national capital at present. CCI said in its order thatTechnologies operates services under the brand names Ola \"In the absence of the opposite party holding a dominantand Taxi For Sure. It was alleged that the company was position in the relevant market for auto rickshaws in Delhi,driving out existing players as the fare charged by it was the question of abuse by it does not arise,\"abysmally low and was claimed to be less than one-thirdof the government prescribed rates. To assess the CCI IMPOSES RS. 6,715 CRORE FINE ON 11complaint and whether there has been violation of CEMENT COMPANIEScompetition norms, the regulator considered the provisionof radio taxi services in Delhi and the provision of auto The Competition Commission confirmed penalties ofrickshaw services in Delhi as the relevant market. about Rs.6,700 crore on 11 cement firms and one Cement Manufacturers Association for cartelization. CCI askedAfter finding that the company is not a dominant player in cement companies to “cease and desist” from activitiesthe relevant market, Competition Commission of India related to “agreement, understanding or arrangement ondismissed the allegations. Referring to earlier instances of prices, production and supply of cement in the market”. The commission also restrained CMA from collecting wholesale and retail prices, details of production and dispatch from its member firms. CCI said this was a fit case for imposing penalties under the law because the activities of the cement firms caused huge losses to consumers even as the firms profited by acting in concert. Issue 21 29

IGNITING MINDS by Jane Maria, Jaya Gurnani Akanksha Sikri Suyash Jain

HOW TO DRAFT AN IGNITING MINDSEMPLOYMENT CONTRACT? • place of work; • holidays; • dispute settlement methodsSo, you started your company, firm, shop or 2)THE OPTIONAL CLAUSES whatever. Also, you got some 10-15 people to work under you. Congrats for this feat but is The optional clauses may be included at the will of the that all? If you say yes, that is a bad assumption employer. Also, it need not be mentioned in the contractto make. For, you haven’t drawn up your employment per se. The enumeration of it in the job offer; companycontracts yet. handbook or other such places is sufficient. These optional clauses include theEmployees might seem not a big part of yourachievements. But once, the production belt start rolling, • sick leave;you will realize that they are the biggest concern in thefactory. On one hand, their skills, wages, holidays and on • pension;the other hand, their demands, strikes and lockouts willcertainly drive you crazy. So, its important to get the herd • details of agreements with trade unions, if any; andsorted out in the beginning itself, Shepherd! Hence, startdrawing the employment contract now itself. • dismissal, grievance and disciplinary procedures. • Etc.An employment contract is just like any other contract and 3)RESTRICTIVE COVENANTSis governed by the Indian Contract Act. The contract mustbe clear on what the employee’s needs to do in the job; There is another category of clauses that has been quitebenefits and obligations; remedies and recourses. The controversial in the legal field recently. They are thecontract need not be culminated between each individual restrictive covenants which may be included in aworker. It can be addressed collectively to the employees employment contract.union too. Therefore, the essential ingredients of acontract must be fulfilled and there must a valid consensus Incorporation and subsequent enforcement of ‘restrictivebetween the parties. The only difference that in every covenants’ such as confidentiality, nondisclosure and non-other contract, both the parties are considered at an equal solicitation in employment contracts, intended to restrictfooting but in an employment contract, the law is more the employees from disseminating confidential and otherlenient to the side of the employees. important information exclusively available with an employer, are often contentious issues in India becauseNevertheless, it is the duty of the employer to find out the such provisions seemingly conflict with Section 27 of thestatutes that are applicable on his relationship with the Contract Act. Section 27 provides against restricting anyemployees. He must enquire whether the employees trade or business of the employee after the termination ofprotected under any labour laws like Industrial Disputes his service with the employer. First of all, it doesn’t restrictAct or Factories Act? In that case, the contract must abide the employer from restricting the employee during hisby the mandatory provisions of these legislations. The term of employment. Hence, during the service, anemployer cannot evade his obligations in these employee maybe restricted by non-compete clause orlegislations through contractual clauses. non-solicit clause.1) THE MANDATORY CLAUSES IN THE After the term of employment, the employer shall notCONTRACT place any absolute or partial restraint on the employee’s right to livelihood as constitutionally recognized. But,In the employment contract, there are some mandatory following the liberalization and the privatization, theclauses that you should insert. The contract cannot be nature of employment offered in the companiesdeemed complete without these clauses because it underwent a change. Jobs are not about the pile ofdetermines the vital conditions of employment of every mundane files on the table or the production of theemployee. articles through the conveyor belt. It has become a computation of productivity and investment. An employee• The name of the employer and employee, is not selected but trained for the company. He, in fact, is not anymore a labourer but a ‘human resource.’• the description of the work, Hence, losing one employee inflicts a loss to the• type of employment company’s investments too. It is for this reason that the courts have upheld the validity of the restrictive covenants• payscale,• working hours, Issue 21 31

IGNITING MINDSthat are reasonable to the extent of protecting the Payment Schedule: It refers to when the Client iscompany’s interests. It protects the proprietary rights of supposed to make payments-point of time and thethe employer i.e. the trade secrets or trade connections number of installments with the percentage of paymentbut it is not available if directed to prevent exercise of for each. You may choose from the options 2 installmentsextra skill or knowledge acquired by the employer during like 50-50 or of 3 installments like 50-25-25 or 40-40-20.the course of employment. Timings as first installment upfront, second with the first draft and last after delivering the finished draft. The next4) THE TERMINATION OF THE CONTRACT point is to make the mode of payment clear i.e. direct transfer or via Cheque.Employment contract is basically a contract. Therefore, all Solitary Contact: In order to avoid all the confusion andthe remedies against the termination by wrongful methods double-work make sure need to report to a single person.makes him entitled for damages and compensation for the This means that the feedback and editing has to gobreach of the contract. through this one person. Where there is more than one person in charge of this, it will become very difficult toAn employee is entitled, on the wrongful dismissal, to the satisfy all.damages for loss of earning and other benefit he would beentitled to, had this employment been terminated Compensation Fee Clause: This clause saves you fromaccording to contract and if no period is fixed for being unpaid in case the project gets cancelled and youtermination he is entitled to reasonable, and for loss of have already started working on it. You can ask forearning for such a period. compensation accordingly for the time and effort put into the project which could have been utilized on some otherIn any other case, damages are to be measured by the project. You will need to mention the % of the amount youamount of remuneration which the employee has been would charge in this case.prevented from earning by reason of wrongful dismissalincluding the value of any other benefit he is entitled by Open for free Revisions and Rewrites: Quoting thevirtue of his contract. number of free revisions will save you from revising or rewriting the draft numerous times in case your clientAn employer is also entitled to interest or reasonable seems to be difficult person to satisfy in terms of work.compensation on the event he is not paid due salary. Also the client would try and point out all theMoreover, if an employee fails to discharge his duties requirements to be revised in free revisions rather thanproperly, he is obliged to indemnify his employer for loss. pay for the same. Normally 2 free revisions can be offered and maximum 3.Having said that, employment contract is just anothercontract but it becomes crucial in the employer-employeerelationship depending on how it is drafted. Better get agood lawyer to draft the agreement. You never know whenit will turn into a lifeguard while the proletariat strikes.ESSENTIALS OF FREELANCING Payment for Additional requirements: It happens that inAGREEMENT good terms we start adding content to the draft which is out of scope on the request of the Client, thinking that itDrafting Agreement has become easy these will not take so much time. But what if this starts days with all the help available through happening every now and then. In that case it is essential various resources, especially Internet. As a that we have added this clause, which will get us paid for Freelancer these are the few essentials which any work done out of scope.must be present in the Agreement so that you do not sufferat any stage. While drafting one should keep in mind all the Reserving Copyrights till the final payment is released:below-mentioned points. This works in favour of both the parties. The Client cannot run away without paying for the work and publishing itQuote the Charges: Specify whether you charge by hour or and the freelancer cannot sell the same content to anyby complete project. This prevents from your payment other client. As soon as the full payment is made to thebeing withhold later. In case you charge on hourly basis freelancer, the copyrights are bought by him.add the minimum and maximum work-hour clause whichwill be beneficial for both the parties. Here is the Deadline: This factor helps you to streamline the other projects that you wish to take up in future. A vague deadline can lead to a big problem for both the32 Issue 21

IGNITING MINDSparties at some point of time. Therefore, pen down the ESSENTIALS OF SERVICE LEVELdeadline for the project on which you and your client agree AGREEMENTSupon. Service Level Agreement (SLA) is nothing butLink for the format: legally binding contract between the ownerhttps://www.thebalance.com/sample-contract-a-letter- and the service provider, to deliver a serviceof-agreement-1360549 with a particularly service quality in an agreed price. It specifies what a customer wants and what theCONSEQUENCES OF BREACHING A supplier is committing to provide. Hence service levelCONTRACT: agreement is not only a legally binding agreement but also incorporates the aspirations, requirements and theIn case any of the party to this Agreement does not dreams of the owner along with the correspondingperform his obligations, or expressly refuses to perform strategies and technical solutions guaranteed by thethe contract, this will be termed as Breach of Contract. The service provider. There are two major types of SLAs:Party refusing to perform his obligations is the defaultingparty and the other one is the aggrieved party. (i) B2CApart from once reputation being injured, it is for sure that (ii) B2Bthe aggrieved party would have all the rights to sue thedefaulting party in court of law. This will also cause a delay B2C: B2C service level agreements are the announcementsand loss to the aggrieved party in terms of work/money till made by various telecom, IT, ISPs and non-technologythe suit is decided in the court. service providers announcing the service levels guaranteed by their companies to the public, includingREMEDIES FOR THE BREACH OF their customers. These companies make SLAs to tell theirCONTRACT: prospective and present customers, what is the level of service they are able to guarantee and if they fail toIn case of Breach of Contract, the following remedies are maintain their guaranteed service level what kind ofavailable to the aggrieved party (freelancer or client) compensation they give to their customer, who ended up in a lesser level of service than the guaranteed one. These 1.Specific performance of Contract: This remedy SLAs are not negotiated and signed between the parties.is brought into picture when the monetary damages are They voluntarily adhere to the penalties in case of failure.inadequate or won't provide the aggrieved party with Example:” Pizza delivery in 45 minutes, if we deliver it lateradequate compensation for the breach. The parties are you need not have to pay the bill” etc,compelled to stick to the agreement and perform to whatthey had agreed in the agreement. As per this remedy, the B2B: These are the agreements between two businesscourt forces the defendant to perform the specific contract houses i.e. the service provider and the commercialterms that have not been performed or to refrain from customer and the service are obtained to use in the courseengaging in some activity that is prohibited by the of business of the customer. These SLAs have normally ancontract. impact on the business of the customer in case of any breach by the service provider. These SLAs are required to 2.Claim for Damages: The aggrieved party can be legally binding and enforceable contracts. Because ofclaim for liquidated damages under this remedy. The term their complex nature they need to be negotiated, signed‘Damages´ means compensation in terms of money for between the parties and if necessary registered also.the loss suffered by the injured party. Here there is a needto identify the ‘remoteness of damage’ and ‘measure of FUNDAMENTALS OF DRAFTING SLAS :damages’. Section 73 and 74 of Indian Contract Act 1872deal with providing compensation to the aggrieved party 1.FINALISATION OF REQUIREMENTS BY THE CUSTOMER:in detail. The customer or owner has to finalize the requirements 3.Injunction: It is a remedy that prohibits the before starting the process of calling of proposals from thedefaulting party from a particular act. There are different service providers. If the customers are not fully sure ofcategories of Injunction like Temporary, Permanent, technical requirements they may prepare a wish list whichPreliminary etc. which can provide relief to the aggrieved describes the “expected user experience’ achieved by theparty in this case. contract. This normally happens because the technology is Issue 21 33

IGNITING MINDSchanging each and every day. The proposals suggested by component of the services. The minimum level shows thethe service providers to the customer according to their lowest expectation of the customer, below which therequirements are like solution to the problem. customer will start losing the revenue or customer trust or both. The maximum service level is the indicator of the2.PREPARATION OF THE PROPOSALS BY SERVICE upper limit preferable cost.PROVIDER: 7.FINALISATION OF OBLIGATIONS:Service provider has to propose the options ofimplementing the agreement as soon as the wish list or Every contract contain obligations to be performed byexpectations of customer, any restriction made by the both the parties, SLAs are not in any way exempted fromcustomer in terms of budget, implementation period after that general rule. Obligations are to be performed by bothservice bank up cost, infrastructure, scope of expansion, the parties in the sequence stated in SLA and within therequirement of human resources are narrated to the specified time period. The obligations can be classified as:provider. The options should cover the aspects likesolutions to the issues, cost effectiveness, requirement of • Independent obligationsmanpower, implementation period, review meetings,meaningful metrics, reporting system, training to the • Interdependent obligationscustomer, after service model and cost. • Conditional obligations • Circumstantial obligations.3.APPOINTMENT OF A NEGOTIATION TEAM: 8.FINALISE REPORTING AND MONITORING SYSTEMS:In SLAs there are certain technical and legal aspects and inthis situation alone owner cannot take effective There are professional monitoring or report collectingnegotiating deals and hence it is desirable to form a companies in ISP and telecom services etc., otherwisenegotiation team who are well-equipped with the parties can themselves decide the reporting model,technical knowledge , customer aspirations, future responsibility and frequency of reports. The Monitoringdevelopment etc. The team must comprises of : authority is to keep reading the reports and monitoring the progress of the agreement and reports to the concerned (i) Authorized signatory person accordingly. (ii) Project leader (iii) Legal adviser. 9.FINALISE REWARDS AND PENALTIES:4.NEGOTIATIONS: The objective of penalty is not only to compensate theNegotiations between the parties are normally confined to other party due to the loss caused but it is also a means bythe proposal offered by the service provider. One of the which both the parties remain cautious of theirmembers of negotiation team must be present while obligations. As specified earlier in B2C services penalty isnegotiating as he is aware about all the aspects of and self-imposed and under B2B services it has to be laid downrelated to the desired agreement. It is always good to under the agreement and hence under this compensationminute the meeting so that earlier meetings need not have is provided keeping the liquidated damages in the mind.to be looked into again, even if the team members changedue to unavoidable reasons. 10.DISPUTE RESOLUTION CLAUSE:5.FINALIZE THE DESIRED SERVICE LEVEL: It specifies the process of resolving the disputes, in case ofFinalizing the service level happens on the basis of the real any dispute arises between the parties. Arbitration andcustomer requirements also taking into account the cost litigation must be the last step for resolution of disputesrequirement and some other way must be specified in agreement for resolving the disputes amicably. The following steps are6.FINALIZE THE TOLERANCE LIMITS OF THE SERVICES: recommended:Tolerance limits exhibits the minimum and maximum levelof the expected service level in every level in every • Reference to a Joint Committee • Expert Opinion •Mediation • Arbitration34 Issue 21

IGNITING MINDS11.ANNEXURES: ESSENTIAL ELEMENTS OF NDAAll the important documents mentioned in the SLA must Regardless of its function or information, NDA shouldbe laid down in the index and should be attached under contain certain essential parts like definition and exclusionthe annexures. of confidential information, obligation from all the parties involved, remedy in case of breach of agreement, time12.AUTHORISED SIGNATORIES AND COMMUNICATION period involved, when it would be void or not applicableOFFICERS: on parties.It is essential to specify the authorized signatories and the Definition of confidential information defines themode of communication along with the communication categories or the type of information which is beingpoints. protected by the agreement. This specific element serves to establish the rule or the subject/consideration without13.TERMINATION CLAUSE: actually releasing the information. For example: In case of a business company which is in packaging market,It is advisable to insert a termination clause with post confidential information would include, the new inventedtermination financial consequences to avoid heavy costs way through which the packaging would be less costly andetc. consume less time, without actually explaining the actual method in agreement.ESSENTIALS OF NON-DISCLOSURE AGREEMENT At the same time NDA also includes the exclusion of certain information which is not protected by the agreement, theIn a most basic sense, Non-Disclosure Agreement excluded information could include the information which (NDA) is a legally enforceable contract, which is known to general public or is a common knowledge obliges the parties to hold some kind of trade before the agreement was signed. secret and gives the name of the person or partiesto whom it could be disclosed, it creates a confidential NDAs also explicitly spell out that the person receiving therelationship between parties. information has to keep the information secret and has to limit the use of information. This means that the party A Non-Disclosure Agreement Serves three key Functions could not breach the agreement, or could encourage others to breach the agreement, or allow others to access •NDA protects sensitive information: By signing the information to others through any other means orthe NDA the parties agree that the confidential information unconventional methods. If a part does so, they could bewould not be disclosed to any other person or parties than held liable for the breach of agreement. For example: if awhich are already involved, and if a party breaches the designer from a computer company leaves a gadgetagreement the injured party could claim damages. prototype at a bar where it's discovered by a technology reporter, the designer would likely be in breach of the NDA •In the case of new product or concept he signed when he took the job.development, a confidentiality agreement can help theinventor keep patent rights: In many cases, public Time period is also generally defined in NDAs, and requiresdisclosure of a new invention can void patent rights. A that the party has to maintain secret for that number ofproperly drafted NDA can help the original creator hold years. This could be negotiated by the parties that for howonto the rights to a product or idea. long a party would have to maintain their silence. •Confidentiality agreements and NDAs NDAs also include the recourse a party has to take in caseexpressly outline what information is private and of breach of agreement and the remedy provided, forwhat's fair game. In many cases, the agreement serves as example in case of breach of the agreement, the party is ata document that classifies exclusive and confidential fault would have to pay the court fees including attorneyinformation. fees and other expenses including the damages awarded by the court.The type of information which parties agree to keepconfidential is unlimited. Any knowledge exchange WHEN COULD NDA BE USEFUL?between the parties could be termed as confidentialinformation, starting from password, customer list to the Nondisclosure agreement and confidential agreement ismethod of business, the damages awarded to a party. common in today's world. Information protected by attorney-client privilege and doctor-patient confidentiality is basically covered by an encompassing nondisclosure agreement, and even librarians are obligated to keep information about books you've read under wraps. Issue 21 35

IGNITING MINDSOther cases in which confidential information might be the contract. It could also be termed as non-competeprotected through an NDA can include: agreement, where the employee would not use the trade secret of employer in a way which would cause •Business models to be presented to a venture loss to employer, or would not engage in the samegroup for possible funding business. •Plans for a new tool to be to be produced by a • Precedent Confidently Agreement: Afabrication shop precedent confidentiality agreement is used for mergers and acquisitions. If a company wants to buy your •Information about clients or customers for a business, it will want to look at your books and assets.specific company An NDA can provide an element of protection for your confidential information and trade secrets if the •Lab workers who have access to test results prospective buyer pulls out of the deal. If you don'tbefore patients know exactly what information you will need to disclose during a commercial relationship, you can still use an •Embargoed news releases or reviews NDA. It is a good idea to classify as confidential any information that will be disclosed later, so that the NDANDAs are an almost sure way to confirm that still applies.confidential information stays protected in a variety ofsituations. It's important to be aware how these legal When entering into a confidential agreement with a newagreements work before signing or creating a employee, contractor, or company, a nondisclosuredocument, as being well informed can help you make agreement helps protect information and can allow youthe best legal decisions now and down the road. to seek legal action should a breach occur. Releasing the confidential information would cause harm to theTYPES OF NDAS business, which would give rise to claim for losses and consequential damages. However, information sharingThere are several types of NDA which protect the is part of growing a business; the expansion ofinformation regarding individual or company. Knowing innovative ideas comes through the process ofwhat information needs protection, and the extent to brainstorming and collaboration. In the midst of this, awhich that needs to happen will hopefully help avoid a NDA could be viewed as a safety net through which anbreach of confidences and costly litigation. Knowing individual could protect the information.who should be a party to the NDA will aid in the abilityto properly construct the NDA and ensure that allconfidentiality bases are covered. Some of the NDA are: • One Way NDA: A one way NDA is an agreementin which one party makes complete disclosure. For e.g.:a company sharing information with a new employee ora short-term worker, such as an independent contractor,is a one way type of NDA. • Two way NDA or Mutual NDA: A mutualnondisclosure agreement sets forth the obligationseach party undertakes when receiving confidentialinformation and the protections each party is providedwhen disclosing confidential information. For instance,when two small companies wish to share their ownconfidential information, a mutual NDA would be mostuseful. It allows for both parties to set out terms towhich they will each be responsible for adhering. • NDA for employees: Current and formeremployees are responsible for the breaches ofconfidentiality. Employees are under an impliedobligation that they would not use the informationprovided by the company in a way that would harm orcause loss to the company. This is better if it is written in36 Issue 21