Challenges and Opportunities under the Competition Amendment Act 2023 in India



The Competition Amendment Act 2023 in India has ushered in significant changes to the country’s competition law landscape. As the government aims to create a more competitive and fair marketplace, it is crucial to understand the challenges and opportunities that this amendment presents. In this article, we will delve into the key provisions of the Competition Amendment Act 2023, exploring the implications for businesses, consumers, and the legal community. 


Historical Background 


The competition law journey in India began with the Monopolies and Restrictive Trade Practices Act (MRTP) of 1969, aimed at curbing monopolistic practices and promoting fair competition. However, over time, it became evident that the MRTP Act couldn’t adequately address the changing economic landscape. In 1999, the Indian Government established a committee to recommend a modern competition legislation in line with global trends. The Raghavan Committee, which reviewed competition laws from around the world, submitted its findings in May 2000, leading to the enactment of the Competition Act in 2002.[1] This Act was designed to promote fair competition, protect consumers from anti-competitive practices, and establish the Competition Commission of India (CCI) to enforce its provisions.  


Since its inception, the Competition Act has undergone several amendments, including provisions for mergers and acquisitions in 2007 and increased penalties for anti-competitive behavior in 2009. In 2023, another amendment act was passed to enhance enforcement mechanisms and penalties for non-compliance with CCI orders. The Competition (Amendment) Act, 2023 is a response to instances of anti-competitive conduct by major corporations, particularly in the technology industry. It draws inspiration from similar laws in other countries, such as Europe’s Digital Markets Act and Australia’s legislation requiring tech giants to compensate news publishers for their content.[2] This Act would significantly impact the operations of large corporations in India and promote a more level playing field for all businesses. 


Major Objectives of the Act 


The Act introduces changes like expanding the definition of anti-competitive agreements, increasing penalties for such behavior, reducing the CCI’s merger review time frame, introducing a new framework for case settlements, penalizing based on global turnover, using Deal Value for M&A notifications, and setting a 3-year limitation period for filing information. 


Old Law vs. New Law: A Brief Comparison 


Under the previous law, the Competition Act of 2002 prevented parties from entering combinations that might have an appreciable adverse effect on competition.[3] Threshold limits[4], such as gross assets and turnover values[5], triggered the application of competition law. The 2023 Act expands the scope by considering not only the value of the parties involved but also the transactional value, focusing on what one party is willing to pay for the target. This addresses deals in the technology sector where the target may not have significant assets or revenue but is valued for data or innovation.  


The Act also reduces the time for CCI to make decisions from 210 days[6] to 150 days, which may put pressure on the CCI but aims to expedite decision-making. It eliminates the 30-day limit for forming a prima facie opinion[7] and reduces it to 20 days from the date of application.  


The Act introduces flexibility in notifying the CCI about deals, moving away from a fixed timeline to case-by-case determination. It also refines the definition of “control” to be more specific, focusing on the ability to influence strategic decisions.  


In terms of anti-competitive agreements, the Act extends regulation to non-competitor and non-market participant enterprises engaged in different business activities but intending to participate in cartel activities. This aligns with international “hub and spoke” arrangements.  


The introduction of settlement and commitment options allows for faster resolution of proceedings, encouraging compliance with rules. Additionally, the Act replaces fines with penalties for certain offenses, aligning punishment with the severity of contraventions.  


The inclusion of “global turnover” in penalty calculations may lead to higher penalties for global businesses. However, it also raises concerns about the impact on smaller divisions within companies.  


Expanding the definition of “relevant market” to consider products and services interchangeable by both consumers and suppliers offers a more comprehensive perspective. The Act also adjusts the appointment process for the Director General and CCI members, with CCI having a role, subject to central government approval.  


Key Highlights of the 2023 Amendment Act 


The 2023 Act introduces several significant changes, including:   


Merger Control Provisions 


Introduction of Deal-Value Based Thresholds  


  • The Amendment has introduced a new criterion, known as the ‘deal value’ threshold (DVT), alongside the existing asset value and turnover-based criteria for assessing the requirement to notify the Competition Commission of India (CCI). Under this criterion, the CCI can review transactions if: (i) the global deal value exceeds INR 2,000 crore; and (ii) the party involved has ‘substantial business operations in India,’ subject to exemptions.  


  • This move aligns India with several other countries in adopting the DVT in their merger control regulations. It expands the CCI’s oversight to transactions involving ‘asset lite’ and ‘low revenue’ companies. The Amendment defines ‘value of transaction’ to encompass all valuable considerations, whether direct, indirect, or deferred. The specific tests for determining ‘substantial business operations in India’ will be detailed in forthcoming regulations/guidelines.  


Procedural Merger Control Timelines  


  • The Amendment accelerates merger review timelines by reducing the time for forming an initial view on competition law concerns (from 30 working days to 30 calendar days) and for reaching a final decision on a transaction (from 210 calendar days to 150 calendar days). This change means quicker approvals for non-problematic transactions. Parties are now encouraged to engage in pre-filing consultations with the CCI to avoid potential notification issues.  


Widening the Scope of ‘Control’  


  • The Amendment redefines ‘control’ to its lowest standard, ‘material influence,’ aligning with the CCI’s evolving interpretation of ‘control.’ This change means that even transactions involving minority investments with certain investor protection rights may require prior CCI notification if the acquirer gains ‘material influence.’  


Exemption from Standstill Obligations in Certain Cases  


  • The Amendment exempts open market purchases and transactions on regulated stock exchanges from the standstill obligations of the merger control regime, provided the transaction is timely notified to the CCI and the acquirer refrains from exercising ownership or beneficial rights in the shares or securities until CCI approval. This change simplifies the process for transactions involving listed companies, facilitating time-sensitive market-related purchases without stringent regulatory requirements.  


Extending the Ambit of Gun-Jumping Provisions  


  • In line with the proposed DVT introduction, the Amendment empowers the CCI to penalize parties up to 1% of the ‘deal value’ of a transaction for gun-jumping, expanding beyond the existing asset value and turnover-based thresholds.[8]  


Antitrust Provisions 


Penalties Based on ‘Global Turnover’  


  • The Amendment broadens the basis for imposing penalties from ‘relevant turnover’ (as per the Excel Crop Case[9]) to ‘global turnover derived from all products and services.’[10] This change may lead to larger penalties for multi-product/service conglomerates with global operations for similar anti-competitive behavior, potentially raising concerns about proportionality and fairness.  


Expanding the Scope of Cartel Prosecution  


  • The Amendment extends cartel prosecution to hybrid anti-competitive agreements (e.g., hub-and-spoke cartels) and individuals who ‘intended to participate’ in the cartel but did not. This change broadens the CCI’s authority to treat cartel facilitators and agreements across different value chain levels as anti-competitive.  


Commitments and Settlements  


  • The Amendment introduces a mechanism for commitments and settlements, allowing parties to propose commitments or settlements in antitrust cases (excluding cartels). Parties can propose commitments after the investigation begins but before the Director General’s report, while settlements can be offered after the report but before the CCI’s final decision. Additionally, the Amendment enables compensation claims even after Supreme Court orders.  


  • The CCI must invite objections/suggestions from informants, DG, settlement applicants, and third parties before adopting a commitment or settlement proposal, and such orders are not appealable. This mechanism aims to correct anti-competitive practices swiftly, reduce CCI investigations, and ease its resource burden.  


Enhancing the Leniency Regime  


  • The Amendment introduces a ‘leniency plus’ policy, allowing leniency applicants in one cartel to disclose another cartel and receive a reduced additional penalty for the cartel already under investigation. The CCI can impose the full penalty if leniency applicants fail to comply with conditions or provide false evidence.  


  • Parties can withdraw leniency applications, but the CCI may use the information provided as part of its investigation. This ‘leniency plus’ policy enhances the existing leniency regime, encourages cooperation, and helps uncover multiple cartels.[11]  


Miscellaneous Provisions 


Public Consultation for Regulations/Guidelines  


  • The Amendment mandates transparency in making regulations/guidelines, requiring the CCI to publish drafts, invite public comments, and issue a general statement of response. Certain situations exempt public consultation.  


Enhanced Penalty for False Information or Omission  


  • The Amendment increases penalties for furnishing false information or failing to provide material information in transactions requiring CCI approval. Penalty guidelines will be published to ensure proportionality in penalty computation.  


Director General Appointment Process  


  • The CCI gains the power to appoint the Director General with prior Central Government approval, ensuring a checks and balances mechanism.  


Widened Powers of the Director General  


  • The Amendment grants the DG expanded investigative powers, including examining agents, seeking information from third parties, and retaining information/documents for up to 360 days.  


Introduction of Limitation Period and Res-Judicata  


  • The Amendment introduces a three-year limitation period for filing information or references related to antitrust violations and allows the CCI to reject information based on the same or similar facts and issues addressed in previous CCI orders.  


Partial Penalty Amount Deposit Before the Appellate Tribunal  


  • The Amendment mandates the deposit of 25% of the penalty amount for appeals by erring companies at the National Company Law Appellate Tribunal (NCLAT).  




While it introduces several challenges for businesses and regulators, it also presents numerous opportunities for promoting fair competition, protecting consumer interests, and strengthening enforcement mechanisms. Notably, the recognition of hub-and-spoke cartels and mandatory public consultation for regulations/guidelines are significant developments. 


To thrive in this evolving legal landscape, businesses must proactively assess their practices and ensure compliance with the amended competition law. The legal community should be prepared to navigate the complexities of the new provisions and provide guidance to clients in adapting to the changing regulatory environment. 


“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 


Written by – Ananya Chaudhary 

[1] The Competition (Amendment) Act, 2023: A Game Changer for Mergers and Acquisitions, SCC Online Blog (Jun. 5, 2023), https://www.scconline.com/blog/post/2023/06/05/the-competition-amendment-act-2023-a-game-changer-for-mergers-and-acquisitions/#fn5.

[2] Id.

[3] Competition Act, 2002, S. 3.

[4] Competition Act, 2002, S. 5.

[5] Competition Act, 2002, S. 5.

[6] Competition Act, 2002, S. 6 (2A).

[7] Competition Act, 2002, S. 29.

[8] Competition (Amendment) Act, 2023 Comes Into Effect ‘Partially’ (Jun. 1,2023)https://www.mondaq.com/india/cartelmonopolies/1323342/competition-amendment-act-2023-comes-into-effect- partially.

[9] Excel Crop Care Ltd. v. CCI, (2017) 8 SCC 47.

[10] Competition (Amendment) Act, 2023, S. 27.

[11] Supra note 8.


Delhi Court Upholds Interim Mandatory Injunction in a Recent Jurisdiction and Lien Dispute Case   


Date of Decision: 22nd September 2023 

Case Number: FAO(OS) (COMM) 163/2023 

Coram: Hon’ble Mr. Justice Suresh Kumar Kait and Hon’ble Ms. Justice Neena Bansal Krishna 





This case involves an appeal under Section 13(1A) of the Commercial Courts Act, 2015, challenging an order allowing an interim mandatory injunction. The plaintiff, COGOPORT PRIVATE LIMITED, sought the release of goods from the defendant, STRIDES PHARMA SCIENCE LIMITED, which were withheld due to a payment dispute. The appeal challenges the jurisdiction, locus standi, and validity of the injunction. 


Factual Background 


The plaintiff, a pharmaceutical company, engaged defendant No. 1 to deliver life-saving medicines to New York. The consignment was forwarded through defendant No. 3. Upon reaching New York, the goods were withheld on the defendant’s instructions due to a payment dispute. The plaintiff’s consignment contained perishable items worth USD 642,609. 


Legal Issues 


The case raised several legal issues:  


  1. Jurisdiction of the court to entertain the suit. 
  2. Locus standi of the plaintiff to file the suit. 
  3. Validity of the defendant’s right to withhold the goods. 
  4. The appropriateness of granting an interim mandatory injunction.




  • The appellant argued that the court lacked territorial jurisdiction, citing agreements that excluded Delhi’s jurisdiction.  
  • They questioned the plaintiff’s locus standi due to the absence of privity of contract.  
  • The appellant claimed the right to withhold goods due to an unpaid invoice.  
  • The plaintiff argued that the extraordinary circumstances justified the interim mandatory injunction. 


Observation and Analysis 


The court found that the plaintiff had locus standi as the consignor, and the jurisdictional arguments were unfounded. The court also questioned the appellant’s right to withhold goods based on an unpaid invoice and found no privity of contract with the plaintiff. It observed that the goods were withheld to leverage other litigations, causing harm to the plaintiff. 


Decision of the Court 


  1. The court had jurisdiction to entertain the suit as the appellant had its office in Delhi, within the territorial jurisdiction of the court. None of the other respondents contested the jurisdiction. 


  1. The plaintiff had the locus standi to file the suit since it was the consigner of the goods and had title until delivery was made to the consignee. The lack of a direct contract with the appellant did not negate the plaintiff’s right to initiate the suit. 


  1. The appellant’s exercise of lien on the goods was found to be without statutory basis. The appellant’s reliance on an unpaid invoice dated after the goods arrived was deemed inequitable. 


  1. The court upheld the grant of an interim Mandatory Injunction to the plaintiff, as the equities favored the plaintiff. The perishable nature of the goods and demurrage charges being incurred justified the injunction.


“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 


Written by – Ananya Chaudhary 

Click here to view judgment 


The Impact of the Digital Personal Data Protection Act 2023 on Privacy Rights in India   



In an increasingly digital world, the protection of personal data has become a paramount concern for individuals and governments alike. In India, the Digital Personal Data Protection Act of 2023 (DPDPA 2023) has emerged as a landmark legislation aimed at safeguarding the privacy rights of its citizens in the digital age. This comprehensive data protection law is set to reshape the landscape of how personal data is collected, processed, and used in India. In this article, we will explore the key provisions of the DPDPA 2023 and analyze its potential impact on privacy rights in the country. 


The Need for Data Protection  


The proliferation of technology and the internet has led to an exponential increase in the collection and processing of personal data. From social media platforms to e-commerce websites, individuals constantly share their personal information online. While this has brought convenience and connectivity, it has also raised significant concerns about data privacy and security. Cases of data breaches, identity theft, and unauthorized use of personal information have become all too common.  


Recognizing the need to address these concerns, India has taken a significant step by enacting the DPDPA 2023. This legislation seeks to strike a balance between the interests of businesses and individuals by establishing a robust framework for the protection of personal data while allowing for legitimate data processing activities. 


The main objective of the Digital Personal Data Protection Act, 2023 (the Act) is to establish a comprehensive framework for the protection and processing of Personal Data. It governs the processing of digital Personal Data, balancing the rights of individuals to protect their data with the need for lawful processing. 


Key Points of the Act 


  • The Act covers the processing of digital personal data within India, whether collected online or offline and digitized. It also applies to data processing outside India if it involves offering goods or services in India.  
  • Processing personal data requires lawful consent from individuals, with some exceptions for specific legitimate uses like voluntary data sharing and government services.  
  • Data fiduciaries are obligated to maintain data accuracy, security, and delete data when its purpose is fulfilled.    
  • Individuals have rights, including the right to information, correction, erasure, and grievance redressal.  
  • Government agencies can be exempted from certain provisions in the interest of national security and public order. 
  • The Data Protection Board of India will oversee compliance and impose penalties for non-compliance.  


Key Issues and Analysis  


  • Exemptions for state data processing may compromise privacy rights and lead to excessive data collection and retention. 
  • The Act does not adequately address risks and harm stemming from personal data processing. 
  • The Act lacks provisions for data portability and the right to be forgotten, which could give individuals more control over their data.  
  • Cross-border data transfer mechanisms may not ensure adequate data protection standards in recipient countries.  
  • Short-term appointments with the possibility of re-appointment may affect the independence of the Data Protection Board.  
  • Additional provisions for children may face challenges, such as defining the age of consent and the requirement for verifiable parental consent.  
  • The Act lacks clarity on what constitutes a detrimental effect on the well-being of a child.  
  • Exemptions from notice requirements for consent may pose challenges to informed consent, especially for startups and other entities.  


Safeguarding Privacy Rights in the Digital Age 


The Digital Personal Data Protection Bill of 2023, which was presented in the Lok Sabha on August 3, 2023, by the Minister of Electronics & Information Technology, has successfully passed through Parliament. It gained approval from the Lok Sabha on August 7, 2023, and later received unanimous support from the Rajya Sabha on August 9, 2023. Finally, it received Presidential assent on August 11, 2023. 


The necessity for this Act arose after the Supreme Court, in the case of Justice K.S. Puttaswamy vs. Union of India in 2017, recognized the ‘Right to Privacy’ as a fundamental right under Article 21 of the Indian Constitution and recommended the implementation of an act for the protection of Personal Data. 


The Act is also notable for being concise, straightforward, and accessible, using plain language and avoiding complex provisos and cross-references. It also incorporates gender-inclusive language by using “she/her” pronouns when referring to individuals for the first time in parliamentary law-making.[1] 


The Act defines “data” as any information, fact, concept, opinion, or instruction that can be understood and processed by humans or automated systems.[2] Personal Data refers to data about an identifiable individual.[3] Processing includes various operations performed on digital Personal Data, such as collection, storage, sharing, and use, and can only occur for lawful purposes with the individual’s consent or legitimate uses specified in the Act. [4] 


This legislation applies to the processing of personal data of individuals (referred to as ‘Data Principals’) by entities responsible for determining how and why the data is processed (referred to as ‘Data Fiduciaries’) and those who process personal data on behalf of Data Fiduciaries (referred to as ‘Data Processors’). 


The Act sets out rules for obtaining consent from individuals for data processing, ensuring that it is free, specific, informed, unconditional, and unambiguous. It allows certain exceptions to consent for purposes like state services, medical emergencies, and employment, and provides mechanisms for obtaining consent from minors or individuals with disabilities through their parents or legal guardians.  


The Act also outlines the rights and duties of Data Principals[5] (individuals whose data is being processed), including the right to information, correction, erasure, and the ability to nominate a representative in case of incapacity. Data Fiduciaries[6] (entities processing Personal Data) must process data only with consent or for legitimate purposes, ensure data accuracy, protect data, and respond to Data Principals’ requests. Government entities are exempt from certain provisions.  


Transfer of Personal Data outside India is allowed except to countries restricted by the Central Government.[7] The Act contains exemptions[8] for specific cases like prevention of offenses and research purposes.  


The Act establishes the Data Protection Board of India[9], an independent digital authority with adjudicatory powers responsible for enforcing the Act’s provisions and imposing penalties for breaches. Appeals against the Board’s decisions can be made to the Telecommunications Dispute Settlement and Appellate Tribunal (TDSAT).[10]  


Penalties for non-compliance are detailed in the Act, with varying amounts for different offenses, such as failure to protect children’s data or prevent data breaches.[11]  


Businesses handling Personal Data must establish procedures to comply with the Act, including appointing a Data Protection Officer[12], conducting assessments, and maintaining contracts with data processors. However, some aspects, such as the criteria for classifying businesses as Data Fiduciaries, require further clarification.  


The Act allows the government to request information from the Board, Fiduciaries, or intermediaries and provides for the blocking of information in certain cases. 


Challenges and Concerns 


While the Act aims to protect Personal Data, concerns exist about the broad powers granted to the Central Government for information collection, exemptions for government agencies, and potential conflicts with the Right to Information Act. The Act represents a significant shift in how Indian businesses handle privacy and Personal Data and establishes the government’s authority over citizens’ personal information.  


The implementation details of the Act are yet to be fully realized, and its interpretation by the courts will play a crucial role in shaping its impact. 


The Act addresses the processing of digital personal data in India, emphasizing consent, data fiduciary responsibilities, and individual rights. However, it raises concerns regarding exemptions for government data processing, inadequate regulation of data-related harms, and the absence of data portability and the right to be forgotten.  


Additionally, the Act’s approach to cross-border data transfers and the appointment terms of the Data Protection Board members may require further scrutiny. The provisions related to children’s data and exemptions from notice requirements for consent may also need clarification and careful consideration.  


Summary of the Act 


The Act is built on seven key principles:  


  1. Data use with informed consent, legality, and transparency.  
  2. Limiting data use to the specified purpose at the time of consent.  
  3. Collecting only necessary data for the intended purpose (data minimization).  
  4. Ensuring data accuracy and updating.  
  5. Storing data only as long as necessary.  
  6. Implementing reasonable security measures.  
  7. Holding Data Fiduciaries accountable through adjudication and penalties for violations.  


Individuals’ rights under the Act include access to information about their processed data, the right to correct or erase data, the right to file grievances, and the right to designate someone to act on their behalf in case of incapacity or death.  


Data Principals can first approach the Data Fiduciary to enforce their rights, and if unsatisfied, they can file complaints with the Data Protection Board.  


Data Fiduciaries have obligations such as implementing security measures, reporting breaches, erasing data when no longer needed, and having a redressal system. Significant Data Fiduciaries must appoint a data auditor[13] and conduct periodic Data Protection Impact Assessments.[14]  


The Act also protects children’s personal data by requiring parental consent for its processing, with restrictions on detrimental practices like tracking, behavioral monitoring, and targeted advertising.[15]  


Exemptions in the Act cover various scenarios like national security, research, startups, enforcing legal rights, judicial functions, and more.  


The Data Protection Board’s main functions include addressing data breaches, investigating complaints, imposing penalties, and advising the government on blocking Data Fiduciaries repeatedly breaching the Act’s provisions. 




The Digital Personal Data Protection Act 2023 represents a significant milestone in India’s efforts to protect privacy rights in the digital age. It establishes a robust framework for data protection, emphasizing transparency, accountability, and individual control over personal data. While it presents challenges for businesses, its potential benefits in terms of privacy rights and data security cannot be understated.  


In summary, the Act introduces a comprehensive framework for personal data protection in India with specific provisions, but some aspects, such as information solicitation and blocking powers, may require further examination. Its fate depends on the upcoming debate and consideration. 


The successful implementation of the DPDPA 2023 will depend on effective enforcement, capacity building, and ongoing dialogue between government, businesses, and civil society. Overall, the Act represents an important step in data protection legislation in India but may require refinement to ensure a balanced and comprehensive approach to safeguarding individual privacy while enabling legitimate data processing activities 


As India navigates the complexities of the digital era, this legislation serves as a beacon of hope for the protection of privacy rights in an increasingly interconnected world. 


“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 


Written by – Ananya Chaudhary


[1] Digital Personal Data Protection Act 2023, Section 2(y).

[2] Digital Personal Data Protection Act 2023, Section 2(h).

[3] Digital Personal Data Protection Act 2023, Section 2(t).

[4] Digital Personal Data Protection Act 2023, Section 2(x).

[5] Digital Personal Data Protection Act 2023, Section 2(j).

[6] Digital Personal Data Protection Act 2023, Section 2(i).

[7] Digital Personal Data Protection Act 2023, Section 16.

[8] Digital Personal Data Protection Act 2023, Section 17.

[9] Digital Personal Data Protection Act 2023, Section 18.

[10] Digital Personal Data Protection Act 2023, Section 2(a).

[11] Digital Personal Data Protection Act 2023, Section 33.

[12] Digital Personal Data Protection Act 2023, Section 10(2)(a).

[13] Digital Personal Data Protection Act 2023, Section 10(2)(b).

[14] Digital Personal Data Protection Act 2023, Section 10(2)(c)(i).

[15] Digital Personal Data Protection Act 2023, Section 9(3).


Maternity leave Act: Too much or too less?

Maternity leave Act: Too much or too less?

The Maternity Benefit Act, 1961 is a legislation that was passed to protect the employment of women at the time of her maternity. The Maternity (Amendment) Bill 2017, an amendment to the Maternity Benefit Act, 1961, was passed in Rajya Sabha on 11 August 2016, in Lok Sabha on 9 March 2017, and received an assent from President of India on 27 March 2017. It was from effect from 1st of April 2017. The provisions of this Act included numerous benefits for women who are expecting such as: As per Section 2 of the Act, the Act is applicable to all those women employed in factories, mines, companies, shops and commercial establishments that employ 10 or more than 10 employees. The Act is applicable to all the women who are employed in any capacity directly or through an agency, either through contractual or consultancy basis. Section 12 of the initial Act that still continues today, emphasizes that any dismissal or discharge of a woman employee during the pregnancy is unlawful and such employer can be punished under Section 21 of the Act. The amendment also increased the duration of the paid maternity leave from 12 weeks to 26 weeks. The extended period is applicable to women in case of first and second child. Women who are expecting after two children will be granted a paid maternity leave of 12 weeks, i.e., 6 weeks pre-delivery and 6 weeks post-delivery. The amendment also brought in inclusivity by granting the same benefits to adoptive mothers as well. As per Section 3 of the Act, Commissioning mother means a biological mother her egg to create an embryo implanted in any other woman. As per Section 5(4), adoptive mother who adopts a child of upto 3 months or a commissioning mother, are entitled to 12 weeks of maternity leave from the date of commissioning/adoption. Every woman who has adopted a child will get 12 weeks of maternity leave from the date of adoption. This reduces discrimination against women who are not able to conceive naturally and have resorted to other aids like adoption and recognises their responsibilities, duties, obligations, challenges and needs too.[1] The amendment even introduced the option of “work from home” for mothers in Section 5(v). After the expiry of the 26 weeks of leave period, women can use the work from home option to do their jobs. This provision is extremely helpful for mothers since they can continue doing their jobs without having to commute to work everyday or leave their children alone at home. Families who cannot afford nannies usually have to resort to leaving their babies under the supervision of relatives who might not be proficient with the requirements of a new-born. And the work from home option will help parents avoid that. Another particularly important aspect of this Act is Section 11(a)(i) which includes the compulsion corroborated for every establishment that employs 50 or more women, to have in-house creche facilities and to allow women to visit the creche 4 times during the day. This also helps women overcome a major challenge that new mothers have to face, which is to leave their babies with a nanny or some other relative at home. Having a creche in the same establishment would help the mother keep a close look on the child and work at the same time. According to the Act, the use of a crèche facility is proposed to be extended to children of the age group of 6 months to 6 years of all employees including temporary, daily wage, consultant and contractual personnel. The creche should be near/at the workplace site or in the beneficiaries’ neighbourhood, within 500 meters. The crèche preferably should open for 8 hours to 10 hours. In case the establishment has day and night shifts, then the crèche should also be run in shifts. The Act also mandates the following facilities to be provided: Crèches should be concrete, with a minimum space of 10-12 sq. ft. per child, with ventilation, drinking water and with no unsafe places such as open drains, pits, garbage bins near the creche. Besides the above facilities, the creche must also provide a guard, who should have undergone police verification, ramps and handrails, one supervisor per crèche, a minimum of one trained worker for every 10 children who are under three years of age and for every 20 children above the age of three the creche should have one trained worker along with a helper. No plumbers, drivers, and electricians and other outside persons should be allowed inside the crèche when children are present. Also, a crèche monitoring committee should be formed having representations from among crèche workers, parents, and administration. Above all a grievance redressal committee should be formed for inquiring into instances of sexual abuse. A few other provisions that the amendment has granted include benefits like: the paid maternity leave that can be availed 8 weeks before the expected date of delivery. Before the amendment, this duration was limited to 6 weeks. Another very important thing to note is that the amended Act makes it compulsory for the employers in Section 11(ii) to educate their female employees about the maternity benefits available to them at the time of their appointment.

In order to decide whether the maternity leave benefits are too much or too less or just appropriate, we need to assess the provisions through various lens. There is no doubt that the Act is in line with the recommendation of the World Health Organisation which says that children must be exclusively breastfed by the mother for the first 24 weeks. Hence, the duration of leave being granted by the now amended Act (26 weeks) will be helpful for mothers to take care of their kids’ nutrition and look after their needs, as well as recover from the childbirth at the same time. This extension in the maternity leave will also help in improving survival rates of children and help in healthy development of both the mother and the child. The Act also allows for inclusivity by introducing 12 weeks of maternity benefits to the adopting and commissioned mothers. All of these provisions will help reduce the instance of women dropping out of the labour force due to the absence of adequate leave. The amended Act also falls in line with the ideal practices internationally laid out by the Maternity Protection Convention, 2000.[2] They call for at least 14 weeks of mandatory maternity benefit. But this Act also lacks in several ways. It promotes patriarchy by appointing the whole responsibility of child caring to the mothers. By not making provisions for paternity leaves for the fathers, the Act is inevitably putting more workload on women by making child-bearing a job solely for one parent rather than for two. The Act also does not make any provisions for women in the unorganised workers category. These include women whose work is home-based, self-employed or wage workers. The Act also excludes women who work in enterprises having less than 10 employees. The Act does not take into account the needs of these women. Another major drawback of this Act is that it is only for women who have been working as an employee in an establishment for a period of at least 80 days. Only these women are entitled to the maternity benefits under the provisions of the Maternity Benefit Act. This is not inclusive of those women who have recently joined in and are expecting. The Act also discriminates against those who have more than two kids. The amendment only extends paid maternity leave for women employees with less than two surviving children, from the original 12 weeks to 26 weeks. Those with more than two kids can only take up to 12 weeks of paid maternity leave, leaving only 6 weeks post-delivery.[3] This is demeaning to women who have more than two kids since their responsibilities are even more than those with fewer kids and they should be entitled to a longer duration of leave. Another important thing to note here is that a mother’s responsibility does not end after 6 months. Since the child is so young, its nutrition, safety, growth, recreation and enrichment will have to be paid close attention to. There will also be frequent paediatric visits. A child this young also needs to be monitored the entire time and cannot be left unattended. Even the mother needs time to recover after the childbirth. It takes time to recover from the pain. There can be postpartum depression, severe hormonal changes and sleep deprivation issues. It can be difficult for women to work under such conditions. Another prominent drawback of this Act is that it demands the employers to bear the entire burden of the cost of providing leave to the workers. Additional requirements like creche facilities require more capital and operating expenditure. This will discourage employers from hiring women in the childbearing age-group in their companies to avoid spending money. This will further aggravate gendered discrimination. Existing women employees might face a reduction in compensation as firms compensate for higher lifetime costs. This process is also unfair to the employers since they will have to bear the entire cost of providing leave to employees, in terms of both continued pay while on leave, as well as the indirect cost of having to get the work done by employing other workers to finish the work of the absent employee. Also, it increases the cost of temporary training provided to the employee which is employed on behalf of the absent employee.[4]

It can also be seen how the how Maternity Benefit Act lacked in the past by reviewing past cases. In the case of Pooja Jignesh Doshi Vs. The State of Maharashtra and Ors, the petitioner was unable to carry a second child and chose surrogacy as a solution. The surrogate mother, i.e., the petitioner, requested maternity leave prior to the birth of the child but was rejected. The respondent refused the petitioner’s request for maternity leave to care for the surrogate child, claiming that the Leave Rules and the policy controlling the Rules do not allow for maternity leave for a surrogate kid. The High Court explored the idea of motherhood and pregnancy in this decision and identified the loopholes in the rationale behind drafting the laws. The court held that the purpose of maternity leave is to maintain the dignity of motherhood and to offer care for the child’s and mother’s well-being, as well as for the mother-child relationship and to make a distinction between a mother who has a biological kid and one who has a child via surrogacy would be demeaning to the womanhood and motherhood of the woman who desires to nurture a child. The court even cited the right to life, as defined by Article 21 of the Indian Constitution which encompasses the right to motherhood as well as the right to the full development of every child. Hence it was then ruled that maternity leave be provided to biological and surrogate mothers. In the case of Anshu Rani vs State Of Uttar Pradesh And Ors, the petitioner Anshu Rani applied to the District Basic Education Officer in Bijnor for maternity leave. She was awarded 90 days of maternity leave in lieu of the 180 days she had requested and was not provided a rationale for having her leave term cut in half. The Allahabad High Court referred to the revised Maternity Benefit (Amendment) Act, 2017). According to the requirements of the 2017 amendment, maternity leave has been increased from 8 weeks to 26 weeks, and the petitioner is allowed to take advantage of it, granting the petitioners maternity leave as social insurance. In the case of Rasitha C.H. Vs State of Kerala & Anr, the petitioner, Rasitha was denied maternity leave by the Calicut University on the grounds that the terms of her contract did not envision the grant of such leave. The court held that a woman employee cannot be refused maternity benefits only because her employment status is contractual. As a result, despite anything in the contract agreement, the University is obligated to provide such benefits.[5]

When we compare the maternity leave laws with other nations, we can easily conclude that the benefits provided in India are less. We have come a long way with respect to bringing change to the workplace environment and benefits to make the nation a better and more comfortable place for women, but we still have a long way to go. Motherhood is tough and having the support of everyone around including your employers will make the process easier. It will help women receive the respect they deserve and aid them in bringing up children as well as flourishing in their own professional careers. An increased duration of maternity leave may also lead to women becoming happier and more productive when they come back to work. It would also be better for employers since they would retain her expertise and not incur unnecessary costs on finding and training a new hire. Paid parental leave would also help keep families afloat financially, helping the country’s overall economy. The payment that parents would receive during the paid leave can help them adjust to the financial burden of a new-born. New-borns have various requirements including, food, medicines, diapers, clothes, doctor visits, toys, pram, cradle etc. The payment would hence help reduce child care costs incurred by the family. By also making provisions for paternity leave, there would be less pressure on mothers to take the whole responsibility of the child. It would make the child-rearing process an equal responsibility of both the parents and help reduce the burden off the mother. Maternity leaves can also help reduce risk of postpartum depression. Even for mothers who do contract postpartum depression, the ability to take time off can be helpful. It helps women take their minds off work and not worry about pay at all and helps them deal with their own mental health. Another thing to note is that women who take maternity leave tend to stay with the same employer after returning. This is because they feel supported by their employers and hence want to keep working for the same company. Lastly, I feel the leave is a must and not just a benefit for women. It is a need for them. Women who give birth to their children are coping with dual strains on their physical and mental health: a body recovering from pregnancy and labour and a new-born who needs constant supervision. Paid maternity leave allows women and families to take time to adjust to their new lifestyles. Hence, when women do return to work, they are better equipped to handle the challenges of balancing parenting and work. Hence, now that we know the rationale behind granting maternity leave to women, it is important that we implement better and improved policies in India too.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by Reema Nayak

[1] https://blog.ipleaders.in/the-maternity-benefit-act/

[2] https://timesofindia.indiatimes.com/readersblog/maternitybenefitactboonandbaneforthenation/maternity-benefit-act-boon-and-bane-for-the-nation-51056/

[3] https://www.acko.com/group-health-insurance/maternity-leave-policy/

[4] https://www.livemint.com/money/personal-finance/the-benefits-women-are-entitled-to-and-the-rights-they-can-claim-under-maternity-1557655754106.html

[5] Pooja Jignesh Doshi v. The State of Maharashtra


Assessing the Mediation Act 2023: A Leap Forward in Dispute Resolution


In the ever-evolving landscape of legal frameworks and dispute resolution mechanisms, the Mediation Act 2023 (referred to as the ‘Act’) has emerged as a significant milestone. Mediation offers parties involved in disputes an opportunity to resolve their issues through a collaborative and non-adversarial process, while saving time and resources. Recognizing the need to promote mediation as an effective method of dispute resolution, the Indian government introduced the Mediation Act 2023. This landmark legislation aims to streamline and enhance the mediation process in India. This article aims to assess the key provisions and implications of the Mediation Act 2023 and shed light on its potential impact on the resolution of disputes in various legal contexts. 


The Rise of Mediation  

Mediation has gained prominence globally as a viable alternative to traditional litigation. It is a voluntary and confidential process where a neutral third party, the mediator, assists parties in reaching a mutually acceptable agreement. Unlike courtroom battles, mediation encourages open dialogue, active participation, and creative problem-solving, making it a preferred choice for many disputing parties.  


Background of the Mediation Act 2023 

Mediation has emerged as an effective means of resolving disputes, especially in the context of commercial disagreements. It is known for its speed, efficiency, and cost-effectiveness. However, a significant challenge has been the absence of a governing framework for this practice, despite its recognition by Indian Courts in legal decisions and legislation. 


In response to this situation, the Mediation Bill (referred to as the ‘Bill’) was introduced in Rajya Sabha on December 20, 2021[1], and subsequently, the Parliamentary Standing Committee on Personnel, Public Grievances, Law, and Justice, led by Sushil Kumar Modi, submitted a report on the Bill for further examination.[2] The committee presented its findings to the Chairperson of the Rajya Sabha on July 13, 2022. The Mediation Bill was introduced in both the Rajya Sabha and Lok Sabha, and it was approved by both houses on August 1, 2023, and August 7, 2023, respectively.[3] The Mediation Act of 2023 has been granted approval by the President of India and was officially published in the Gazette of India on September 15th, 2023.[4] 


The Act aligns with Section 89 of the Code of Civil Procedure 1908 (CPC), which allows courts to refer parties to various dispute resolution methods, including arbitration, conciliation, judicial settlement, and mediation, when the possibility of an amicable settlement exists. 


Objective of the Mediation Act 2023 

The primary objective of the Act is to promote and facilitate mediation, particularly institutional mediation, for the resolution of disputes, whether commercial or otherwise. It also aims to enforce mediated settlement agreements, establish a mediator registration body, encourage community mediation, and promote the acceptance of online mediation. The Act defines mediation as a process where parties seek the assistance of a mediator, a neutral third party, to help them reach a mutually agreeable resolution of their dispute. 


Key Highlights of the Act 


Applicability: This Act applies in situations where mediation occurs in India, including cases where either or both parties habitually reside, are incorporated, or have a place of business in India.[5] It also applies when a mediation agreement specifies this Act’s applicability[6] or in international mediations[7] involving government entities or commercial disputes.[8] 


Pre-litigation Mediation: Initially, the Bill proposed mandatory pre-litigation mediation for parties planning to file a lawsuit, regardless of prior mediation agreements.[9] However, following recommendations from the Standing Committee, it was made voluntary.  


Excluded Disputes: The Act lists subject matters that are unsuitable for mediation, including allegations of serious fraud, document forgery, claims against minors or individuals with disabilities, criminal offense cases, and certain tax-related disputes. The wording regarding matters conflicting with public policy or morality is broad, leaving room for interpretation. Mediation will not be pursued for disputes listed in the First Schedule of this Act. If a settlement agreement isn’t reached, the mediator will submit a non-settlement report to the Claims Tribunal, which initiated the mediation, for further adjudication.  


Mediation Duration: Originally set at 180 days, extendable by 180 days, the mediation period has been reduced to 120 days[10], with a 60-day extension[11]. Parties can withdraw from mediation after the first two sessions, but unexcused non-attendance can lead to cost implications in subsequent litigation.  


Enforcement of Mediated Settlement Agreements (MSA): Once the parties agree on settlement terms, the Act requires the agreement to be documented, signed by all parties, and authenticated by the mediator. Authenticated MSAs can be enforced as if they were court judgments.[12]  


Challenging MSAs: The Act permits challenges to MSAs based on fraud, corruption, impersonation, or if the subject matter was unfit for mediation.[13] Challenges must be filed within 90 days of receiving the authenticated MSA, extendable by another 90 days under specific circumstances. [14] 


Online Mediation: To bridge geographical gaps and reduce costs, the Act allows for virtual mediation. However, clear rules for online mediation procedures and conduct are necessary to ensure its security and effectiveness.[15]  


Confidentiality: The Act emphasizes confidentiality, protecting all mediation-related information from disclosure.[16]  


Mediation Agreement/Clause: Mediation agreements must be in writing and signed by the parties.[17] They can also be in the form of a mediation clause within an agreement, provided the reference clearly integrates the mediation clause into the agreement.  


Mediators: Mediators can be individuals of any nationality.[18] Parties have the freedom to select their mediator and follow a defined procedure for appointment.[19] The appointed mediator must confirm their willingness within seven days and disclose any newly arisen conflicts of interest in writing during the mediation. Mediators are prohibited from acting as arbitrators or representatives in related legal proceedings.  


Termination of Mediation: Mediation proceedings can terminate on various grounds, including the signing and authentication of a mediated settlement agreement[20], a written declaration by the mediator that further mediation efforts are unjustified[21], a party’s written request to opt out of mediation, or upon the expiry of the 120-day time limit.  


Enhancing Access to Justice  

The Act broadens the scope for greater availability and improved access to mediation services. Court-annexed mediation remains a crucial component, offering its services either for free or at a minimal cost. Private mediation, now termed ‘institutional mediation,’ is introduced, where service providers offer mediation services. These institutions are required to maintain a panel of mediators, and professional fees are charged. Parties have the freedom to select a mediator best suited for their case. Much like how government and private hospitals both cater to public healthcare needs, institutional mediation and court-annexed mediation are both essential in ensuring equitable access to mediation services. The Act paves the way for the growth of a robust private mediation sector.  


The fundamental tenets of mediation, including confidentiality, self-determination, and voluntariness, are well safeguarded. Section 23 of the Act provides protection against admissibility and privilege against disclosure. All mediation communications remain confidential. Section 21 of the Act ensures that non-settlement reports by mediators do not divulge the reasons for non-settlement. The Act defines ‘mediation’ under Section 2(h) to require that a mediated settlement results from self-determination.  


A Mediation Council of India (MCI) will be established[22] to oversee and uphold standards and ethical codes of conduct for mediators, service providers, and training institutions.  


The Act applies to commercial disputes involving the government, with the possibility of extending to other government-related disputes through the formulation of mediation schemes or guidelines. Protection is offered to actions taken in good faith by the authority with the written consent of the competent authority, which is a positive step, although further actions are expected, given the government’s significant involvement in litigation.  


Challenges and Concerns 

  1. Section 2(h) of the Act defines ‘mediator’ in a way that distinguishes between registered and unregistered mediators, increasing the mediator pool. This provision could be susceptible to misuse, as random agreements might be converted into mediated settlement agreements (MSAs) to expedite enforcement under the Act. Weaker parties could be at risk of exploitation due to power imbalances. To mitigate this threat, enforcing MSAs as judgments or decrees of the court could be limited to mediations conducted by registered mediators. 


Challenges to an MSA cannot be raised beyond a maximum of 180 days from the date the challenging party receives a copy of the authenticated MSA. If fraud, corruption, or impersonation is the basis for the challenge, it might be more appropriate to calculate the challenge period from the date of knowledge, as stipulated under the Limitation Act.  


  1. The First Schedule of the Act designates disputes related to minors, deities, individuals with intellectual disabilities, persons of unsound mind, and individuals with disabilities requiring high support as ‘not fit for mediation.’ However, these individuals are already covered by separate legislation that provides for guardianship when they cannot make legally binding decisions. Excluding them from mediation could deny them easy access to justice and be discriminatory. 


Similarly, disputes involving professionals like lawyers, doctors, and chartered accountants in matters related to registration, discipline, or misconduct are excluded. Disputes involving tortious liability, such as negligence, are recognized in many jurisdictions as suitable for mediation. It’s crucial to clarify that such complaints can indeed undergo mediation, as there is educational value in resolving these matters through mediation.  


  1. The Second Schedule of the Act lists laws where the Mediation Act does not have overriding authority. This includes the Family Courts Act, 1984, The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. In these cases, conciliation is carried out by conciliation officers/Internal Complaints Committees, who also make findings in the adversarial inquiries they conduct. These disputes often involve sensitive relationships, and frivolous cases are common. The misuse of the adversarial process can have severe consequences, and having the option of mediation would be beneficial. 


  1. The initial drafts of this legislation included a provision for mandatory pre-litigation mediation, which has now been made voluntary. The intention behind the mandatory provision was to remain dormant until mediator capacity improved, at which point it could be activated through notifications. Mandatory pre-litigation mediation has the potential to expedite a change in litigants’ mindsets, as experiencing effective mediation can convince them of its benefits. 


  1. The level of mediation competence within the Mediation Council appears inadequate. Only one member of the entire Council is required to possess knowledge of mediation law, which may not necessarily translate into a deep understanding of mediation nuances. Additionally, several provisions grant the government control over the Council, posing a risk to the dilution of mediation principles. Mediation is a skill-based craft, and leadership should be entrusted to those with training, experience, and autonomy. 


  1. While international mediation is mentioned in the Act, it lacks comprehensive coverage. It is imperative to address this omission promptly, especially given India’s status as a signatory to the Singapore Convention on Mediation. 


  1. The Tenth Schedule of the Act does not empower the Consumer Protection Forum to initiate cases for mediation on its own motion. This appears to be an oversight, as this provision is available in the Eighth Schedule for tribunals under the Companies Act. 


  1. Community Mediation is a progressive step, but the definition remains ambiguous. The process mandates the presence of three mediators on the panel. While MSAs must be registered, their enforcement is restricted, and the provisions appear cumbersome.



In conclusion, the Act is a positive step that stands to benefit both the business community and litigants in general. However, the success of the Act will depend on its effective implementation, the availability of qualified mediators, and ongoing efforts to educate the public about the benefits of mediation. As the legal landscape continues to evolve, the Mediation Act 2023 stands as a testament to the importance of alternative dispute resolution methods in achieving fair and just outcomes for all parties involved in legal disputes. 


“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.” 

Written by – Ananya Chaudhary

[1] The Mediation Bill, 2021, PRS Legislative Research (Dec. 28, 2021), https://prsindia.org/billtrack/prs- products/prs-bill-summary- 3961#:~:text=The%20Mediation%20Bill%2C%202021%20was,independent%20third%20person%20(mediator).

[2] Id.

[3] India: Mediation Bill, 2023, Mondaq (Aug. 22, 2023), https://www.mondaq.com/india/arbitration–dispute- resolution/1357380/mediation-bill-2023.

[4] Mediation Act, 2023 receives assent of President of India, Bar and Bench (Sep. 16, 2023), https://www.barandbench.com/news/mediation-act-2023-president-india-approval.

[5] The Mediation Act, 2023, Section 2(i).

[6] The Mediation Act, 2023, Section 2(ii).

[7] The Mediation Act, 2023, Section 2(iii).

[8] The Mediation Act, 2023, Section 2(iv).

[9] The Mediation Act, 2023, Section 5(1).

[10] The Mediation Act, 2023, Section 18(1).

[11] The Mediation Act, 2023, Section 18(2).

[12] The Mediation Act, 2023, Section 27.

[13] The Mediation Act, 2023, Section 28(2).

[14] The Mediation Act, 2023, Section 28(3).

[15] The Mediation Act, 2023, Section 30.

[16] The Mediation Act, 2023, Section 22.

[17] The Mediation Act, 2023, Section 4(3).

[18] The Mediation Act, 2023, Section 8(1).

[19] The Mediation Act, 2023, Section 8(2).

[20] The Mediation Act, 2023, Section 24(a).

[21] The Mediation Act, 2023, Section 24(b).

[22] The Mediation Act, 2023, Section 31.

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