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Minority Rights Against Oppression & Mismanagement Under Companies Act

Articles

Introduction

The provisions of the Companies Act 2013, read in correspondence with the rules of Corporate Governance along with SEBI LODR rules, provides for the protection of the Minority Interest. The rule of majority is the essential premise that governs the operation of shareholders’ democracy. However, it is also vital to guarantee that the majority’s authority is kept within appropriate limitations and does not lead to minority tyranny or firm mismanagement. As a result, minorities’ interests must be given a voice at the decision-making levels. Looking into the consideration of importance of the minority’s rights the provisions with respect to Oppression and Mismanagement came into the picture.

As per the Companies act the principle of rule by majority has been applicable to the management of the affairs of the companies. The members had the right pass resolutions on various subjects either by simple majority or by special majority. Once a resolution is passed by the requisite majority then it is binding on all the members of the company. On becoming a member, each person impliedly gives consent to the will of the majority. Thus, if the wrong is done to the company, it is the company which is the legal entity having its own personality and that can only institute a suit against the wrongdoer, and the shareholders individually do not have a right to do so.

It was provided under Section 397 of the Companies Act, 1956 which stated that when any affair of the company is being conducted to any member or members by the way of prejudice to public interest or oppressive then any one or more than one member have right to apply to the Tribunal by the virtue of Section 399 of the Companies Act, 1956. The requisite number of members who must sign the application is given under Section 399 of the Companies Act, 1956.

It is important to note that in the corporate world, all democratic decisions and management of a company are made with the majority rule which is deemed to be fair and justified. The majority rule of decision making, quite often than not overlooks the views of minority shareholders. A minority shareholder is a person in a company who does not enjoy much power in the management of the company and their interests are disregarded. Despite the provisions placed under Companies Act, 1956 of protection of the interest of minority shareholders, the minority shareholders found themselves incapable of exercising their rights due to lack of the resource or of time. 

Therefore, this resulted in the majority domination and suppression of minority shareholders rights in the decision making and management of the company and to overcome this problem faced by the minority, the Companies Act, 2013 came up with the solution to tackle the problems which are usually faced by the minority shareholders. 

CURRENT SITUATION AND APPLICABLE PROVISIONS

Section 241-246 of the Companies Act, 2013 lays down the provisions to effectively deal with oppression and mismanagement in a company

The principle of majority originated in the rule of Foss v Harbottle which provided that the individual shareholders have no cause of action in law for any wrongdoing by the corporation and the action brought about in respect of such losses shall be brought either by the corporation itself or through a derivative action. The Company Rule further protects the interests of the small shareholder director and ensures that the small shareholder director will not retire by the rotation and shall enjoy tenure of three years. However, the small shareholder director will not be further eligible for reappointment.

Ways to Protect the interest of minority Shareholders:

Provisions of Companies Act, 2013 deals with the situations where minority shareholders rights have been protected and the same can be divided into various major heads. Following are the ways to protect the rights of minority shareholders: 

  • Use of winding up action to protect minority shareholders: A minority shareholder can file a petition before the court to wind up the company if it is “just and equitable” to do this. 
  • Protecting minority shareholders under crowdfunding: This measure involves drafting new articles (AOA and MOA) and shareholders’ agreement (SHA) for a business with the motive to attract a number of small minority investors via crowdfunding.
  • Resolving dispute over payment of dividends to minority shareholders:  Where the majority shareholder thought they could force the minority shareholders to sell their shares by not paying a dividend. Minority shareholders in such cases can complain about the lack of dividends and if the company has sufficient distributable reserves to pay a dividend. 
  • Protection against dilution of shares of a minority shareholder: Unless the articles of association of a company have dis-applied a shareholder’s right of first refusal (also known as a pre-emption right), any new shares that are being issued must first be offered to the existing shareholders in such proportions as to preserve their percentage shareholding in a company.

JUDICIAL INTERVENTIONS

The tribunal is the special adjudicatory body set up under the Companies Act and Companies Rules, read in correspondence with the NCLT rules brought in order to deal with the matters pertaining to the Companies Act in order to get efficient and immediate relief. Section 242 deals with the powers of the tribunal in correspondence to the cases of oppression and mismanagement and protection of the minority. The Award pronounced by the National Company Law Tribunal can be appealed before the National Company Law Appellate Tribunal (“NCLAT”) The procedure and provision granting such right to appeal is provided under Section 421 of the Companies Act. 

Landmark Cases

Tata Consultancy Services Limited v. Cyrus Investments Pvt. Ltd. & Ors., the Supreme Court (“SC”) made the following important observations:

  • Removal from the position of directorship is not sufficient to make out a case of oppression and mismanagement, and the NCLT can dismiss such complaints. 
  • Winding up of a company upon finding of oppression/mismanagement can only take place when there is a justifiable lack of confidence in the conduct and management of the company’s affairs. A mere lack of confidence between majority and minority shareholders will not be sufficient.
  • Sections 241 and 242 do not give the Tribunal powers of reinstatement.
  • Court while deciding a case under Section 241 can only look at past conduct or conduct which is going on. An apprehension of future misconduct arising out of the Articles of the company cannot be looked into by the Tribunal under a Section 241 complaint.

Union of India v. Delhi Gymkhana Club, the petition for oppression and mismanagement was filed by the Government of India under Section 241(2). The NCLAT discussed the scope of Section 241(2) and made the following observations:

  • When the Central Government files a complaint under Section 241(2), it is required to record its opinion as regards affairs of the company being conducted in a manner prejudicial to public interest, and recording of such opinion is a sine qua non for applying to the Tribunal under Section 241(2).
  • The Tribunal cannot review sufficiency or otherwise of material based on which the government has formed its opinion, more so when no mala fide is attributed to the Central Government.
  • The phrase ‘public interest’ cannot be stretched so far as to include all Indian citizens. It would suffice if the rights, security, economic welfare, health and safety of even a section of the society -like the candidates seeking membership from the category of common citizen- are affected notwithstanding the fact that they are only a few individuals.

CONCLUSION

Therefore, it can be concluded that the concept of independent directors provides an objective scrutiny of management, operations and decision making, the Boards of the companies could also incorporate the concept of representation of specific minority shareholders groups. The Company Law provides an option to companies to adopt proportional representation for the appointment of directors. It is essential to note that the reasons why there have been judicial prevention measures that have been taken in accordance with this mandate is due to the fact that management of the company is of the core importance when it comes to the working of the company. 

Furthermore, it is essential to ensure that no member of the company is subjected to oppression. It has been noticed in the past that often the cases of Oppression and Mismanagement amounts to Corporate Scam, which cause a huge loss to not only the investors, but also shake the public in large, thereby the company law legislatures have made rules for the protection of minority in the cases of Oppression and Mismanagement. 

Bibliography and References

http://www.legalservicesindia.com/article/1534/Minority-Rights-on-Oppression-and-Mismanagement-Under-Companies-Act,-1956-And-Companies-Bill,-2011.html#:~:text=Companies%20Act%2C%201956%20defines%20few,in%20the%20case%20of%20oppression.

https://www.mca.gov.in/MinistryV2/minority+interests.html

https://cleartax.in/s/opression-mismanagement

https://taxguru.in/corporate-law/minority-victim-protected-prevention-oppression-mis-management.html

https://blog.ipleaders.in/prevention-of-oppression-and-mismanagement/

https://www.indiafilings.com/learn/company-law-majority-rule-and-minority-rights/

https://legex.in/blog/minority-shareholder-protection-in-the-context-of-oppression-and-mismanagement

https://lawcorner.in/minority-shareholders-remedies-against-oppression-and-mismanagement/

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Written by- Aashi Narayan

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India Resists the Rise of Money Laundering Cases and Economic Scams With Its Legal Provisions 

Articles ,

Introduction

In the rat race to earn more and more money, few resort to unethical or illegal activities for financial gain. To give legality to their money obtained illegally different techniques are used and money laundering is one. Money laundering is an offence wherein an individual or establishment is involved in transfer of illegal funds through complex channels to give it a legal appearance. The finances pass through various phases of conversions and transfers to reach a legally accepted institution. Illegal money is disguised as legal money as such amounts are usually obtained by illegal means like corruption, fraud, cheating, tax evasion, etc. Till date around 4954 warrants are issued, 45 accused are convicted for money laundering and a total of 15623.665 crores has been confiscated by the Directorate of Enforcement in India[1].

Forms of money laundering

  • Structuring, also referred as smurfing
  • Cash-intensive businesses
  • Bulk cash smuggling
  • Trade-based laundering
  • Shell companies
  • Round tripping
  • Gambling
  • Black salaries
  • Tax amnesties
  • Transaction laundering

Steps Taken by Government of India to Prevent Money Laundering

Criminal Law Amendment Ordinance (XXXVIII of 1944) covers proceeds of specific wrongdoings such corruption, breach of trust and cheating.

The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 covers punishment of unlawfully procured properties of runners and unfamiliar trade controllers and for issues associated therewith and coincidental thereto.

Narcotic Drugs and Psychotropic Substances Act, 1985 accommodates the punishment of property derived from, or used in illegal traffic in narcotic drugs.

Financial Intelligence Unit-IND, is an independent body reporting directly to the Economic Intelligence Council (EIC) headed by the Finance Minister.

Enforcement Directorate (ED), is a law enforcement agency and economic intelligence agency liable for upholding monetary regulations and battling monetary wrongdoing in India. One of the primary elements of ED is to Examine offenses of illegal tax avoidance under the arrangements of money laundering under the provisions of Prevention of Money Laundering Act, 2002. It can make moves like seizure of property if the same is determined to be proceeds of crime derived from a Scheduled Offence under PMLA and to prosecute the persons engaged in the offence of money laundering

Prevention of Money Laundering Act (PMLA)

The Prevention of Money Laundering Act, 2002 provides a comprehensive legal framework to investigate, prosecute and prevent money laundering, making it a powerful weapon against individuals and entities engaged in the unlawful process of money laundering. Indian legal system has witnessed a series of pivotal judicial decisions in 2023, that bring clarity and precision to the nuanced facets of money laundering and the PMLA.

Through Prevention of Money Laundering (Amendment) Act, 2012, the concept of reporting entity which would incorporate a banking company, financial institution, intermediary, etc., has been added. The 2002 Act had set a maximum fine of 5 lakhs for economic fraud, but the amendment has removed the limit. It contains a provision for the provisional attachment and confiscation of any individual involved in such illegal activities.

  • Vivo case

In July 2022, the ED raided Vivo in relation to money laundering offences. The ED alleged that Rs 62,476 crore was illegally transferred by Vivo to China to avoid payment of taxes in India. According to the ED, these transfers were made to show losses and avoid paying taxes in India.

Recently ED arrested four persons in connection with a money laundering probe against smartphone maker Vivo. In its remand application, the ED alleged that the accused had cheated the government by entering India in a “disguised and fraudulent manner to set up an elaborate Chinese-controlled network throughout the country, carrying out activities prejudicial to the economic sovereignty of India”[2]. Hari Om Rai, MD of Lava International Company, Chinese national Andrew Kuang, and chartered accountants Nitin Garg and Rajan Malik are the four persons arrested. They were charged with criminal conspiracy, cheating, using forged documents and money laundering. The accused were sent to ED custody for 3 days by Additional Sessions Judge Devender Kumar Jangala. 

ED blamed the four for covering Chinese command over Indian elements from the government of India. The Chinese control of the organization was uncovered through the [email protected], which China had given to its Vivo representatives. An organization called GPICPL was made to lead fraudulent exercises, according to the organization. GPICPL however not answered to be an auxiliary of Vivo in true records, projects itself openly to be an auxiliary of Vivo. The ED claimed infringement of FDI standards by Vivo from 2014 to 2018 and found out during its examination that settlements over Rs 1 lakh crore were supposedly moved out of India to Trading Organizations so that Vivo couldn’t be seen by the government of India. Zero profits were displayed from 2014 to 2020 and no annual taxes were paid in India by vivo. ED entered the test following a grievance by the Corporate Affairs Ministry charging that GPICPL and its investors utilized ‘forged’ identification proof records and false locations at the hour of its incorporation in 2014.

·       The National Herald case

In the year 2022, congress president Sonia Gandhi and party leader Rahul Gandhi along with others, were accused of financial irregularities under the PMLA. In 2012, a complaint was filed before the trial court by BJP leader and advocate Subramanian Swamy, that few leaders of the Congress party were involved in some fraud and breach of trust in the acquisition of Association Journals Ltd. by Young Indian Ltd. (YIL) and that YIL took over the assets of the National Herald in a malicious way. Rahul Gandhi and Sonia Gandhi were summoned by the ED in a probe in relation to this case and the ED is still carrying out investigation in this case.

·       Emta Coal Limited & others v. The Deputy Director of Enforcement

An FIR was lodged against the petitioner (Emta Coal Limited & Ors.) along with the West Bengal State Electricity Board and West Bengal Power Development Corporation Ltd. based on discrepancies in the allocation of captive coal blocks. The FIR was filed under sections 120-B IPC read with Section 420 of the IPC and section 13(2) read with section 13(1)(d) of the PC Act. Subsequently, an ECIR was also lodged against the petitioner and other accused. A provisional attachment order was passed under section 5 of the PMLA, while the CBI had filed a closure report regarding the FIR against petitioner. The closure report essentially formed the basis of the ongoing money laundering proceedings, including the attachment order. The petitioner argued that since the CBI had filed a closure report, the money laundering proceeding couldn’t continue, as no scheduled case was established and relied on the Vijay Madan Lal Chaudhary v. Union of India case[3]. Court ruled that trial court had concluded, that the closure report should be accepted since no criminality could be ascertained due to the unavailability of documents. Based on the settled legal position established in the Vijay Madan Lal Choudhary case and subsequent decisions and orders, the court held that the impugned attachment orders and ECIRs should be quashed.

·       ED v. Aditya Tripathi

Aditya Tripathi was charged under sections 120-B, 420, 468, and 471 of the IPC, Section 66 of the Information Technology Act, 2000, and section 7(c) read with section 13(2) of the PC Act in the FIR lodged against them by the economic offense wing of Bhopal, Madhya Pradesh. The economic offense wing investigated and filed a charge sheet before the competent court. Based on the charge sheet, the Enforcement Directorate, Hyderabad initiated a money laundering investigation. During investigation, the respondent was arrested and later the High Court released him on bail on the grounds that the charge sheet had already been filed in relation to the predicate offense. The said bail order was challenged on appeal. Court held that Investigations for predicate offenses and investigations for scheduled offenses under the PMLA are distinct and separate. The mere fact that a charge sheet may have been filed for the predicate offenses cannot serve as a basis for releasing the accused on bail in connection with scheduled offenses under the PMLA. High Court’s consideration was held to be irrelevant. The High Court neither accounted for the severity of section 45 of the PMLA nor weighed the gravity of the alleged offenses for the scheduled offenses under the PMLA. Additionally, the High Court failed to recognize that the ED’s investigation for the scheduled offenses under the PMLA was ongoing. The impugned orders issued by the High Court granting bail to the respondent are unsustainable and matters need to be remitted back to the High Court for a fresh decision on the bail applications, considering the observations made[4].

Conclusion

Courts ruling maintain the standards of equity and decency despite monetary intricacies and underline the significance of the PMLA in the battle against money laundering. The two main drivers of financial scams and money laundering cases are corruption and greed. Despite the fact that our nation has explicit regulations to resolve this issue, the cases include crores showing that our regulations should be more severe and rapid.

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Written by- K R Bhuvanashri

[1] KEY DETAILS OF PMLA CASES UP TO 31.01.2023 ; enforcementdirectorate.gov.in

[2] CRL.M.C. 7488/2023 & CRL.M.A. 27920/2023

[3] W.P.(C) 3821/2022 and CM APPL. 11325/2022, 37473/2022

[4] CRIMINAL APPEAL NO. 1401 OF 2023

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Burden To Decide On The Rights Regarding Same Sex Marriage Now Resides With Legislators: Supreme Court Of India

Articles , , , , , ,

By-Sushant Kumar Sharma

ABSTRACT:

The burden to decide on the demand of legalizing and recognizing same-sex marriage by the LGBTQIA+ community now resides with the legislators after the Hon’ble Supreme Court’s judgment. The petitioners in the case stressed equality rights for the community and acknowledged the unions of same-sex marriage.

The demand for legal recognition of same-sex marriage goes back to the landmark case of  Navtej Singh Johar v. Union of India, in the said case the Hon’ble Supreme Court of India decriminalized homosexuality. However, the issues related to homosexuality which were going to arise in the coming future were not addressed in the case.

BACKGROUND OF SAME-SEX MARRIAGE:

Before the judgment of  Navtej Singh Johar v. Union of India article 377 of the Indian constitution categorised intercourse between same sex as an “unnatural Offence”. The provision is a Victorian-era law, which survived into the 21st century. Interestingly, about 123 countries around the World have never penalized or decriminalized homosexuality. Currently, 57 countries actively criminalize same-sex relations. [1]

Under Articles 14,15,19 and 21 of the Constitution of India, the Naz Foundation Trust challenged the constitutional validity of section 377 of the Indian Penal Code. The contention was that the understanding of sex according to the provision of IPC was solely for the purpose of procreation which is an inadequate and unjust way to deduce the purpose of sex in modern society. The High Court of Delhi ruled in favour of the petitioners and decriminalized same-sex marriage and the same was reversed by the Supreme Court of India in the year 2013. The Supreme Court of India held that the power to decriminalize same-sex marriage is with the parliament and not with the Court.

The judgment of the Supreme Court of India was later challenged in a fresh writ filed by five individuals of the LGBTQ Community in which a five-judge bench of the Supreme Court partially struck down section 377 of IPC and decriminalized same-sex intercourse.

Section 377 of the Indian Penal Code:

Unnatural offenses —Whoever voluntarily has carnal inter­course against the order of nature with any man, woman, or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[2]

INDIAN HISTORY AND HOMOSEXUALITY:

After the judgment of the Supreme Court decriminalizing same-sex intercourse on September 2018, there were a lot of people objecting it on the basis of it being against the sentiments and culture of Hindus.  But the origin of the criminalization of homosexuality in India is a reflection of European morality arising out of Christianity and by section 377 of the Indian Penal Code of 1861 Britishers criminalized homosexuality.

On the other hand in Hindu scriptures we can find evidence of Hindu religion being more open and accepting about the queers and homosexuality was a normal aspect of our past which was made into a taboo by the Britishers in the colonial period. For instance few instances from Hindu scriptures are mentioned below:

  • Krittivasa Ramayana: Text states that King Dilip had two wives, and he died without leaving an heir. Following this, Lord Shiva appeared in the dreams of the queens and told them that they would bear a child if they made love to each other. The widowed queens did as directed, and one of them got pregnant, eventually giving birth to King Bhagiratha. He is a famous king known to have brought River Ganga from heaven on earth.[3]
  • Matsya Puran: It talks about the time Lord Vishnu transitioned into a beautiful women named “Mohini” to trick the demons and letting the gods drink the amrit.
  • Mahabhartha: The sacred text of Hindu’s contain a story of Sikhandi who was born a women but was raised as a man who later with the help of yaksha to become a man to enter the war.
  • Kamasutra: Chapter nine of Kamasutra by Vatsyayana discusses oral sexual acts, termed Auparashtika, homosexuality, and sexual activities among transgender persons.[4]

OPINIONS OF JUSTICE’S ON THE BENCH:

The bench of 5 judges in a majority of  3:2 ruled against the demand of LGBTQIA+ for wanting rights to adopt and constitutional protection for civil unions. But there were several points where the judges agreed with each other and there were points on which they disagreed.

1. Points where the Judges agreed:

1.1 Anonymously the whole bench agreed that queerness is not solely an urban concept :

CJI Dhananjaya Y Chandrachud Said:

“Homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities. People may be queer regardless of whether they are from villages, small towns, or semi-urban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English-speaking man with a white-collar job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works on a farm in an agricultural community,” 

Justice Kaul Said:

“The non-heterosexual relation is a part of Indian civilization and Justice Kaul also cited illustrations from the Rig Veda, Somdatta’s Kathasaritsagara, and Sufi tradition to prove that the non-heterosexual unions were a part of mankind through history and different cultures”

“It would thus be misconceived to claim that non-heterosexual unions are only a facet of the modern social milieu”

 1.2 Recognition of Same-Sex Marriage is not given under the Special Marriage Act :

CJI Dhananjaya Y Chandrachud Said:

A verdict to strike down the provision of the Special Marriage Act will take India to pre Independence era, the CJI added,  “Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another,”

 Justice Kaul:

In a separate Judgement Justice Kaul agreed on SMA being violative of right to equality, he added “However, I recognize that there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships. As rightly pointed out by the learned Solicitor General, tinkering with the scope of marriage under the SMA can have a cascading effect across these disparate laws,” 

 Justice Bhatt Jointly With Justice Kohli:

They stated that it would be extending the scope of the SMA out of its objective if it was to be read to include same-sex marriage, as the act sought to provide an avenue for those marriages that did not enjoy support in society or did not have the benefit of custom to solemnize.[5]

1.3 Right to Marry is not a Fundamental Right:

Justice Bhat:

“The fundamental importance of marriage remains that it is based on personal preference and confers social status. The importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support… There cannot, for the above reasons, be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom.”

Justice Narshimha:

“There is no unqualified right to marriage guaranteed by the Constitution, that qualifies it as a fundamental freedom.”

  1. Points where Judges Disagreed:

2.1 Everyone has the right to enter a Civil Union:

CJI Dhananjaya Y Chandrachud said:

“The right to enter into a union includes the right to associate with a partner of one’s choice, according to recognition to the association, and ensuring that there is no denial of access to basic goods and services is crucial to achieving the goal of self-development,” 

“A failure to recognise such entitlements would result in systemic discrimination against queer couples,”

 Justice Bhatt:

Justice Bhatt conflicted with the opinion of CJI and Justice Kaul and said “Ordering a social institution” or re-arranging existing social structures, by creating an entirely new kind of parallel framework for non-heterosexual couples, would require a conception of an entirely different code, and a new universe of rights and obligations. This would entail fashioning a regime of state registration, of marriage between non-heterosexual couples; the conditions for a valid matrimonial relationship amongst them, spelling out eligibility conditions, such as minimum age, relationships which fall within prohibited degrees; grounds for divorce, right to maintenance, alimony,”  There was an agreement on justice Bhatt’s opinion by Justice Kohli and justice Narasimha.

Justice Narsimha Said:

“The framing of a positive right and the positive entitlements which flow therefrom, essentially require the State to regulate such unions and benefits. In my opinion, the direction in effect, is to amend existing statutory frameworks, if not to legislate afresh,”

 2.2 Regarding queer adopting rights:

CJI Dhananjaya Y Chandrachud said:

“Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution”, Justice Kaul agreed with CJI on this stand.

Justice Bhatt:

Justice Bhatt on the other hand believed that both parents are required for good parenting and stated “To read the law in the manner adopted by the Chief Justice, with all due respect, would have disastrous outcomes, because the ecosystem of law as it exists, would be unable to guarantee protection to the said child in the case of breakdown of an unmarried couple, adopting jointly. This, therefore, would not be in the best interest of the child,”  

Justice Narsimha in a separate judgment greed with Justice Bhatt regarding the constitutionality of the CARA Regulations of 2020.

KEY TAKEAWAYS :

– The 3-2 majority in the five-judge constitutional bench of the Hon’ble Supreme Court rules that there cannot be legal recognition of same-sex marriages in India.

– The petitioners during the hearings argued for the equality rights of the LGBTQIA+ community and pleaded for acknowledgment to lead a dignified life.

– The court held that the queer community of India cannot be legally married under the provisions of the Special Marriage Act, of 1956.

– The court also refused to grant adoption rights for the LGBTQIA community while Chief Justice D.Y Chandrachud held a dissenting opinion.

– The final declaration of the Supreme Court was that the Parliament should decide on the issues regarding the under-inclusivity of the LGBTQIA+ community in the legislation

 

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[1] Dr. Akkai Padmashali and Ors. v. Union of India, W.P. No. 159 of 2023

[2] The Indian Penal Code, 1860, No.45, Acts of Parliament, 1860

[3] Deepanshi Mehrotra, The Pre-Colonial History of Homosexuality in India : Why love is not western, LAWCTOPUS (June 29,2021),

[4] Supra

[5] Utkarsh Anand, Same-sex marriage verdict: Points of agreement, divergence between the 5 Supreme Court Justices, HINDUSTAN TIMES (Oct 18, 2023)

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 Authorship of AI generated content in the light of Law: Challenges & Opportunities.

Articles

Introduction

We are living in 21st century, as we all know this is the time of technology. We can also say that we are living in the era Artificial Intelligence (AI). We cannot deny that we are progressing in all the horizon of innovation and development, but telling this will not be wrong we are progressing in the field of technology and AI very exponentially. AI is helping us in every sphere of the life in all manners and one of those use is to create our ideas. We are taking help of AI to create our content, to make it more specific, more useful, very much effective in every manner. While creating the contents with help of Artificial Intelligence (AI) the question of authorship arises. AI generates the contents with the help of data stored in it and according to the programing has been done. The question is who will be the original author of the content generated by with the help of Artificial Intelligence (AI) under the provision of Copy Right Act, of India. According to the Copy Right Act OF India, 1957, only the natural person can be the real Author of any creation.

The challenges in defining the authorship of contents generated by AI.

The most confusing and critical question in the Copy Right Act, 1957, regarding the contents created by the AI is relating to the authorship of contents, who will take the responsibility of the contents created with the help of AI, what are the negative and positive consequences of the contents created by the AI. When we talk about the old way of creating contents, in this manner the creator of any content creates his/her contents with the sole creativity of himself/herself without taking help of AI. The creator in the traditional way of creating any creation or masterpiece remain natural person. While we take the help of AI tools to create our contents to make the creation more specific and more affective, the AI tools help us according to the algorithm programed for AI and the data stored by programmer into the AI to function. When we start taking help of AI to generate contents the AI start according to the programing and give the information related to our question or queries from the data stored in it by the programmer. As we talk about the authorship that means the creator has the control upon his creation while taking help of AI tools to generate the contents the author has to totally depend upon the programing and algorithm and data installed in AI. The natural persons are using AI as per their need ant get the results accordingly that’s where the question of Authorship arises. In the year of 1994, Section 2(d)(v) introduced or added in the Act. According to the new Section 2(d)(v) of the Act, the computer generated work has given the validity of authorship but the natural person who is generating or creating the contents with the help of AI tools will be the author of the contents and will be accountable and take the responsibility of the contents.

Opportunities in the AI generated Contents

In today’s time as we all know people are getting help of AI tools to improve their work and AI has been proved an authenticate and reliable tools and helping hands in creating the varieties of work and arts. Lawyers are using AI in making their legal deeds more specific and very much affective and those works are accepted by the professionals and systems. Tutors are taking help of AI to gather relevant information with the subject fields to tech and enhance their career also to make it easy to elaborate to the students. AI has the capacity to generate millions of information in very short duration of time and the information are very authentic ad the people can rely upon them, AI has extend the horizon of information.

The legal perspective of AI generated contents.

As per the need of the time, the most important thing is to set the legal framework of AI generated contents to save the copy right issue of the contents. The authorship, accountability, responsibility should come under the domain of this legal frame work. There must be ethnicity in generating the contents with the help of AI, and one should take the responsibility of the contents and the program should not be biased.

Related cases

1. In the recent case of CBSE claiming the right of authorship of question papers generated by the AI, The Hon’ble Delhi High Court held that the authorship can only be claimed and attributed only to the natural person. The authorship cannot be claimed without the involvement of natural person.

2. In the case of Anil Kapoor v. Simply Life India, the Hon’ble Court held that using generative AI to portray famous personality in fictional scenarios violates their personality rights.

According to the Section 52 of the Copy Right Act, 1957.

Certain acts shall not constitute an infringement of copy right

(a) A fair dealing with ay work, not being a computer program, for the purpose of-

(i) Private or personal use , including research;

(ii) Criticism or review, whether of that work or any other work;

(iii) The reporting of current events and current affairs, including the reporting of lecture delivered in public, etc.

Conclusion

In India the authorship of the arts and any kind of work is dealt under the Copy Right Act, 1957. According to the act the authorship will be given only to natural person and if the creation has been created with the help of computer the authorship should be given only if the involvement of natural person is there and in such circumstances the authorship will be given to the natural person who has created the contents with the help of computer.

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

Written by: Aamir Hussain.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Laws Governing Transactional Processing

Articles

The evolution of transactional processing is the outcome of the measured road maps that the Reserve Bank of India (“RBI”) has regularly adopted, acting as a developer, catalyst and a facilitator from the early years. Over the last two decades, payment systems in India have advanced significantly, from the barter system to the Unified Payments Interface.

Laws relating to Transactional Processing are divided into two broad categories, domestic and cross border. Under domestic leg comes the guidelines with respect to Payment Aggregators (“PAs”) and Payment Gateways (“PGs”) followed by the Cross-border compliances involving processing and settlement of import and export related payments facilitated by Online Payment Gateway Service Providers (“OPGSP”) and processing and settlement of small value export and import related payments facilitated by Online Export-Import Facilitators (“OEIF”). This article aims to provide a broad overview of the legal framework governing the transactional processing.

2009 DIRECTIONS

Considering the increase in electronic/ online payments to merchants, RBI for the first time in 2009 had introduced Directions for opening and operation of Accounts and Settlements of payments for electronic payment transactions involving intermediaries. RBI had recognised the issue of funds being transferred in the accounts of intermediaries before the funds were getting transferred in the accounts of merchants. It also recognised that any delay made by the intermediaries to transfer the fund to the merchants would not only affect the rights of the merchants but also the payment space.

2019 DISCUSSION PAPER

The 2019 discussion paper on regulatory options recommended by the RBI suggests a few regulatory ideas for regulating the actions conducted by PAs and PGs based on the current payment ecosystem. 

 Key Highlights of the 2019 Discussion Paper:

  1. Authorisation/Licensing: Non-banking PAs and PGs shall require authorisation from RBI under PSSA.
  2. Capital Requirements: Entities shall have a minimum net-worth of ₹100 crores to be maintained at all means.
  3. Governance and Dispute Management Framework: Promoters of the PAs and PGs entities would need to satisfy the fit and proper criteria prescribed by RBI and such entities shall have board approved policies to handle customer complaints/ grievances, the escalation matrix for disposal of complaints and turn-around-times for complaint resolution.
  4. Safeguards against Money Laundering Provisions: The Know Your Customer (“KYC”) / An-Money Laundering (“AML”) / Combating Financing of Terrorism (“CFT”) guidelines shall apply mutatis mutandis to all the PAs and PGs.

2022 DRAFT GUIDELINES

To simplify and rationalise the payment settlement process for import/ export through e-commerce, on April 7, 2022, the RBI released the draft guidelines on OEIFs (“Draft Guidelines”). The Draft Guidelines are intended to replace the existing guidelines for OPGSPs dated September 24, 2015. (“Existing Guidelines”)

PAYPAL PAYMENTS PRIVATE LIMITED v. FINANCIAL INTELLIGENCE UNIT INDIA

PayPal argued that it is only a facilitator platform which conducts two types of transactions, foreign and domestic. According to their arguments PayPal merely provides a facilitator platform and charges a nominal fee for each of the transactions. No foreign exchange is actually collected or paid by the Petitioner platform. RBI took a stand that PayPal is not operating or participating in a payment system, and the PSSA does not apply to the Petitioner.

FIU’s Submissions contended that reading of the definitions of “payment system”, “payment system operator” and “reporting entity” under sections 2(1) (rb), 2(1) (rc) and 2(1) (wa) of the Act, clearly shows that PayPal forms a part of the said definitions provided.

The Court directed PayPal to register itself as a “reporting entity” with FIU-IND as well as to appoint a Principal Officer and communicate the name, designation and address within a period of fifteen days. Further, the court imposed a penalty amounting to INR 96 Lakhs on the Petitioner due to being found as guilty of violations under the provisions of the Act

CONCLUSION

RBI over the period of years right from 2009 has come up has evolved its legislative framework combating the requirements of the society. The implementation of guidelines such as Tokenisation which is due from September 2022, the PayPal case will give us a better idea with respect to pending interpretations in transactional processing. The comments and further implementations of the OEIF draft will further give a better perspective in functioning of the cross-border transactions.

References

https://www.rbi.org.in/scripts/bs_viewcontent.aspx?Id=4118

https://rbi.org.in/Scripts/BS_CircularIndexDisplay.aspx?Id=5379

https://rbidocs.rbi.org.in/rdocs/Notification/PDFs/DOIPS241109.pdf

https://www.rbi.org.in/scripts/NotificationUser.aspx?Mode=0

https://rbidocs.rbi.org.in/rdocs/Notification/PDFs/DOIPS241109.pdf

https://www.rbi.org.in/scripts/PublicationReportDetails.aspx?ID=943

https://www.azbpartners.com/bank/new-guidelines-for-processing-digital-payments-in-e-commerce

https://indiankanoon.org/doc/192502277

https://www.rbi.org.in/Scripts/BS_CircularIndexDisplay.aspx?Id=12050

https://m.rbi.org.in/scripts/FS_Notification.aspx?Id=11449

https://rbi.org.in/Scripts/BS_CircularIndexDisplay.aspx?Id=5379

https://www.mondaq.com/india/fin-tech/914612/fintech-laws-in-india–a-primer

https://www.rbi.org.in/scripts/NotificationUser.aspx?Mode=0

https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=11822

“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- Aashi Narayan

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