From Shakespeare to Sushant: The truth is often found in shades of grey.

Innocent until proven guilty, or guilty until proven innocent? 

As the Hon’ble Bombay High Court advised media to practice restraint while covering Sushant Singh Rajput’s Death Case, I began wondering: are we really living in the rule of law our forefathers envisioned? This form of media vigilantism, sensationalising the case and creating a public outcry, which in the process subverts, or at least undermines, the due processes of the legal system cannot be what the champions of freedom of speech fathom when they advocate for an unrestrained media. 

I am reminded of a scene from Shakespeare's Julius Caesar. The scene is one where Antony delivers his speech that is revered even today: “Friends, Romans, countrymen, lend me your ears; I come to bury Caesar, not to praise him…” After Antony’s speech, the blood-thirsty mob, which until now was clueless as to who killed Ceaser and why, takes matters into its own hands. That’s the typical mob. Once something happens, it needs to know why it happened and who was responsible. The mob does not have a mind of its own and its memory is short-lived. Isn’t this what we witness in all media trials?  

Source: https://www.teacherspayteachers.com/Product/The-Art-of-Persuasion-Rhetoric-in-Mark-Antonys-Speech-3203827

Though Antonio didn’t lie about the intentions of Ceaser’s brutal assassination, the mob, nevertheless, didn’t care for a verification. Any piece of information was enough to rile them up. It is these emotions that drive the public actions after every crime. They need to know who did it and they need to know it asap. They have no means to verify if the story being told to them is indeed representative of the whole picture or even, the true picture. Be it the Vikas Dubey encounter, or Telangana shooting of the alleged rapists, we often see little wisdom in the mob’s sentiment and yet it is this sentiment which gives media the direction for framing its narratives. And this is why we are no stranger to the sight of media persons demanding an entry into the accused’s premises and asserting it as if it were their right; or shoving their mics into their noses as they step out of the house, accessing personal chats between two persons and publishing them without knowledge of the original context, often leaving the viewer to read it in the context of the crime committed, and so on. The job of media is to provide information where it is due. Investigative-journalism is great as long as it does not turn into plainly ‘accusatory-journalism’.

So, isn’t it high time that the media be prohibited from ‘deciding’ the culpability in an ongoing investigation or trial? Though the party has the option to seek injunction, restraining all media outlets from tarnishing his/her image, should there not be a blanket regulation prohibiting such behaviour per se, and penalizing for its violation? Press is the fourth pillar of democracy, but wouldn’t stretching one pillar longer than the other make the whole building tumble, and eventually collapse? And this is not to discredit the fantastic job the media has done over the years, sometimes to even unearth the facts that would have otherwise been lost, but it should be called out when it exceeds its domain and indulges in a brazen mockery of the rule of law. 

Let us now look at some of the famous media-trials in the history of India, and see what the Hon’ble Courts observed:

1. KM Nanavati v/s State of Bombay: Responsible for ending the jury system in India, this sensational case has been the topic of various dramatic adaptations, and rightly so. This case is a classic example of how the media garnered sympathy for an accused whom the court eventually found guilty of murder, and the same wave of emotions impacted the jury. Though a judge is trained to be not swayed by such attempts to influence his conscience and better judgment, the jury could do a little to help itself. The story of a man, in love with his wife, who killed another man who dared bat an eye upon his wife and take advantage of his long absences spoke to the masses more than any rule of law, and the media had a pivotal role in it. The print media in those days highlighted as to how when a decorated naval officer was serving the nation, his friend was making acquaintance with his wife, and upon finding out about their affair, the officer killed the man to protect his honour, and to uphold the love he had for his wife. The jury’s eventual acquittal of Nanavati had more to do with the justifications Nanavati’s acts that the media was feeding them than on any legal ground. KM Nanavati was eventually convicted by the Court but obtained a pardon from the then President of India.
2. Dr. (Smt.) Nupur Talwar v/s State Of U.P. and Another (Arushi Murder Case): This should be fresh in all our memories as it isn’t as old as the Nanavati Case. The mystery of a girl, killed in her own room, with no signs of forced entry, and later on discovery of the dead body of the servant shook the nation, and it was this mystery and the need to solve it that the media banked upon and launched its own parallel investigation. We also saw the main accused in the media trial: the father of the girl being convicted and later being acquitted by the Hon’ble Allahabad High Court due to lack of evidence, something perceived as a major victory against the media trial that had ensued ever since that fateful night. In dismissing the trial court verdict, the Hon’ble High Court had given the following word of caution: “Pointer is that the trial Judge should evaluate evidence in its existing form, should not tinge it with his passionate reasoning so as to give a different construction than the one which is naturally reflected and forthcoming. Caution enjoins on the trial Judge that he should exercise self-restraint from deliberately twisting facts in arbitrary manner and should refrain from recording finding on strength of wrong premise by virulent and meandering reasoning. The entire judgment is on the whole creation of fanciful reasoning with pick and choose presuming facts with indomitable obstinancy and taking things for granted, thus, basing conclusion on unfounded evidence. The trial Judge is supposed to be fair and transparent and should act as a man of ordinary prudence and he should not stretch his imagination to infinity - rendering the whole exercise mockery of law.”
3. Court on Its Own Motion v/s State, on 14 December, 2007: Famously called the fake string operation case, this case is a glaring example of media desperation. Herein, Ms. Uma Khurana, a Delhi school teacher was caught on camera, set-up as a part of a sting operation upon her, purportedly forcing a girl student into prostitution. Subsequent to its telecast, a crowd gathered at the school gate and started raising slogans demanding handing over of Ms. Uma Khurana to them. In the commotion and mayhem that followed, some persons physically attacked her and even tore her clothes. She was later dismissed from her service. But after investigation it was found that the girl who had been shown as a student who was allegedly being forced into prostitution by Ms. Uma Khurana was neither a school girl nor a prostitute but, in the words of the Hon’ble Delhi High Court, “..a budding journalist eager to make a name in the media world’, and was staged on account of a rivalry.” The Hon’ble Court observed: “The duty of the press as the fourth pillar of democracy is immense. It has great power and with it comes increasing amounts of responsibility. No doubt the media is well within its rightful domain when it seeks to use tools of investigative journalism to bring us face to face with the ugly underbelly of the society. However, it is not permissible for the media to entice and try to actively induce an individual into committing an offence which otherwise he is not known and likely to commit. In such cases there is no predisposition. If one were to look into our mythology even a sage like Vishwamitra succumbed to the enchantment of "Maneka". It would be stating the obvious that the Media is not to test individuals by putting them through what one might call the "inducement test" and portray it as a scoop that has uncovered a hidden or concealed truth. In such cases the individual may as well claim that the person offering inducement is equally guilty and a party to the crime, that he/she is being accused of. This would infringe upon the individual's right to privacy.” The Hon’ble Court enlisted certain proposed guidelines and observed that proposed guidelines should be considered by the concerned Ministry and if they find favour, they may be incorporated in the enactment/guidelines, with modifications as deemed fit and proper.
4. Nuzhat Perween v/s State of U.P. and Another: Also known as Dr. Kafeel Khan Case. Dr. Khan was arrested and detained from Mumbai earlier this year, for allegedly giving a provocative speech at the Aligarh Muslim University, amidst the anti-CAA protests, and NSA was slapped on him. In the judgment passed earlier this week, The Hon’ble Allahabad High Court held that prima facie, the speech is not such that a reasonable man could have arrive at a conclusion as the inference drawn by the District Magistrate, Aligarh, who passed the detention order against Dr. Khan. The Court observed: “The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent.” Thus, in absence of any "causal link" between the Act and the detention order, the Court acquitted Dr. Khan. But this came after months of media trial and coverage, repeatedly playing only excerpts of his speech, and indicating that he’s guilty.
5. Zahira Habibullah Sheikh v/s State of Gujarat: The Gujrat Riots were again, highly covered in the media, and several books have been written upon it. This case is of Zahira, who turned into a hostile witness citing external threats to her. In this case, the Hon’ble Supreme Court, opining on a fair trial explained that a “fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.” This, needless to say, is in total contrast to what happens in a media trial. In Zahira’s case, she was sentenced for turning hostile, despite the media sentiment supporting her turning hostile due to external threats she cited.
6. Kartongen Kemi Och Forvaltning AB and Ors. v/s State through CBI: is a case dealing with the alleged Bofors Scam. This was highly publicized in the media and they suggested their own conclusions although they didn’t have any access to the actual official documents. Upon the media sensationalization of the case with active involvement of the CBI, the Hon’ble Court observed: “It is said and to great extent correctly that through media publicity those who know about the incident may come forward with information, it prevents perjury by placing witnesses under public gaze and it reduces crime through the public expression of disapproval for crime and last but not the least it promotes the public discussion of important issues. All this is done in the interest of freedom of communication and right of information little realizing that right to a fair trial is equally valuable.” The Hon’ble Court also discouraged the practice of the authorities aiding media trial and observed: “Latest trend of police or CBI or Investigating Agency encouraging publicity by holding press conference and accompanying journalists and television crew during investigation of a crime needs to be stopped as it creates risk of prejudice to the accused. After hogging publicity and holding the person guilty in the eyes of public, police and CBI go into porific slumber and take years in filing the charge sheet and thereafter several years are taken in the trial.”
7. State of Maharashtra v/s Rajendra Jawanmal Gandhi: This case concerned the rape of a minor girl, and saw huge media coverage, public outcry, and demands of taking the accused person’s life. The Hon’ble Supreme Court observed: “There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law.” This judgment captures the very essence of the follies of a media trial where Hon’ble Justice HR Khanna says: “Certain aspects of a case are so much highlighted by the press that the publicity gives rise to strong public emotions. The inevitable effect of that is to prejudice the case of one party or the other for a fair trial. We must consider the question as to what extent are restraints necessary and have to be exercised by the press with a view to preserving the purity of judicial process. At the same time, we have to guard against another danger. A person cannot, as I said speaking for a Full Bench of the Delhi High Court in 1969, by starting some kind of judicial proceedings in respect of matter of vital public importance stifle all public discussions of that matter on pain of contempt of court. A line to balance the whole thing has to be drawn at some point. It also seems necessary in exercising the power of contempt of court or legislature vis-à-vis the press that no hyper-sensitivity is shown and due account is taken of the proper functioning of a free press in a democratic society. This is vital for ensuring the health of democracy. At the same time the press must also keep in view its responsibility and see that nothing is done as may bring the courts or the legislature into disrepute and make the people lose faith in these institutions.”

The idiot-box, which our parents told us to be weary of while growing up has, for good or bad taken various forms now. It now at times glares at you via your 6-inch screen that you carry with you on the bus, and into your beds. The information spreads like wildfire now, and so does mis-information. And, does anyone really know of an accused’s culpability before the trial? 

Ice, ice, baby!

Two major developments happened yesterday and most likely where one would have dominated your news feed, the other wouldn’t have caught your eye. In what appears to be a series of setbacks to BJP, it seems that Hemant Soren, a symbol of Jharkhand’s indigenous tribal culture will most likely become their Chief Minister. But our tribal brethren in far north-east don’t seem all that happy. Although nation-wide opposition to the CAA and NRC caught every eye in the past week, it still is no answer to Assam’s concern regarding the law. In what comes as a band-aid on its wounds, the State government of Assam announced that it will make Assamese the official language of Assam, apparently telling its people that they need not worry about dilution of their culture and heritage. 

Though this in no way addresses the magnitude of their concerns, and even as an assurance, it is a tiny one, this is not where the story ends. The compulsion to study assamese in school and use it as the official language will not apply throughout Assam. A certain region of the ethno-linguistic Bodo group, BTAD (Bodoland Territorial Administrative Districts), Barak Valley and Hills districts of Assam have been excluded, to avoid angering the Bodo group and Bengali-speaking community in these areas. As per the 2011 Census, roughly 29% of the population of Assam is Bengali speaking, out of which, around 31% are Hindus who will most likely become Indian citizens post implementation of CAA. Juggling at its best? But, can the State Government deliver on its promise? Articles 345, 346 and 347 of the Constitution of India empower the state legislature to adopt one or more languages as its official language, which it can even use for communication with the Centre provided, the Centre authorizes the same. But here’s the catch: never before have we seen a language being declared as an official language only in some parts of a State. There’s nothing in the above-mentioned Articles authorizing such a law. So, for the Assam Government to deliver on its promise, the Parliament will have to amend one of Articles 345-347 and make way for the state governments to declare a language as an official language in chosen parts of the state and exclude the other areas of the State. Looking at the present scenario, there is hardly any doubt in my mind that the Parliament will give its nod to amend the Constitution on these lines. It is arguably a risky model which, if followed widely, will contribute to further inefficiency in administrative matters. Oh, how will a poor Bengali-speaking babu in Barak valley comprehend the communication sent from Dispur! But the bigger question for you is, will the assamese people take this bait?

A FULCRUM OF POSSIBILITIES AND PREDICAMENTS: DISSECTING THE ARBITRATION AND CONCILIATION AMENDMENT ACT, 2019

Abstract

The article is an attempt to comprehensively discuss the amendment introduced in 2019 to the Arbitration and Conciliation Act, 1996. The amendment is fairly new and not much material is available on the same., which is why it is discussed at length. The article also attempts to analyze the implications of some of the changes introduced by it. As the discussion progresses, it is realized that though the intention was very progressive and laudable, some of the changes bring in more confusion, instability and rigidity into the picture. Lastly, it is hoped that the Courts will harmonize those changes and make way for the amendment to realize its true purpose of making India a global hub of international commercial arbitration. 

Introduction

“India should not accept imperialism in the field of arbitration…We want India to become a hub of international arbitration.”

~Law Minister, Sh. Ravi Shankar Prasad during a debate on the Arbitration Amendment Act, 2019.

The President of India gave his assent to the Arbitration Amendment Act, 2019 on 9^th August, 2019[1] which comes almost four years after the 2015 Amendment to Arbitration and Conciliation Act, 1996 which was introduced with an intention to put India on the global map of international arbitration and give rest to the Bhatia-Balco conundrum[2]. The 2019 Amendment has been introduced to fill in the gaps left by the previous amendment in its ambitious objectives. In providing for a skilled and specialized workforce, the Amendment Act, 2019 takes a big leap and lays down the groundwork for introducing an Arbitral Council of India. It also provides for the grading of Arbitral Institutions, accreditation and qualification of arbitrators, non-retrospectivity of the 2015 Amendment, limited scrutiny and confidentiality of Awards, and a more realistic timeline, among various other things. But all its ambitions come with problems which are predictably going to be the center of major concern, and we take a look how.

Background

The Amendment Act is largely based on the recommendations of the High-Level Committee Report[3] dated 30^th July, 2017 under the chairmanship of Justice B.N. Srikrishna, which had recommended setting up of an Arbitral Council to review the development of arbitration law and its practice in India. However, certain departures from the Committee Report have also been made. These include minor changes in the qualifications of members of the Arbitral Council of India (Hereinafter referred to as “ACI”) and vesting broad powers in the ACI to frame its own regulations. The Amendment also comes in light of our long-standing vision to establish India as the hub of international commercial arbitration.

Key changes

Arbitral Institution

According to the newly inserted section 2(ca), the High Court(s) as well as the Hon’ble Supreme Court of India can designate an institution as an arbitral institution under the Act. The newly inserted clause 3A of section 11 clarifies this position further by providing that the High Court(s) and the Hon’ble Supreme Court of India can do so, from time to time for the institutions which have been graded by the Arbitration Council of India, a body introduced by this Amendment which we shall be looking at in depth later on. It further provides that in case such gradation is not available in the jurisdiction of a particular High Court, then the Hon’ble Chief Justice of the concerned High Court can maintain a panel of arbitrators for discharging the functions and duties of the arbitral institution, which he can review from time to time. It is pertinent to note that the section does not cast a mandatory duty on the Chief Justice of a High Court to maintain such a panel as it is qualified by the word ‘may’.

Apart from deleting clauses 6A, 7 and 10 of Section 11, clauses 4, 5, 6, 8 and 9 of section 11 now provide that in case a party wants to get one or more arbitrator appointed by the Court, it can do so by making an application to the arbitral institution designated by the Supreme Court or the concerned High Court depending on whether it’s for an international commercial arbitration or domestic arbitration respectively, and the arbitral institution will appoint the arbitrator(s) now, instead of the Hon’ble Courts. This step will reduce the burden on the Courts and introduce more expertise and thus swiftness in the appointment procedure.

Also, clauses 11 to 14 of section 11 provide that in case more than one requests have been made to more than one arbitral institution then only the arbitral institution to whom the request was made first will entertain it. To increase speedy disposal, the arbitral institution is obligated to dispose off the application for appointment of arbitrator within 30 days from the date of service of notice on the opposite party. Lastly, where the parties have not agreed upon the fees of the arbitral tribunal in an arbitration other than an international commercial arbitration, it’s the arbitral tribunal which determines the fees of the tribunal, subject to the rates specified in the fourth schedule.

Section 43I provides that Arbitral Institutions are graded on 5 criterions: (1) Infrastructure, (2) Quality of arbitrators. (3) caliber of arbitrators, (4) Performance, and (5) compliance of time limits for disposal of domestic or international commercial arbitrations.

Arbitration Council of India

The most prominent change introduced by the amendment is the insertion of Part IA comprising of sections 43A to 43M. It deals exhaustively with Arbitration Council of India.

·      Nature and Powers: It shall be established by the Central Government by a notification in the Official Gazette and will be in the nature of a body corporate which can have perpetual succession, common seal and the power to acquire and hold property. It can also enter into a contract in its own name and can sue and be sued. The head office shall be in Delhi can other offices can be established at other placed with the prior approval of the Central Government. There shall also be a Secretariat to the council whose composition and powers will be determined by the Central Government.

·      Members: The Amendment Act provides that there shall be 7 members in the Council including the Chairperson. A person who has been a Judge of the Supreme Court or High Court or the Chief Justice of a High Court or an eminent person with special knowledge and experience relating to arbitration can be appointed as the Chairperson of the Council by the Central Government in consultation with the Chief Justice of India. The Central Government will also name an eminent arbitration practitioner having substantial knowledge and experience relating to international and domestic institutional arbitration as a member. In consultation with the Chairperson, the Central Government will also nominate an eminent academician with experience in research and teaching relating to arbitration and other forms of alternate dispute resolution. There shall also be three ex-officio members viz, a Joint Secretary or a higher rank official (or his representative) in the Departments of Legal Affairs, Ministry of Law and Justice as well as one in the Department of Expenditure, Ministry of Finance. The third ex officio member will be a Chief Executive Officer-Member-Secretary who shall be responsible for the Council’s day-to-day administration. The seventh member will be a part time member, a representative of a recognized body of commerce and industry, chosen on rotational basis by the Central Government. All the members except for the three ex officio members will hold office for a period of three years or till they attain the age of seventy years (for chairperson) or sixty-seven years for other members), whichever is earlier. The members can be removed by the Central Government and the full-time members (except for the ex officio members) can also resign after notifying the Central Government in writing.

·      Duties and Functions: Section 43D of the Act enlists a host of duties and functions of the Council including promoting, encouraging alternative dispute resolution and framing policies for the same. The most vital duty the council has been entrusted with is the grading of arbitral institutions, accreditation of arbitrators and related ancillary functions which will ensure uniformity in disposal of arbitral matters. Apart from maintaining a repository of arbitral awards, it can also appoint experts and constitute committees.

Qualifications and Experience of Arbitrator

A separate Schedule, the Eighth Schedule has also been inserted which enlists the required qualifications and experience of an Arbitrator. It provides for a broadly phrased list of arbitrators to choose from including advocates, chartered accountant, cost accountant, company secretary, person with technical knowledge and experience etc. It commences with “a person shall not be qualified to be an arbitrator unless..”. implying that it proposes the minimum qualifications, though it pertains to accreditation of arbitrators.

Timelines

As we have already discussed, the time allowed to an arbitral institution to dispose off application for appointment of arbitrator(s) has been set to 30 days from the date of service of notice on the opposite party. Apart from this, quite interestingly, the newly inserted clause 4 in section 23 now provides a time period of 6 months for completion of statement of claim and defence, starting from when the arbitrator(s) received the written notice of appointment.

Clause 1 to section 29A provides that awards in arbitration other than international commercial arbitration shall be made within a period of 6 months from the date of completion of statement of claim and defence. This implies that the arbitration shall be completed within 18 months comprising of 6 months for completion of pleadings and a further 12 months’ period. However, no rigid timeline has been set for international commercial arbitrations and the same timeline as that for domestic arbitration has only been suggested instead of making it mandatory. This, it seems has again been made to cater to the various complexities of international commercial arbitrations and make the timeline flexible as in some cases procuring the witnesses or other relevant evidences might take time. Lastly, where an application for extension of time is pending, the mandate of the arbitrator will continue till the disposal of the said application.

Confidentiality

A new section 42A has been inserted with an overriding effect. It mandates that the arbitral tribunal, the institution as well as the parties shall maintain confidentiality of all arbitral proceedings except for the award and only when the same is required for its enforcement and implementation.

Immunity to Arbitrators

Section 42B provides immunity to Arbitrators for acts done in good faith, which is in line with international standards.

Section 87

The Hon’ble Supreme Court in Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd[4] settled the much-debated position and held that the Arbitration and Concilliation Amendment Act, 2015 will also apply to proceedings filed after 23^rd October, 2015 though the arbitration had commenced prior the effective date. Now, the legislature has statutorily overruled this by inserting section 87 which explicitly declares that the 2015 Amendment will only apply on arbitral proceedings arising after 23^rd October, 2015 and court proceedings related to such arbitrations. It will not apply on court proceeding filed after the aforementioned effective date if it relates to an arbitration that commenced before the said date.

Grant of interim Measures by Tribunal

Though there have been no changes in section 9 of the Act, under section 17 now the Arbitral tribunal can only entertain application for interim measures after its constitution and uptill the award is made. Unlike before, at the stage between making of the award and its enforcement, only the concerned court can entertain application for interim measures under section 9 of the Act since arbitral tribunals become functus officio after the making of the final award.

Limited Scrutiny of Awards

Section 37 and 50 of the A&C Act provide for limited appeals from orders of arbitral tribunals and courts. The Commercial Court Act, 2015 provides for a general right of appeal against the decisions of Commercial Courts and Commercial Divisions of High Courts. The Amendment Act of 2019 prefixes Sections 37 and 50, (which provide for appeals from arbitral tribunals) with “Notwithstanding anything contained in any other law for the time being in force” in order to restrict the right to appeal to what is already provided in Sections 37 and 50 and abolish the apparently inconsistent and wider right of appeal.

Critique: a not so rosy picture

Establishment of ACI is a major leap in the law of arbitration and its practice in India. By sharing the burden on the Courts, this step will speed up both, the arbitration process as well as clearing of the backlog of cases in the Courts already. It was always felt that arbitration was not able to realize its true potential in India. With a lot to be still done by the courts, it at times added additional burden upon the courts and was not a dispute resolution outside the court in its true sense. Additionally, the Act also aims to resolve the problem of dispute resolution by specialized persons. The Act suggests that it is time we work on specializing people in institutional arbitration. The ACI has been entrusted with the task to work towards professionally training people in institutional arbitration and it’s only a matter of time before we will see new diploma courses and workshops and professional institutes on institutional arbitration have sprung up. For the time being, the exact role of ACI is undetermined. The blurry picture will only clear up once rules and regulations pertaining to it finally get a definite shape. A lot is still to be done by the Central Government and the judiciary to realize the true potential of the ACI and give wings to the objectives of the 2019 Amendment.

Section 87 which categorically overrules the decision of Hon’ble Supreme Court in Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd.[5] will lead to uncertainty and chaos. the cases that already moved forward by following the position settled by the Supreme Court will have to take a step back and align their position as per the pre-2015 Amendment law. This will result in additional and unnecessary delay, costs, and uncertainty; something that is not very lucrative when one aims to become a hub of international arbitration. The legislature has also not dealt with the fate of various pending litigations where the courts have refused to grant a stay under section 36 of the Act. Also, it would have been desirable that the legislature had atleast provided that the clarificatory provisions introduced by the 2015 Amendment (as categorized in Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd) would apply on court and arbitration proceedings commenced prior to 23^rd October, 2015.

The qualifications of an arbitrator proposed in the eighth schedule are ambiguous. Though predictably, the Hon’ble Courts will overturn the position implied by it initially but for now, it can be interpreted to imply that no foreign legal professional can be an arbitrator in India, considering that one of the requirements under the Eight Schedule is for the person to be an advocate within the meaning of the Indian Advocates Act, 1961. This is an unattractive move which will discourage foreign arbitrations in India. The intent clearly seems to promote Indian institutional arbitrators, something on whose training, qualifications and expertise the Act aims to work towards. But clear exclusivity can be counter-productive, which certainly seems to be the case for this one.

Interestingly, a departure has been made from the recommendations of the Justice Sai Krishna Committee by making stakeholders from the Government of India members of the ACI. This is arguably at the verge of risking the independence of the ACI and arbitration as whole in India. This moves brings back the memory of a wholly unrelated amendment, not introduced long back when government stakeholders were introduced in the panel to decide on promotion of judges which was struck down by the Hon’ble Supreme Court in 2015 in its judgment Supreme Court Advocates on Record Association v. Union of India[6] on the ground of being a threat to the independence of judiciary. Though it will not be fair to say that the composition of ACI will meet the same fate, it will be interesting to see how the courts interpret it.

But the most heat will be faced by the timeline set by the Amendment Act. It was understandably increased to a 6 month period for submission of statements of pleading and defence and a further 12 months period for arbitration proceedings as many arbitrators complained that the overall 12 month time limit, originally introduced by the 2015 Amendment was not feasible as parties took most of the time to submit statement of pleadings and arbitral proceedings thereafter was just a sham. But practically, many stakeholders believe that a 6month time period is too long a period for submission of statement of pleading considering there isn’t a formal procedure to be complied with unlike the courts. This period could have very well been shortened. This timeline is inspired by the Justice Srikrishna Committee’s recommendation which did not provide a reason for the extension. At the same time, it is also pertinent to note that in cases where parties only desire disposal on preliminary issues like jurisdiction, they will have to mandatorily wait for 6months and submit their statement of pleading on other issues as well. This introduces chaos and rigidity. Thirdly, does this 6month period also cover the stage of amendment of pleadings and filing of counter claim? Fourthly, this timeline only applies on domestic arbitrations whereas international commercial arbitrations are free to choose their time frame as this timeline is non-binding on them. Hopefully the ACI rules will well-provide for it and institutional arbitrations will see a speedier disposal.

Following the Committee’s recommendations, a new provision mandating confidentiality of arbitral proceedings has been introduced. It admits only one exception: disclosure of award for its enforcement and implementation. But this raises more questions than it rests. Will it also apply where assistance of third parties like experts, etc. is seeked? Will it cover proceedings under sections 9, 11, 14, 27 and 34? Will it act as a bar upon a party in initiating criminal proceedings upon the other? Common sense dictates that it shouldn’t. But it would be welcome if the statute clarifies this position which would eventually render section 42A ineffective for most of its part. Also, the International Chamber of Commerce recently released guidelines on publication of awards[7] wherein it provided parties with an option to opt-out of it. It would have been wise to adopt this international standard and make provision for an opt out clause in section 42A as well.

The Hon’ble Supreme Court in Fiza Developers & Inter Trade P Ltd v. AMCI(I) Pvt. Ltd.[8] indicated that proceedings under Section 34 may not have the facets of a normal civil suit. Further, in M/s Emkay Global Financial Services Ltd. v. Girdhar Sondhi[9], the Hon’ble Supreme Court held that an application for setting aside an arbitral award will usually not require anything more than the record before the arbitrator. Section 34 has been amended on the same lines where “furnishes proof that” has been substituted with “establishes on the basis of the record of the arbitral tribunal that” implying material beyond what is submitted to the tribunal cannot be used to move and application under section 34. But practically it will not be possible to prove grounds like fraud, incapacity to contract or impartiality of arbitrator, etc only on the material submitted to the tribunal. It is hoped that the courts will see through the loophole and further clarify the position.

Eighth Schedule, disqualifies a person who has been convicted of any offence involving moral turpitude or an economic offence from accreditation as an arbitrator by the Arbitration Council of India. These parameters have not been incorporated expressly in the existing Fifth Schedule or the Seventh Schedule, implying that until the position is clarified, there is no impediment against such persons in being appointed as arbitrators.

Conclusion

Undoubtedly the amendment is a major step towards making India the global hub of commercial arbitrations. The introduction of institutional arbitration will bring in quality, specialization, expertise as well as speedier redressals while ensuring minimal court interference and thereby reducing their burden as well. The exact picture will get more clear once the ACI is set up and its rules and regulations are framed. On the other hand laudable changes have been made to bring the Act at par with international standards but some changes can act counter-intuitive, as we have discussed. It is hoped that with time the Courts will step up and harmonize the changes as and when the matter is placed before them. Till then, there could be a little chaos and confusion regarding which road is to be taken.

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[1] The full text can be accessed at http://egazette.nic.in/WriteReadData/2019/210414.pdf

[2] THE ARBITRATION AND CONCILIATION (AMENDMENT) ORDINANCE, 2015: IMPACT ON LAW LAID DOWN IN BALCO, Singhania & Partners, Yaman Kumar & Gunjan Chhabra, (1^st December, 2017) access at https://singhania.in/the-arbitration-and-conciliation-amendment-ordinance-2015-impact-on-law-laid-down-in-balco/

[3] The Report can be accessed here http://legalaffairs.gov.in/sites/default/files/Report-HLC.pdf

[4] (2018) 6 SCC 287

[5] (2018) 6 SCC 287

[6] (2016) 5 SCC 1

[7] ICC issues updated Note providing guidance to parties, (19^th December, 2018), https://iccwbo.org/media-wall/news-speeches/icc-issues-updated-note-providing-guidance-parties/

[8] (2009) 17 SCC 796

[9] Civil Appeal No. 8367 of 2018

The erring trends shaping Indian FRAND case law: Towards a new approach

FRAND (fair, reasonable and non-discriminatory) litigation, unlike every other traditional litigation, requires some clarity on the background. It is important to understand what standard essential patents (SEPs) are, how they differ from regular patents or even compulsory licences and why they are so important. And most importantly, it is vital to understand the standing of relevant standard-setting organisations (SSOs), their functioning, policies, approach and their limitations.

With a brief review of such concepts, I explain why the determination of royalty rates is a tricky concept in FRAND and that they should be left to technical bodies like the Intellectual Property Appellate Board (IPAB). Then again, there is no written word of law which prohibits the courts from adjudicating upon royalty rates. It is advisable, however, if the same is referred to the technical bodies instead, which becomes more imperative from the Hon’ble Delhi High Court’s act of granting temporary injunction in SEP litigation unlike any other leading court, thus influencing the ongoing negotiation process between the parties. Furthermore the Competition Commission of India is the only anti-trust body which has assumed jurisdiction in a FRAND matter.

I have provided a number of recommendations and the approach that should have been followed by the Hon’ble High Court and the Competition Commission of India. With issues like non-disclosure agreements, double dipping, issuance of interim injunctions and rates, it might not be possible to ascertain the direction in which Indian jurisprudence is moving, but one thing is sure: FRAND litigation is under the spotlight!

Read more

Treating trade secrets as property: A jurisprudential inquiry in search of coherency

The property can be denied, but the confidence cannot be!1

Traditionally, the concept of trade secrets has been seen as arising out of a contractual obligation. In this sense, what required protection was the relation rather than the information.2 However, in the mid- and late 19th century, this understanding underwent a shift and the courts were tasked with the position to take. Plaintiffs sought remedies under the breach of trust law, breach of contract and property law. Granting trade secrets protection under property law seemed feasible without any hindrances. Indeed, over time courts have relied on property law to provide plaintiffs with remedies.3 However, a deeper analysis and comparison of trade secrets law and property law shows that they are not really compatible. The main problem is twofold: first, the intangible nature of trade secrets;..Read More

Proposing an ‘e-industry’ Under Labor Laws

I.              Abstract

The purpose of labor laws was to regulate the environment in industries and other labor related workplaces; especially pertaining to the condition of the workmen. Today, the most prominent form of emerging entity is the e-commerce. However, there have been various instances which brought to light the condition of the workmen in these e-commerce entities. Though the working platform in e-commerce is online, it is not so with regards to the workmen. They work on the non-virtual platform. Then why are the e-commerce entities not abiding by the labor laws. We have seen the example of Rajasthan, which explicitly brought e-commerce under the labor laws. Thus, this article analyses what an industry is and what are the essentials to constitute an industry. It then analyzes whether the e-commerce setup would form the ‘e-industry’. A definition of ‘e-industry’ is attempted for the first time. To emphasize upon the importance of this issue, the article discusses various problems and violation of rights that arise due to the present, unsettled position including human rights and health-care issues. Finally, the article gives certain recommendations in light of the practical examples where workmen from the e-commerce entities have suffered, to attempt uniformity and make the labor laws applicable to them as well.

II.            Introduction

If there is one thing India is talking about right now, then that is e-commerce. It has emerged as the new boon to India’s economy, among other things. But every coin has two faces. Where India may pat itself on its success in the e-commerce platform, there are issues pertaining to the workplace haunting it. Various instances of non-adherence to labor laws have come to light. There has been a debate as to whether the present, existing labor laws will apply to the e-commerce structure that is on a boom. There has been no case-law precedent as of now which lays down as to whether the e-commerce structure rightly qualifies as an industry and they are taking advantage of this unsettled position. Due to this position, these entities are not strictly adhering to the labor law mandates laid down by the legislature and the judiciary. Though there seems to be no big hurdle in bringing e-commerce under the ambit of an ‘industry’ as required by the concerned Act; laying down a well-reasoned and well-founded clarification will put an end to the hay-ware practice that is going on right now. If e-commerce is established as an e-industry, the present negligent practice can be put an end to.

III.         Introduction to  Industrial Laws

One thing that has the power to make and break a society is the industry. Since the beginning, we have seen the might of the industries. Talk of the industrial revolution and the world has never looked back since. With the rise of the industries and the ever-growth-hungry industrialists came the problems associated with the labors who were treated no better than mere machines. The cure to the problem obviously came in the form of labor laws. In India for instance, the industrial laws have a deep rooted history of labor movements seeking reform in their condition and the then state of affairs.

The various labor laws came as a big relief dealing with all possible areas. The biggest problem then was their implementation as some definitions and provisions were way too ambiguous and wide. The courts have worked over this problem from time to time to bring some kind of uniformity if not a litmus test. Various definitions have been amended though not implemented. A uniform Labor Law is on the table though it has not yet seen the daylight. The labor laws are a product of the labor reforms. Thus, where they seek to harmonize the relationship pf the labors an the employers, they also seek to promote the working condition of the labors specifically.

IV.          Understanding E-Commerce

Electronic commerce or e-commerce refers to a wide range of online business activities for products and services.[1] It also pertains to “any form of business transaction in which the parties interact electronically rather than by physical exchanges or direct physical contact.[2] A more comprehensive definition is: E-commerce is the use of electronic communications and digital information processing technology in business transactions to create, transform, and redefine relationships for value creation between or among organizations, and between organizations and individuals.[3] So far, from these definitions, it is pertinent that in e-commerce, the mode of communication and transaction between the organization and organization and organization and individual is online. On a closer scrutiny it becomes pertinent that it does not refer to the mode of communication between the employer and employee. As a vast network of people and information,[4] the Internet is an enabler for e-commerce as it allows businesses to showcase and sell their products and services online and gives potential customers, prospects, and business partners access to information about these businesses and their products and services that would lead to purchase.[5] Thus, the internet has no role to play whatsoever, as long are the employer employee is concerned. Therefore, the mode of communication between the employer and employee is still like any other industry. All in all, from the perspective of the employees, e-commerce is like any other industry since the relation between employer and employee is not via the online platform, but in the traditional way. However, one example for consideration can be the scenario where the employees are hired online, though for a shorter period. The work is assigned online which is to be submitted online.

V.            Defining An Industry

The definition of 'industry' prior to the amendment was little ambiguous had a lot of scope for construction. It was given in two parts in the statute. In its first part it means any business, trade, undertaking, manufacture or calling of employers is an industry. It determined industry in reference to the occupation of employers falling in the categories mentioned. The second part viewed the matter from the angle of employees and gave an extended connotation. It stated that any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry. However the second part alone could not define an 'industry'.[6]

On the contrary, the present definition of industry provided in Section 2(k)[7] of the Industrial Disputes Act, 1947 after the Industrial Disputer (Amendment) Act, 1982 is quite self-explanatory and provides various sectors and categories in itself. It also provides certain exceptions which may look like an industry but are not. However, the major problem and the confusing, unsettled position as to whether an activity will qualify an as industry or not still exists because this particular amendment has not been enforced as of now. Once this does, it will overrule a lot of judicial pronouncements. Once it gets enforced, there will be a lot of uniformity in the labor laws.

The definition of industry has developed in many stages and has been interpreted many times by the courts. However, for a long time there was no fixed definition and scope of industry,

The first stage was from 1953 to 1962. The ambit of industry was very wide in this period as is evident by the judicial pronouncements of the said time.

In Corporation of the city of Nagpur vs. Its employees[8], the court had to decide whether a corporation is an industry as under Section 2(j) of the Industrial Dispute Act, 1947. The Supreme Court in this case made some significant observations and held that corporation is an industry for the purposes of its non­regal functions but its regal functions of sovereign nature are the ‘primary’ and inalienable functions of the state, though delegated to the corporation, are necessarily excluded from the purview of the definition of industry. In D.N.Banerji v P.R. Mukherjee[9], the issue was whether Municipality is an industry. The court did not have to decide this under Section 2(j) exclusively and thus it was held that a municipal activity cannot be called a “business or trade” but it would fall within the scope of “undertaking” and thus it is an industry. The non­profit undertakings of the municipality were included in the concept of an industry, even if there is no private enterprise.

In the period from 1963 to 1978, the definition was interpreted rather narrowly and all the entities put to question were held not to be an industry. In Madras Gymkhana Club Employees’ Union vs. Gymkhana Club[10], the Supreme Court held that non-profit making members are not employed in a trade or industry. Thus, in this time a club[11], solicitors firm[12], University[13], law department[14], forest department[15], census department of Government of India[16], District Literary Samiti[17], the Diocese of Church[18], temple[19], were held not to bean industry.

Soni Photostat Centre v. Basudev Gupta[20] held that “a single lawyer, a rural medical practitioner of urban doctor with a little assistant and/or menial servant may play a profession but may not be said to run an industry”. This is because there is no element of an organized labour in such employment. In Osmania University vs. Industrial Tribunal Hyderabad[21], it was held that the test for determining whether the dispute is between the capital and labour, is to see if they are engaged in co­operation or whether dispute is concerned directly or indirectly with the production or distribution of wealth.

However, there are some conflicting pronouncements as well. An example could be Chief Conservator of Forest v. Jagannath Maruti Kondare[22] where forest department of the State of Maharashtra was held to be an industry whereas in State of Gujarat v. Pratamsingh Narsingh Parmar[23], the forest department of State of Gujarat was held not to be an industry.

Then again the pronouncement in State of UP v. Jai Bir Singh[24], is in contrast to the one in Bangalore Water Supply v. A. Rajappa[25].

All in all it is evident that the courts have tried to evolve some sort of test to define an industry but they have succumbed to their own varied interpretation of the definition. Thus, there has been a lot of inconsistency in the decisions but now the position seems to have settled a little bit. A final position has also been reached in connection to various entities. However, the scope of interpretation will always be there.

A.   Triple Test

The Golden Rule to test whether an entity/activity constitutes an industry or not was laid down in the case of Bangalore Water Supply v. A. Rajappa[26] known as the Triple Test, where a seven-judge bench was constituted especially to examine the definition of “industry” and lay down the law on the subject. The essentials as mentioned in this landmark judicial pronouncement have more or less been incorporated in the new definition of industry. The three elements of triple test are that the activity should be:

1.     Systematic activity ,

2.     Organized by co-operation between the employer and employee,

3.     For the production and/or distribution of goods and services calculated to satisfy human wants and wishes.

The court also noted these points:

1.     Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint private or other sector.

2.     The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.

3.     If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking.

These observations, which are widely known as triple-test, are readily resorted to by the courts whenever there is a dispute over the industrial nature of the entity. This judgment exhaustively laid down the defining factors of an industry and clarified the otherwise unsettled position.

VI.          Can E-Industry Be An Industry For The Purpose of Labor Laws

A.     Triple Test

First of we have to examine the nature of the industry itself to see as to whether the e-commerce entity fits in the definition of an industry. To pursue this investigation, we resort to the triple test. The test provides the following:

 i.               Systematic Activity.

Under this head, the primary element of the activity has to be seen and tested. The activity should be systematic in the sense that it should not be an irregular or randomly carried activity. There should be some scheme to it. A certain ‘system’ should be the deciding factor. The courts have not said much about this element as it is a purely factual test and no straight jacket formula can be put to test it. Also, disputes do not generally arise in determining this element.

As far as an e-commerce entity is concerned, where they are rendering their services online, their scheme of taking the want/wishes into account, and further providing the solutions/services to the consumers spells out a systematic activity. Where proper online platform is set for the carrying out of the activity, there can be no doubt to the system attached to the functioning.

   ii.           Organized by co-operation between the employer and employee.

In the e-commerce structure, the initial communication between the entity and the consumers is through electronic means only. If we take the example of some entities like Flipkart, Amazon, ebay, etc; then it becomes imperative that though the services are online, they do not function on the online platform solely. The online platform is only for the initial interaction between the buyer and the seller. The series/products shown online are made available through the regular setup of an employment place. Thus, when a consumer orders some product through an e-commerce website, it gets processed by the technical and all other relevant departments and come to an end when the product is delivered by the delivery staff. It is impossible to imagine the functioning of these entities without their workforce. They are called e-commerce because their mode of communication with the outside world is online. But where such entities have a set office, howsoever small, then such office an easily be seen to run with the cooperation of the employer an employees. The employer does not deliver the product to the consumer on his own. They usually hire people for each processing step. Such people are employees for their concerned functions.

Thus an e-commerce entity which operates on the offline platform as well can very well be said to run with the co-operation between the employers and employees.

 iii.           For the production and/or distribution of goods and services calculated to satisfy human wants and wishes.

Most of the e-commerce entities that exist and that are coming up, have incepted to meet the consumer demands. If we take the example of the likes of Flipkart and ebay again, then we see that these exist on a purely commercial base. They provide the goods and also the service of delivering them at the doorstep of the consumer.

Thus they produce/provide the goods and services for the satisfaction of human wants and wishes. There seems no hindrance in putting most of the e-commerce entities as a structure that works for the satisfaction of human wants and wishes.

Not all e-commerce structures fall under this category, but those that do, should actively be brought under the ambit of an industry that have to abide by all the labor laws properly.

B.     Workmen

 i.              Principal Nature of Duties and Functions

To ascertain if an employee is a “workman” under Section 2(s)[27] of the Industrial Disputes Act, is determined with reference to the principal nature of his duties and functions. It thus depends upon the facts and circumstances of each case and materials on record and there can be no objective test for this enquiry.[28]

Once the tests of employment for hire or reward for doing the specified type of work is satisfied, employee would fall within definition of “workman”.

   ii.           Supervisory and Managerial Duties

Where the employee possesses the power to assign duties and distribute work, such authority indicates his supervisory power.[29] However, there is a difference between a Supervisor and a Manager. Supervisor’s predominant function is to see that the work is done by the workers under him as per the norms laid down by the management: he has no power to take any disciplinary action[30].

 iii.           Full Time or Part Time

The definition of workmen doesn’t make any distinction between a fulltime or part time employee or a person employed on contract basis. It is upon the Labor or the Industrial court to determine the nature of work for which a person is employed.[31]

Thus, for a person to be a workman under the Industrial Disputes Act, he/she must be employed under any category mentioned in Section 2(s)[32]. The person must not discharge managerial or supervisory duties. It is not sufficient to establish that he/she is not covered by any of the four exceptions to the definitions.[33]

 iv.           Scenario relating to e-industry

Where it is established that e-commerce is an e-industry, the employees falling in the category of workmen can definitely seek resort to the provisions relating to an industrial dispute. For purposes of enquiry, if we take the case of a delivery boy employed in an online shopping portal, then he falls under the category of an operational labor whether for hire, or reward; full-time or part-time as there seems no evident objection against the same.

VII.       Defining E-Industry

The entities for consideration here are the ones where the entity majorly provides services, etc online. The consumer-entity relationship is established on the virtual platform majorly. However, it is not necessary that the workman-employer relationship is virtual. It might be virtual or not. Where the establishment is running on a full commercial setup and earning profits thus, there is nothing to not call it an industry. If the e-commerce entity is qualifying as an industry, then there is nothing that stops it from being an ‘e-industry’ thus.

VIII.     Why E-Industry Needs to be Defined

A.     Flipkart Strike

Flipkart, the biggest e-commerce entity in India, and a known name recently faced a strike by its delivery boys. Flipkart is known for its services of the products in the Indian marketplace. It also provides lucrative benefits to its employees at the office. However, as a result of the strike, it came to public knowledge that Flipkart does not provide basic services like toilet and fixed working hours or days to the delivery boys. The demands in the strike were:[34]

1.     Toilets in each delivery office

2.     Duty hours to be fixed

3.     Overtime allowances

4.     Existing shipment allowance to be enhanced

5.     Bike maintenance allowance to be granted

6.     Food, laundry allowance to be made available

7.     Foot delivery boys to be paid Rs. 5 for shipment and Rs. 10 for return shipment

8.     Workers to be issued company ID card

9.     Delivery boys to be exempted from work on public holidays

10.  Workers to be paid Rs. 30 per day as shipment delivery expenses

11.  Workers to be issued an ESIC card

12.  Workers to be provided uniforms

13.  Workers to be provided vouchers

14.  Sunday holiday/compensatory off

Delivery boys would fall under the definition of workmen as provided in the Industrial Disputes Act. Due to non-clarity in the laws, the e-commerce entities are taking benefit of the situation and violating the laws to further their profits. Their competitive schemes like ‘speedy-delivery’, ‘one-day delivery’ are becoming a burden on the delivery boys alone. Had there been a proper structure, Flipkart would have been liable to file the draft of its Standing Order, in lines of the Model Standing Order[35], with the Conciliation Officer[36].

The Standing Order includes conditions relating to holidays, working-days, working hours, allowances, termination, appointment, etc. The employees are at the liberty to oppose the terms if they seem unjust and unfair. That is why it is necessary to explicitly include these entities under the ambit of labor laws.

Thus, it becomes imperative that because there is no precedence relating to e-commerce entities, they are doing a gross violation of the labor norms set in India. Flipkart is one entity that came into light; there must be many others doing the same. Therefore, it is necessary to explicitly include these entities under the ambit of labor laws.

B.     Basic Rights

All the labor laws are a product of the prolonged human rights movements which has influenced the Social Justice feature of our constitution leading to industrial harmony.[37] [38]

Once e-industry will be defined as an industry for the purpose of labor laws, it will be subject to the basic statutes in this regard and the problems that the workers are facing right now will be solved to a greater extent. This will ensure the much needed e-industrial boom.

C.     Health Issues

By subjecting e-industry to the labor laws, the brutal treatment to the workers will stop. A disease has come up which is mostly reported by the delivery boys of the e-commerce websites as a result of carrying excessive weight on their shoulders all day long subjecting their backbone to incurable disease.[39] This is but, one example of the trauma that they face only facilitated by the loophole in the law which was not cured by updating it with the changing times.

This and many more such issues will be resolved if the proposed act is done because after-all, prevention is better than cure. And we dare say it even when some amount of damage has already been done.

D.     Minimum Wage

In order to ensure that the workers are not economically exploited, as our constitution guaranteed social justice, two legislations for regulating the payment of the employees have been formulated in India. The Minimum Wages Act, 1948 ensures that the workers are not paid less that what they need for a minimalistic survival and their economic desperateness is not exploited. Then again, the Payment of Wages Act, 1936 ensures that unjustified deductions are not done and that the workers get what they deserve.

However, when the e-industry is not subject to the Labor Laws, the employers are free to indulge in the economic exploitation of the employees. This again, will be cured once they are put under the mandates of law.

E.     Relaxations

In this era of e-commerce boom; much like the industrial boom era, it has to be borne in mind that the human body is not a machine. Where the same problem was cured in the Industrialization phase by setting up labor laws, the revision will cure the same problems pertaining to the e-commerce scenario. By subjecting them to the Labor Laws explicitly, the employees will get humanly relaxations like clean working environment, weekend holiday, medical relaxations (if not the benefits), etc.

IX.          Suggestions

Though upon an analysis, it becomes clear that there is nothing substantial in the way of bringing the e-industries under the ambit of Labor Laws, still these entities take advantage of the unsettled position and non-declaration by the law, and violate the labor norms. Therefore, in order to avoid this situation, there should be an express statement as to inclusion of e-industries under the ambit of Labor Laws.

One good example can be the state of Rajasthan which has amended the definition of industry to include e-commerce entities.[40] It is suggested that it is high time that the legislators follow the suit and groom the statute with the changing times before a grave damage is done.

X.            Conclusion

Therefore, all in all, it is concluded that it is no doubt that the said entities could be brought under the ambit of an industry for the purpose of the labor laws and there is no hindrance to it as such. The same can be done by way of an amendment into the definition of ‘industry’ in the relevant Statutes. Therefore, in light of the events that have occurred, it is high time now that an explicit word be given on the status of the applicability of labor laws to e-commerce. Otherwise, the violation of rights of the delivery boys and other such workmen in the e-commerce industries will have no end. The example of amendment by Rajasthan could be a roadmap to be followed wherein the said entities were explicitly included under the labor laws.

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[1] Anita Rosen, The E-commerce Question and Answer Book (USA: American Management Association, 2000)

[2] MK, Euro Info Correspondence Centre (Belgrade, Serbia), “E-commerce-Factor of Economic Growth;” available from http://www.eicc.co.yu/newspro/viewnews.cgi?newsstart3end5

[3]  Emmanuel Lallana, Rudy Quimbo, Zorayda Ruth Andam, ePrimer: An Introduction to eCommerce (Philippines: DAI-AGILE, 2000)

[4] Industry Canada, Canada’s Business and Consumer Site; available at  http://strategis.gc.ca

[5] Zorayda Ruth B. Andam, e-Commerce and e-Business ,The e-ASEAN Task Force and the UNDP Asia Pacific Development Information Programme (UNDP-APDIP), available at: http://www.kau.edu.sa/Files/830/Files/61164_Ecommerce%20and%20E%20Business.pdf

[6] Secretary, Madras Gymkhana Club v. Management Of The Gymkhana Club; 1968 AIR SC 554

[7] "industry" means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--

 (i) any capital has been invested for the purpose of carrying on such activity; or

(ii) such activity is carried on with a motive to make any gain or profit, and includes--

(a) any activity of the Dock Labor Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);

 (b) any activity relating to the promotion of sales or business or both carried on by an establishment but does not include--

 (1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.

Explanation.--For the purposes of this sub-clause, "agricultural operation" does not include any activity carried on in a plantation as defined in clause (f) of section 2 of the Plantations Labor Act, 1951 (69 of 1951); or

 (2) hospitals or dispensaries; or

 (3) educational, scientific, research or training institutions; or

 (4) institutions owned or managed by organizations wholly or substantially engaged in any charitable, social or philanthropic service; or

 (5) khadi or village industries; or

 (6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defense research, atomic energy and space; or

 (7) any domestic service; or

 (8) any activity, being a profession practiced by an individual or body or individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or

 (9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten;]

[8] 1960 AIR 675

[9] 1953 AIR 58

[10] 1968 AIR 554

[11] Madras Gymkhana Club Employees’ Union v. Gymkhana Club; 1968 AIR 554

[12] NNUC Employees v. IT; 1962 AIR 1080

[13] Osmania University v. Industrial Tribunal Hyderabad; [1960] 1 LLJ 593 [AP]

[14] State of Rajasthan v. Ganeshi lal; 2008 LLR 170

[15] State of Gujarat v. Pratam Singh Narsingh Parmar; (2001) 9 SCC 713

[16] Md. Raj Mohammad v. Industrial Tribunal –cum­ Labour court, Warangal; 2003 LLR 535. Also ref. to Himanshu Kumar Vidyarathi and others v. State of Bihar; (1997) 4 SCC 391.

[17] Project Director, District Literacy Samiti v. Ms. Mamta Srivastava and another; (2012) I LLJ 212.

[18] Diocese of Amritsar of Church of North India and others v. Buta Anayat Masih and others; 2010 LLR 407 (Punjab & Haryana HC).

[19] Indravadan N. Adhvaryu v. Laxmidevnaryan Dev Trust; 2011 LLR 261 (Guj. HC).

[20] 2004 (1) AWC 252

[21] [1960] 1 LLJ 593 [AP]

[22] 1996 AIR SC 2898

[23] (2001) 9 SCC 713

[24] (2005) 5 SCC 1

[25] 1978 AIR SC 548

[26] 1978 AIR SC 548

[27] " workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--

(i) who is subject to the Air Force Act, 1950 (45 of 1950 ), or the Army Act, 1950 (46 of 1950 ), or the Navy Act, 1957 (62 of 1957 ); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

[28] S. K. Maini v. M/s. Carona Sahu Company Ltd. & Ors.; 1994 2 CLR 359

[29] Supervisor: One who has authority over others: someone who superintends and directs others.

[30] G. M. Pillai v. A.P. Lakhmikaf Judge, III Labour Court; 1998 LLR 310

[31] New India Assurance Co Ltd. v. A Sankaralingam; (2008) 10 SCC 698

[32] Any person (including an apprentice) employed in any industry to do any manual, unskilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

i.          who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

ii.         who is employed in the police service or as an officer or other employee of a prison; or

iii.        who is employed mainly in a managerial or administrative capacity; or

iv.        who, being employed in a supervisory capacity, draws wages exceeding one thousand sic hundred rupees per mensem or exercises, either by nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

[33] Mukesh K. Tripathi v. LIC; (2004) 8 SCC 387

[34] Flipkart's Logistics Suffer Blow: 400 Delivery Boys Go On Strike Due To Lack Of Basic Amenities, inc42 Magazine. (2015) http://inc42.com/buzz/flipkart-delivery-boys-strike/

[35] The Schedule, Industrial Employment (Standing Orders) Act, 1946.

[36] Section 3, Industrial Employment (Standing Orders) Act, 1946.

[37] Report of the National Commission on Labour (1969) p.56

[38] Fourth Five-Year Plan- Draft Outline (1966) p. 386

[39] The backbone of Indian e-commerce boom faces serious breakdown, The Economic Times, (29 December 2015), http://tech.economictimes.indiatimes.com/news/internet/the-backbone-of-indian-e-commerce-boom-faces-serious-breakdown/50362860

[40] Labour Pains for e-commerce Players, Business Standard, http://www.business-standard.com/article/opinion/labour-pains-for-e-commerce-players-115081600604_1.html