Over the past ten years, there has been a significant development curve in the Indian fantasy sports market. India, with more than 200 Indian operator companies and over 20 crore members, has become the world’s largest fantasy sports market. The proliferation of smartphones and low data costs have been key factors in making fantasy sports more accessible.
This has resulted in questions being raised on the legality of OFS platforms (i.e., OFS platforms encourage pure gambling and are not “games of skill”) before different High Courts in India.
What are fantasy sports?
Fantasy sports, also known as rotisserie sports, is an online game where players play as managers, choosing, trading, and drafting their lineup of athletes. Participants can participate in free competitions or pay to win prizes. This internet prediction game uses actual sporting events and allows players to match up with others.
Since the fantasy sports industry is on a boom and has seen rapid expansion over the past few years its regulation has also been difficult. Different states have different laws regarding these which create confusion among the masses regarding its regulation.
Gambling and Betting
Fantasy sports raise the question of whether they can be considered gambling or betting. Betting involves staking a wagering sum, either in cash or assets, on the assumption of an event’s outcome. The Supreme Court of India stated in the case of Dr. K. R. Lakshmanan v. State of Tamil Nadu & Anr. that gambling involves paying a price for a chance to win a prize. Games can be of chance, skill, or skill and chance combined. A game of chance is determined entirely or in part by lot or luck, while a game of skill relies on the player’s superior knowledge, training, attention, experience, and ability.
The Indian Constitution was not introduced until after the Public Gambling Act of 1867. It forbade the operation of common gaming rooms and public gambling establishments, with the exception of games of skill. However, with the adoption of the constitution, the matters concerning betting and gaming were listed under State List Entry 34. It meant that going forward, laws pertaining to these matters may only be passed by the state legislature.
Game of Skill vs Game of Chance
Games of skill are distinct from games of chance as they are not entirely reliant on chance, as they involve strategies, talent, skills, team formation, and player selection. In contrast, games of chance are purely based on luck and are comparatively easier to win. Fantasy sports, for instance, are considered a game of skill as they involve the formation of strategies and knowledge about players, which are not required in a game of chance. The Punjab and Haryana High Court, in the 2017 case of Shri Varun Gumber v. Union Territory of Chandigarh and Orsii, ruled that fantasy sports predominantly include the skill factor, making them unsuitable for classification as a game of chance.
Rules and Regulations
Public gambling and the operation of common gaming establishments are outlawed under the Public Gambling Act of 1867, which is national law. Nonetheless, “gambling” is a State topic according to the Indian Constitution, hence state governments are in charge of regulating it. The Assam Game and Betting Act, 1970, the Orissa Prevention of Gambling Act, 1955, the Telangana Gaming Act, 1974, the Nagaland Prohibition of Gambling and Promotion and Regulation of Online Games of Skill Act, 2015, and the Sikkim Online Gaming (Regulation) Act, 2008 are a few Indian States that have passed specific laws to regulate gaming and gambling activities.
Cases in different states-
Key requirements and documents to comply with
Conclusion
Overall, the Indian judiciary appears to be supporting the fantasy sports and online gaming industries based on recent rulings. Foreign investment is not permitted in the gaming or betting industries. For this reason, international investors hoping to invest in and profit from the rapidly expanding online gaming and fantasy sports industries now have clearer skies thanks to a finding from the SC stating that a site such as Dream11 in its current shape is not a gambling and betting platform.
Dream11 is legitimate business in India and does not fall under the Public Gambling Act, 1867. According to the Federation of Indian Fantasy Sports (FIFS) – the country’s first and only self-regulatory Sports Gaming industry body, games of skill are excluded from the definition of most gambling legislations and therefore are legal to play. However, what is to be done when a minor child starts using his school fees or picnic money etc for playing online games involving money and then gets addicted to it and loses money and self-belief?
Family laws are governed as per the religion followed by an individual in India. Under the Hindu family law, one of the paramount causes of legal disputes is inheritance and succession by legal heirs of a deceased person. However, most individuals are oblivious that these disputes can be evaded by just acquiring a Legal Heir Certificate after the death of a family member.
What Is A Legal Heir Certificate?
The legal heirs of a deceased person require to acquire a certificate in order to transfer the estate of the deceased in their names after the individual’s untimely demise. This certificate affirms the relationship between the deceased person and the legal heirs of the person. The certificate assists the legal heirs in claiming their legal right over the estates and also debts of the deceased person.
Who Are Legal Heirs?
The following people are considered as the legal heirs of a person:
Motive of this Certificate
This certificate is a pivotal document to recognize the lawful successors of an individual. This certificate can aid in the following affairs after the death of a family member:
Procedure for Acquiring a Legal Heir Certificate in India
To acquire a legal heir certificate in India, the Tehsildar office or Taluk office must be approached. Once the required documents and the application form are filed, the applicant needs to submit the stamp fee, which is a minimal amount. The application is then submitted with the authority, which then holds an scrutinization to examine the applicants’ claim.
Once the scrutinization process is done by the Tehsildar or Taluk’s office, this certificate is issued which mentions all the legal heirs of the deceased person.
In most instances, it ordinarily takes around 30 business days to acquire a certificate in India.
Documents Required
The following documents are essential to be furnished with the authority to procure a legal heir certificate in India:
The distinction among Succession Certificate and Legal Heir Certificate
Most of the individuals generally get bemused between a legal heir certificate and a succession certificate. However, both the certificates are dissimilar and have different purposes. A succession certificate (SC) is issued by the civil court and there are separate procedures to obtain the same. Legal heir certificate is especially used in certain matters such as claiming employee benefits, insurance claims, property registration, etc. However, a succession certificate authorizes the legal heirs to transfer the property (movable as well as immovable), shares, debentures, etc. of the deceased in their own name.
Article written by
Mr. Ashish Sameer Shinde
Gujarat International Finance Tec-City, also called GIFT City, is a central business district under construction in the Ahmedabad district in Gujarat, India. It is India’s first operational greenfield smart city and international financial services centre, which the Government of Gujarat promoted as a greenfield project. In 2020 GIFT IFSC bagged 10th place in Finance Industry and top rank in emerging financial centres in the Global Financial Centres Index. As of June 2023, it is home to 23 multi-national banks, including HSBC, JP Morgan, and Barclays. Furthermore, it includes 35 fintech entities, two international stock exchanges with average daily trading volumes of $30.6 billion, as well as India’s first international bullion exchange with 75 onboarded jewellers. The city is located on the banks of the Sabarmati River and is around 12 km (7.5 mi) from Sardar Vallabhbhai Patel International Airport. The city is designed so residents can walk to work, and includes commercial, financial and residential complexes. The city is connected through 4-6 lane state and national highways. A metro station is also planned for construction, which would connect GIFT City to the Ahmedabad Metro network. This is expected to be completed by March 2024. The total area for the development of GIFT is 359 hectares (886 acres) out of which the special economic zone (SEZ) constitutes 106 hectares (261 acres). The project area under development can hence be classified under the SEZ area and the non-SEZ area (also known as the Domestic Tariff area or the DTA). With the opening of the first campuses of two Australian universities on 7 November 2023 in the presence of Indian counterpart Dharmendra Pradhan and Australian Education Minister Jason Clare, GIFT City is beginning to establish itself as the centre of foreign universities in the nation.
Ways that can help GIFT City being a Global Hub for Alternative Dispute Resolution
As India being a diverse nation having 28 states and 7 Union Territories having different party Government at the State as well as at the National Level. An All-India Political Parties meet is a must as different State Leaders will voice their opinion as why only Gujarat is being selected for the same. The Central Government need to convince everyone why Gujarat has been selected and decided for Global ADR Centre. A uniformity along with appreciation by all the Political Parties in India may have a great impact for making GIFT City a global hub for ADR.
As GIFT City being located approximately around 20 kilometres away from the station and airport, it has become a hurdle for the parties to reach there. A special transport service must be made at an affordable price to reach GIFT City without any hardship. Also, a Special Sightseeing Bus/Cab must be deployed wherein it may also contribute to the tourism sector.
As GIFT City being a global destination in the future, 5-star hotel along with every restaurant must be given a chance to start their business there. Every kind of cuisine must be made available to the parties coming there for ADR. Major Indian Players in the market must be given a chance to show up their skills in the global market wherein their contribution to the GDP surely will have a great impact.
The local legislative framework should aim at providing priority to party autonomy, the efficacy of proceedings, the sanctity of arbitral awards and work towards the provision of ample court assistance in arbitrations. They should adopt a similar structure like Singapore or Hongkong to make GIFT City a global ADR Hub.
The institutions must have modern and updated rules which must allow them to offer parties more flexibility. Services like scrutiny of the draft arbitral award and other potential defects must be made available to make GIFT City more preferable. Only experienced panel of arbitrator having international expertise and a well-organized administrative staff must be chosen for the same. The state-of-the-art infrastructure must be made available for conducting the whole process efficiently and smoothly.
The government’s role must be to actively encourage institutional arbitration and provide infrastructural support. The government must facilitate institutional arbitration by helping build a physical infrastructure and also take steps to build integrated infrastructure such as Maxwell Chambers.
There is need to create a difference between ADR mechanism and litigations. Other forms of dispute resolution are also equally important. The “Med-Arb” combination is praised all over the globe which must be implemented for being more efficient and having greater party autonomy than mediation and arbitration separately. All the arbitral institutions should also provide for mediation services through a cell.
Arbitration Promotion Council of India (APCI) should be established at national level. This autonomous body would comprise of the representatives from the government, legal community, and arbitral institutions. The members of the body shall have substantial expertise in arbitration. The main function would be to grade the arbitral institutions as per the grading policy, to make recommendations regarding the governance of institutions, conduct researches etc. and must always strive to make an effort for promoting Institutional Arbitration in India. On the grade given by APCI, the High Courts and Supreme Courts may be encouraged to designate arbitral institutions as authorities for appointing arbitrators.
For speedy and efficient governance of arbitration preceding the Committee is of the opinion that there should be an establishment of a specialist arbitration bar and arbitration benches in India. The arbitration bar would comprise of a young and trained pool of arbitrators who has substantial expertise in arbitration and accredited by the APCI.
Introduction– Economic weaker section is a section of society which has less income than eight lakh rupees and does not belong to scheduled caste, scheduled tribe or other backward classes. “The one hundred and third amendment act” 2019 enabled the “Reservation” particularly for the ““economically weaker section””. After India got independent there was the principle of “Reservation” applied only to the community of SC/ST. This particular section only has under its ambit the people who have less income than the specified criterion or the people below poverty line but there is no certain definition of it laid anywhere or in any statute. After the amendment through which this specified section of the society got added, section 15(6) and 16(6) was added in the “Constitution of India”. There is no certain explanations given for this section hence, it is quite difficult to give it a certain definition. As every aspect has both, its positive and negative side of the aspect, similarly the “Reservation” of economic weaker section “Reservation” also has its pros and criticism. Critically analysing the aspects gives us the basic insight of the topic, and makes us aware about it. Hence, under this paper I would be critically analysing the “Reservation” system of India regarding “economically weaker section”.
103rd CONSTITUTION AMENDMENT
This amendment was done in the year 2019 and was considered to be the 103rd amendment of the constitution after it came into force in the country. This amendment threw light on the economic weaker section by providing it with the “Reservation” under the ambit of article 15(6) and article 16(6). The bill to amend the constitution for adding the “Reservation” for “economically weaker section” got introduced in India in January 2019 and was passed by both the houses. The economic reserve was created by this amendment act by amending article 15 and 16 of the Indian constitution. After it the 10% “Reservation” was laid in the field of “admission to central government and private educational institutions, as well as recruitment into central government jobs” and it also covered the “Reservation” in Private unaided educational institution under its ambit. The constitution was India explains 15(6) as “nothing in the article 15 or sub clause(g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the state from making”-“Any special provision for the advancement of any “economically weaker section” of citizen other than the classes mentioned in clause(4) and (5)” and any special provision for the advancement of any “economically weaker section” of citizens other than the classes mentioned in clauses(4) and (5) in so far as such special provision relate to their admission to educational institution including private educational institution, whether aided or unaided by the state, other than the minority educational institutions referred to in clause (1) of article 30,which in the case of “Reservation” would be in addition to the existing “Reservation” and subject to a maximum of ten percent. Of the total seats in each category.” And article 16(6) states that “nothing in this article shall prevent the state from making any provision for the “Reservation” of appointments or post in favour of any economic weaker section of citizen other than the classes mentioned in clause (4) ,in addition to the existing “Reservation” and subject to a maximum of ten percent of the post in each category”.
NEED FOR THE “RESERVATION” ON THE BASIS OF ECONOMIC CONDITION-
India is a country where all the backward and forward classes exist. As poverty is increasing and “economically backward classes are lagging behind those who earn well off. The opportunities which the people with love income and people of below poverty line are getting is very much less than the people with high income. When we question the system regarding the need of “Reservation”, it is not for increasing the gap between the sections of society or increase the discrimination but it is mainly to uplift the backward classes. Economic backwardness is something by which many people of the country are suffering due to the increasing population and less resources. That is why in today’s generation not only we need the “Reservation” on the basis of caste but also on the basis of income. “Reservation” on the basis of economic backwardness is very much necessary to break the system of inequality which is very much prevalent in our country. The “Reservation” will bring all the haves and haves not on the equal footing thus decreasing the inequality. As to judge people on the basis of their merit, it is very much necessary to bring them to equal level.
GROUND OF “RESERVATION” OF THE ECONOMIC WEAKER SECTION-The ground on which the “Reservation” is provided to the “economically backward classes is solely based on income of the household and not on who lies above or below the economically backwardness line. Hence, to determine the eligibility of the “Reservation” criteria these conditions should be taken into consideration.
PROOF FOR ENTITLEMENT OF EWS “RESERVATION”
For getting entitled to the EWS “Reservation” a person needs to prove that he/she belongs to the “economically weaker section”. In order to prove it he/she should have ‘Income assets certificate’ to show income record of the family. This certificate remains valid for only an year and needs to be re-issued every year. This is the necessary component to being eligible for the EWS “Reservation”.
PAST JUDGEMENTS IN REGARD WITH EWS “RESERVATION” IN INDIA
“JANHIT ABHIYAN” V UNION OF INDIA 2022”
BRIEF ACTS- There was the enactment of “one hundred and third constitutional amendment act 2019” by the parliament of the India in which the state was being allowed to make decision on granting “Reservation” in the field of public employment and high education on the basis of economic criteria there was the addition of 15(6) and 16(6) in 2019 through the one hundred and third amendment. This amendment was being opposed by many petition filed against it as this amendment resulted in providing ten percent “Reservation” to the “economically weaker section” of India under educational institution both aided and unaided institution except the institution protected under article30(1) and “Reservation” in appointment was also included under article 16(1) this also increased the ceiling of ten percent into the “Reservation” cap which was already existing.
Issue Raised-
JUDGEMENT- One of the important landmark judgements related to EWS “Reservation” in India is “Janhit Abhiyan v. Union Of India” In this case there was a 5 judge bench. The court held in 3:2 judgement upheld the constitution 103rd amendment and that exclusion of SC/ST/OBC and other classes under the ambit of economic “Reservation” is not the abrogation of basic structure of the constitution of India as these categories are already having the benefit of the “Reservation” as per the Indian constitution and are getting the reserved quota already for them. The court also held that “Reservation” could not only be granted solely on economic criteria as “Reservation” based on caste in India is very much needed otherwise it will be Injustice to other backward classes of society.
“Indira Sawhney v Union Of India”1992
ISSUE RAISED-
In this case the court held that backward classes which are mentioned under article 16(4) of the Indian constitution cannot be solely identified on the basis of economic criteria but caste is also needs to be taken into consideration. That means that the economic criteria cannot be the sole determinant of the backwardness and the concept of “creamy layer” was also given which meant that which meant the person who belonged to the backward classes but was well off in other criteria like economically, educationally and socially.
M.R Balaji vs State of Mysore (1962)
ISSUE RAISED
JUDGEMENT
In this case it was held by the supreme court the “Reservation” should not the exceed the ceiling of fifty percent and the distinction which is lead between backward and less backward class is invalid and the factor like poverty should be taken into consideration while determining the backwardness of the class and fifty percent ceiling limit should not exceed as it will violate the fundamental right but it also said that cast cannot be sole bases for the determination of backwardness but other factor should also be considered like poverty and occupation. The court also said that the “Reservation” of sixty eight percent of seats in the technical institution would be injustice for the constitution and also the people of the country
RECENT DVELOPMENTS-
Since 2019 there have been no measure agreement in relation with the “Reservation” for economic weaker section but recently two of the judges who were dealing the case “Janhit Abhiyan vs union of India” in which ten percent (10%) percent “Reservation” was granted to economic weaker section observed that “there is a need to revisit the system of “Reservation” after the seventy five year of independence and “Reservation” cannot go on for a indefinite period” as according to their view the “Reservation” system is to remove the inequality and injustice and it should not be used by the people unjustly. So according them if there is a person who has qualified to the level of proper employment should now be removed from the class of economic weaker people. The criteria for identification to determine who is really economic weaker should be reviewed for revised and it should be also taken into consideration whether the criteria which was set to identify the backwardness is still helpful or matching the current scenario and Justice Pardi Wala quoted that “Dr.BR Ambedkar to state that the idea was to bring social harmony by introducing “Reservation” for only ten years. However, it has continued past 7 decades”. In relation with one of the cases named as “Md Imran Ahmad vs union of India” the supreme court seeked for the response from government and fifteen state and union territory to respond in the plea which is the demand through PIL which was related to “Reservation” of twenty five percent “Reservation” of the entry into the seats for the “economically weaker section”. As this is the very recent amendment therefore there has not been very much development in this regard.
CRITICAL ANALYSIS OF THE EWS “RESERVATION” SYSTEM
The “Reservation” for economic weaker section is a good way to decrease the economic inequality prevalent in the country and can improve the condition, and is a better kind of “Reservation”. But it has several criticisms as well. There are certain lacunas that is needed to be improved. But before going into the lacunas, it is important to look into its advantages as well. First and foremost, advantage is this quota will only be for the section who are economically weaker and have less income, and the section who is already getting an “Reservation” through another kind of quota or being in another backward classes will be excluded from this. Secondly, this is the only “Reservation” for which the general categories are also eligible that means this is the only “Reservation” which could be applicable to general category people of India. Thirdly, the people belonging to the “economically weaker section” will be uplifted and will have more opportunities, this will enhance their level socially as they are the main beneficiaries of this kind of “Reservation” hence will bring down the educational and income based inequality. As the amendment in the constitution will lead to the constitutional recognition of the “economically weaker section”. It is also eventually removing the stigma attached to the “Reservation” system of India that the particular caste is getting unfair advantage and now the “Reservation” is not only based on caste but it is also based on the economic condition of the particular section. But, as it is said that no system could be without any hole in it, the same way EWS “Reservation” also has few holes in it. The income eligibility criteria which prescribe 8 lakh of family income I quite flawed as the major section of Indian society falls into these criteria and which is not suited for the country like India which has high poverty rate, so the 8 lakh income criteria should be brought down. As the 50% ceiling limit or the “Reservation” cap which has been prescribed in the case of “Indira Sawhney” is challenged or to some extent has been breached by the 103rd amendment as due to this particular kind of “Reservation” the ceiling criteria would exceed, hence challenges the judicial decision. Another criticism is that, determining the economic backwardness is very much difficult in the county like India which has very large population and very large population of the “economically backward class” too. This system is not really benefitting the poverty stricken or “economically backward class” as the benefit is not reaching to them, and is getting used by the upper caste of the society. People show the fake income certificate and get easily entitled for the “Reservation”. It is also increasing the difficulties and challenges for the people who are not economically, socially backward and neither belong to any of the backward classes, as these reservations are decreasing the importance of merit-based selection, people belonging to the well-off section are facing struggle in order to compete with the section who are already getting the benefit of “Reservation”. According to the poverty situation of our country 8 lakh family income is not considered to be as poverty stricken or economically weak as according to the data nearly 1% of the India have the family income more than 10 lakh, hence it is making the eligibility absurd and making the idea of social and economic justice go into haste. This system of “Reservation” lays greater emphasis on the income based backwardness rather also laying emphasis on the unemployment, family size, and poverty. Another lacuna is that the family income is 8 lakh which is set for the condition of getting the “Reservation” but there is no emphasis on the family size, even if the family is of three people the 8 lakh income is the minimum income and even if the family size is fifteen the minimum income is still 8 lakh, but if we look into this practically the people with family size of fifteen people are more economically backward than the people belonging to the family of three people with 8 lakh income. The “economically weaker section” in India is too broad and large, as majority of the population falls into the category of “economically weaker section”. These criteria od “Reservation” does not include the people belonging to the category of SC/ST/OBC/SEBC who are considered to be the most backward and poor classes of the society from the history of India, excluding them is very unjust as the people belonging to these categories even after being poverty stricken or economically backward are not able to avail the “Reservation” due to their exclusion from the same. This system is haste as, this was the subject concerning the public at large still this act was passed very quickly within 48 hours only, but it needed to be discussed thoroughly in the parliament as it is not the matter or any minor issue or debate, this issue was of the public at large and the amendment in the constitution should not be taken into this much hurry. There should have been proper and wide discussion and committee discussion. The bill did not go through the proper scrutiny of parliament thus questioning the system as a whole. The statement during the introduction of the amendment was given as “The “economically weaker sections” of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged.” But there was no proper data given to support the statement, thus the topic of such greater importance should not have been taken this much lightly. This was just a guessing game given, as there was no proper data or survey results has been given.
CONCLUSION
As judiciary is the evolving concept the laws and amendment changes with the changing of society and the court’s decision can be challenged anytime considering the evolution of the concept of “Reservation”, but still the granting of ten percent “Reservation” to “economically backward class” is considered to be justified and valid das well. It is true that “Reservation” was evolved as the concept to end the social justice which was present in the history of India but as with the passing of time the concept of inequality and backwardness is becoming broad the economic inequality and economic backwardness should be picturized in the process of granting “Reservation” which will make the system of “Reservation” more efficient and beneficial the economic “Reservation” is truly justified but the elimination of the people of SC/ST/OBC/SEBC is from the EWS “Reservation” is a matter of reviewing and debate as the “Reservation” was the process of eliminating inequality the emphasis should be laid equally on all kind of “Reservation” whether it be economic based “Reservation” and caste based “Reservation”. The supreme court in the case of “Janhit Abhiyaan” was very apt in upholding the one hundred and third amendment of the constitution as it was very necessary step to eradicate the economic inequality and bringing people who belong to economic backwardness out of the pit. As per my analysis the criteria of eight lakh income are questionable as in our country majority of the people have income of less than 10 lakh per annum. And also, the one hundred and third amendment goes against the ceiling limit of fifty percent which was laid down in “Indira Sawhney” case, hence it shows that this amendment itself goes against the judiciary. As per the data available of various portal the one hundred and third amendment was passed into hurry as the parliament did not even get reasonable time to go through the principle of amendment thoroughly.
Article written by
NAME – PRAGYA SINGH
COLLEGE– SYMBIOSIS LAW SCHOOL NAGPUR
INTENRSHIP PERIOD– 20th June to 20th july
Advertisement is the best tool of any company. The whole business industry is based on advertisements. It is a tool which conveys information to the potential consumers in a very effective way. There is a saying by Jay Bear that “Make your marketing so useful, people would pay for it.” Hoodwink advertisement are those commercial portray which affirms cloudy, false, vague or illusory information, which affects average customer’s psychology which influences them to act in other ways towards the brand. An advertisement will be Hoodwink if it misleads an average customer mind in any way, claims false information, omits any material fact which is a must to portray. It includes misrepresentation, unacceptable business practices, misleading content, missing information, unclear relevance, or unavailable offers. Deodorants ads broadcasts themselves as after applying deodorants women starts chasing or liking men.
Advertisements like, after consuming energy drinks consumer gets wings and starts flying. After consuming soft drinks, consumers become fearless.
Advertisements like, after using toothpaste, people have experienced such results that they replaced tube lights and bulbs by human beings for light. The above examples depict Hoodwink Advertisement.
The Supreme Court of India on 10th April 2024, strike out at the Government of Uttarakhand for taking insufficient measures to question the misleading advertisements created and published by Patanjali Ayurveda, a company owned & incorporated by Baba Ramdev and Balkrishna. This rage was an outcome of the indeterminate advertisements made by the company, exclusively only for the product ‘Coronil Kit’ which was trade and retailed as an herbal antidote and a ‘cure’ for the novel Covid-19 during the year 2021.
Recently, in November 2023, Justice Amanullah of the Apex Court even intimated the yoga guru to halt with false advertisements and even warned to impose a fine of Rs. 1 crore on each and every product having been falsely advertised. However, even after continuous warnings, the Supreme court imposed a temporary ban on Patanjali from advertising its products under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.[1]
The main reason for the Supreme Court’s intervention regarding the advertisements of Patanjali started with the product ‘Coronil’. On 23rd June 2020, Patanjali launched the Coronil Kit as a new ayurvedic remedy with a claim to cure the Coronavirus. The product was declared to be clinically tested and verified. Initially, the company claimed that the product helped in completely curing the patient within a few days but later when the Ministry of AYUSH sought to ban the product advertised and sold as a ‘cure’, the company backtracked and refused to accept the initial claims and later asserted the product to be a mere immunity booster. The Ministry strongly criticized the actions of the company and allowed only to sell the product as an immunity booster and not as a cure for Covid-19.
Moreover, it was even asserted that the Coronil kit was a recognized medicine for Covid-19 by World Health Organisation (WHO) but it was later clarified by WHO through a Twitter post that the claims were completely vexatious and no such recognition was given to any medicine. Even though the ministry had advised Patanjali to stop advertising coronil, unknowingly the product was highly advertised by the media houses throughout the country. News channels did not bother to inquire about anything and publicized the product which was even prohibited by the central ministry.
[1] “‘Humbug’: SC slams Patanjali over ‘perfunctory’ apology for misleading ads” The Print (New Delhi, 2 April 2024) <https://theprint.in/judiciary/humbug-sc-slams-patanjali-over-perfunctory-apology-for-misleading-ads/2024299/> accessed 16 April 2024
According to Baba Ramdev, the clinical trial of coronil kit was done at the NIMS University of Jaipur. But later with the unfolding of the controversies, The NIMS University head clarified that the hospital had not participated in any clinical studies for the contentious ayurvedic medication, further distancing the university from any association with the company
As a consequence of all these claims by different ministries and departments, Baba Ramdev in one of his videos made derogatory remarks towards the Indian Medical Association targeting Allopathy and declaring it as a “stupid science”. The association was infuriated by the remarks passed by Baba Ramdev and asked the Union Health Ministry to take action against such claims.
In 2022, a petition was filed by IMA (Indian Medical Association) and the General Secretary of IMA Jayesh Lele filed a case against Patanjali Ayurveda Ltd, Acharya Balkrishna, and the central government for hoodwink advertisements published by Patanjali targeting allopathic practices. The Supreme Court warned to charge a fine of Rs. 1 Crore on Patanjali’s falsely advertised product.
In February 2024, the Supreme Court even demanded an apology from the CEO of Patanjali Balkrishna but the notice of the Apex Court was completely ignored. As a result on 9th April 2024, the Supreme Court asked for an ‘unconditional apology’ from both the founders Acharya Balkrishna and Baba Ramdev. Even the state government of Uttarakhand was scolded for negligence of the actions of the company.
CONCLUSION
In light of the above circumstances, the impact of advertising on consumers is irrefutable, and that is the reason why commercial advertising should be rational. It’s been 28 years since the Consumer Protection Act, 1986 was enacted, yet hoodwink advertisements are still prevailing. Indian Legislature must ensure attempts to curb the unethical behaviour of companies by enacting stringent laws. Even the advertisement agencies must ensure honest advertisement as they are solely responsible for broadcasting.
Article written by
Ashish Sameer Shinde (KES JP Law College, Kandivali)
University of Mumbai THIRD YEAR Semester 6 BA LLB (Hons.)
The 21st century have witnessed a rapid growth in field of commercial and financial transaction leading to economic growth, and creating multiple job opportunities, but the same have created a burden on multilevel dispute settlement mechanism present in India. This created a space for Arbitration to entre, Indian judiciary being tagged as time consuming and costly which leads to damage parties on multiple fronts. While arbitration is considered as a quick and efficient way of dispute settlement in commercial space, considered as time efficient and respects party autonomy while deciding the matter. But settling disputes could be challenging if the arbitrator or the tribunal does not know the seat of arbitration, as it could affect the ‘lex arbitri’ (law governing the arbitration proceeding) and the award passed by the tribunal, therefore determination of seat became fundamental.
As per the Journal of International Arbitration, there could be three reasons[2] why parties have not decided the seat before commencement of the proceeding, firstly, the arbitration clause might be silent or the parties have not reached an agreement of seat before the case is initiated. The clause may not be clear and vague geographic indications could be affecting the possible conclusion, whereas each institution like ICC in Paris or ICDR in New York or SIAC in Singapore have its own rules while determining the seat; like Paragraph 4 Schedule 1 of SIAC Rule 2016 specifies that:
[1] “Dimpal Rathod, Unlocking The Efficiency Of Arbitration: The Significance Of The Seat And Governing Law Of The Arbitration, KHURANA AND KHURANA, March 8th of 2024, MONDAQ.COM.https://www.mondaq.com/india/trials–appeals–compensation/1433794/unlocking-the-efficiency-of-arbitration-the-significance-of-the-seat-and-governing-law-of-the-arbitration”
[2] “Aníbal Sabater, When Arbitration Begins Without a Seat, JOURNAL OF INTERNATIONAL ARBITRATION, October 2010, WOLTER KLUWER.https://www-kluwerarbitration-com.elibrarynlunagpur.remotexs.in/document/kli-ka-1046001-n?q=Seat”
Siac Rule 2016
Paragraph 4 Schedule 1
“Failing such an agreement, the seat of the proceedings for emergency interim relief shall be Singapore, without prejudice to the Tribunal’s determination of the seat of the arbitration under Rule 21.1.”
While referring to Coeclerici Asia v. Gujrat Coke, 2013, Emmanuel Gaillard (Attorney) proposed three theories essential in relation to seat in Australian Federal Court, firstly, The Monolocal Theory derives its authority and legal validity entirely from seat, it follows that the validity of the arbitral award derives exclusively from the law and courts of the territory in which the arbitration takes place. This creates a sphere which intact the tribunal from discovering new characteristics for determination of the seats. Secondly the Multilocal Theory derives the validity of the award not only restricted to the seat of arbitration, but from all legal orders in which recognition and enforcement of the award are sought, like ‘lex contractus’ or law governing the main contract which in absence of seat could be a determining factor. Another possible way could be my considering the ‘lex fori’ or the law governing the forum or ‘lex loci’ law of the land.
Where are the third theory of the transnational theory, holds that the validity of the arbitral award derives from a distinct arbitral legal order, or simply put it derives from the state positivism, or how the state’s proper law will handle the arbitration proceeding where it
[1] “SIAC Rules, 2016, Singapore International Arbitration Centre, 6th Edition, August 1st of 2016.https://siac.org.sg/wp-content/uploads/2022/06/SIAC-Rules-2016-English_28-Feb-2017.pdf”
[2] “Coeclerici Asia (Pte) Ltd v. Gujarat NRE Coke Limited (2013) FCA 882 (30 August 2013) (Australia).”
[3] “Alison Ross, Obituary – Emmanuel Gaillard, April 16th of 2021, GLOBAL ARBITRATION REVIEW.https://globalarbitrationreview.com/article/obituary-emmanuel-gaillard-1952-2021”
[4] “Antoine Cottin & Florian Renaux, Exclusive Application of UNIDROIT Principles to Cure the Parties’ Disagreement on the Lex Contractus: a View from France, May 9th of 2020, KLUWER ARBITRATION BLOG.https://arbitrationblog.kluwerarbitration.com/2020/05/09/exclusive-application-of-unidroit-principles-to-cure-the-parties-disagreement-on-the-lex-contractus-a-view-from-france/”
[5] “Francis Hornyold-Strickland, What Law Governs the Separability of an Arbitration Agreement?, December 25th of 2016, KLUWER ARBITRATION BLOG.https://arbitrationblog.kluwerarbitration.com/2016/12/25/what-law-governs-the-separability-of-an-arbitration-agreement/”
[6] “William W. Park, The Lex Loci Arbitri and International Commercial Arbitration, 1983, BOSTON UNIVERSITY SCHOOL OF LAW.https://scholarship.law.bu.edu/cgi/viewcontent.cgi?article=3487&context=faculty_scholarship”
is going to take place will definitely affect the conclusive outcome of the award. The seat being the crucial part of arbitration proceedings has to be decided wisely in absence of express mention in agreement.
In the land mark judgement of English court in Sulamerica v. Enesa, 2012, which says that the seat can be determined by various potential factors like ‘Expressly mention in the Arbitration Agreement or In absentia, Implied choice of law or its closest and real connection.’ The determination of seat is solely based this three factors, which are some times consider as two only, first, Express choice and second, Closest connection, which was held incorrect in the case of Enercon v. Enercon, 2014 unless the law governing the underlying contract and the seat of the arbitral tribunal is the same. Parties while framing the agreement has to be care full while deciding the seat of the arbitration, which could affect the long-term implications, parties must specifically mention few term explicitly like what will be the ‘seat’ of arbitration, what will be the place of arbitration and which court has the jurisdiction to successfully implement the interim as well as final award.
One of the most crucial finding of the Sulamerica was the express choice of seat in the arbitration agreement, it is the duty of each party to carefully frame the arbitration agreement and explicitly mention that the party’s intent to agree on seat and entire jurisdiction will be in parlance with decided seat. In the case of Bharat Aluminum v. Kaiser Aluminum, 2016 (BALCO) where the seat decided by the parties was London which was expressly mentioned in their arbitration agreement which made it an foreign seated arbitration, where in another case of Amazon v. Future, 2021 (Amazon) the express mention of seat was India making it a domestic arbitration or simply India seated arbitration.
[1] “Matthew Barry, The Role of the Seat in International Arbitration: Theory, Practice, and Implications for Australian Courts, Jun 2015, JOURNAL OF INTERNATIONAL ARBITRATION, WOLTERS KLUWER.https://www-kluwerarbitration-com.elibrarynlunagpur.remotexs.in/document/kli-ka-joia-320302?q=Seat”
[2] “Sulamérica Cia. Nacional de Seguro’s S.A . and Others v. Enesa Engenharia S.A. and Others, High Court of
England and Wales, Queen’s Bench Division, Commercial Court, Folio No.1519, 146 (2012) (United Kingdom).”
[3] “Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1 (India).”
[4] “K.J. Chendhil Kuma, The Governing Law of Arbitration Agreement: Settling the Unsettled, May 13th of 2021, SCC ONLINE TIMES.https://www.scconline.com/blog/post/2021/05/13/the-governing-law-of-arbitration-agreement-settling-the-unsettled/#_ftn23”
[5] “Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc (2016) 4 SCC 126 (India).”
[6] “Amazon COM NV Investment Holdings LLC v. Future Coupons (P) Ltd 2021 SCC Online Del 1279 (India).”
The next popular approach taken by the courts is of interpreting the arbitration agreement, by interpreting the agreement even though the parties have not expressly mentioned the seat, the courts can take the responsibility of determining the seat without neglecting party autonomy, which is called as implied choice of seat. The Apex court in Roger Shashoua v. Mukesh Sharma, 2017, deciding the matter on implied choice of law to determine the seat, as the seat of the dispute was London which was originally only mentioned as an ‘venue’ for the arbitration and not seat. But due to lack of express mention of seat, the court concluded that the ‘venue’ of an arbitration will be the seat for the arbitration proceeding. Considering the same in few cases like Axalta v. Madhuban, 2024 and UOI v. Hardy, 2019 the court in absence of express mention of seat considered the venue as the ‘closest and real connection’ while determining seat.
The third method used by the courts is by determining the closest and most real connection between the seat and dispute around, derived from Sulamerica. In international commercial arbitration parties conduct their business in multiple territories and jurisdictions, making it tough for courts to determine the closest connection. In the case of BNA v. BNB, 2019 that the parties must give careful attention to the drafting of arbitration clauses and clearly state their intensions.
‘Lex Arbitri’ is considered as one of the closest connections while determining the seat, ‘lex arbitri’ is also called as ‘curial law’ or the law applicable to the arbitration agreement while was referred in the case of Reliance v. UOI, 2014. The law applicable to the agreement which could be of any nation or tribunal like SIAC or DIAC, which is one of the valid closest connection while determining the seat. The proper law (substantive law) of the nation plays an important role in the procedural aspect of the arbitration, the next closest connection is in relation to the proper law of the nation which is ‘Lex Contractus’ or where the agreement was formed. While discussing the case of Enka v. Chubb, 2020 the court also noted that in absence of ‘lex arbitri’ or express mention of seat, ‘lex contractus’ become the important factor while deciding the seat for the tribunal.
[1] “Roger Shashoua v. Mukesh Sharma 2017 14 SCC 722 (India).”
[2] “M/S Axalta Coating Systems India Pvt. Ltd v. M/S Madhuban Motors Pvt. Ltd. (2024) Live Law (Del) 173
(India).”
[3] “Union of India v. Hardy Exploration & Production (India) Inc, (2019) 13 SCC 472 (India).”
[4] “BNA v BNB and another (2019) SGCA 84 (Singapore).”
[5] “Reliance Industries and another v. Union of India, (2014) 7 SCC 603 (India).”
[6] “Enka v. Chubb (2020) UKSC 38 (United Kingdom).”
Most of the parties pre-decides which institution they wanted to opt for, for deciding the matter, the institutions like SIAC or LCIA (London) could become one of the closest connection in absence of express mention, such thing becomes ‘Lex Fori’ or law of the forum in which the parties are intent to settle their respective disputes, this usually becomes easier for the tribunal to decide upon. But if the question comes before the tribunal that, weather to follow the ‘lex contractus’ or ‘lex arbitri’ and ‘lex fori’, the ‘lex contractus’ and ‘lex arbitri’ will prevail. The arbitration institutions have power to decide, but does not extend beyond party autonomy.
The confusion around seat is still among the courts and institutions which today also struggle to determine seat without any legal dispute, from one of the land mark judgement of English court that is Sulamerica the court have concluded three basic methods to determine seat like ‘express choice or implied choice or by closest and most real connection’. There are few more multiple ways to determine the seat in respect of international commercial arbitration like where the arbitrator is seating or where is the business of the parties or any intent of the parties while framing the arbitration agreement at the time of drafting.
The new trend of online dispute resolution process has come forward after the pandemic, parties intend to settle disputes online but could not decide over the seat of the arbitration tribunal, here the arbitrator’s location plays an important role and the location of the servers (AWS, Azure or Oracle Cloud) could also be considered as closest and real connection while determining the seat. A brief research and an amendment in model law could help the parties to determine the seat without any substantial legal mechanism.
Article written by
Shree S. Shingade, NLU Nagpur (Intern at RKS Associate)
As businesses expand into international markets, they may encounter legal challenges arising from differences in laws, regulations, business practices, language, and culture, leading to potential conflicts. To navigate these issues, companies may seek assistance from legal professionals with expertise in managing disputes across borders.
International commercial arbitration is a dispute resolution mechanism employed for the resolution of conflicts between parties situated in different jurisdictions, facilitated by an arbitrator or a tribunal of arbitrators. This entails opting for arbitration as an alternative to pursuing litigation in a judicial forum, where the appointed arbitrator or tribunal renders a binding decision on the matter.
The scope of international commercial arbitration extends to diverse disputes, encompassing contractual, intellectual property, investment, and construction-related matters. It is particularly prevalent in scenarios where the disputing parties maintain a commercial relationship and seek to preserve their collaborative ties post-resolution.
The procedural framework governing international commercial arbitration emanates from a nexus of international conventions and domestic legislations, notably the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. This model law furnishes a comprehensive structure for the administration of international commercial arbitration proceedings.
Under the provisions of the Arbitration and Conciliation Act, foreign awards fall within the ambit of the Act’s segment incorporating both New York Convention Awards and Geneva Convention Awards. As per the New York Convention, foreign arbitral awards are characterized as disputes between parties arising from legal relationships. The specific definition of a foreign award is outlined in Section 44 of the Arbitration and Conciliation Act. Similarly, pursuant to the Geneva Convention, foreign awards, as elucidated in Section 53, pertain to disputes between parties arising from commercial matters.
It was determined that the “venue” of an arbitration refers to the chosen geographical location based on the parties’ convenience and is distinct from the “seat” of arbitration, which dictates the appropriate jurisdiction.
A landmark decision was rendered, delineating a clear demarcation between the grounds for objecting to the enforceability of a foreign award under Section 48 of the 1996 Act and the challenges for setting aside an award under Section 34 of the 1996 Act. The Supreme Court significantly narrowed down the scope of the term ‘public policy.’
The Constitution Bench affirmed that Part I and Part II of the statute operate independently, emphasizing the Parliament’s explicit adherence to the principle of territoriality concerning the subject matter of arbitration during the enactment of the statute. Specifically, the Constitution Bench held, among other things, that for international commercial arbitrations with a foreign seat, the legal seat of arbitration serves as the focal point, as opposed to the location where the contract was intended to be executed.
The Supreme Court affirmed that the stipulations of Part I of the 1996 Act are universally applicable to all arbitrations and related proceedings. In instances where such arbitration is conducted within India, the provisions of Part I are mandatory, allowing parties only limited deviation as permitted by the derogatory clauses of Part I. Concerning International Commercial Arbitrations conducted outside India, the provisions of Part I are applicable by default unless the parties, through express or implied agreement, exclude some or all of its provisions. In such instances, the laws or rules chosen by the parties take precedence, and any provisions in Part I contrary to or excluded by those laws or rules shall not be operative.
The Supreme Court determined that in the scenario where a company holds dual nationality, being registered both abroad and in India, it shall be construed as an Indian corporation for the purposes of this Act, rather than being classified as a foreign corporation.
The Supreme Court established that when an arbitral tribunal is constituted by the parties without requiring judicial intervention, the tribunal possesses the authority to adjudicate upon all jurisdictional matters through the exercise of its competence under Section 16 of the Act.
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IBC, prima facie, doesn’t address the issues pertaining to cross border insolvency. But seeks to promote an ad-hoc framework through S. 234 and S. 235. It provides bilateral agreement with foreign countries and the option of sending letters of request to foreign courts for information of CD’s assets. The problem I feel in this is that with the current position, it involves a very lengthy negotiation with individual counties to conclude treaties/agreements which will have different terms and procedures to follow.
When an insolvent debtor has creditors or assets in various jurisdictions or when simultaneous insolvency proceedings are initiated in more than one jurisdiction, Cross Border comes into play.
The above mechanism of Cross Border comes at the cost of certainty and consistency. It falls short in dealing with the challenges related to simultaneous legal proceedings, collaboration, and coordination between judicial bodies and legislative authorities.
Imagine this scenario: ‘X’ company faces insolvency with its assets scattered across different countries and pending claims from multiple lenders. When the company becomes incapable of repaying its debts, lenders in country ‘A’ initiate an insolvency procedure. The court appoints an administrator to handle the company’s assets. At the same time, lenders in country ‘B’, let’s say India, also commence an insolvency procedure. The court initiates the Corporate Insolvency Resolution Process (CIRP) and appoints an Interim Resolution Professional (RP) to initiate the process.
Such a situation raises several complex questions that are not easily answered:
– Can these two insolvency processes occur simultaneously?
– Which administrator/RP should take the lead, establish the Committee of Creditors (CoC), and assume control of the company’s assets (CD)?
– Which jurisdiction’s laws will govern the distribution of the proceeds from a resolution plan?
– Is there a mechanism to consolidate these proceedings to achieve an effective and comprehensive resolution?
ILC recommended the adoption of UNCITRAL Model, 1997 as a separate part of IBC. Adoption of the same will enable India to align its insolvency laws with internationally accepted standards. Presently the government is still considering and soon anytime is expected to release an amendment but this absence of law has not prevented NCLAT from allowing Cross Border for Jet airways case where Indian RP and Dutch administrator sat together and framed protocol largely based on Model law. It made the first Indian company to undergo cross-border treatment. Another decision wherein NCLT Mumbai allowed inclusion of Videocon’s foreign assets in its CIRP in India. The overseas branches or subsidiaries of the company in insolvency should also be considered as part of its assets, which encompass foreign oil and gas assets, as well as any associated interests or claims.
The rationale behind such is that under the garb of insolvency law one should not find an easy exit leaving corporate creditor remedies less and it will be fraud when these companies have strong backup plans in foreign countries. For example, we have the Nirav Modi – PNB Bank case wherein the creditors have not been able to get access to his assets which were in the USA. Thus, calling for special law.
Australia uses the principle of comity of courts which gives them discretion to decide steps w.r.t foreign representatives. The UK and Canada introduced regulations based on the UNCITRAL Model. Singapore is also quick in adaptation. In 2013, it formed a committee to review existing matters.
This Model has 5 principles:
Government has not put the concept of cross border at its top-list for now. As of now, I feel we should have rules in place because the judiciary has its own limitations to extend judicial interpretations. Adoption will give more aid and access. This will help to achieve maximum value of CD’s assets and successful IRP can be done after taking all considerations.
The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at [email protected]