Tuesday, 14 June 2011

E-Delivery of Public Services Development Policy Loan of India

World Bank has been granting loans and grants to India for long. However, there seems to be no mechanism to ensure either the achievement of results or to bring accountability towards the loans and grants so issued. The latest to add to this list is the e-delivery of public services development policy loan to India.

This is the updated version of my previous article on similar topic. E-delivery of services has been seen as an essential part of e-governance in India. However, e-governance itself is based upon good governance that also in a corruption free manner.

E-governance has the potential to eliminate corruption but in the Indian context e-governance itself has become a source of corruption. What is surprising is the fact that this is happening right in front of and under the nose of World Bank. The bigger question is whether the World Bank or Indian government is accountable for loans and grants that are never utilised for the benefit of common man in India?

Recently the World Bank and Indian government signed a loan agreement of $150 million for the e-delivery of public services in India. The loan has been granted as the e-delivery of public services development policy loan to be utilised under the national e-governance plan of India (NEGP).

Although the intentions are good yet the final outcome is not difficult to predict. India has a very poor track record of policy formulation and its implementation. For instance, policies pertaining to cyber law, cyber security, encryption, telecom, telecom security, mobile security, etc are still missing.

Further, India also has a poor track record of e-governance utilisation and providing of electronic delivery of services in India. We have no legal enablement of ICT systems in India and legal framework for e-delivery of services in India is also missing. In fact, as per e-governance experts of India, e-governance in India is dying. Without a mandatory e-governance services in India, e-delivery of services in India cannot be achieved.

According to Praveen Dalal, managing partner of New Delhi based law firm Perry4Law and leading techno legal expert of India, “The Government and Indian Bureaucrats need to change their mindset and stress more upon outcomes and services rather than mere ICT procurement. India needs a services-based approach that is not only transparent but also backed by a more efficient and willing Government. Presently the Bureaucrats and Government of India are in a “resistance mode” towards novel and effective e-governance policies and strategies and they are merely computerising traditional official functions only. This is benefiting neither the Government nor the citizens and is resulting in wastage of thousands of crores of public money and United Nations Development Programme (UNDP) and World Bank Grants amount”.“The Governmental will and leadership is missing in India. To worsen the situation the Government of India is concentrating more upon the image rather than upon the end results. The grassroots level action is missing and the benefits of ICT are not reaching to the under privileged and deserving masses due to defective ICT strategies and policies of Indian Government. India is suffering from the “vicious circle” of defective e-governance, as the basic input .i.e. governance itself is poor. India needs a “virtuous circle” of e-governance through good governance that would have multiplication and amplification effect upon e-governance efforts of Indian Government, says Praveen Dalal.

E-delivery of public services in India is missing and World Bank is not at all interested in establishing transparency and accountability in Indian NEGP. World Bank must ensure accountability of Indian NEGP in order to show that its loans are actually meant for growth and development of Indian masses rather than benefiting few politicians and bureaucrats as is happening right now.

In these circumstance, the e-delivery of public services development policy loan would just add to the woes of Indians as this type of e-governance would be a source of corruption itself rather than removing the mass corruption existing in India. No time in the past the need for a strong and effective Jan Lokpal Act is felt more than the present circumstances where neither India nor International organisations like United Nations, World Bank, UNDP, etc are questioning the acts and omissions of Indian government.

Indian Government, Aadhar Project And UIDAI Are Hiding Truth From You

Indian government, Aadhar project and UIDAI are hiding truth from Indians. While Nandan Nilekani is portraying Aadhar project as beneficial and a welfare scheme, it is nothing but an evil design to indulge in illegal and unconstitutional e-surveillance upon Indians.

Aadhar project and UIDAI are based upon deceit and deception. There is no legal framework, no defined policies and guidelines and most importantly no procedural and civil liberty safeguards.

However, nothing can match the evil practice of websites and Internet censorship in India done by Indian government, its agencies and commercial companies operating in India. For instance, Google has been censoring critical web posts regarding Aadhar project of India and unique identification authority of India (UIDAI) for the past two or more years. Further, it has also temporarily filtered some of our posts questioning the practice of World Bank to grant unaccountable loans to countries like India.

This article has been censored by Google News twice at this and this. Of course, this is neither a co incidence nor a technical glitch that Google is currently facing. The truth is that unaccountable, illegal and unconstitutional websites blocking, Internet censorship and e-surveillance exercise along with lack of legal framework makes Aadhar project and UIDAI very dangerous project and authority. These activities censorship and e-surveillance are supported by the draconian cyber law of India. Citizens wake up before it is too late. Meanwhile here is the controversial interview that has been censored twice.

Unique identification project (UID project) or Aadhar project of India is always portrayed as a welfare scheme. In reality, Aadhar project and UIDAI have evil intentions. In fact, Aadhar project and UIDAI are the most evil projects of India till now.

What is more surprising is why this e-surveillance and big brother project has not been scrapped by the Prime Minister’s office (PMO). In this interview of Praveen Dalal, managing partner of New Delhi based ICT Law Firm Perry4Law and a Supreme Court Lawyer, he has shared his opinion and concerns regarding Aadhar project and UIDAI.

Q 1. Is India ready for a controversial project like Aadhar?

A 1. In my personal opinion, India is not yet ready for either Aadhar Project/UID Project or Unique Identification Authority of India (UIDAI). In fact, both Aadhar and UIDAI are “Highly Undesirable” at this stage. Aadhar and UIDAI must be preceded by a Constitutionally Sound Legal Framework and Parliamentary Oversight. Both of these are missing presently making it an “Unconstitutional Project”.

Q 2. What is the process of making a constitutionally sound law in India?

A 2. Constitutionally preparation of a Legislation/Bill is the duty of Indian Government and it must be passed by the Parliament of India. In this case, an authority like UIDAI is suggesting the Bill that (UIDAI) itself is devoid of any Constitutional Validity. Indian Government must come up with its own Bill on Aadhar Project as even the Bill by UIDAI is mere “Eyewash” and does not make much difference. Even if it is passed by Parliament of India, the Unconstitutional Nature of the Aadhar Project and UIDA would remain the same.

Q-3. What are the serious concerns that have been ignored by Indian Government, UIDAI and Indian Cabinet?

A-3 I found it really surprising the way the Bill prepared by UIDAI was cleared by Cabinet and introduced in the Parliament. Many issues, including Profiling, Privacy Safeguards, Civil Liberties Protection, E-Surveillance, etc have been totally neglected by UIDAI and Cabinet and perhaps would be ignored by the Parliament of India as well.

Q 4. How do you see the present activities of Aadhar project and UIDAI?

A 4. The present exercise of taking Biometric Details of Indians is simply “Unconstitutional”. A Project and Authority without any Legal Sanction and Parliamentary Oversight cannot indulge in these activities on such a mass scale. I believe the Government of India is violating various Civil Liberties of Indian though Aadhar Project and UIDAI by making it, Directly and Indirectly, Relevant and Mandatory.

Q-5. Is Aadhar project and UIDAI still not governed by any legal framework and what are the recent developments in this regard?

A 5 Yes. Till now the position has not changed. Rather it has become worst where the District like Mysore has made UID Number Mandatory for various Public Services even though UIDAI claims it to be Optional. Practically UID never was, and never will be, Optional.

Q 6. What are the possible Civil Liberty violations that Indians can face in near future?

A 6. There are great chances that Biometric Details of Indian would be shared with Intelligence Agencies of India and Law Enforcement Agencies of India. Projects like National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS). Central Monitoring System (CMS), etc would love to utilise these Biometric Details.

Google Web Censorship Has Greatly Increased

Of late, Google has been actively engaging in web results manipulations one way or other. This may be due to governmental orders or on its own. But it is happening for sure.

For some strange reasons Google is engaging in two forms of web censorship. The first one is by putting relevant and critical posts in blackholes. The second method is by actively manipulating the Google news and search results.

Google has been in controversies from time to time. Whether it is illegal data gathering, censorship of Google news searches, manipulation of search results, etc, Google has been doing it all. In fact, it seems Google is actively helping Indian government and its agencies for messing up with Aadhar project, UIDAI, World Bank or any other similar post that questions the wrong practices of Indian government.

What is more astonishing is that India does not have a “Constitutionally Sound Law” for Lawful Interceptions, E-Surveillance, Websites Blocking, Internet Censorship, etc says Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of India. Praveen Dalal has spearheaded the exclusive centre for protection of human rights in cyberspace that keeps a close watch upon civil liberty issues of cyberspace.

One of the most controversial projects imposed by Indian government upon Indian citizens is unique identification project of India (UID project of India) or Aadhar project of India. It is managed by Nandan Nilekani led unique identification authority of India (UIDAI). Both Aadhar project and UIDAI are unconstitutional and operating without any Legal Framework and Parliamentary Oversight, informs Dalal.

Aadhar project and UIDAI are based upon deceit and deception. There is no legal framework, no defined policies and guidelines and most importantly no procedural and civil liberty safeguards.

However, nothing can match the evil practice of websites and Internet censorship in India done by Indian government, its agencies and commercial companies operating in India. For instance, Google has been censoring critical web posts regarding Aadhar project of India and unique identification authority of India (UIDAI) for the past two or more years. Further, it has also temporarily filtered some of our posts questioning the practice of World Bank to grant unaccountable loans to countries like India. Further, international loans and grants related posts questioning the role of World Bank and Indian government are also poorly placed in search results.

Our latest article has been censored by Google News twice at this and this. Of course, this is neither a co incidence nor a technical glitch that Google is currently facing. The truth is that unaccountable, illegal and unconstitutional websites blocking, Internet censorship and e-surveillance exercise along with lack of legal framework makes Aadhar project and UIDAI very dangerous project and authority. These activities censorship and e-surveillance are supported by the draconian cyber law of India. Citizens wake up before it is too late. Meanwhile here is the controversial interview that has been censored twice.

Unique identification project (UID project) or Aadhar project of India is always portrayed as a welfare scheme. In reality, Aadhar project and UIDAI have evil intentions. In fact, Aadhar project and UIDAI are the most evil projects of India till now. What is more surprising is why this e-surveillance and big brother project has not been scrapped by the Prime Minister’s office (PMO). It is high time for us to actively protest against the Aadhar project and UIDAI before it is too late.

Corporate Mergers And Acquisitions Regulations In India

Merger and acquisitions (M&As) have become in indispensable part of Indian corporate environment. Business efficiency warrants that companies and organisations must be merged with or acquired by others for better performance and enhanced profit margins.

A merger is a combination of two or more businesses into one business. In India the term “amalgamation” is used synonymously for merger. An acquisition may be defined as an act of acquiring effective control by one company over assets or management of another company without any combination of companies. Thus, in an acquisition two or more companies may remain independent, separate legal entities, but there may be a change in control of the companies.

However, Merger and acquisitions are not a free ride and they are subject to various Laws of India, informs Praveen Dalal, managing partner of new Delhi based IP and ICT law firm Perry4Law and leading techno legal expert of India. Further, talks are in progress for excluding Banking Related (M&As) in India from the ambit of Competition Commission of India (CCI), informs Dalal.

With the recent proposed amendments in the Banking Regulations Act, 1949, now only Reserve Bank of India (RBI) would have power to regulate M&A pertaining to banking sector. In fact, the proposed amendments have already been approved by Cabinet of India.

The CCI has released the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011, informs Dalal. This is a good step in the right direction, says Dalal.

Now corporate mergers and acquisitions (corporate M&As) would be regulated in India with effect from June 1. The new norms have been drafted with the objective of curbing anti-competitive practices adopted while engaging in M&As. However, M&As that commenced before June 1 with definitive action have been kept outside the competition watchdog’s purview. Similarly, a combination taking place outside India with insignificant local nexus and effect on markets in India will not come under the purview of CCI.

Now the M&As like the proposed Cairn-Vedanta may fall under the purview of the CCI. Though the companies have got the approval from their boards of directors and the process of acquisition is well underway, the deal is yet to be sealed. Let us see how much fairness these proposed regulations would bring in the corporate M&As regime of India.

Monday, 13 June 2011

The Generalised System Of Preferences (GSP) Scheme Of EU And India

European Union and India are in the process of considering the latest Free Trade Agreement (FTA). However, disagreements have already started surfacing. For instance, the intellectual property rights (IPRs) issues have already been subject to hot debate.

Further, EU, India and other countries may also face Technological Issues of IPRs in future, says Praveen Dalal, managing partner of New Delhi base IP and ICT law firm Perry4Law and leading techno legal expert of India. For instance, Technology Transfer has been a subject of much debate in the past. While developed countries are reluctant in technology transfer yet developing countries are insisting for the same, informs Dalal.

Similarly, in the Patent field as well, especially Pharmaceutical related IPRs, tussles between India and other countries are going on. While developed nations are insisting upon TRIPS Plus Provisions in Data Exclusivity regime, India is in no mood to do the same, informs Dalal.

Now EU has aimed another blow upon developing countries. EU’s Trade Commissioner, Karel De Gucht, has announced plans to slash the number of countries, from 176 to 80, that benefit from the generalised system of preferences (GSP) scheme, whereby eligible nations enjoy reduced or zero customs tariffs on imported goods.

The proposed reforms would come into practice from 2014. Speaking to reporters, De Gucht made it clear the action was aimed at large emerging economies like India, Brazil and Russia, which did not require continued specialized assistance, given their newly muscular economies. He said 40 per cent of the EU’s “current preferences benefit Russia, Brazil, China, India and Thailand, which no longer need the same.” Further, countries classified by the World Bank as high-income or upper-middle income countries for three consecutive years would automatically become ineligible.

If dropped, India may be forced to enter into FTAs with EU. This is the core strategy of EU where it can force other countries to fall in line with its own International Trade Objectives, suggests Dalal. However, implications of this decision of EU have yet to be analysed from the perspective of TRIPS Agreement, says Dalal.

The Competition Commission Of India (Procedure In Regard To The Transaction Of Business Relating To Combinations) Regulations, 2011

This is the analysis of the salient features of recent regulations on combinations formulated by Competition Commission of India. The same has been made by Praveen Dalal, Managing Partner of New Delhi based IP, ICT and Corporate Law Firm Perry4Law. The proposed regulations are taking care of large scale corporate mergers and acquisitions in India. However, banking industry related mergers and acquisitions may be excluded from the applicability of these regulations.

The Competition Commission of India (CCI), in exercise of the powers conferred by sub-section (1) and clauses (b), (c) and (f) of sub-section (2) of section 64 read with sub-sections (2) and (5) of section 6 of the Competition Act, 2002, formulated the following regulations applicable with effect from 1st day of June, 2011, namely:

(1) “Combination” means and includes combination as described in section 5 of the Act and any reference to combination in these regulations shall mean a proposed combination or the combined entity, if the combination has come into effect, as the case may be.[1]

(2) In a situation not provided for in these regulations or the Competition Commission of India (General) Regulations, 2009, the Commission may determine the procedure, in specific matters, if so required.[2]

(3) In view of the duty cast upon the Commission under section 18 and powers conferred under section 36 of the Act, and having regard to the mandate given to the Commission to, inter-alia, regulate combinations which have caused or are likely to cause appreciable adverse effect on competition in terms of sub-section (1) of section 6 of the Act, it is clarified that since the categories of combinations mentioned in Schedule I are ordinarily not likely to cause an appreciable adverse effect on competition in India, notice under sub-section(2) of section 6 of the Act need not normally be filed.[3]

(4) Any enterprise which proposes to enter into a combination shall give notice of such combination to the Commission in accordance with sub-section (2) of section 6 of the Act and these regulations.[4] The notice under sub-section(2) of section 6 of the Act, shall ordinarily be filed in Form I as specified in schedule II of these regulations, duly filled in, verified and accompanied by evidence of payment of requisite fee by the parties to the combination including the instances where –

(a) None of the parties to the combination are engaged in the production, supply, distribution storage , sale or trade of similar or identical or substitutable goods or provision of similar or identical or substitutable services, or the parties to combination are not engaged at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or trade in goods or provision of services in which another party to the combination is engaged;

(b) The parties to the combination are predominantly engaged in exports of goods or services from India and continue to be predominantly engaged in exports of goods or services from India after the combination takes effect.
Provided that the market share of the combined entity is less than fifteen percent (15%) in the relevant market in India.

Explanation: A party to the combination shall be deemed to be predominantly engaged in export of goods or services from India if at least seventy five percent (75%) of the turnover of the party to the combination is derived from exports out of India.

(c) An acquisition or acquiring of control over an enterprise is by a liquidator, administrator or receiver appointed through court proceedings or through any scheme approved under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or under the Sick Industrial Companies (Special Provisions) Act, 1985 or any other modification or re-enactment of the law;

(d) An acquisition results from a gift or inheritance;

(e) An acquisition is of a trustee company or arises from a change of trustees of a mutual fund established under the Securities and Exchange Board of India (Mutual Fund) Regulations 1996, as amended from time to time;

(f) The parties to combination are engaged in production, supply, distribution, storage, sale or trade of similar or identical or substitutable goods or provision of similar or identical or substitutable service and the combined market share of the parties to the combination after such combination is less than fifteen percent (15%) in the relevant market ;

(g) The parties to the combination are engaged at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or trade in goods or provision of services, and their individual or combined market share is less than twenty five percent (25%) in the relevant market.[5]

Notwithstanding the provisions of sub-regulation (2), the parties to the combination may, at their option, annex additional supporting documents, if any, with Form I or file notice in Form II as specified in schedule II of these regulations.[6]

Where in the course of inquiry, it is found by the Commission that it requires additional information, the Commission may direct the parties to the combination to file such additional information:[7]

Provided that the time taken by the parties to the combination in filing such additional information shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations.

Having due regard to the provisions of sub-regulations (2) and (4), in cases where the parties to the combination have filed notice in Form I and the Commission requires information in Form II to form its prima facie opinion whether the combination is likely to cause or has caused appreciable adverse effect on competition within the relevant market, it shall direct the parties to the combination to file notice in Form II as specified in schedule II to these regulations:[8]

Provided that the fee already paid by the parties to the combination while filing notice in
Form I shall be reduced from the fee payable for filing notice in Form II:

Provided further that the time taken by the parties to the combination in filing notice in
Form II shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations.

If the requisite details are not available for any of the columns in Form I or Form II, the date on which they may be submitted should be clearly indicated against those columns, by the parties to the combination:[9]

Provided that the time taken by the parties to the combination to submit the requisite details shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations.

The reference to the ‘board of directors’ in clause (a) of sub-section (2) of section 6 of the Act, shall mean and include,

(a) The individual himself or herself including a sole proprietor of a proprietorship firm;
(b) The Karta in case of a Hindu Undivided Family (HUF);

(c) The board of directors in case of a company registered under the Companies Act, 1956;

(d) In case of a corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) or an association of persons or a body of individuals, whether incorporated or not, in India or outside India or anybody corporate incorporated by or under the laws of a country outside India or a cooperative society registered under any law relating to cooperative societies or a local authority, the person or the body so empowered by the legal instrument that created the said bodies;

(e) In the case of a firm, the partner(s) so authorized;

(f) In the case of any other artificial juridical person not falling within any of the preceding sub-clauses, by that person or by some other person competent to act on his behalf.[10]

The reference to the ‘other document’ in clause (b) of sub-section (2) of section 6 of the Act shall mean any binding document, by whatever name called, conveying an agreement or decision to acquire control, shares, voting rights or assets: [11]

Provided that if the acquisition is without the consent of the enterprise being acquired, any document executed by the acquiring enterprise, by whatever name called, conveying a decision to acquire control, shares or voting rights shall be the ‘other document’:

Provided further that where such a document has not been executed but the intention to acquire is communicated to the Central Government or State Government or a Statutory
Authority, the date of such communication shall be deemed to be the date of execution of the other document for acquisition.

(5) The details of acquisition by a public financial institution, foreign institutional investor, bank or venture capital fund, referred to in sub-section(5) of section 6 of the Act, shall be filed without any fee in Form III, as specified in Schedule II to these regulations.[12]

The duly filled in and verified Form III, along with two copies and electronic version thereof, shall be delivered to the Commission at the address published on its official website .[13]

(6) Where a notice filed in Form I or Form II under sub-regulations (2) or (3) of regulation 5 of these regulations is received in the Commission beyond the time limit mentioned in sub-section (2) of section 6 of the Act, the Commission may, without prejudice to other provisions including that of section 43A of the Act, admit such notice.[14]

(7) Where the parties to a combination fail to file notice under sub-section (2) of section 6 of the Act, the Commission may under sub-section (1) of section 20 of the Act, upon its own knowledge or information relating to such combination, inquire into whether such a combination has caused or is likely to cause an appreciable adverse effect on competition within India.[15]

Where the Commission decides to commence an inquiry, referred to in sub-regulation (1), the Commission, without prejudice to any penalty which may be imposed or any prosecution which may be initiated under this Act, shall direct the parties to the combination to file notice in Form II, as specified in Schedule II to these regulations, duly filled in, verified and accompanied by evidence of requisite fee.[16]

The notice, referred to in sub-regulation (2), shall be filed, within 30 days of receipt of communication from the Commission, by the parties to the combination.[17]

(8) In case of an acquisition or acquiring of control of enterprise(s), the acquirer shall file the notice in Form I or Form II, as the case may be, which shall be duly signed by the person(s) as specified under regulation 11 of the Competition Commission of India (General) Regulations, 2009.[18]

In case the enterprise is being acquired without its consent, the acquirer shall furnish such information as is available to him, in Form I or Form II, as the case may be, relating to the enterprise being acquired:[19]

Provided that all information required to be filed, relating to the enterprise being acquired shall be filed with the Commission within fifteen days from filing of the notice and in case the acquirer is not in a position to furnish all the required information in Form I or Form II, as the case may be, relating to the enterprise being acquired, the Commission may direct the enterprise being acquired to furnish such information as it deems fit and the time taken by the parties to the combination or the acquired enterprise, as the case may be, in furnishing the required information including document(s) shall be excluded from the period provided in subsection (11) of section 31 of the Act and sub-regulation(1) of regulation 19 of these regulations.

In case of a merger or an amalgamation, parties to the combination shall jointly file the notice in Form I or Form II, as the case may be, duly signed by the person(s) as specified under regulation 11 of the Competition Commission of India (General) Regulations, 2009.[20]

Where the ultimate intended effect of a business transaction is achieved by way of a series of steps or smaller individual transactions which are inter-connected or inter-dependent on each other, one or more of which may amount to a combination, a single notice, covering all these transactions, may be filed by the parties to the combination.[21]

(9) The person or enterprise filing notice under regulation 5 or regulation 8 of these regulations shall pay the fee as specified under regulation 11 of these regulations.[22] Where the notice is filed jointly, the fee shall be payable jointly or severally.[23]
(10) The amount of fee payable alongwith the notice in Form I or Form II, as the case may be, shall be as under:

(a) Where the notice is filed in Form I, the fee payable shall be rupees fifty thousands (Rs. 50,000) only;

(b) Where the notice is filed in Form II, the fee payable shall be rupees ten lakhs (Rs. 1,000,000) only.[24]

(11) The fee may be paid either by tendering demand draft or pay order or banker’s cheque, payable in favour of the Competition Commission of India (Competition Fund), New Delhi or through Electronic Clearance Service (ECS) by direct remittance to the Competition Commission of India (Competition Fund), Account No. 1988002100187687 with “Punjab National Bank, Bhikaji Cama Place, New Delhi110066”.[25]

(12) The duly filled in and verified notice under regulation 5 or regulation 8 of these regulations along with two copies and an electronic version thereof shall be delivered to the Commission at the address published on its official website.[26]

All responses or other documents required to be filed before the Commission consequent to the filing of the notice under regulation 5 or regulation 8 of these regulations shall also be filed as per the procedure contained in sub-regulation (1).[27]

Provided that for the purposes of this regulation, the Secretary may through public announcement inform the procedure for electronic filing, increase or decrease the number of copies or vary the format in which the electronic version is to be filed.
(13) The notice filed under regulation 5 or regulation 8 of these regulations shall not be valid and complete unless it is in conformity with these regulations.[28] The Secretary shall issue an acknowledgement of the receipt of notice.[29] Where the information or document(s) contained in the notice under regulation 5 or regulation 8 of these regulations has any defect(s) or is incomplete in any respect, the parties to the combination shall be asked to remove such defect(s) or furnish the required information including document(s).[30] The Secretary shall place the proof of service of communication as referred to in sub-regulation (3) to the parties to the combination on record.[31] The parties shall comply with the directions as referred to in sub-regulation (3) within the time specified by the Commission and in the case of the notice filed under regulation 5 the time taken by the parties in removing such defects or furnishing the required information including document(s) shall be excluded from the period provided in sub-section (11) of section 31 of the Act and sub-regulation (1) of regulation 19 of these regulations.[32] In case the parties fail to remove the defects or fail to furnish the required information including documents(s), within the time specified, the notice filed under regulation 5 or regulation 8 of these regulations shall not be treated as a valid notice.[33]

(14) Subject to the provisions of these regulations, the time period under sub-section (11) of section 31 of the Act shall commence from the date of receipt of notice, in writing, filed under regulation 5 of these regulations.[34]

(15) The parties to the combination having filed a notice under regulation 5 or regulation 8 of these regulations, shall inform the Commission of any change in the information provided in the notice to the Commission at the earliest during the continuation of the proceedings under the Act.[35] The Secretary shall place the information relating to any change in the notice before the Commission not later than the third working day of its receipt in the Commission.[36]The Commission shall assess the significance of the information relating to that change and, if satisfied, take on record the information received.[37] Where the Commission is of the view that the change is likely to affect the factors for the determination of the appreciable adverse effect on competition significantly, it may, after giving an opportunity of being heard and after recording reasons, treat the notice already filed as not valid.[38] Where the Commission has held a notice to be not valid under sub-regulation (4), the Secretary shall convey the decision of the Commission to the parties to the combination within seven days of the decision of the Commission.[39]
Provided that no additional fee shall be payable if a notice is filed again by the parties to the combination for the same transaction within a period of thirty days from the date of communication of the decision of the Commission.

(16) The proceedings under this Act relating to the combinations shall be terminated upon,

(a) Receiving an intimation from the person(s) or enterprise(s) who filed the notice to the effect that the proposed combination will not take effect;

(b) Passing of an order by the Commission under section 31 of the Act.[40]

(17) Save as otherwise provided in the Act or in these regulations, the service of any notice excluding the notice under sub-section (2) of section 6 of the Act, or intimation to any person or enterprise under these regulations shall be effected in the manner as provided in regulation 22 of the Competition Commission of India (General) Regulations, 2009 or by electronic transmission as considered appropriate by the Commission.[41]

(18) The Commission shall form its prima facie opinion under sub-section (1) of section 29 of the Act, on the notice filed in Form I or Form II, as the case may be, as to whether the combination is likely to cause or has caused an appreciable adverse effect on competition within the relevant market in India, within thirty days of receipt of the said notice.[42]

For the purpose of forming its prima facie opinion under sub-section (1) of section 29 of the Act, the Commission may, if considered necessary, require the parties to the combination to file additional information or accept modification, if offered by the parties to the combination before the Commission has formed prima facie opinion under sub-regulation (1), as deemed fit by it:[43]

Provided that the time taken by the parties to the combination, in furnishing the additional information or for offering modification shall be excluded from the period provided in sub-regulation (1) of this regulation and sub-section (11) of section 31 of the
Act.

Provided further that in such a case where the modification is offered by the parties to the combination before the Commission has formed the prima facie opinion under sub-regulation (1), the additional time, not exceeding fifteen days, needed for evaluation of the offered modification, shall be excluded from the period provided in sub-regulation (1) of this regulation and sub-section (11) of section 31 of the Act.

Where the Commission deems it necessary, it may call for information from any other enterprise while inquiring as to whether a combination has caused or is likely to cause an appreciable adverse effect on competition in India.[44]

(19) After receipt of the response to the notice to show cause from the parties to the combination under sub-section (1) of section 29 of the Act, the Commission may decide to call for a report from the Director General under sub-section (1A) of section 29 of the Act within the time as specified by the Commission.[45] The Secretary shall convey the direction of the Commission under sub-regulation (1) to the Director General, along with copy of the notice filed by the parties to the combination with all other documents, materials, affidavits, statements, which have been filed or are otherwise available with the said notice, the notice to show cause to the parties to the combination and response of the parties to the same.[46] The Director General shall include in his report the basis of having reached the conclusions therein together with all evidences or documents or statements collected during the investigation and analysis thereof.[47] Two copies of the report of the Director General duly signed on each page by the Director General, or his authorized officer, along with an electronic version in document format, shall be forwarded to the Secretary within the time specified by the Commission.[48]

Provided that the Secretary may increase or decrease the number of copies of the report and may permit electronic transmission of the same.

(20) Where the Commission under sub-section(2) of section 29 of the Act is of the prima facie opinion that the combination has caused or is likely to cause appreciable adverse effect on competition within the relevant market in India, the Secretary shall, within four working days of such decision convey the direction of the Commission to the parties to the combination, to publish the details of the combination within ten working days of the date of such direction.[49]

The details of combination shall be published by the parties in Form IV, as specified in Schedule II to these regulations.[50] The parties shall submit the details of combination to be published under sub-regulation (2) to the Commission before its publication and the Commission may host the same on its official website.[51] The details of the combination to be published under sub-regulation (2) shall, also be hosted by the parties on the websites of their respective enterprises not later than the time specified in sub-regulation (1).[52] The parties shall publish the details of the combination under sub-regulation (2), not later than the time specified in sub-regulation (1), in all India editions of four leading daily newspapers including at least two business newspapers.[53]

(21) The parties to the combination shall submit copies of publication, referred to in regulation 22, to the Secretary, not later than the fifteenth day of the direction of the Commission for publication of the details of the combination.[54]

(22) Where the Commission deems it necessary to give an opportunity of being heard to the parties to the combination before deciding to deal with the case in accordance with the provisions contained in section 31 of the Act, the Secretary shall convey its directions to the said parties, to appear before it by giving a notice of such period as directed by the Commission.[55]

(23) Where the Commission is of the opinion that combination has or is likely to have appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination to the parties to such combination.[56]

Where the parties to the combination have accepted the modification proposed by the Commission under sub-section (3) of the section 31 of the Act or the Commission agrees with the amendment to the proposed modification by the parties and approves the combination under sub-section (7) of section 31 of the Act or the parties, in terms of the provisions of subsection (8) of section 31 of the Act, accept the modification proposed by the Commission under sub-section (3) of section 31 of the Act, the parties to the combination shall carry out such modification as per the terms and conditions and within the period as may be specified by the Commission and submit an affidavit to that effect.[57]

Where the parties accept the modification proposed by the Commission under sub-section (3) of section 31 of the Act or the Commission agrees with the amendment submitted by the parties under sub-section (6) of section 31 of the Act, it shall by order, approve the combination.[58]

If the parties to the combination fail to accept the modification proposed by the Commission within the time referred to in sub-section (6) of section 31 of the Act or within a further period referred to in sub-section (8) of section 31 of the Act, the combination shall be deemed to have an appreciable adverse effect on competition and be dealt with in accordance with the provisions of the Act.[59]

(24) The modification referred to in regulation 25 of these regulations shall be carried out by the parties to the combination within the period as may be specified by the Commission.[60] The parties to the combination shall, upon completion of modification, file a compliance report for the actions required for giving effect to the combination before the Secretary within seven days of such completion.[61] In case the parties to the combination fail to file the compliance report under sub-regulation (2), the Secretary shall place the matter of such non-compliance before the Commission for appropriate directions.[62]

(25) Where the Commission is of the opinion that the modification proposed by it and accepted by the parties to the combination needs supervision, it may appoint agencies, to oversee the modification, on such terms and conditions as may be decided by the Commission.[63] The agencies appointed under sub-regulation (1) shall be independent of the parties to the combination having no conflicts of interest. Such independent agencies referred to in this regulation may include an accounting firm, management consultancy, law firm, any other professional organization, or part thereof, or independent practitioners of repute.[64] The agencies appointed under sub-regulation (1) shall carry out the responsibilities as specified by the Commission from time to time.[65] The agencies appointed under sub-regulation (1) shall submit a report to the Commission upon completion of each of the actions required for carrying out the modification.[66] The payment to the agencies appointed under sub-regulation (1) shall be made by the parties to the combination by depositing it with the Commission or as may be directed by the Commission.[67]

(26) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India, it shall pass an order under sub-section (2) of section 31 of the Act that the combination shall not take effect.[68] Where the Commission is of the opinion that the combination does not or is not likely to have an appreciable adverse effect on competition, it shall pass an order under sub-section (1) of section 31 of the Act, approving the combination.[69] Where the Commission approves the combination with modification, the order of the Commission approving the combination shall specify the terms, conditions and the time-frame for all the actions required for giving effect to the combination.[70] Where the parties to the combination fail to carry out the modification accepted by them within the stipulated time limit, the Commission shall issue appropriate directions.[71] The Secretary shall communicate to the parties to the combination, the decision of the Commission under sub-regulation (1) or (2) or (3) or (4) within seven days of such decision.[72] Having due regard to the provisions contained in sub-section (11) of section 31 of the Act, the Commission shall endeavour to pass an order or issue direction in accordance with sub-section (1) or sub-section (2) or sub-section (7) of section 31 of the Act within one hundred and eighty days of filing of the notice under sub-section (2) of section 6 of the Act.[73] Subject to the provisions of section 57 of the Act, and regulation 30 of these regulations, the orders passed by the Commission under section 31 of the Act shall be published on its website.[74]

(27) Subject to the provisions contained in section 53B of the Act, the Central Government or the State Government or a local authority or enterprise or any person, who is party to proceedings on matters relating to a combination and is aggrieved by any direction, decision or order referred to in clause (a) of section 53A of the Act may prefer an appeal to the Competition Appellate Tribunal.[75]

(28) Any request for confidentiality of information or documents submitted during the investigation shall be duly considered having due regard to the procedure laid down in the Competition Commission of India (General) Regulations, 2009, as amended from time to time.[76] The request under sub-regulation (1) may, inter-alia, clearly state the reasons, justification and implications for the business of the parties to the combination so that all relevant factors may be considered by the Commission while taking decision in the matter.[77]

(29) The notice referred to in sub-section (2) of section 6 of the Act would be applicable as follows:

(a) For mergers or amalgamations referred to in clause (c) of section 5 of the Act, notice to be filed only in regard to proposals approved by the board of directors on or after the 1st day of June, 2011; and

(b) For acquisitions referred to in clause (a) of section 5 of the Act or acquiring of control referred to in clause (b) of section 5 of the Act, notice need to be filed only, where binding document(s) is executed, on or after the 1st day of June, 2011.[78]

Explanation-Approval of board of directors under clause (a) of this regulation refers to the final decision of the board of directors.

(30) The provisions of these regulations shall have effect in all matters relating to combinations notwithstanding anything inconsistent therewith contained in any other regulations framed under the Act.[79]

(31) Having regard to the provisions of the Act, the Commission may, from time to time, in discharge of its duties, issue general or sector specific directions, guidelines, clarifications or circulars for regulation of combinations.[80]

(32) Where the Commission deems fit, it may seek opinion of any other agency or statutory authority in relation to a combination.[81]

(33) In the matter of implementation of the provisions of these regulations, if any doubt or difficulty arises, the same shall be placed before the Commission and the decision of the Commission thereon shall be final and binding.[82]

© All Rights Reserved. No part of this work shall be used, reproduced, copied or utilised in any manner whatsoever except with the prior written approval of Praveen Dalal, Managing Partner of Perry4Law. For any query, contact at pd37@rediffmail.com and perry4law@yahoo.com.

[1] Rule 2(1) (b) of Regulations 2011.
[2] Rule 3 of Regulations 2011.
[3] Rule 4 of Regulations 2011.
[4] Rule 5 (1) of Regulations 2011.
[5] Rule 5 (2) of Regulations 2011.
[6] Rule 5 (3) of Regulations 2011.
[7] Rule 5 (4) of Regulations 2011.
[8] Rule 5 (5) of Regulations 2011.
[9] Rule 5 (6) of Regulations 2011.
[10] Rule 5 (7) of Regulations 2011.
[11] Rule 5 (8) of Regulations 2011.
[12] Rule 6(1) of Regulations 2011.
[13] Rule 6(2) of Regulations 2011.
[14] Rule 7 of Regulations 2011.
[15] Rule 8(1) of Regulations 2011.
[16] Rule 8(2) of Regulations 2011.
[17] Rule 8(3) of Regulations 2011.
[18] Rule 9(1) of Regulations 2011.
[19] Rule 9(2) of Regulations 2011.
[20] Rule 9(3) of Regulations 2011.
[21] Rule 9(4) of Regulations 2011.
[22] Rule 10(1) of Regulations 2011.
[23] Rule 10(2) of Regulations 2011.
[24] Rule 11 of Regulations 2011.
[25]Rule 12 of Regulations 2011.
[26] Rule 13(1) of Regulations 2011.
[27] Rule 13(2) of Regulations 2011.
[28] Rule 14(1) of Regulations 2011.
[29] Rule 14(2) of Regulations 2011
[30] Rule 14(3) of Regulations 2011
[31] Rule 14(4) of Regulations 2011
[32] Rule 14(5) of Regulations 2011
[33] Rule 14(6) of Regulations 2011
[34] Rule 15 of Regulations 2011.
[35] Rule 16(1) of Regulations 2011.
[36] Rule 16(2) of Regulations 2011.
[37] Rule 16(3) of Regulations 2011.
[38] Rule 16(4) of Regulations 2011.
[39] Rule 16(5) of Regulations 2011.
[40] Rule 17 of Regulations 2011.
[41] Rule 18 of Regulations 2011.
[42] Rule 19(1) of Regulations 2011.
[43] Rule 19(2) of Regulations 2011.
[44] Rule 19(3) of Regulations 2011.
[45] Rule 20(1) of Regulations 2011.
[46] Rule 20(2) of Regulations 2011.
[47] Rule 21(1) of Regulations 2011.
[48] Rule 21(2) of Regulations 2011.
[49] Rule 22(1) of Regulations 2011.
[50] Rule 22(2) of Regulations 2011.
[51] Rule 22(3) of Regulations 2011.
[52] Rule 22(4) of Regulations 2011.
[53] Rule 22(5) of Regulations 2011.
[54] Rule 23 of Regulations 2011.
[55] Rule 24 of Regulations 2011.
[56] Rule 25(1) of Regulations 2011.
[57] Rule 25(2) of Regulations 2011.
[58] Rule 25(3) of Regulations 2011.
[59] Rule 25(4) of Regulations 2011.
[60] Rule 26(1) of Regulations 2011.
[61] Rule 26(2) of Regulations 2011.
[62] Rule 26(3) of Regulations 2011.
[63] Rule 27(1) of Regulations 2011.
[64] Rule 27(2) of Regulations 2011.
[65] Rule 27(3) of Regulations 2011.
[66] Rule 27(4) of Regulations 2011.
[67] Rule 27(5) of Regulations 2011.
[68] Rule 28(1) of Regulations 2011.
[69] Rule 28(2) of Regulations 2011.
[70] Rule 28(3) of Regulations 2011.
[71] Rule 28(4) of Regulations 2011.
[72] Rule 28(5) of Regulations 2011.
[73] Rule 28(6) of Regulations 2011.
[74] Rule 28(7) of Regulations 2011.
[75] Rule 29 of Regulations 2011.
[76] Rule 30(1) of Regulations 2011.
[77] Rule 30(2) of Regulations 2011.
[78] Rule 31 of Regulations 2011.
[79] Rule 32 of Regulations 2011.
[80] Rule 33 of Regulations 2011.
[81] Rule 34 of Regulations 2011.
[82] Rule 35 of Regulations 2011.

Computer Forensics Courses In India

The word computer forensics depicts a picture of science fiction movie where cops or professionals engage in the same with great ease and style. However, in real life things are not as easy and glamorous as they are shown in movies.

Computer forensics is not an easy task. Rather it is a complicated procedure that requires great cyber skills development. Computer forensics requires practical scientific knowledge about computers and associated accessories. The evidence acquired through computer forensics must be legally admissible hence every precaution must be taken to acquire evidence in a legally acceptable manner.

Computer forensics in India is still at its infancy stage. This is so because there is a general lack of legal enablement of ICT systems in India. In the absence of adequate legal enablement of ICT systems in India, cyber forensics has also not developed much.

Another reason for lack of computer forensics in India is absence of adequate and qualitative techno legal cyber forensics institutions. There are very few institutions that provide cyber forensics educations and training in India. However, cyber forensics is techno legal in nature that must cater both technical and legal requirements of the learners.

India has a single techno legal cyber forensics research, training and educational institution. It is managed by Perry4Law Techno Legal Base (PTLB). The centre is providing techno legal cyber forensics education, trainings and course in India.

PTLB is providing its cyber forensics courses and other techno legal course and trainings through the use of e-learning and online education models. Registration for online education and trainings in the field of cyber forensics and other techno legal courses of PTLB can be done through its online platform.

The present course is a basic level course and highly specialised courses would also be provided in future. The same would be managed by Perry4Law Techno Legal ICT Training Centre (PTLITC).

Some of the topics covered by the basic level computer forensics course include basic introduction about applicable law, cyber law of India, digital evidencing in India, e-mail tracing, data recovery, etc. The students or professionals undergoing the basic level trainings and education from PTLB would be given preference for courses and trainings undertaken by PTLITC.

Application form for the enrollment to various courses, internships and trainings can be downloaded from here and more details about the courses of PTLB can be found here.

PTLITC is also in the process of providing highly specialised and domain specific techno legal trainings, courses and educations in the fields like cyber law, cyber security, cyber forensics, anti cyber terrorism, anti cyber warfare, human rights protection in cyberspace, lawful interceptions and self defence against unlawful interceptions, etc.

If you have a temperament for techno legal course, get yourself a seat as techno legal profession is going to be one of the most remunerative and in demand profession in future.

Cyber Skills Development In India

Cyber skills have become very important these days. Whether you are using these skills for personal purposes or for professional purposes, you must possess them to get the best out of information and communication technology (ICT).

Cyber skills must be ensures in areas like cyber law, cyber security, cyber forensics, etc as these are in great demand these days. Professionals possessing good cyber skills are scanty in every part of the world and this has raised their demand at very remunerative packages.

This is the reason that we must ensure cyber skills development in India. These days not only cyber skills are required in civil areas but they are also needed for military and intelligence purposes. India need to develop good and effective cyber skills as presently it is lagging far behind than other countries.

The real problem in this regard is that we have very few cyber skill development institutions in India. For instance, we have just a “single” techno legal cyber security and skill development centre in India. This exclusive techno legal cyber security research and training centre of India (CSRTCI) is managed by Perry4Law Techno Legal Base (PTLB).

Perry4Law is supervising the special techno-legal online security investigation, training and educational centre in India. It is managing the same through its online platform that is providing world class and exclusive techno legal courses and trainings in the fields like cyber law, cyber security, cyber forensics, etc.

Those interested in getting these trainings and courses can enroll there. Further, the application form for enrollment can be downloaded from here. The interested candidate must duly fill the form and submit the same along with the prescribed fees. You must also refer to the FAQs for more details regarding the fees, duration of courses, natures of courses, etc.

Perry4Law and PTLB are also looking for educational and training institutions and organisations as franchise and partners. Interested persons/institutions/ organisations must contact them with complete proposal. Students and professionals desiring to get techno legal trainings from PTLB can also contact it in this regard.

Judges Training In India By PTLB

Training of judges in India is a much needed requirement. This is more so regarding online training of judges in India. Online training can open many avenues for Indian judiciary to upgrade its knowledge and skills on a regular basis. It is not always possible to leave the intricate day to day court work and join classes or training outside court complex.

Lifelong learning for judges in India is another good option. Lifelong learning ensures that judges are regularly in touch with the contemporary national and international legal standards. Further, laws also keep on changing from time to time. It is always beneficial if judges are regularly made aware of the contemporary laws.

A special emphasis must be given to technology related laws and regulations. These include telecommunication laws, cyber laws, digital evidencing and electronic evidencing, online dispute resolutions (ODR), e-courts, etc.

The reforms must also be done at the legal education level. From the basic level legal education to continuing legal education in India (CLE in India), everything must be streamlined. Such CLE in India must be combined for legal and judicial trainings in India.

Judicial infrastructures in India also need to be improved and modernised. Not only Indian courts must be computerised but e-courts in India must also be constituted. The present e-courts infrastructure of India needs rejuvenation as it has not improved at all.

Indian judges must be urgently trained in fields like cyber law, cyber forensics, e-courts, ODR, etc. The present national litigation policy of India (NLPI) must be suitably amended to meet these objectives.

Saturday, 11 June 2011

Non-Banking Finance Companies (NBFC) Laws In India

Reserve Bank of India (RBI) has recently announced setting up of a working group to examine issues pertaining to regulation, governance and supervision of Non-Banking Finance Companies (NBFC) operating in India. The working group would be providing its recommendation in this regard.

While the recommendations of the working group are pending, an important development has taken place. Till now it was assumed that only Parliament of India has the power to legislate regarding NBFCs in India. However, this notion has been completely changed by the recent judgment of Supreme Court of India (SCI).

In two separate judgments, the Bombay High Court and Madras High Court held different opinions. The Bombay High Court declared the Maharashtra Protection of Interests of Depositors (in Financial Establishments) Act as unconstitutional holding that only Parliament can pass such a law. However, the Madras High Court on the other hand, upheld the Tamil Nadu law, which was almost identical to that of Maharashtra.

In both cases, the State Governments passed legislations to protect depositors from fraudulent companies and schemes. The SCI held that Bombay High Court was wrong and Madras High Court’s view was the correct one.

A Bench consisting of Justice Markandey Katju and Justice Gyan Sudha Misra upheld the “constitutional validity” of such State laws and termed such laws as salutary measures which were long overdue to deal with scamsters.

The Bench held that if in “pith and substance” a law falls under the legislative powers of a State Government, it is valid and constitutional. The Bench further held that the objectives of such State laws must also be kept in mind as a sharp and distinct lines of demarcation are not always possible and it is often impossible to prevent a certain amount of overlapping.

The bench also observed that the Reserve Bank of India Act and the Banking Regulation Act, 1949 do not cover the field of operation of the non-banking financial companies. The Companies Act also does not directly deal with the problem posed by large-scale cheating of middle class depositors who are lured by promises of high interest rates.

Therefore, the laws to protect small depositors, by attachment of the property of the companies and other steps, was a salutary step and could not be set aside as unconstitutional, the judgment said. This judgment would go a long way in bringing suitable reforms in the NBFC sector of India.

RBI Working Group On Non Banking Finance Companies (NBFCs)

The Reserve Bank of India (RBI) on Monday announced setting up of a working group to examine issues pertaining to regulation, governance and supervision of Non-Banking Finance Companies (NBFC) operating in India. The working group is headed by Usha Thorat, former Deputy Governor of RBI.

The working group would also stress upon definitional and classification issues and address the regulatory gaps between exiting regulatory frameworks for NBFCs. The group would also focus on maintaining standards of governance in the sector and provide appropriate approach to NBFC supervision

The NBFC sector in India has undergone a significant transformation in the past few years and has come to be recognised as a systemically important element of the financial system. The recent global financial crisis also highlighted the regulatory imperatives concerning the non-banking financial sector and the risks arising from regulatory gaps, arbitrage and systemic inter-connectedness. A need was, therefore, felt to reflect on the broad principles that underpin the regulatory architecture for NBFCs, keeping in view the economic role and heterogeneity of this sector and the recent international experience.

RBI has also announced in the past a regulatory framework for Core Investment Companies (CICs) that are systemically important. These CICs hold assets predominantly as investments in shares of group companies and not carry on any other financial activity. These CICs also deserves a differential treatment than NBFC hence RBI announced the regulatory framework for CICs on August 12, 2010.

As per that regulatory framework, CICs were distinguished from the regulatory guidelines applicable to NBFCs in general. Recently, a revised framework was issued on January 5, 2011, which further liberalised the earlier regulatory framework.

On top of this, RBI is in the process of formulating wealth management regulation in India. This would prevent many fraudulent transactions that are presently committed in India. It seems banking reforms in India is on government agenda this year.