On August 11, 2016, the Government of India (GoI) introduced the Maternity Benefit (Amendment) Bill, 2016 (Bill) in the Parliament. The Bill was introduced to amend the Maternity Benefit Act, 1961 (Act) – the Act, as many may be aware, is the legislation to provide certain benefits to women in the context of pregnancy. The Act is applicable to factories, mines and plantations as well as to every ‘shop and establishment’ (a statutory term that would ordinarily cover various organizations in the private sector with an office/place of business in India) in which ten or more persons, are/ were, employed, on any day over the preceding twelve months.

On September 11, 2008, the GoI introduced the recommendations of the Sixth Central Pay Commission relating to enhancement of the amount of maternity leave and introduced child care leave in respect of central government employees. Effectively this resulted in increase in maternity leave and child care leave. Separately, several companies in the private sector introduced more beneficial provisions for female employees including better maternity leave than the Act provided. However, the Act did not introduce any changes in line with the changing needs of working women /mothers which the Bill intends to address.
Continue Reading Maternity Benefit Law : Key Developments

The power of judicial review enables the judiciary to determine the constitutional validity of legislative and/or executive actions, possibly making them subject to invalidation.

The power of judicial review by Tribunals was examined and decided by the Supreme Court in S.P. Sampath Kumar v. Union of India and in the subsequent case of L. Chandra Kumar v. Union of India. After the decision in Sampath Kumar case divergent views were taken by various benches of the Supreme Court. The matter was therefore referred to a seven judge bench of the Supreme Court in L. Chandra Kumar.

Continue Reading Power of Judicial Review by the National Green Tribunal

On July 11, 2016, the President of the Queen’s Bench accorded final approval to the second Deferred Prosecution Agreement (DPA) entered into by the Serious Fraud Office of the UK (SFO). Through this short post, we seek to examine the DPA, what such approval of the DPA means and its significance for UK owned/based companies in India (Indco) that are subject to the provisions of the UK Bribery Act, 2010 (UKBA).

Continue Reading UK SFO’s Second DPA: Implications for Indian Companies

The Law Commission of India’s report of August 2014 on the Indian Arbitration Act mentions that amendments are being suggested to the Arbitration Act to provide a “stable business environment and strong commitment to the rule of law, based on predictable and efficient systems of resolution of disputes.”

Amendments to the Indian Arbitration Act, 1996 were passed by both Houses of Parliament and assented to by the President on December 31, 2015. These amendments apply to all arbitral proceedings commenced on or after October 23, 2015 but parties can agree to even apply these amendments to proceedings commenced before the Amendment Act.

Continue Reading India and International Arbitration: Prospects

The regulatory regime governing the exploration and production of hydrocarbons in India is a complex one that has undergone a plethora of change in recent times. This post examines the many developments as well as the past discourse that has set the context for change. .

Brief Background of the Regulatory Regime Governing the Hydrocarbon Sector

In post-1991 India, regulatory reforms in the hydrocarbon sector were implemented through a royalty-cost recovery regime initially under a set of Production Sharing Contracts (PSCs) (Pre-NELP PSCs) and thereafter under the New Exploration Licensing Policy (NELP). Both regimes presented challenges for contractors as well as the Government. Cost recovery meant that the contractor would spend money upfront to explore and recover the same from the revenue generated from the block, then sharing any balance revenue, i.e. “profit”, with the Government.

Continue Reading The Search for Hydrocarbons – A Regulatory Conundrum

The Enforcement of Security Interest and Recovery of Debt Laws and Miscellaneous Provisions (Amendment) Act, 2016 (the Act) received assent of the President on August 12, 2016 and was  published in the Gazette on August 16, 2016. It will come into effect from such date(s) as may be notified by the Central Government. The Act makes far reaching changes to the way securitisation and reconstruction companies are regulated, as well as the category of financial assets and the secured creditors to whom non- judicial remedies and access to debt recovery tribunals are available. We try to examine this through this short post.

Continue Reading The Changing Landscape of Securitisation & Debt Recovery

The question of the enforceability of contractual restrictions on transfer of shares of Indian public limited companies (Companies) has been the subject matter of various decisions by Indian courts. The Indian legislature has also examined this aspect, which has resulted in a change in the relevant legislation. Through this post, we examine the position as it stands today.

The debate on the enforceability of shareholder agreements and joint venture agreements governing Companies garnered significant attention in early 2010 when a single judge of the Bombay High Court (Bombay HC) set aside an arbitral award in a 2010 decision in Western Maharashtra Development Corporation Ltd. v. Bajaj Auto Ltd. The judgment indicated that the shares of a Company could not be fettered, were freely transferable and as such, any restriction on free transferability would be a violation of section 111A of the erstwhile Companies Act, 1956 (1956 Act).

Continue Reading Enforceability of Contractual Restrictions on Transfer of Shares

A Brief Background

Sexual harassment at the workplace was first recognized as a violation of basic human rights by India’s apex court, the Supreme Court (SC) in Vishaka v. State of Rajasthan (Vishaka Judgment) in 1997. In its judgement, the SC opined that sexual harassment was violative of the fundamental rights of women guaranteed under the Constitution of India, 1950 including the constitutionally guaranteed rights to life, equality, dignity and to practice any profession/carry on any occupation, trade or business. Accordingly, and in the absence of specific legislation at that time, the SC had enunciated guidelines for the prevention of sexual harassment at the workplace.

Continue Reading Challenges Faced by Employers in Addressing Sexual Harassment Complaints

Amidst much anticipation, the Department of Industrial Policy and Promotion released Press Note 3 (PN3) in March of 2016 (now incorporated in the Consolidated FDI Policy dated June 7, 2016) to clarify its stand on the subject of foreign direct investment (FDI) in e-commerce. This post is an attempt to highlight certain issues arising out of PN3 in relation to the use of the term ‘services’, which may not only impact the e-commerce players but may also extend to other businesses which utilize electronic platforms.

Through the release of PN3, the Department clarified its stance on two key aspects: (a) FDI is permitted in the ‘marketplace model of e-commerce’ under the automatic route (i.e., without prior approval); and (b) FDI is prohibited in the ‘inventory based model of e-commerce.

Continue Reading The E-commerce Press Note – Some Unanswered Questions

From time to time, concerns have been raised by entrepreneurs and various Indian and international surveys about the challenges faced by start-ups and other companies doing business in India. India has also been rated very low on charts concerning ease of doing business.

India is a vast country with several states and union territories, which presents differences in culture, language, faith and food habits. But doing business in India also means complying with a long list of Central (Federal) and State statutes and their varied interpretations. In addition, judicial pronouncements of concerned High Courts and the Hon’ble Supreme Court of India must be taken into consideration.

Regulatory compliance with several laws is time consuming and complicated, adding to the financial and intellectual burden on start-ups. This, in turn, shifts their focus from development and growth of the core business to ensuring compliance with laws.

As a result, laws, rather than acting as a catapult and augmenting the growth of businesses, force several start-ups to reconsider their plans/strategies concerning doing business in India.

Continue Reading Employment Issues Faced by Start-Ups in India