Legislation UpdatesNotifications

G.S.R.282(E) — In exercise of the powers conferred by sub-sections (1) and (2) of Section 3 of the Repatriation of Prisoners Act, 2003 (49 of 2003), the Central Government hereby directs that the provisions of the said Act shall apply to the Federal Republic of Brazil. The full text of the Agreement on Transfer of Sentenced Persons signed by the Republic of India and the Federal Republic of Brazil on 15.10.2013 is given below. The Agreement was ratified by the Republic of India on 1.1.2014 and by the Federal Republic of Brazil on 24.10.2018. The Instruments of Ratification were exchanged on 24.1.2019.

AGREEMENT BETWEEN THE REPUBLIC OF INDIA AND FEDERAL REPUBLIC OF BRAZIL ON THE TRANSFER OF SENTENCED PERSONS

The Republic of India and the Federative Republic of Brazil hereinafter referred to as the Contracting States;

Desiring to facilitate the social rehabilitation of sentenced persons into their own countries; and

Considering that this objective should be fulfilled by giving foreigners, who have been convicted and sentenced as a result of their commission of a criminal offence, the opportunity to serve their sentences within their own society;

Have agreed as follows:

ARTICLE 1

Definitions

For the purpose of this Agreement:
(a) “Judgment” means a decision or order of a court or tribunal imposing a sentence;
(b) “Receiving State” means a State to which the sentenced person may be, or has been, transferred in order to serve his sentence;
(c) “Sentence” means any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a determinate period of time, in the exercise of its criminal jurisdiction;
(d) “Sentenced person” means a person who is serving a definitive and enforceable sentence in the transferring State under a judgment passed by a criminal court in the Contracting States;
(e) “Transferring State” means the State in which the sentence was imposed on the person who may be, or has been transferred.

Note: Please follow the link for detailed notification – Notification

[Notification dt. 02-04-2019]

Ministry of Home Affairs

NewsTreaties/Conventions/International Agreements

The Union Cabinet, chaired by the Prime Minister Shri Narendra Modi, has given its ex-post facto approval on the Memorandum of Understanding (MoU) between India and Croatia in the field of tourism.

The MoU in the field of Tourism will help the two parties in creating an institutional mechanism for enhancing cooperation in the tourism sector.

The MoU has been signed on 26 March, 2019 during the visit of President of India to Croatia.

[Source: PIB]

[Dated 27-03-2019]

Ministry of Tourism

Business NewsNewsTreaties/Conventions/International Agreements

Sub-section (4) of Section 286 of the Income-tax Act, 1961 requires that a constituent entity of an international group, resident in India, other than a parent entity or an alternate reporting entity of an international group, resident in India, shall furnish the Country-by-Country (CbC) Report in respect of the said international group for a reporting accounting year within the period as may be prescribed, if the parent entity of the said international group is resident of a country or territory,—

  •  where the parent entity is not obligated to file the CBC Report;
  •  with which India does not have an agreement providing for exchange of the CbC Report; or
  • where there has been a systemic failure of the country or territory and the said failure has been intimated by the prescribed authority to such constituent
    entity.

2. Vide Notification in GSR 1217 (E) dated 18th December, 2018 with effect from 18th December, 2018, amendments to the Income-tax Rules. 1962 (the “Rules”) have been carried out to provide that the period for furnishing of the CbC report (local filing) shall be twelve months from the end of the reporting accounting year.

3. Further, vide Circular No.9/2018, dated 26th December, 2018, CBDT as a one-time measure, in exercise of powers conferred under Section 119 of the Act, extended the period for furnishing of the CbC Report (local filing) in respect of reporting accounting years ending on or before 28 February, 2018 up to 31st March, 2019.

4. The absence of an agreement between India and USA till now entailed a possibility of local filing of CbC Reports in India. However, a Bilateral Competent Authority Arrangement, along with an underlying Inter-Governmental Agreement, for exchange of CbC Reports between India and the USA has now been finalized and will be signed on or before 31st March, 2019. This would enable both the countries to exchange CbC Reports filed by the ultimate parent entities of International Groups in
the respective jurisdictions, pertaining to the financial years commencing on or after 1st January, 2016. As a result, Indian constituent entities of international groups headquartered in USA, who have already filed CbC Reports in the USA, would not be required to do local filing of the CbC Reports of their international groups in India.

[Press Release dt. 15-03-2019]

Central Board of Direct Taxes

Ministry of Finance

Law School NewsLive Blogging

Day 1 – Inaugural Ceremony & Preliminary Rounds

The Tenth NLU Antitrust Law Moot Court Competition 2019 has been inaugurated in the honorable presence of Dean Dr. I.P. Massey and the Registrar. The registrations and exchange of memorials between the teams is underway in the auditorium, while the Researchers have begun with the Researcher’s Test!

4.30 PM – Preliminary Round 1 Begins

The judges have been briefed and they are really excited to witness the competition this time. The first Preliminary Rounds are about to begin and we wish all the participants good luck!

6 PM – Preliminary Round 1 ends

The first set of preliminary rounds have ended. The participants are tired after passionately arguing their sides, yet are enthusiastic for the next set. The second set of preliminary rounds will start soon, which will be followed by the reverse prelims.

 

 

8 PM – Preliminary Round 2 ends

The two sets of reverse prelims will begin soon, followed by declaration of the teams advancing to the Octa-finals, to be held tomorrow.

9 PMReverse Prelims begin

The the reverse prelims have begun. This is to ensure each team has an equal chance to argue both sides, and thus maintain a balance in scores. The participants are tired, yet are positive as ever!

11.30 PM Reverse prelims end, results announced

The reverse prelims have been concluded, and due to the brilliant organizers in the tabulation team, we were able to receive the results quickly. Following are the teams qualifying to the Octa-Finals (in no particular order) :

  1. Institute of Law, Nirma University.
  2. Symbiosis Law School, Noida.
  3. National University of Advanced Legal Studies, Kochi.
  4. Gujarat National Law University.
  5. National Law University, Odisha.
  6. ILS Law College, Pune.
  7. Amity Law School, IP.
  8. Rajiv Gandhi National University of Law.
  9. Hidayatullah National Law University.
  10. Symbiosis Law School, Pune.
  11. Government Law College, Mumbai.
  12. School of Law, Christ University.
  13. Faculty of Law, Aligarh Muslim University.
  14. SVKM’S NMIMS KIRIT P Mehta School of Law.
  15. Vivekananda Institute of Professional Studies.
  16. Chanakya National Law University.

Memorials have been exchanged according to the match-ups, and the days events have come to an end. We congratulate the Octa-Finalists!

Day 2 – Octa Finals, Panel Discussion and Quarter Finals

The second day of the Tenth NLU Antitrust Moot Court Competition is successfully underway!

9.30 AM – Octa Finals commence

The judges have been briefed and the Octa Finals have commenced in the respective courtrooms. The participants look fresh and well rested even though they might have been ripping apart their opponent’s memorials all through the night! Wishing them all the best!

Judges scrutinizing the arguments.

1 PM – 4th Antitrust Panel Discussion on Competition Law’s Interface with IBC commences

With the first set of Octa Final rounds over, preparations are in full swing for the reverse Octa Final Rounds. Meanwhile, participants attended the 4th Antitrust Panel Discussion, 2019. The topic for this year’s panel discussion pertains to Interface of Competition Law with the Indian Bankruptcy Code. Our esteemed panelists for this discussion are:

  • Ms. Anubhuti Mishra – An alumnus of King’s College, London and Hidayatullah National Law University, Raipur, she is currently working with the Competition Law team at P&A Law Offices, New Delhi. She has advised on several antitrust enforcement as well as merger review matters.
  • Mr. Shashank Sharma – Graduated from National Law School of India University in 2013. Thereafter, he went on to complete his European Master in Law and Economics in 2017. Since then he has been working with AZB & Partners, where his primary focus is Competition Law, with specific focus on Behavioural & Merger Control.
  • Mr. Toshit Shandilya – Graduated from National Law University, Delhi in 2013, he is currently an associate in the Competition Law team of Talwar Thakore & Associates. He has been involved in various critical enforcement and merger control cases before the CCI, as well as the COMPAT. He has been a law clerk with Justice V.S. Sirpurkar, former chairman, COMPAT where he assisted on a number of important cartel and Abuse of Dominance cases.
Our esteemed Panelists engaging with the participants.

The participants of the panel discussion posed certain interesting questions to our Panelists. The questions ranged from procedural to policy issues, arising from the requirement of taking CCI’s approval for insolvency resolution plans that include combinations. The participants and the Panelists engaged on concepts, such as, the failing firm defence, composite combination transactions, inter-connected transactions, and so on, to name a few. The Panelists also threw some light on their practical experience as Competition Lawyers while dealing with complicated transactions that fall within the regime of the IBC. The interactive session provided the participants an insight into the complex interface between the IBC and Competition Law.

5 PM – Octa’s concluded, results announced

The Octa Finals and the Reverse Octa Finals have been concluded. While the participants argued commendably, our Judges had a tough time reaching consensus. The following are the teams progressing towards the Quater Finals (in no particular order):

  1. National Law University, Odisha.
  2. ILS Law College, Pune.
  3. Symbiosis Law School, Pune.
  4. Institute of Law, Nirma University.
  5. National University of Advanced Legal Studies, Kochi.
  6. SVKM’S NMIMS Kirit P. Mehta School of Law.
  7. Gujarat National Law University, Gandhinagar.
  8. Symbiosis Law School, Noida.

We congratulate the qualifying teams. The exchange of memorials for the Quarter Finals shall be taking place soon at the Registration desk.

A glance into the Quarter Finals.

 

Participant engrossed in the opponent’s arguments.

 

7.30 PM – Quarter Finals concluded, results announced.

The Quarter Finals of the Tenth NLU Antitrust Law Moot Court Competition have come to an end. Here are the teams that have qualified to the Semi Finals.

  1. Symbiosis Law School, Pune.
  2. Gujarat National Law University.
  3. National Law University, Odisha.
  4. National University of Advanced Legal Studies, Kochi.

A hearty congratulations to all the Semi Finalists!

8 PM – Semi Finals Underway

The Semi Finals are currently underway. The teams are engaged in fierce argumentation before an eminent panel of judges in both court rooms. Here, take a glimpse at the rounds.

Judges Vijay Pratap Chouhan (Associate, Platinum Partners), Anand Vikas Mishra (Deputy Director, Competition Commission of India) and Anisha Chand (Principal Associate, Khaitan & Co).

 

Judge Anand Vikas Mishra testing the participant’s understanding of the law.

 

Judges Anand Kumar Singh (Assistant Professor, National Law University Jodhpur, specialising in Competition Law), Rahul Satyan (Senior Partner, Competition and Antitrust team at AZB & Partners) and Toshit Chandilya (Associate, Competition Law team at Talwar Thakore & Associates) in Court Room 2.

 

Participants observing the arguments of their opponent team.

10.15 PM – Semi Finals concluded

After establishing their ‘dominant position’ in this relevant mooting market, the following two teams will battle it out in the Finale of the Tenth NLU Antitrust Law Moot Court Competition 2019:

  1. Symbiosis Law School, Pune.
  2. Gujarat National Law University.

The Memorials will be exchanged between the finalists soon. May the best market player win the battle.

Day 3 – Finals and Valedictory Ceremony

9.30 AM The audience and judges are seated in the auditorium and the Final rounds of the Tenth NLU Antitrust Moot Court Competition will begin shortly.

9.40 AM – The first speaker from the Applicant’s side, begins his speech. He is calm and is responding well to the judges, who waste no opportunity in grilling him on the law and facts. The bench is fairly active, and all the three judges are participating equally.

Dr. K.D.Singh (Joint Director (Law), Competition Commission of India) and Mr. Rahul Singh (Partner, Khaitan & Co.), having a look at the proposition.

 

Mr. Manas Kumar Chaudhuri (Partner, Khaitan & Co.) indulgent in the oral rounds during the Finals.

10.20 AM – Speaker 2 from the Applicant’s side has now taken over. She begins her submission by trying to prove that DOPE is not an enterprise, as per the statutory definition under Sections 2(h) read with Section 3(3) of the Competition Act, 2002. She relies on the lack of an economic function, to prove so. However, the judges seem unconvinced, and asks the counsel to clarify the origin of this requirement. Mr. Rahul Singh (Partner, Khaitan & Co.) questions the counsel on the intricacies involved while relying on Section 3(3) along with Section 2(h). The counsel further cites the Coordination Committee case, to prove her point.

Respondent’s gearing up for their turn.

10.35 AM – The judges inquire about the ratio of the LPG Gas Cylinder case, and its relevance to the current argument. With only 2 mins left on the clock, the counsel moves to her second issue, regarding cartelisation. She seeks an extension of time, which is granted. Towards the end of her submissions, one of the judges pose a question regarding the lack of any arguments on mitigation of penalty. The counsel confidently replies that her party is not in violation of any competition or antitrust rules, and thereby need not argue on penalty. This creates a good impression upon the judges.

10.46 AM – The first speaker from the Respondent side, takes the podium. He appears immensely composed, and requests 30 seconds to arrange his documents on the podium. His speech is structured and brief, and the judges seem to be nodding in appreciation. He begins his first submission, on the maintainability of Jeevan Pharma’s admission. Mr. Rahul Singh and Dr K.D Singh (Joint Director (Law), Competition Commission of India) question the counsel on the distinction between the ability of the bench to hear the petition, and their power to grant compensation. The Counsel calmly tries to clarify his position, with reliance on the facts and clarifications, citing the relevant paragraphs, perfectly.

The Appellants discussing their strategy during the Finals.

11.00 AM – The counsel then moves to his second submission, regarding Jeevan Pharma’s abuse of its dominant position, and lays down the three tests required to show the same. The judges don’t seem satisfied with increased reliance on foreign cases, in light of extensive Indian jurisprudence in the area, but the counsel responds adequately. He then seeks an extension, which is happily granted by the judges. As the counsel ends his submissions and thanks the bench, the panel of judges apologise for their repeated probe into every submission of his. This lightens the atmosphere. The judges appeared quite pleased with his set of submissions.

11.24 AM – Speaker 2 now arrives at the podium, to continue her fellow counsel’s submissions. She begins her submission by laying out a roadmap, upon the judges seeking a clarification. Her issues pertain to the ability of the DG and CCR to proceed against DOPE, and DOPE’s violation of Section 3(3). The rain of questions continue, as was the case for the previous speakers. The judges question the line of argument, that the cryptic order of DG can be used against anyone. The counsel tries to clarify her position and does not lose hope.

11.35 AM – The counsel moves to her second submission and focuses on the agreement between the manufacturers, as well as between the manufacturers and the DOPE. She informally quotes Lord Denning and then the statutory definition. There is a good level of engagement between the counsel and the judges. After this speech, the judges decide against rebuttals and surrebuttals, However, they give into the finalists’ request. Speaker 1 from the respondent gives a brilliant rebuttal which leaves the audience as well as the judges in awe.

11.40 AM – The rounds have been concluded, and the finalists wait for the results.

12.15 – Valedictory ceremony commenced

Vice Chancellor, Ms. Poonam Pradhan Saxena and the Dean, Dr. I.P. Massey, with other esteemed faculty members and the judges have taken their seats in the auditorium. Senior Member of the Moot Court Committee opened the ceremony with a heart warming speech and addressed the participants waiting eagerly for the results.

12.30 – Vice Chancellor felicitates the gathering
The Vice Chancellor thanked Khaitan & Co. for their valuable partnership in organising this year’s Competition. She further stressed upon the importance of Competition Law as an emerging field. She also encouraged the participants to take part in more moot court competitions, as it helps to further one’s advocacy skills and analytical abilities.

12.35 – Dr. K.D. Singh addressed the crowd and informed the audience about CCI’s endeavours and how CCI has been happy to host the moot in association with NLU Jodhpur, for the past 10 years, and expressed his desire to continue the same for the coming years.

12.37 – Vice Chancellor presents the token of appreciation to Dr. K.D. Singh

12.38 – Mr. Manas Kumar Chaudhuri (Partner, Khaitan & Co) thanked Ms. Poonam Saxena and shared his experience as a corporate lawyer and left a very interesting question for the participants sitting in the audience, whether they are administering “justice” by being the extended arm

12.40 – Declaration of results

Mr. Rohan C. Thomas, Faculty Advisor of the Moot Court Committee, announces the results :

Second Best Student Advocate Anshika Jain (Gujarat National Law University)

Best Student Advocate – Juhi Hirani (Institute of Law, Nirma University) and Darshan H. Patankar (Gujarat National Law University)

Best Researcher – Eesha H. Sheth (SVKM’S NMIMS Kirit P Mehta School of Law)

Best Memorial – Faculty of Law, Jamia Millia Islamia.

Best Student Advocate for the Finals – Darshan H. Patankar (GNLU)

RUNNERS UP TEAM – Symbiosis Law School, Pune.

WINNING TEAM – Gujarat National Law University.

Winning Team of the Tenth NLU Antitrust Law Moot Court Competition – Gujarat National Law University

 

Runners Up Team of Tenth NLU Antitrust Law Moot Court Competition – Symbiosis Law School, Pune

12.45 – Closing Speech by the Co-Convener of the Moot Court Committee
Ms. Mansi Srivastava (Co-Convener, Moot Court Committee) shared her experience of being part of the organising committee for the past five years and how it feels surreal to be a part of it for one last time. She thanked the administration, the support staff, the volunteers and all the other Moot Court Committee Members for their support and contribution. She specially thanked Ms. Abhilasha Gupta and Ms. Subarna Saha (Advisors, Moot Court Committee) and Mr. Rahul Mantri (Co-Convener, Moot Court Committee) for being her pillars of strength throughout the competition and providing all the answers when she herself couldn’t find them. Lastly, she thanked Khaitan & Co. for their partnership and the Knowledge partner, SCC Online and Eastern Book Company (EBC) for providing the students with access to SCC Online that helped them in the preparation for their rounds.

 

12.48 – Certificate of participation given out to the participants.

The Tenth NLU Antitrust Law Moot Court Competition has thus been concluded.

Cabinet DecisionsLegislation Updates

The Union Cabinet, chaired by the Prime Minister Narendra Modi has approved the agreement between Republic of India and the Republic of Belarus on Mutual Legal Assistance (MLAT) in Civil and Commercial Matters.

The Agreement after having come into force will promote Mutual Legal Assistance between the Contracting Parties in Civil and Commercial Matters.

The proposal aims to benefit the citizens of the respective Parties seeking Legal Assistance in Civil and Commercial Matters in the requested Party irrespective of any gender, class or income bias.

[SOURCE: PIB]

Cabinet

Hot Off The PressNews

Recently, Ministry of External Affairs (MEA) had in its press release stated that “Pakistan demarched on the act of aggression against India”.

“India also strongly objected to Pakistan’s vulgar display of an injured personnel of the Indian Air Force in violation of all norms of International Humanitarian Law and the Geneva Convention. It was made clear that Pakistan would be well advised to ensure that no harm comes to the Indian defence personnel in its custody. India also expects his immediate and safe return.”

This article aims to breaking down the understanding of the term “Prisoner of War” and its relation to the “Third Geneva Convention”.

International Humanitarian Law (IHL) also protects other persons deprived of liberty as a result of armed conflict.

Third Geneva Convention provides a wide range of protection for prisoners of war. Rules protecting prisoners of war (PoWs) are specific and were first detailed in the 1929 Geneva Convention. They were refined in the third 1949 Geneva Convention, following the lessons of World War II, as well as in Additional Protocol I of 1977.

POWs cannot be prosecuted for taking a direct part in hostilities.  Their detention is not a form of punishment, but only aims to prevent further participation in the conflict. They must be released and repatriated without delay after the end of hostilities. The detaining power may prosecute them for possible war crimes, but not for acts of violence that are lawful under IHL.

POWs must be treated humanely in all circumstances. They are protected against any act of violence, as well as against intimidation, insults, and public curiosity. IHL also defines minimum conditions of detention covering such issues as accommodation, food, clothing, hygiene and medical care.

The discussions on the Geneva Convention in respect of how a PoW is to be treated speeded through the social media platforms like plague, which mainly includes:

A total number of  143 Articles whereas the 1929 Convention had only 97.

Article 4 | Prisoners of war

Persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfils the following conditions:

(a) that of being commanded by a person responsible for his subordinates ;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Person who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they jail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the junctions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Article 118 of the 1949 third Geneva Convention | Release and repatriation

 “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities” and “unjustifiable delay in the repatriation of prisoners of war or civilians” is a grave breach of the Protocol.

Once PoW status is awarded to a combatant, he may be interned without any particular procedure or reason. The purpose of this internment is not to punish them but only to hinder their direct participation in hostilities.

Article 13 | Humane treatment of prisoners

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.

Article 14 | Respect for the person of prisoners

  • ‘Respect for the physical person of the prisoner ‘
  • ‘Respect for the moral person of the prisoner ‘
  • ‘The prisoner’s honour ‘

Therefore, the above explainer of the Geneva Convention in respect of the relevant Articles under the present circumstance of India’s IAF Pilot’s release in a clear and detailed manner puts the picture in place rightly, that Pakistan’s move of releasing our Wing Commander was in consonance to the Third Geneva Convention, and as stated by Pakistan’s PM Imran Khan in the parliament that the “release” was a “peace gesture”, India would want to speculate more on that.

NewsTreaties/Conventions/International Agreements

The Government of Republic of India and the Government of His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam signed an Agreement for the Exchange of Information and Assistance in Collection with respect to Taxes (TIEA) here today in New Delhi. The Agreement was signed by Mr. Pramod Chandra Mody, Chairman, Central Board of Direct Taxes (CBDT) on behalf of India and Dato Paduka Haji Sidek Ali, High Commissioner of Brunei Darussalam to India on behalf of Brunei Darussalam.

The Agreement enables the exchange of information, including banking and ownership information between the two countries for tax purposes. It is based on international standards of tax transparency and exchange of information and enables sharing of information on request as well as an automatic basis. The Agreement also provides for mutual assistance in collection of tax revenue claims between both countries.

The Agreement will enhance mutual co-operation between India and Brunei Darussalam by providing an effective framework for the exchange of information in tax matters which will help curb tax evasion and tax avoidance.

[Press Release dt. 28-02-2019]

Ministry of Finance

Hot Off The PressNews

As the old lawyers’ saying goes, “When you are strong on the law, you hammer the law, if you are strong on the facts, you hammer the facts, and when you have neither on your side, you hammer the table”. Bereft of a case, Pakistan has hammered the proverbial table.

Succinct of India’s Final round of arguments: [20-02-2019]

“Indian nationals are not the kind whose nationality needs to be denied, unlike Pakistan.”

Pakistan invites the Court to treat as true the confession made by Mr Jadhav to the military and in that the very first assertion is that he is an Indian national and an officer of the RAW. If Pakistan so closely, dearly and fully believes his confession, why do they doubt his nationality?”

“India’s criticism of the system of military courts trying civilians generally, and of the manner in which the military courts have functioned, has been documented by the International Commission of Jurists, the Human Rights Committee and even in a resolution of the European Parliament.”

“Experts find that military courts are generally confined to service personnel. It is known that there are some military courts — Pakistan is one, and unfortunately not the sole example — in which military courts have jurisdiction to try civilians.”

“One of the reasons why India seeks Mr. Jadhav’s release, apart from showing propaganda, is that he has become a pawn and a convenient tool for Pakistan to try and unsuccessfully divert global attention from its own conduct.”

When we talk of review, I would draw the attention of the Court in stark contrast, in the Kasab case where the Supreme Court of India, dealing with an application filed by a Pakistani terrorist, apprehended red-handed and caught by a brave police officer who absorbed on himself a magazine of bullets on his person, the Supreme Court held that “We may also state here that since it is a case of death sentence, we intend to examine the materials on record first hand, in accordance with the time-honoured practice of this Court, and come to our own conclusions on all issues of facts and law, unbound by the findings of the trial court and the High Court.” This is called “review”.

There has been an egregious violation of the Vienna Convention.


LIVE UPDATES:

  • Khawar Qureshi starts presenting the final round of oral arguments.
  • Characters from wonderland have no place in this Court.
  • I challenge India to identify any discrepancy, states Qureshi.
  • India persists to distract and deflect attention to answer critical questions.
  • India’s double standards parades itself.
  • Why is it, again and again, necessary to involve in fiction.
  • Is the approach of India as it suggests really to “hammer the facts”?
  • India’s conduct cannot go unchecked. This is the court of the international community, not fantasy not fiction.
  • India appears to have closed its eyes as well as mind, given that clear and express reference to the judgment of Peshawar High Court was made.
  • Pakistan understands chronology.
  • It’s simply wrong to disparage the military courts of Pakistan.
  • Pakistan was expecting India to show some respect to the Court, if not Pakistan, and if not the independent experts. That has not happened.
  • India’s claim for relief remains as far fetched now as it was then.
  • India’s conduct is in a manner to disregard the truth.
  • India’s claim for relief must be dismissed, Qureshi ends his arguments.
  • Pakistan has a very robust system for review or reconsideration, says the agent of Pakistan.
  • Mention of Afzal Guru case along with Pulwama incident and Samjhauta express in concluding remarks of Pakistan’s Agent.
  • Agent accuses India of committing human rights violations by using pellet guns in Kashmir.
  • Consular access was denied for good reasons, says agent of Pakistan.
  • End of week-long oral arguments.
  • Court retires for deliberation. Agents will be informed when the judgment would be delivered.
Cabinet DecisionsLegislation Updates

The Union Cabinet chaired by Prime Minister Narendra Modi has given ex-post facto approval to the MoU between India and Vietnam for Cooperation in the field of Communications.

Benefits:

The MoU will contribute in strengthening bilateral cooperation and mutual understanding in the field of communications.

Cabinet

Hot Off The PressNews

“India’s hands are sullied”

                                                  -Mr Khawar Qureshi (Representing Pakistan)

In the Kulbhushan Jadhav Case, ICJ will begin the hearing for the second round of oral arguments today, i.e. 20-02-2019. India will be placing its arguments before the Court today and tomorrow Pakistan will.

Pakistan in its arguments placed before the ICJ in yesterday’s hearing (19-02-2019) stated that:

“India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.”

“India’s claim for “at least”, “acquittal, release or return”/annulment of the conviction is at best misconceived, at worst made in bad faith in the light of the Court’s previous decisions consistently rejecting such a claim.”

“India has not made any other relief, thus its application should be dismissed.”

Stay tuned for the Live Updates.


 

 

 

 

Image Credits: Indian Express


LIVE UPDATES: India v. Pakistan [India to begins with the second round of oral arguments]

“Government of India requests this court to adjudge and declare that Pakistan acted in egregious breach of Article 36 of Vienna Convention”, Stated Deepak Mittal (Govt. of India’s Agent) 

  • Harish Salve starts with oral arguments.
  • As old lawyer saying goes ‘When you are strong on the law you hammer the law, when you are strong on facts you hammer the facts and when you are strong on neither you hammer the table’.Berefet of a case, Pakistan has hammered the proverbial table.
  • Pakistan has mischaracterized India’s reading of the report on Military Courts as an attempt to mislead the Court.
  • Pakistan’s comments deriding Lahore High Court Bar Association yesterday are regrettable.
  • Harish Salve on Pakistan Counsel’s arguments: A criticism of a sovereign state of the case made out of the other state must be in language consistent with the dignity of other states. Humpty Dumpty has no place in this Court.
  • India never suggested estoppel.  At least we keep reminding ourselves that we are in an International Court, not Commercial Court.
  • Pakistan did not question Jadhav’s nationality when 13 reminders were sent from India.
  • “Indian nationals are not the kind whose nationality needs to be denied.”
  • Biodata mentions that Jadhav was a former Indian Navy officer. This would be proof of his Indian nationality. Indian nationals are not the kind whose nationality needs to be denied.
  • Salve mentions the Mumbai Attack in 2008.
  • “If Jadhav had been involved in subversive activities, irrespective of whether or not he had an Indian passport, he would have been tried for espionage.”
  • “Pakistan has nothing beyond a confession and Passport.” [Pakistan has nothing beyond the extracted confession on which Mr. Jadhav has been convicted of participation in the subversive activities. Possessing a passport does not make you party to offences. Your role in those offences is what gets you a conviction. Not having a passport which would enable you to sneak into a country, as you mean there was such a passport.
  • India has repeatedly asked for a copy of the judgment convicting Jadhav and charges against.
  • “Pakistan claims to have clinching evidence on the basis of articles in the Indian press.”
  • Supreme Court of Pakistan has suppressed operation of Peshawar High Court cited by Pakistan. On one hand, Pakistan is challenging that judgment in Supreme Court, on the other, it is citing it in ICJ, Salve.
  • Kasab’s case cited by Salve in regard to “review.” When we talk of review, I’d like to draw your attention in stark contrast in the Kasab case. where the Supreme Court in India held that since it is a case of death sentence we may examine the materials on record first hand. This is called a review.
  • Pulwama Terror Attack mentioned by Harish Salve in line of other terror attacks by Pakistan. [Kulbhushan Jadhav has become a pawn in Pakistan tool to divert international scrutiny from itself, Salve says. The Indian counsel then refers to the terror attack in Pulwama on February 14 that killed at least 40 CRPF personnel. [United Sates has even called upon Pakistan “to end immediately the support and safe haven provided to all terrorist groups operating on its soil, whose only goal is to sow chaos, violence and terror in the region.]
  • There was a time when Pakistan was respected but not anymore.
  • Jadhav’s trial was completed in 4-6 months. What happened to the 150 people killed in the Mumbai terror attacks?
  • “One of the reasons why India seeks Mr. Jadhav’s release, apart from showing propaganda, is that he has become a pawn and a convenient tool for Pakistan to try and unsuccessfully divert global attention from its own conduct.”
  • “The time has come for this Court to make Article 36 a potent weapon for the protection of human rights.”
  • Salve ends his arguments.
  • India’s agent Deepak Mittal placed the relief being sought by India before ICJ.
  • President Abdulqawi Ahmed Yusuf speaking on appointment for ad-hoc Judge for Pakistan.
  • ICJ President Abdulqawi Ahmed Yusuf then refers to Pakistan’s request to replace ad-hoc Pakistani judge Tassaduq Hussain Jillani, who had suffered a cardiac arrest on the first day of hearings. “Judge ad-hoc Gilani was given case files and participated in all court deliberations before these hearings,” he says. “He will receive all transcripts of oral proceedings. He will continue to participate.”
  • Sitting Adjourned.

Pakistan will present its final round of arguments tomorrow, i.e. 21-02-2019.

Hot Off The PressNews

In yesterday’s hearing, India presented its arguments before the International Court of Justice (ICJ). The public hearings started from Monday 18 and will be continued till 21-02-2019.

Schedule for the hearings

First round of oral arguments-

Monday 18 February 10 a.m.-1 p.m.   : India
Tuesday 19 February 10 a.m.-1 p.m.: Pakistan

Second round of oral arguments-

Wednesday 20 February 3 p.m.-4.30 p.m.: India
Thursday 21 February 4.30 p.m.-6 p.m.: Pakistan

Snippets from Yesterday’s Hearing:

  • Kulbhushan Jadhav case used as propaganda by Pakistan.
  • Salve emphasizes: Review and reconsideration of the case would be inadequate. The relief should be in the form of a direction to set Jadhav free.
  • India: It has established that not allowing consular access is a gross violation of Article 36 of the Vienna Convention by Pakistan.
  • In the present case, relief of review & re-consideration would be highly inadequate, considering facts & circumstances.
  • India seeks annulment of Jadhav’s conviction and a direction that he be released.

 

 

 

 

 


Image Courtesy: ICJ


LIVE UPDATES [India v. Pakistan]: Pakistan’s oral arguments begins:

  • Oral arguments by Pakistan’s Attorney General Anwar Mansoor Khan.
  • Since 1947, India has continuously tried destroying Pakistan.
  • “On humanitarian grounds, Pakistan allowed Jadhav’s family to visit him. I challenge India to quote a similar example.”
  • Mr Khawar Qureshi representing Pakistan starts with his oral arguments.
  • Developments in customary international law not consistent with India’s position on Article 36 of Vienna Convention on Consular Relations.
  • Blatant misrepresentations in the pleadings by India.
  • Qureshi in an electronic presentation places the issues it will present its arguments.
  • He states that “Why was Jadhav in possession of an authentic Indian passport with a Muslim cover name.”
  • What evidence is there that Jadhav retired from the Armed Forces?
  • ICJ President interrupts in between and asks Mr Qureshi to kindly slow down.
  • India’s conduct is far from irrelevant.
  • India failed to provide any explanation as to how it is that Commander Jadhav was able to travel frequently to and from India using an authentic Indian passport bearing a false identity in a Muslim name.
  • Evidence of how Jadhav was an Indian National?
  • India’s hands are sullied.
  • Passport was authenticated by expert David Westgate. Used at least on 17 occasions by Jadhav.
  • “We gave every single opportunity to India to correct/clarify/apologize, but it arrogantly dismissed.”
  • ICJ President again interrupts and asks Qureshi to slow down as the judges are not able to follow.
  • Qureshi on claims that Jadhav was not well when his family visited him stated in regard to Deputy High Commissioner J.P. Singh’s letter that: “I wish him well for his future as a fantasy fiction writer.”
  • Court adjourned for a 15-minute break.
  • Mr Qureshi starts with his arguments after the break.
  • At no stage can India say that Pakistan engaged in any clear and unequivocal representation made directly to India, to the effect that India waived the requirement for India to establish the Indian nationality of Commander Jadhav.
  • At no point, India has established (even now) that commander Jadhav is an Indian National.
  • No general practice accepted as law (opinio juris) by States to provide consular access in cases of espionage.
  • India has used flowery and topsy turvy language in its pleadings.
  • Did India demand any negotiation or mediation? NO
  • What does India have to say for that passport?
  • Why didn’t India raise a dispute back in 2016? Why did it come directly to the ICJ for provisional measures?
  • India stated that Pre-Mediated murder was supposed to take place.
  • India’s MEA Official stated that India and Pakistan have a bilateral agreement (vis consular access).
  • India’s claim for “at least” acquittal, release, and return is outlandish.
  • India shamelessly misrepresented the conclusion of the Joint Report of the distinguished Military Law Experts and extremely late in the day (shamelessly and without apology) sought to deflect criticism by saying a “typo” was involved in one respect.
  • India simply fails to answer questions.
  • Reference to Narendra Modi’s purported claim that rapists will be hanged within days quoted by Qureshi.
  • India invokes the decisions of the IACHR in a completely irrelevant and misleading manner.
  • “Why does India wants Pakistan to be treated differently?”
  • In any event, effective review and reconsideration has always been available to Commander Jadhav and his family.
  • India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.
  • Conduct of India as aforesaid militates against the grant of any relief in any event.
  • VCCR is not engaged as India has not established that Commander Jadhav is an Indian National, nor was consular access refused prior to the commencement of these proceedings.
  • Customary International law provided for an exception to consular access in the case of an individual reasonably suspected of espionage.
  • India’s claim for “at least”, “acquittal, release or return”/annulment of the conviction is at best misconceived, at worst made in bad faith in the light of the Court’s previous decisions consistently rejecting such a claim.
  • India has not made any other relief, thus its application should be dismissed.

Sitting is now adjourned for the day. 

Parties will now respond to the oral arguments for the next two days of the hearing.

Hot Off The PressNews

As reported by PTI, a four-day public hearing in the case of Kulbhushan Jadhav, a Retired Indian Navy officer sentenced to death by a Pakistani military court on charges of espionage would begin today.

ICJ has set a timetable for the public hearing in the high-profile case from 18-02-2019 to 21-02-2019 at the Peace Palace in The Hague, the Netherlands. India will argue first on February 18, Pakistan will get its chance to make submissions on February 19. Then India will reply on February 20 while Islamabad will make its closing submissions on February 21.

It is expected that the ICJ’s decision may be delivered by the summer of 2019.

Please refer the link for the background of the case: Kulbhushan Jadhav Case

[Source: PTI]


Live Updates: [First Day of Hearing] [India v. Pakistan]

  • Harish Salve is representing India and Kulbhushan Jadhav.
  • Kulbhushan Jadhav in respect to the facts was not made aware of his consular access.
  • Harish Salve: there are only two broad issues in the Kulbhushan Jadhav case. The first issue relates to the construction of Article 36 of the Vienna Convention. The second issue relates to relief.
  • It is an egregious violation of the Vienna Convention.
  • Jadhav’s purported confession clearly appears to be coaxed. India reminded Pakistan that it’s Pakistan government which hasn’t ratified SAARC convention on legal assistance in criminal matters.
  • Salve: ICJ has already upheld the importance of consular access under Article 36.
  • Article 36 facet of the due process.
  •  Article 36 of the Vienna Convention cannot be modified by Bilateral treaties, could only supplement it.
  • Article 36 becomes a vital cog in the wheel of justice.
  • Pakistan should’ve provided a substantial explanation for why it needed 3 months for providing consular access, upon which it could’ve claimed that it has complied with the treaty obligation. Even on the erroneous premise that para 4 applies, Pakistan hasn’t complied treaty obligations.
  • Article 73(2) of the Vienna Convention will apply in the present case. Article 30 of the said convention does not override Article 73(2).
  • Break of 10 minutes.
  • The hearing resumes after the break.
  • Salve: Article 36 has been recognized as a rubric for human rights.
  • Trial by military court fails to satisfy even minimum standards of due process and should be declared “unlawful”.
  • Salve states that: “Disrespectful allegations against India”. Cases cited by Pakistan have no relevance in the present case.
  • Despite repeated attempts by India to sign a treaty for mutual legal assistance, Pakistan has refused. The reason is that there are several pending cases that involve terrorism.
  • Pakistan has always been offered consular access even when its citizens have been caught red-handed in acts of terrorism.
  • “Proceedings in Pakistani military courts fall far short of international standards. In the 2 years military courts have been allowed to convict civilians, 161 civilians have been given death sentence in an opaque manner.” 90% of convictions are based on confessions and the reasons are not made public.
  • Military proceedings are kept totally secretive, due to which detainees are bound to torture.
  • I would invite this court to keep in mind the relief to be granted in the backdrop of the fact that his trial has been conducted by a military court, states Salve.
  • “Pakistan has knowingly, willfully and brazenly violated Article 36 of the Vienna Conventions in respect of Kulbhushan Jadhav Case. Therefore, consequences may follow.”
  • Pakistan’s conduct doesn’t confirms that Jadhav would receive justice in Pakistan.
  • De-humanizing behaviour towards Jadhav’s family.
  • A resolution was passed by Lahore Bar Association threatening anyone who would dare appear for Jadhav in Pakistan courts. Bar Association also criticised ICJ’s grant of provisional measures
  • Pakistan has acted illegally, Salve.
  • Pakistan used Jadhav to build a narrative against India.
  • Kulbhushan Jadhav case used as propaganda by Pakistan.
  • Salve emphasizes: Review and reconsideration of the case would be inadequate. The relief should be in the form of a direction to set Jadhav free.
  • India: It has established that not allowing consular access is gross violation of Article 36 of the Vienna Convention by Pakistan.
  • In the present case, relief of review & re-consideration would be highly inadequate, considering facts & circumstances.
  • India seeks annulment of Jadhav’s conviction and a direction that he be released.

Pakistan’s round of arguments to begin tomorrow. [19-02-2019]

Stay tuned for tomorrow’s hearing.

 

NewsTreaties/Conventions/International Agreements

The Ministry of Environment, Forests and Climate Change today signed a letter of Intent establishing the India-Norway Marine Pollution Initiative together with the Norwegian Ministry of Foreign Affairs.

In January 2019, the Indian and Norwegian governments agreed to work more closely on oceans by signing a MoU and establishing the India-Norway Ocean Dialogue during the Norwegian Prime Minister’s visit to India in January.

A Joint Task Force on Blue Economy with government officials, researchers and experts as well as the private sector was established to develop sustainable solutions within strategic areas of the blue economy, such as maritime and marine sector in addition to the energy sector.

In partnership, Norway and India will share experiences and competence, and collaborate on efforts to develop clean and healthy oceans, sustainable use of ocean resources and growth in the blue economy.

Both the governments launched the first Joint initiative under this new partnership. The India-Norway Marine Pollution Initiative will combat marine pollution, which is one of the fastest growing environmental concerns.

The Joint Initiative was signed formally by Mr. Nils Ragnar Kamsvag, Ambassador to India, Embassy of Norway and Mr. Anil Kumar Jain, Additional Secretary, Ministry of Environment, Forest and Climate Change (MoEF&CC), Govt. of India.

Ms. Marianne Hagen, Deputy Minister, Norwegian Ministry of Foreign Affairs, Mr. Vidar Helgesen, Special Envoy for Oceans, Norwegian Ministry of Foreign Affairs, Mr. Ratan P Watal, Member Secretary, Economic Advisory Council to Prime Minister & Principal Advisor, Niti Aayog, Govt. of India, Dr. M Rajeevan, Secretary, Ministry of Earth Sciences, Govt. of India, Mr. A Gitesh Sarma, Secretary (West), Ministry of External Affairs, Govt. of India and Dr. Sumita Misra, Joint Secretary, Economic Advisory Council to Prime Minister, Govt. of India were present at the signing of the Joint Initiative.

Through a range of implementing partners, this initiative will seek to support local governments in implementing sustainable waste management practices, develop systems for collecting and analyzing information about sources and scope of marine pollution and improve private sector investment. Support will also be directed towards beach clean-up efforts, awareness-raising campaigns and pilot project using plastic waste as fuel substitution for coal in cement production and developing frameworks for deposit schemes.

[Source: PIB]

EAC-PM

NewsTreaties/Conventions/International Agreements

The Union Cabinet chaired by Prime Minister Narendra Modi has approved Memorandum of Understanding (MoU) between India and Brazil on cooperation in the field of Traditional Systems of Medicine and Homoeopathy.

Benefits:

The MoU will enhance bilateral cooperation between India and Brazil in the areas of Traditional Systems of Medicine. This will be of immense importance to both countries considering their shared cultural heritage.

Background:

 India is blessed with well-developed systems of traditional medicine including medicinal plants, which hold tremendous potential in the global health scenario. India and Brazil share a very close and multi-faceted relationship at bilateral level as well as in plurilateral for a such as BRICS, BASIC, G-20, G-4, BSA, and in the larger multilateral bodies such as the UN, WTO, UNESCO and Who. Brazil is one of the most important trading partners of India in entire Latin America and Carribean region.

Both India and Brazil are rich in biodiversity with a large range of health practices based on medicinal plants and history of use of traditional medicine. Ayurveda, Yoga and other traditional systems are popular in Brazil.

[Source: PIB]

Cabinet

Cabinet DecisionsLegislation Updates

The Union Cabinet, chaired by the Prime Minister Shri Narendra Modi has given its approval to the Memorandum of Cooperation (MoC) between India and Japan in the field of food processing sector.

Benefits:

Bilateral cooperation in the field of food processing between India and Japan will be mutually beneficial to the food processing sector in both countries. It will promote understanding of best practices in food processing in the two countries and will help in improving the food processing sector as well as improved market access, leading to equity and inclusiveness. The MoC will lead to the betterment of the food processing sector in the country by introducing innovative techniques and processes. It will help in increasing food processing in the country by getting access to best practices and better markets.

[Release dt. 23-01-2019]

Cabinet Secretariat

[Source: PIB]

OP. ED.

In the present day modern digital era, privacy has attracted the attention of many policymakers, Judges, and scholars. The digital environment has granted access to the entire world on a click, but has also exposed us to snooping eyes of the government and private individuals. It is in this context that the right to privacy plays a crucial role. With the aim of having a regulatory policy in place to protect all European Union (EU) citizens from any violation of personal data and privacy, the EU Parliament enacted the General Data Protection Regulation[1] (GDPR) on 14-4-2016[2], repealing the previous Directive 95/46/EC (old Directive).

This article aims to discuss the provisions of the GDPR and explore the impact on the Indian businesses. GDPR is important to be studied in the Indian context carefully for two reasons. Firstly, it has extraterritorial application (discussed below), thereby, affecting the interests of several Indian businesses operating within the EU. Secondly, GDPR has set international standards with respect to data protection regime in the global digital era. The principles embodied in the GDPR have been referred extensively in the judgment of K.S. Puttaswamy v. Union of India (Privacy judgment).[3] Even the Data (Privacy and Protection) Bill, 2017[4] introduced in the Lok Sabha follows the same framework as the GDPR and can be seen as the “summary” of GDPR.

Justice Chandrachud, in his judgment, acknowledged the internet usage to have increased exponentially and the individuals leave “electronic tracks”.[5] The tracks (including food habits, preferences), even though “inconsequential”, he notes that disclose who the user is and his/her interests. The age of information and its concomitants such as cookies, big data, data mining, and has given birth to complex issues for privacy. He focused on the centrality of individual’s autonomy, consent, and transparency. Similarly, Justice Kaul stressed on increasing invasion of privacy due to new technology, and gave support to principle in GDPR with respect to restrictions on “profiling” and “right to be forgotten”.[6]

This article is divided into four parts. In Part I, we discuss the categories of information covered under the phrase “personal data” and protected under the GDPR. In Part II, we discuss the scope of the GDPR and how Indian businesses would be covered due to the extraterritorial application of GDPR. In Part III, we talk about the extensive number of obligations imposed on the covered entities. Finally, in Part IV, we analyse the other impacts of the GDPR on the non-EU businesses.

I. Information covered under “personal data”

GDPR affords protection to information that falls within the ambit of “personal data”. “Personal data” was given a very broad definition in the old direction and the same has been carried forward in the GDPR. It is defined as “any information relating to an identified or identifiable natural person”[7]. A person can be identified by way of “a name, an identification number, location data, an online identifier or … factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person”[8]. The definition covers both “objective” (e.g., biometric data, presence of a substance in a patient’s blood) and “subjective” data (e.g., individual’s opinion, assessment of an employee, assessment of the reliability of borrowers). The data can be either false or true. It can be in any format (e.g. alphabetical, numerical, graphical, photographical or acoustic). For example, customer preferences, customer’s recorded voice in telephone banking, images taken by video surveillance, etc., they all constitute “personal data”. The only qualifier is that the data (or its combination) in the possession of the entity must be comprehensive enough to “identify” an individual. For instance, ordinarily, a very common family name might not to be sufficient to identify anyone, but the same family name used within a specific organisation (for example, a school) might be sufficient to identify the individual.[9] However, it is worth noting that anonymous or anonymised data is not “personal data” and hence is not covered by data protection regime, therefore, allowing free exchange of data where identification of individual is not possible.

II. Scope of GDPR

GDPR covers all EU “established” entities and certain non-EU “established” entities. Under the former, if an entity is operating in the EU through one of its “establishment[s]” (e.g. sales office or representative), and is processing the data of EU data subjects, irrespective of whether the processing is occurring in the EU or not, is covered under the ambit of the GDPR.[10] Under the extraterritorial application, a non-EU “established” entities, would be covered only if it is performing either of the following—

1.Offering goods and services to EU subjects

If a non-EU entity is directing its business activities towards the EU residents, and, in the process of doing so, is collecting personal data of the data subjects, then the entity would be covered under GDPR. The test is whether the entity envisages to offer goods and services to an EU resident. In deciding whether the activities are “directed” at EU residents or not, various factors would have to be considered, such as the intention of the non-EU entity, currency of the trade and the language used (with the possibility of placing the order in the local language of the target EU resident). Setting up a website merely accessible to EU residents is not covered.[11] This approach reflects the decision taken by the European Court of Justice in Weltimmo Sro v. Nemzeti Adatvédelmi és Informácioszabadsag Hatoság, where the Court factored in the use of the Hungarian language on the website.[12]

2. Monitoring behaviour of EU data subjects

This condition is, especially, designed to cover those entities that collect personal data on the internet for the purposes of profiling individuals, taking decisions regarding him/her, or for analysis or prediction of their personal preferences, attitudes and usage behaviours. As per the recitals of GDPR, under certain circumstances, personal data would also cover “cookie”[13] identifiers and IP addresses[14]. This can have widespread ramification for numerous entities that use cookies on their websites to gauge customer preference and usage pattern. A decision from the UK High Court in Vidal-Hall v. Google Inc. exemplifies similar understanding.[15] The Court in this case had held that browser-generated information (BGI) included IP addresses, websites visited, advertisements opened, among other things collected by Google through cookies constituted “personal data”.[16] This would have a huge impact on “how [businesses] collect, use and store private information, and what risk management controls are in place to protect them against potentially costly litigation”.[17]

III. Obligations on controller and/or processors under GDPR

GDPR classifies the entities into two categories — controller and processor. A controller is an entity that “determines the purposes and means of the processing of personal data”.[18] An entity processing the personal data on behalf of a controller is a processor.[19]

The majority of the obligations are imposed on the controller, however, it might be required to discharge these obligations through the processor. For instance, a controller employs another entity (processor) to process the consumer data collected by it. Now, if a data subject requests the controller to have access to the information relating to him, then the controller would direct the processor retrieve the data and send the same to the controller. The processor would be obliged to adhere to the controller’s directions.

Few of the important obligations that have been imposed on controller/processor to regulate privacy are mentioned below—

1. Strengthened consent requirements

GDPR has strengthened the requirements of consent, giving the data subjects control over whether or not their personal data will be processed. Consent from a data subject must be free, specific, informed, and with an explicit indication of their wishes (either by a statement or clear affirmative action).[20] The data subject has the right to withdraw their consent at any time,[21] and hence command a high degree of control. One of the major changes introduced is that it puts the burden of proof on the controller to prove that the data subject had given consent of data processing for a specified purpose.[22] Further, if the consent is obtained through a contractual agreement, then the consent for data processing must be distinguishable in appearance with the other parts of the agreement.[23]

2. Requirement of providing information to data subjects

If a controller is collecting information of a data subject, then an information notice must be provided to the latter. This notice must specify identity and contact details of the controller, purpose of data processing, period for which the data will be sorted, existence of various rights, recipients of the personal data, any other information necessary to guarantee fair processing of personal data, etc.[24] These conditions do not differ substantially from the old Directive.

3. Breach and notification

In case of personal data breach, the controller is responsible to report the matter to the appropriate supervisory authority without any delay and where feasible within 72 hours from the time of being aware of the same.[25] This obligation is not applicable if it is unlikely to result in a risk to the rights and freedoms of natural persons. If the breach poses high risk to the rights and freedoms of the individuals, then the controller has the obligation to inform the data subjects regarding the same “without any undue delay” after first becoming aware of the data breach.[26]

However, an obligation to inform the data subjects does not arise in three cases.[27] First, where the controller adopts technological protection measures, rendering the information breached as incomprehensible to the unauthorised person. Second, when the controller has undertaken certain measures to eliminate the risk; for instance, the controller immediately identifies and takes an action against the person concerned.[28] Third, in case the controller is required to be involved in a “disproportionate effort” (indicative factors such as number of subjects and age of the data), then a public notice or similar measures must be issued to inform the data subjects of the breach.[29]

4. Stronger rights given to data subjects

GDPR has strengthened the existing rights of the data subjects and introduced new rights as well. The subjects have a right to access the data possessed by the controller. The controllers must, upon request, confirm if they are processing an individual’s personal data, provide a copy of the data, and provide supporting explanatory materials. In certain circumstances, the subjects have the right to object to specific types of processing such as for research/statistical purposes, and for direct marketing, among others. The subjects have a new right of data portability, making it easier to transmit personal data between service providers.[30] GDPR not only fortifies the right to be forgotten, as recognised in Google Spain case[31] but also expressly acknowledges the counterbalance aspects and factors such as freedom of expression.[32]

5. Duty to undertake data protection measures

The controller/processor is required to implement appropriate technical and organisational measures, such as pseudonymisation[33] and encryption[34], in an effective manner and to integrate necessary safeguards in the processing to comply with the GDPR obligations and protect the rights of data subjects.[35]

6. Data protection impact assessment

Similar to the old Directive, GDPR mandates the controller to conduct an impact assessment for new technologies that pose high risk to the rights and freedoms of data subjects. This obligation is triggered only in cases where there is a systematic and extensive processing activities based on automated processing, large scale processing of sensitive data or criminal convictions, and monitoring of public areas. The controller is obliged to conduct an impact assessment of the envisaged processing on the protection of personal data.[36]

7. Appointment of Data Protection Officer

The business entities (controllers and processors) covered under GDPR are required to appoint a Data Protection Officer (DPO). This obligation is triggered if, (i) the core activities of the entity (as defined below) involves processing operations engaged in regular and systematic monitoring of data subjects; or (ii) there is large scale processing of special categories of data or data regarding criminal conviction. The Working Party 29 Guidelines[37] indicate that the core activities also include businesses whose data processing operations are “inextricable” to its core activities (e.g. processing of patients’ information by a hospital). However, if the processing is merely “necessary” or “essential” to the organisation, then it does not have the obligation to appoint DPO (e.g. storing information of salaries of an organisation’s employees). The designated representative will be the point of contact for the organisation including being subject to enforcement proceedings in the event of non-compliance by the controller or processor. However, this does not mean that the DPO will be personally liable for non-compliance of the duties of controller/processor.

8. Obligations specific to the processor

The processors will have to abide by the contract with the controller and comply with any other EU or member State’s law. The contract between the two must state that the processor can only carry out processing activities on the basis of written instructions from the controller. Processor has the responsibility to see that the personnel authorised to process the data has signed confidentiality agreements. The contract obliges the processor to delete/return the data to the controller after expiry of the contract. The processor must also provide all requisite information to the controller for demonstrating compliance with all its obligations.

IV. Other impacts on non-EU (including Indian) businesses

1. Allowing businesses to expand across borders

GDPR will help Indian businesses to expand their business operations from one or few EU countries to other member States. Under the old Directive, if an Indian company having its operations in Germany wanted to expand to another member State such as France, then the proprietor would have to deal with different regulators, within the local laws (French), for various data processing activities. This would add costs of obtaining legal advice and possibly make changes to business models in order to enter the new market. This had a prohibitive effect, especially in cases where few member States required the businesses to pay notification fees for processing data.

To ease business operations, GDPR has implemented a “one-stop-shop” mechanism. If an entity is engaging in cross-border processing of personal data (i.e. processing or its effect on data subjects takes place in more than one member State), it would have to identify one “lead” supervisory authority for the purposes of compliance. This selection would depend on the place where the main decisions regarding purpose and means of processing is taken, constituting its central administration, that will act as the lead supervisory authority.[38]

2. GDPR will help in the growth of new and small entrants in the market

As per GDPR, the citizens have a right to data portability.[39] It will allow them to move their personal data from one service provider to another. For instance, earlier if a new business wanted to enter in a specific market where there were big corporations already in place, the consumers might not want to shift to the new service provider, as their entire data is registered on the previous existing service providers’ database. Due to the data portability right now being available, the consumers would be able to easily shift to new service providers.

3. GDPR will help in improvement of international cooperation

GDPR has streamlined the process of data transfer to other countries. It provides for an “adequacy decision” — an acknowledgement given at EU level to a non-EU country that adequate protection is afforded to data subjects in its domestic law or international commitments.[40] If an adequacy decision has not been passed in favour of a country, then data transfer can take place on the basis of binding corporate rules. The standard corporate rules incorporate provisions requiring the data recipient to adhere to the EU standards of data protection. If there is neither an adequacy decision nor any binding corporate rules, data transfer can take place on the basis of very narrow exceptions. These exceptions cannot be invoked on a regular basis. They can only be used for a limited amount of data and number of subjects, and for compelling legitimate interests of the controller.[41]

4. Enhanced responsibility on knowledge process outsourcings

Under the GDPR, certain differentiated responsibilities have been imposed on both, controllers and processors. Under the old Directive, the data subjects had no right of remedy against the processors. However, GDPR provides that if the processor violates any of the provisions, then it will be deemed to be a controller in respect of the liability provisions.[42] These provisions puts numerous Indian businesses engaging in knowledge process outsourcing (KPO) at risk for liability.

GDPR is bound to give jitters to Indian businesses looking to expand their operations to the EU. In the long term, one can expect these norms to be imported to India as GDPR has taken the lead by setting high industry standards. The Privacy judgment[43] is just a start towards a safer tomorrow for the data subjects and a tougher one for the businesses.

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* 5th year students, BBA LLB, O.P. Jindal Global University, Sonipat.

[1]  Regulation on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), Regulation (EU) 2016/679.

[2]  The GDPR will come into force on 25-5-2018.

[3]  (2017) 10 SCC 1, p. 252 of Justice Chandrachud’s judgment. The Report of group of experts referred to by Justice Chandrachud heavily relies on the EU Data Protection Regimes.

[4]  The Data (Privacy and Protection) Bill, 2017, Bill No. 100 of 2017, available at <http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/889LS%20AS.pdf>.

[5]  Justice Chandrachud, (2017) 10 SCC 1, 196, 197.

[6]  Justice Kaul, (2017) 10 SCC 1, p. 7, 8, 35, 36.

[7]  Art. 4 of the GDPR.

[8]  Art. 4 of the GDPR.

[9]  Art. 29, Data Protection Working Party, Opinion 4/2007 on the concept of Personal Data, 01248/07/EN.

[10]  Google Spain SL v. Agencia Española de Protecci?n de Datos, 2014 QB 1022 : (2014) 3 WLR 659, also available at <http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX: 62012CJ0131&from=EN>.

[11]  Recital 23 of the GDPR.

[12]  (2016) 1 WLR 863, also available at <http://curia.europa.eu/juris/document/document.jsf?docid =168944&doclang=EN>.

[13]  Cookie is a message that is stored in the browser of the person who is storing a particular website. This message is sent to the server of the same website every time the person visits it again. Cookies are used to modify the content of the website in accordance with the previous behaviour of the person.

[14]  Recital 30 of the GDPR.

[15]  (2015) 1 WLR 4934 : 2015 EWCA Civ 311, available at <https://www.judiciary.gov.uk/wp-content/uploads/2015/03/google-v-vidal-hall-judgment.pdf>.

[16]  Para 115 of the judgment.

[17]  Aon Risk Solutions, Data privacy: New ruling may change the game for companies’ cyber exposures, available at <http://www.aon.com/attachments/risk-services/Google-vs-Vidal-Hall-Cyber-News-Alerts-Final.pdf>.

[18]  Art. 4(7) of the GDPR.

[19]  Art. 4(8) of the GDPR.

[20]  Art. 4(11) of the GDPR.

[21]  Art. 7(3) of the GDPR.

[22]  Art. 7(1) of the GDPR.

[23]  Art. 7(2) of the GDPR.

[24]  Art. 13(1) of the GDPR.

[25]  Art. 33(1) of the GDPR.

[26]  Art. 34(1) of the GDPR.

[27]  Art. 34(3) of the GDPR.

[28]  Guidelines on personal data breach notification under Regulation 2016/679.

[29]  Art. 34(3) of the GDPR.

[30]  Art. 17 of the GDPR.

[31]  2014 QB 1022 : (2014) 3 WLR 659, also available at: <http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62012CJ0131&from=EN>.

[32]  Art. 17(3)(a) of the GDPR.

[33]  “Pseudonymisation” of data means substituting any of the identifying characteristics of data with a pseudonym, which prevents the data subject to be directly identified.

[34]  Encryption converts the data into a secret code. To access the data, a password is required.

[35]  Art. 32(1) of the GDPR.

[36]  Art. 35 of the GDPR.

[37]  The guidelines were formed under the previous EU data Regulation of 1995. It has continued to exist under GDPR as well.

[38]  Art. 51(3) of the GDPR.

[39]  Art. 20 of the GDPR.

[40]  Art. 45 of the GDPR.

[41]  Recital 113 of the GDPR.

[42]  Art. 28(10) of the GDPR.

[43]  (2017) 10 SCC 1.

Case BriefsHigh Courts

Delhi High Court: The Single Judge Bench comprising of Rajiv Shakdher J., decided on a petition seeking the removal of the ban on entry of the petitioner an Indian origin Canadian citizen in India due to being put on a ‘Blacklist’ along with violating the principles of natural justice.

The matter majorly dealt with the ban of the petitioner on entering in India who is of Indian origin migrated to Canada and consisted of an Overseas Citizen of India (OCI) card which permits the free travel to and from India qua persons who are foreign citizens of Indian origin. The petitioner was asked to return to Canada when he reached Hyderabad airport to see his differently able child who had fallen seriously ill.

The petitioner in seeking legal recourses and on being dissatisfied with responses moved to the High Court, where a counter affidavit was filed by the respondents saying the High Court had no jurisdiction to entertain the said petition. Though, the High Court dealt with the issue of jurisdiction and stated that the submission can’t be sustained.

While considering the facts and circumstances of the case, the High Court came to the conclusion with following reasoning that, as averred by the petitioner that he attended ‘Tabligh’ work, it is not a banned activity in accordance to the visa manual. Prima facie, the activity undertaken did not violate any provisions of the Indian law. Therefore, no opportunity being provided to the petitioner by the Respondents is totally unjustified hence, the Court required the respondents to reconsider the petitioner’s case along with bearing in mind the concept of ‘doctrine of proportionality’.[Mohammad Abdul Moyeed v. Union of India, 2018 SCC OnLine Del 9959, dated 20-07-2018]

NewsTreaties/Conventions/International Agreements

The Union Cabinet has approved an Agreement for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to taxes on income between India and Iran. The Agreement will stimulate flow of investment, technology and personnel from India to Iran & vice versa, and will prevent double taxation. The Agreement will provide for exchange of information between the two Contracting Parties as per latest international standards. It will thus improve transparency in tax matters and will help curb tax evasion and tax avoidance.

The Agreement is on similar lines as entered into by India with other countries.  The proposed Agreement also meets treaty related minimum standards under G-20 OECD Base Erosion & Profit Shifting (BEPS) Project, in which India participated on an equal footing. Insofar as India is concerned, the Central Government is authorized under Section 90 of the Income Tax Act, 1961 to enter into an Agreement with a foreign country or specified territory for avoidance of double taxation of income for exchange  of information  for the  prevention  of evasion  or avoidance of income-tax chargeable under the Income Tax Act, 1961.

Cabinet

NewsTreaties/Conventions/International Agreements

  1. MoU between National Investment and Infrastructure Fund (NIIF), Ministry of Finance, Government of India and Qatar Investment Authority (QIA)

The MoU aims at establishing framework for facilitating participation of Qatari institutional investors in Infrastructure projects in India under NIIF.

  1. Agreement on Cooperation and Mutual Assistance in Customs Matters between the Government of Republic of India and Government of the State of Qatar

This agreement promotes cooperation and mutual assistance between the two countries on matters pertaining to customs administration through exchange of information and intelligence.

  1. MoU between Financial Intelligence Unit – India (FIU-IND) and the Qatar Financial Information Unit (QFIU) concerning cooperation in the exchange of intelligence related to money laundering, terrorism-financing and related crimes

The MoU facilitates exchange of intelligence related to money laundering, terrorism-financing and related crimes and persons connected thereto.

  1. MoU between the Ministry of Skill Development and Entrepreneurship, the Government of Republic of India and the National Qualifications Authority/Supreme Education Council, Government of the State of Qatar for Cooperation in Skill Development and Recognition of Qualifications

This MoU aims to enhance cooperation between the two countries on skill development and mutual recognition of qualifications to facilitate mobility of skilled workers from India to Qatar.

  1. MoU on cooperation in Tourism between the Government of the Republic of India and Government of the State of Qatar.

The MoU aims at bilateral cooperation in the field of planning and developing of tourism, through marketing and promotion as also to support cooperation between private sector stakeholders.

  1. MOU between India & Qatar for Cooperation in the field of Health the Government of the Republic of India and Government of the State of Qatar.

This MoU provides cooperation in areas of health, including interalia in occupational and environmental health, pharmaceuticals, medical education, exchange of the best practices in the field of primary healthcare, research in the field of health care, technology, health care system and exchange of medical experts and scientists.

  1. The First Executive Programme for MoU in the field of Youth and Sports between the Government of Republic of India and Government of the State of Qatar

As a follow up to the existing MoU in the field of Youth and Sports, the first Executive Programme provides for exchanges and cooperation in sports activities, training camps for sports teams and exchange visits of leaders and officials etc between the two countries.

Press Information Bureau