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PERSONAL INSOLVENCY: Road at the End of Tunnel

01 Personal Insolvency in India The Insolvency and Bankruptcy Code, 2016 (IBC) consolidated the previously scattered legal framework into a single, comprehensive law. The IBC defines personal insolvency as the inability of an individual or partnership firm to meet their debt obligations. The code aims to streamline the insolvency resolution process, safeguard the interests of both creditors and debtors, and foster entrepreneurship. Before the IBC, personal insolvency was managed under several laws, such as the Presidency Towns Insolvency Act, 1909, and the Provincial Insolvency Act, 1920, resulting in a complex and inefficient system. The introduction of the IBC has brought a more structured and coherent approach to addressing personal insolvency in India. 02 Insolvency and Bankruptcy Code, 2016 The Insolvency and Bankruptcy Code (IBC) is the primary legislation governing personal insolvency in India. It covers both individuals and partnership firms, creating a cohesive legal framework for managing insolvency cases. The code specifies the roles and responsibilities of key stakeholders, including debtors, creditors, Insolvency Resolution Professionals (IRPs), and Adjudicating Authorities. The IBC aims to balance the interests of all parties involved, ensuring a fair and efficient insolvency resolution process. It outlines the specific steps to be followed, including the initiation of insolvency proceedings, appointment of the IRP, and the preparation and approval of the Insolvency Resolution Plan. 03 Who is a Personal Guarantor? Rule 3 (e) of Personal Guarantor Rules: “debtor who is a personal guarantor to a corporate debtor and in respect of whom guarantee has been invoked by the creditor and remains unpaid in full or part”. 04 Framework for Personal Insolvency Rule 3 (e) of Personal Guarantor Rules: “debtor who is a personal guarantor to a corporate debtor and in respect of whom guarantee has been invoked by the creditor and remains unpaid in full or part”. 05 Debt Discharge and Bankruptcy If the insolvency resolution process is unsuccessful or the debtor is unable to repay a minimum threshold of debt, the individual may be declared bankrupt by the Adjudicating Authority. Bankruptcy proceedings under the IBC provide for the liquidation of the debtor’s assets and the distribution of the proceeds among the creditors. After completing the bankruptcy process and meeting certain requirements, the debtor may receive a debt discharge. This discharge releases the debtor from their remaining debts, enabling them to start anew and recover financially. The debt discharge also protects the debtor from further creditor collection efforts. The specific conditions for obtaining a debt discharge are outlined in Section 138 of the IBC. 06 Challenges and Criticism Although the IBC has streamlined the insolvency process, it faces several challenges concerning personal insolvency. The key issues include: 07 Comparative Analysis Personal insolvency frameworks in other jurisdictions, such as the US (under Chapter 7 and Chapter 13 of the Bankruptcy Code) and the United Kingdom (under the Insolvency Act 1986), adopt different approaches compared to India’s system under the IBC. In the US, Chapter 7 provides for liquidation and debt discharge, while Chapter 13 offers repayment plans based on the debtor’s financial situation. The UK’s Insolvency Act 1986 also includes mechanisms for debt discharge and repayment, tailored to individual needs. India’s IBC strives to balance creditor interests with giving debtors a fresh start, but it is still evolving. A comparative analysis with the UK and US frameworks highlights both similarities and differences influenced by each jurisdiction’s historical, economic, and legal context. Both systems aim to provide debtors with a fresh start while protecting creditor rights, demonstrating the complex interplay between debtor relief, creditor recovery, and broader economic objectives. 08 Implementation & Challenges The implementation of the personal insolvency framework under the IBC has faced several challenges. Awareness and accessibility issues have limited the utilization of the insolvency resolution process, particularly among the marginalized sections of society. Delays in the resolution process and a lack of institutional capacity and infrastructure have also hindered the effectiveness of the system. Recent amendments to the IBC, such as the Insolvency and Bankruptcy Code (Amendment) Act, 2020, have aimed to address these concerns by strengthening the personal insolvency provisions and improving the institutional framework. Nevertheless, additional efforts are required to improve the efficiency and accessibility of the personal insolvency system in India. Promoting financial literacy and debt counselling services, as well as streamlining the adjudication process, can play a crucial role in supporting individuals facing insolvency.

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CLIMATE CHANGE & CORPORATE INSOLVENCY

– Nitya Prabhakar, Associate With the advent of climate change, the long-standing debate on its challenges and impacts has gained mainstream traction in the business realm due to the heightened risks to corporate liquidity and solvency. With businesses becoming increasingly vulnerable to climate-related disruptions, insolvency laws must adapt to ensure comprehensive risk management and sustainable recovery. This article explores the comparative analysis of insolvency laws across the globe, with a particular focus on the Indian perspective, highlighting how climate change impacts the insolvency process. Global Trends in Insolvency Laws and Climate Change Globally, insolvency laws have evolved to address not only traditional financial distress but also the emerging challenges posed by climate change by incorporating climate risk into insolvency frameworks by jurisdictions like United States, United Kingdom and Australia. One notable trend is the shift towards Debtor-in-Possession (DIP) Financing, adopted by USA and UK, which enables companies to restructure its debts while remaining in control of its business operations, subject to the oversight and jurisdiction of the court. In United States, the Pacific Gas and Electric Company (PG&E) voluntarily filed for reorganization in 2019 due to billion dollars liability from wildfires that were aggravated by climate change. PG&E emerged from bankruptcy in June 2020 after a comprehensive restructuring plan was approved, which included compensation for wildfire victims and substantial investments in wildfire mitigation measures. Another global trend is the increased use of Pre-Packaged Insolvency, which can be used as a strategic tool to manage environmental risks/liabilities, facilitate asset transactions and streamline the restructuring process. By transferring environmental liabilities to specialized third-party firms under a guaranteed fixed-price remediation contract, companies can separate these burdensome obligations from their core assets. This not only enhances the attractiveness of these assets to potential buyers but also ensures that environmental remediation is fully funded and compliant with regulatory standards. As a result, this approach helps achieve the rehabilitative goals of bankruptcy by preserving asset value while addressing environmental responsibilities, making it a vital strategy in new-age corporate restructuring. However, critics argue that pre-packaged insolvencies may not always prioritize creditor interests or ensure fair outcomes. Similarly, another growing global trend is Creation of Environmental Trust, which is different from an environmental risk/liability transfer, as it is set up specifically to handle environmental cleanup obligations. These trusts are established as a financial mechanism to ensure the cleanup and remediation of contaminated sites, particularly in cases where the responsible party may be insolvent or unable to fulfil their obligations. These trusts are often created during bankruptcy proceedings to allocate funds specifically for addressing environmental liabilities, ensuring that the necessary remediation work continues even after the company’s assets are liquidated or restructured. A notable example is the case of In re Tronox Inc., where the court approved the creation of custodial trusts funded with $115 million. These trusts were designed to manage and remediate contaminated sites, allowing Tronox to resolve its environmental liabilities while focusing on its core business operations post-bankruptcy. Additionally, countries are increasingly revising their insolvency frameworks to tackle the emerging climate-related challenges affecting corporate solvency. The integration of climate-related financial disclosures, as per the Task Force on Climate-related Financial Disclosures, is enhancing transparency and helping stakeholders assess climate risks. Sustainable finance initiatives and carbon pricing mechanisms are being adopted to incentivize green investments and penalize high-emission practices, thus reshaping industry dynamics. Further, climate risk disclosure regulations and ESG standards are driving companies to align with environmental goals influencing their financial health. Indian Perspective on Insolvency Laws and Climate Change In India, the Insolvency and Bankruptcy Code (IBC), 2016, has been an instrumental legislation in resolving insolvencies, emphasizing restructuring and rehabilitation over liquidation. However, climate change poses new challenges for Indian businesses, particularly micro, small, and medium enterprises (MSMEs), which are vulnerable to climate-related disruptions. The Supreme Court has recently in the judgment of Hari Babu Thota, allowed promoters to submit resolution plans even if their entities were registered as MSMEs post-CIRP commencement, which paves the way for a more dynamic interpretation of the IBC, aligning it with contemporary economic and environmental realities. The Essar Steel India Ltd. case which affirms the primacy of Committee of Creditors (CoC) in decision-making process for any concern under insolvency, emphasizes the necessity of considering broader economic and social factors in insolvency resolutions. This principle can be extended to include climate risk assessments as part of the CoC’s evaluation criteria. In the case of Gujarat Urja Vikas Nigam Ltd., where the Corporate Debtor was constrained to file a petition under Section 10 of the IBC due to the adverse effects of rainfall and floods on its solar power plant, the Supreme Court upheld the preservation of the Power Purchase Agreement. The Court ruled against the attempt of Gujarat Urja Vikas Nigam to terminate the agreement solely on the grounds of insolvency. This decision stresses the impact of climate change on business operations and highlights the necessity for insolvency laws to adapt to emerging challenges, including, but not limited to the rise in non-performing assets due to climate-related stress in the banking sector, the complexities involved in asset valuation and debtor viability assessment. Climate Change and Insolvency: A Need for Proactive Measures The impact of climate change on businesses is multifaceted, affecting supply chains, asset valuations, and overall financial stability. As such, there is a growing consensus on the need for insolvency frameworks to be more resilient to climate-related risks. This necessitates a proactive approach, including legislative reforms, regulatory guidance, and judicial activism. In India, the incorporation of Environmental, Social, and Governance (ESG) criteria into corporate governance and insolvency proceedings could be a significant step forward. The Securities and Exchange Board of India (SEBI) has already introduced mandatory ESG disclosures for listed companies, in alignment with global best practices. Extending these requirements to the insolvency process would ensure that climate risks are adequately assessed and managed. Furthermore, the integration of climate risk assessments into the resolution plans approved by the CoC could enhance the resilience of the restructured entities. This would involve conducting comprehensive environmental impact assessments

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CORPORATE GOVERNANCE & WHITE-COLLAR CRIMES IN INDIA: An examination of Master Direction on Fraud issued by the RBI.

– Vishvendra Tomar, Principal Associate Corporate governance is essential for the smooth operation of companies and the broader financial system. It involves the frameworks, policies, and practices that ensure companies operate with integrity and transparency. This is particularly vital in combating white-collar crimes such as fraud, embezzlement, and insider trading. Individuals in positions of trust often commit these crimes, which can significantly damage financial markets and institutions, leading to extensive economic fallout. This article explores the relationship between corporate governance and white-collar crimes in India, focusing on recent regulatory updates like the Master Directions on Fraud issued by the Reserve Bank of India (RBI) in July 2024. These guidelines aim to bolster the framework for managing fraud and highlight the importance of strong corporate governance practices. White-Collar Crimes and Corporate Governance White-collar crimes are often sophisticated and difficult to detect, involving methods that obscure illegal activities. Such crimes can result in more than just financial loss; they also damage a company’s reputation and erode stakeholder trust. Effective corporate governance is crucial in addressing these risks through: 1. Implementing Strong Internal Controls: Effective internal controls and audit procedures are vital for detecting and preventing fraud. Regular audits and compliance with financial reporting standards are essential for spotting discrepancies and potential fraudulent activities. 2. Promoting an Ethical Culture: A culture grounded in strong ethical values, supported by clear policies, helps reduce the incidence of white-collar crimes. Organizations should foster an environment where ethical behavior is encouraged and unethical actions are penalized. 3. Enhancing Transparency: Transparency in operations and reporting helps ensure all financial transactions are properly documented and scrutinized. This openness can reveal unusual patterns or anomalies indicative of fraudulent behavior. Key Aspects and Implications of the 2024 RBI Master Directions 1. Scope of Directives: 2. Treatment of Accounts Under Resolution: 3. Penal Measures: 4. Governance Structure for Fraud Risk Management: 5. Framework for Early Detection of Frauds: 6. Red-Flagged Accounts and Fraud Reporting: 7. Reporting Fraud Incidents: Category of bank Amount involved in the fraud LEA to whom complaint should be lodged Remarks Private Sector / Foreign Banks Below ₹1 crore State / Union Territory (UT) Police ₹1 crore and above In addition to State/UT Police, Serious Fraud Investigation Office (SFIO), Ministry of Corporate Affairs, Government of India Details of fraud are to be reported to SFIO in Fraud Monitoring Return (FMR) format. Public Sector Banks / Regional Rural Banks (a) Below ₹6 crore25 State / UT Police (b) ₹6 crore and above Central Bureau of Investigation (CBI) 8. Reporting and Investigation: 9. Closure of Fraud Cases: 10. Special Committee: 11. Staff Accountability: 12. Additional Directives: The revised RBI Master Directions on Fraud Risk Management from July 2024 represent a significant advance in strengthening fraud prevention and control within India’s financial sector. By emphasizing natural justice and providing a comprehensive framework for reporting and compliance, these guidelines aim to enhance transparency and accountability, protecting the integrity of the financial system.

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DIGITAL COMPETITION BILL, 2024 REGULATING BIG TECH IN THE WORLD’S LARGEST DEMOCRACY

– Mandeep Singh, Associate The Digital Competition Bill, 2024 [‘DCB’], proposed by the Indian government, aims to establish a comprehensive regulatory framework for digital markets and prevent anti-competitive practices by giants in the industry. This legislation seeks to address the unique challenges posed by the rapidly evolving digital economy, focusing on issues such as market dominance, data monopolies, and anti-competitive practices in the digital sphere. The DCB is a depiction of a significant shift in India’s approach to regulating technology companies, aligning with global trends towards increased scrutiny of tech giants. The DCB draws inspiration from the European Union’s Digital Market Act [‘DMA’] passed in the year 2022. The DCB proposes ex-ante forms of regulation i.e., predictive regulation that can foresee and possibly prevent issues that can arise in the Indian markets. Another salient feature of the DCB is that the DCB defines Systemically Significant Digital Enterprise [‘SSDE’] and prohibits SSDE’s from engaging in anti-competitive practices, such as anti-steering, self-preferencing etc. The Competition Commission of India [‘CCI’] is entrusted with the responsibility for identification of SSDE’s and regulating their practices. Legislative Context & Objectives The DCB puts in place obligations for large digital enterprises intending to create a level playing field and promote fair competition within the digital space, it is rooted in the recommendations of the Parliamentary Standing Committee on Finance and the Competition Law Review Committee. Its primary objective is to amend the Competition Act, 2002, to incorporate provisions specifically tailored to digital markets. DCB aims to foster innovation, protect consumer welfare, and ensure a level playing field for all market participants, including startups and smaller enterprises. By introducing ex-ante regulations, the legislation seeks to prevent anti-competitive conduct before it occurs, rather than relying solely on ex-post enforcement. Furthermore, the DCB aims to prevent large digital companies from exploiting non-public users data and favoring their services over competitors, promote fair practices in the digital ecosystem and prevent self-preferencing by companies only promoting their products on top of search results and excluding similar products etc. Systematically Important Digital Intermediaries (SIDIs) SIDIs are defined as entities with substantial control over gateway services in the digital ecosystem, SIDIs have a significant impact on the digital ecosystem and have a high market share in their respective digital markets. DCB empowers the CCI to designate SIDIs based on quantitative thresholds and qualitative parameters. SIDIs will be subject to enhanced obligations, including mandatory interoperability requirements and restrictions on certain data usage practices. DCB also introduces the concept of ‘digital gatekeepers,’ entities with significant impact on the digital ecosystem and market share which can control access to digital markets, they exhibit strong network effects and vast amount of data. Key Provisions: The legislation prohibits specific anti-competitive practices in digital markets, including self-preferencing, search bias, and bundling of services. It proposes a preventive (ex-ante) approach rather than post-incident (ex-post) approach in order to foresee and prevent potential anti-competitive practices and prevent potential anti-competitive practices before their occurrence. It mandates algorithmic transparency for SIDIs and introduces data portability requirements to reduce switching costs for consumers amongst other obligations on SIDIs. Moreover, the DCB envisages ‘core digital services’ like search engines/social media sites to be designated as SSDE automatically. It has also introduced Associate Digital Enterprises **[‘ADE’], ADE are entities benefiting from data shared by a major Tech company or group of companies, ADEs shall have similar obligations as SSDEs. DCB also addresses the issue of killer acquisitions by lowering the thresholds for mandatory merge notifications in the digital sector. Furthermore, it grants the CCI powers to conduct market inquiries into the digital economy and issue binding directions to ensure fair competition. Enforcement Mechanism & Penalties To ensure compliance, the DCB established a robust enforcement mechanism. It grants the CCI enhanced investigative powers, including the ability to conduct dawn raids on digital entities. DCB introduces significant financial penalties for non-compliance, with fines up to 10% of global turnover of SIDIs for non-compliance with the provisions of DCB with an additional 5% of the global turnover of the SIDI for each day of continued non-compliance. CCI also has the power to suspend or revoke the licenses of SIDI that fail to comply with the provisions of DCB along with this, the CCI can also issue directions to SIDI’s to cease and desist from anti-competitive practices. CCI may in its discretion appoint a monitor to oversee the compliances done by SIDI’s. further, CCI may also order SIDI’s to compensate affected parties for losses suffered due to anti-competitive practices. DCB also provides for personal liability of key managerial personnel in cases of willful non-compliance. The legislation established a specialized digital markets unit within the CCI to oversee enforcement and conduct market studies. NM LAW OPINION: The Digital Competition Bill aims to promote fair competition and innovation in the digital marketplace and targets monopolistic practices, such as self-preferencing, that stifle competition and innovation by promoting a level playing field, the DCB fosters an environment where new entrants and smaller competitions can thrive. Although some argue that the DCB’s provisions may lead to excessive regulation, hindering the ability of companies to innovate and adapt. Moreover, requirements and enforcement mechanisms under DCB may create uncertainty, making it challenging for businesses to comply. Overall, the Digital Competition Bill aims to strike a balance between promoting competition and innovation while protecting consumers. Its success will depend on effective implementation, clear guidance, and ongoing evaluation to address any unintended consequences.

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THE NEXUS BETWEEN THE OFFENCE OF MONEY-LAUNDERING & THE SCHEDULED OFFENCE

– Samridhi Nain, Associate The Prevention of Money Laundering Act, 2002 [‘PMLA’] defines the offence of money laundering under Section 3 as a direct or indirect attempt to indulge or knowingly assist or knowingly be a party or be actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property. Scheduled Offence as a Sine Qua Non Given the said definition under PMLA, the Hon’ble Supreme Court in the case of Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929 had held that the offence of money-laundering is not dependent or linked to the date of commission of scheduled offence. The offence of money-laundering is triggered only when a person indulges in the process or activity connected with such proceeds of crime, thus, it is only when money is generated as a result of the acts that PMLA steps in. As the proceedings under the PMLA are triggered only with respect to proceeds of crime, hence, it is inconsequential if the scheduled offence may be a non-cognizable offence as the person is not prosecuted for the scheduled offence under PMLA but for his criminal activity of money-laundering. However, the Hon’ble Supreme Court had clarified that in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court owing to an order of discharge, acquittal or because of quashing of the criminal case against him, there can be no action for money-laundering against such a person or person claiming through him in relation to the property linked to the state scheduled offence. Thus, the existence of a scheduled offence is a sine qua non for any initiation of proceedings under the PMLA by the ED. Although several offences have been provided in the Schedule, but it was only in the case of Pavana Dibbur v. Directorate of Enforcement 2023 SCC OnLine SC 1586 that the Hon’ble Supreme Court adjudicated upon the issue whether Section 120-B (providing punishment of criminal conspiracy) solely was sufficient to merit invocation of proceedings under the PMLA. The Hon’ble Court analysed the scheme of the Schedule and held that the Legislature intentionally included and excluded certain offences; thus, it cannot be the intention of the Legislature that even when the registered offence is not a scheduled offence, yet, by mere inclusion of Section 120-B it would transform into a scheduled offence laying the foundation for initiation of proceedings under PMLA. Such an interpretation would make every offence which was not included in the Schedule as a scheduled offence by applying Section 120-B. Thus, the Hon’ble Court held that offence under Section 120-B would become a scheduled offence only if the criminal conspiracy to commit any offence already included in the Schedule. Independent Nature of Proceedings for Offences under PMLA and for Scheduled Offence Although the initiation of proceedings under the PMLA are dependent upon the existence of a scheduled offence, but execution of such proceedings is absolutely independent of the trial of the scheduled offence. The same can be evinced from the recent case of K.A. Rauf Sherif v. Directorate of Enforcement T.P. (Crl) No. 89/2023 vide Order dt. 10.04.2023 wherein the Hon’ble Supreme Court held that irrespective of where the FIR relating to the scheduled offence was filed and irrespective of which Court took cognizance of the scheduled offence, the question of territorial jurisdiction of a Special Court under the PMLA to take cognizance of a prosecution complaint filed by the Directorate of Enforcement [‘ED’] should be decided with reference to the place where anyone of the activities/ processes which constitute the offence under Section 3 took place. Section 44(1) Explanation (i) categorically clarifies that the trial of scheduled offence and the offence of money-laundering are independent trial proceedings. The provision states that the jurisdiction of the Special Court while dealing with the offence under PMLA, during investigation, enquiry or trial, shall not be dependent upon any orders passed in respect of the scheduled offence, and the trial of both sets of offences by the same court shall not be construed as joint trial. The independence of the trial proceedings were further clarified by the Hon’ble Supreme Court in the case of Rana Ayyub v. Directorate of Enforcement [2023] 4 SCC 357 wherein it was held that Section 44(1) Explanation (i) clarifies that even in the circumstance that the trial of scheduled offence and offence of money-laundering are conducted by the same court, the said proceedings cannot be construed as a joint trial proceeding. Thus, the separation of the judicial proceedings enables the ED to array a person as an accused irrespective of the fact that the said person may be a non-accused or a witness in the scheduled offence proceedings. Recently, the Hon’ble High Court of Delhi in the case of Sanjay Kansal v. Directorate of Enforcement Bail Appln. No. 1268/2023 vide Order dt. 09.05.2024 agreed with the judgment of the Hon’ble Allahabad High Court in the case of Mohan Lal Rathi v. Union of India through Directorate of Enforcement 2023: AHC-LKO:59826 that the grant of pardon would bring an accused in the category of witness however, the same is subject to certain conditions under Section 306/307 of the Code of Criminal Procedure, 1973 and cannot be considered as absolute absolvement in the predicate offence. The Hon’ble High Court of Delhi further noted that the evidence sought to be given at the instance of accused in the proceedings of the scheduled offence cannot be used for the purposes of proceedings under the PMLA, hence, his status as an approver lends no impact upon any proceedings under the PMLA. Subsistence of Attachment of Proceeds of Crime The proceedings for attachment initiated by the ED under Section 5 and subsequently confirmed by the Ld. Adjudicating Authority under Section 8 of the PMLA are similarly dependent upon the existence of the scheduled offence. Recently in the case of

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हम WHEN WOMEN LEAD

“Hum” is a powerful anthology that chronicles the extraordinary journeys of resilient women across India, each trailblazing a path of transformative change in their communities. These stories delve into the myriad ways women have challenged and reshaped societal norms, overcoming personal and communal barriers with unwavering determination and courage. This collection is a mosaic of diverse experiences, ranging from grassroots activism and environmental stewardship to breaking barriers in traditionally male-dominated fields and advocating for social justice. The narratives reveal the profound impact of women’s leadership in driving sustainable change, showcasing their ability to not only confront but also transcend the challenges posed by gender discrimination, cultural constraints, and economic hardships. “Hum” is more than a book; it is a compelling call to action, inviting readers to engage with and support the ongoing movement towards a more equitable and empowered society. INTRODUCTION URVASHI BUTALIA As you turn the pages of this book, you will meet women from all corners of India. Confident, strong, smiling, focused, they invite you to read their stories, meet their communities, ‘listen’ to their voices. We are women, they tell you, single, mothers, aunts, daughters, grandmothers. We do many things: we’re farmers, we fly planes, we’re technicians and scientists and engineers, we teach, we embroider, we’re activists, we work with water, and seeds, and crops, with trees and forests, with disability and marginalization and so much more. Sometimes our families support us, at others they don’t, sometimes they learn, over time, to do so. Our journeys haven’t been easy, but they have been worthwhile. And we’re only a miniscule, a tiny fragment of the enormous pool of talent that exists among us. The stories here, are gathered and put together by another set of women, listeners and writers and photographers, designers and editors. As you read them and meet the women in their beautiful photographs, you will become familiar with words such as ‘courage’ and ‘determination’, ‘barriers’, ‘difficulties’, ‘support’ and not least, ‘dreams and desires’. Every woman here carried a dream in her heart—sometimes it was as simple as wanting an education, sometimes it was seeking a better life for her family, at others it was wanting to touch the skies. And as these stories tell us, all it takes for a woman to fiercely own and work to make her dream come true, is the smallest of opportunities. Give her that and she will surmount even the most formidable of obstacles. The 75 stories here mark 75 years of India’s independence, a fitting moment to pay tribute to half its population. They also direct us to the wisdom that lies in women’s stories. They remind us of the ways in which these stories, ostensibly ‘small’, touch on so many of the wider issues of our time. When a woman saves and works with seeds, or she harvests water, she is addressing climate change, when she seeks education, she’s asking for the knowledge that will enable her to be a citizen in full measure, when she begins to earn an income, she contributes to the overall economy, both personal and private. In many ways, these are inspirational stories. Young and old women reading them will know that given a chance, for women, the sky is the limit. Their power lies not only in the individual story, but in that of the collective, the ghĕ of the title, the ‘we’ and ‘us’ of our lives, the coming together of the many little stories that make up the experiential base of women’s lives. Read them, you will not be disappointed. NEEHA NAGPAL New Delhi Neeha Nagpal has carved a niche in the legal world, contributing to significant cases such as the decriminalization of homosexuality in India. Her leadership model is one of courage and innovation, creating a positive and supportive environment for young women in her firm. Neeha’s persistence in the face of adversity is captured in the following reflection: “When I started out in law, the field was so hostile. No one took me seriously or believed I was capable of anything.” We are delighted to share that our Partner Neeha Nagpal has been featured in “Hum: When Women Lead” by UN Women India. “Hum” is an anthology that chronicles the journeys of resilient women across India, each trailblazing a path of transformative change in their communities. It is an absolute honour to get featured amongst the powerful women. Thanks to Ford Foundation and UN Women India. hashtag#UnitedNations hashtag#UN hashtag#UNWomenIndia hashtag#Hum hashtag#WomenLeader hashtag#Feature hashtag#LegalCommunity hashtag#Lawyer hashtag#NMChambers

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Ethical Considerations in the Use of Technology in Litigation

Technology has completely reshaped the way litigation is handled, making legal research, case management, and evidence presentation more efficient than ever before. With tools like artificial intelligence (AI), electronic discovery (e-discovery), anddigital communication, lawyers can now work faster and more effectively. But withthese advancements come serious ethical concerns—confidentiality, accuracy, fairness, and professional responsibility are all at stake. Legal professionals need to be mindful of these challenges to uphold justice and preserve the integrity of the legal system. 1. Confidentiality and Data Security Confidentiality is one of the most fundamental principles in legal ethics. With so much client data stored and shared digitally, the risk of security breaches is real. To protect sensitive information, lawyers should: • Use encrypted communication channels and secure cloud storage. • Implement multi-factor authentication to keep unauthorized users out. • Stay compliant with data protection laws like the GDPR and India’s Information Technology Act, 2000. • Educate their teams and clients about cybersecurity best practices. 2. Staying Up to Date with Legal Technology Lawyers have a duty to keep up with the latest technology. This means: • Understanding how AI-powered research tools work and their limitations. • Keeping pace with blockchain, predictive analytics, and digital forensics. • Fact-checking AI-generated legal arguments to ensure accuracy. 3. Digital Evidence and the Risk of Deepfakes Technology has made digital evidence an essential part of many cases, but it also brings new risks. Deepfakes—AI-generated content that manipulates audio, video, or images— could be used to introduce false evidence. To avoid this: • Lawyers need to carefully verify digital evidence before presenting it in court. • Forensic tools should be used to check for alterations or manipulation. • Courts need stricter guidelines on the admissibility of AI-generated content. 4. The Dangers of AI Bias in Legal Decisions AI can help predict case outcomes, recommend sentences, and analyze legal documents, but these systems are only as good as the data they’re trained on. If the data is biased, the results will be too. To ensure fairness: • Lawyers should critically analyze AI-generated legal insights. • Transparency in AI decision-making processes should be prioritized. • AI tools should always be used with human oversight. 5. Ethical Use of Social Media in Litigation Social media is a goldmine for evidence, but lawyers must use it ethically. That means: • Avoiding deceptive tactics, like creating fake profiles to gather information. • Respecting client confidentiality and avoiding public discussions of cases. • Thinking about the potential consequences of online statements. 6. The Risk of Unauthorized Legal Practice Through AI AI-driven legal tools are becoming more common, but there’s a fine line between using technology for assistance and relying on it for actual legal advice. Lawyers should: • Ensure that AI-powered tools don’t cross into unauthorized legal practice. • Make sure clients understand that AI can’t replace a qualified attorney. • Follow all professional regulations regarding legal automation. 7. Ensuring AI-Generated Legal Content is Reliable Lawyers have faced penalties for submitting AI-generated legal documents with fake citations. This highlights the need for: • Verifying all AI-generated legal research before using it. • Cross-checking citations with primary sources. • Being mindful that AI tools are fallible and require human oversight. 8. Maintaining Professional Integrity in Tech-Driven Litigation The duty of candor extends to technology use in legal practice. Lawyers should: • Disclose when AI-generated content is used in court filings if necessary. • Ensure all electronic submissions comply with procedural rules. • Prevent AI misuse that could compromise legal integrity. Conclusion: Technology is transforming litigation in ways that make legal work more efficient and accessible. However, the ethical concerns that come with it—data security, AI bias, deepfake evidence, and more—can’t be ignored. Lawyers have a responsibility to balance technological innovation with professional integrity, ensuring that justice is served without compromising ethical standards. By staying informed, exercising caution, and upholding the core values of the legal profession, they can make the most of legal technology while preserving the integrity of the law.

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Online Dispute Resolution (ODR): The Next Frontier for Litigants?

In recent years, technology has revolutionized almost every aspect of our lives, from the way we communicate to how we shop, work, and even resolve disputes. In the realm of dispute resolution, Online Dispute Resolution (ODR) has emerged as a powerful tool to address conflicts efficiently, cost-effectively, and in a more accessible manner. As the world increasingly shifts towards digital solutions, the question arises: Is ODR the next frontier for litigants? This essay explores the evolution of ODR, its benefits and challenges, and its potential to reshape the future of conflict resolution. The Evolution of Dispute Resolution Historically, dispute resolution methods were primarily confined to physical settings such as courts, tribunals, and arbitration panels. Legal disputes involved in-person hearings, paperwork, and long waiting periods. However, with the advent of the internet and digital platforms, alternative dispute resolution (ADR) methods such as mediation and arbitration began to move online. The result was ODR—an umbrella term encompassing a variety of online processes used to settle disputes, including negotiation, mediation, arbitration, and even litigation. ODR solutions initially found traction in niche markets such as e-commerce, where issues such as non-payment, fraud, and service quality were prevalent. Platforms like eBay and PayPal pioneered the use of ODR by offering mechanisms for resolving disputes between buyers and sellers. As technology advanced, so did the potential applications of ODR, and today it is applied to a wide range of disputes, from family law and employment disagreements to international commercial conflicts. Benefits of ODR One of the most significant advantages of ODR is accessibility. Traditional dispute resolution often involves physical courtrooms or meeting locations, which may be difficult for some litigants to attend due to geographical or financial constraints. ODR eliminates these barriers by allowing parties to engage in the process from the comfort of their homes or offices, at a time that suits them. This is particularly beneficial for individuals in rural areas or developing countries, where access to legal resources may be limited. Cost-effectiveness is another key benefit of ODR. Litigation and arbitration can be expensive, with high legal fees, travel costs, and administrative expenses. ODR significantly reduces these costs by streamlining the process, minimizing the need for travel, and eliminating many traditional overheads. As a result, ODR provides an affordable alternative for individuals and businesses that might otherwise be unable to afford formal dispute resolution processes. Additionally, ODR is often faster than traditional methods. In-person hearings can take months or even years to resolve, particularly in overloaded court systems. In contrast, many ODR platforms offer expedited timelines, allowing parties to resolve their disputes in a matter of weeks or even days. This speed is especially important in commercial disputes, where delays can result in lost revenue, contractual breaches, or damaged business relationships. ODR also offers flexibility and convenience. It allows for greater control over the process, enabling parties to choose their preferred method of resolution, such as mediation or arbitration. Moreover, the use of technology facilitates the integration of various tools, such as document sharing, video conferencing, and automated negotiation, which further enhance the efficiency and effectiveness of the process. Challenges and Concerns Despite its many advantages, ODR is not without its challenges. One major concern is the issue of trust. While traditional dispute resolution mechanisms are overseen by judges or arbitrators with legal authority, ODR often relies on algorithms or third-party platforms to mediate disputes. This raises questions about the fairness and impartiality of the process, particularly in cases where the technology is not transparent or where users lack the technical knowledge to understand how decisions are made. Privacy and data security are other significant concerns in ODR. Online platforms typically require participants to submit personal information, documents, and communications that may be sensitive or confidential. If these platforms are not adequately protected, there is a risk of data breaches, cyberattacks, or unauthorized access to private information. As ODR grows in popularity, ensuring robust data protection measures and legal safeguards will be essential to maintaining the integrity and security of the process. Furthermore, the digital divide poses a challenge for ODR adoption. While many people around the world have access to the internet, not everyone has the necessary devices, bandwidth, or technical literacy to fully engage in online dispute resolution. This can create an inequitable system where some parties are excluded from the process or disadvantaged by their lack of technological resources. Finally, while ODR has gained traction in some jurisdictions, there is still a lack of uniformity in its legal and regulatory frameworks. Many countries do not have specific laws governing ODR, which can lead to uncertainty and inconsistency in how disputes are resolved. This lack of regulation may also raise concerns about the enforceability of ODR outcomes, especially in cross-border disputes. The Future of ODR Despite the challenges, the potential for ODR to become the next frontier for litigants is immense. As technology continues to advance, so too will the capabilities of ODR platforms. Artificial intelligence (AI) and machine learning, for instance, could play a pivotal role in automating and improving the efficiency of dispute resolution. AI could assist in analyzing vast amounts of data, identifying patterns, and even offering recommendations for settlement. Moreover, as more legal systems recognize and embrace ODR, it is likely that global standards and regulations will emerge, creating a more cohesive and predictable framework for online dispute resolution. Governments, legal institutions, and technology companies must work together to address concerns such as data privacy, fairness, and accessibility to ensure that ODR remains a viable option for all. In conclusion, Online Dispute Resolution represents a significant evolution in the field of dispute resolution. It offers numerous advantages, including increased accessibility, reduced costs, faster resolution, and enhanced flexibility. However, to truly become the next frontier for litigants, it must overcome challenges related to trust, privacy, and equitable access. With the right safeguards in place and continued technological innovation, ODR has the potential to transform how individuals and businesses resolve disputes, making justice more accessible and efficient for

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Why Arbitration is the Preferred Dispute Resolution Method for Corporates

In the convoluted world of global commerce, where transactions and agreements are of intricate nature, the rise in corporate disputes is an inevitable consequence. Traditional courtroom-based litigation methods, often mired in procedural delays and burdened by escalating costs, tend to be either a cumbersome or rather an ineffective instrument for resolving these intricate disputes hastily. This article posits that arbitration offers a distinctively better mechanism for corporate dispute resolution, in terms of effectiveness, flexibility, and, to some extent, confidentiality. Moreover, the burgeoning field of artificial intelligence (AI) can further amplify these inherent advantages for a far better dispute resolution process. The upper hand of Arbitration in the Realm of Corporate Disputes: Arbitration, a cornerstone of alternative dispute resolution [‘ADR’], empowers parties to resolve their disputes outside the often-onerous confines of conventional court litigation. A few key advantages of Arbitration in resolving Corporate Disputes are as following: 1. Expedited Resolution: Arbitration is a much more expeditious process than courtroom litigation, resolution is done within months rather than the years typically associated with court proceedings. Most of the arbitral proceedings are completed within a year, this virtue of time efficiency enables corporate houses to mitigate the disruption caused by longstanding disputes and allocate resources more effectively. 2. Cost Containment: When it comes to the expenses incurred in corporate dispute resolution, arbitration turns out to be far more cost-efficient. Arbitration substantially reduces the financial burden of dispute resolution compared to the often-exorbitant costs of traditional courtroom litigation. As the parties can resort to streamlining procedures as per their need and also minimize the need for extensive pre-trial discovery which in turn leads to cost efficiency. 3. Procedural Flexibility and Party Autonomy: One of the most distinctive features of arbitration is the degree of control and leverage it provides to the disputing parties. They can tailor the arbitral process to their specific needs, including the selection of arbitrators, defining the applicable procedural rules by which they wish to be governed, and determining the venue of the proceedings. 4. Enhanced Confidentiality: Ensuring maintenance of confidentiality is paramount in many corporate disputes, as it often involves sensitive business information and the reputations are often at stake. Arbitration facilitates an option for a private forum for dispute resolution, shielding sensitive information from public and unwanted parties, unlike the open nature of court proceedings. 5. Preservation of Business Relationships: It is not a disputed fact that the adversarial nature of legal battles fought in courtrooms can result in often irrevocable damage to business relationships. Arbitration, on the other hand, ensures an amicable resolution is achieved by methods of negotiation and collaboration, and mutually acceptable solutions, which further aids in preserving valuable commercial relationships, particularly crucial for ongoing or long-term contractual arrangements. 6. Specialized Adjudication: Arbitration gives autonomy to the disputing parties to select arbitrators with specialized knowledge and experience in the relevant industry. This ensures that decisions are rendered by individuals with a nuanced understanding of the specific technical, financial, and commercial intricacies of the dispute, in contrast to generalist judges who may lack such specialized expertise. The Indian legal landscape provides robust support for arbitration. The Hon’ble Supreme Court, in landmark cases such as Centrotrade Minerals & Metals Inc v. Hindustan Copper Ltd., (2017) 2 SCC 228, has affirmed the principle of ‘party autonomy’ in shaping the arbitral process. Party autonomy has been described by the Hon’ble Supreme Court as the ‘backbone’ of arbitrations. Similarly, in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (2016) 4 SCC 126, the Hon’ble Supreme Court described party autonomy as the ‘brooding and guiding spirit’ of arbitrations, highlighting its fundamental role in the arbitral process. This autonomy extends to the selection of arbitrators, the determination of the applicable law, and the seat of arbitration. The Transformative Potential of AI in Arbitration: Artificial intelligence is all set to revolutionize the landscape of dispute resolution. AI-powered tools are transforming the traditionally laborious and costly process of document review and analysis. By leveraging machine learning algorithms, these tools can intelligently identify key evidence and discern patterns within vast datasets, significantly streamlining the discovery process and reducing the expense associated with manual review. Platforms like Kira Systems, Logikcull, and Relativity are already being deployed to automate document review, enabling legal teams to focus on higher-level strategic analysis. Predictive analytics, driven by AI, offers a powerful tool for assessing case strength and potential outcomes. By analyzing historical arbitration data, including arbitrator decisions, award amounts, and case characteristics, AI algorithms can generate predictions about the likely outcome of a pending dispute. This capability empowers parties to make more informed decisions regarding settlement negotiations or the pursuit of a case, fostering a more strategic and cost-effective approach to dispute resolution. Smart contracts, self-executing agreements with terms encoded in computer code, offer the potential to automate various aspects of the arbitral process. From the payment of fees and the secure storage of documents to the automated enforcement of awards, smart contracts can improve efficiency, minimize the likelihood of human error, and promote greater transparency. Platforms like ‘Clause and Agrello’ are developing advanced smart contract solutions for dispute resolution. Furthermore, AI-powered platforms are facilitating the rising acceptance of virtual hearings and online dispute resolution (ODR). These platforms offer streamlined communication, secure document sharing, and real-time translation capabilities, mitigating travel costs and logistical challenges, particularly advantageous in the context of international arbitration. Platforms like ‘Modria and SquareTrade’ are at the forefront of ODR innovation. Embracing the Future of Dispute Resolution: A Concluding Perspective: Evidently, arbitration is clearly a better alternative to litigation for settling corporate disputes, providing an advantageous blend of efficiency, flexibility, confidentiality, and enforceability. According to a survey, Majority of the corporations questioned believe that the arbitration landscape in India looks optimistic (43% have specifically said that the situation of arbitration in India seems either hopeful or extremely optimistic). Accordingly, of the firms having arbitration experience, 82% responded that they would continue to use arbitration in the event of future disagreements. Further, of the remaining respondents with no experience

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Whistleblower Protection in White-Collar Crimes: Legal Protections and Challenges in India

Whistleblowers play a crucial role in ensuring accountability and transparency within both the public and private sectors. In the context of white-collar crimes—non-violent crimes committed by individuals in positions of trust and authority, often involving financial misconduct, fraud, or corruption—whistleblowers act as the first line of defense against unethical practices. Their disclosures often uncover complex fraudulent schemes or illegal activities, which otherwise might remain hidden for years. In India, however, despite the significant role whistleblowers play in curbing corruption and maintaining the integrity of corporate and governmental institutions, the protection of these individuals remains a contentious issue. This essay examines the legal protections for whistleblowers in India, the challenges they face, and the reforms necessary to ensure their safety and encourage greater transparency. Legal Protections for Whistleblowers in India India has taken several legislative measures to protect whistleblowers, though these protections have been criticized for being insufficient and poorly enforced. The main legal provisions addressing whistleblower protection in India are found in the Whistle Blowers Protection Act, 2014 (WBPA) and the Prevention of Corruption Act, 1988 (PCA), along with various provisions under the Indian Penal Code (IPC) relating to the protection of individuals who report misconduct or criminal activities. The Whistle Blowers Protection Act, 2014, was enacted to provide a statutory framework for the protection of individuals who report corruption, abuse of power, and other illegal activities. Under this Act, any public servant can file a complaint regarding acts of corruption or violations of laws, and the Act provides mechanisms to investigate such complaints. The key provisions of the Act include: Despite the intent of the Act, its implementation has faced several hurdles, including delays in setting up appropriate infrastructure for whistleblower protection. 2. Prevention of Corruption Act, 1988 The Prevention of Corruption Act (PCA) addresses corruption within the public sector, and while it does not directly provide for the protection of whistleblowers, it has provisions that enable citizens to report acts of corruption by public servants. The Central Vigilance Commission (CVC), empowered by the PCA, plays a central role in encouraging the reporting of corruption within governmental institutions. While the PCA does not specifically protect whistleblowers, it serves as an important piece of legislation for those who wish to expose corruption in public offices, especially in light of its institutional backing. 3. Indian Penal Code (IPC) The Indian Penal Code contains provisions that address certain retaliatory acts against whistleblowers. For instance, Section 182 of the IPC criminalizes false accusations, while Section 195A criminalizes retaliation against individuals who provide information related to offenses under the IPC. Challenges Faced by Whistleblowers in India Despite the legal framework, whistleblowers in India face significant challenges that undermine their safety and hinder their ability to expose wrongdoings. These challenges include: One of the major problems is the poor implementation of the Whistle Blowers Protection Act. Many whistleblowers report that they do not receive the promised protection and that their complaints are either ignored or inadequately addressed. In addition, there is a general lack of awareness about the provisions of the Act, both among public servants and citizens, which discourages individuals from coming forward with information about misconduct. 2. Fear of Retaliation Despite legal provisions, many whistleblowers face harassment, job loss, demotion, and even physical threats. The high-profile case of Satyendra Dubey, a whistleblower in the National Highway Authority of India (NHAI), who was allegedly murdered for exposing corruption, illustrates the extreme risks faced by individuals who expose corruption or illegal activities in India. In many cases, retaliation takes place covertly, and the legal system is slow to provide justice for the victim, further deterring others from speaking out. 3. Insufficient Support Systems The lack of dedicated support systems—such as independent whistleblower protection agencies, legal assistance, and counseling services—makes it difficult for whistleblowers to pursue their cases in a safe and timely manner. Additionally, the existing mechanisms for lodging complaints or seeking help are often bureaucratic, slow, and inefficient, resulting in frustration and disillusionment among whistleblowers. 4. Weak Enforcement of Protection Laws The enforcement of whistleblower protection laws is weak, with several cases going uninvestigated or unresolved for years. Bureaucratic delays and lack of accountability in the system mean that even when a whistleblower seeks protection or justice, the response is often insufficient or delayed, leading to prolonged suffering for the individual. 5. Cultural and Societal Barriers India’s social and political landscape can also be a significant deterrent to whistleblowing. In many cases, there is a cultural reluctance to confront authority figures or powerful institutions. Whistleblowers often face social ostracism or isolation, especially in cases involving high-ranking government officials or influential business leaders. The lack of trust in the legal and political system further discourages individuals from coming forward. The Need for Reform and Enhanced Protection Mechanisms To improve the state of whistleblower protection in India, several reforms are needed: The 2014 Act should be amended to streamline the process of lodging complaints, provide clearer definitions of retaliation, and ensure swift and effective enforcement. The establishment of dedicated, independent bodies to oversee the protection of whistleblowers and ensure that investigations are conducted fairly is also essential. 2. Creating a Whistleblower Protection Agency A central agency dedicated to handling whistleblower complaints, monitoring retaliation, and providing legal and financial support to whistleblowers should be established. This agency should work in tandem with the CVC and other anti-corruption bodies to ensure the safety and well-being of whistleblowers. 3. Public Awareness and Education Efforts should be made to raise public awareness about whistleblower protection laws and the channels available for reporting corruption and misconduct. Civil society organizations can play a key role in educating people about the importance of whistleblowing and the mechanisms that exist for protection. 4. Improving Legal and Institutional Support Whistleblowers should have access to timely legal recourse, including the right to legal representation, and the state should ensure that there are no undue delays in the investigation or adjudication of their cases. Furthermore, the judiciary and law enforcement agencies should be trained to handle

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