Ankur Lal Advocate

+9192160 17007

[email protected]

Facebook-f Twitter Instagram Linkedin

#lawyers #advocates #law #adoption #family law #children #adoptionsupport #legal #legalfirm #family #rti

Evolving Corporate Accountability: Human Rights and Legal Trends in India and Beyond

Leave a Comment / Corporate Veil / By

    Introduction In today’s globalized economy, corporations wield considerable influence, making them central actors in the protection or violation of human rights. Historically, the responsibility for safeguarding human rights lay predominantly with governments. However, the rise of multinational corporations and complex global supply chains has shifted some of this responsibility to the private sector. This article explores the evolving landscape of corporate liability for human rights violations, with a focus on recent legal developments, key case laws, and the specific context within India.     Legal Framework for Corporate Liability The global framework for corporate liability in human rights violations has expanded significantly over recent years. The   UN Guiding Principles on Business and Human Rights (UNGPs)  , adopted in 2011, are pivotal in this context. These principles stipulate that businesses have a responsibility to respect human rights, conduct due diligence to prevent abuses, and provide remedies when violations occur.   In the United States, the   Alien Tort Statute (ATS)   has been a key instrument for holding corporations accountable for human rights violations committed abroad. However, its scope was significantly narrowed by the U.S. Supreme Court in   Kiobel v. Royal Dutch Petroleum (2013)  , which restricted the extraterritorial application of the statute.   The European Union has also taken significant steps, particularly with the introduction of mandatory   Human Rights Due Diligence (HRDD)   laws. For example, the   French Duty of Vigilance Law (2017)   and Germany’s   Supply Chain Due Diligence Act (2021)   require companies to identify and mitigate human rights risks in their supply chains.     The Indian Context India, as a major global economic player, has seen its own legal landscape evolve concerning corporate liability for human rights violations. The   Indian Constitution   lays the foundation for human rights protection, particularly through the Fundamental Rights and Directive Principles of State Policy, which indirectly impose obligations on corporations.   The   Companies Act, 2013, particularly its on Corporate Social Responsibility (CSR)  , is a cornerstone of India’s approach to corporate accountability. Section 135 of the Act mandates that companies meeting certain financial thresholds must spend at least 2% of their average net profits on CSR activities. While CSR initiatives are broad, they increasingly include efforts to address human rights issues, particularly in industries prone to such violations. provisions   In 2019, India introduced the   National Guidelines on Responsible Business Conduct (NGRBC)  , which align with the UNGPs. These guidelines encourage businesses to respect human rights, conduct due diligence, and provide remedies for violations. Although not legally binding, the NGRBC reflects India’s growing emphasis on corporate responsibility for human rights.     Recent Amendments and Case Laws in India   India’s legal landscape has seen several significant developments in recent years, further underscoring corporate liability for human rights violations. The   Consumer Protection Act, 2019  , introduced provisions that indirectly impact corporate liability, particularly concerning product safety and consumer rights. This Act empowers consumers and NGOs to take legal action against companies that violate safety standards, potentially broadening the scope of corporate accountability.   Key cases in India have also shaped this evolving landscape:   Sterlite Industries Case (2018) : The closure of the Sterlite copper plant in Tamil Nadu, ordered by the Tamil Nadu Pollution Control Board, highlighted corporate liability for environmental violations that adversely affect human rights. This case underscored how environmental damage can lead to significant corporate accountability, especially when public health is at risk.  Endosulfan Case (2011-ongoing) : The Supreme Court of India banned the production and sale of endosulfan, a pesticide linked to severe health issues in Kerala. This ongoing case exemplifies corporate liability for violations impacting the right to health and a safe environment. Vedanta Resources PLC v. Lungowe (2019) : Although this case was adjudicated in the UK, it involved Indian plaintiffs from Zambia and highlighted the potential for Indian companies to face extraterritorial human rights litigation. The UK Supreme Court allowed Zambian villagers to sue Vedanta, a UK-based company, in English courts for environmental damage caused by its subsidiary. This case serves as a reminder of the global reach of corporate liability.   Challenges in Enforcing Corporate Liability   Despite these developments, several challenges persist in holding corporations accountable for human rights violations in India:   Jurisdictional Issues: Indian courts often face difficulties in asserting jurisdiction over multinational corporations, particularly when the parent company is based abroad. This challenge was evident in the Bhopal Gas Tragedy  , where the U.S.-based parent company, Union Carbide, proved difficult to hold accountable.  Regulatory Gaps and Enforcement : India has a robust legal framework, but enforcement is often inconsistent due to issues such as corruption, bureaucratic inefficiency, and a lack of resources. Access to Justice : Victims, especially from marginalized communities, frequently encounter barriers in accessing justice, including high legal costs and delays in the judicial process.     Emerging Trends and Future Outlook As India continues to integrate into the global economy, pressure on Indian corporations to adhere to international human rights standards is expected to increase. The introduction of mandatory   Human Rights Due Diligence (HRDD)   laws, similar to those in Europe, could be on the horizon, driven by both domestic demand for corporate accountability and international trade requirements.   Additionally,   Environmental, Social, and Governance (ESG)   criteria are becoming increasingly important for Indian companies, particularly those seeking international investment. ESG compliance is likely to become a critical factor in determining corporate liability for human rights violations in the future.     Conclusion Corporate liability for human rights violations is a rapidly evolving area of law, both globally and in India. Recent amendments, case laws, and the expanding legal framework reflect a growing trend towards holding corporations accountable for their impact on human rights. However, significant challenges remain in enforcement and access to justice. As India continues to develop its legal and regulatory landscape, corporations must proactively adopt human rights due diligence practices to mitigate risks and avoid potential liabilities. The future of corporate liability in India will be shaped by a combination of domestic legal reforms and international pressures, …

Evolving Corporate Accountability: Human Rights and Legal Trends in India and Beyond Read More »

The Role of Mediation in Family Law: A Comprehensive Overview

Leave a Comment / Family Law / By

Family law encompasses a range of legal issues related to family relationships, including divorce, child custody, and property division. Traditionally, these matters were resolved through litigation, which can be adversarial, expensive, and emotionally taxing. However, mediation has emerged as a viable alternative, offering a more collaborative and less confrontational approach. This article explores the role of mediation in family law, supported by relevant case laws that illustrate its impact. Understanding Mediation Mediation is a process in which a neutral third party, the mediator, facilitates negotiations between disputing parties to reach a mutually acceptable resolution. Unlike judges or arbitrators, mediators do not make decisions; instead, they help parties communicate effectively and explore solutions. Mediation is often preferred in family law due to its potential to preserve relationships, reduce conflict, and offer more flexible solutions. Advantages of Mediation in Family Law Cost-Effectiveness: Mediation is generally less expensive than litigation. The process is typically shorter and involves fewer formal procedures, reducing legal fees and court costs. Confidentiality: Mediation sessions are private, unlike court proceedings which are public. This confidentiality helps protect sensitive information and maintain privacy. Control and Flexibility: Parties in mediation have more control over the outcome, as they work collaboratively to create solutions that suit their specific needs and circumstances. Preservation of Relationships: Mediation fosters communication and cooperation, which can be particularly beneficial in cases involving ongoing relationships, such as co-parenting after divorce. Mediation in Practice: Case Laws Fleming v. Fleming (1992)  In this case, the British Columbia Court of Appeal addressed the role of mediation in family disputes. The court emphasized the importance of mediation in resolving issues related to property division and child custody. The ruling highlighted that mediation can be a valuable tool in reaching fair settlements and reducing the adversarial nature of family disputes. The decision underscored the need for parties to engage in mediation as a step before pursuing litigation, reflecting the growing recognition of mediation’s role in family law. Holland v. Holland [2003]  The case of Holland v. Holland involved a dispute over the division of assets following divorce. The court recognized the effectiveness of mediation in addressing financial issues and emphasized that mediation should be considered before resorting to court proceedings. The ruling reinforced the notion that mediation can facilitate fair and equitable outcomes by allowing parties to negotiate directly, rather than having a judge impose a decision. Gordon v. Gordon [2010]  Gordon v. Gordon explored the application of mediation in resolving child custody disputes. The case illustrated how mediation can help parents reach agreements that are in the best interests of their children. The court acknowledged the benefits of mediation in promoting cooperation and minimizing conflict between parents. The ruling also highlighted the mediator’s role in ensuring that the children’s welfare remains a primary focus throughout the mediation process. Re D (Children) [2012]  In Re D (Children), the Court of Appeal addressed the use of mediation in complex child custody cases. The case demonstrated how mediation can be instrumental in resolving issues related to parenting arrangements and child welfare. The court’s decision reinforced the value of mediation in providing a platform for parents to discuss and agree on parenting plans, thus supporting the overall well-being of the children involved. Mediation vs. Litigation: Comparative Analysis Mediation and litigation are distinct approaches to resolving family disputes. While litigation involves a formal judicial process with binding decisions, mediation is characterized by its informal nature and focus on negotiation. The key differences include: Nature of the Process: Litigation is adversarial, whereas mediation is collaborative. In litigation, the judge or arbitrator makes the final decision, while in mediation, the parties themselves craft the resolution. Emotional Impact: Litigation can exacerbate conflict and stress, whereas mediation aims to reduce animosity and foster constructive dialogue. Flexibility: Mediation offers more flexible solutions tailored to the parties’ needs, unlike the often-rigid outcomes imposed by courts in litigation. Challenges and Considerations While mediation offers numerous benefits, it is not without challenges. Some cases may be unsuitable for mediation if there is a significant power imbalance between the parties or if one party is unwilling to negotiate in good faith. Additionally, mediation may not be effective if there are allegations of abuse or if the parties are unable to reach a mutually acceptable resolution. Conclusion Mediation plays a crucial role in family law by providing an alternative to traditional litigation. Its advantages include cost-effectiveness, confidentiality, and the ability to preserve relationships. Case laws such as Fleming v. Fleming, Holland v. Holland, Gordon v. Gordon, and Re D (Children) illustrate how mediation can effectively address issues in family disputes, from property division to child custody. While mediation may not be suitable for every case, its collaborative approach offers a promising solution for many families navigating complex legal matters. As family law continues to evolve, mediation remains a vital tool in fostering constructive resolutions and promoting healthier family dynamics.

Sexual Harassment at the Workplace: A Decade of the POSH Act

Leave a Comment / POSH Act / By

The Prevention of Sexual Harassment (POSH) Act, 2013, represents a landmark in India’s journey toward ensuring a safer work environment for women. Over a decade, the POSH Act has played a pivotal role in addressing workplace sexual harassment, providing a robust framework for victims to seek redressal. This article reviews the legal provisions of the POSH Act, its impact over the past ten years, and notable case law that has shaped its application. Background and Legal Framework Before the enactment of the POSH Act, India’s legal landscape regarding workplace sexual harassment was fragmented and inadequate. The need for comprehensive legislation was underscored by the Supreme Court’s judgment in Vishaka v. State of Rajasthan (1997), where the Court laid down guidelines, commonly known as the “Vishaka Guidelines,” to address sexual harassment at the workplace. These guidelines were treated as the law until the POSH Act was enacted. The POSH Act was enacted to give statutory backing to the Vishaka Guidelines and to provide a more structured and enforceable mechanism to handle complaints of sexual harassment. The Act applies to all workplaces in India, including government bodies, private sectors, NGOs, and even domestic workers. Key Provisions of the POSH Act The POSH Act defines sexual harassment broadly, encompassing not only physical harassment but also any unwelcome verbal or non-verbal conduct of a sexual nature. Key provisions of the Act include: 1. Constitution of Internal Complaints Committee (ICC): Every employer with ten or more employees is required to constitute an Internal Complaints Committee (ICC) at each office or branch. The ICC is responsible for receiving and investigating complaints of sexual harassment. 2. Redressal Mechanism: The ICC is empowered to conduct an inquiry into complaints, following principles of natural justice. The ICC must complete its inquiry within 90 days, and based on its findings, recommend action against the accused. The employer is bound to act on the ICC’s recommendations. 3. Confidentiality: The Act mandates that the identity of the complainant, the respondent, witnesses, and the details of the complaint be kept confidential. Breach of confidentiality is punishable under the Act. 4. Protection against Retaliation: The Act prohibits retaliation against the complainant and witnesses, ensuring they are not victimized for participating in the proceedings. 5. Employer’s Responsibility: Employers are required to create awareness about the Act, conduct training sessions, and display notices about the POSH policy within the workplace. Failure to comply with these requirements can lead to penalties. 6. Penalties for Non-Compliance: Non-compliance with the provisions of the Act can attract a fine of up to INR 50,000 for the first offense. Subsequent offenses can lead to higher fines and cancellation of business licenses. A Decade of POSH: Key Developments Over the past decade, the POSH Act has significantly contributed to raising awareness about sexual harassment and ensuring that complaints are handled with seriousness and sensitivity. However, challenges remain, particularly in the implementation and awareness aspects. 1. Increased Reporting and Awareness: The enactment of the POSH Act led to a marked increase in the reporting of sexual harassment cases. The #MeToo movement, which gained momentum in India in 2018, further highlighted the Act’s importance, as many women came forward with their stories of harassment, leading to several high-profile investigations. 2. Judicial Interpretation and Expansion: The judiciary has played a critical role in interpreting and expanding the scope of the POSH Act. For instance, in Medha Kotwal Lele & Ors. v. Union of India & Ors. (2013), the Supreme Court emphasized that the Vishaka Guidelines should continue to apply until employers fully complied with the POSH Act’s requirements. This judgment reinforced the necessity for institutional mechanisms to address complaints of sexual harassment effectively. 3. Addressing Employer’s Obligations: In Chhaya Sharma v. The Principal, Hindu College (2017), the Delhi High Court clarified that the failure of an employer to constitute an ICC or adhere to the provisions of the POSH Act could lead to legal action, including penalties. This case underscored the importance of employer compliance and set a precedent for holding employers accountable for lapses in implementing the POSH framework. 4. The Role of Quasi-Judicial Bodies: The role of quasi-judicial bodies like the National Commission for Women (NCW) has been vital in addressing issues related to sexual harassment at the workplace. The NCW has been instrumental in providing recommendations for strengthening the POSH Act and ensuring better implementation. 5. Sexual Harassment Beyond the Workplace: The Act’s application has also been extended in various judgments to cover instances where harassment occurs outside traditional office environments, recognizing the evolving nature of workplaces. For example, in the case of Dr. Punita K. Sinha v. Union of India (2021), the court recognized that harassment could occur in virtual spaces, thus expanding the Act’s relevance in the era of remote working. Recent Case Laws and Judicial Trends Recent case laws have further refined the understanding and enforcement of the POSH Act: Ruchika Singh Chhabra v. Air France India (2020): The Delhi High Court emphasized that the ICC must maintain impartiality and follow due process, ensuring that the rights of both the complainant and the respondent are protected. This case highlighted the procedural safeguards necessary to uphold the integrity of the inquiry process. Sushma Ojha v. State of Jharkhand (2022): The Jharkhand High Court dealt with the issue of whether a complaint could be made after a significant delay. The court held that while delay might affect the veracity of the complaint, it should not be a ground to dismiss it outright, especially in cases where the complainant faced significant personal or professional challenges in coming forward. Aparna Bhat v. The State of Madhya Pradesh (2021): The Supreme Court ruled that compromises in cases of sexual harassment should not be encouraged, as they undermine the seriousness of the offense. The judgment emphasized that such cases should be dealt with according to the law, ensuring justice is not compromised. Conclusion The POSH Act has undoubtedly marked a significant milestone in India’s legal framework for addressing workplace sexual harassment. However, the effectiveness …

Sexual Harassment at the Workplace: A Decade of the POSH Act Read More »

The Right to Information Act, 2005: Empowering Citizens and Enhancing Transparency in India

Leave a Comment / Legal Article / By

The Right to Information (RTI) Act, enacted in 2005, is a landmark legislation in India that has fundamentally transformed the landscape of governance and citizen engagement. Designed to promote transparency and accountability in public administration, the RTI Act empowers citizens to seek information from government institutions and hold them accountable for their actions. This article delves into the significance of the RTI Act, its impact on governance, and the challenges it faces.  Historical Context and Purpose Before the RTI Act, accessing information from government agencies was a cumbersome and often opaque process. Bureaucratic inertia and a lack of transparency were commonplace, making it difficult for citizens to engage meaningfully with their government. The RTI Act was introduced to address these issues by enshrining the right to information as a fundamental right under the Indian Constitution, aligning with the principles of democracy and good governance.  Key Provisions of the RTI Act The RTI Act provides a comprehensive framework for the dissemination of information. Its key provisions include: Right to Information: Citizens have the right to request information from any public authority, which is defined broadly to include any organization or body owned or controlled by the government or substantially funded by it. Information Request Procedure: The Act mandates that requests for information should be responded to within 30 days. In cases where information concerns the life and liberty of an individual, the response time is reduced to 4 hours. Exemptions and Exceptions: While the Act promotes transparency, it also recognizes the need to protect certain categories of information. These include national security, privacy, and confidential commercial information. However, even these exemptions are subject to scrutiny to prevent misuse. Appeal Mechanism: The Act provides for an appellate process, including an internal review within the public authority and an external appeal to the Central or State Information Commission, ensuring that citizens have avenues to challenge unsatisfactory responses. Obligations of Public Authorities: Public authorities are required to proactively disclose certain categories of information, such as organizational structure, functions, and decision-making processes, thereby enhancing transparency.   Impact on Governance and Society The RTI Act has had a profound impact on Indian governance and society: Enhanced Transparency: The RTI Act has significantly increased the transparency of government operations. By facilitating access to information, it has empowered citizens to scrutinize the actions of public officials and demand accountability. Empowerment of Citizens: The Act has empowered individuals by providing them with the tools to seek information about government schemes, expenditures, and decision-making processes. This empowerment has led to greater civic engagement and activism. Reduction in Corruption: The RTI Act has played a crucial role in exposing corruption and malpractices. Numerous cases of financial irregularities and administrative lapses have come to light through RTI applications, leading to corrective actions and increased public accountability. Improvement in Service Delivery: Public authorities are now more conscious of their responsibilities due to the RTI Act. This awareness has led to improvements in service delivery and administrative efficiency as agencies strive to avoid negative scrutiny.  Challenges and Criticisms Despite its successes, the RTI Act faces several challenges and criticisms: Bureaucratic Resistance: Some public officials and institutions are resistant to the RTI Act, often delaying responses or providing incomplete information. This resistance undermines the Act’s effectiveness and hampers transparency. Underutilization and Lack of Awareness: In some areas, especially rural regions, there is limited awareness about the RTI Act and its provisions. This underutilization restricts the Act’s potential to effect change. Privacy Concerns: Balancing transparency with privacy concerns is a delicate task. There have been instances where the release of information has conflicted with individual privacy rights, raising questions about the boundaries of transparency. Resource Constraints: The Central and State Information Commissions, responsible for adjudicating appeals, often face resource constraints and a backlog of cases. This can lead to delays in the resolution of disputes.  The Path Forward To strengthen the RTI Act and address its challenges, several measures can be considered: Awareness Campaigns: Enhanced awareness campaigns and training programs can help citizens understand their rights under the RTI Act and encourage more widespread utilization. Capacity Building: Improving the capacity and efficiency of public authorities and information commissions can address bureaucratic resistance and expedite the processing of requests and appeals. Clear Guidelines on Privacy: Developing clear guidelines on the balance between transparency and privacy can help mitigate concerns and ensure that information disclosure does not infringe on individual rights. Monitoring and Evaluation: Regular monitoring and evaluation of the implementation of the RTI Act can help identify areas for improvement and ensure that the Act continues to meet its objectives. Conclusion The Right to Information Act, 2005, stands as a testament to India’s commitment to democratic principles and good governance. By empowering citizens to access information and hold public authorities accountable, the RTI Act has made significant strides in enhancing transparency and reducing corruption. However, for the Act to realize its full potential, continued efforts to address its challenges and reinforce its provisions are essential. As India moves forward, the RTI Act will remain a cornerstone of democratic engagement and public accountability.