hammurabi tablet journal volume 1, issue 5

Quenching Thirst of Legal Knowledge

Hammurabi Tablet Journal Volume 1, Issue 5



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Volume-I

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INDEX

Sr. No.

Article Author

1

FOUNDER’S DESK –

EAST AFRICAN COURT OF JUSTICE

Adv. Rahul S. Mhaskar

2 JUDICIAL PENDENCY A NECESSARY EVIL ! Adv. Vaibhav

Date

3 SECTION 498(A) Adv. Akansha

Verma

5

HAS THE TIME ARRIVE WHERE INDIA SHALL PASS

LAW ON MENSTRUATION LEAVE? Adv. Rudra Dani

6 LEGAL INTERNSHIPS DURING

THE LOCKDOWN

Adv. Vaidehi H.

Samant

7 THE POSH ACT 2013- A TIGER CUB OR A MATURE

TIGER?

Dr. Sandhya

Advani

8 COMMERCIAL COURTS – ARE THEY ON THE FAST

TRACK ? Adv. Lavina

Kriplani

9 LAST PAGE



FOUNDER’S DESK

Adv. Rahul S. Mhaskar

Founder, Hammurabi Tablet

(Practicing since 26 years)

EAST AFRICAN COURT OF JUSTICE

The East African Court of Justice herein after refer to as said court is a judicial

body which came to the existence by execution of a Treaty between the East

African community. The East African Community came into existence by way

of an Treaty signed on 30th November 1999 which came into force on 7th July

2000 with three original partners states i.e Kenya, Uganda and Tanzania.

Subsequently the Republic of Rwanda and Republic of Burundi join the

community from 1st July 2007. The East African Community was established

to have co operative, commercial and political relations between the

membership countries which would benefit the citizens of those countries.

The East African Court was established on 30th November 2001 and the same

is having its sit at Arusha in Tanzania. The intention of the said court is to

ensure the proper interpretation of laws, proper application of laws and

compiling with the terms and conditions agreed in the Treaty. The official

language of the said court is English. One of the unique feature of the court is

that a person can directly file a case before the said court without exhausting

any remedy before the concern National Court of the Country to which the said

person belongs. The said court has to divisions i.e First Instance Division and

Appellate Division. The Judges of the said court are appointed by East African

Community Summit which is the highest body of the East African Community.

Now let us proceed to see in detail further information of the said court

1. There are 15 Judges in the said court



2. 10 Judges are appointed to the First Instance Division and 5 Judges

are appointed to the Appellate Division

3. The Judges are appointed for a tenure of 7 years with an retirement

age of 70 years without re-appointment

4. Amongst the Judges of First Instance Division, 2 Judges would be

designated as Principle Judge and Deputy Principle Judge

respectively by the East African Community Summit.

5. Amongst the Judges of Appellate Division, 2 Judges would be

designated as President and Vice President respectively by the East

African Community Summit.

6. The President and Vice President, the Principle Judge and the Deputy

Principle Judge shall not be Nationals of the same country.

7. The tenure of the President of the court is for 1 year and the same has

to be rotated among the partner states.

8. In case the tenure of a Judge is completed but there are certain

pending matters before the said Judge in such situation the said

Judge will continue the term to dispose of pending matters.

9. The Judges of the court can be removed only by the East African

Community Summit.

10. There is a Tribunal comprising of 3 eminent Judges coming from

the Commonwealth Countries who have power to do investigation of a

Judge of the said court if the matter is referred to them.

11. The said court has power to decide various matters i.e adjudication

asked on a issue raised by one partner state against the other partner

state for not fulfilling an obligation under the Treaty or for Infringing a

particular provision of the Treaty.

12. The Secretary General of the partner states can also refer matters

of not fulfilling an obligation under the Treaty or for Infringing a

particular provision of the Treaty to the said court.

13. Any legal and Natural Persons i.e Individuals, companies, societies

etc. can challenge an Act, Regulation, Action of the Partner States

etc. on the ground that it is unlawful or infringes the provisions of the

Treaty.

14. The said court also has jurisdiction to hear the disputes arising

between East African Community and their employees.

15. The court also has jurisdiction to conduct arbitration cases if there

is specific provision in the Agreement which are executed between the

partners states.

16. The said court shall passed only 1 Judgment in matter of reference

but a Judge has liberty to deliver dissenting Judgment.

17. The said court also has power to review its own Judgment.



18. The Appeal to the Appellate Division will lie only on points of law,

grounds of lack of Jurisdiction and Procedural Irregularity.

19. The East African Community Summit the council or a partner

state may request the court to give an advisory opinion regarding a

question of law arising from Treaty which is affecting the community.

20. The said court also has power to pass interim order in the matters

file before it.

21. The execution of the order of the said court is done as per the law

of execution and procedure which is there in the country where the

said order is executed.

22. The said court has power to frame the rules and regulations for the

functioning of the court.

23. The said court is not having jurisdiction to hear the case regarding

the violation of the human rights.

24. The said court issues judgments which are concerned with the

internal working of the East African Community.

25. The National court of the partner states can refer a matter to this

court asking for preliminary ruling on a question of Treaty

Interpretation, Validity of East African Community Regulations,

directive issued by East African Community, Decision of the East

African Community and any action taken by the East African

Community.

26. The First Instance Division of this court considers whether there is

any legitimate reason under the Treaty to file the complain before it.

Generally the case before First Instance Division is disposed of

preferable within a period of 1 year from the presentation of the case.

27. The Appeal against the decision of the First Instance Division is

filed before Appellate Division of this court.

28. The decision of the Appellate Division is final and binding.

Conclusion

The above discussion clearly goes to show a very important and vital part being

played by the East African Court of Justice within the East African Community

for the purpose of creating harmony among the East African Community and

further promoting the Trade and Commerce so that the East African

Community can do an healthy progress in the common markets created

between the East African Community where by raising the standards of living

of the African peoples.



Reference

1. http://en.wikipedia.org/wiki/East_African_Court_of_Justice

2. http://en.wikipedia.org/wiki/East_African_Community_Treaty

3. http://archive.crin.org/en/guides/un-international-system/regional-

mechanisms/east-african-court-justice.html

4. http://www.justiceinitiative.org/publications/east-african-court-

justice.html

5. http://www.win2pdf.com.

http://en.wikipedia.org/wiki/East_African_Court_of_Justice

http://en.wikipedia.org/wiki/East_African_Community_Treaty

http://archive.crin.org/en/guides/un-international-system/regional-mechanisms/east-african-court-justice.html

http://archive.crin.org/en/guides/un-international-system/regional-mechanisms/east-african-court-justice.html

http://www.justiceinitiative.org/publications/east-african-court-justice.html

http://www.justiceinitiative.org/publications/east-african-court-justice.html

http://www.win2pdf.com/



Adv. Vaibhav Date

B.A. LLB

Blogger. Student of law and politics.

9869425954

[email protected]

Location - Mumbai

JUDICIAL PENDENCY A NECESSARY EVIL !

It is said that justice delayed is justice denied. But no one wants to know what

the root cause of judicial pendency in India is. There have been some recent

intriguing developments in history of judiciary in India. After the longest period

of time there couldn't be consensus on appointment of judges with the Chief

Justice of India and Union of India. Since NJAC bill was struck down by the

Supreme Court, things have remained status quo. Not looking it from political

prism, for the effective functioning of the judiciary, it would have been better if

this could have been averted.

All courts have heavy load of cases pending. Since we do not know when this

pandemic period is going to an end, there would be heavy caseload in the

judicial system in India. In addition to it, there would be new cases out of

complexities created by the lockdown situation.

Recently, person accused of rape was acquitted after spending 20 years in jail.

Who is responsible for this delay? A System or lethargy? Recently hindi movie

based on real life event was released in which main protagonist had to fight for

18 years to prove that he is not dead. In another instance freedom fighter had

to prove his credentials to get his due pension.

Although our judiciary has many cases pending, shall we assume that it is

ineffective and irresponsive to people's grievances? It is no doubt that Judiciary

needs systematic overhaul but to look at entire judiciary from political angles

and shaming it for its lethargy is not going to solve any problem. It is the

mailto:[email protected]



Courts which has very often through various means uphold constitutional

values

Why such delays happen? In United State of America, George Floyd got justice

within a period of year whereas in India we need to wait for years together. It

is presumed Indian Governments, both Central and States, are the largest

litigants throughout Universe. It is presumed, Both Central and State

Governments, as a whole contribute about 30 to 40 percent of the Court cases

in India for one or the other reasons and either as petitioners themselves or as

Respondents. It is a fact that Union of India and state government are one of

the biggest litigants in our courts. Often, government in spite of clear orders

from the courts repeatedly file appeal and unnecessarily keep wasting time of

the court. It will be better to quote the Observations made by Hon‟ble Supreme

Court regarding this

5.After dismissal of the batch of appeals, the Union of India filed yet another

appeal on the same subject being Civil Appeal No. (blank) of 2018 (Diary No.

4893 of 2018) entitled Union of India & Ors. v. Ex. Nk. Balbir Singh. That

appeal came up for consideration before this Court on 9th March, 2018 and

was dismissed following the decision in Balbir Singh Turn. While dismissing

the appeal, it was noted that it was filed well after several similar matters were

dismissed by this Court. The conduct of the Union of India in filing Civil

Appeals/Special Leave Petitions after the issue is concluded by this Court was

not appreciated. It was noted that the Union of India must take full

responsibility for unnecessarily adding to the burden of the justice delivery

system.

6. To ensure that the Union of India is far more circumspect, costs of

Rs.1,00,000/- were imposed and it was observed that the Union of India must

shape up its litigation policy. Unfortunately, the Union of India has learnt no

lesson and has continued its non-cooperative attitude.

7. The present appeal was filed on 8th March, 2018 which is also well after the

decision in Balbir Singh Turn. We would have expected that with the dismissal

of the appeal relating to Balbir Singh Turn and Ex.1 2017 (14) SCALE 189 C.A.

No. ____of 2018 (@Diary No. 8754 of 2018)

Nk. Balbir Singh, the Union of India would take steps to withdraw this appeal

from the Registry of this Court so that it is not even listed and there is no

unnecessary burden on the judges. But obviously, the Union of India has no

such concern and did not withdraw its appeal from the Registry itself.

8. The Union of India must appreciate that by pursuing frivolous or

infructuous cases, it is adding to the burden of this Court and collaterally



harming other litigants by delaying hearing of their cases through the sheer

volume of numbers. If the Union of India cares little for the justice delivery

system, it should at least display some concern for litigants, many of whom

have to spend a small fortune in litigating in the Supreme Court.1

In addition to that there is a roadblock of left vacancies. Also there is an issue

of adjournment, advocates keep asking for adjournment and keep postponing

the dates for reasons best known to them. Irrespective of all observations made

herein, it is no doubt that we have some of the best known jurist in the world.

We even open door at midnight hearing. In this pandemic time, we have lost

some of our best Judges to the virus. It is the courts which have shown mirror

to the government authorities when all other responsible institution have failed

to ask questions to those who are running these country. We still do not have

mechanism for online video conference but judges who were initially hesitant to

conduct online hearing have quickly adopted to new techniques. When those

who have responsibility to maintain law and order situation in the country are

fighting themselves, when institutions such as Election commission lack a

spine, when investigation agencies become tool for political purposes, when

government bodies remain headless for long period of time, it is the judiciary

which is the last hope of the common people. We must prevent judiciary from

political hubris and take steps so that its value is not eroded. Although delays

in the judiciary must be addressed, there cannot be alternate and parallel

judiciary. It is so refreshing and inspiring that first generation lawyer is now

appointed as Chief justice of India. When future looks gloomy, we need to look

at such development in positive frame of mind.

1. Union Of India vs Pirthwi Singh on 24 April, 2018

2.https://www.business-standard.com/article/current-affairs/govts-biggest-

litigants-should-fight-cases-when-necessary-law-commission-

119060301019_1.html



Adv. Akansha Verma

practicing as an Advocate at various courts in

the District of Thane, Palghar and Mumbai.

Presently, I am working as an Associate at

Leagas Law Associates. In the recent years

of practice, I have engaged myself in myriad

litigation aspects and research work. I have

also argued before courts in civil, criminal

and family matters. I believe that No lawyer

can ever say that he is acquainted with

entire laws applicable in India but the notion simply is to study meticulously

before presenting any matterbefore the judiciary and rest leave it to the judge

and your fate.

Location - Vasai

Section 498 A

Briefing over Indian laws can never be a deadlock. The journey comprises

umpteen laws with so much of twist and turns, mostly having their origin

from the British rule, out of which, till date, very few have been amended.

We are surrounded with several laws i.e. civil, criminal, taxation etc. & we are

bound to know them as the maxim says “ignorantia juris non excusat”, meaning

ignorance of law excuses no one.

Focusing over Laws for Women, there‟s no smooth end. Before going into the

statutes, it is noteworthy to look at the practices prevailing in ancient times.

The human life begins with a female. She is the originator. She is considered

to be divine, creative, nurturing and supportive. Women in India enjoyed an

honorable position. Respect for women in the society was taken as a matter

of fact. With respect to marriage, they were allowed to choose their husband

and the tradition of swayamvara was followed, where, potential grooms

assembled at the bride‟s house & the bride selected her spouse. With respect to

property, they were permitted to have personal property in the form of Jewelry

and Clothing. The property of women could be used by the husband only in

case of dire necessity. Once a female was born, it was the duty of the parents

to educate her properly, though the scope of her education was limited. The

status of women started deteriorating; the Practice of Sati came into



existence, where the wife of the deceased husband was supposed to lie on the

unburnt pyre of the husband. They were not allowed to remarry and were

always blamed for the death of the husband. It was also stated that an ideal

woman should be confined to her home and should always be engaged in

domestic affairs from the dawn till the dusk.

Women held a respectable position during the Vedic times but things &

situation took on a different turn & their status went on degrading. They

were subjected to purdah system and not allowed to choose their husband

and were also forced to marry during their age of education. They were

subjected to all types of violence, right from cradle to the grave. Birth of a

daughter is still considered to be bad and burden for the family and also

subjected to sexual exploitation . The married women have all along been

receivers of myriad forms of violence of varying proportions, so much so that

home becomes the least safe place for women, whereas it has become the

safest place for men. Violence against women is a phenomenon that cuts

across boundaries of culture, class, education, ethnicity and age. Cruelty/

domestic violence/ marital violence couldn‟t be proved be because of

domestic violence taking place in the privacy of home, behind its closed

doors. In the same period the Bhanwari Devi gang rape incident happened.

Although she could not get justice, definition of „sexual harassment‟ was

expanded suitably. With all these issues above, S. 498A was introduced in

Criminal (Amendment) Act, 1983 to combat menace of dowry death.

Simultaneously S. 113A has been added to Indian Evidence Act to raise a

presumption regarding abetment of suicide by a married woman to the

following effect. [Reema Agarwal V. Anupam (2004) 3 SCC 199.

Ingredients of S. 498A

1) Woman must be married

2) She must be subjected to cruelty or harassment; &

3) Such cruelty or harassment must have been shown either by husband

of the woman or by relative of her husband .

Example:

The term „Relative‟ principally includes a person related by blood, marriage

or adoption and it does not include girl friend or even a concubine. Drinking

& late coming habit of husband coupled with beating & demanding dowry

also amount s to cruelty , Mental torture or abnormal behavior and any act



which drives a woman to commit suicide or to cause grave injury, danger to

life or limb or health.

From all above, we understand that the provision is for the betterment and

protection of women. But it has been observed in several cases that the

complaints are not bonafide and are used as weapons rather than shield by

disgruntled wives, causing harassment to the husband and his family members

which is nothing but an abuse of beneficial provisions intended to save the

women from unscrupulous husbands.

The Supreme court on 27th July 2017, in the case of Rajesh Sharma V. State of

UP and anr. Issued a new set of directions to prevent misuse of the provision

498A. A gist given below;

1. Constituting Family Welfare Committees, having proper training,

efficiency and other requirements.

2. Every Complaint under Section 498A received by the police or the

Magistrate shall be referred to and looked into by such committee.

3. The committee may give its brief report about the factual aspects

and its opinion in the matter to the authority and till then no

arrest should normally be effected.

4. In cases where a settlement is reached, it will be open

to the District and Sessions Judge or any other senior Judicial

Officer nominated by him in the district to dispose of the

proceedings including closing of the criminal case if dispute

primarily relates to matrimonial discord;

5. If any bail application is filed, the same may be decided as far as

possible on the same day. In dealing with bail matters, individual

roles, prima facie truth of the allegations, requirement of further

arrest/ custody and interest of justice must be carefully weighed;

And many other provisions related to Appearance of family

members in the court, training of investigation officer etc. These

directions are not applicable to the offences involving tangible

physical injuries or death.

However, a Writ petition was filed under Art . 32 of Constitution of India for

reconsideration of such directions. The Supreme Court, after looking into

the matter, modified the Direction no. 19(iii), i.e. that if a settlement is

arrived at, the parties can approach the High Court under Section 482 of the

Code of Criminal Procedure and the High Court. And also has said that it



should be in view of the law laid down in Gian Singh Vs. State of Punjab

(2012) SCC .

Conclusion:

The Supreme Court has time and again played a vital role with regard to curb

the menace and looking at every possibility, the court renders justice to its

citizens. Here also, when the issue was itself on validity of S. 498A, the Court,

looking after the object of such provision, rather introduced Directions which

ultimately sought Justice to everyone. But, being a citizen of this country,

the misuse will come to an end only when private, profiteering motives are

abandoned.



Adv. Rudra Dani

BLS, LL.B.

Practising since 2019

HAS THE TIME ARRIVE WHERE INDIA SHALL PASS LAW ON

MENSTRUATION LEAVE?

"If You want to check the Strength of any country then first thing You

should check, how much women are empower in the said country”

Indian Society is evolving gradually with changing era. Amendment in Law or

introducing new law equally contributed towards evolving society. The society

too accordingly adopt the changes as per changing scenario. Society on some

occasion within few years set the best example of "evolved society". On the

other hand, even after decades, some taboos are still practice resulted into

restricting the society to move on the path of equality. Just because of this

double mindset, whenever Laws on welfare of women was introduce it is not

seen on the platform of gender equality instead it is judged as Controversial

Law ended into withdrawal. One of such Taboo that not only ruining the

progress of women but also ruining the society in the name of "Orthodox

rituals" is Menstruation. It is very difficult to have an open discussion about it

as people seem to get extremely uncomfortable and prefer to discuss it behind

closed doors.

Why there is need to pass law on Menstruation Leave?

1. Menstruation Leave is not Sick Leave –

The first question arose here is apart from granting the sick leave or medical

leave why it is necessary to legalise the menstruation leave in addition to sick

leave/ medical leave. The very first thing is Menstruation is neither disease nor



disability but it is natural biological process that every women undergone every

month therefore the solution to adjust the menstruation leave into sick leave/

medical leave is totally baseless. Further, it is duty of the Parliament to

interpret in such way that literal interpretation of law is itself sufficient to

differentiate menstruation leave from sick leave

2. Rest is more preferable during menstruation:-

During Menstruation, around 90% of women suffer from pain during

menstruation which disrupt their life for those days. Menstrual pain is

accompanied with premenstrual symptoms such as mood swings, lack of

concentration, tiredness etc. This makes it difficult for most women to continue

their work without taking leaves and face a hard time in performing with

consistency. The University College of London stated that menstrual pain can

be “as bad as having a heart attack”. Rest during menstruation will not only

relaxing women but also encourage the women to discharge her functions with

superior consistency. Hence, women have the right to avail additional leaves for

menstruation.

3. Interest of Women are require to be protected at work place-

It is discussed by many critics that at the place of employment, women will

be consider as “unproductive” during menstruation which resulted into

preferring male employee over female employee. However, Article 16(1) runs on

Equality of Opportunity and Article 16(2) prohibit the discrimination in respect

of employment are sufficient to put an end on the views of the critics. If the law

on menstruation leave shall be pass that mandate monthly menstrual leave

would grant much-needed protection and relief to those who fear losing their

jobs due to their inability to function for a few days a month, A law that

enforces menstrual leave would establish a fair standard of employment for

women. Therefore, instead of requiring women to adjust to workplaces designed

for men, we need to transform our workplaces to be inclusive and sensitive to

the needs of all employees.

4. Constitution itself securing the interest of Women:-

There are many provisions in the Indian constitution that secure the interest of

women in various aspects. However, Article 15 (3) stole the momentum when it

comes to making special provisions for women. It allows the State to make



special provisions for women. However, Article 15(3) is not a stand-alone

constitutional provision, but nestled within the Articles 14-15-16 equality

scheme. If the law on menstruation leave brought into force, it would also give

life to the freedoms that our Constitution guarantees. A law mandating

menstrual leave would bring to life the vision of justice and equality envisioned

by a progressive Constitution. Apart from it, a plain reading of the Directive

Principles, especially Article 42, reveals that nothing prevents the Parliament of

India from enacting a law for working women on menstrual leave. Any law in

this regard will be Constitutionally valid.

Parliament on Menstruation Leave:-

The concept of menstruation leaves originated in World War II-era where people

realised the need to address this issue. Unfortunately, it takes India around 7

to 8 decades to bring the discussion on table. Ninong Ering, Lok Sabha

Member of Parliament from Arunachal Pradesh, moved a private members‟ bill

in 2017 named as the Menstruation Benefits Bill. It is a bill to provide facilities

to female employees at the workplace during menstruation and matters

connected therewith. This bill introduced concept of menstruation leave not

only to working women but also to any female student above class VIII. The

Saddest Part is this bill is laying on table with label “Undiscussed”

Judiciary on Menstruation Leave :-

The Sabarimala temple entry judgment of the Supreme Court in 2019 had

addressed the evil practices of menstruation, with the judgment noting,

“Notions of “purity and pollution” which stigmatize individuals, can have no

place in a constitutional regime. As, imposing exclusionary disabilities on the

basis of menstrual status, is against the dignity of women which is guaranteed

by the Constitution.” Gujarat High Court too proposed guidelines in respect of

menstruation and urges the state government to raise awareness among

various sectors. The bench‟s order also stresses on the need to normalise

conversations around menstruation. The Delhi High Court in November 2020

had asked government authorities to treat a PIL seeking direction to grant paid

period leave to all women employees for four days each month and payment of

overtime allowance in case the women opt to work during the menstruation

period, as a representation.

Other Countries on Menstruation Leave:-



As far as Global Scenario is concerned, Japan was the first country to allow

Menstruation leave in the year 1947,This came into force just after World War

II. Women in South Korea have been allowed to take one day off per month as

menstrual leave since 2001. Apart from that, Taiwan‟s 2013 legislation allows

its female workers to avail three days of menstrual leave per year. Indonesian

laws too allows the female workers to take two days of menstrual leave per

month. The female workforce in Shanxi, Hubei and Ningxia are also entitled up

to two days‟ of menstrual leave per month. Women in Anhui are also allowed to

take one or two days off per month. Italy is the most recent addition to the list,

becoming the first country in Europe to offer a three days menstruation leave.

Initiative taken by Indian Companies :-

The Indian media companies, Culture Machine and Gozoop introduced a

menstrual leave policy by giving 1-day menstrual leave per month to the female

employees of the company. Both the companies thereby implicating that the

corporates of the country have started taking measures to nurture a healthy

working environment to its employees and to be gender-specific in assuring

labour laws to its employees. FlyMyBiz, Culture Machine Media Pvt. Ltd,

Horses Stable News Independent Digital Agency Specializing In Brand

Reputation Management and Nike are some other companies which

introduced the policy of menstruation leaves. Zomato in 2020 become the

latest addition which come up with 10 days menstruation leave policy per year.

Conclusion and Suggestions:-

After going through reason to pass the law on menstruation leave and stands of

other nations as well as initiative taken by various Indian companies, following

suggestions should be taken into consideration in order to setting the platform

for execution of law on menstruation leave and make it highly successful.

1. Apart from elimination of Orthodox Mentality, the psychology to treat

the women differently during menstruation too shall find no place in our

society. After passing the law, it just come into force. But it will be more

effective when the society stop practicing as taboo and appreciate the law with

positive approach.



2. Women shall not be subject to torture on the ground of "impure" .Such

inhuman behavior shall not only affect her mental health but this is something

which also affect her dignity resulted into violation of human right as well.

3. With rising social awareness about the hardships faced by women in the

workplace, there is a gradual realisation among the public that menstrual

problems cannot be simply brushed under the carpet. They must be addressed

in the public forum by passing a law on menstrual leave.

4. Lastly, instead of running in the race of" Super nation" it's better to be

recognised as "women's nation because one has to be part of mala fide mind

games to become supernation. But if nation is recognised as “women's nation”

then the said nation is itself on the permanent path of supernation.



Adv. Vaidehi H. Samant

Legal Practitioner at Mumbai with over 5

years of experience in legal field and over 2

years of experience in handling matters

pertaining to matrimonial disputes at Family

Court at Bandra, Mumbai as well as in

documentation for property conveyance and

such other purposes. Hence this article is my

small contribution through which I intend to

shed light on the issues concerning law

internships in the current times of social

distancing and lockdowns being imposed due to widespread Covid 19 pandemic.

Location - Mumbai

LEGAL INTERNSHIPS DURING THE LOCKDOWN

Introduction:

Since last one year we all have been living in a restrictive environment due to

outbreak of Covid19 pandemic across the world and hence social distancing

has become a new normal in day to day life of people and every few months

there are lockdowns exercised in different places across the world.

In such condition almost all the economic activities as well as professions have

been badly affected and so even legal profession is not an exempted from the

same and therefore for last year or so even many law students and/or fresh law

graduates have been facing issues in respect of attaining legal internships and

gaining required experience which can help such law students or law graduates

to apply for better career prospects in the near future.

Ways to gain legal exposure during the lockdown :

It is very much possible that social distancing might continue even when the

lockdowns are lifted across the world and certain law firms and lawyers may

not want to bring young students into their workplaces to prevent the their risk

to exposure to the virus till such time things turn back normal because of

which there are few and far between chances of normal internships to obtain,

because during such tough situation across the whole Country not all law

students or graduates in the Country know how to go about finding



internships. In such time virtual internship is the best available option with

law students and graduates to gain some work experience in the legal field.

Even though we are living in very tough times of economic uncertainty wherein

it may be somewhat harder to get even virtual internships and many of them

might not offer any stipend or may offer very less stipend or remuneration but

one needs to do everything possible to gear up for the competition an individual

faces in real world, or it will be a very difficult situation a few months down the

line for such law students and law graduates if this precious time is not

utilized correctly. Thus, doing terrific virtual internships and preferably long

term internships are advisable so that one can build relationships, trust and

demonstrate your value in that particular organization which may enable them

to get recommendations in the future.

Also it has been observed that many lawyers since the lockdown followed

during last year have started spreading legal activism by writing articles,

hosting webinars, and/or may be setting up a podcast on a youtube channel

and such other platforms. Such interested law students or graduates may

reach out to such lawyers with their sample articles/ videos, and offer to help

them in their research/ writing, webinar management or podcast or youtube

channel kind of work. Hence law graduates and students can gain some

exposure on these fronts and also build contacts with experienced individuals

and it is possible that when they will hire next, they might keep you in mind

given the capacity you have and being aware of your professional skills. Also in

case law students or graduates are not able to get internships or any kind of

work under lawyers there are few other alternatives such as providing legal

assistance to startups, non-profit organizations, small businesses and

entrepreneurs etc who do not have much legal representation. They will provide

you an opportunity for tremendous experience and provide you client base in

the future as well. Also there are certain Legal Process Outsourcing companies

wherein such interested students and graduates can seek for online

internships/jobs. Even Government regulated organizations like SEBI,

Competition Commission of India and few others may provide virtual or

normal/non-virtual internships for such law students and graduates at certain

intervals in a year or so. Hence one requires to keep checking their website

regularly for such opportunities.

Shortcomings of virtual internships and all the above alternative modes :



While virtual legal internships and all the other modes mentioned above may

be the best options available in the current scenario but there are a few of the

challenges one might face when participating in the same such as Internet

glitches which can leave one “stranded” in the middle of a zoom call or affect

your ability to connect with your team at all. Also misunderstandings and

miscommunication are common when people rely very much on emails, texts,

etc. Such misunderstandings can at times lead to mistakes, as well as

interpersonal conflicts therefore a lot of care regarding language requires to be

taken while having such professional communications and as much possible

clear communication needs to be exercised by such fresh law graduates or law

students with their colleagues and seniors. Also cyber security is a major

concern for anyone dealing with confidential information of clients and needs

to keep those records safe.

It might be one‟s dream to participate in an online legal internship across

the world or another state. However one will have to spend some time in

advance researching and quickly learning laws applicable in that Country or

State so such candidate can be an asset to the law firm one is working for. Also

through online legal internship, one may receive a lot of training, experience,

and knowledge and exposure to legal world but it is still not equivalent to on

ground experience of the real world wherein one is required to attend Court

hearings with seniors, file the documents, assist the seniors in client meetings,

participate in a meeting with senior discussing the strategy for the case or

conduct research for a case and/or judgments with colleagues etc. Also for few

business employers or law firms where such students or graduates may

approach in future may not consider remote internships enough to appoint

such candidates. Therefore one needs to keep in mind that virtual legal

internships and such other alternatives mentioned above which may better and

suitable options in the current scenario should not be completely relied upon

for setting a career in legal profession and should be just observed as means to

gain legal exposure for a temporary period till things turn back normal, except

in the case where one is actually very much interested and seriously looking in

for setting up career in such alternative modes such as legal writing or legal

activist and/or plans to work in Legal Process Outsourcing firms etc.

Conclusion:

To conclude more youngsters these days are opting to intern from home so that

they can manage to gain experience while simultaneously pursue other

interests as well and internships are a critical part of law college programmes

and also necessary to gain practical exposure but virtual internships are



largely based on online interaction with the mentor whereas an office

environment opens up space for interaction with many networks and

connections working at the site. However, those who can adjust and get their

work done without constant supervision will be able to succeed and thrive in

this new model.



Dr. Sandhya Advani

Founder and Principal Consultant of POSH

Systems.com, a firm providing services for

POSH Compliance.

She holds a B.A.M.S. (Bachelor’s degree in

Ayurveda) and L.L.M. from Mumbai University.

She has over 30 years of experience in

multiple domains. She retired as Director

Administration from Accelya, an IT company in

Feb 2019. She is empanelled as an External Member in several companies and

is currently one of the Council Members of Maharashtra Anti Sexual Harassment

Council of WICCI.

Website: www.poshsystems.com

THE POSH ACT 2013- A TIGER CUB OR A MATURE TIGER?

Are you scared of the tiger cub? Maybe you are. But does it inspire the same fear as a

fully matured tiger? Probably not.

The POSH Act 2013 [Sexual Harassment of Women at the workplace (Prevention,

Prohibition and Redressal) Act 2013] came into being on the 9thDec 2013. Its still in

its infancy. While the objective of the Act is commendable, it can be considered as a

work in progress. Once complete, the Act would be robust and would be one of the

best pieces of legislations globally on the topic of sexual harassment.

“When you come to me with a problem, also bring me a solution”. This is what I learnt

from my Manager in my early corporate years. That‟s precisely what I am going to do.

Share the challenges and the solutions.

1. Act is not elaborate enough. Definitions and procedures to be made

elaborate.

Sec 19 of the Act casts responsibility on the Employer to provide a safe working

environment. What can be considered as a “safe working environment” or what does

an employer do to create one, is not spelt out anywhere.

http://www.poshsystems.com/



Section 11(3) of the Act mentions that the Internal Committee or the Local Committee

shall have the same powers as are vested in a Civil Court under the Code of Civil

Procedure 1908 when trying a suit in respect of the following matters-summoning and

enforcing attendance of any person and examining him on oath, requiring discovery

and production of documents and any other prescribed matter.

One glance at the Code of Civil Procedure shows that it has 158 Sections in the Act

followed by the First Schedule which includes 51 Orders. There is a total of 5

Schedules. The Code provides detailed guidelines on handling of civil matters. If you

compare that with the POSH Act- it has only 30 sections in the Act and 14 Rules.

The POSH Act needs to be elaborate and ought to prescribe detailed procedures and

cover all aspects of the Act. It will help guide organisations. Most of the IC members do

not have a legal background. Secondly the due diligence and the rigour that is

required in complaint handling may be missing as most of them carry out the

responsibilities along with their other duties.

Sec 11 of the Act states that the IC may proceed to conduct an inquiry as per the

service rules and where there are no service rules applicable, in such manner as may

be prescribed.

The Handbook published by the Ministry of Women and Child development merely

serves as a guide and an IC is left to devise its own procedure in complaint handling.

As a result, different companies follow their own methodology in complaint handling

which may not always be correct.

The need of the hour is to have a standard template for the policy and a defined

procedure for handling complaints including parameters for granting reliefs, standard

of proof required and factors to be taken into consideration to decide upon the

quantum of punishment.

If all these points are well defined, organisations would all tread on the same path.

2. Compliance of the Act not mandatory for organizations with less than 10

employees.

Formation of POSH Policy, display of posters and training should be made mandatory

for all organisations and penalties levied for noncompliance. Currently compliance is

mandatory only for organisations with 10 or more employees. Making compliance

mandatory for all organisations will help in creating greater awareness amongst all

and ensure compliance even in the smallest firms.



3. Act is not gender neutral.

The title of the Act clearly states that the Act deals with sexual harassment of women

at the workplace. Only a woman can file a complaint. The harasser can be a male,

female or a person from the third gender. What should a person from the male gender

or third gender do, if they are faced with sexual harassment at their workplaces? The

Act provides no answers for them in such situations.

Multinational companies may draft gender neutral policies in line with their

counterparts in other countries. This is optional. It is necessary to make the Act

gender neutral so that sexual harassment against all genders is covered.

4. No provision for Mandatory audits every year.

There is no provision for mandatory POSH Audits in the Act. All companies registered

under the Companies Act must mention in their Director‟s report that they are

complying with the provisions of the POSH Act. What about other organisations which

do not fall under the umbrella of the Companies Act? Do we have any checks on

them? For most companies, POSH Compliance is a mere check box compliance. They

may follow the letter of the law, rather than the spirit of the law. Implementing the Act

lies heavily at the hands of the decision makers of the organization.

5. Under reporting of complaints

Many a times in preliminary stages, HR may intervene in complaints of sexual

harassment and manage to resolve them before even a formal complaint is filed. Such

cases would not be reported in the Annual Report. For every complaint reported, there

are many more where the complainants have remained silent, or they have not been

formally lodged. The figures reported may not always be correct. No one is happy to

announce that they had many complaints of sexual harassment filed by the

employees.

6. Lack of inspections

Sec 25 of the Act empowers the Government to request for information and makes a

provision for inspections. Information that is generally sought include names of the IC

members, their location, pictures that the notices have been put up, dates when

training was carried out. There is not much information available on the number of

inspections carried out under the POSH Act or what was its outcome.

7. Lack of information on noncompliance and penalties levied.



There is no readily available information on the number of organisations that have

been penalised for noncompliance. A lot of information is shrouded under the guise of

confidentiality. Penalty may be levied, and information would only be available in the

highest echelons of the organisation. Few matters which have gone to court, may get

reported in the Media. Let us ask ourselves- how many complaints of sexual

harassment get filed in court? How many Appeals are admitted? The victim who is

already undergoing trauma would rather leave the job and go elsewhere than get into

litigation.

8. Lack of awareness about the Act –

Awareness needs to be increased with the help of cartoons, posters, radio jingles etc A

Twitter handle in multiple languages dedicated to the POSH Act or social media posts

or video films etc. would go a long way in creating awareness amongst all genders.

9. Lack of centrally placed information on Local Committees in different

cities.

The Local committee accepts complaints of sexual harassment of women happening in

organisations with less than 10 employees or where the complaint is against the

employer. Is the information about the procedure for filing a complaint easily available

to the common person? Does the victim who is a domestic help know where she to file

the complaint? Sadly, none of this information is easily available. It needs to be

available in multiple languages on a dedicated site and made easily accessible for it to

reach the common people of all genders.

10. No clarity on application of the Act on clubs and voluntary

organisations.

There are several voluntary organisations managed by honorary members like Lions

Club, Rotary Club, BNI, other charitable organisations etc. Technically they may have

less than 10 employees, but the members may run in hundreds or thousands. Does

the Act apply to them? What happens if an incident of harassment takes place during

one of the events organised by the club? What about religious institutions? Are they

covered? The Act appears to state that they are. Are they aware that they need to be

POSH Compliant? Have penalties been levied on them for noncompliance?

The POSH Act currently is still in its infancy. The tiger cub is seen but not feared

enough. For it to be effective it needs to undergo changes to mature it so that it can

roar like a tiger and contribute to making a difference in the lives of all genders.



Adv. Lavina Kriplani

Advocate High Court

Has 20 plus years experience as an Advocate in

predominantly Commercial disputes pertaining to

Shipping, Transportation Logistics, Ports &

Harbour. She practices predominantly on the

Civil side but is into criminal side matters

particularly Cheque Boun cing and white collared

crimes . Belongs to Bombay Bar and Bar

Association of City Civil and Sessions Court

COMMERCIAL COURTS – ARE THEY ON THE FAST TRACK ?

India enacted “The Commercial Courts, Commercial Division and Commercial

Appellate Division of High Courts Act, 2015” which came into effect from 23rd

October 2015. The 253rd Law Commission of India had reported the need for

Commercial Courts in order to speedily dispose off high valued commercial

disputes and create a positive image of the Indian Legal System.

This Act provides for separate Commercial Courts to be set up by the State

Government at the District Level. In the States where the High Court exercises

Original Civil Jurisdiction, the High Courts are to set up a Commercial Division

to try such class of disputes. This Act encompasses a List which is an

exhaustive definition of Commercial Disputes as provided for in Section 2(1)(C):

A Commercial Dispute means a dispute arising out of :

1) Ordinary transactions of merchants, bankers, financiers and traders

such as those relating to mercantile documents, including enforcement

and interpretation of such documents

2) The export and import of merchandise or services

3) Issues relating to admiralty and maritime laws

4) Transactions relating to aircraft, aircraft engines, aircraft equipment and

helicopters, including sales, leasing and financing of the same

5) The carriage of goods

6) Construction and infrastructure contracts including tenders

7) Agreements relating to immoveable property used exclusively in trade



and commerce

8) Franchising Agreements

9) Distribution and Licensing Agreements

10) Management and Consultancy Agreements

11) Joint Venture Agreements

12) Shareholder Agreements

13) Subscription and investment agreements pertaining to the services

industry including outsourcing services and financial services

14) Mercantile Agency and mercantile usage

15) Partnership Agreements

16) Technology development agreements

17) Intellectual property rights relating to registered and unregistered

trademarks, copyright, patent, design domain names, geographical

indications

18) Agreements for the sale of goods or provision of services

19) Exploitation of oil and gas reserves or other natural resources

including electromagnetic spectrum

20) Insurance and reinsurance

21) Contracts of agency relating to any one of the above

22) Such other commercial disputes as may be notified by the Central

Government

Although the Act defines the above (1) to (22) as Commercial Disputes,

however, this Act caters to big Commercial Disputes which are atleast INR 1

crore and above.

This Act has led to amendment of the Civil Procedure Code, 1908 as far as

Commercial Suits are concerned. So far as other (Non Commercial) Suits and

even otherwise Commercial Suits where the claim is below INR 1 Crore, the

Civil Procedure Code, 1908 continues to apply. This Act shall override the Civiil

Procedure Code, 1908 should there be any conflict and the Original Side High

Court Rules too.

A distinction has been made for Commercial Disputes involving Arbitrations.

Whilst, all International Commercial Arbitration matters are to be filed and/or

decided by the Commercial Division of the High Court whereas all Domestic



Commercial Arbitration matters are to be filed before the Principal Civil Court

and are to be decided by a dedicated Commercial Court therein.

Some salient features of this Act are that as follows :

A Case Management System with imposition of Strict Time Lines. The

critical one is that the Court would not have the discretion to extend the

time to file Written/Defence Statement more than the prescribed

mandatory 120 day period. Advance adjournments may be sought but

after imposition of Costs. Likewise Judgments are to be pronounced

within 90 days of conclusion of Arguments. These are in keeping with the

intent of the Act to attempt to dispose off cases within 6 months from

their date of filing.

Greater Norms for the „Discovery and Disclosure of Documents‟ available

to parties to the litigation

Provision for Discovery by Interrogatories is provided for

Print outs of Electronic Records would be sufficient compliances

„Costs follow Events‟ approach has been adopted which will result in

imposition of heavy costs if delays are caused. This would serve as a

deterrent to false, vexatious and frivolous litigation.

The best part of this Act is the provision for a “Summary Judgment”

which enables Courts to render Judgments based on Documentary

Evidence alone without the need of recording of Oral Evidence. Any party

to the litigation can apply to the Court seeking a Summary Judgment

provided the Writ of Summons have been served but before the Trial

begins so to say i.e. before the Framing of Issues, if the party taking out

such application is confident that the opponent parties have no real

chance of succeeding in prosecuting the case or defending it. However,

this is an Exception rather than a Rule and to be resorted to provided all

the stipulated conditions are meticulously followed.

The Act caters for the State Governments in consultation with the High



Courts to establish necessary facilities to train the Judges appointed in

the Commercial Courts/Division and Commercial Appellate Divisions.

As per the said enactments, all disputes falling within the definition of

“Commercial Dispute” under Section 2(1)(c) of the Commercial Courts

Act, which are valued Rupees 3 Lakhs or more, shall not be instituted

unless the plaintiff mandatorily exhausts the remedy of Pre-Institution

Mediation, to be conducted by the Legal Services Institutions.

Accordingly, the Legal Services Institutions are conducting Pre

Institution Mediation in respect of Commercial Disputes across the

country.

This Act caters to big business disputes INR 1 Crore and above and hence

leaves out the major chunk of business disputes pertaining to the micro, small

and medium enterprises and may serve the purpose of business community at

large but only a certain strata.

It seem to the Author that this Act attempts to converts all Commercial Suits

into what is akin to Summary Suits in order to fast track the process thereby

disposing off disputes and clearing not only the back log but the impression

about Indian Judicial System being a very long drawn time consuming and

costly affair.

A personal take of the Author is if the basic criteria of a “Commercial Dispute”

is the claim being at least INR 1 crore and this criteria is uniform across the

States of India where the Act applies, the Court Fee Structure should be kept

uniform across the States being based purely on claim valuation. In other

words, for this limited purpose the respective State‟s Court Fees Act should not

be apply to such high valued commercial litigation.

Whilst the intention is definitely good but what is to be seen is whether this

Legislation will be followed in Letter and Spirit by all the Stakeholders and

whether it will deliver the results kept in mind whilst envisaging this.

The Covid 19 pandemic has been a colossal set back to the legal systems

across the Globe where physical hearings are the norm. A country like India

with a heavy back log and Virtual Hearings far and few in the entire legal

system are badly affected. This set back can only be overcome with grit and

resolve of our legal fraternity as never seen before.