Work from Home and Maternity Benefit: Is there a need for reform?

By Nevin Clinton

Maternity is a hugely important period in a woman’s life and hence, priority in the said period must be on providing the best care for mother and child. Everything else including work must take a back seat. Therefore, to recognize and respect this period of maternity and to ensure that every working woman’s rights are safeguarded, the Maternity Benefit Act, 1961 came into force.

Key provisions of the Act

The act entitles every working woman to leave with full pay and benefits for up to 26 weeks. This applies to all establishments where there are 10 or more employees. The condition is that the woman must have worked for at least 80 days in the preceding 12 months. While availing these maternity benefits, the woman’s service cannot be terminated by the employer because of the pregnancy (there can be termination due to poor conduct and the like). 

Now, the Maternity Benefit Act has been amended from time to time to incorporate provisions in accordance with the changing times. One such key amendment was made in 2017 which brought in some important changes such as extending the maternity leave period from 12 to 26 weeks. There are also other provisions that were brought in for an increased period of leave in cases of miscarrige or termination of pregnancy.

Among these changes, one other important inclusion was that of provisions for ‘work from home’.

The emergence of work from home

Working from home has been a relatively new concept or idea that emerged thanks to the advent of computerisation of a plethora of work done in jobs. Despite the fact that the same could get monotonous, working from home has emerged as a viable option for people looking for light work. With the arrival of the COVID-19 pandemic, the concept came into the mainstream with nearly every establishment going for it. 

Work from home and maternity benefit

In the context of maternity benefits, work from home was a novel concept in India and there was on official recognition of the same. However, the 2017 amendment in what was a welcome change, brought in the option of employers providing for mothers to work from home for an extended period after delivery, ‘if the nature of work allows so’. 

Is there room for reform?

Now, the option or the very concept of work from home for mothers is pioneering, yes. Mothers in the past did not have such a possibility and even their maternity leave period was far lesser. Therefore, the changes in recent times have been extremely promising and there is no denying that.

But, there is still some scope for reform, especially with regard to the work from home provisions. This is because the complete discretion to make the option available to the women concerned lies with the employer. There is no say for the women. The employer can very well not provide the option stating that the nature of work does ot allow so (even if it in fact allows so). 

Therefore, employers must be made aware of the existence of the ‘work from home’ provisions and advised to make it available wherever possible. Legislation could be a solution to ensure that the option is not denied, but the problem in such a situation would lie in ascertaining an objective way to determine when the nature of work is in such a way for the option to be exercised. 

Classification of various jobs in every establishment as to whether ‘work from home’ would be possible would be a good solution as well, if made mandatory. This can help in the discretion of making use of the option shifting to the employees to an extent, albeit not fully (since the employers will have a say in the said classification of jobs, if done).

Conclusion

The Maternity Benefit Act in India does not have a lot of controversial or contentious provisions. In fact, the Act has been recognized as a progressive one by other countries. Recent amendments have also been encouraging. Therefore, with a few crucial amendments from time to time, India can go a long way in making sure that its maternity benefit legislation is near-perfect. 

 

Corporate Social Responsibility Laws in India

By Priyasha Sen Gupta

Introduction

India is one of the first countries in the world to promulgate a corporate social responsibility law. After the Companies Act, 2013 was revised in April 2014, the law became mandatory. Section 135 of the Companies Act, 2013 and the Companies (Corporate Social Responsibility) Rules, 2014 define corporate social responsibility as a company’s overall responsibility for the environment and society, in which the company is obliged to perform its business through environment-related activities such as environmental protection, social and educational activities, and more.

What is Corporate Social Responsibility?

Kotler and Lee are recognized experts in business and marketing. They define Corporate Social Responsibility as the obligation to enhance social well-being through business practice, diligence, and the contribution of company resources. The company fulfils its corporate social responsibility obligations in order to maintain social goals.

According to Section 2 (d) of the Companies (CSR Policy) Amendment Rules, 2021, "Corporate Social Responsibility (CSR)" refers to the activities carried out by the company in accordance with the legal obligations as per Section 135 of the Act, along with the provisions of the law, however, it does not include the following:

 • The activities that are carried out in accordance with the company's normal course of business. 
 • All activities outside of India, with the exception of the training of Indian sports personnel who constitute or represent a state or union territory at a national level or from India at an international level. 
 • Direct or indirect donations of any amount to a political party under section 182 of the Act. 
 • Activities for the benefit of the company's employees as defined in Section 2 clause (k) of the Code on Wages, 2019.
 • Activities that are to be supported by companies in the form of sponsorship in order to achieve marketing advantages for their products or services. 
 • Activities carried out to comply with other legal obligations under applicable law in India.

The History of CSR in India

In early and medieval India, kings, landlords, and businessmen accompanied the concept of social duty and additionally gave significance and value to social duty. Every person then believed withinside the term “The more you give, the more you receive”. The sustainability and boom of each person and the society as a whole can best be advanced and accomplished by the collective growth of the society.

Significance of CSR

 • CSR helps companies to strengthen relationships with stakeholders. 
 • Provides important assistance in the recruitment and retention of human resources and ensures a good environment among the existing employees. 
 • Reduces risk management and helps to do the right things within an organization. 
 • Build brand reputation through innovation and other CSR initiatives. 
 • Increases while maintaining brand value as the media presence casts a positive light on the company. 
 • It also helps with the growth of the value of the corporate brand by cultivating and strengthening social relationships with customers. 
 • Helps companies to develop and legitimize a larger market share.

Amendments in CSR Rules, 2021

On January 22, 2021, The Ministry of Corporate Affairs (MCA) amended the Companies (Corporate Social Responsibility Policy) Rules, 2014, now known as Companies (Corporate Social Responsibility Policy) Amendment Rules 2021. According to the Companies (Corporate Social Responsibility Policy) Rules 2014, these rules have been modified to be more transparent and accountable.

Administrative Overheads

After the amendment, “administrative overheads” will only refer to expenses incurred by the company for “general management and administrative management of the company's corporate social responsibility functions.” All other expenses directly incurred for the development, monitoring, implementation, and evaluations of specific CSR projects are not included in management expenses. 
Simply put, this means that administrative expenses do not include all direct expenses of a given CSR project or program.

Conclusion

India’s Corporate Social Responsibility is adopted in the hope that it will become an effective tool to unite the efforts of the business and social sectors to achieve sustainable growth and the development of overall social goals.

It is also believed that the community will benefit because the government has not succeeded a great deal in its efforts to help local people. Although well-intentioned, the law did not initially cover most of the reasons.

Therefore, the Companies (CSR Policy) Amendment Rules 2021 were introduced to create a strong regulatory framework for holding CSR events in India and overhaul India’s CSR system. Concepts such as CSR meanings, CSR policies, and CSR implementation have changed and are presented in a more detailed and structured manner which is a positive development.

Procedure to File Consumer Complaints Online

In today’s fast-moving world, consumer protection is of paramount importance. Only when there is a sound system of safeguarding the interest of consumers who purchase goods or services from businesses or sellers will there be smooth functioning of markets, consumer welfare, and accountability on the part of businesses. 

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Terrorism Laws in India: Does the controversial UAPA need to be amended?

The Unlawful Activities (Prevention Act), 1967 (hereinafter referred to as UAPA) is a law that aims at curbing unlawful activities that threaten the sovereignty of India. The Act has proved to be extremely controversial due to the fact that there is plenty of scope for misuse. Further, the rate of conviction has been observed to be extremely low. All of these have led to the Act being deemed ‘draconian’ and asked to be reformed. 

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The Pegasus Spyware Controversy: Where do Indian laws stand on the issue?

The Pegasus Spyware controversy has been a huge talking point in India over the course of the past week. The issue raised several important questions on privacy of the common man and surveillance by the government. Notwithstanding the vehement denial by the Indian government of the allegations made, the spyware continues to remain a hot topic for discussion and debate. 

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Procedure to Report Cyber Crime Online through Government Portal

By Nevin Clinton

Advancements in technology, especially in cyberspace, has brought with it a plethora of advantages that makes day-to-day life easier. Features that were unimaginable in the past are now just a click away. However, there are several dangers that are associated with cyberspace as well and the number of cyber crimes are growing rapidly around the world.

What is a cyber crime?

Cyber crime is any crime that involves the use of cyberspace or computers. A computer or a network of computers could be used either as a tool to achieve the end of a criminal activity or they could be the target. All crimes that are covered under the Indian Penal Code will therefore fall under the purview of cyber crime if there is the use of computers involved.

Cyber Crime Laws in India

Cyber Crime has a rather unique position in the Indian legal system. Both the Indian Penal Code and the Information Technology Act, 2000 govern it. There are some provisions that overlap while there are some that are unique to the latter act. In cases where there is an overlap and provisions from both statutes apply, it is those of the more specific IT Act that come into force if there is an involvement of cyberspace.

How to report a cyber crime online?

The Ministry of Home Affairs has a portal called the National Cyber Crime Reporting Portal where a citizen of India can report a cyber crime. The portal was brought in to ensure that complaints on cyber crime are reported and registered in quick time. The focus of the portal is aimed towards protecting women and children in particular, but general complaints can also be made. Once a complaint is made, it will be directed to the police authority that has jurisdiction to investigate.

For better and more focused reporting of complaints, the MHA has listed 24 broad cyber crimes. These include child pornography, cyber bullying, cyber stalking, credit card fraud, spamming, phishing, data breach, online drug trafficking, and more. 

So to report any cybercrime, one has to follow these steps

  • Go to the National Cyber Crime Reporting Portal (https://cybercrime.gov.in/
  • Click on ‘File a Complaint’
  • Accept the terms that pop up confirming that all facts that you state are true to the best of your knowledge.
  • You will then have two options – Reporting cyber crimes relating to women and children, and other cyber crimes.
  • After clicking on the category, you will be directed to a page where you will have to provide details about the incident. Fill up the details including your state, place of occurrence of the incident, photo proof, and a complete description of the crime. You will then be directed to a page where you will have to provide any information that you might have on the suspect(s). After you submit the same, your complaint will be registered.
  • Note that for crimes involving women and children, you can choose to report them anonymously. For others, you will have to provide details about yourself by signing in.
  • Finally, you must provide as much information as possible for the authorities to take swift action.

What happens after a complaint is made?

After a complaint is made on the portal, the police authorities in the concerned state receive it and will decide on how to proceed with it. This is why filling up the correct state or UT while filing a complaint is important. In cases where the location of occurrence of the crime is not known such as child pornography, one can select his/her own residence as the state. The police in the said state will then investigate and direct the complaint to police of the state where they have jurisdiction.

Conclusion

Statistics from Norton Lifelock show that 27 million Indian adults fell victim to some form of cyber crime in 2020. Further, more than 50% of Indian adults are said to be unaware of how to keep themselves safe in cyberspace. Therefore, it is imperative for each citizen to always stay alert while using computers. The government can help as well by helping in educating and protecting its citizens. The aforementioned portal for filing complaints on cyber crime is a good step in this regard as it helps in quick reporting and tracking of cases while also granting the option of anonymity for the complainant. Due to the same, citizens must be made aware of the existence of this portal and such awareness can aid in curbing cyber crime to some extent at least.

Sedition Law in India: Growing calls to strike down ‘colonial’ law

By Nevin Clinton

Sedition law has been one of the most controversial aspects of the legal system in India since time immemorial. The law which deals with punishments for rebellion against the established order has been prevalent from the time of the British colonial rule and has been an infamous tool in suppressing the voice of the people. Freedom fighters like Mahatma Gandhi and Lokmanya Tilak have been victims of the law which was exploited by the British.

Lord Macauley who framed the Indian Penal Code included provisions for punishment for sedition under Section 113 and after amendments post-independence, sedition is governed by Section 124A of the Code. The section states that if a person by speaking, writing, signs or visible representations brings hatred or contempt towards the government, he will be punished with imprisonment up to three years and/or fine.

The arguments in favour of sedition law

Sedition law is considered important by its advocates for the reason that it helps keep anti-national elements in check. Terrorists and secessionists who incite violence through words can be curbed through the law. Anarchy, overthrowing of the government, violent protests and the like are also sowed usually by words and hence, sedition law can help prevent the same. Also, sedition law is considered akin to contempt of court as the latter deals with disrespecting one organ of the government – judiciary while the former deals with the other organs – executive and legislature. 

The arguments against sedition law

First and foremost, sedition law was introduced during British colonial rule and was used as a tool to punish Indians who dared to speak out. The law has a dark history associated with it and hence, in today’s world it seems misguided for it to continue to exist. Sedition law is also considered to be one of the biggest obstacles to the freedom of speech and expression. Further, the law is easy to exploit due to its not-so-specific wording leading to even constructive criticism sometimes being considered to be sedition. Also, there are various other provisions under the IPC and Unlawful Activities Prevention Act, 2019 which deal with and can govern terrorist and secessionist activities instead of sedition.

Recent occurrences and the growing calls for striking down sedition law

Recent occurrences involving sedition law have only led to more voices in favour of repealing it. Especially since 2014 when the BJP government came into power, there has been a rampant increase in the number of cases being filed under the controversial law. According to a study by Article 14, 96% of the sedition cases filed since 2010 have been after 2014. The arrest of activists and journalists hasn’t helped matters either. Further, the rate of conviction upon these arrests has been alarmingly low. Due to this huge spike in arrests and the low conviction rate, there have been a plethora of calls from various sections for the law to be completely repealed. 

While the law has not been struck down or deemed unconstitutional so far, the Supreme Court has time and again taken a stance that is critical of sedition law. Very recently, on the 15th of July, 2021, the apex court while examining a plea questioning the constitutional validity of the sedition law called the law ‘colonial’. The petitioner had contended that Section 124A of the IPC contained vague terms such as ‘disaffection towards Government’ and that it was an unreasonable restriction on the freedom of expression under Article 19(1)(a). Chief Justice of India, NV Ramana upon hearing the plea stated that sedition was the law that suppressed the voices of freedom fighters like Mahatma Gandhi before asking the Centre whether it was necessary to still be in force. The plea is currently being examined by a three-judge bench. 

Future of sedition law

The Supreme Court’s recent views look promising from the point of view of the sedition law being repealed in the future. However, whether or not the provision will finally see its end remains to be seen. The provision does continue to divide opinion and the debate will be unceasing. Freedom of speech has perpetually been a touchy subject and hence, what the future holds is anyone’s guess.

 

Section 66A of the IT Act: Unconstitutional provision that continues to be invoked

By Nevin Clinton

The Information Technology Act, 2000 (hereinafter referred to as IT Act) is among the most important pieces of legislation in India that is only growing in importance by the day. In today’s digital world, especially during the times of the COVID-19 pandemic, attachment to cyberspace or the internet has become part and parcel of life. Alongside the obvious positives that come with advancements in technology relating to cyberspace, there are several inherent dangers as well.

Freedom of online speech and Section 66A

In the context of social media, a key question that has been concerning lawmakers and courts for quite some time now is that of freedom of speech. When the IT Act was framed, there was a provision added to restrict sending ‘offensive messages’ online. This was given in Section 66A which stated that the following acts would be punished with imprisonment up to three years and fine:

  • Sending grossly offensive information or information having a menacing character
  • Sending false information with an intention to cause ill will, inconvenience, annoyance, danger etc. 
  • Sending emails that mislead, annoy or cause inconvenience to the receiver

The landmark Shreya Singhal case

Once Section 66A came into being, several cases were filed under it for violating its provisions. While the provisions did seem fair enough, cases of exploiting them in order to punish online speech that was either innocuous or satiric started to rise. This led to several lawyers and organizations questioning the validity of how the provisions of the section were being construed and implemented. 

A series of writ petitions were then filed by lawyer Shreya Singhal along with NGOs like PUCL, and companies like mouthshut.com. In a landmark judgment that changed the landscape of online speech, a two-judge bench deemed Section 66A to be unconstitutional as it violated the right to freedom of speech and struck it down. Despite arguments from the other side that the section would come under ‘reasonable restrictions’ to the right, the court ruled that the same would not apply. The section was deemed to be too vague and not narrow enough to constitute a reasonable restriction. The judgment received largely positive reception from journalists, lawyers and people alike. 

The situation post the Shreya Singhal judgment

Despite the fact that the Shreya Singhal judgment clearly deemed Section 66A to be unconstitutional, it continued to be invoked with more than 700 cases pending at present. The lack of communication to police officers and the lack of publicity about the exact section and its striking down led to the same. Apart from police officers, even lower courts and trial court judges were unaware of the ramifications of the Shreya Singhal judgment. This was brought to the attention of the Supreme Court in 2019 and the Court asked DGPs in all states to publicise and expressly convey to the entire police force that Section 66A was struck down. Despite this direction, there were still cases of the section being used. 

One of the key reasons for this situation arising was the fact that the section was not removed from the bare text of the IT Act. It was only mentioned in the footnotes that the Shreya Singhal judgment deemed it unconstitutional. This could have been prevented by either completely taking out the section or mentioning the unconstitutionality in the bare text itself (through brackets) instead of just the footnotes. 

The situation at present

Much like the SC direction in 2019, yet another direction has arrived now in July, 2021 wherein the Court has advised all states to not register cases under Section 66A. The issue was once again brought to the SC’s attention by PUCL which had also been one of the parties in the Shreya Singhal case and this time the Court has made it amply clear that there should strictly be no more invocation of Section 66A. Therefore, as of now, the section is not in force and there can be no cases registered under it. But it still remains to be seen if this direction will be strictly complied with and if a situation similar to the previous direction in 2019 doesn’t arise. 

UP Population Control Bill: All you need to know

By Nevin Clinton

The Uttar Pradesh Law Commission recently came up with a draft of a population control bill which vouches for a two-child policy. This bill has been the talk of the country for the past few days and it has turned out to be quite a controversial one. Social media has been abuzz with opinions on the bill as well as the statements made by the Law Commission and the Chief Minister of UP, Yogi Adityanath.

What does the bill say?

The Bill titled “Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021” states that for the purpose of population control, all couples in the state must keep up with a two-child policy. The Law Commission clarified that the policy was not mandatory and that couples can decide against adhering to the same. However, not following the policy will result in certain consequences such as the taking away of eligibility in government schemes and subsidies, applying for government jobs, and so on. It is noteworthy here that the bill is now open for suggestions for one week and if the bill is passed, it will become law after one year. Suggestions can be put forth through mail to statelawcommission2018@gmail.com or by post to the UP State Law Commission’s address.

What do the officials concerned say?

Chief Minister of UP, Yogi Adityanath said in a statement that population was the root cause of inequality in society. He further stated that such a bill and policy was necessary for an ‘advanced society’ to be formed. Yet another statement released via a policy document on the government website said that “attempts would be made to ensure there is a population balance among various communities”. Chairman of the State Law Commission, Aditya Nath Mittal explained the bill encouraging all residents of UP to follow the policy so that they can be eligible for all government schemes, apart from the advantages that come with population control. 

Incentives available to couples that follow the policy

Section 4 of the draft bill has details on the list of incentives that will be available to the general public if they take up the two-child policy. They are as follows:

  • Nominal rates of interest on soft loans for construction or purchase of houses
  • Rebate on charges for electricity, water and such services
  • Any other incentives that the Government may come up with in the future

Public servants who adhere to the policy will be entitled to two additional increments, subsidies towards purchase of land, maternity or paternity leave of 12 months, increase and pension, and so on. Also, if public servants follow a one-child policy and undergo voluntary sterilization they will have more incentives including preference for their child in education and government jobs. If the same policy and sterilization is followed by the general public who are under the poverty line, they will get a one-time payment of Rs. 80,000 if the child is a boy and Rs. 1,00,000 if the child is a girl.

Disincentives to couples that don’t follow the policy

If couples refuse to follow the two-child policy (which they are entitled to), they will be subject to disincentives such as

  • Limiting ration card units
  • No part in government welfare schemes
  • Ineligibility to contest local body elections
  • Ineligibility to apply for government jobs
  • Ineligibility to get promoted in government service

Exceptions to the policy

Chapter III of the draft bill deals with general exceptions to the policy. Firstly, in case a second pregnancy results in multiple children being born, the couple will not be deemed to have contravened the law. Similarly, there is no bar on adoption of children and a couple with two or lesser own children and one or more adopted children will not have violated the policy. Another exception is when one of the two children born to a couple suffers from some kind of disability or passes away. In such a case, a third child can be conceived. Married couples who are expecting a child when (if) the Act comes into being will also be exempted. In case of polygamy or polyandry, the male or female respectively will not be deemed to have followed the two-child policy if they have more than two children from all their relationships as a whole.

Conclusion

The draft bill has received mixed reception from the general public. While there have been people and politicians applauding the law commission’s move towards controlling the booming population, others have criticized the bill on grounds that it would lead to further imbalance between different communities in the population. Therefore, it remains to be seen if the bill will indeed be passed and come into force. 

 

Section 194Q of Income Tax Act and its impact on TDS

The Finance Act, 2021 brought in several important amendments in the Income Tax, 1961. One such amendment was the inclusion of Section 194Q in the Act which governs Tax Deducted at Source (TDS) on purchase of goods. The Section came into effect on July 1, 2021. It has a few significant implications especially when coupled with Section 206C(1H) which governs Tax Collected at Source (TCS) on the sale of goods.

The new section is an interesting addition due to the fact that it is a move to address the shortcomings of the aforementioned Section 206C(1H) which was brought in the previous year. Due to some transactions being excluded from coming under TCS provisions, Section 194Q on TDS has been added this year.

When will TDS be deductible under Section 194Q?

According to Section 194Q, TDS will be deductible when a buyer makes a payment to a seller who is also a resident and the said payment is for the purchase of goods that are of value exceeding Rs. 50 lakhs. The said ‘purchase of goods’ refers to both capital and revenue goods. The rate of TDS is 0.1% of the said value which will increase to 5% when the seller does not have a Permanent Account Number (PAN). Another thing to note is that TDS is deductible under the section even when payment is credited to a suspense account (a section in a ledger that records entries which are uncertain leading to a need for further classification).

Who is a buyer?

The section defines who a buyer is in the explanation stating that a person who has total sales or gross receipts or turnover exceeding Rs. 10 crores in the preceding financial year will qualify as a buyer. Further, if the Central Government has expressly notified that a person cannot be a buyer or that TDS provisions would not apply, the aforesaid provisions will not apply.

When can TDS be deducted?

Now, the TDS can be deducted either at the time when the sum of money is credited to the seller or when the sum is directly paid. If the buyer does not comply with the provisions of this section, Section 40a(ia) will come into being through which expenditure up to a maximum of 30% of the value of goods will be disallowed.

Exceptions to Section 194Q

One important exception to note with regard to Section 194Q is that it won’t apply if other provisions of the Income Tax Act mandate deduction of TDS in the concerned transaction. Yet another exception is when TCS is collectable on the transaction according to the provisions of Section 206C(1H) of the Act. 

When can TCS be collected under Section 206C(1H)?

As mentioned previously, Section 206C(1H) governs TCS on sale of goods. This provision will apply on a seller who receives a consideration for sale of goods with value more than Rs. 50 lakhs during a financial year. Further, the Section defines ‘seller’ as a person who has total sale or gross receipts or turnover exceeding Rs. 10 crore during the preceding financial year (similar to the definition of a ‘buyer’ under Section 194Q).

Now, when only Section 206C(1H) existed, there was the possibility of TCS provisions not being applicable even when consideration exceeded Rs. 50 lakhs due to the fact sales or gross receipts or turnover were not over Rs. 10 crore in the preceding financial year. Such transactions did not come under the purview of either tax collection or deduction and hence, the government sought to bring them under the same. This was why Section 194Q was introduced through the Finance Act, 2021. 

Mutual exclusivity of Section 194Q and Section 206C(1H)

Therefore, now both Sections co-exist to ensure that transactions are not exempt from tax collection or deduction due to the conditions not being met. But, it is important to note that the two sections are mutually exclusive, in the sense that if one starts to apply, the other will not apply. So if TDS can be deducted under Section 194Q, TCS can not be collected under Section 206C(1H) and vice versa.

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