Thursday, January 19, 2012

COMPANY ACT 1956- "BUY BACK OF SHARES" by Shiva Patel, 3rd year, National Law Institute University, Bhopal


Be it a listed or unlisted company, share capital will bear an integral part in company setup . Share capital can be of two types i.e. equity share capital or preferential share capital. The share capital of a company has to be subscribed by one or more persons. After the share of a company has been allotted to the subscribing members, the subscribers have no right over the money gone as proceeds of the shares subscribed. All that the shareholder has is the right to vote at the general meetings of the company or the right to receive dividends or right to such other benefits which may have been prescribed. The only option left with the shareholder in order to realize the price of the share is to transfer the share to some other person.

But there are certain provisions in the companies act which allow the shareholders to sell their shares directly to the company and such provisions are termed as buy back of shares. Buy back of shares can be understood as the process by which a company buys its share back from its shareholder or a resort a shareholder can take in order to sell the share back to the company.

The provisions regulating buy back of shares are contained in Section 77A, 77AA and 77B of the Companies Act, 1956. These were inserted by the Companies (Amendment) Act, 1999. The Securities and Exchange Board of India (SEBI) framed the SEBI(Buy Back of Securities) Regulations,1999 and the Department of Company Affairs framed the Private Limited Company and Unlisted Public company (Buy Back of Securities) rules,1999 pursuant to Section 77A(2)(f) and (g) respectively.

Wednesday, January 18, 2012

Bentham Analysis of Death Penalty and its Relevancy in Contemporary India by Rituraj Sinha, NALSAR University, Hyderabad

Ever since the enactment of the Indian Constitution in 1950, public awareness of problems with death penalty and prevailing legal standards has evolved significantly. In dozens of countries, democratic governments in the course of conducting a major review of their national constitutions have decided to curtail or abolish the death penalty. Nearly all European and several Pacific Area states (counting Australia, New Zealand and Timor Leste), and Canada have abolished death penalty. The majority of states in Latin America have also absolutely abolished capital punishment, however, a few countries, like Brazil, use death penalty only in special situations, for example, treachery committed during wartime.

In India also, it should be noted that right from the days of the British rule, there has been a strict opposition to the enforcement of capital punishment. For example, in 1931, Gaya Prasad Singh, a member of the Legislative Assembly introduced a Bill in the Assembly which proposed to abolish the death penalty in the country. However, it was overturned. Other significant events were the Supreme Court judgements inJagmohan Singh V State of U.P[1]. and in Bachan Singh V State of Punjab[2]. In these cases the Supreme Court held that death penalty is an exception not a rule and also came up with the doctrine of ‘rarest of rare case’. Thus, these developments in these cases can be regarded as the steps towards an attempt to abolish the death penalty. In retrospect, these cases are neither a small nor the insignificant achievement for the abolitionist.
It is now recognised in both national and international systems that the death penalty has no place in a democratic and civilised society. India is sovereign, secular, and democratic but yet, it is astonishing that India is one of the few countries in the world which still embraces the concept of capital punishment or the death penalty. Through this paper, the Author is going to study what Bentham has said about death penalty and will try to find out its relevancy in India.

Now coming to the theory, since Socrates, philosophers have examined the morality and policy of the death penalty, but Bentham devoted more space to the topic than any of his predecessors. Jeremy Bentham twice undertook to apply his general utilitarian principles of punishment to a critique of death penalty. First was in 1775[3] and the second was in 1831[4]. In his 1775 essay, firstly he explained the distinction between ‘simple’ and ‘afflictive’ death penalties and then also criticised the latter. Then he argued his case against the death penalty on the utilitarian grounds. His second effort in 1831 was entitled as ‘On death penalty’. This effort was mainly devoted against the death penalty on utilitarian grounds as it was made in his earlier effort of 1775, but the style was distinctly inferior then his essay of 1775. Thus taken together Bentham’s 1775 and 1831 essays constitute of the death penalty unique among leading philosophers.

Friday, January 13, 2012

E-Legal Education And Awareness: Which direction the Indian economic and political ...

E-Legal Education And Awareness: Which direction the Indian economic and political ...: Indian subcontinent with multicultural,multi lingual, multi religious and ethnic diversified castes,communities and faiths was prosperous w...

E-Legal Education And Awareness: HUMAN DEVELOPMENT : Why There is a Shift From Econ...

E-Legal Education And Awareness: HUMAN DEVELOPMENT : Why There is a Shift From Econ...: 1. INTRODUCTION Development refers to economic, social, political and cultural processes of change in human societies which seeks to ...

E-Legal Education And Awareness: effectiveness of sanctions in international enviro...

E-Legal Education And Awareness: effectiveness of sanctions in international enviro...: Introduction Effectiveness of sanction in international environmental law is a topic of debate in recent world of modernization, globaliz...

E-Legal Education And Awareness: Do we have right quality of political leadership i...

E-Legal Education And Awareness: Do we have right quality of political leadership i...: Do we have right quality of political leadership and political institutions and Do we need any change in them to meet the new global econo...

E-Legal Education And Awareness: Piracy and legal issues in counter-piracy measures...

E-Legal Education And Awareness: Piracy and legal issues in counter-piracy measures...: DEFINITION- Piracy is a war-like act committed by non-state actors (private parties not affiliated with any government) against other p...

E-Legal Education And Awareness: Legalising Prostitution In India: A Kantian Analys...

E-Legal Education And Awareness: Legalising Prostitution In India: A Kantian Analys...: Introduction Prostitution is the act or practice of providing one’s body for sexual purpose to another person in return of payment. The pe...

Wednesday, January 4, 2012

Which direction the Indian economic and political reforms should tend to? and whether the food security bill and FDIC in retail is in right direction? by Mr S. Lakshma Reddy, Advocate, High Court of A.P.

Indian subcontinent with multicultural,multi lingual, multi religious and ethnic diversified castes,communities and faiths was prosperous when it was politically united, allowed non discriminatory free trade within the politically united country as in Ashoka period and Akbar period and poorer when it lost political unity and tattered in to economically fragmented discriminated markets. This should be the first lesson Indian politicians should keep in mind while taking policy decisions.

the second lesson is that in the recent internet led a globalized markets like banking,services, and financial and now commodity markets and even the real estate landed property markets, there is a real movement away from national markets to international and being transformed in to global markets with its ramifications on reassessment of relevance or irrelevance of the old political concepts like 19th century national sovereignty in 21st century integrated global political economy. The events in European zone and north America and middle east,south and south east Asia and more general scale between Ancient east and west, Asia and Europe including America will prove the natural tendency to redefine the 18th century dream concept "national soverignty" realized in 19th and 20th century.Indian politicians should wary of this natural tendency in geo-politics and economics and how to befit it without loosing the growth momentum.

Free Will ,conflicts of free wills and interests, avoidance conflicts and harmonization of broad cross sections of populations of the nation or nations through rule of law and its enforcement is the basis of long lasting economic and political institutions' foundations in any free world.whether the food security bill will pass the test?

food security to an individual is laudable in objective.but it should not be charity and paternalistic,impeding the liberty of contract and dignity of an individual,of impeding the increasing the division of labor and labor productivity and free labor market and wages.It should not hinder the free movement of labor and conversion of labor as capital consumption instead of revenue consumption i.e. increase the capitalistic/corporate relations in agriculture and other backward sectors or increase the wage burden on employers of such labor that will stultify the competitive edge of the said employments.Food security bill without the land reforms in the direction of separation of landownership from possession and management as outlined by me in the "issues for national consensus"( will prove to be currupt populist measure pulling back the economy in opposite directions to the economic reforms initiated in 1991 policy frame misfitting the Indian economy to globalization of division of labor and employment which is the need of the hour. Therefore a review of food security bill is necessary before it is hastily enacted in parliament .

A comment on 51% ownership controlled and managed foreign direct investment in multi brand retail sale is necesary.Purely economic and commercial trade in retail outlets perse is beneficial to Indian economy as proved to be with east india company.  Experience has  also shown that  the country's legal system should be  best fitted with controlling strong-arm market and political manipulative strategies of  such centralized globally- armed supply chain firms with capacity to price discrimination to decimate the local market competition with equal power of enforcing law and  criminal penalties against them through an efficient speedy and independent judiciary
Lesson from Experience with east India company, its origin, rise and fall ,its conversion from trading corporation to political sovereign corporation is apt one to prevent the trader/business corporate interests to combine with political power like Clive, Hastings,chides and crony capitalist class developing in many developing nations and notably in India is as much a threat to Indian democracy and rule of law from inside as is foreign trading corporations outside and a legislation barring corporate interests and the politicians having corporate interests from eligibility to any office of legislative, executive or judicial posts.Legislation in that direction is necessary while welcoming the FDIC without cap.

Eternal vigilance of citizens  is the price of freedom and  democracy from such  corrupt people,not mere legislation. 

Follow Mr S. Lakshma Reddy, Advocate, A.P. High Court at

NEED FOR REFORMS IN IPR LAWS IN INDIA by Sarvesh Shahi, LL.M.1st year, NALSAR University Of Law

“Until the 19th century, intellectual property rights were protected by common law — contract law. At first it appears to be a good idea to codify common law into statutory law, but if you look at IPR law, it only creates arbitrary definitions and confusion. That’s what you get when you move away from principle, morals and common law, to explicit legislation.”

What Is IPR ?
Intellectual property rights are legal rights, which result from intellectual activity in the industrial, scientific, literary and artistic fields. These rights give statutory expression to the moral and economic rights of creators in their creations. Intellectual property rights safeguard creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use made of those productions. These rights also promote creativity and the dissemination and application of its results and encourage fair-trading, which contributes to economic and social development.
In the year 1883 Paris Convention for protection of industrial property came into existence. This was the first internationally recognized agreement for cooperation among nations for the protection of  intellectual property where 140 states signed to implement its provisions. The Paris Convention bears the concept of union. This meant that a national of any country of union enjoyed the protection of industrial property in all other countries of the union, to the extent of advantages of the laws granted to its own nationals. India was not its member but after signing the Trade Related Aspects Of Intellectual Property Rights (TRIPS), is now obliged to recognize and implement the provision to national treatment to nationals of other members which was the concept of paris convention.

The Paris Convention dealt with Patents, Trademarks, Designs and Utility Models but did not deal with copyright. The first international convention addressing copyright was “The Berne Convention of 1886”, to which India is one of the members, among 120 states.

During 1980s, multi-national corporations and international agencies started emphasizing to include intellectual property as a subject of discussion at General Agreements On Tarrifs And Trade (GATT), as the developed countries were curious to get statutory protection for their patents, trademarks and designs, which were largely being infringed by developing countries.

In the absence of global legal provisions, each country either followed its own statute or had no statute at hand. After the sustained efforts of universal IP law, the developed countries in the year 1986 could get some relief, when the Uruguay round of negotiations concluded with the signing of the ‘Final Act’.

Types Of IPR
In general there are three types of rights available to the intellectual and creative persons, they are :