Dilemma in Defining the Conceptual Framework of Mergers and Acquisitions in India: An Analysis

--Mangala Hiwarale

Interdependency and need for growth have encouraged Indian business entities to opt for an easy tool of development. Mergers and Acquisitions (M&As) are one of those simplified modes inserted in the Companies Act, 1956. Though the piece of legislation on this subject has been amended from time to time and more significance has been attached to this scheme, the courts have always been flooded with lawsuits. Moreover, the scheme of restructuring has gained tremendous significance in this competitive environment. The Companies Act, 2013 has elaborated the legal aspects of the scheme. In spite of specific provisions of M&As and its significance, there is no conceptual clarity on these transactions in any legal literature. The concepts are technical in nature and vary with the transactions. Most of these terms lack statutory definitions. While these terms express identical understanding of the transactions, each varies from another. Thus, these concepts need to be explained and understood before any analysis of the legal framework regulating M&As in India. The activities of mergers start from restructuring of share capital to the closing down of the industries. It is essential to understand the meaning, scope and application of these terms. Therefore, this paper analyzes the various terms with reference to M&A activities in the light of literature and judicial opinion, besides examining the dilemma in the conceptual framework of M&As in the Indian legal context.

© 2016 IUP. All Rights Reserved.

Corporate Social Responsibility: Responsibility or Obligation?

--K Sita Manikyam

In recent years, Corporate Social Responsibility (CSR) has gained growing recognition as a new and emerging form of governance in business. It is already established in the global context with international reference standards set by the United Nations, Organization for Economic Cooperation and Development (OECD) guidelines and International Labor Organization (ILO) conventions. In India, considering the significance of CSR, Section 135 of the Companies Act, 2013 was specifically enacted to deal with CSR. But CSR in Companies Act, 2013 is not clear on the following aspects: firstly, it deals with the establishment of the Corporate Social Responsibility Committee and its responsibilities and functions, whereas it does not adequately define the parameters for working of this committee for proper regulation of the CSR. Secondly, it does not clarify as regards the accountability of the money deposited by the companies. Thirdly, the mandatory obligation has been covered under the policy of ‘comply or explain,’ which may prove to be one of the ways of avoiding CSR by business entities. The objective of this paper is to discuss the above-mentioned aspects.

© 2016 IUP. All Rights Reserved.

Prevention of Sexual Harassment at Workplace: An Analysis of Recent Legislative Initiatives in India

--M Sanjeeva Rao

Sexual harassment is any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his or her work performance, or undermines his or her sense of personal dignity. Sexual harassment includes such unwelcome sexually-determined behavior (whether directly or by implication) as physical contact and advances, a demand or request for sexual favors, sexually-colored remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work (whether she is drawing salary, honorarium or voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment at the workplace. An act of sexual harassment is a violation of the right to privacy of a woman, and therefore of the right to personal liberty and life under Article 21 of the Constitution of India. This paper analyzes the recent legislative initiatives in India in preventing sexual harassment at workplace.

© 2016 IUP All Rights Reserved.

The Human Rights Act, 1993: A Cratological Critique

--Irfan Rasool

The last 25 years have witnessed the emergence of a new human right actor, the National Institution for the Promotion and Protection of Human Rights—a brainchild of the Conference held in Paris in 1991—an independent body to look into the specific purpose of protecting and expanding human rights. The intention was to adopt a variety of functions for the protection and promotion of human rights depending on the domestic context. Accordingly the National Commission on Human Rights was established in India under the Human Rights Act, 1993. The said Act provided for the composition, functions and powers of the Commission. Against this backdrop, the paper makes an attempt to cratologically analyze the provisions of the Human Rights Act in the light of the controlling Constitution.

© 2016 IUP. All Rights Reserved.

Non-State Actors and Applicable Laws During Non-International Armed Conflicts: A Legal Dilemma

--Anita Yadav

It is an undeniable fact that the nature of warfare is changing. The methods and weapons employed by the belligerents, the goals of the fighters and the nature of the parties involved in wars are quite different from the ‘classical’ warfare that took place in Europe and elsewhere.1 Today, non-international armed conflicts have become more frequent, not only because technological progress has made it easier for groups of individuals to have access to weaponry but also on account of increasing tension, whether ideological, inter-ethnic or economic; as a consequence the international community can no longer turn a blind eye to the legal regime of such conflicts.2 Further, involvement of the non-state entities in the non-international armed conflict challenges the distinction between international and non-international armed conflicts. It is precisely these circumstances that create a problem for application of the International Humanitarian Law (IHL) principles in the situation of non-international armed conflicts. Today, the legal status of Non-State Actors (NSAs) constitutes a major problem of the law of non-international armed conflicts, the reason being that the law regulating non-international armed conflicts is vague and ambiguous. Therefore, this study is helpful in contributing and filling the gaps that exist in imposing and fixing the responsibility on NSAs for the violation of human rights in non-international armed conflicts situation.

© 2016 IUP. All Rights Reserved.