Vicariously liability is a form of a secondary liability which mean the liability of a person is with respect to act or omission of someone else working under his instructions. This form of liability binds the owner for the acts of the servant done in course of employment . Vicarious liability is seen as a part of the tort law which is civil law other than contracts.

Vicarious liability has been developed as a result of the evolution of law over the years with the help of judgements passed by the courts. Vicarious liability took birth as it was seen that the servant, who committed the wrong was mostly of a weaker financial background and was not in a position to pay the  plaintiff damages for the same. This way, the whole purpose of compensation was defeated, as a result the superior, under the instructions of whom the servant was performing duties was help liable and made to pay for the servants wrong acts.

There are two doctrines that lay down the essentials for establishing vicarious liability .The vicarious liability over a person is firstly  decided by the doctrine of  “respondeat superior” which means that a superior is responsible for the acts and work of his subordinate done under is instructions or authority of such superior. The essential function of this doctrine is that it states for the existence of a superior-subordinate relationship between the person who has done the wrong and the person who is being held liable for the same. These relations can be of a master-servant or fiduciary relationships like that of all the partners of a firm to the acts of each other or that of a principle and his agent.

The other legal doctrine applicable is “qui facit per alium facit per se”  meaning he who acts through another is deemed to have acted himself. This establishes a need for a wrong done by a servant , partners or others to be in the course of employment i.e. In discharging the duties that are a part of the terms of his employment. Any act outside the course of employment therefore cannot hold the master liable under the ambit of vicarious liability.

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Contract law in India is governed by the Indian Contract Act, 1872(ICA) a law developed in the British Era of the Indian state. The law was formulated by the Third Law Commission set up in 1861 under Sir John Romilly. The laws being created and crafted by the British were based on the principles of English common law.

We enter into many agreements on a daily basis that may be implied or explicit. However, certain agreements that fulfill the requirement to be termed as contracts instead of mere agreements. These requirements are the essentials of a valid contract that as and when fulfilled makes a contract and binds the parties involved to the same.

The first essential of a valid contract is proposal. Section 2 (a) of the ICA refers to a proposal as “When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal”. However all such attempts in order for gaining assent cannot be seen as a proposal. The exception to this is invitation to treat, this is when a person with an intention to reach a contract does not propose, however gives an invitation for a proposal. For example, goods displayed at a showroom are a mere invitation to treat and it is the willing buyer who by carrying such an item to the counter makes a proposal.

The second essential is for the parties to reach an agreement based on the proposal. Agreement in terms of Indian law is called a promise.  Section 2 (b) of the ICA defines a promise as “ When a person to whom the proposal is made, signifies his assent thereto, the proposal is said to be accepted. A proposal, when a accepted, becomes a promise” . This essential of a contract is fulfilled as a direct consequence of the party to whom the proposal was made accepting the same unconditionally.

The third essential is the presence of a valid consideration in real form, recognised by the law as reciprocal benefits to both parties of a contract for fulfilling their obligations under a contract. Consideration is defined in Section 2 (d) of the ICA as “  When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise” .

The last and one of the most essential is the intention to create legal relationship any agreement is only a contract if it is enforceable by the law. This issue deals with the issue of enforceability of a contract. Under this any social agreement in order to do something or anything entered without the intention for it to result in a legal relationship is not a contract. For example, a promise to meet with a friend for a movie is not a contract as it is a social agreement and too trivial for the law to adjudicate over.

Hence when all the above mentioned conditions are fulfilled, it results in a valid contract binding both the parties to their obligations in accordance to it.

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The cyber space has been the greatest example of the human advancement with all the world, services and products available on the world wide web. With all transactions and money flows hugely shifting towards this virtual existence, it has also provided as a breeding ground for frauds, cheating and offences.  The legal issues that are faced in cyber space can broadly be divided into  types are as follows:

            Domain Name Issues

• Typo squatting –this is a practice in cyber space that feeds on the typographic errors of an intending user while searching the domain name of a site. Here a person registers a domain name similar to that of a site with high cyber traffic with minor typo error. These sites are filled with links to paid advertisements that generate revenue for the typosquatter and most of the times, the web surfer tricks or deceive you into believing that you are on the correct site. This diverts traffic away from the intended site and many a times they are routed to a competitor’s site or a pornographic site.
• Cybersquatting – this is when someone has registered a domain name, in bad faith, that is violating the rights of the trademark owner. They usually intend to extort payment from the trademark owner, and keeping  the names to sell later to the highest bidder.
• Pagejacking- Pagejacking is when an offender copies parts of an already existing website, and then puts it up on a different website to make it look like the original. Pagejacking is used in phishing schemes.The Uniform Domain Name Dispute Resolution Policy (UDRP) is a cost-effective and faster alternative to a lawsuit, when there is a domain name dispute that needs to be resolved. This was set up by the Internet Corporation for Assigned Names and Numbers (ICANN), the group responsible for domain name registration.

   

SPAM  
An E-mail has to  move across many lines to reach its final destination. Thus the E-mail is not absolutely protected from hackers who wish to know the contents of the e-mail. Here are some other issues to keep in mind when sending e-mail:
E-mailing in General – Aside from hackers, government agents may access your e-mail. If a government agent has a valid warrant, the Internet Service Provider must release the e-mails to the agent.
E-mail from Work – An employee does not have a reasonable expectation of privacy in his e-mail when at work on the employer’s time and using the employer’s office equipment. At a work place, all official mails sent from the server of the firm or corporation are reserved for the assessment or approval of the administrator

The cyber space is as dangerous an arena as it is attractive, The data that is in the web may be safe from any physical damage but the threat of a virtual invasion still persists, keeping these issues in mind, we need to tread safer on even the virtual terrains.

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Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights to make use of it and provide him the exclusive right to distribution of his copy right material. Also, these rights provided with respect to the claim are for a limited time only so as to enable the original creator of the work who hold the copy right to receive compensation i.e. to earn from his intellectual work.  These works can be works of art like paintings, pictures books or technological like websites and aims to safeguard the works of the original creator of the product or idea from cheating of plagiarism. The exclusive rights are, however, not absolute and do not give the creator total control of their works as these creators  are limited by limitations and exceptions to and as given by the  copyright law.

Copyright is a form of intellectual property, applicable to any expressed representation of a creative work. It can often be shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and “moral rights” such as attribution.

In order to make a successful copy right claim over a creation, there are three essentials that need to be fulfilled in this direction, which are:

1. Fixation- Any idea or creation against which a copy right claim is filed must be locked in a permanent state. This is because the law aims to be precise and definite in its consideration of claims and any vaguely worded idea would not be recognised by the court for awarding a successful claim as against it. For example, to claim copy rights over a song,the song must be present in a permanent for which means it must be either recorded in a tape or CD(virtual presence) or written, a live performance therefore cannot be protected.
2. Expression- Expression is complementary to the fixation. This essential is to establish that mere ideas can not be copyrighted but an idea’s “expression” can be copyrighted. For example, the idea of a movie of a swanky British super spy agent can not copyrighted but James Bonds films i.e. the expression of the idea can.
3. Originality- The creative work so put forth for a copyright claim must be original and must meet a basic level of originality . A copy directly of someone else’s work can’t be copyrighted and neither can facts   ,short phrases or titles .

With all three essentials as stated above fulfilled,a claim over such an original work of creativity can be made into a copy right providing the creator with exclusive access to his idea.

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Nuisance is derived from nuire which is a French word and means “to do hurt” or “to annoy”. Nuisance is an offence under the English common law and is seen as a part of tort law. Nuisance is a direct result of the law recognising the right of a person for unlimited enjoyment of his land within the ambit of law. Nuisance is anything done to annoyance or the hurt of lands, hereditaments or tenements of another which does not amount to trespass. It is the unwarranted, unreasonable or unlawful use of ones property in a manner which substantially interferes with the use of or enjoyment of another individual’s property without actually physically interfering or entering it. Blackstone described nocum entum(nuisance) as “worketh hurt, inconvenience or damage”

Nuisance based on the people such an act or interference effects is divided into two. When a nuisance is caused to a large number of people seen to be a nuisance to the public at large, it is seen as public nuisance and when the effects of an act of nuisance is limited to an individual or a group, it is called private nuisance.

Public nuisance is an act, omission  or interference which causes any injury, annoyance or danger to the public at large or people in general who live or own property in the vicinity or suffer direct injury as a result of the act. A public nuisance covers a wide range or minor crimes or offences that threaten safety, comfort, health, morals or welfare of a community. Public nuisance which is an offence against an economical regime of state or public order, affect all equally and therefore for such an offence, there can be only one indictment, this is in order to prevent a person from receiving millions of suits for one act.
Private nuisance is a civil wrong and it is directly using or explicitly authorising the use of one’s property so as to adversely affect an owner of property by physically injuring his property or by materially interfering with his  comfort, health or convenience.

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The reputation of a man is an invaluable asset to him and every man has the right to preserve his repution inviolate. By reputation is meant, the opinion held by the world in general. The right of reputation is jus in rem i.e. right that a person holds against the entire world. A man’s reputation is his property and a person’s right over it is seen as an inherent personal right. It is the wrong of defamation that protects the reputation and protects against the wrong. The law existing on defamation imposes reasonable restriction on the fundamental freedom of speech and expression as given by Article 19(1) (a) of the Constitution of India and saved by clause (2) of Article 19.

A defamatory statement is “a statement calculated to expose a person to hatred, contempt or ridicule or to injure him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in society”. In order to maintain a claim or suit for defamation there must have been injuries suffered by the plaintiff as a result of such an act or statement hurting or degrading his position in society.

English law recognises two forms or types of defamation that is, defamation can be done by a written document called Libel or by the way of speech for utterances i.e. spoken defamation called Slander.

A libel is a false publication or a defamatory statement in a form that is permanent that is of a nature which tends to injure the reputation of another person on false basis, without lawful justification or excuse. The essentials of a libel are that the statement must be false, in writing , defamatory and published.

A slander is a defamatory statement made by the way of speech that tends to injure the reputation of another without lawful justification or rational excuse. For a verbal statement to be considered as defamatory, the essentials that need to be fulfilled are that the words compiled must be false, defamatory , published and that special damage arose as a direct result of it.

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The most recent development in law that has stirred the social and political situation in the country is the striking down of Section 66A of the Information Technology Act by the Supreme Court of India, declaring it unconstitutional. The controversial provision made posting offensive content or material on or through the world wide web a offence punishable with up to three years in jail.

This section had been widely misused  by political powers to assert their influence with police in various states arresting innocent people for posting comments on the social network that were critical to either social and political issues or political leaders. The law therefore has been used in a number of instances to crack down on those who posted critical or divergent political views.

The court assessing the issue said that the law hit the root of two cardinal pillars of democracy, liberty and freedom of expression.  The court called the law vaguely worded and further added that the law went much beyond the reasonable restrictions put by the constitution of India on the freedom of speech as provided for in Article 19 of the constitution.

The IT Act, the containing document of this law was passed in 2000 but it was in the year 2008 that the amendment was made to the act and section 66A was added to it. The purpose given for the addition for section 66A was to punish for sending offensive messages in order to prevent a communal situation in the country.

Section 66A reads:

According to the act, any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
“Electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

It was petitioners from NGO’s, civil rights groups and a law student who filed for the quashing section 66A as it violates the basic right to freedom of expression. That was how the law could be struck down and the voices of dissent were no more suppressed by influence of political power.

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Over the years the method of appointment of judges to the Supreme and High Courts has undergone changes and modifications with respect to the circumstances and the needs of the time. The Indian constitution originally allows the President to appoint judges after “consultation with the Chief Justice of India and any other Supreme Court and High Court judges that the President may deem necessary” .

It was in 1970s under the unwarranted super cessions and punitive transfers of judges by the Indra Gandhi government that the need for an autonomous system for judicial appointments was realized. As a result in 1993  Supreme Court Advocates-on-Record Association Vs Union of India   in order to eliminate political influence set up the collegium system which gave the power back to the Chief Justice in decisions of appointment of new judges in consultation with senior judges of the Supreme and High Courts. In its existence, the collegium system started to be seen as a closed door process where appointments were being made on basis other than merit and this called for a change in the procedure for appointments of judges of the superior courts of the country. As a result a new commission found its birth.

Two new bills have been passed by the Indian legislature which seeks to modify the method in which Supreme Court and high court judges are appointed. These two bills the National Judicial Appointments Commission Act, 2014 and the 121^st Constitutional Amendment provide for the setting up of the National Judicial Appointments Commission and empowers it to recommend names for appointment of judges to the Supreme and High Courts to the President of India. These bills became laws when they gained the assent of the President of India on 31^st December,2014.

The new body set up for judicial appointments comprises of the Chief Justice of India (ex –officio Chairman) ,two senior most judges of the Supreme Court ,the Law minister and two eminent persons  one of whom must belong to the category of Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women who are to be decided by a committee comprising of the Chief Justice of India, the Prime Minister and the leader of the opposition party  in the lower house of the parliament. This composition indicates towards the inclusion of the executive in the selection process with the law minister and the two eminent persons ,the fields of their eminence still undefined becoming an integral part of the process.

The NJAC takes away the powers from the Chief Justice in the selection process as he does not have a casting vote in case of a tie and neither can the Chief Justice exercise his veto over the decisions of the commission. The veto in the commission can only be exercised when two members of the commission raise a claim against a decision. Also the mention of two eminent persons, one of whom needs to be from a defined background brings in reservation to the selection of the topmost posts in the country, a concern that has already been a great point for conflict with its existence in the educational and political arena.

The NJAC has been proposed as a method for making accountable and inclusive judicial appointments and also as an alternative to the collegium system which lacked transparency, providing for its inadequacies. However, with unjustified executive control, the Chief Justice only as a nominal head, unambiguity over the question of two eminent persons and two separate bills for one law, this commission raises concerns about political interference into judicial appointments disguised as legal procedure.

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Foreign Direct Investment (FDI) refers to the net inflows of investment expenditure towards the acquisition of a lasting management interest usually 10% or more in an institution or an enterprise with established or developed operations in a market of the economy other than that of the investor. Foreign direct investment is a transitional catalyst that initiates the conversion of an economy from a closed economy to an open market that allows for and accepts investments from foreign entities, mostly institutional investors so as for them  to have a sizable impact on the development of the economy.

After opening the doors to Indian economy in the liberalization phase, the economy grew at a steady pace but after a period of sustained growth, the graph stagnated due to limitations that were still in place obstructing the complete freedom of foreign investors in India. Further it was on the recommendation of the N K Singh Committee set up in 2002 suggesting that the limitations on FDI be continued which led to the tenth and the subsequent five year plans dropping proposed changes in the existing FDI policy .It was the UPA government in 2011 who then started the pushed towards more liberal laws by recommending and allowing 51% FDI in multi brand retail and raising the existing ceiling on single brand retail from 51 % to hundred percent.

With a shift in the leadership up top  in the Indian parliament ,the new government under the BJP regime has taken a more favorable and aggressive outlook towards development of FDI policies in India. The BJP government though has not made any changes and has stuck to the existing FDI laws in India yet has managed to make a great impact.

The laws at present in India that regulate our foreign investment policies are Foreign Exchange Management Act, 1999 (FEMA) ,  Regulations Securities and Exchange Board of India Act, 1992 ,Regulations Foreign Trade (Development and Regulation) Act, 1992, Companies Act, 1956  Indian Contract Act, 1872, Arbitration and Conciliation Act, 1996 , Civil Procedure Code, 1908 , Income Tax Act, 1961  , Competition Act, 2002. It is a combination of these laws that the foreign investment money finds its way into the Indian markets.

The recent trends have seen a more pro FDI policy by the government. In October,2014 Prime Minister Narendra Modi launched the ambitious Make In India programme which was in relation to persuade other investor outside India to invest in India and the Cabinet Committee on Economic Affairs was set up  to manage and give its approval to the foreign investments in India. This project is a step ahead in India’s investment policies as it has set the lion roaring with a 56% jump in the FDI and the CCEA in less than a year has cleared proposals worth Rs 1,827.24 crore into the country. Further, the government most recently has allowed FDI in the aviation sector and a recommendation is pending with regard to allowing 100% FDI in medical sector, these developments indicate there is surely  a great scope for FDI in India.

A more liberal view towards a greater role of foreign money in the development of our country and existing infrastructure would be instrumental in India’s progress as the world being a stakeholder in India’s success, it will not only be us but the world awaiting India’s rise.

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