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VOLUME 11 ISSUE 1
ONLINE GAMING IN INDIA: THE PREDICAMENT OF REGULATION AND TAXATION
Prof. (Dr.) Ritu Gupta and Siya Jangir
The authors are currently working as Professor of Law and student of B.A. LL.B. at National Law University, Delhi, respectively. Views stated in this paper are personal.
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India is a country with a young demographic enchanted and enticed by the digital world. Emerging within this context of increasing digitisation is the online gaming industry. Online games include real money games which may be games of skill or chance. The involvement of real money has become a cause of unease and even consternation for governments struggling to keep pace with the evolving nature of the industry. The Indian Government has also been scrambling to come up with effective models of regulation. Most recent moves include the imposition of GST at the rate of 28% and amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. This paper seeks to analyse these initiatives in terms of their structure and consequences, as well as the rationale behind their implementation. The paper begins with a general introduction to the current scenario in India followed by a section distinguishing between online gaming and gambling. There is an in-depth discussion on the social ramifications of the industry and the moral dilemma it poses. The subsequent sections explore in detail the recent measures including the latest MeitY rules and increase in the rate of GST. Lastly, the paper consists of a cross-jurisdictional view on regulating the online gaming industry to compare the characteristics of various regulatory models.
EMPLOYER AS DATA FIDUCIARY: A NEGLECTED PROTECTION OR AN EXAMPLE OF POWER IMBALANCE?
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Intisar Aslam and Garima Kiran
The authors are third-year students of B.A. LL.B. (Hons.) at National University of Study and Research in Law, Ranchi. Views stated in this paper are personal.
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The laws of labor have always gained traction- the credit goes to the debates on the long working hours and no work-life balance. This takes the clock backwards to 1817 when Robert Owen formalized the goal of the Eight-Hour Work Day. While this social movement was focused on the rights of workers, the line of variance for employees has been blurred with time. Employment contracts, an ‘act of submission’ as termed by Kahn-Freund, found their roots in the old master-servant relationship. With the prime object of labor law being to be a countervailing force to the inherent inequality of bargaining power, little did employees know that the perforation of technology in the ever-evolving industrial world would entail the protection of their data collected by these industrial establishments. Though the Indian legislative picture has been painted with the enactment of the Digital Personal Data Protection Act, 2023, the Labour Codes remain unenforced in the territory of India. Notably, the Labour Codes are rather indifferent to the protection of data of any kind. Broadly, this paper has three aims. First, the authors underscore the need for the protection of employee data and the subsequent inadequacy of the present framework to address the same. Second, we explore the employer as a significant data fiduciary while highlighting the challenges of secondment. Next, we argue that employee consent may not be free. Lastly, the authors assess the stance of India in the cross-border transfer of employee data and conclude with a beneficent rule of construction.
Praneel Panchagavi & Avani Hegde
The authors are third-year students of B.A. LL.B. (Hons.) at Symbiosis Law School, Pune. Views stated in this paper are personal.
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This paper delves into the intricate world of acquisitions involving nascent or potential competitors, highlighting the challenges faced by policymakers, regulators, and legal professionals in navigating this evolving landscape. While acknowledging concerns about dominant technology companies stifling competition through such acquisitions, the paper emphasizes the limited empirical evidence supporting the widespread occurrence of “killer acquisitions.” Key considerations explored include the inherent difficulty of predicting future market trajectories, the potential for mergers to yield both pro-competitive and anti-competitive effects, and the crucial need for a balanced approach that fosters competition while nurturing innovation. The paper critiques proposals advocating for an absolute presumption of illegality for acquisitions by dominant platforms due to insufficient evidence justifying such a drastic policy shift. Ultimately, the paper emphasizes the importance of a case-by-case approach that takes into account the specific circumstances of each acquisition, while advocating for further research and dialogue to develop a more comprehensive understanding of these complex issues.
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Mayank Gandhi
The author is a fourth-year student of B.A. LL.B. (Hons.) at Maharashtra National Law University, Nagpur. Views stated in this paper are personal.
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In India, there has been a surge in the number of new retail investors participating in the securities market. This shift in the financial landscape of the Indian economy reflects a growing preference for investing in the securities market over traditional methods of saving. One of the primary factors contributing to this inclination towards shares as an investment option is the trust instilled in the system by the Securities and Exchange Board of India (“SEBI”), which ensures fairness. In a further stride towards safeguarding fairness and investor security, SEBI has introduced a consultation paper titled “SEBI (Prohibition of Unexplained Suspicious Trading Activities in the Securities Market) Regulations, 2023.” This consultation paper includes a draft bill outlining a framework for addressing cases of insider trading based on suspicion. It seeks to increase the enforcement rate of SEBI in insider trading cases by reducing the burden of proof on SEBI. However, the proposed consultation paper does come with inherent limitations. These limitations include the absence of precise definitions, variability in materiality thresholds, and a reversal of the burden of proof onto the accused. In light of these issues, this article aims to accomplish several key objectives. Firstly, it seeks to identify the materiality threshold in India and compare it to other jurisdictions. Secondly, it examines the concept of burden-shifting and the use of circumstantial evidence in the “Prohibition of Unexplained Suspicious Trading Activities” (“PUSTA”) Regulation, in comparison to existing Indian and other international standards. Finally, it puts forward practical and viable alternatives to address the shortcomings of tackling insider trading more effectively.
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Anamika Goel and Hashvi
The authors are fourth-year students of B.A. LL.B. (Hons.) at Rajiv Gandhi National University of Law, Punjab. Views stated in this paper are personal.
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Alternative Investment Funds (AIFs) are increasingly used investment instruments all over the world. It allows the investors to invest in the assets which they cannot individually invest in. There are various models for distribution of profits and losses in such funds and one such model is the Priority Distribution (PD) Model which has been followed all over the globe. It allows the investors to flexibly invest and accordingly the profits and losses are distributed giving priority to some investors in comparison to others.Securities and Exchange Board of India (SEBI) was apprehensive of this arbitrary distribution of profits among the investors. Therefore, it banned any future investment in Alternative Investment Funds which follow the Priority Distribution Model. Recently, SEBI came up with a consultation paper proposing revisions to the regulatory framework concerning the Priority Distribution Model within the Alternative Investment Funds. The focus lies on ensuring equitable rights for all investors. The present paper seeks to analyse the above-mentioned consultation paper of SEBI and its action of banning the Priority Distribution Model.
TIME TO RETHINK SEBI’S DISGORGEMENT: AN EMPIRICAL ANALYSIS OF ITS EFFECTIVENESS
Harshit Singh and Jay Shah
The authors are fourth-year students of B.Com LL.B. (Hons.) at Gujarat National Law University, Gandhinagar. Views stated in this paper are personal.
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Disgorgement is often described as an equitable remedy that is aimed at deterring wrongdoers from unjust enrichment through their illegal conduct. SEBI, since 2003 has widely used its power to issue disgorgement orders to claw back any ill-gotten gains resulting from the violation of securities laws. This Article expounds on whether disgorgement is an ‘effective, equitable remedy’ or is just a mere façade of equity. In order to gauge its effectiveness, the Article seeks to answer two pertinent questions through empirical data- (a) Whether the disgorged amounts credited to the SEBI Investor Protection and Education Fund are being utilised for compensating the harmed investors through restitution, and (b) Whether through disgorgement, SEBI actually reverts the wrongdoer to the status quo and not a worse off position. For the first question, the authors argue that by retaining the disgorged amounts and not compensating the harmed investors, SEBI violates the fundamental principles of unjust enrichment as given under the Indian Contracts Act, of 1872. Further, the Securities Appellate Tribunal has also held that “disgorgement without restitution does not serve any purpose”. For the second question, the authors argue that the primary justification behind disgorgement is to revert the wrongdoer to the status quo and no worse, or else it shall take the colour of a penalty. However, by analysing several SEBI orders on disgorgement, the authors have found that there were no orders that gave out the fact that the wrongdoer has actually been reverted to the status quo. Moreover, in certain cases, disgorgement orders have put the wrongdoer in a worse-off position than they were before committing the act. Thus, this Article has analysed the effectiveness of disgorgement as an ‘equitable’ remedy by attempting to answer the above questions and has further suggested policy recommendations for the manner of utilisation of disgorged amounts to compensate the harmed investors.