Inculcate Academic Lawyers to Practice Law

Faculty,

Academic professors in educational institutes have mentored countless students with their knowledge and guidance. Those disciples have shaped the future of this country and brought changes in the society. The field of law has been no different. Now, why isn’t it that the same professors on whose principles these changes have been bought haven’t been allowed fully to implement their knowledge in courts and guide the judiciary and executive to make informed decisions on cases. This is clearly suboptimal use of talent in our country.

Even though there has been slight support which has been given by individuals to showcase faith in academic professors, the Indian judiciary system has majorly neglected this angle of inclusion. India has rarely nominated academic professor to international judicial and legal bodies such as ICJ of UN and the Appellate Body of WTO. Also, the current government hardly opts for law professor to serve as a full-time expert in any of the ministries. Contrary in US, numerous law professors served as judges of Supreme Court.  Additionally, many practicing lawyers teach in universities in UK. We do have acts supporting advocates to teach for limited hours but vice-a-versa engagement is very limited as full-time academic professors are not able to appear in courts.

India’s lawyers and judges have exhibited excellent intellect capabilities and flair. Renowned academics such as Shamnad Basneer, Upendra Baxi, Mrinal Satish, Aparna Chandra and Latika Sarkar have intervened or assisted in judicial matters, gripping court’s attention to take them up. The Courts deserve nothing but the best of law minds for handling complex cases and supporting judgements. History itself is a proof that there have been judgements where courts have heavily relied on academic publications and observations. This academic inclusion would also bring a fresh perspective since law as a profession is heavily intellectual and relies on interpretation, fact of laws and policy inputs. Decision makers must realize that they have to develop a system to incorporate the talent of academic lawyers to serve the nation better. Only then, the synergy among the entire legal system and academia will create euphoric system.

*Author: Chavi Sood, Assistant Professor, IILM Law School

Reference:

https://www.thehindu.com/opinion/op-ed/engaging-academic-lawyers/article65480160.ece

https://www.barandbench.com/columns/academics-law-case-facilitate-academics-practice-law

 

 

POLYAMORY

IILM University, Uncategorized

Kamna Yadav

2nd June 2022/15 Minute Read

Movies, media, and storybooks have made us believe that “mere hero/heroin ayenge!” That ONE will be our whole world. We will spend our entire life with that LOVE of our LIFE. I would say our brains have been engrained with such thoughts where monogamy is the only form of love one can and should crave, which is also “our sweet little fairytale”. I am assuming that everyone will agree with me on this. If yes, let’s take a retake!

Do you think the idea of a soulmate is outdated or unrealistic? Do you believe that you may encounter many hero/heroines in your lifetime, or maybe an idea of having many others? Have you ever cherished numerous individuals at the same time? Maybe yes, maybe no, or maybe it is the morals that are speaking for us aloud “No, I can’t have multiple hero/heroines in my life”, “what will people think about me?”, “I can’t be a bad person to be in a relationship with many”.
Polyamorous relationships are a rejection of monogamous relationships. In other words, it is defined as a “liberal, genuine, capable, and moral way of thinking and practice of cherishing numerous individuals at the same time”. Is it getting confusing? Complicated? or in literal words, “Mere pairo tale zameen khisak gai?”

This concept has been alive for many centuries. Don’t you believe me? Let’s check some facts: What does it indicate when a celebrity comes out and says we are in an open relationship, a web series named XYX on OTT platform displaying non-monogamous relationships? According to a study at Kinsey Institute for Match.com, 68% of singles approve of polyamory and 6% practice it. Another research study showed 1.2 to 2.4 million people practice polyamory (Psychology Today). An article titled “Polyamory is a reality in Kolkata” published by Times of India narrated a real-life story of a couple who are in a non-monogamous relationship wherein they are married for 15 years, wants to be in their marriage and are in relationships with many others and still respects and love each other. This shows how common it is. Let’s understand what exactly it is in next section.

WHAT IS POLYAMORY?

According to Cambridge dictionary, “it is the practice of having romantic relationships with two or more people at the same time”, polyamory educators argue that the consent part is missing which has been correctly mentioned in Oxford’s definition, “the practice of engaging in multiple romantic relationships with the agreement of all the people involved”- indicating that people are aware of and agree to the relationship’s needs, emotions, and dynamics.

Individuals who distinguish as polyamorous may have confidence in an open relationship and conscious administration of envy and reject the view that romantic and social restrictiveness is essential for profound, long-lasting intimate relationships.

These individuals like to restrict their romantic relationships to just people from the specified group, a closed-knit polyamorous relationship. It has been described as an ethical, consensual non-monogamous relationship. Many polyamorists characterize loyalty not as romantic selectiveness but rather as dependability to the guarantees and arrangements made about a relationship.

Does it have types?

Yes, it does have few types as seen from the image shared below:

Besides the above-mentioned types, there are a few other forms of polyamory relationships like solo polyamory, kitchen table polyamory, polycule.

Is it just a romantic relationship?

It depends on the individual and the sort of relationship they want with their partners. Two different people will have different experiences in polyamory relationships.

Romantic dependency isn’t a chief factor in polyamory, and individuals who seek polyamorous relationships don’t take part in the over-the-top romantic movement. Some individuals who seek polyamorous relationships set boundaries such as defining the details of the relationship, time they spent with their partner, and other things to avoid any complications that might arise. A person who is in a polyamorous relationship must come to terms with their feelings, especially jealousy, which is very common to surface. Also, the constraints of society promote monogamous or single partner relationships. In the end, it depends upon the individual what kind of relationship they want.

Does it involve emotional connection, or it is the same as an open relationship?

Polyamory relationships do involve love and emotional connection with multiple partners, which makes them stand apart from open relationships. An individual feels emotionally inclined toward someone outside marriage or committed relationships and looks out for connection, and I would say they fall in love with that significant other. In open relationships, one or both the partners have romantic relationships outside the committed relationship, including marriage. It might or might not involve an emotional connection.

LITTLE KNOW FACTS

For many of us, it’s wrong, and for many, it’s acceptable. Dr Chauntelle Tibbals, a sociologist said, “Just because polyamory is unfamiliar doesn’t mean it’s wrong”. It might work for some, let’s learn about few little know facts about polyamory.
· It is more common than you believe
It can be observed from as early as Mahabharat, wherein Draupadi married five brothers, it was observed in practices of Raja and Maharajas. It is prevalent in the Kinnaur region of Himachal, Nilgiri hills in South India, Kerala, Uttarakhand, and is followed and practised by many tribes in India. Approximately more than 1.2 to 2.4 million individuals follow polyamory.
· Polyamorous are Committed
Being polyamorous doesn’t mean no-commitment. As quoted by Dr Clarke “There are individuals who face challenges in committing in general as well as few polyamorous do face few issues but most people he knows are in multiple committed relationships”.
· Polyamorous have different dealbreakers
Poly individuals do work out their dynamics and parameters within the relationships. They can develop agreements in each relationship wherein all the parties agree and are comfortable. The meaning of cheating would differ in different relationships.
· Consent and Communication are important
As it is crucial in a monogamous relationship, so does in a polygamous relationship. It is rooted in affirmative consent, and they communicate their needs and desires to make it a healthy relationship.

AM, I JUDGING POLYAMORIES?

Polyamory is a genuine expression of love towards your hero/heroines. It sounds as confusing and complicated as monogamous relationships. Every relationship has its own perks and volcanoes.

Let’s be mindful of being who we are. Polygamous or Monogamous?? Who are we?? We are human beings who, at times or I would say most of the time judge ourselves and others. The majority of individuals imagine polyamories as bad or indifferent. Ask yourself right away the following questions: What do I think about them? Do they really exist in our society? Are they committing a crime?

Over here, I would like to ask you whether we are projecting our feelings, understanding of love, and relationships on them? If yes, I would suggest you kindly do not end up projecting your understanding and feelings onto them. Is it fair enough if someone else does the same with you? What if they judge you for who you are? I suppose that we would feel bad and would not like it at all. Therefore, I request every one to be mindful of your thoughts regarding others. Accept them the way they are MONOGAMOUS or POLYGAMOUS. It doesn’t matter who we are, what matters is LOVE and CONNECTION with significant others.

Feel free and connect on kamna.yadav@iilm.edu

THE RELATION BETWEEN INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW

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International humanitarian law and international human rights law are part of International law. International law is the law which governs the relations of states inter-se, with international bodies, and to some extent with citizens, as stated by Oppenheim. Since the two are the branches of International law, they are by some, confused as the same thing and by some others, are regarded as so distinct as having no connection. Both of these two extreme notions cannot be regarded as true. International humanitarian law (IHL) and international human rights law (IHRL) are different from each other in their definition, development, the scope of application and implementation. On the one hand, IHRL is a series of rights, and on the other hand, IHRL is a series of duties that combatants have to obey. This distinction, however, does not mean that they function in a four-cornered wall without getting influenced by each other.
International humanitarian law is a set of rules which seek to limit the effects of armed conflict. Generally, it applies to the time of armed conflicts. International humanitarian law does not see to stop or prohibit war, but it sets out rules to regulate the war and mitigate the sufferings of the war victims and others involved. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. It is also known as the law of war or the law of armed conflict. International human rights law is the body of international law designed to promote human rights on social, regional, and domestic levels. They also differ in their scope, international humanitarian law primarily mentions the agreements between states on how to conduct war, and on the protection of enemy civilians and combatants. On the other hand, international human rights law extends to the agreements between states regulating the relationship between each state and the individuals over whom it has jurisdiction. IHL applies primarily in times of armed conflict. The application and scope of IHL is so strict that the state parties can in no circumstance derogate from the provisions of it, nor do they have the right of reservations under IHL. IHRL, on the other hand, applies at all times, i.e. in peacetime and during armed conflict. Human rights treaties permit governments to derogate from certain obligations during public emergencies that threaten the life of the nation. Derogation must, however, be necessary and proportional to the crisis, must not be introduced on a discriminatory basis and must not contravene other rules of international law – including provisions of IHL. However, few of the international human rights principles which have acquired the status of Jus Cogens like the right to life, the prohibition against torture or cruel, inhuman or degrading treatment or punishment, the prohibition against slavery and servitude and the prohibition against retroactive criminal laws, can never be derogated.
Despite a number of differences between IHL and IHRL, they are complementary bodies of international law that share some of the same aims. Both IHL and IHRL strive to protect the lives, health and dignity of individuals; thus, they may be very different in formulation, but in essence, they seek to work towards a common goal. Many of the rules of these two bodies of law are similar, for example, both IHL and IHRL prohibit torture or cruel treatment, prescribe basic rights for persons subject to the criminal process, prohibit discrimination, contain provisions for the protection of women and children, and regulate aspects of the right to food and health. The main objective with which the UN was established was to promote humanity. Thus the main aim of IHRL is to foster the principle of humanity, aimed at protecting human life and dignity. Similarly, IHL also seeks to protect the principle of humanity which is aimed at protecting human life and dignity.
IHRL and IHL are different in their language, scope, development, application and implementation. But both are complementary to each other and cannot function in complete isolation to each other. Human rights are the same in international and non-international armed conflicts and outside armed conflicts. We cannot in any sense dissect the two branches so much that we tend to identify them moving in opposite directions. A number of similarities between these two different branches of international law complement each other, and both of these branches are continuously influencing each other. One cannot understand a particular branch in isolation from the other. Since the two carry similar rights and similar provisions, interpretation of provisions of one branch has to be done in light of the provisions of the other branch.






Redefining Business in a “sustainable” world.

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Business Ethics Blogpost

-Kolyaani Gupta

Liberal Economic policies have led to the emergence of a new aspect of business organizations and corporations. With the advent of globalization, business organizations have moved from the constraints of geographical boundaries, whereby they are not affected by the legal constraints of a particular country. This makes it easy for corporations to fidget with the aspect of accountability. A business setup is a key element in generating employment, paying taxes and acting as an engine for a country’s economic development, which means that business cannot be limited to be defined as only an exchange of transactions. Business ethics is defined as the study of business and its key features to assess the moral standing of these features, wherein ethical theories are applied to evaluate and weigh the right and wrong. This enables to generate an optimal relation between the business and sustainability (Crane & Matten, 2016)

The infamous incident at Rana Plaza,[1] located in a small town in Bangladesh, where approximately a thousand workers died due to the building crumbling down in 2013. A fast fashion company owned the building and in spite of being declared unfit for habitation, the workers were forced to come. A utilitarian (Mill, 1998; Ryan, 1990) business approach would actually justify the means if the end served the greater good. This theory would actually look at the greater good of generating maximum output, thus, increasing their chance to generate maximum output. The means to reach that potential of generating the highest profit could be justified by the end as it secures the happiness for the greater good. However, Kantian Ethics (Guyer, 2007), also known as deontological ethics, characterizes duty as a categorical imperative rather than a hypothetical one, and the Kantian ethical theory would condemn the Rana Plaza incident as a violation of the cardinal imperative of duty, thereby deeming it to be completely unethical.

Business organizations are obligated to the consumers for the transparency of transactions; however, the obligations are not only restricted to the consumers. Corporations and organizations have a duty towards their workers and members. Triple Bottom Line is a concept that states that businesses and organizations cannot solely focus on only adding economic value (Elkington, 1999). They have to uphold social and environmental values as well, thereby building an ecosystem of sustainable growth and development

[1] http://www.ethicalcorp.com

Redefining Secularism: Diversity or Uniformity of Religions?

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The Preamble of the Indian Constitution reads, “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all …”. One of the principal pillars of Indian democracy is the character of secularism which it beholds. “Secular” means which has no religious basis or is separate from religion, and a secular person is the one who does not owe his moral values to any religion. An individual’s values are primarily product of his rational and scientific thinking. The key features of secularism embody within itself the equal respect and recognition of all religions by the State, no official religion in India, an individual has the right to profess, propagate and practise any religion, and no discrimination by the State on the basis of religion. In other words, secularism means segregating the religion from political, socio- economic, and cultural aspects of life.


With the rise in judicial activism and the enforcement of fundamental rights through the High Court and Supreme Court, the question of defining secularism strikes one’s mind. The recent Hijab Ban Judgement by Karnataka High Court, wherein the honourable High Court upheld the Karnataka Government order to ban wearing hijab in the educational institutions. While quoting the difference between ‘Freedom of Conscience’ and ‘Religious Expression’, the three judges Bench at the High Court explained that while conscience is an internal belief, religious expression is an outward expression of this belief. The Court also upheld that wearing the hijab is not an essential religious practice and therefore does not fall within the umbrella of protection under Article 25 of the Constitution of India, 1950. However, the hijab ban judgement has been criticised on various grounds. Post this judgement there have been noticeable pleas in the Supreme Court to declare the acceptance and adherence of a uniform dress code for schools and educational institutions. And these extended pleas raised in light of such judgments definitely raise an alarming question that needs to be answered; one of them is defining what secularism is. Is it the acceptance of all religions and living in coherence with other religious diversities, or is it to bring uniformity amongst all religions and practices.


Uniformity and diversity are two different terminologies wherein uniformity means “sameness”, or “absence of diversity”, whereas diversity means, “state of difference or variety”, or “noticeable heterogeneity as opposed to homogeneity”. Uniformity of religions, as opposed to diversity of religions, makes one question the concept of secularism. The concerning issue that can exist in the aims of religious education is to cast a fine line of demarcation between the desire to encourage open‐minded, critical thinking through exposure to diverse traditions, ideas and cultures, into uniformity wherein the learners take on the values of a particular tradition, culture or ideology (say of religion, family or school). Religious uniformity is usually seen where the government promotes one State’s religion, denomination, or philosophy to exclude all other religious beliefs. Religious uniformity was common in many modern theocratic and atheistic governments. But, one can always question this by stating that secularism means that the State does not prioritise any one religion over the exclusion of others, especially in a diverse culture. All institutions rather have regard for all religions, by recognising and accepting all religious diversities and respecting pluralism.


It is definitely a debatable question that is to be pondered upon. Defining secularism will certainly involve judicial interventions, and research by scholars and academicians, while considering secularism as the cardinal principle of the Indian Democracy.


The Age of Blended Learning: Bringing Philosophy down from the Heavens

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Socrates contended that a good instructional methodology must necessarily focus on two things: students as the core of the educational enterprise and the purpose of education as wisdom. In conjunction with this, real classroom teaching consists not of one-way traffic of ideas but a mutual dialogue between the ones imparting education and the others receiving it. Similarly, real education does not translate into telling the students what to think but rather training them to think. In contemporary times, we are at a marvellous interaction between the digital and the physical in the realm of education: Face-to-face classroom activities can easily be supplemented with technological tools to aid learning these days. As per the latest UGC guidelines on Blended Learning, classroom teaching has to be maintained alongside “computer mediated activities to deliver instruction.”

The onset of the Covid-19 Pandemic mandated a sudden and involuntary shift to digital teaching and learning methods. With the gradual shift back to the ways of life before the pandemic, offline teaching too has been resumed on campuses across India. Perhaps this is a perfect opportunity to blend the online mode with the offline methods of teaching and the digital with the physical sources of knowledge. Ideally, for blended learning to provide the best outcomes, both the mentor and the mentee should share the same physical classroom space. Fortunately, the current scenario has made that possible. At IILM University, Gurugram, the various modules taught in the numerous programs across the University seek to actualise the aforementioned concept of Blended Learning. Textbooks and articles shared with students as part of course work are further complemented with guest sessions, movie screenings, debates, panel discussions, and other interactive and experiential activities. Moreover, learning resources such as video links, recordings or podcasts can be shared with the student before the actual class giving the students a chance to be aware of what is due for discussion in the classroom. It further motivates them to interact and share their understanding of a topic in the class, thereby making the whole activity multiple times more fruitful.

Any pedagogy that seeks to limit the possibilities of learning must immediately be replaced with a more inclusive and open-ended approach to education. This would mean letting the students bring in their subjective understanding of theories and concepts discussed in the classroom. Once we extend real ideological accommodation to all students, learning is no longer limited to the written word; it stretches way beyond that into learning real-life experiences that help make textbook knowledge more applicable. The New Educational Policy has taken a substantial step in placing the student at the core of all educational activities. It has brought in the recognition that the students are the primary stakeholders in this system and, therefore, all policies should necessarily be more student-centric. Students feel a greater degree of inclusion when they are made to feel comfortable with newer methods of learning. The era of rote-learning and feeding readymade answers is fortunately behind us. The new classroom has seeped into all the available modes of knowledge, ranging from books to journals to cinema to theatre and what not! Therefore, a student now has the excellent opportunity not to try and catch philosophy from thin air but apply the written word into her/his own life, understand it on a more personal level, and become more aware of the real purpose of education.

Developing an Entrepreneurial mindset

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The world is thriving on innovation. Consumer needs are evolving like never before. We are witnessing an unprecedented rate of technological transformation driven by cognitive computing, artificial intelligence, and big data, leading to a plethora of innovative products and services. Solution orientation and problem-solving abilities are the key skills that organizations consider crucial to succeed. The development of an entrepreneurial mindset is one such approach that can help organizations to inculcate an entrepreneurial spirit among employees and create growth opportunities.

Having an entrepreneurial mindset encompasses a set of beliefs and perspectives that leads to the identification of opportunities and solutions to the problems faced by the world. It is a solution-oriented approach to view the world focused on developing innovative and efficient solutions that generate value for society. Curiosity, creative problem solving, originality, and decisiveness are the key abilities that help build a mindset that enables entrepreneurs to approach events, situations, and problems by identifying opportunities and generating value. Adopting an entrepreneurial mindset leads to the development of resilience, persistence, and problem-solving abilities that help foresee potential problems and convert them into opportunities. It instills the intent to think outside the box for creative solutions, experiment, and take risks. One can develop an entrepreneurial mindset by inculcating the following skills.

Creative problem solving

It is a way of problem-solving that encourages novel perspectives and innovative solutions. It is adopted when the conventional way of problem-solving does not yield effective solutions. It is more than brainstorming and involves a systematic approach for problem definition, creative idea generation, and implementation. It is an indispensable skill for developing an entrepreneurial mindset that can help identify undiscovered opportunities and solutions.

Solution orientation

It is a way of looking at any given situation in terms of not only problems but also relevant solutions. Solution-oriented people are proactive and driven to generate a solution rather than waiting for its discovery. Critical thinking and feedback are integral parts of the process. The focus is on the actionable steps that would lead to accomplishing the end goal.

Vision

A roadmap for the future is essential to direct the efforts in the desired direction. An entrepreneur’s vision enables them to align their activities and decisions with their goals and objectives. It helps to make a choice when faced with alternative pathways in order to serve the purpose defined in the vision.

Risk handling

An ability to deal with uncertainty and risk is one of the key skills which can be inculcated to develop an entrepreneurial mindset. Creative and innovative solutions have an inherent risk in terms of implementation and performance. An appetite for taking and managing the associated risks is essential for the development of innovative solutions.

Collaboration and team skills

Teams play an important role in problem-solving and brainstorming. An understanding of various team functions and group dynamics is necessary to handle the associated group dynamics. Working together in teams requires skills such as effective communication, empathy, leadership, and critical thinking.

Adaptability

The business and technological landscape is fast evolving. An entrepreneurial approach toward problem-solving requires a dynamic outlook toward the changing context and the associated issues. An ability to identify the current and future prospects and challenges in relation to a solution is crucial for its successful implementation. An entrepreneurial mindset encourages a flexible approach toward problem-solving, taking into account the evolving nature of the business environment.

An entrepreneurial mindset is an essential capability that can be inculcated in order to effectively handle the challenges of the current times. Such a mindset is essential for a shift towards a more solution-oriented culture in organizations.

 

 

Impact of Covid-19 Pandemic on Commercial Dispute Resolution: A Global Perspective

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Recently the International Bar Association has demarcated the changing practice that has been introduced in commercial dispute resolution due to the outbreak of the Covid-19 pandemic. It has reflected on the study of substantive and temporary laws as well as its regulations, which have been incorporated during this pandemic across twenty-three nations. The study shows how developing and developed nations have welcomed or have come across different forms of challenges while practicing the “new normal” approach by using technology.

It is to be noted that the United Nations Commission on International Trade Law has highlighted the concept of ODR. Under this emphasis has been made on the practice of resolving disputes by using electronic communications and using other information as well as communication technology. Interestingly in 2021 and 2020, this Commission has reflected on the use of dispute resolution while using the digital economy for practicing their future programs. To have a check on conducting litigation guidelines have been issued. It has been observed that arbitral institutions have played a significant role in this pandemic as they have issued guidelines on the way the arbitral proceedings should take place. For instance, it has elaborated on how online arbitral hearings can take place. It seems that few nation’s laws have permitted award’s enforcement by following the online process wholly.

(i) Developed Nation

Singapore: The Supreme Court as well as the state court has allowed certain types of hearings, which can be in-process and would be conducted by online mode, and has also mentioned that all others have to be under physical presence. For instance, when there are civil trials and their hearings the witness can be examined in the state courts and the videoconferencing can take place when all the parties consent to it. Moreover, when the matter is in the Supreme Court under this situation the whole trial or hearing can be done by online mode. The courts can have total control over deciding what types of specific hearings can be conducted online among one or more parties. With the introduction of “pilot programs,” an effort has been made to welcome the practice of ‘online hearing’ to lessen the burden of the court. The aim is to have court services, which would promote the use of online mode.

(ii) Emerging Nation

Egypt: The courts are encouraged to value the presence of virtual courts while delivering their judgments. By adopting precautionary steps emphasis has been made on ensuring proper functioning of the ongoing proceeding and filling process. Conducting virtual hearings shows the ODR services have been boosted up in this country. By introducing the Egyptian Centre for Voluntary Arbitration and Settlement of Non-Banking Financial Dispute along with mediation and arbitration rules through December 2020 decree now electronic registry is possible concerning mediation or arbitration procedure. An Arbitral tribunal can examine the witness virtually. Even online memorials, statements of claims, defence statements can be submitted by online mode.

This reflects several nations have welcomed many changes in their legal system. Among them has been to encourage the use of conducting online proceedings. Such practice has indulged these nations in enhancing the practice of arbitration as well as mediation. Despite this, there is an urgent need to have a transparent and efficient mechanism that could uplift the performance of this system where at the moment global multilateral agencies are making an effort.

RELEVANCE OF LEADERSHIP IN THIS TECHNOLOGY-DRIVEN BUSINESS ENVIRONMENT

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Today the entire globe is working on the technology that is trending, and the environment in organizations is a dynamic one based on the change in the technological world. In most organizations, be they in the manufacturing sector, logistics based firms or educational institutes, most of the day to day operations in almost all the functional areas are carried out through technological support. Most areas are software-driven. This has boosted all businesses, saved time, brought transparency, brought about a structure in all processes and provided time and space for innovation and research. Does this mean that the conventional role of managers has ceased to exist? Not exactly. A manager has to manage the functional areas,

But in this highly structured and technologically guided environment, the relevance of a leader is debatable. Today all tasks are usually carried out by technology and duly fitted into the system, either software system or machine or process system. In this scenario, has the role of the leader faded away or has it become even more challenging, it is something to analytically think.

Leadership is a partnership, partnership with stakeholders, with subordinates, and with the team. As a consequence of technology orientation, individuals start loving their profession rather than their organization. Hence a leader faces the challenges of motivating, retaining and controlling them. The challenge of a leader is, thus, whether to be a task-oriented leader or a relationship-oriented leader. If the leader possesses charisma, will they be able to pull strong followership? Charismatic leadership in the current business environment where technology is the master may sound to be irrelevant. But the case is not so. The art of integrating the processes, technology and worth creation will demand charisma to be displayed by the leader.

At the time of technology change, which style is more relevant? Authoritative or democratic? Again, in this paced up, competitive, dynamic business environment, entrepreneurial leadership will be in demand. A leader will have to prove through his new ideas keeping the bottom line- increase in profit intact. Most importantly, CREATIVITY will count for organizational sustenance and growth.

What risk does a leader take in this structured, technology-driven business world? This is a clear case that risk has increased. Investment in technology expects more profit. On the other hand, technology fosters competition in the market, leading to the risk of diminished market share. In this irony, the role of the leader becomes crucial – the leader needs to be a visionary with strong cognitive command, and he should also possess high tenacity and high resilience. Hence leader and leadership are there to stay.

A real leader believes in a relationship, transparent management, trustworthiness and task orientation. They deserve to be powerful through high emotional intelligence, integrity and practising work ethics. He is a conflict minimizer and decision-maker.

But what is the degree of their power? Do they have any influence on the people, system or process? Yes, he does. Even the highest tech-savvy organizations have to prevent hacking, avoid internal and external politics and keep the workforce glued together.

Finally, leadership pays its part in maintaining a balance between the existing status quo, pulling the rope tight when change is accelerated, creating worth, and creating strong relations amongst stakeholders. Maintaining a happy workforce an enthusiastic & motivated team still remains a significant task for the leader. Flexibility to diversify and courage to change is still the forte of the leader.

The world will always look forward to a leader who can lead towards something better.

Mediation Bill, 2021 : An Overview

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On November 05, 2021 the Ministry of Law and Justice issued a circular placing the Draft Mediation Bill, 2021 dated October 29, 2021 in public domain, inviting comments and suggestions from all stakeholders.

The Bill aims to facilitate and promote mediation in India, particularly institutional mediation for the resolution of disputes, encourage community mediation, and make online mediation an acceptable and cost-effective process. It proposes to bring about a standalone law on mediation and contemplates the international practice of using the terms ‘conciliation’ and ‘mediation’ interchangeably as India is a signatory to the Singapore Convention on Mediation. This blog aims to provide a brief analysis of the Bill, highlighting some of its significant provisions and the gaps that exist in the legislation which require further deliberation.

Mediation is a form of alternative dispute resolution (ADR), where parties attempt to settle their dispute (outside courts) with the assistance of an independent third person (mediator).  The Bill seeks to promote mediation (including online mediation), and provide for enforcement of settlement agreements resulting from mediation.  The Bill will apply to mediation proceedings conducted in India where: (i) all parties reside in, are incorporated in, or have their place of business in India, (ii) the mediation agreement states that mediation will be as per this Bill, or (iii) there is an international mediation (i.e., mediation related to a commercial dispute where at least one party is a foreign government, a foreign national/resident, or an entity with its place of business outside India).  In these cases, if the central or state government is a party, the Bill will only apply to: (a) commercial disputes, and (b) other disputes as notified by such government. Some key features of the Bill include:

Pre-litigation mediation: In case of civil or commercial disputes, a person must try to settle the dispute by mediation before approaching any court or certain tribunals as notified.  Even if the parties fail to reach a settlement through pre-litigation mediation, the court or tribunal may at any stage of the proceedings refer the parties to mediation if they request for the same.

Mediation process: Mediation proceedings will be confidential.  A party may withdraw from mediation after the first two mediation sessions.  The mediation process must be completed within 180 days (even if the parties fail to arrive at an agreement), which may be extended by another 180 days by the parties.  In case of court annexed mediation (i.e., mediation conducted at a mediation centre established by any court or tribunal), the process must be conducted in accordance with directions or rules framed by the Supreme Court or High Courts.

Mediators: Mediators only assist the parties to settle their dispute, and cannot impose a settlement on the them.  Mediators may be appointed by: (i) the parties by agreement, or (ii) a mediation service provider (an institution administering mediation).  Mediators must disclose any conflict of interest that may raise doubts on their independence.  Parties may then choose to replace the mediator.

Mediation Council of India: The central government will establish the Mediation Council of India.  The Council will consist of a chairperson, two full-time members (with experience in mediation or ADR), three ex-officio members (including Secretaries in the Ministries of Law and Justice and Finance), and one part-time member (from an industry body).  Functions of the Council include: (i) registration of mediators, and (ii) recognising mediation service providers and mediation institutes (providing training, education and certification of mediators).

Mediated settlement agreement: Agreements resulting from mediation must be in writing, signed by the parties and authenticated by the mediator.  Such agreements will be final, binding, and enforceable in the same manner as court judgments (except agreements arrived at after community mediation).  Mediated settlement agreements (besides those arrived at in court referred mediation or by Lok Adalat or Permanent Lok Adalat) may be challenged only on grounds of: (i) fraud, (ii) corruption, (iii) impersonation, or (iv) relating to disputes not fit for mediation.

Community mediation: Community mediation may be attempted to resolve disputes likely to affect the peace and harmony amongst residents of a locality.  It will be conducted by a panel of three mediators (may include persons of standing in the community, and representatives of RWAs).

The Bill places international mediation in the part dealing with domestic mediation being conducted in India, which will result in these settlements losing the benefit of the Singapore Convention for enforcement of commercial mediation settlements across the world. Hence, the parties in such cases would prefer to mediate their disputes out of India, and our hopes to build a robust capacity to handle such disputes will come to naught. In conclusion, mediation, being the cheapest and simplest option available to the public at large, can be described as a tool of social justice. A separate legislation for mediation and rules will indubitably address most concerns around the mediation process and pave the way for making mediation the first-stop dispute resolution method for domestic and cross-border disputes. In addition to the reforms discussed above, a great deal of shift in mindset of stakeholders, awareness about the process, and redefining our approach to mediation is essential for growth and sustainability of the mediation practice in India.