Startups have taken the Indian economy by a storm, especially after the ‘Startup India’ campaign by Prime Minister Narendra Modi. These startups are not just avenues to buy and sell goods and services, but a path to development and life style change; be it getting service quality reviews of any restaurant or cafe on Zomato, and being free from the exploitation of local autowalas and cab drivers by opting for services of Ola or Jugnoo at affordable cost. .
Start-ups have also resulted in the empowerment of women in India by the subsequent development and enforcement of financial availability schemes. The Startup India scheme itself provides loans to women at a lower rate. Besides, there are other monetary incentives schemes which have helped women from all over India in entering the start-up race, such as Annapurna Scheme, Street Shakti Package, Bharatiya Mahila Bank, Dena Shakti Scheme, etc. Hillary Clinton once said, “Women are the largest untapped reservoir of talent in the world,” which is exactly the outcome of these schemes. There has been a whopping 60% increase with respect to women finding opportunities to start ventures.
These emerging women entrepreneurs include Radhika Ghai Aggarwal, co-founder of the fashion website shopclues; Anisha Singh who founded MyDala, which is one of the largest discount and coupon platforms in India; Sabina Chopra who is one of the founders of Yatra.com, one of the largest travel related website, Neeru Sharma who co-founded Infibeam, a retail online store; Richa Kar who co-founded one of India’s biggest online lingerie retail store- Zivame; Upasana Taku who founded not one but two payment gateaway- MobiKwik and Zaapkay; Suchi Mukherjee who run Limeroad, a boutique based online fashion marketplace; Sairee Chahal, founder of Sheroes.in, a web portal for like-minded women to connect.
In recent news, fifteen women have been selected by Zone Startups India for its ‘empoWer’ accelerator programme for women entrepreneurs in tech businesses. This programme was started in April 29th 2016, and the biggest value-add that “empoWer’ has brought is to help the selected entrepreneurs build a solid network of mentors, industry experts, partners, investors and peer group. The programme follows the belief that, having a strong and diverse network helps businesses grow in different ways. Also, the 15 entrepreneurs going through this program will continue to remain associated with Zone Startups India accelerator program for 24 months, as per their policy. For the first 12-months immediately post program, they will be hand-held on an ongoing basis, and their milestones tracked, and will continue to get support to develop industry and investor connects.
Some of the women entrepreneur expanded their business beyond the territory of India, and went to U.S.A to find success. They are Trisha Roy, founder of Barn & Willow, a customised drapes and panels store based in U.S.A, which offers these linens at a cheap rate by cutting the cost of middlemen; Rituparna Panda, co-founder of Fulfil.IO, a system that could replace the old ERP (Enterprise Resource Planning) systems and could use the cloud to track inventory and orders on multiple platforms, both online and offline, and Yosha Gupta, founder of Lafalafa, coupon website which started out in Hong Kong. The success of these three women helped them to get noticed by ‘500 Startups’, which is a California-based accelerator.
India has seen a generation of women-run businesses or women serving as top management executives in companies such as ICICI Bank’s Chanda Kochar, Axis Bank’s Shikha Sharma, IBM’s Vanitha Narayanan, Omdiyar Network’s Roopa Kudva, etc. Women of the current generation are also not far behind in making their mark as entrepreneurs. However, the struggle for a level playing field still persists. A piece of advice given by Swati Bharhgava, co-founder of Cashkaro.com, a cashback and coupons website; “My advice to women entrepreneurs would be to forget that you are women, that’s not even important. If you have a business idea that you can think can be big, go for it.” Similarly, Pranshu Patni, co-founder of an educational app company, Culture Alley, advised “to detach yourself from your gender while making a pitch to the investors” and to “not undermine other women.”
As seen in the stories of these women entrepreneurs, their mantra to success that they never let the fact that they are women hold them back in any way, in fact, they got empowered because they are women.
Meaning of ‘Forensic Accounting’
“Forensic”, according to the Webster’s Dictionary means, “Belonging to, used in or suitable to courts of judicature or to public discussion and debate.” Forensic accounting is the practice to undertake accounting, auditing and investigation as a means to conduct a thorough examination of the company’s financial statements and recordings. The analysis so drawn is suitable for court and ultimately forms the basis of dispute resolution. Forensic accounting acts as both, litigation support and investigation accountancy.
Forensic accountants are trained to look beyond the numbers and into the actuality of the business concern. Their skills are often used in detecting fraudulent cases. The forensic accountants collect suitable financial evidence, develop them by summarising the data into computer applications and present them in form of reports or presentations. They may be hired by insurance companies, banks, public sector undertakings, and police forces etc. along with testifying in court, forensic accounts may prepare visual aid in order to support trial evidence. They also conduct business investigation by making a due diligence report, tracing the funds, identifying and assessing the assets, etc.
Importance of Forensic Accountant
- Usage in litigation process
When the quantification of damages or compensation is required as means to resolve a dispute, forensic accounting comes to play. Also, the forensic accountant may act as an expert witness when a dispute turns into a court decision.
- Usage in investigation accountancy
Forensic accounting is used in determining the occurrence of a criminal matter. The crimes falling in this category includes theft, window dressing and falsifying of financial statements, insurance fraud, securities fraud, business valuation dispute, product liability claim, trademark or patent infringement, and non-competition agreement, etc.
Other than business related matters, the forensic accountant may be employed for civil matters, such as, detection of hidden property in case of divorce settlement, breach of contract, tort, and breach of warranty, etc.
Forensic accounting can also be used in determining theimpact of breach of non-disclosure or non-competition agreements on the economy and trade practices as a whole.
- Usage in insurance company
Forensic accountant is employed in certain cases to determine the quantum of damage arising out of a vehicle accident or medical negligence. The forensic accountant must have the knowledge regarding the legislative proceedings related to these cases. The forensic accountant determines the damage by reviewing both the insurance policy provided by the insurer and the loss incurred by the insured. Thus, the service of a forensic accountant is utilised by both the insurer and the insured.
Courses in India
With growing need of forensic accountants certain training institutes like Indiaforensic, Institute of Chartered Accountants of India (ICAI) and Association of Chartered Certified Accountants (ACCA) provide course in Forensic accounting in India.
Indiaforensic offers a course for Certified Forensic Accounting Professional (CFAP). CFAP is a person who has undergone a training to become an expert in the field of forensic accounting, forensic auditing, litigation support and investigative accounting. The designation for the same is awarded by Indiaforensic.
Association of Chartered Certified Accountants (ACCA) and Council of the Institute of Chartered Accountants of India (ICAI) recognise the growing importance if forensic accounting and provide a certificate course for the same, which conforms to the global standards.
Forensic accounting is crucial in determining the quantum of damages to be paid and to detect the fraudulency within an institution, particularly in a court proceeding. Though an emerging field, its importance is being recognised by various institutions providing training and education in India. When fully functional, forensic accounting would ensure transparency and just determination of compensation or damages.
E-Commerce or Electronic Commerce is a term used for denoting business activities through electronic means, unlike the conventional physical means. E-Commerce is not only limited to buying and selling of goods, but also includes the delivery, supply chain, payment mechanism, feedback mechanism and service management. It is conducted with the use of computers and mobile/smart phones (M-Commerce).
Disputes are an inherent part of any transaction. They are usually resolved within the physical territory of one or both the parties However, the customers transacting with the online enterprise maybe located anywhere in the country or the world (depending upon the scale of business). The issue of ‘territorial’ jurisdiction gets complicated as the internet is borderless.
However, basic jurisdiction can be determined in accordance with the Indian statutes.
Information Technology Act, 2000 – Sec. 75 of this Act enables the Act to be applicable to the offences and contraventions which occur outside India if the offences or contraventions involve a computer, computer system or computer network located in India. Further, the provisions of this Act (Sec 5, Sec 10) talk about digital signatures and digital records, which have been given the status of legal and valid means of online transaction.
The Civil Procedural Code, 1908 – The Act doesn’t provide for a clear stance in disputes arising out of E-Commerce. However, Sec 19 provides for a discretionary power to the plaintiff in deciding the Court to approach for the suit, provided the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business or personally works for gain, within the local limits of the jurisdiction of another Court.
There has been a certain amount of clarity after the Delhi High Court gave its judgement in the case of World Wrestling Entertainment, Inc. v. M/S Reshma Collection. The main issue before the court was that when a contract takes place over the internet, where the contract is said to be concluded. To answer the same the court had to interpret the term “carries on business” as provided by Section 134(2) of the Trademarks Act, 1999 and Section 62(2) of the Copyright Act, 1957. These sections further talk about filing of suit in case of violation of any provision of the respective Acts.
To examine the same the Divisional Bench of the High Court relied on the three tests laid down by the Supreme Court in Dhodha House v. S.K. Maingi, of which the third test is applicable in the present case as the plantiff had no agent in Delhi. The third test states that – to constitute “carrying on business” at a certain place, the essential part of the business must be performed at that place. Also, according to the case of Bhagwan Goverdhandas Kedia v. Girdharilal Parshottamdas & Co, a contract would be completed at the place where acceptance is communicated.
Based on these judgements the court held – “because of the advancements in technology and the rapid growth of new models of conducting business over the internet, it is possible for an entity to have a virtual presence in a place which is located at a distance from the place where it has a physical presence.” Thus, the plaintiff carried out business (even though to some extent) in Delhi.
In conclusion, our country needs a specific law dealing with the issue of jurisdiction with regard to E-Commerce disputes. This is so because websites can be accessed from anywhere and the concept of ‘place’ doesn’t exist in its conventional sense while entering into these transactions. The above mentioned case-law gave certain clarity on this regard. However, the issue of jurisdiction seems to be more tilted towards the plaintiff and thereby causing a plausible inconvenience to the defendants; thus, it is important to have laws directing the jurisdiction in E-Commerce disputes.
Online Dispute Resolution (ODR) is a branch of dispute resolution or out of court settlement which uses technology and web as a medium through which disputes are resolved. As stated by its name, ODR has developed by merging Alternative Dispute Resolution (ADR) with Information and Communication Technology (ICT). It mostly consists of mediation, negotiation, client counselling, arbitration or any combination of either two or more of the mentioned disciplines. ODR can take place either partly or entirely online and it seeks to resolve both; the disputes arising in cyberspace and out of cyberspace. Being a modern take on ADR, usage of ODR has a lot of advantages, which are stated as follows:
- Cost-Effective Technique: When compared to litigation, ODR is extremely cost-effective as it cuts down on the hefty attorney fee that one has to pay to avail the court service. Also, as compared to traditional ADR, ODR is more cost-effective as it cuts down on the huge travelling expenses duringthe process of resolving disputes manually. The fee paid to reputed third-party for good services, is significantly cut-down as none of the parties need to be physically present in front of one another.
- Convenient Technique: ODR covers a wide range of geographical area. This guarantees good quality service to all the people of different regions. There is also an increase in choice of service providers in case of ODR, as various websites providing these services can seek to resolve a matter irrespective of the location of their head office. For example places like Bangalore, which has the very reputed Bangalore International Mediation, Arbitration and Conciliation Centre, has an advantage over other places lacking such infrastructure. However, through the means of ODR, the gap between various regions is bridged.
- Issue of Jurisdiction: The settlement which the disputed parties enter into is bound by an agreement, and the issue of jurisdiction of court can be easily avoided. This, in turn, saves time of the disputed parties.
However to every advantage, there is a disadvantage. ODR too has certain drawbacks as follows:
- Impersonal: ODR imposes electronic distance between the parties. There is no physical appearance of the dispute resolver. In other words, due to virtual process of ODR,the emotional state of the disputed parties and the resultant body language and tone are not expressed to the dispute resolver. This poses a hindrance to form any sort of personal relationship with the dispute resolver. Also, the dispute resolver has no control over the temper and tone of the disputed parties. In such a situation, the persuasive value of the resolver also significantly decreases.
- Knowledge of Computers: To avail ODR, the essential preliminary requirement is to have a basic sense of computers and operation of the internet. However, this becomes a problem in a country like India. Being a developing country, not a lot of people have access to computers. Even those who do, lack the trust required to avail ODR or any online services. Thus, there is not only ignorance pertaining to computers, but also the reluctance of the usage of them.
- Breach of Confidentiality: Often in the process of dispute resolution, a lot of confidential information regarding the parties themselves or the parties whom they represent is revealed. Confidential information is particularly more crucial in corporate negotiation in which often trade secrets are revealed. However, cyber space is prone to cyber crime. Hacking is on a rise. If not properly secured, confidential information can be easily leaked out, having a detrimental effect on the parties concerned.
- Limited Disputes: As a resultant of all these reasons, the disputes that come within the ambit of ODR are limited to an extent. For example, one of the most frequent disputes is that of a landlord and tenant. In such an agreement, there are a lot of intricate details involved including the frustration faced by the non-conformity of the landlord- tenant agreement. One would find it extremely tedious to convey all the points of dispute, their reasons for non-conformity and any kind of rebuttal in a complex matter through an online mode, and would prefer to resolve it by personal contact.
Despite these drawbacks, ODR would soon rise to be the most popular method of dispute resolution. However, currently, ODR in India is still at its infancy stage. While there are websites which provide consultancy services, but there are several complicated disciplines like mediation, negation etc. that are yet to be popularised. With the growth of E-Commerce, it wouldn’t be long that different websites come up with ODR suited to the Indian population, to resolve disputes in a faster and cost-saving manner.
A much-needed reform in India pertains to the Labour Laws as they suffer from the vice of rigidity and multiplicity. The major reasons for its faultiness can be classified broadly into these two categories.
- Rigidity– India being a developing country, the GDP rises but with a lot of ‘Jobless Growth’. Labour laws prevailing in India are perceived to be oriented towards organised labour and isn’t employee friendly, and thereby becoming a contributory factor towards ‘Jobless Growth’. The jurisprudence behind these laws is to curb insecurities amongst the labourers, especially after the introduction of LPG (Liberalization, Privatization and Globalization) Policy. However, in the process of doing so, interest of other stakeholders like employers, financial agencies etc. are ignored. These policies also gives scope unreasonable demands made by Trade Unions. The urgency of a reform in the labour laws by increasing flexibility has been brought forward in the recent Honda Motor cycle and Scooter India case. In this case, a point of conflict between the workers and the management resulted in losses worth Rs 120 Cr to the company, according to a report by Business Standard, 2005. The conflict pertaining to labour laws keeps on increasing. According to a report by the Ministry of Labour 533038 cases were pending in the Labour Courts in the year 2000. The only means to resolve this conflict is to have flexibility of contracts for hiring and firing labour.
- Legalities– According to a report by BBC News, there are 45 labour laws at the national level and around four times more laws at the State level. Multiple laws create an unnecessary restriction on the industry and hamper its smooth function. Also, most of these laws were drafted during the pre-independence period and aren’t suitable for the modern-day industry. The prominent contributory laws to this are as follows:
- Industrial Disputes Act, 1947– The objective of this law is to provide guidelines for settlement of industrial disputes and applies to all industries, irrespective of their size. This Act contains certain provisions which state that a company consisting of more than 100 workers needs to get permission from the Government before firing workers and a notice of 21 days has to be given to the employees before any changes in the allowance and wages of the workers. This in turn enforces rigidity and slows down the industrial process. Especially, Section 9A which talks about the 21 days policy as mentioned above, poses a constraint to industries because quick decision-making is an essential step to take while seeking advantage of a business opportunity. However, unnecessary legal and procedural restraints deprive them of a first mover advantage.
- The Contract Labour (Regulation and Abolition) Act, 1970– It is contended that Contract Labourers provide a large degree of flexibility to an organization. There have been various case laws interpreting the abolishment of Contract Workers. In Deena Nath case AIR 1991 SC 3026, it was held that the employer need not be required to absorb the contract labour which was abolished. However, due to several complaints in this regard, the court in Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645 overruled this decision and held that the High Court may direct the employer to absorb the abolished contract labour. However, this decision too has been overruled in the case of Steel Authority of India v. National Union of Water Front workers and Ors. AIR 2001 SC 3527. The court was of an opinion that there is no provision in the Act that provides for automatic Contract Labour absorption and hence, the employer isn’t bound to absorb the Contract Labour.
In order to protect the interest of the permanent workers, the Act also prohibits the engagement to Contract Workers for the core function of an organization. However, in a given situation wherein the majority of the workers are Contract Workers, who are paid less than the permanent workers, the purpose of this act is defeated.
- Trade Union Act, 1926– This Act not only provides for certain legal rights to a Trade Union, but also ensures them immunity from certain civil and criminal prosecutions. It also allows outsiders to be members of trade union so formed and office bearers. An organization may consist of large number of workers with varied interest and often certain protests maybe politicised, thereby disrupting the day-to-day functions of the organization by the means of strikes and lockouts.