Indian Business Law - Assignment Example

Running header: Indian Business Law Student’s Name: Instructor’s Name: Course Code: Date of Submission: Question One As noted earlier, the political system in India is as unique as the country itself. Some political systems in other countries like Britain and America have existed in their current form for many centuries now, ever since the histories of the beginnings these countries. This is not the case with India’s political system since it is more recent and is said to have been put in place when India gained its independence from Britain in 1947. The Indian constitution was proclaimed three years later in 19501. The current constitution that is used in India is said to have been proclaimed on 26th November 1950. There are other constitutions like that of Japan that have never changed since their proclamation. This is not the case with the Indian constitution because it has always undergone numerous amendments and changes. In fact, India’s constitution has had over 80 changes since its proclamation, making it one of the world’s most changed constitutions. Most of these changes have been brought about as a result of the dispute between Parliament and the Supreme Court2. India is considered a democratic, secular and sovereign Republic that has a Parliamentary form of government. The constitution of India advocated for three core values: liberty, justice and equality of all its citizens. The framing of the constitution was in consideration of the socioeconomic progress of India. The government structure in India is federal and the democracy is parliamentary. The President is constitutionally the head of the Union of India Executive in the political system. However, the real executive powers lie with the Prime Minister and the council of Ministers. It is the Council of Ministers under the leadership of the Prime Minister that is supposed to help the President in exercising Presidential roles. There are several stakeholders within the Indian political system and these include the President of India, the Prime Minister, the Vice-President, Council of Ministers, parliament, Rayja Sabha, Lok Sabha, State governments and Indian political parties. All these can be broadly categorized into the executive branch, the legislative branch, the judicial branch, political parties and the states. The Executive branch is basically made up of the President who is also the head of state according to India’s constitution. The President’s role is usually ceremonial and it is originally based on the model used by the British monarch that involved advising, encouraging and warning the government on matters constitutional. The President had the power to return for reconsideration, a Parliamentary bill when there are crisis. It is also the role of the President to declare a state of emergency when necessary. The Executive branch is also made up of the Prime Minister. The Prime Minister is nominated by the majority party and appointed by the President. Within the Executive branch, there is also the Vice President. He or she is elected by the members of an electorate college that comprise of both houses in parliament. The Ministers are also part of the executive branch and they are appointed by the President after being recommended by the Prime Minister. The Council of Ministers is collectively made up of these ministers3. The Legislative branch of India’s political system is made up of the House of the People, also known as the Lok Sabha. The Lok Sabha is made up of 552 members, 530 0f whom are representatives of the people from the Indian states, 20 members being representatives of people from the Union territories and the final two members representing the Anglo-Indian community. The Lok Sabha is the lower house in the political system in India and it is automatically dissolved after a five year term. Within the Legislature, there is the Council of States that is referred to as the Rayja Sabha. It constitutes 250 members, 12 of which are selected by the President on merit of their expertise and qualifications in some specific fields such as science, art social services and literature. The other members are indirectly elected by the territorial and state legislatures. The Judicial branch is basically made up of the Supreme Court which is the highest and most powerful judicial authority in constitutional, criminal and civil cases. The Supreme Court is made up of 26 senior judges and the Indian Chief Justice is one of them. These judges are recommended by the Prime Minister and appointed by the President. They can only serve until they are 65 years of age. The Judicial branch functions independently and it is not supposed to be influenced by neither the executive nor the legislature4. Because of India’s size and population, it has a federal government system. India therefore has 7 Union Territories and 28 States. The largest State, the Uttah Pradesh, has for along time dominated the Indian elections and Parliament but the situation is currently changing from the domination by one political party to a more fragmented nation influenced by regional parties. The political parties in India are either State parties or National parties. National parties are considered on the basis of being the ruling party, opposition or having presence in four or more states. The Indian National Congress (INC) has dominated Indian politics ever since it was formed in 1885. The party main focus over the years had been to fight for India’s independence from the British. Ever since India gained its independence in 1947, the party has been dominating the political scene and has been the governing party of India for many years. Today, India is a multi-party political democracy which means that the political arena is characterized by the existence of numerous political parties. The legislative and executive branches of government are run by representatives who are selected from these political parties. The Indian government is formed through a formal electoral process that sees the elected members of the majority party head the government. In conclusion, the Indian political scene is known to be more rough and corrupt than other democracies of the world. The separation of power is done through the three arms of the government, namely, the legislature, the executive and the judiciary. Each of these limbs have their own unique and core functions. Political assassination is a very common occurrence and this has seen the demise of several great leaders such as Mahatma Gandhi in 1948, Indira Gandhi in 1984 and Rajiv Gandhi in 1991 among others. India’s secular and democratic ethos are sometimes threatened by the regional, caste and communal tensions that are common in Indian politics. Recently, there have been many activists on the rise such as the Right To Information (RTI) activists who mostly comprise of very many poor and illiterate citizens. These citizens use the 2005 Right To Information legislation to attack corruption and promote transparency in public institutions. Despite all the political problems faced by India, it has remained a functioning and vibrant democracy that has inspired other democrats in surrounding states5. Question Two The Indian federal constitution has some various influences on the Indian business environment. This has been mainly on environmental law, tax, and foreign investor’s expectations. The Indian constitution is the Supreme law of the country that provides the Indian political system with an operational framework6. It is important to note how constitution in India has affected the business environment in that country. Knowledge of the business environment in India is important in understanding how the businesses operate and how they can be successful. Understanding the Indian federal constitution is also essential in knowing what factors of the federal system either impede or promote business in the country. It influences almost every aspect of business in the country. These aspects might include factors such as the distribution systems, the location of businesses, the nature of businesses, the prices of goods and services and other environmental factors. The components of a business environment include the socio-cultural aspects, the economic aspects, the legal aspects, the technological aspects and in this particular case, the political framework of the country, India7. This section is going to particularly focus on how the Indian federal constitution influences the business environment in regard to environmental laws, tax and the expectations of foreign investors. In India, the responsibility of collecting taxes lies with the central government and the state governments. The local authorities such as the local or municipality council are also allowed by the constitution to levy some minor taxes. It is the Indian constitution that gives powers of levying tax to the central and state governments. This therefore affects the business environment in the sense that the constitution is the determinant of the taxation policies for businesses. The constitution in fact states in part that only authorities of the law shall be allowed to levy taxes. This makes it mandatory for any tax collected or levied to be backed up by an accompanying law. The Central Board of Direct Taxes in India under the government of India’s Ministry of Finance is responsible for providing policies and plans for taxation and administering direct tax laws through its income tax department. Within the Indian constitution, there is a list that gives the areas on which only parliament can make tax laws. There is also another area that shows the areas on which the state legislature is allowed to make taxation laws. There is a final area that stipulates when parliament and state legislature are concurrently allowed to make laws on taxation. From these facts, it is evident that the Indian federal constitution has the greatest influence on all taxation related issues in the country. If the constitution has favorable taxation policies, then the business environment will benefit from this policies and vice versa. The Indian federal constitution therefore affects the business environment in regard to tax because the policies can either attract or discourage investors. Other influences include protecting the interests of the foreign investors. In regard to the expectations of foreign investors, they expect to be protected by the constitution of India. Surveys have identified India as the second Foreign Direct Investments (FDI) destination after China. From 2010-2012 alone, the number of transnational corporations that have shown interest in investing in India is great. Various sectors of the economy and businesses that attracted the highest inflows included the service industry, computer hardware and software industry, the construction industry and the telecommunications sector. This therefore means that foreign investors have a lot of expectations from the Indian federal constitution in terms of the protection of their interests and investments. It also means that the Indian federal constitution is playing a very crucial role in the business environment by ensuring that the investors are protected and their interests are respected. That is why India can afford to be the second largest Foreign Direct Investment (FDI) in the entire world after China8. The constitution will affect the expectations of the foreign investors in the sense that it is responsible for formulating and implementing policies that will take care of the welfare of these investors. The constitution is also responsible for other issues such as taxation which are pertinent to the foreign investors. It is therefore the role of the Indian federal constitution to ensure that the expectations of foreign investors in the country are met since this will influence the business environment by determining whether they invest or not. Other impacts of constitution on the business environment are on the expectations of foreign investors by ensuring fair competition. The competition Act of 2002 replaced the previous Act of Monopoly and Restrictive Trade Practices. Through the Act, the Competition Commission of India was established so as to oversee the carrying out of business in a competitive manner. The Act prohibits any business conduct that is likely to affect competition in India adversely. Anti-competitive arguments, abuse of dominant positions and cartels of traders, producers, distributors, sellers and service providers are strongly controlled and prohibited. Those that break these laws have been fined and severe action has been taken against them. For example, 2 Japanese firms, 1 US firm and 2 South Korean firms were prosecuted for fixing prices and forming cartels. The leader of the cartel was fined 100 million US dollars. There have also been regulations about the business combination of persons or enterprises9. They are other influences on the business environment because the central government levies taxes on all income, including that made by businesses, other than agricultural income which is taxed by the state governments. It also collects custom duties such as export duties. This affects businesses in the country. It collects duties on tobacco and other products manufactured in India alcohol for human consumption, narcotics, Indian hemp and opium. It is also the duty of the central government to levy and collect corporation tax. All taxes on capital value of assets such as land of individuals and companies and taxes on capital of companies are collected and levied by the central government. Estate duties, succession of property duties, terminal goods or passenger taxes carried by sea, air or railway are all levied by the central government. Advertisement duties and the sale or purchase of newspaper duties are all levied by the central government. Taxes of the sale or purchase of goods or services between states and taxes on consignments of goods are also levied and charged by the central government. All these aspects have an effect on businesses because they relate to taxation. The Indian federal constitution therefore influences the business environment in the country since it determines all the above issues that pertain to taxes. The state governments levy and collect land revenue and taxes on income from agriculture. Duties on the succession of agricultural land and income and taxes on buildings, land and mineral rights are also levied by the state governments. Taxes for boats, animals, vehicles that use the road and consumption of electricity are levied by the central government. Entry of goods into a local area for consumption is also taxed by the state governments. Capitation taxes and others on trades, employments, callings and professions all go to the state governments. The state governments finally levy taxes on stamps, betting and gambling, amusements and entertainments. The income tax Act of 1961 proposed that an individual’s or corporation’s income is subject to taxation. Income from any business, house, profession, capital gain, salary or any other source would be taxed10. The constitution also makes provisions for environmental protection, conservation and preservations by businesses and citizens at large. In regard to the environmental law, the business environment in India has also been greatly influenced by the environmental laws contained in the Indian federal constitution. Indian federal constitution has a legal framework that has environmental regulations that are meant to protect the environment. The responsibility of the state in regard to protecting the environment has been clearly stipulated under Article 48-A of the constitution. The constitution requires that every citizen makes it their fundamental responsibility to protect the environment. The general environment, the air, water and forest and wildlife have been identified by the constitution as the key areas of the environment that need to be protected and preserved. In regard to the business environment, businesses have not been left out. They are also required by the constitution to protect, preserve and conserve the environment. This requirement by the constitution has affected the business environment in the sense that no business is allowed to operate if does not abide by the environmental policies and legislations. There are minimum requirements set by the constitution that businesses must meet in regard to the environment. Those that cannot meet these requirements cannot be allowed to operate. These factors in the Indian federal constitution therefore affect the business environment in the country because they determine whether the businesses will operate or not. In conclusion, therefore, it is quite clear that the business environment in India is greatly influenced by the Indian federal constitution. The constitution of India covers very many aspects of governance which are pertinent to any business and its operations within the country. Laws and policies that address issues on taxation and the environment will have a direct influence on the activities and choices of the foreign investors. It is therefore the duty of the government to ensure that the interests of foreign investors are adequately addressed and taken care of by the constitution. The Indian federal constitution only allows foreign investors to incorporate a company under the Companies Act of 1965 as a wholly owned subsidiary or as a joint venture. Foreign investors in India are also allowed to set up a representative office, a branch office, a liaison office or a project office that can only undertake activities that are permitted in the country. Also, the foreign investors can either enter the Indian market using the automatic route or the government route. The government route involves the foreign investors undergoing rigorous scrutiny by the Indian government before being approved to operate in India. The Indian federal constitution does not however permit joint ventures in certain businesses and industrial sectors such as iron mining, railways, coal mining and ammunition among others. The Indian federal constitution has also been lessening operational constraints that are now encouraging foreign investors into India, especially from the West. The objectives of the competition Act of 2002 were to promote and sustain competition, eliminate the practices that have adverse effects on competition, protect the interests of consumers and ensure that freedom of trade is carried out by all market participants11. Question Three Acting for a foreign company that is considering establishing a manufacturing facility in India requires a lot of pre-planning, research, analysis and making informed decisions before getting into the venture. The foreign company intends to invest AUD 200 million in this venture. For such a venture to be successful, the company must ensure that it has a comprehensive and well structured investment plan or structure. In this section, a detailed investment structure that pays particular attention to competition laws, tax issues such as repatriation of profits and other issue such as various permissions required is provided. Structuring such an investment basically entails planning on how best to manage the investments so as to ensure that they are not wasted. Before embarking on establishing the manufacturing facility, there are a lot of questions that the foreign investors need to ask themselves. There is a lot of valuable information that they also need to gather and analyze before making any investment step. By doing this, the foreign investors are more likely to make the best investment choices. The first question that they need to ask themselves is: what is the purpose of the investment? Any investment chosen must be chosen on the basis of its main goals such as income, security or growth. The company needs to decide which of these characteristics is most important to it. By determining the true purpose of the investment, the company can be able to know which restrictions are there in India concerning the type of business that it wants to venture in. the company can also know which areas it needs to seek permission before venturing into. A good example here is the new regulations on foreign investors joining the solar manufacturing sector. Despite India becoming one of the world’s leading solar power manufacturers, the government has come up with new regulations that are making it difficult for foreign companies to invest in this sector. It is therefore important for the foreign investor to find out as much information as possible regarding such legislations and competition regulations before investing. These restrictions are mostly brought about by the competition laws under the competition Act of 2002 that has been undergoing amendments to review such issues12. The structure of investment that the business uses needs to take into consideration the business laws of India. As noted previously, foreign investor in India can either get into the country’s business environment using the automatic route or the government route, depending on the form of business that it intends to conduct. This company should therefore establish what exactly it plans on manufacturing and how it will do business. Would it be as a single entity or as a joint venture or would it just open a branch of its business in India?13 In regard to competition laws, the competition Act of 2002 restricted unfair competition among businesses in India. Any person, including an individual, company, statutory corporation, firm, legal authority, Government Company, corporate body and even the consumer has the right to approach the commission on competitions to find out about the competition laws. This business should do the same so that it can be aware of the extent of competition it is allowed to exercise. The company should create a realistic and workable budget and pay off existing debts so that it does not start the business not prepared and with debts. The company should address issues related to anti-competitive agreements, abuse of dominant positions, combinations, competition advocacy and cartels in its structure for investment. All these issues are adequately addressed in the competition Act of 2002. The investment should be structured in such a way that it is in line with the competition legislations of India. The company should review how it operates in other countries and establish whether or not it can do the same in India. The company should be aware that in India, all its income shall be taxed by the government. It should therefore structure its investment plan in line with Indian taxation systems. It should ensure that it structures its investments to comply with the taxation policy. In regard to laws on repatriation of profits in India, the country does not restrict repatriation of profits. Most foreign investors are always concerned about how they can get their profits back to their countries. Repatriating profit in India has never been a problem to foreign investors. This is largely because India allows profits to be repatriated freely as long as a company has been cleared by the local and central tax departments of having cleared its tax dues. The company should therefore take this into consideration and include this into its investment structure14. This investment should therefore be structured in such a way that it respects the taxation laws of India, meaning that it should be ready to pay the taxes required of it. The investment’s structure should also be in line with the competition laws in India in the sense that the company should not engage in unfair competition. The permission required by the company from the government need to be considered in its investment structure15. Question Four Money laundering has been defined differently by different people. The Black’s law dictionary defines money laundering as any activities involving the transfer of money that has been obtained illegally through legitimate accounts or persons so that the original source of this money is not traced. Many laundering takes many different forms but it basically includes the key concepts explained above. In India, money laundering has been a problem for quite some time and it has mostly been linked to drugs. As a result of this, the Indian government has come up with legislation to address money laundering. These legislations are known as anti-money laundering legislation. The importance of anti-money laundering legislations in India cannot be undermined. It has had adverse effects to the country and these legislations are important to India in a number of ways. India came up with the Prevention of Money Laundering Act in 200216. Anti-money laundering laws are important in India because they have reduced the need to conceal the true and original ownership of proceeds by unscrupulous people. The need to control these proceeds has also been greatly reduced. The huge volumes of cash that have been generated as a result of criminal activities have also been discouraged by these legislations which have declared them illegal. The laws are gaining control over money laundering practices and in the process reducing the amount of illegal activities such as drug trafficking. The demand and supply of money is easy to balance since the use of these laws because the amount of people or organizations withholding money illegally has reduced. The risks that were common with financial institutions such as banks have also been greatly reduced. Anti-money laundering legislation has also led to a decrease in corruption. These laws act as incentives to both foreign and local investors and thus boost the economy. Most importantly, anti-money laundering legislations have made it easy for the government to maintain one central/primary economy17. Foreign companies seeking to invest in India should comply with Indian anti-money laundering legislation. They should do this by ensuring that they do not deal with drug trafficking. Foreign investors should also not repatriate profits illegally back to their countries without having cleared their taxation dues. Foreign investors should not be engaged in corruption especially with finances. They should not derive their profits from dealing with illegal products, substances or services. The origin of the profits made by foreign investors should be open and known. By concealing it, the company is engaging in money laundering. These investors should not deposit cash illegally with overseas banks or wire illegal cash to foreign accounts. Their income should be clean and legitimate. Question Five The Indian competition laws were first proposed by the competitions Act of 2002. These competition laws protect foreign investors in a number of ways. The laws prohibit anti-competitive agreements that encourage foreign investors to invest in India. The laws also protect foreign investors by prohibiting the abuse of dominant positions. Unfair combinations are also addressed by these laws since there are regulations that have been given to govern combinations. The competition laws have further established the competitions commission of India that protects investors from unfair competition. By reviewing the objectives of the competitions Act, it is easy to identify how these competition laws have helped in protecting foreign investors. The competition laws have helped to protect foreign investors by eliminating practices that have adverse effects on competition. These laws have also promoted and sustained competition therefore creating a favorable business environment for foreign investors. Freedom of trade has also been ensured by these laws in the sense that all participants in the markets now have a level playing field18. These laws having been put in place prohibit the formation of cartels that sometimes hinder the smooth flowing of business transactions by the foreign investors in India. Cartels all around the world have been known to stifle business ventures therefore hindering their growth. The competition laws are also there to protect foreign investors from any form of bias or discrimination from the local investors. This in turn could help in encouraging other investors to also bring in their business ventures or activities in an otherwise growing economy. Due to the high population in India, such foreign investment could lead to the creation of jobs hence reducing the high crime rate. When talking about unfair combinations, the government of India restricts local investors from trading in goods and services that would otherwise bring unwanted competition to foreign investors that would have also been interested in contributing to the India’s economic growth. The laws also talk about anti-competitive agreements that are reached or agreed upon by either local individuals or local competing markets. Such agreements could attempt to limit, control or influence the distribution of some of their products to put some of their consumers at a disadvantage and go for more of their products. This in turn puts the foreign investment at a disadvantage hence discouraging them from further interest in their investment in India. The effects of such a move from the locals could mean that the only competition would be from within and only in locally made products hence no diversity. Foreign investors are also protected by these laws in that there can be no political interference by powerful government officials. Such individuals could be doing so for their own personal benefits. These laws allow foreign investors to be heard in case of a problem with outside interference. Such abuse of power could lead to the dismissal of these officials from office and even possible persecution in a court of law19. References KHINDRIA, T., Khindria on Business Law: An Indian Perspective. (Lexis Nexis Butterworths, 2003). ADEKOLA, A. and SERGI, B., Global business management: A cross cultural prospective. (Chicago: Ashgate Publishing Ltd, 2007). ALEXANDROWICZ, C.H, A Bibliography of Indian law. (Oxford: Oxford University Press, 2006). BIJAPURKAR, R., Winning in the Indian market: Understanding the transformation of consumer India. (New Delhi: Wiley, John & Sons, 2007). CHAKRABORTI, A., Company law procedure with company law practice. (New Delhi: Taxmann Publishing, 2007). PERRY-KESSARIS, A., Global business, local law: the Indian legal system as a communal resource. (England: Ashgate Publishing Limited, 1988). BHAT, S., Law of Business Contracts in India. (New York: Sage, 2010). SCHAFFER, R., AGUSTI, F, and EARLE, B., International Business Law and its Environment. (Mason, USA: Cengage Learning, 2009). KUDAISYA, M. M. and CHIN-KEONG, N., Chinese and Indian business: historical antecedents. (Netherlands: Koninklijke Brill NV, 2009). Read More