Diwan Advocates

Pharmaceutical Law Practice

Every pill that reaches a patient in India has passed through one of the world's most complex regulatory journeys. A molecule discovered in a laboratory must survive clinical trials, satisfy the Central Drugs Standard Control Organisation, navigate price controls, survive patent challenges, clear customs, and find its way through a distribution chain that stretches across hundreds of thousands of pharmacies. That is before it faces competition from generic manufacturers, scrutiny from SEBI if the company is listed, and the possibility of a product liability claim if something goes wrong.

India is not a minor player in this story. It is the pharmacy of the world. The country supplies over sixty percent of global vaccine demand, accounts for twenty percent of global generic exports by volume, and is home to more US FDA-approved manufacturing facilities outside the United States than any other country. The legal framework that governs this industry touches every aspect of a pharmaceutical company's existence, from the moment a drug is discovered to the moment it is discontinued.

At Diwan Advocates, we have built a pharmaceutical law practice that understands both the industry and the law. We advise manufacturers, importers, distributors, contract research organisations, hospital groups, and international pharmaceutical companies on the full range of legal issues that arise across the drug lifecycle. Our work covers regulatory compliance, licensing, intellectual property, price control disputes, clinical trial governance, product liability, and criminal enforcement under the Drugs and Cosmetics Act.

The legal issues in this sector never arise in isolation. A dispute over a drug patent under the Patents Act, 1970 will be shaped by the regulatory data generated during the approval process under the New Drugs and Clinical Trials Rules, 2019. A price control challenge under the Drugs Prices Control Order, 2013 will depend on data that the company has reported to CDSCO and NPPA. A criminal prosecution under the Drugs and Cosmetics Act can trigger securities disclosure obligations if the company is listed on a stock exchange. We connect these threads so that our clients are protected across all of them.

Drug Regulatory Approvals and Licensing

Getting a drug to market in India requires a series of regulatory approvals that must be obtained in the right sequence and maintained through ongoing compliance. A misstep at any stage can delay a product launch by years or result in the cancellation of a licence that has taken considerable time and investment to obtain.

New Drug Approvals and CDSCO

The Central Drugs Standard Control Organisation (CDSCO) is the national regulatory authority responsible for approval of new drugs, clinical trial authorisations, and import licences. The approval pathway for a new drug or new molecular entity is governed by the New Drugs and Clinical Trials Rules, 2019 which introduced a more structured framework for submission, expert committee review, and approval timelines. We assist applicants in preparing dossiers, responding to CDSCO queries, and representing clients before the Subject Expert Committees and the Drug Controller General of India.

India introduced an accelerated approval pathway for drugs that have already received regulatory approval in reference jurisdictions such as the US, EU, UK, Japan, and Australia. Navigating this pathway requires a precise understanding of which data requirements can be waived and what post-approval commitments the applicant must make. We advise originator and generic companies on this pathway and handle the legal aspects of expedited submissions.

Manufacturing Licences and GMP Compliance

Every pharmaceutical manufacturer in India must hold a valid manufacturing licence issued by the State Licensing Authority under Schedule M of the Drugs and Cosmetics Rules, 1945. Schedule M prescribes the Good Manufacturing Practice standards that facilities must comply with, and has been substantially revised to align with WHO-GMP guidelines. Licence suspension, cancellation, and regulatory action by drug inspectors are governed by Sections 22 to 33 of the Drugs and Cosmetics Act, 1940. We advise manufacturers on maintaining GMP compliance, represent them during inspections, and defend licence suspension and cancellation proceedings before licensing authorities and in writ proceedings before High Courts.

Import and Export Licences

Importing drugs and active pharmaceutical ingredients into India requires a separate import licence from CDSCO. Exports of pharmaceuticals are governed by the Foreign Trade (Development and Regulation) Act, 1992 and the Export and Import Policy, as well as destination country regulatory requirements. We advise importers and exporters on licence applications, restricted and prohibited items, documentation requirements, and customs classification disputes that arise at Indian ports and border checkpoints.

Clinical Trials and Research Governance

India is one of the most significant destinations globally for clinical research, offering a large and genetically diverse patient population, cost efficiencies, and a framework of qualified investigators and research institutions. The legal framework governing clinical trials is set out in the New Drugs and Clinical Trials Rules, 2019, which introduced significant reforms following the controversy over clinical trial deaths and compensation disputes in the earlier part of this decade.

Trial Authorisation and Ethics Committee Oversight

A clinical trial can only begin after CDSCO issues a trial authorisation and an independent Ethics Committee registered with CDSCO approves the trial protocol. We advise sponsors, contract research organisations, and investigator sites on preparing CDSCO submissions, responding to queries during the review process, and structuring the contractual framework between sponsors, CROs, and sites in a way that is consistent with the regulatory requirements and manages liability appropriately.

Informed Consent and Participant Rights

Informed consent requirements under the 2019 Rules are detailed and specific. Audio-visual recording of the consent process is mandatory for certain categories of trial. Compensation for trial-related injury or death must be offered and calculated according to a prescribed formula. We advise on the documentation requirements for valid informed consent, the liability of sponsors and investigators when consent is alleged to be defective, and the compensation framework for trial-related adverse events.

Bioequivalence Studies and Generic Drug Approval

Generic drugs approved in India must demonstrate bioequivalence to the reference listed drug through studies conducted at CDSCO-approved bioequivalence study centres. The standards for study design, statistical analysis, and data integrity have been tightened significantly in recent years following instances of data manipulation at certain facilities. We advise generic manufacturers on the regulatory requirements for BE studies, represent them in disputes with CDSCO over study acceptability, and handle the legal aspects of partnerships with approved BE centres.

Pharmaceutical Patents and Intellectual Property

India's patent framework for pharmaceuticals is shaped by Section 3(d) of the Patents Act, 1970, one of the most distinctive and debated provisions in global pharmaceutical patent law. Section 3(d) prevents the grant of patents for new forms of known substances unless they demonstrate significantly enhanced efficacy. This provision has been central to India's position as a supplier of affordable generics and has been extensively litigated, including the landmark Supreme Court judgment in Novartis AG v. Union of India (2013).

Patent Prosecution and Portfolio Strategy

We assist pharmaceutical companies in prosecuting patent applications before the Indian Patent Office, advising on claim drafting strategies that navigate Section 3(d), responding to examination reports and objections, and building patent portfolios that protect the full range of a company's innovations including compounds, formulations, dosage forms, manufacturing processes, and delivery systems.

Patent Oppositions and Invalidity Challenges

The Patents Act provides for pre-grant opposition by any person and post-grant opposition by an interested person. Generic manufacturers frequently file pre-grant oppositions against originator drug patents on the ground that the invention does not satisfy the Section 3(d) threshold or lacks novelty and inventive step. We represent both originators defending their patents and generic companies challenging them, before the Patent Office, the Intellectual Property Appellate Board's successor jurisdiction, and in High Court proceedings.

Compulsory Licensing

Section 84 of the Patents Act allows any person to apply for a compulsory licence three years after the grant of a patent if the patented invention is not available to the public at reasonably affordable prices, or is not worked in India to an adequate extent. India's only compulsory licence to date was granted by the Patent Office in Natco Pharma v. Bayer (2012) for the anti-cancer drug sorafenib. We advise companies seeking compulsory licences and those defending against such applications on the legal standards applicable and the strategic considerations involved.

Drug Price Control and NPPA Proceedings

The Drugs Prices Control Order, 2013 issued under the Essential Commodities Act, 1955 is administered by the National Pharmaceutical Pricing Authority (NPPA). The DPCO fixes ceiling prices for scheduled formulations, which are those listed in the National List of Essential Medicines, and monitors the prices of non-scheduled drugs to prevent extraordinary price increases.

Ceiling Price Compliance and Audit

Pharmaceutical companies that manufacture or sell scheduled formulations must ensure that their prices do not exceed the ceiling prices notified by NPPA. The pricing calculations involve the market-based methodology prescribed by the DPCO and require careful tracking of price filings, depot price changes, and the handling of pack size variations. We advise companies on DPCO compliance programmes, review price filings for legal risk, and represent companies in proceedings before NPPA for price revisions, exemptions, or corrections to ceiling price calculations.

Overpricing Demands and Recovery Proceedings

When NPPA determines that a company has sold a drug above the applicable ceiling price, it issues a demand for the overcharged amount plus interest. These demands can cover multiple years of sales and reach substantial amounts. A company that fails to deposit the demand within the prescribed period faces the possibility of criminal prosecution under the Essential Commodities Act. We represent companies challenging NPPA demand notices before the High Courts on grounds including incorrect ceiling price computation, wrong identification of the applicable schedule entry, and errors in the period of overcharging alleged.

Trade Margins and Distribution Chain Pricing

The DPCO framework regulates not just manufacturer prices but also the margins available to stockists and retailers. Trade margin capping, which has been applied to non-scheduled drugs through government orders, is a particularly active area where the legal basis and implementation methodology have been challenged by trade associations and manufacturers. We advise on the legal framework for trade margin orders and represent clients before the NPPA and in writ proceedings.

Medical Devices Regulation

Medical devices were brought under the Drugs and Cosmetics Act framework and are now primarily governed by the Medical Device Rules, 2017. The scope of the MDR has been progressively expanded, and all medical devices are now required to be registered with CDSCO under a phased timeline. Class A and B devices follow a simplified registration pathway, while Class C and D devices require full pre-market approval including clinical data.

We advise medical device manufacturers and importers on device classification, registration requirements, quality management system compliance, and clinical investigation regulations. The boundaries between drugs, medical devices, and combination products are often unclear, and the classification of a product can have significant regulatory and commercial consequences. We advise on product classification disputes and represent clients challenging incorrect classification decisions before CDSCO.

Product Liability and Adverse Drug Events

A defective drug or medical device can cause serious harm. When it does, the manufacturer, importer, and distributor face potential liability under the Consumer Protection Act, 2019, civil suits for negligence and product liability, and in serious cases, criminal prosecution under the Drugs and Cosmetics Act, 1940. The Consumer Protection Act, 2019 introduced a product liability chapter that imposes strict liability on manufacturers for defective products and on service providers for deficient services, which includes hospitals and pharmacies.

Drug Recalls and Market Withdrawals

When a quality defect or safety signal is identified in a marketed drug, the company must act quickly to assess the scope of the problem, notify CDSCO, and initiate a voluntary recall if required. Mishandling a recall situation, whether by delay, incomplete execution, or inadequate communication, significantly increases both regulatory and legal exposure. We advise companies on recall procedures, CDSCO notification obligations, communication with the trade and with patients, and the documentation required to demonstrate that the recall was conducted competently.

Pharmacovigilance and Safety Reporting

Pharmaceutical companies are required to maintain pharmacovigilance systems and report adverse drug reactions to the Indian Pharmacopoeia Commission's Pharmacovigilance Programme of India and to CDSCO. Failures in safety reporting are a common ground for regulatory action. We advise companies on structuring their pharmacovigilance obligations, conducting internal audits of safety reporting systems, and responding to CDSCO queries about adverse event reporting gaps.

Enforcement, Inspections, and Criminal Prosecution

The Drugs and Cosmetics Act, 1940 creates offences for the manufacture, sale, or distribution of adulterated drugs, spurious drugs, misbranded drugs, and drugs that do not comply with prescribed standards. Penalties range from fines to imprisonment of up to life in cases involving adulterated drugs that cause death or grievous hurt. Drug inspectors have wide powers of inspection, sampling, and seizure, and state drug controllers and CDSCO can initiate prosecution.

We represent pharmaceutical companies, directors, and responsible persons facing drug inspector actions, show-cause notices, licence suspension proceedings, and criminal prosecutions under the D&C Act. Defending a prosecution under this Act requires a combination of scientific knowledge about drug quality standards, procedural expertise in criminal defence, and an understanding of the licensing framework within which the company operates. Our team brings all three together.

Directors and officers of pharmaceutical companies can face personal criminal liability if they were in charge of the company's affairs at the time the offence was committed. We advise on the conditions under which personal liability arises, the defences available to individuals who were not directly involved in the default, and the steps that companies should take to ensure that compliance frameworks reduce the risk of personal criminal exposure.

Competition Law in the Pharmaceutical Sector

The Competition Commission of India has paid particular attention to the pharmaceutical sector in recent years. Issues that have attracted CCI scrutiny include excessive pricing of patented drugs, refusal by originators to license patents to generic manufacturers, exclusive dealing arrangements between pharmaceutical companies and distributors, and alleged cartel behaviour in the supply of hospital medicines. We advise pharmaceutical companies on competition compliance and represent them in CCI investigations under the Competition Act, 2002.

The interface between patent law and competition law is particularly live in the pharmaceutical sector. An originator that uses patent enforcement to block generic entry may face not only a challenge under the Patents Act but also an allegation of abuse of dominant position under the Competition Act. We advise on navigating both frameworks and on the extent to which legitimate patent enforcement can be distinguished from anti-competitive conduct.

Why Diwan Advocates for Pharmaceutical Law?

Legislative Reference Index

The following table consolidates the principal statutes and regulatory frameworks that govern India's pharmaceutical sector, with notes on their relevance to legal practice in this industry.

India's pharmaceutical industry carries the weight of global health access on its shoulders.

The legal framework that governs it is complex, consequential, and constantly evolving.

Diwan Advocates is here to help clients navigate it with confidence.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Taxation Law Practice

In the high-stakes arena of Indian tax law, Diwan Advocates serves as your strategic partner, empowering corporations, SMEs, individuals, and high-net-worth clients to navigate direct and indirect taxes with confidence. From visionary planning and rigorous compliance to audit defence, appellate proceedings, and courtroom advocacy, we transform fiscal complexity into competitive advantage across India's ever-evolving regulatory landscape.

Our practice is anchored in a deep understanding of the Income Tax Act, 1961, the GST regime, the Customs Act, and recent reforms under Budget 2026, including enhanced compliance mechanisms, simplified dispute resolution pathways, and updated thresholds for deductions and exemptions. We integrate proactive advisory foresight with robust litigation capability, keeping clients ahead of legislative change, judicial precedent, and enforcement trends across multiple jurisdictions.

Direct and Indirect Taxation Services

Direct Tax Advisory

Our direct tax practice provides end-to-end support across the full spectrum of income tax matters. We advise on sophisticated planning and transaction structuring, covering capital gains realisations, business reorganisations, and international operations. Our team conducts transfer pricing studies with comprehensive documentation, manages return preparation and filing, and represents clients during scrutiny assessments and reassessments. We also provide specialist guidance on complex provisions including Place of Effective Management (POEM), General Anti-Avoidance Rules (GAAR), and 2026 exemptions applicable to startups, family offices, and green investments.

Indirect Tax and GST Compliance

For indirect taxes, we manage GST registration across states, periodic return filings, refund claims, including those arising from inverted duty structures, and detailed compliance audits to ensure seamless operations. Our expertise extends to input tax credit optimisation through supply chain restructuring, customs duty assessments for imports and exports, anti-dumping investigations, and strategic trade policy advice under India's Free Trade Agreements. When disputes arise, we provide litigation support before GST authorities, CESTAT, High Courts, and specialised benches.

Dispute Resolution and Litigation

We represent clients across the entire tax dispute lifecycle, from initial assessments and show-cause notices through to appeals before the Income Tax Appellate Tribunal (ITAT), High Courts, the Supreme Court, and the GST Appellate Authority. Our work includes filing writ petitions to challenge arbitrary notices, disproportionate penalties, unlawful demands, and unconstitutional provisions, with a consistent focus on securing interim stays that protect client cash flows during proceedings.

Our approach combines meticulous record reconstruction, forensic transaction analysis, and precedent-driven legal arguments with practical settlement strategies, including advance rulings, rectification applications, and mediation under the 2026 faceless dispute resolution scheme. Whether defending against evasion allegations or pursuing the correction of appellate orders, we prioritise commercially viable outcomes that minimise litigation timelines and associated costs.

Transaction Support and Risk Management

For M&A transactions, private equity investments, project financing, and cross-border deals, we conduct thorough tax due diligence to surface contingent liabilities, transfer pricing exposures, and value optimisation opportunities. We structure transactions to maximise available incentives under central schemes, including Vivad se Vishwas, as well as state-level policies for SEZs, manufacturing hubs, and renewable energy projects.

Our cross-border practice analyses Double Tax Avoidance Agreements (DTAAs), permanent establishment risks, withholding tax compliance, and Mutual Agreement Procedure / Advance Pricing Agreement (MAP/APA) proceedings with foreign tax authorities.

Beyond individual transactions, we implement enterprise-wide compliance frameworks encompassing internal audits, peer benchmarking, and representations before tax officers during surveys or investigations. In the post-2026 era of digital tracking and AI-driven enforcement, we help clients adopt technology-enabled reporting, predictive risk modelling, and proactive policy advocacy to remain ahead of regulatory priorities.

Why Diwan Advocates for Taxation?

Diwan Advocates crafts tax strategies that safeguard assets, enhance efficiency,

and position clients for sustainable growth in a dynamic regulatory environment.

SPECIALIZED WHITE COLLAR CRIME TEAM:

Diwan Advocates maintains a robust and specialized White Collar Crime and Economic Offences practice, led by its Partner, Dr. Farrukh Khan. The Firm is widely recognised for advising and representing clients in high stakes matters involving allegations pertaining to complex financial, corporate, and regulatory misconduct. White collar prosecutions today are rarely confined to a single forum; they frequently unfold across parallel criminal, civil, regulatory, and insolvency proceedings, demanding a sophisticated command over substantive criminal law, procedural safeguards, and industry specific regulatory regimes. Our practice is defined by a strategic, defence oriented approach that is carefully aligned with the factual matrix, legal vulnerabilities, and commercial realities of each case.

INTERPLAY OF PMLA & IBC:

A key differentiator of our White Collar Crime practice is its strong integration with the Firm’s Insolvency and Bankruptcy Code (IBC) practice, coupled with our extensive experience in handling matters involving multiple cross implications. Our parallel expertise in insolvency and restructuring enables us to bring a nuanced understanding of corporate structures, financial arrangements, related party transactions, fund flows, and commercial decision making, which are issues that frequently form the core of allegations in economic offence and fraud prosecutions. Our experience in dealing with overlapping and interlinked proceedings, such as criminal prosecution, PMLA enforcement, insolvency processes, regulatory action, and civil recovery, allows us to anticipate risks, harmonise defence strategies, and prevent adverse spill over across forums, thereby adding substantial value to our clients’ overall defence.

OUR STRENGTH:

Our white collar crime team advises and represents clients across the entire spectrum of economic offences, including financial and banking fraud, credit related offences, corporate and accounting irregularities, diversion and misappropriation of funds, and money laundering proceedings under the Prevention of Money Laundering Act, 2002 (PMLA). We also act in matters relating to allegations in respect of cyber and technology enabled crimes, bribery and corruption, tax and fiscal offences, and violations of securities laws, corporate governance standards, and statutory compliance frameworks. The Firm regularly represents promoters, directors, key managerial personnel, senior executives, professionals, and corporate entities confronted with criminal prosecution, regulatory scrutiny, and enforcement action.

Diwan Advocates offers comprehensive, end to end legal support throughout the lifecycle of investigations and enforcement proceedings initiated by authorities such as the Enforcement Directorate (ED), Central Bureau of Investigation (CBI), Serious Fraud Investigation Office (SFIO), and securities and market regulators. Our experience spans advisory and representation in search and seizure actions, issuance of summons, recording of statements, provisional attachment and confiscation proceedings, arrest and bail matters, adjudication processes, as well as trial and appellate litigation. We routinely appear before Trial Courts, Special Courts, High Courts, and appellate forums across India in some of the most complex and sensitive white collar criminal matters.

WHITE COLLAR (NON-CONTENTIOUS) ADVISORY:

Beyond courtroom advocacy, the Firm places strong emphasis on proactive risk management and compliance. We advise clients on risk assessment, internal controls, compliance structuring, and preventive strategies designed to mitigate exposure to white collar criminal liability. Our objective is not only to defend proceedings once initiated, but also to safeguard personal and corporate rights, manage regulatory and reputational risk, and secure effective, outcome oriented solutions through precise legal strategy, deep subject matter expertise, and rigorous advocacy.

RECENT ENGAGEMENTS:

Diwan Advocates has extensive experience in advising and representing clients in some of the most sensitive and high profile white collar and economic offence matters in India. The Firm and its leadership have acted in cases involving senior political functionaries, prominent public officials, leading industrialists, infrastructure and real estate promoters, and senior executives of large corporate groups, where proceedings involved serious allegations of financial impropriety, corruption, money laundering, and abuse of official position.

Our experience includes representing clients in matters involving large scale infrastructure and real estate transactions, complex fund flow structures, alleged diversion and siphoning of funds, policy driven commercial decisions subjected to criminal scrutiny, and enforcement actions arising out of regulatory, vigilance, and investigative proceedings. Several of these matters have involved extensive media attention, multi agency investigations, and parallel proceedings before criminal courts, special courts under economic statutes, High Courts, and regulatory forums.

The Firm has also handled cases involving senior government officers and public servants facing prosecution under anti corruption laws, money laundering statutes, and economic offence frameworks, where defence strategy required a careful examination of decision making processes, statutory discretion, approvals, and the distinction between criminal intent and bona fide administrative or commercial actions.

Across these matters, our role has included advising during investigations, representing clients in search and seizure related proceedings, responding to summons and statements, handling arrest and bail proceedings, challenging attachment actions, and conducting trial and appellate litigation. Our experience in managing high stakes matters with cross implications across criminal law, regulatory enforcement, insolvency proceedings, and civil disputes has consistently enabled us to deliver coherent and effective defence strategies while safeguarding both personal liberty and long term commercial interests.

Diwan Advocates

Intellectual Property Law Practice

A pharmaceutical company spends twelve years and hundreds of crores developing a new molecule. A competitor files a patent application for a process that is, on close reading, the same invention described differently. The original company has 60 days from the date of publication to oppose the application. They call a lawyer on day 55.

A fashion brand discovers that a manufacturer in Surat is selling near-identical products under a name that looks and sounds like theirs. The counterfeits are already on e-commerce platforms. By the time a civil suit is filed, heard, and decided, the brand's reputation has taken the hit. They need an interim injunction within days, and they need the platforms to take the listings down now.

A software startup is acquired by a foreign buyer. During due diligence, the buyer's lawyers discover that the core product contains open-source components licensed under the GPL. The startup's founders did not know this created a problem. It does. GPL requires that any software incorporating GPL code be made available under the same terms. The buyer's plan to keep the source code proprietary is suddenly in question.

Intellectual property law is not abstract. It is the legal architecture that determines whether a company can protect what it built, charge for what it created, and stop others from free-riding on its investment. Getting it right requires technical knowledge, commercial judgment, and the ability to move fast when infringement happens.

At Diwan Advocates, our IP practice covers patents, trade marks, copyright, designs, geographical indications, trade secrets, and the increasingly complex questions of IP in digital and technology contexts. We advise on registration and prosecution, on licensing and commercialisation, on enforcement and defence, and on the IP dimensions of corporate transactions.

Patents

A patent grants its holder the exclusive right to make, use, sell, and import a patented invention in India for 20 years from the date of filing. The Patents Act, 1970 requires that an invention be novel, involve an inventive step, and be capable of industrial application. Section 3 sets out what is not patentable, including discoveries of natural phenomena, mathematical methods, business methods, and critically for the technology sector, computer programmes per se.

What Is and Is Not Patentable in India

The Section 3(k) exclusion for computer programmes per se has been interpreted by the Indian Patent Office and courts to mean that software implemented inventions can be patented if they produce a technical effect beyond the normal physical interactions between software and hardware. A pure business method implemented in software is not patentable. A software-implemented process that solves a specific technical problem in a novel way may be. The line is not always clear, and drafting the claims to capture the technical effect while satisfying the Section 3(k) test requires careful prosecution strategy.

Section 3(d) of the Patents Act, which prohibits the grant of patents for new forms of known substances unless they demonstrate significantly enhanced efficacy, is one of the most debated provisions in global pharmaceutical patent law. The Supreme Court upheld it in Novartis AG v. Union of India (2013), rejecting the patent for imatinib mesylate, the active ingredient in Gleevec. The provision is intended to prevent evergreening, the practice of making minor modifications to extend patent protection on medicines whose original patents are expiring.

Patent Prosecution and Opposition

Filing a patent application in India begins a prosecution process that typically takes three to five years from filing to grant. Once filed, the application is examined and the examiner raises objections. The applicant must respond within twelve months of the first examination report. A pre-grant opposition can be filed by any person at any time before the patent is granted. A post-grant opposition can be filed by an interested person within twelve months of the date of publication of the grant. We manage prosecution from initial drafting through examination, opposition proceedings, and appeal before the Intellectual Property Appellate Board.

Compulsory Licensing

Sections 84 to 92 of the Patents Act allow the Controller of Patents to grant a compulsory licence to a third party to work a patent without the patent holder's consent, where the reasonable requirements of the public with respect to the invention have not been satisfied, the invention is not available to the public at a reasonably affordable price, or the invention is not worked in India. The first compulsory licence ever granted in India was issued in 2012 for the anti-cancer drug sorafenib tosylate in Natco Pharma v. Bayer Corporation. Compulsory licensing remains a live issue in pharmaceutical patent disputes.

Trade Marks

A trade mark is any sign capable of distinguishing the goods or services of one undertaking from those of another. The Trade Marks Act, 1999 protects words, logos, device marks, three-dimensional shapes, colours, sounds, and smell marks. Registration gives the owner the exclusive right to use the mark for the registered goods and services and the right to sue for infringement. Unregistered marks are protected through the common law action of passing off.

Registration Strategy

A trade mark application filed in India designates one or more of the 45 Nice Classification classes of goods and services. The scope of protection is broadly limited to the class or classes in which the mark is registered, though well-known marks are protected across classes. Filing strategy matters: a mark registered only in the class covering the applicant's current business is vulnerable to infringement in adjacent classes as the business expands. We advise on classification strategy, on the relative merits of seeking well-known mark status, and on building a registration portfolio that keeps pace with business growth.

Examination, Opposition, and Rectification

After a trade mark application is examined and accepted, it is published in the Trade Marks Journal. Any person can oppose the application within four months of publication. Grounds of opposition include that the mark is identical or deceptively similar to an earlier mark, that it is descriptive or generic, or that it was applied for in bad faith. A registered mark can be challenged by a rectification application to the High Court on grounds including non-use for a continuous period of five years and three months. We conduct opposition proceedings and rectification applications on behalf of both applicants defending their marks and third parties challenging marks that should not have been registered.

Infringement and Passing Off

Trade mark infringement requires use of a mark identical or deceptively similar to the registered mark in relation to identical or similar goods or services, in the course of trade. Passing off does not require registration: it protects the goodwill a business has built up in its unregistered name or mark against misrepresentation by a third party that causes or is likely to cause damage. Both causes of action can be brought simultaneously. In urgent cases involving active counterfeiting, we apply for an ex parte interim injunction before the High Court, often combined with an Anton Piller order allowing a court-appointed commissioner to enter the defendant's premises and seize infringing goods and records.

Copyright

Copyright protects original creative works from the moment they are created. Registration is not required for protection, but it creates an evidentiary presumption of ownership and is important in enforcement. The Copyright Act, 1957 protects literary works including software and databases, musical works, artistic works, cinematograph films, and sound recordings. The term of protection is the life of the author plus 60 years for most categories of work.

Ownership and the 2012 Amendment

The question of who owns a copyright is frequently contested. Where an employee creates a work in the course of employment, the employer is typically the first owner. Where a work is commissioned, the position depends on the category of work. The 2012 amendment introduced a provision that an author or composer who assigns copyright to a film producer or sound recording producer retains the right to receive an equal share of royalties for uses other than as part of the film or recording. This right cannot be contracted away and has been the subject of significant litigation in the music industry.

Fair Dealing and Exceptions

The Copyright Act provides exceptions to infringement for fair dealing for the purposes of research, private study, criticism, review, and reporting of current events. These are narrower than the fair use doctrine in the United States and do not permit wholesale copying even for non-commercial purposes. Educational exceptions allow reproduction for teaching purposes within prescribed limits. The boundaries of these exceptions are increasingly tested in the context of training AI systems on copyrighted content, a question Indian courts have not yet definitively answered.

Online Infringement and Takedowns

Online copyright infringement is widespread. A rights holder who discovers infringing content on a platform can send a takedown notice to the platform relying on the intermediary liability framework under Section 79 of the Information Technology Act, 2000. A platform that fails to act expeditiously on a takedown notice from a rights holder loses its safe harbour protection and becomes liable for the infringement. We send takedown notices, manage platform responses, and where platforms are unresponsive, obtain John Doe injunctions from the High Courts requiring ISPs to block access to infringing content.

Designs

The Designs Act, 2000 protects the visual features of a finished article: its shape, configuration, pattern, ornamentation, or composition of lines or colours, applied to the article by any industrial process. Protection requires that the design be new or original and not previously published. Registration gives a ten-year monopoly, extendable by five years on payment of the prescribed fee.

Design protection is separate from and narrower than copyright protection. It protects the appearance of an article as applied to a specific class of goods, not the underlying artistic work. A design registered for a textile pattern protects that pattern when applied to textiles in the registered class. It does not necessarily protect it when applied to wallpaper or ceramics without a separate registration. Designs that are primarily dictated by function rather than aesthetics are not registrable.

Design infringement in consumer goods, furniture, fashion, and packaging is a fast-moving area. The combination of design registration and trade dress passing off is often used to protect product appearance comprehensively, covering both the registered design and any acquired distinctiveness the product has built in the market.

Trade Secrets and Confidential Information

India does not have a dedicated trade secrets statute. Protection for confidential business information relies on contractual obligations of confidence, the law of breach of confidence as developed by the courts, and in some cases the tort of inducement of breach of contract where a competitor has actively recruited employees to acquire confidential information.

The practical protection of trade secrets begins long before any dispute arises. Employment agreements must contain well-drafted confidentiality clauses that survive termination. Technology transfer agreements must clearly define what is confidential and what the recipient can and cannot do with it. Access to genuinely sensitive information should be limited on a need-to-know basis and documented. When an employee leaves and joins a competitor, the strength of the legal response available depends directly on the quality of the documentation that was put in place during the employment.

Non-compete clauses in Indian employment agreements face a significant legal constraint. Section 27 of the Indian Contract Act, 1872 renders agreements in restraint of trade void. Indian courts have consistently held that a post-employment non-compete clause is void as a restraint of trade, regardless of the duration or geographic scope. A non-solicitation of customers clause is generally upheld if it is reasonable in scope. A confidentiality obligation survives employment and is enforceable. Understanding this distinction is essential for businesses seeking to protect their competitive position when key employees leave.

IP in Corporate Transactions

Intellectual property is often the most valuable asset in a technology or brand-driven business, and its legal health determines the value and risk profile of any transaction involving that business.

IP Due Diligence

In an acquisition or investment, IP due diligence covers ownership of all registered and unregistered IP, validity of key registrations, freedom to operate analysis identifying third-party IP that the business's products or processes may infringe, chain of title for IP created by founders before incorporation or by contractors without assignment agreements, open-source licence compliance in software products, and the terms of all existing IP licences including any restrictions on assignment or change of control. A gap in IP ownership or a contaminating open-source licence discovered after closing can significantly affect the value of what was acquired.

IP Licensing

An IP licence grants a licensee the right to use IP owned by the licensor within defined parameters. The key terms of any IP licence are the scope of the grant (what rights, in what territory, for what products), whether the licence is exclusive or non-exclusive, the royalty structure, sublicensing rights, audit rights, quality control obligations where brand standards must be maintained, and what happens on termination. We draft and negotiate IP licences across all categories of IP and across all industries, including patent licences for technology transfer, trade mark licences for franchising and distribution, and copyright licences for content distribution.

IP Assignment in M&A

In a share acquisition, the IP stays with the target company and transfers with it. In an asset acquisition, IP must be specifically identified and assigned. Each category of IP has its own assignment requirements. Patent assignments must be in writing and registered with the Patent Office to be effective against third parties. Trade mark assignments must be recorded with the Trade Marks Registry. Copyright assignments must be in writing signed by the assignor. A failure to properly execute and register an IP assignment can leave the buyer without the title they paid for.

Enforcement: Getting to Court Fast

IP infringement causes damage that compounds with delay. A counterfeit product in the market erodes brand value and consumer trust. A competitor using a patented process has a cost advantage that grows every day. Online infringing content spreads faster than litigation. The first priority in any enforcement situation is speed.

Interim Injunctions and Anton Piller Orders

An interim injunction from the High Court can stop the infringement within days of filing. The applicant must show a prima facie case, that the balance of convenience favours a grant, and that damages would not be an adequate remedy. In trade mark and copyright cases involving active counterfeiting, courts will also grant Anton Piller orders, allowing a court-appointed commissioner to enter the defendant's premises without notice, inspect, photograph, and seize infringing goods and records. These orders are among the most powerful tools in IP enforcement and require careful preparation to obtain and execute correctly.

John Doe Orders and Online Enforcement

Where infringing content is hosted by unknown parties or distributed through multiple websites, the courts can issue John Doe orders, also called Ashok Kumar orders after the Indian variant, directing ISPs and platforms to block access to infringing content at specified URLs or more broadly. These orders are regularly granted in film piracy and software piracy cases. We obtain and enforce John Doe orders and manage the ongoing monitoring required to ensure that infringing content does not reappear at new URLs after a blocking order.

Border Measures

IP rights holders can record their registered trade marks and copyrights with the Customs authorities under the Customs Act, 1962 and the IPR (Imported Goods) Enforcement Rules, 2007. Once recorded, Customs officers can detain suspected infringing goods at the border and notify the rights holder, who then has a limited period to take legal action. This is one of the most cost-effective enforcement tools available against imported counterfeits.

Why Diwan Advocates for Intellectual Property?

Legislative Reference Index

Intellectual property is only as valuable as the legal protection behind it.

We build that protection and defend it when it is challenged.

Diwan Advocates  |  Intellectual Property Practice  |  Delhi, India

Diwan Advocates

Delhi, India  |  Full-Service Legal Practice

A company receives a CCI dawn raid at 9 in the morning. By 9:15, they need to know what investigators can and cannot take, what employees should and should not say, and whether any of the documents on the server are legally privileged. They do not need a firm that handles competition law occasionally. They need one that has done this before.

A founder signs a term sheet for Series A funding from a Singapore-based investor. The cap table has three co-founders, one of whom has left, two ESOP tranches that were never formally issued, and a convertible note from 2022 whose conversion terms nobody documented properly. The investor finds all of it in due diligence. The deal is not dead. But it needs fixing, fast, by people who understand both the Indian company law position and what the investor needs to see.

A woman in Delhi receives a court summons from a family court abroad. Her husband filed for divorce three months ago without telling her. She did not know the proceedings existed until the summons arrived. She has two children in school in Delhi and property jointly held with her husband. She needs to understand within 48 hours what her rights are, whether the Indian courts have jurisdiction, and what she should do first.

Three clients. Three completely different areas of law. One common thread: when a serious legal matter arrives, the quality of the lawyers you have matters more than anything else.

Diwan Advocates is a full-service law firm based in Delhi. We work across 45+ practice areas, from corporate transactions and tax to criminal defence, family law, data privacy, competition, environment, and entertainment. We advise businesses, founders, individuals, and institutions. The lawyers who advise on your matter are the lawyers who appear in court on it.

What We Do: Our Practice Areas

Why Clients Choose Diwan Advocates

How We Can Help You

If you run a business

We help with company formation, shareholders agreements, investment transactions, and merger clearances. We draft and review the commercial contracts your business depends on. We advise on GST, direct tax, and transfer pricing. When a dispute arises, with a supplier, a customer, a competitor, or a regulator, we handle it.

If you are a founder or startup

We structure equity, ESOP schemes, and term sheets. We handle FEMA compliance for foreign investment. We advise on data privacy and technology contracts from the early stage, before problems accumulate. We have worked with companies from incorporation through to acquisition.

If you are an individual

We handle family law matters across all personal law frameworks with the discretion they require. We advise on property purchases, succession planning, and wills. We represent individuals in criminal proceedings, including bail, trial, and appeal. We advise NRIs on the Indian legal implications of decisions made abroad.

If you are facing regulatory action

We defend companies and individuals in CCI investigations, SEBI enforcement proceedings, Income Tax prosecutions, SFIO fraud investigations, and data protection enforcement. We also advise on how to avoid regulatory action in the first place through properly structured compliance programmes.

If you are in a dispute

We appear before the Supreme Court, High Courts, NCLT, NCLAT, NGT, commercial courts, family courts, and consumer forums. We handle domestic and international arbitration. We obtain urgent interim relief when it is needed quickly. We also know when negotiating a settlement is the better outcome and pursue it without hesitation.

If you work in a creative or technology industry

We advise creators, platforms, labels, studios, athletes, gaming companies, and AI developers on the law that governs their work. We handle copyright disputes, personality rights protection, OTT licensing, defamation defence, DPDPA compliance, and technology M&A. We understand the industries we advise.

The Integrated Advantage

Most significant legal matters touch more than one area of law. A factory that receives a closure order from the pollution control board may also face a criminal complaint against its directors, a claim from affected residents before the NGT, a lender demanding compliance under its loan covenants, and a tax assessment disputing its remediation expenses, all at the same time. A single-practice firm cannot handle that. A firm with disconnected practice groups gives each part to a different team that does not speak to the other.

At Diwan Advocates, our practice areas work together. The taxation team is involved when a family law matter has estate planning implications. The competition team is involved when a commercial contract contains potentially anti-competitive clauses. The environment team and the company law team coordinate when a listed company faces both regulatory and market disclosure obligations arising from the same environmental incident. This is not a marketing point. It is how we actually operate, and the clients who have needed it know the difference it makes.

The Legal Landscape Has Changed. We Are Ready for It.

Between 2023 and 2025, India enacted more significant new legislation than in any comparable period in recent memory. The Bharatiya Nyaya Sanhita replaced the Indian Penal Code. The Bharatiya Nagarik Suraksha Sanhita replaced the Code of Criminal Procedure. The Bharatiya Sakshya Adhiniyam updated the law of evidence. The Digital Personal Data Protection Act created India's first comprehensive data protection regime. The Telecom Act replaced a framework from 1885. The Competition Amendment Act changed the merger control regime. The Van Adhiniyam changed forest clearance law. The Surrogacy Regulation Act changed family formation law.

Not every firm has kept pace. We have. Our advice reflects the law as it stands today, including the provisions that have not yet been tested in court, the regulations still being finalised, and the areas where the legislative intent is clear even if the procedural rules are not. We tell clients what is certain and what is not, and we advise them on how to act sensibly in both situations.

Whatever the legal matter, the question is always the same:

do you have lawyers who know this area, who will give you a straight answer,

and who will see it through to the end?

At Diwan Advocates, the answer is yes.

Diwan Advocates  |  Delhi, India

Diwan Advocates

SARFAESI and Secured Lending Practice

A bank's borrower has not paid in over a year. The account is an NPA. The security is a commercial property worth more than the loan outstanding. Before SARFAESI, the bank filed a suit and waited. Now it serves a demand notice, waits 60 days, takes possession, and sells at auction. No court permission needed. If the borrower wants to fight it, the borrower goes to the DRT.

A manufacturing company gets a possession notice under Section 13(4). The promoters signed personal guarantees. They believe the NPA classification was wrong and the demand notice misstated the amount. They have 45 days to file before the DRT. After that, the right is gone.

SARFAESI gives secured creditors real power. It also gives borrowers and guarantors specific procedural rights that, used correctly and quickly, can constrain that power. At Diwan Advocates, we work on both sides: lenders enforcing, and borrowers and guarantors defending.

What SARFAESI Does

The SARFAESI Act, 2002 allows secured creditors to enforce a security interest in movable or immovable assets without going to court. It applies to scheduled banks, notified financial institutions, housing finance companies, and NBFCs above the RBI's prescribed asset threshold. Agricultural land, loans below Rs 1 lakh, and accounts where less than 20 percent of the principal is outstanding are excluded.

The security interest must be a recognised form under Indian law: equitable mortgage by deposit of title deeds, registered mortgage, hypothecation over movables, or a charge under the Companies Act. An unsecured guarantee alone is not sufficient.

The Enforcement Process: Step by Step

Step 1: NPA Classification

The account must be an NPA under the applicable RBI norms before enforcement can begin. For banks, that means interest or principal overdue for more than 90 days. A notice served before proper NPA classification is vulnerable to challenge.

Step 2: Section 13(2) Demand Notice

The secured creditor serves written notice on the borrower and guarantor specifying the amount due and the secured assets intended to be enforced. The borrower has 60 days to pay in full. The notice must be served by registered post. Defects in the notice or its service are grounds for challenge before the DRT.

Step 3: Borrower's Representation

The borrower can make a written representation within 60 days disputing the amount, the NPA classification, or the notice itself. The secured creditor must consider it and, if rejected, give written reasons. Failure to do so is a ground of challenge.

Step 4: Section 13(4) Possession

If payment is not made within 60 days, the secured creditor can take possession, take over management, appoint a manager, or require payment from a person who acquired the secured asset from the borrower. Possession may be symbolic, by affixing a notice and publishing in newspapers, or physical. Where the occupant resists, the secured creditor applies to the Chief Metropolitan Magistrate or District Magistrate under Section 14 for assistance. The CMM or DM acts in an executive, not judicial, capacity.

Sale of the Secured Asset

Once in possession, the secured creditor sells by public e-auction under the Security Interest (Enforcement) Rules, 2002. The key requirements are straightforward: obtain a valuation, set a reserve price at or above the valuation, publish a notice in two newspapers at least 30 days before auction, and serve the notice on the borrower personally.

The borrower can redeem the asset at any time before the actual sale by paying the full outstanding amount including costs. This right cannot be contracted away. On completion of sale, the authorised officer issues a sale certificate. The buyer's title is subject to prior charges and statutory dues that rank ahead of the secured creditor.

Challenging Enforcement: Section 17 Before the DRT

Any person aggrieved by a measure under Section 13(4) can file an application before the Debt Recovery Tribunal within 45 days of the measure. The DRT can condone delay for a further 45 days on sufficient cause. Beyond 90 days, the right is extinguished. This is the hardest deadline in SARFAESI practice.

Grounds of challenge include improper NPA classification, defective or unserved demand notice, failure to consider the borrower's representation, incorrect amount in the notice, exclusion of the asset from SARFAESI's scope, and procedural failures in taking possession. A stay of the sale pending the application is available but typically requires a deposit of part of the outstanding amount.

Orders of the DRT can be appealed to the Debt Recovery Appellate Tribunal under Section 18. The DRAT requires a pre-deposit of 50 percent of the debt as determined by the DRT, which can be reduced on application. This deposit condition is the single biggest practical constraint on appealing DRT orders.

Guarantors: Enforcement and Defences

Where a personal or corporate guarantor has created security over their own assets, the Section 13(2) notice must be served on them as well. They have the same 60-day period to pay and the same right of representation. Their secured assets can be enforced in the same way as the borrower's.

Guarantors have specific legal defences under the Indian Contract Act, 1872: if the creditor varied the principal contract without the guarantor's consent, released the principal debtor, or gave time without reserving rights against the guarantor, the guarantor may be discharged. Whether any defence is available depends on the guarantee's terms and the facts.

Asset Reconstruction Companies

ARCs acquire NPAs from banks at a discount, step into the lender's shoes, and enforce the security under SARFAESI. They fund acquisitions by issuing security receipts to qualified institutional buyers. The RBI regulates ARCs under the Act.

When a loan is assigned to an ARC, the borrower's counterparty changes. The ARC bought the loan at a discount and its economics differ from the original bank's. This creates room for negotiated settlement at amounts the original lender may not have accepted. We advise borrowers on engaging with ARCs from a position of legal knowledge and realistic commercial understanding of what the ARC needs to achieve.

SARFAESI and the IBC

When a CIRP is admitted against the borrower, the Section 14 moratorium under the Insolvency and Bankruptcy Code, 2016 stays all SARFAESI enforcement, including proceedings already underway. An ongoing auction can be halted. The secured creditor joins the Committee of Creditors and votes on the resolution plan.

The strategic choice between invoking SARFAESI and initiating CIRP depends on the security value, the business viability, the number of creditors, and the prospect of a resolution plan. Sometimes both routes run in parallel until one produces a result. We advise lenders on this choice and manage both processes simultaneously where that is the right approach.

Why Diwan Advocates for SARFAESI?

Legislative Reference Index

SARFAESI runs on deadlines that do not wait. Whether you are enforcing or defending, the time to act is now.

Diwan Advocates is ready.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Real Estate Practice

Real estate transactions in India touch multiple overlapping laws: title, registration, stamp duty, regulatory approvals, lending, and insolvency. A title defect discovered after registration, a missed RERA deadline, or a lender enforcing security can each unwind years of work. At Diwan Advocates, we advise buyers, sellers, developers, lenders, and investors across the full transaction and dispute cycle.

What We Do

Our real estate practice covers transactional work, regulatory compliance, and litigation. We act for private buyers, institutional investors, developers, banks, and NBFCs.

•      Title and Due Diligence: Revenue records, encumbrance certificates, CERSAI searches, mutation entries, and litigation checks before any acquisition or lending decision.

•      Transactions and Structuring: Sale deeds, development agreements, joint venture documents, and leases drafted and negotiated with stamp duty and registration requirements built in.

•      RERA Compliance: Project registration, disclosure obligations, allotment agreements, and complaints before the Real Estate Regulatory Authority and the Appellate Tribunal.

•      Secured Lending and Enforcement: Mortgage creation, charge registration, SARFAESI enforcement, and auction purchase due diligence for banks and NBFCs.

•      Acquisition and Sale Disputes: Specific performance, possession, cancellation of sale deeds, and injunctions before civil courts and high courts.

•      Landlord and Tenant: Lease drafting, rent recovery, eviction proceedings, and disputes under applicable rent control legislation.

•      Acquisition by the State: Compensation challenges and enhanced compensation proceedings under the Land Acquisition Act, 2013.

Title and Due Diligence

Title in India is not registered in the Torrens sense. Ownership is established by a chain of documents. A buyer or lender must trace the chain back far enough to be satisfied that the seller or mortgagor has clear, marketable title and the power to sell or mortgage.

A standard diligence exercise covers:

•      Title documents going back 30 years minimum, cross-checked against revenue records and mutation entries.

•      Encumbrance certificate from the sub-registrar showing registered transactions affecting the property.

•      CERSAI search to identify any registered security interest under the

•      CERSAI search to identify any registered security interest under the SARFAESI Act, 2002.

•      Charge search with the Registrar of Companies where the seller or mortgagor is a company, under the Companies Act, 2013.

•      Pending litigation search in courts having jurisdiction.

•      Regulatory approvals: conversion orders, building plan sanctions, occupation certificates, and RERA registration where applicable.

Gaps in the title chain, unregistered transactions, or undisclosed encumbrances create risk that no indemnity clause fully cures. We advise on when to proceed, when to seek additional representations, and when to walk away.

Stamp Duty and Registration

Every instrument of sale, mortgage, or lease must be stamped under the applicable State Stamp Act or the Indian Stamp Act, 1899, and registered under the Registration Act, 1908 where required. An insufficiently stamped document is inadmissible in evidence and unenforceable. An unregistered sale deed of immovable property does not convey title.

Stamp duty is a significant transaction cost, typically between 4 and 7 percent of the market value depending on the State. Structuring a transaction to reduce duty exposure is permissible; misdescription of consideration is not. We advise on duty-efficient structuring within the law and on curative stamping where historical instruments have shortfalls.

RERA: Real Estate Regulation and Development Act, 2016

The RERA (Real Estate Regulation and Development Act, 2016) applies to residential and commercial real estate projects above prescribed thresholds. Developers must register projects with the State RERA authority before advertising or selling. Allotment agreements must follow the model format. Possession must be delivered by the registered date.

Buyers have enforceable rights to:

•      Refund with interest where the developer fails to complete on time.

•      Compensation for structural defects within five years of possession.

•      Information disclosed in the RERA registration, which the developer cannot unilaterally alter.

Complaints lie before the RERA adjudicating officer for compensation and before the authority for other violations. Orders are appealable to the RERA Appellate Tribunal, and from there to the High Court. We represent buyers pursuing refunds and compensation, and developers responding to complaints.

Mortgages and Secured Lending

The Transfer of Property Act, 1882 governs the creation of mortgages. The principal forms used in practice are the equitable mortgage by deposit of title deeds (requiring notified area notification in most States) and the registered mortgage by deed. Both require stamp duty. A registered mortgage must also be registered under the Registration Act, 1908.

Where the mortgagor is a company, the mortgage is a charge that must be registered with the Registrar of Companies within 30 days of creation. An unregistered charge is void against the liquidator and other creditors on winding up.

On default, a secured creditor with a mortgage over immovable property above the SARFAESI threshold can enforce without court intervention. The sequence is: NPA classification, Section 13(2) demand notice, 60-day waiting period, possession under Section 13(4), and sale by public e-auction. Buyers at SARFAESI auctions take title subject to prior charges and statutory dues. TDS under Section 194-IA of the Income Tax Act, 1961 applies on auction purchases above Rs 50 lakh.

Acquisition and Title Disputes

When a transaction breaks down or title is contested, the remedies depend on the stage and the nature of the dispute.

•      Specific performance of an agreement to sell lies before the civil court under the Specific Relief Act, 1963. The court has discretion, and both quantum of payment and readiness to perform are central to the claim.

•      Possession suits lie where a buyer has paid but not received possession, or where an owner has been dispossessed without due process.

•      Cancellation of a sale deed on grounds of fraud, misrepresentation, or failure of consideration is a civil remedy that can be combined with a criminal complaint under the Bharatiya Nyaya Sanhita, 2023.

•      Injunctions restraining further dealing with a property pending dispute are available but require showing a prima facie case, balance of convenience, and irreparable harm.

We appear before district courts, high courts, and the Supreme Court in real estate disputes, and before RERA authorities and tribunals on regulatory matters.

Legislative Reference

Why Diwan Advocates for Real Estate

Real estate transactions move on negotiated timelines. Disputes do not wait.

Diwan Advocates is ready.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Restructuring and Insolvency Practice

A consortium of lenders is owed Rs 800 crore by a steel company. The promoters have tried to sell the business for two years. No buyer has emerged at a price that covers the debt. One of the lenders files under Section 7. The NCLT admits the application. The moratorium kicks in. A resolution professional takes charge. The promoters lose control of the company they built over twenty years. The lenders, who thought they were secured, discover that the resolution plan that emerges from the CoC pays them sixty paise on the rupee. This is not a failure of the system. This is the system working as designed.

A trade creditor supplied raw materials worth Rs 40 lakh to a manufacturer that has now stopped paying. The creditor has a Section 9 application ready. But the manufacturer's bank has already filed under Section 7, the CIRP has been admitted, and the moratorium is in place. The trade creditor's only route now is to file a claim with the resolution professional and wait to see what the resolution plan offers operational creditors.

Insolvency law is where the interests of every stakeholder collide under a tight statutory timeline. Financial creditors, operational creditors, promoters, employees, government authorities, and resolution applicants all want different outcomes, and the law has a specific answer for each of them. Getting the right advice at the right moment in the process determines how much of that outcome you actually receive.

At Diwan Advocates, we advise across the full insolvency and restructuring landscape: financial creditors initiating and managing CIRP, operational creditors filing and protecting their claims, corporate debtors and promoters navigating the process, resolution applicants structuring and submitting plans, and parties seeking to restructure before formal insolvency begins.

The Insolvency and Bankruptcy Code, 2016

The Insolvency and Bankruptcy Code, 2016 replaced a fragmented insolvency framework spread across the Companies Act, SICA, and the Presidency Towns Insolvency Act with a single consolidated statute. It created the National Company Law Tribunal as the adjudicatory authority, the Insolvency and Bankruptcy Board of India as the regulator, and a time-bound resolution process designed to preserve the going concern value of distressed businesses.

The Code has been significantly amended since 2016, with major changes in 2018, 2019, and 2021 addressing the pre-packaged insolvency framework, personal insolvency, the treatment of home buyers as financial creditors, and the liability of resolution applicants for prior offences of the corporate debtor. The jurisprudence from the Supreme Court and NCLAT has been equally significant, with landmark decisions reshaping the rights of secured creditors, the role of the CoC, and the scope of the moratorium.

Corporate Insolvency Resolution Process

Initiating CIRP: Sections 7, 9, and 10

A financial creditor can file under Section 7 on the basis of a default by the corporate debtor. The threshold for default is Rs 1 crore. The NCLT must admit or reject the application within 14 days. Once admitted, the moratorium begins immediately and the resolution professional is appointed.

An operational creditor, meaning a supplier of goods or services, a contractor, or a government authority owed statutory dues, can file under Section 9. Before filing, the operational creditor must serve a demand notice and wait 10 days. If the corporate debtor disputes the debt in a genuine manner, the NCLT may reject the application. Operational creditors have no vote in the CoC but can submit claims and receive their entitlement under the resolution plan.

The corporate debtor itself can initiate CIRP under Section 10. This voluntary route requires a special resolution of shareholders and is used where the board and promoters accept that the business needs a structured resolution. Voluntary CIRP is relatively rare but can be the right approach where an early start preserves more value than waiting for a creditor to file.

The Moratorium

From the date the NCLT admits the CIRP application, no suit or proceeding can be instituted or continued against the corporate debtor, no enforcement action can be taken against its assets, no recovery can be initiated against it, and it cannot transfer or encumber its assets. The moratorium is automatic and applies to all creditors, including secured creditors and government authorities. It does not apply to proceedings against guarantors, which can continue in parallel.

The Resolution Professional

The resolution professional manages the affairs of the corporate debtor during the CIRP. The promoters and directors lose control of the company on the appointment of the RP. The RP takes custody of all assets, books, and records, constitutes the Committee of Creditors, invites resolution plans, and facilitates the process. The RP can avoid certain transactions made before the CIRP: preferential transactions within two years before the commencement date, undervalued transactions within two years, and fraudulent transactions at any time.

The Committee of Creditors

The CoC consists of all financial creditors. Each member's vote is proportionate to their share of the total financial debt. Operational creditors are not members but are entitled to be heard. The CoC approves or rejects resolution plans by a vote of at least 66 percent of the voting share. It can also decide to liquidate the corporate debtor by a 66 percent vote if no viable plan is found. The CoC's commercial wisdom is given significant deference by the courts, and the NCLT's role is to ensure process compliance, not to second-guess commercial decisions.

Resolution Plans

Any person other than a wilful defaulter or a disqualified promoter can submit a resolution plan. The plan must provide for payment of CIRP costs in full as a first priority, payment to operational creditors not less than what they would receive in liquidation, and payment to dissenting financial creditors not less than their liquidation value. Once the NCLT approves the plan, it is binding on the corporate debtor, its employees, members, creditors, guarantors, and all other stakeholders. All prior claims not provided for in the plan are extinguished.

The Supreme Court in Ghanashyam Mishra and Sons v. Edelweiss ARC (2021) confirmed that this extinguishment applies to income tax and other government dues as well. A resolution applicant acquires a clean slate on plan approval, subject only to what the plan itself provides.

Liquidation

If no resolution plan is approved within the CIRP period, or if the CoC votes to liquidate, the NCLT passes a liquidation order. The resolution professional becomes the liquidator. The corporate debtor's assets are sold and the proceeds distributed according to the waterfall in Section 53.

Section 53 Waterfall

The order of priority is: CIRP costs and liquidation costs first, then secured creditors (up to the extent of their security) alongside workmen's dues for 24 months, then employee dues for 12 months, then unsecured financial creditors, then government dues, then remaining secured creditor claims above security value, then remaining debts, then preference shareholders, then equity shareholders. A secured creditor who opts out of the waterfall and enforces their security separately under SARFAESI relinquishes their right to participate in the waterfall for the shortfall, unless they first relinquish the security to the liquidation estate.

In practice, liquidation recoveries for unsecured and subordinated creditors are very low. Promoting a viable resolution plan over liquidation is almost always the better commercial outcome for all but the most senior creditors.

Personal Insolvency and Guarantor Liability

Part III of the Insolvency and Bankruptcy Code, 2016 governs insolvency of individuals and partnership firms. For personal guarantors to corporate debtors, insolvency proceedings are heard by the NCLT, the same forum that handles the corporate CIRP. For other individuals, insolvency proceedings are heard by the Debt Recovery Tribunal.

A lender can file for personal insolvency of a guarantor simultaneously with or after filing CIRP against the corporate debtor. The personal guarantor cannot claim that the lender must first exhaust its remedies against the corporate debtor before proceeding against the guarantor. The moratorium in the personal insolvency proceeding can, however, stay SARFAESI enforcement against the guarantor's personal assets, which is a critical intersection for secured lenders managing both proceedings at once.

Promoters who have given personal guarantees to lenders face the real prospect of losing personal assets in insolvency proceedings even after the corporate debtor has gone through CIRP. We advise promoters on understanding and managing this exposure, and lenders on using personal insolvency proceedings as an effective recovery tool.

Pre-Packaged Insolvency: The Faster Route

The pre-packaged insolvency resolution process, introduced by the IBC Amendment Act, 2021, is available to MSMEs with defaults up to Rs 1 crore. It allows the corporate debtor to negotiate a resolution plan with creditors before filing with the NCLT, reducing the disruption and cost of a full CIRP. The promoter submits a base resolution plan that is approved by at least 66 percent of the unrelated financial creditors before the NCLT application is made.

The NCLT then has a compressed timeline to approve the plan. If the base plan does not maximise value, the RP can invite competing plans. The pre-pack process preserves management continuity during the resolution period, which is a significant advantage over the standard CIRP route where the promoter loses control from day one. We advise MSME borrowers and their creditors on whether the pre-pack route is appropriate and on structuring the negotiation before filing.

Restructuring Before Insolvency: Out-of-Court Options

The best restructuring outcomes are often achieved before a formal insolvency filing. An out-of-court restructuring avoids the costs, the loss of management control, the reputational damage, and the uncertainty of the CIRP process. It also gives the parties more flexibility to structure a solution that works commercially, without the constraints of the IBC's waterfall and plan approval thresholds.

One-Time Settlements

A borrower with a stressed account can approach the lender for a one-time settlement: a negotiated payment of less than the full outstanding amount in exchange for a full discharge. RBI guidelines require banks to have a board-approved OTS policy and to ensure that OTS terms are documented transparently. From the borrower's perspective, an OTS requires raising the settlement funds quickly, which often involves a combination of asset sales, new equity, and negotiation with other lenders.

Schemes of Arrangement

A solvent company that needs to restructure its capital, merge with another entity, or implement a financial reorganisation can do so through a scheme of arrangement under Sections 230 to 234 of the Companies Act, 2013. The scheme requires approval by a prescribed majority of creditors and shareholders in each class, and then sanction by the NCLT. A scheme can achieve a debt restructuring, a merger, a demerger, or a capital reduction in a single court-supervised process.

Distressed M&A: Acquiring Through the IBC

Acquiring a company through the IBC resolution process is one of the most complex transactions in Indian M&A. The resolution applicant bids for the entire business of the corporate debtor, inheriting its employees, contracts, assets, and liabilities subject only to what the approved plan specifies. Done well, it is an opportunity to acquire a business at a significant discount to its going concern value. Done badly, it is an acquisition with hidden liabilities, broken relationships, and a business that cannot function on day one.

Due Diligence in a CIRP

Due diligence in an IBC process is compressed, sometimes to a few weeks, and conducted on the basis of information made available by the RP rather than by the corporate debtor. The information memorandum prepared by the RP is the primary source. Legal due diligence must cover pending litigation, regulatory proceedings, PMLA attachments, environmental liabilities, title to key assets, material contracts and their change of control provisions, and the corporate debtor's tax position.

Plan Structuring and Submission

The resolution plan must address payment to all creditor classes, treatment of employees, the proposed management structure, and the sources of funds for implementation. A plan that is commercially viable but does not meet the minimum payment thresholds for operational creditors or dissenting financial creditors will be rejected by the NCLT. We structure resolution plans that satisfy the legal requirements while reflecting the commercial logic of the acquisition.

Cross-Border Insolvency

India adopted the UNCITRAL Model Law on Cross-Border Insolvency through Part Z of the Insolvency and Bankruptcy Code which is awaiting notification. Until it is notified, cross-border insolvency in India is handled through bilateral arrangements and the courts' inherent jurisdiction. Indian courts have recognised foreign insolvency proceedings in some cases and declined in others.

For companies with operations or creditors in multiple jurisdictions, the absence of a formal cross-border framework creates significant uncertainty. An Indian company in CIRP may have assets abroad that the resolution professional cannot access. A foreign insolvency representative may not have standing to apply to Indian courts for recognition or assistance. We advise on the practical management of cross-border insolvency situations in the current framework and on structuring transactions to minimise cross-border risk.

Why Diwan Advocates for Restructuring and Insolvency?

Legislative Reference Index

In insolvency, the position you hold at the end depends almost entirely on the advice you received at the beginning.

Diwan Advocates gets you the right advice at the right moment.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Transfer of Property Act Practice

A family buys a flat in Delhi. They pay the full consideration, take possession, and move in. Three years later, a stranger appears with a power of attorney and a sale deed from someone who sold the same flat to them six months before. Both buyers have documents. Only one can win the title suit. The question of who wins depends on who had knowledge of the prior transaction and whether both sales were registered. The Transfer of Property Act settles exactly this kind of dispute, and has done so for over 140 years.

Property law in India is older, more detailed, and more litigated than almost any other area of civil law. The Transfer of Property Act, 1882 governs how immovable property changes hands: by sale, mortgage, lease, exchange, gift, and assignment of actionable claims. It defines what must be done for a transfer to be valid, what rights the transferee gets, and what happens when multiple people claim the same property. Every property transaction in India, whether a flat purchase, a commercial mortgage, a long-term lease, or a gift to a family member, is governed by it.

At Diwan Advocates, we advise on property transactions from due diligence through registration, handle the disputes that arise when transactions go wrong, and represent clients in title suits, specific performance claims, redemption suits, partition proceedings, and RERA complaints. We act for individual buyers, developers, lenders, and commercial landlords.

Sale of Immovable Property

Section 54 of the Transfer of Property Act, 1882 defines a sale as a transfer of ownership in exchange for a price paid, promised, or part-paid. For tangible immovable property valued above Rs 100, the sale must be by a registered instrument. An oral sale of such property passes no title. The sale deed must be executed on properly stamped paper, signed by the seller, and registered with the Sub-Registrar of the district in which the property is situated.

Title Due Diligence

Before any sale deed is executed, the title of the seller must be verified. This means tracing ownership through all prior documents for at least 30 years: sale deeds, gift deeds, court decrees, succession certificates, mutation entries in revenue records, and encumbrance certificates from the registrar's office. A bank or NBFC lending against the property will require a formal title opinion. We conduct title due diligence and issue title opinions that identify defects, missing links in the chain, encumbrances, and litigation risks.

Agreement to Sell and Section 53A

Before execution of the sale deed, parties typically enter an agreement to sell specifying the price, payment schedule, and completion date. An agreement to sell does not transfer title but gives the buyer an equitable interest. Where the buyer has paid part of the consideration, taken possession, and performed their obligations, Section 53A protects them from being dispossessed by the seller even if the sale deed has not been executed. This doctrine of part performance is India's equivalent of the English equitable doctrine, but with an important difference: under Indian law, Section 53A is only a shield, not a sword. The buyer in part performance can resist dispossession but cannot sue to enforce the agreement as a transfer of title. For that, they must file for specific performance.

Specific Performance After the 2018 Amendment

The Specific Relief (Amendment) Act, 2018 changed the law significantly. Before 2018, specific performance of a contract for immovable property was discretionary. Courts could award damages instead if they considered that adequate. After 2018, specific performance is the general rule. A court must order specific performance of a contract for immovable property unless the contract itself has become impossible to perform or the plaintiff has not been ready and willing to perform. This amendment strengthened the position of buyers whose sellers backed out, and has resulted in a significant increase in specific performance suits.

Mortgage: Types, Rights, and Enforcement

Section 58 of the Transfer of Property Act defines a mortgage as the transfer of an interest in specific immovable property to secure the payment of money advanced or to be advanced. The TPA recognises six types of mortgage, each with different legal characteristics and different enforcement mechanisms.

Simple Mortgage

The mortgagor binds themselves personally to pay the mortgage money and agrees that on default, the mortgagee shall have the right to cause the mortgaged property to be sold. No possession passes. Enforcement requires a court decree for sale. This is the most common form used in institutional lending where the security is clearly identified and the lender is comfortable with the court process.

Mortgage by Conditional Sale

The mortgagor ostensibly sells the property to the mortgagee with a condition that on default the sale becomes absolute and on payment the sale is void and the mortgagee re-transfers the property. Courts look carefully at whether a transaction structured as a conditional sale is in substance a mortgage, because the consequences differ significantly for the parties.

Usufructuary Mortgage

The mortgagor delivers possession to the mortgagee, who is entitled to receive the rents and profits from the property and to appropriate them in lieu of interest, or in payment of mortgage money, or both. No right of personal action for the debt arises. The mortgage is discharged when the rents and profits received equal the mortgage money and interest.

English Mortgage

The mortgagor binds themselves to repay the mortgage money on a specified date and transfers the property absolutely to the mortgagee, with a condition that the mortgagee will re-transfer on repayment. This gives the mortgagee power of sale without requiring a court decree, making it attractive for commercial lenders. It is less commonly used in India but is specifically recognised by the TPA.

Mortgage by Deposit of Title Deeds

Created by delivering title documents to the lender with intent to create a security. No written instrument or registration is required to create this mortgage, which is why it is the dominant form used by banks in urban lending. The absence of a registered document does not affect validity, but does mean the mortgage does not appear on the encumbrance certificate. SARFAESI enforcement of a mortgage by deposit of title deeds is available to qualifying secured creditors.

Right of Redemption

Every mortgagor has a right to redeem the mortgage by paying the mortgage money at any time before the mortgage is extinguished by a court decree of foreclosure or by a valid sale under SARFAESI or court process. This right cannot be clogged or fettered by any condition in the mortgage deed. Any clause in the mortgage that purports to prevent or delay redemption beyond what the TPA permits is void. The limitation period for a suit to redeem a mortgage is 30 years from the date when the right to redeem accrues.

Lease of Immovable Property

Section 105 of the TPA defines a lease as a transfer of a right to enjoy immovable property for a specified time in consideration of a price paid or promised, or of money, share of crops, service, or any other thing of value. The person who transfers the right is the lessor. The person to whom it is transferred is the lessee.

Leases Requiring Registration

Under the Registration Act, 1908, a lease for a term exceeding one year must be by registered instrument. A lease for a year or less may be by oral agreement or unregistered writing. In practice, most commercial leases, even those for terms under a year, are documented in writing to avoid disputes about terms. An unregistered lease for a term exceeding one year is admissible in evidence only to show the commencement of a tenancy at will, not to enforce the specific terms.

Rights and Obligations

The lessor is bound to disclose material defects in the property, to put the lessee in possession, and to allow quiet enjoyment. The lessee is bound to pay the rent, to keep the property in the condition received, not to make permanent alterations without consent, and to give notice before vacating. On expiry of the lease, the lessee must deliver the property in the same condition as received, subject to fair wear and tear.

Determination of Lease and Forfeiture

A lease is determined by efflux of time, by surrender, by merger, by expiry of notice to quit, or by forfeiture. Forfeiture arises where the lessee breaches the conditions of the lease, including non-payment of rent, denial of the lessor's title, or permanent alienation of the property without consent. Before a court will enforce forfeiture, it considers whether the breach is capable of remedy and whether the lessee should be given an opportunity to remedy it.

Rent Control and Landlord-Tenant Disputes

Many residential and older commercial tenancies in Delhi and other cities are governed not only by the TPA but also by state rent control legislation, which gives tenants security of tenure and limits the rent that can be charged. Eviction of a protected tenant requires proof of specific statutory grounds, which vary by state. We advise landlords and tenants on the interaction between the TPA framework and the applicable rent control legislation in their state, and we appear in rent control tribunals and civil courts in eviction and arrears proceedings.

Gift and Exchange

Gift of Immovable Property

Section 122 of the TPA defines a gift as a transfer of ownership of existing movable or immovable property made voluntarily without consideration. A gift of immovable property must be accepted by or on behalf of the donee during the lifetime of the donor and while the donor is still capable of giving. A gift of immovable property must be made by a registered instrument signed by or on behalf of the donor and attested by two witnesses. An unregistered gift deed of immovable property is void. Under the Hindu Succession Act, 1956, gifts of ancestral property by a coparcener are restricted to their undivided share and require the consent of other coparceners in certain situations.

Exchange

An exchange under Section 118 of the TPA is a mutual transfer of ownership of one property for another, neither being money. Each party is simultaneously transferor and transferee. The rules applicable to sale apply to each party in their capacity as transferor. Exchange deeds are registered instruments attracting stamp duty on the higher value of the two properties exchanged.

Easements and Licences

The Indian Easements Act, 1882 governs the rights of owners of land to use the land of another for a specified purpose. Common easements include the right of way over another's land, the right of light and air from adjacent property, and the right of support. Easements can arise by grant, by prescription after 20 years of open and continuous use, by necessity, or by custom.

Easement disputes are among the most bitterly contested property disputes in urban areas, particularly in older neighbourhoods where properties have been subdivided and built over without formal documentation of access rights. We advise on the existence and enforceability of claimed easements and represent clients in suits for injunctions to prevent obstruction of easements and for declarations of easementary rights.

A licence, unlike an easement, does not create an interest in land. It is a personal permission that can be revoked. The distinction matters because a licensee evicted by the licensor has no right to remain, whereas an easement holder has a right enforceable against the owner and successors in title.

Title Suits, Partition, and Property Disputes

Title Suits

A title suit is a civil action to establish that the plaintiff is the owner of a property and to recover possession from a person in wrongful occupation. The burden of proof lies on the plaintiff to establish a better title than the defendant, not an absolute or perfect title. Courts look at the documents, the revenue records, the history of possession, and the conduct of the parties. The limitation period for a suit to recover possession of immovable property is 12 years from the date of dispossession.

Partition

Where immovable property is co-owned and the co-owners cannot agree on its management or use, any co-owner can sue for partition. The court divides the property in kind where possible, assigning each co-owner a defined portion. Where division in kind is not possible without significantly diminishing the value of the property, the court orders a sale and distribution of the proceeds. Partition suits in joint family property frequently involve questions of Hindu succession law alongside the TPA framework.

Injunctions in Property Disputes

Where a party is about to create a third-party interest in disputed property, construct a structure that would affect the other's rights, or deal with property in a way that would make a future decree futile, an urgent injunction application is the immediate legal response. Courts grant interim injunctions in property matters where the plaintiff establishes a prima facie case of right, balance of convenience in their favour, and irreparable harm if the injunction is refused. We file urgent injunction applications and appear at ex parte hearings in property disputes across the civil courts and High Courts.

RERA: Rights of Buyers Against Developers

The Real Estate (Regulation and Development) Act, 2016 created a dedicated regulatory and dispute resolution framework for real estate transactions. Every project above a prescribed size must be registered with the state RERA authority before launch. Developers must maintain 70 percent of amounts collected from buyers in a dedicated escrow account to ensure project completion. The developer cannot alter the plans or specifications without the written consent of at least two-thirds of the allottees.

Buyer Remedies Under RERA

A buyer whose developer has delayed possession, failed to deliver the agreed specifications, or refused to execute a registered sale agreement can file a complaint before the RERA authority. The authority can order refund of amounts paid with interest at the prescribed rate, compensation for the delay, and in some cases cancellation of the allotment. Complaints before RERA are resolved faster than civil court suits and the interest rates awarded on delayed refunds are significant.

RERA and Concurrent Court Proceedings

RERA does not bar a buyer from also pursuing remedies under the Consumer Protection Act, 2019 for deficiency of service, or from filing a civil suit for specific performance of the agreement. The choice of forum depends on the nature of the relief sought and the stage of the project. We advise buyers on the most effective combination of remedies in their specific situation and pursue them in parallel where that produces the best outcome.

Why Diwan Advocates for Property Law?

Legislative Reference Index

Property disputes are among the longest and most consequential a person will face.

Getting the legal advice right at the beginning costs far less than fixing it later.

Diwan Advocates gets it right from the start.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Private Equity Practice

A foreign fund acquires a controlling stake in an Indian company through a Mauritius SPV. The transaction closes. Eighteen months later, the tax authority raises a demand under GAAR, treating the structure as lacking commercial substance. The fund had not obtained an advance ruling.

A promoter signs a shareholders’ agreement with a PE fund. Three years in, the fund invokes the put option. The promoter refuses to perform. The agreement has an arbitration clause but is silent on whether the option is enforceable as specific relief.

Private equity in India operates across company law, securities regulation, foreign investment rules, taxation, and contract enforcement. Each layer creates risk. At Diwan Advocates, we advise funds, portfolio companies, and promoters across the full investment cycle.

What We Do

Our private equity practice spans deal structuring and documentation, regulatory approvals, and dispute resolution. We act for domestic and offshore funds, investee companies, promoters, and management teams.

Transaction Structuring and Documentation

We structure PE investments from entry to exit, advising on choice of instrument (equity, compulsorily convertible debentures, optionally convertible instruments), entry route (FDI, FPI, or FVCI), and holding structure. We draft and negotiate term sheets, shareholders’ agreements, subscription agreements, and ancillary documents. Key provisions in PE agreements require particular care: anti-dilution rights, liquidation preferences, information and inspection rights, affirmative vote matters, drag-along and tag-along rights, and put and call options. Each of these has enforceability dimensions under Indian law that differ from offshore market practice.

Foreign Investment and Regulatory Approvals

Foreign investment in Indian companies is governed by the Foreign Exchange Management Act, 1999 and the rules and regulations made under it, principally the Foreign Exchange Management (Non-Debt Instruments) Rules, 2019. Sectoral caps, prohibited sectors, pricing guidelines for issue and transfer of shares, and downstream investment conditions all apply. Government approval is required in certain sectors and for investments from land-border countries. FVCIs investing in eligible sectors receive a more flexible regulatory treatment. We advise on structuring to comply with FEMA and obtain requisite approvals, and on downstream restructuring where portfolio companies have their own foreign investment requirements.

Tax Structuring and GAAR

Tax is a primary driver of PE structure. Capital gains on exit, withholding obligations on dividends and interest, treaty eligibility, and indirect transfer taxation under the Income Tax Act, 1961 all require advice before the structure is finalised. The General Anti-Avoidance Rule allows the tax authority to recharacterise or disregard arrangements that lack commercial substance. Structures relying on treaty benefits are also subject to the Principal Purpose Test under India’s tax treaties post-BEPS. We advise on defensible structures, advance rulings before the Board for Advance Rulings, and representation before the Income Tax Appellate Tribunal and higher courts where assessments are challenged.

Corporate Governance and the Companies Act

PE investments in Indian companies sit inside the framework of the Companies Act, 2013. Board composition, related party transaction approvals, restrictions on financial assistance, buy-back regulations, and the rights of minority shareholders are all governed by the Act. Shareholder rights negotiated in the SHA must be consistent with the Act and the articles of association; provisions that conflict with mandatory statutory requirements are unenforceable. We advise on aligning SHA protections with company law, and on oppression and mismanagement proceedings before the NCLT where the relationship between a fund and a promoter breaks down.

Exits: IPO, Secondary Sale, and Strategic Sale

Exit is where PE returns are realised and where legal risk concentrates. An IPO exit involves lock-in periods, offer for sale mechanics, and pre-IPO disclosure obligations under the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2018. A secondary sale to another fund triggers FEMA pricing rules and, if the target is listed, potential insider trading exposure. A strategic sale to a competitor may require Competition Commission of India approval under the Competition Act, 2002. We advise on exit planning from the time of entry and manage each exit route as it develops.

Disputes and Enforcement

PE disputes in India arise between funds and promoters, between co-investors, and between funds and portfolio company management. The most common flashpoints are option exercise and refusal to perform, breach of affirmative vote rights, information right denials, and deadlock. Most PE agreements provide for arbitration. Where the seat is India, the Arbitration and Conciliation Act, 1996 governs the proceeding and any challenge to the award. Where the seat is offshore, enforcement in India requires an application under Part II of the Act. Interim relief in support of arbitration, including injunctions against share transfers or asset dissipation, is available from Indian courts under Section 9. We represent funds and promoters in arbitration, and in related proceedings before the High Court and the NCLT.

Why Diwan Advocates for Private Equity?

Legislative Reference Index

PE transactions are built on tight timelines. Disputes do not announce themselves in advance.

Diwan Advocates is ready.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Partnership and Specific Relief Practice

Two partners run a firm for fifteen years. One begins diverting clients and refuses to render accounts. The other wants dissolution and a true account of what has been taken. The partnership deed is silent on many of the questions that now matter most.

A buyer signs an agreement to purchase land for a specific price. The seller, finding a better offer, refuses to complete. The buyer wants the land, not damages. Whether the court will compel the seller to perform depends on the nature of the property and the conduct of both parties.

Partnership disputes and specific relief claims are among the most fact-intensive matters in Indian civil litigation. At Diwan Advocates, we advise and represent clients across both before trial courts, high courts, and in arbitration.

The Indian Partnership Act, 1932

The Indian Partnership Act, 1932 governs the relationship between partners, the firm’s liability to third parties, and the rights of partners against each other and against the firm. A partnership is defined as the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Registration of a firm is optional but unregistered firms cannot sue to enforce rights arising from the partnership contract or to claim a set-off in certain proceedings.

Rights and Duties of Partners

Partners owe each other duties of good faith and are bound to render true accounts and full information. Each partner is an agent of the firm and of the other partners for acts done in the ordinary course of the firm’s business. Partners are jointly and severally liable for the firm’s wrongful acts and jointly liable for its contractual debts. A partner who competes with the firm, diverts its business, or misapplies its assets is accountable to the other partners. The Act provides default rules on profit sharing, interest on capital, and remuneration, all of which the partnership deed may modify.

Dissolution and Winding Up

Dissolution may occur by agreement, expiry of term, completion of the venture for which the partnership was formed, death or insolvency of a partner, or by court order. The court may dissolve a firm on grounds including a partner’s misconduct affecting the business, persistent breach of the partnership agreement, or where it is just and equitable to do so. On dissolution, the assets are applied first to discharge liabilities to third parties, then to repay partners’ advances and capital. A partner who has been wrongfully excluded has a right to accounts and a share of profits accruing after dissolution.

Partnership Disputes in Practice

Partnership disputes commonly involve disputes over the existence or terms of the partnership, allegations of diversion of firm business, disputes over accounts and profit share, claims of wrongful expulsion, and deadlock on dissolution. Suits for accounts, dissolution, and rendition of accounts lie before the civil court. Where the deed provides for arbitration, disputes go to the tribunal, though courts retain jurisdiction to appoint receivers and grant interim injunctions. We advise on partnership documentation, represent parties in pre-litigation strategy, and conduct proceedings before trial courts and high courts.

The Specific Relief Act, 1963

The Specific Relief Act, 1963 provides remedies where monetary compensation is an inadequate substitute for what was promised. The 2018 amendments significantly changed the landscape: specific performance of contracts for construction and immovable property is now ordinarily granted as a matter of course, removing the discretion the court previously had to substitute damages. The Act also governs the recovery of possession of movable and immovable property, rectification and cancellation of instruments, and declaratory relief.

Specific Performance

A court will grant specific performance of a contract where the plaintiff is ready and willing to perform their own obligations and the defendant has failed or refused to perform theirs. Post the 2018 amendment, specific performance is the rule rather than the exception for contracts involving immovable property: the court must grant it unless doing so would be impossible, inequitable, or contrary to public policy. The plaintiff must have been ready and willing from the date of the contract and must approach the court within the limitation period. Delay and acquiescence remain relevant to the court’s exercise of discretion on ancillary matters even after the amendment.

Injunctions

The Act provides for perpetual and temporary injunctions. A temporary injunction is granted where the plaintiff establishes a prima facie case, demonstrates that the balance of convenience favours the grant, and shows that non-grant would cause irreparable harm. A mandatory injunction compelling a party to do a positive act is granted only where the court is satisfied that the harm from non-performance would be such that compensation in money is not an adequate remedy. The Act expressly prohibits injunctions to restrain a party from prosecuting a judicial proceeding and to prevent a breach of contract where monetary damages would suffice.

Rectification and Cancellation of Instruments

Where a written contract or instrument does not reflect the true intention of the parties due to fraud or mutual mistake, the court may order rectification. Where an instrument is void or voidable, and a party reasonably apprehends that it may cause serious injury if left outstanding, the court may order its cancellation or delivery up for cancellation. These remedies are particularly relevant in property transactions where sale deeds, mortgages, or conveyances have been executed under misrepresentation or by mistake.

Why Diwan Advocates?

Legislative Reference Index

Partnership disputes and specific relief claims move on the facts. The time to act is before the limitation period expires.

Diwan Advocates is ready.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Matrimonial Laws Practice

A woman married for eighteen years discovers her husband has quietly transferred all jointly used assets into his mother's name over the past two years. She wants a divorce. She also wants to know whether those transfers can be reversed, what maintenance she is entitled to, and whether she can remain in the matrimonial home while proceedings continue. All four questions have legal answers. Getting them right, and getting them quickly, determines what she walks away with.

Matrimonial law in India is plural. The applicable rules depend on religion, the type of marriage, and sometimes the state in which the parties live. The Hindu Marriage Act, Muslim personal law, the Indian Divorce Act for Christians, and the Special Marriage Act each operate differently. Recent changes have added further layers: the 2019 Act criminalising instantaneous triple talaq, the Supreme Court's 2023 ruling in Shilpa Sailesh recognising irretrievable breakdown at the Supreme Court level, and the 2024 ruling extending secular maintenance rights to Muslim divorced women.

At Diwan Advocates, we handle contested divorce, mutual consent divorce, maintenance, child custody, domestic violence remedies, matrimonial property disputes, and NRI matrimonial matters. We advise clients on their rights clearly and pursue those rights effectively.

Marriage and Its Legal Requirements

A valid Hindu marriage under the Hindu Marriage Act, 1955 requires that neither party has a living spouse, that both parties have capacity to consent, that neither is within the degrees of prohibited relationship, and that the minimum age requirements are met. Marriages that violate these conditions are either void or voidable, with different legal consequences for each.

The Special Marriage Act, 1954 provides a secular civil marriage route for parties of any religion. It requires a 30-day notice period and registration before a Marriage Officer. Inter-faith couples frequently use this route to avoid the requirement of conversion under personal law frameworks.

Divorce: Grounds and Process

Hindu Divorce Under Section 13 HMA

Grounds for divorce include adultery, cruelty, desertion for two or more years, conversion, incurable unsoundness of mind, leprosy, venereal disease, renunciation, and being unheard of for seven years. Cruelty has been interpreted broadly by courts to include mental cruelty. The specific facts that constitute cruelty in any given case are heavily dependent on the circumstances and the evidence presented.

Mutual Consent Divorce Under Section 13B

Where both parties agree, divorce by mutual consent is available after one year of separation. The process requires a joint petition, a cooling-off period of six months before the second motion, and a court order. The Supreme Court has held that the six-month period can be waived where the parties have been separated for a long time and reconciliation is impossible. The 2023 decision in Shilpa Sailesh v. Varun Sreenivasan additionally allows the Supreme Court to dissolve a marriage on the ground of irretrievable breakdown under Article 142 in exceptional cases, without requiring mutual consent.

Muslim Divorce

The Muslim Women (Protection of Rights on Marriage) Act, 2019 made instantaneous triple talaq a criminal offence punishable with imprisonment up to three years. Valid talaq-ul-sunnat, which involves a pronouncement followed by the waiting period, remains lawful. A Muslim wife can obtain a judicial divorce through khula or under the Dissolution of Muslim Marriages Act, 1939 on grounds including cruelty, desertion, failure to maintain, and imprisonment of the husband.

Christian and Parsi Divorce

The Indian Divorce Act, 1869 as amended in 2001 governs divorce for Christians. The amendment significantly expanded the available grounds and removed the earlier gender-discriminatory provisions. Parsi divorce is governed by the Parsi Marriage and Divorce Act, 1936 before the District Court.

Maintenance and Financial Provision

Maintenance is available during proceedings as maintenance pendente lite and after divorce as permanent alimony. Under the Bharatiya Nagarik Suraksha Sanhita, 2023, Section 144 provides a secular maintenance remedy before the Magistrate for wives, children, and parents of all religions. The Supreme Court confirmed in Mohd. Abdul Samad v. State of Telangana (2024) that Muslim divorced women can also claim maintenance under Section 144. The amount of maintenance turns on the financial capacity of the payer, the reasonable needs of the recipient, and the standard of living during the marriage.

Enforcement of maintenance orders against a defaulting spouse is through attachment of assets and, in continued default, imprisonment. Where the paying spouse has assets in multiple jurisdictions or has transferred assets to defeat the order, we advise on enforcement strategy including asset tracing and attachment before judgment.

Child Custody and International Disputes

The welfare of the child is the paramount consideration in all custody matters. Courts consider the child's age, existing bonds, educational needs, the stability of each parent's environment, and the child's own wishes where the child is of sufficient maturity. Interim custody orders are available at an early stage.

India has not acceded to the Hague Convention on International Child Abduction. Where a child is brought to India in violation of a foreign custody order, the remedy is a habeas corpus petition before the High Court in the state where the child is located. Courts apply the welfare principle and may or may not enforce the foreign order depending on the specific circumstances and how settled the child has become in India. These cases require immediate action.

Domestic Violence: Civil and Criminal Remedies

The Protection of Women from Domestic Violence Act, 2005 covers physical, sexual, verbal, emotional, and economic abuse. Remedies include protection orders, residence orders allowing the aggrieved person to remain in the shared household, monetary relief, and interim custody orders. Applications are heard within three days of filing. Section 85 of the Bharatiya Nyaya Sanhita, 2023 separately creates criminal liability for cruelty by a husband or his relatives, with imprisonment up to three years.

NRI Matrimonial Matters

NRI matrimonial disputes raise questions of jurisdiction, applicable law, and recognition of foreign decrees that do not arise in purely domestic matters. A foreign divorce decree is recognised in India if the foreign court had jurisdiction under Indian private international law principles and both parties had a fair opportunity to be heard. An ex parte foreign divorce obtained without the other spouse's knowledge is often not recognised.

We advise spouses in India facing foreign proceedings on whether and how to contest them, on filing parallel proceedings in Indian courts to establish Indian jurisdiction, and on obtaining asset protection orders from Indian courts pending the outcome. We also advise NRIs on the Indian legal consequences of their matrimonial situation and on cross-border enforcement.

Why Diwan Advocates for Matrimonial Law?

Legislative Reference Index

Matrimonial matters are among the most consequential a person will face.

They deserve lawyers who are both knowledgeable and careful.

Diwan Advocates is both.

Diwan Advocates  |  Delhi, India

Diwan Advocates

International Client Services

A German manufacturing company wants to set up a production facility in India. It can do so as a wholly owned subsidiary, as a joint venture with an Indian partner, through an LLP, or via a liaison or branch office. Each structure has a different tax profile, a different governance requirement, a different liability exposure, and a different path to eventually repatriating profits. The company's advisers in Frankfurt know German law. What they need is a team in Delhi that can answer the India-specific questions with the same precision.

An NRI settled in Canada holds a share in ancestral property in Delhi with three siblings. One sibling has built on the common property without consent. The NRI wants to partition the property, sell their share, and repatriate the proceeds. That involves Hindu succession law, the Transfer of Property Act, FEMA's rules on sale of immovable property by an NRI, and the tax treatment of the capital gain. It cannot be handled from Canada alone.

International clients dealing with India face a legal system that is sophisticated, multi-layered, and requires local knowledge to navigate effectively. At Diwan Advocates, we serve as the Delhi anchor for foreign law firms, multinational companies, foreign investors, and NRIs who need Indian legal advice they can rely on.

India Entry: Choosing the Right Structure

Wholly Owned Subsidiary

A private limited company incorporated under the Companies Act, 2013 is the most common vehicle for a foreign company's India operations. It has a separate legal identity, limited liability, and can employ staff, hold assets, and enter contracts in its own name. Foreign investment in the subsidiary must comply with the applicable sectoral caps and conditions under FEMA and the FDI Policy.

Joint Venture

A joint venture with an Indian partner is required in sectors where 100 percent FDI is not permitted and is often commercially advantageous in sectors where local relationships and market knowledge matter. The shareholders agreement governing the JV must address decision-making rights, deadlock resolution, exit mechanisms, and the FEMA implications of the Indian partner's acquisition or disposal of their stake.

Liaison and Branch Offices

Foreign companies that want a presence in India without full incorporation can establish a Liaison Office for representational activities or a Branch Office for limited commercial operations. Both require RBI approval. A Liaison Office cannot undertake commercial activities or earn revenue. A Branch Office can carry on activities approved by the RBI but is not a separate legal entity and exposes the foreign parent to direct liability in India.

Foreign Investment: FEMA Compliance

All foreign direct investment in India is governed by the Foreign Exchange Management Act, 1999 and the FEMA (Non-Debt Instruments) Rules, 2019. FDI under the automatic route does not require prior government approval. FDI in sectors on the government route requires approval from the relevant ministry. The FDI Policy sets out the applicable caps and conditions by sector.

Every issuance of shares to a foreign investor must be at a price not less than the fair market value determined by a SEBI-registered valuer. Shares sold by a foreign investor to an Indian resident cannot be sold above the fair market value. Filing of Form FC-GPR on receipt of foreign investment and Form FC-TRS on transfer of shares between residents and non-residents is mandatory within prescribed timelines. Late filings require compounding.

Downstream investment, the onward investment by an Indian company that has received foreign investment into another Indian company, is subject to restrictions that treat the investing company as if it were the foreign investor for the purposes of sectoral caps and conditions. This is a commonly missed compliance point in multi-tier Indian holding structures.

Cross-Border Arbitration and Dispute Resolution

India is a New York Convention country. Foreign arbitral awards made in Convention countries are enforceable in India under Part II of the Arbitration and Conciliation Act, 1996. Enforcement can be resisted on limited grounds: incapacity, invalid agreement, lack of notice, excess of jurisdiction, non-arbitrability of the subject matter, and public policy. Indian courts have applied the public policy exception narrowly since the 2015 amendments, making enforcement significantly more predictable.

For international commercial arbitration seated in India, Part I of the Act applies. Indian courts have supervisory jurisdiction including powers to appoint arbitrators, grant interim relief, and set aside awards on Section 34 grounds. We act as Indian counsel in ICC, SIAC, LCIA, and DIAC arbitrations involving Indian parties or Indian-law governed contracts.

NRI Services

Non-Resident Indians dealing with Indian legal matters face the combined challenge of Indian legal complexity and physical distance. Property inherited or purchased in India, family disputes with relatives in India, business interests in Indian companies, and regulatory requirements all need a firm that can act on instructions given remotely and report back clearly.

We advise NRIs on the purchase and sale of immovable property in India including FEMA compliance on repatriation of sale proceeds, succession and inheritance matters including obtaining succession certificates and letters of administration, partition of jointly held family property, matrimonial disputes involving a spouse in India or abroad, NRI investment in Indian companies, and the income tax treatment of income from Indian sources. We maintain clear communication with NRI clients across time zones and provide regular updates without requiring their presence in India.

Where an NRI faces a dispute with a family member, business partner, or government authority in India, we represent them in courts and before regulatory authorities in Delhi and co-ordinate with counsel in other cities where required.

Bilateral Investment Treaties and Investor-State Disputes

India has entered into a number of Bilateral Investment Treaties that provide foreign investors with protections against expropriation, unfair and inequitable treatment, and denial of justice. Following the White Industries case in 2011, India terminated many of its early BITs and replaced them with a revised model treaty. Foreign investors who believe they have been treated in violation of the applicable BIT can initiate investor-state arbitration. We advise foreign investors on the availability and merits of BIT claims and on the Indian domestic law position that will be relevant in the treaty arbitration.

Why Diwan Advocates for International Clients?

Legislative Reference Index

International clients dealing with India need a firm that understands both the legal system and the practical reality of operating across borders.

Diwan Advocates has been that firm for clients across Asia, Europe, North America, and the Gulf.

We are ready to be that firm for you.

Diwan Advocates  |  Delhi, India

We are ready to be that firm for you.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Licensing, Technology Transfer and TMT Services Law

An Indian software company has built a product that a US enterprise wants to license for distribution across Southeast Asia. The licensing agreement needs to address IP ownership of customisations, the scope of the territory, the royalty structure, the source code escrow arrangement for business continuity, the liability cap, and what happens if the US company is acquired. Each of those provisions has legal consequences that extend beyond the contract itself into patent law, copyright, competition law, and taxation.

A foreign technology company wants to transfer manufacturing know-how to an Indian joint venture partner. The know-how is not patented. It is embedded in processes, training materials, and technical documentation. The technology transfer agreement needs to define what is being transferred, how the confidentiality obligation survives if the JV ends, whether the Indian partner can develop improvements, and who owns those improvements. Getting this wrong means giving away value that cannot be recovered.

Technology and media law (TMT) sits at the intersection of intellectual property, commercial contracts, data regulation, and competition law. At Diwan Advocates, we draft and negotiate technology licensing agreements, know-how transfer agreements, software development contracts, SaaS agreements, content licensing deals, and media distribution arrangements. We also handle the disputes when these agreements break down.

Technology Licensing: The Core Framework

What Is Being Licensed

A technology licence grants the licensee the right to use specific intellectual property owned by the licensor. The IP may include patents under the Patents Act, 1970, software protected as a literary work under the Copyright Act, 1957, trade marks, trade secrets, or technical know-how. Each category of IP has different registration requirements, different duration, and different rules about what can be licensed and on what terms.

Exclusive, Sole, and Non-Exclusive Licences

An exclusive licence gives the licensee the only right to use the IP in the defined scope: no one else, including the licensor, can exercise the licensed rights. A sole licence allows the licensor to also use the IP alongside the licensee but grants no rights to other third parties. A non-exclusive licence can be granted to multiple licensees simultaneously. The choice between these structures determines the commercial value of the licence and must match what both parties actually intend.

Improvements and Ownership of Derivative Work

Where the licensee will use the licensed technology to develop new products or improvements, the agreement must address who owns those developments. Grant-back clauses requiring the licensee to license improvements back to the licensor are common in technology transfer agreements but must be carefully drafted to avoid competition law concerns. A mandatory exclusive grant-back can restrict the licensee's ability to commercialise its own innovations and may violate Section 3 of the Competition Act.

Technology Transfer Agreements

A technology transfer agreement goes beyond a licence. It involves the actual transmission of technical knowledge, processes, formulations, or methods from the transferor to the transferee. The transferred knowledge may not be patented. Its value lies in its confidentiality. The agreement must therefore address confidentiality obligations that are enforceable not only during the term but for a reasonable period after the agreement ends.

Know-How and Trade Secrets

India does not have a standalone trade secrets statute. Protection of unpatented know-how relies on contractual confidentiality obligations, the law of breach of confidence as developed by Indian courts, and in some cases the Bharatiya Nyaya Sanhita provisions on criminal breach of trust. We draft confidentiality and non-disclosure provisions that are specific enough to be enforceable and broad enough to actually protect the information that matters.

FEMA and Royalty Payments

Royalty payments from an Indian licensee to a foreign licensor are current account transactions under FEMA, 1999. There is no longer a government cap on royalty rates following the liberalisation of the automatic route, but the payments must be through banking channels and reported correctly. Withholding tax under Section 195 of the Income Tax Act must be deducted by the Indian payer at the applicable rate before remittance. The rate depends on whether a DTAA applies and whether the payment qualifies as royalty or fees for technical services under the treaty. Mischaracterisation of the payment can result in the Indian company facing a demand for the shortfall in withholding tax.

Software Licensing and SaaS

Software licensing agreements in India range from a simple click-wrap agreement for a consumer product to a multi-year enterprise licence for mission-critical infrastructure. The key issues in any software licence are the scope of the usage rights (number of users, devices, or instances), the restrictions on copying or modification, the source code escrow arrangement for business continuity, the service level commitments and remedies for downtime, and the data ownership and portability provisions.

A SaaS agreement raises additional questions specific to cloud delivery: where is the data stored, what security certifications does the provider hold, can the customer audit the provider's systems, what happens to the customer's data on termination, and does the arrangement comply with any applicable data localisation requirements. For SaaS services used by regulated entities in financial services or healthcare, sector-specific RBI or IRDAI guidelines on cloud outsourcing also apply.

Content and Media Licensing

Content licensing in the media and entertainment industry involves film rights, music sync licences, broadcast rights, format rights, and digital distribution agreements. Each type of content licence must address the scope of rights granted, the territory, the medium or platform, the term, and the holdback obligations that prevent the licensor from licensing the same content to competing platforms simultaneously.

The 2012 amendment to the Copyright Act, 1957 introduced a provision that authors and composers cannot assign away their right to receive royalties from secondary exploitation of their work in new formats or technologies not in existence at the time of the assignment. This provision, which cannot be contracted out of, is relevant to every content licensing agreement that purports to cover future platforms and media.

Open Source Compliance

Open-source software licences range from permissive licences, such as MIT and BSD, that impose few restrictions on use and distribution, to copyleft licences, such as GPL, that require any derivative work to be released under the same licence. A company that incorporates GPL-licensed code into a proprietary commercial product and distributes it without complying with the GPL's requirements is infringing the copyright in that code. Open-source compliance audits are essential in technology M&A transactions and for any company that distributes software products.

Why Diwan Advocates for Licensing and TMT?

Legislative Reference Index

Technology agreements create rights and obligations that last for years.

Getting them right at the drafting stage costs a fraction of resolving them in dispute.

Diwan Advocates gets them right.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Law of Telecommunications | Ministry of Communications

India's telecom sector underwent a legal transformation in 2023 that most people have not fully absorbed. The Telecom Act, 2023 replaced the Indian Telegraph Act, 1885, a statute that had governed communications in India for nearly 140 years. The new Act modernises the licensing framework, consolidates spectrum management, codifies subscriber rights, and updates the government's powers of interception and network takeover. It arrived alongside a sector already dealing with the aftermath of the Adjusted Gross Revenue crisis, the ongoing question of how to regulate OTT communication services, and a TRAI that has become increasingly active in issuing regulations that directly affect telecom business models.

For telecom companies, ISPs, infrastructure providers, and technology companies whose services run over telecom networks, the legal environment is more demanding and more consequential than it has been in two decades. Licences must be maintained. Spectrum must be used within authorised parameters. Interconnection arrangements must comply with TRAI regulations. Subscriber data must be handled in accordance with the DPDPA. And any surveillance compliance request from the government must be handled correctly to avoid both regulatory liability and constitutional exposure.

At Diwan Advocates, we advise telecom operators, internet service providers, OTT communication platforms, telecom infrastructure companies, and technology businesses whose products and services interact with the telecom regulatory framework. We handle licensing, regulatory proceedings before TRAI and the Ministry, interconnection disputes, spectrum matters, competition law issues, and the constitutional questions that arise at the intersection of surveillance law and privacy rights.

The Telecom Act, 2023: What Has Changed

The Telecom Act, 2023 replaces the Indian Telegraph Act and the Wireless Telegraphy Act with a single modern statute. Key changes include a unified authorisation regime replacing the previous licence-based framework, new subscriber rights provisions including the right to information about outages and service quality, updated spectrum management provisions with clearer assignment and auction frameworks, codified government powers to intercept communications and take control of telecom networks in specified emergencies, and provisions addressing cybersecurity obligations of authorised entities.

The transition from the old licensing regime to the new authorisation framework is being managed through a migration process. Existing UAS licences, ISP licences, and other legacy licences remain valid during the transition period. Entities operating under legacy licences need to understand how their rights and obligations are being carried over and what the new authorisation requirements mean for their operations.

TRAI: Regulatory Framework and Proceedings

The Telecom Regulatory Authority of India Act, 1997 gives TRAI the power to issue regulations, tariff orders, and directions on all matters relating to telecom services. TRAI's regulatory output covers tariffs and their transparency, interconnection between operators including the IUC regime, quality of service standards, mobile number portability, broadband standards, and the process for licensing new services. TRAI also makes recommendations to the Ministry on spectrum allocation and licensing conditions.

Interconnection Disputes

Where two telecom operators cannot agree on the terms of interconnection, either party can approach TRAI for adjudication. Interconnection disputes frequently involve questions about the applicable IUC rate, the quality and capacity of the interconnection point, and the obligations of the dominant operator to provide non-discriminatory access. We represent operators in TRAI interconnection proceedings and in appeals before the Telecom Disputes Settlement and Appellate Tribunal.

Tariff Regulation

TRAI has the power to prescribe tariff norms and to cap or regulate the prices that telecom operators charge for their services. The history of telecom tariff regulation in India includes periods of price floors intended to prevent predatory pricing and periods of active market monitoring following the Jio disruption of the market. We advise operators on the regulatory constraints on their pricing strategies and on the process for seeking tariff deregulation in competitive market segments.

Spectrum: Allocation, Auction, and Compliance

Spectrum is India's most valuable communications resource and is managed by the Ministry of Communications under the Telecom Act. Commercial spectrum is allocated primarily through auction. The winning bidder receives a right to use the spectrum for the authorised period subject to the roll-out and usage obligations specified in the auction conditions. Failure to meet roll-out obligations or to pay auction instalments on time can result in cancellation of the spectrum right.

The AGR crisis, in which the Supreme Court upheld the government's broader definition of Adjusted Gross Revenue as the base for spectrum usage charges, resulted in enormous retrospective liabilities for multiple operators. The fallout from that decision, including the insolvency of some operators and restructuring of others, is still working through the system. We advise on spectrum compliance, spectrum trading between operators, and the regulatory treatment of spectrum in corporate restructurings and insolvency proceedings.

Right of Way and Infrastructure

Telecom infrastructure deployment requires access to public and private land for cables, towers, and equipment. The Right of Way Rules, 2016 give telecom providers the right to install infrastructure on public property and prescribe a process for obtaining permission from local authorities. Disputes about right of way, compensation, and the obligations of private landowners to permit infrastructure installation are handled through the designated dispute resolution mechanism and, where necessary, before courts.

OTT Communication Services: The Unresolved Question

Services that provide voice, video, and messaging functionality over the internet, such as WhatsApp, Zoom, and Google Meet, compete directly with licensed telecom services. TRAI has issued several consultation papers on whether these services should be regulated under the telecom framework and required to obtain authorisation. No final determination has been made. The Telecom Act, 2023 includes a definition broad enough to potentially cover OTT communication services, but whether and how this will be applied remains to be seen through the subordinate legislation.

OTT communication platform operators face potential regulatory exposure if the Ministry decides to enforce the Telecom Act's authorisation requirements against them. We advise these platforms on monitoring the regulatory development, on the legal arguments for and against their inclusion in the authorisation framework, and on how to engage with TRAI's consultation process.

Interception, Surveillance, and Privacy

The Telecom Act preserves and updates the government's power to intercept communications on grounds of national security, public safety, and emergency. Telecom operators receiving interception directions must comply. The Act does not provide for prior judicial authorisation of interception orders, which is a constitutional concern that continues to be litigated. The Supreme Court's Puttaswamy decision recognising privacy as a fundamental right is the constitutional backdrop against which all surveillance obligations imposed on telecom companies must be assessed.

Why Diwan Advocates for Telecom Law?

Legislative Reference Index

Telecom regulation in India has changed more in the last two years than in the previous two decades.

Companies operating in this space need lawyers who have kept pace with every development.

Diwan Advocates has.

Diwan Advocates  |  Delhi, India

Diwan Advocates

International Trade and Anti-Dumping Laws

An Indian steel producer finds that imports from a third country are entering the market at prices that appear to be below the cost of production in the exporting country. Domestic producers are losing market share and margins. The producer wants to know whether anti-dumping duties can be imposed, how to initiate an investigation, and how long it will take. The answers come from the Customs Tariff Act, 1975, the DGTR's investigation procedures, and India's obligations under the WTO Anti-Dumping Agreement, all of which must be satisfied for a duty to survive legal challenge.

A foreign exporter receives notice that the Directorate General of Trade Remedies is investigating anti-dumping allegations against its product. It must respond to a detailed questionnaire, submit costing data that will be scrutinised by Indian investigators, and navigate a proceeding that could result in duties that make its product uncompetitive in one of the world's largest markets. It needs Indian counsel who understands both the law and the investigation process.

International trade law in India covers the full range of trade remedy measures, customs administration, export policy, free trade agreement compliance, and India's obligations as a WTO Member. At Diwan Advocates, we advise domestic industries, importers, exporters, and trading companies on all aspects of this framework.

Anti-Dumping: The Investigation Process

Anti-dumping measures are imposed under the Customs Tariff Act, 1975 and the Anti-Dumping Rules notified under it. The Directorate General of Trade Remedies conducts the investigation and recommends a duty to the Ministry of Finance, which imposes the final duty by notification. The process requires the DGTR to establish three things: that the goods are being exported at a price below their normal value in the country of origin (dumping), that the domestic industry is suffering material injury, and that there is a causal link between the dumping and the injury.

Initiating an Investigation

A domestic industry can file an application for initiation of an anti-dumping investigation with the DGTR. The application must contain evidence of dumping, evidence of injury, and a causal link. The application must be supported by producers accounting for at least 25 percent of the total domestic production of the like product. We prepare initiation applications for domestic industries and advise on the evidence required to meet the initiation standard.

The DGTR Investigation: Exporters' Obligations

Once an investigation is initiated, foreign exporters and their Indian importers receive questionnaires from the DGTR. The exporter's questionnaire requires detailed cost and pricing data for the product under investigation. The data submitted forms the basis of the DGTR's dumping margin calculation. Exporters that do not cooperate with the investigation, or whose data is found to be unreliable, are assigned the highest available dumping margin under the best information available principle. We advise foreign exporters on responding to DGTR questionnaires in a way that minimises their calculated dumping margin.

Injury and Causation

The domestic industry must demonstrate material injury: a significant decline in production, sales, market share, profits, or employment attributable to the dumped imports. We assist domestic industries in compiling and presenting the injury data and in making the causal link argument, and we challenge injury findings on behalf of exporters where the data does not support the DGTR's conclusions.

Countervailing Duties and Safeguard Measures

Countervailing Duties

Countervailing duty investigations examine whether the imported goods have benefited from subsidies provided by the exporting country's government that are specific to an industry or enterprise. The applicable legal framework is India's WTO-compliant CVD rules notified under the Customs Tariff Act, 1975. The DGTR investigates the existence and amount of the subsidy and recommends a countervailing duty equal to the amount of the subsidy attributable to the imported goods.

Safeguard Measures

A safeguard measure can be imposed when imports of a product are increasing in absolute or relative terms and are causing or threatening to cause serious injury to the domestic industry, regardless of whether the imports are dumped. Safeguard measures apply to all imports of the product from all countries and are subject to the WTO Agreement on Safeguards. They are time-limited and must be progressively liberalised during their term.

WTO and India's Trade Obligations

India is a founding Member of the World Trade Organisation and is subject to its multilateral trade agreements, including the Agreement on Anti-Dumping, the Agreement on Subsidies and Countervailing Measures, the Agreement on Safeguards, and the Agreement on Trade-Related Aspects of Intellectual Property Rights. India has been both complainant and respondent in WTO dispute settlement proceedings.

We advise the government of India and private sector interests on the WTO consistency of proposed trade measures, on India's rights and obligations in ongoing WTO disputes, and on compliance with adverse panel and Appellate Body rulings. We also advise foreign governments and companies on challenging Indian trade measures through WTO dispute settlement.

Export Controls and Sanctions Compliance

India's export control framework covers dual-use goods, defence and space technologies, chemicals, and nuclear materials. The Foreign Trade (Development and Regulation) Act, 1992 and the Foreign Trade Policy administered by the DGFT govern export licensing. Indian exporters of controlled goods must obtain an export licence from the DGFT before shipment. Violation of export control obligations attracts penalties under the Customs Act and the Foreign Trade Act, and can also trigger FEMA enforcement action.

Indian companies must also comply with any applicable foreign export control regimes, including US EAR and ITAR, where they are importing US-origin goods or technology for re-export. We advise on the intersection of Indian and foreign export control requirements and on compliance programmes for companies handling controlled goods and technologies.

Customs Valuation and Classification

Customs valuation disputes arise when customs authorities reject the declared transaction value and substitute a higher value for duty purposes. The Customs Valuation Rules, 2007 implement the WTO Customs Valuation Agreement and prescribe a sequential method for determining value. Related party transactions, royalties included in the price, and assists provided by the buyer to the seller are common sources of valuation disputes.

Classification disputes arise when the customs authority argues that a product falls under a higher-duty tariff heading than the importer declared. Classification turns on the product's characteristics, its intended use, and the Explanatory Notes to the Harmonised System. We appear in customs valuation and classification appeals before CESTAT and the High Courts.

Why Diwan Advocates for International Trade Law?

Legislative Reference Index

International trade disputes move fast and involve data-intensive proceedings with strict timelines.

The quality of your Indian legal team determines your outcome.

Diwan Advocates delivers that quality.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Labour and Employment Law Practice

A technology company with 400 employees wants to retrench 80 people as part of a restructuring. It operates across three states. Three of its employees are on deputation from a subsidiary. Two are on fixed-term contracts. One has filed a complaint under the POSH Act two weeks before the retrenchment notice. The company wants to know the correct process, the notice and compensation requirements, whether the ongoing POSH complaint affects the retrenchment, and what the exposure is if any of the terminated employees challenge the decision. Each of those questions has a specific legal answer, and the consequences of getting any one of them wrong can be significant.

India's labour law framework is in transition. Four Labour Codes, enacted in 2019 and 2020, consolidate over 40 central labour statutes into a simplified structure. The Codes have received Presidential assent but their full notification depends on states finalising their rules. The result is that employers currently operate in a hybrid environment: the old statutes are still in force in most states while the new framework is being progressively implemented. Knowing which regime applies where, and how the transition works, is essential for any employer with operations across multiple states.

At Diwan Advocates, we advise employers on employment contracts, HR policies, retrenchment and closure compliance, industrial disputes, EPF and ESI compliance, POSH implementation, and gig worker classification. We appear in labour courts, industrial tribunals, EPFO forums, and the High Courts. We also advise employees and trade unions on their statutory rights.

The Four Labour Codes: What Changes and When

Parliament enacted the Code on Wages, 2019, the Industrial Relations Code, 2020, the Code on Social Security, 2020, and the Occupational Safety, Health and Working Conditions Code, 2020 to consolidate India's fragmented labour law framework. The Codes are awaiting state rules before they can be fully notified. Until then, the old statutes, including the Industrial Disputes Act, the Minimum Wages Act, the Factories Act, and the EPF Act, continue to apply in most states.

When the Codes are notified, the most significant changes include a universal minimum wage floor applying to all workers regardless of skill level, a new definition of workers that brings more categories of employment within statutory protection, revised thresholds for prior government approval before retrenchment and closure (raised from 100 to 300 workers in the Industrial Relations Code), and the extension of the social security framework to gig and platform workers for the first time.

Employment Contracts and HR Documentation

A well-drafted employment contract defines the relationship, sets out the obligations of each party, protects the employer's intellectual property and confidential information, and governs what happens when the employment ends. Standard employment agreements for India should address the applicable personal law provisions where relevant, the governing law and jurisdiction for disputes, the scope of any non-compete or non-solicitation obligation, and the IP assignment clause for work created during employment.

Non-compete clauses in employment contracts are more difficult to enforce in India than in many other jurisdictions. Section 27 of the Indian Contract Act renders agreements in restraint of trade void, and courts have consistently held that post-employment non-competes are in restraint of trade and unenforceable. Confidentiality obligations and non-solicitation of clients and employees post-employment are more likely to be enforced. We draft employment agreements that protect what can actually be protected and do not create false expectations about what cannot.

Fixed-Term Employment

The Industrial Relations Code recognises fixed-term employment as a distinct category. A fixed-term employee is entitled to the same wages and benefits as a permanent employee doing the same work and is entitled to proportionate gratuity even if the term is less than five years. Fixed-term contracts cannot be used as a device to avoid the statutory rights of permanent employees.

Retrenchment, Closure, and Standing Orders

Under the existing Industrial Disputes Act, establishments employing 100 or more workmen require prior government permission before retrenching workmen or closing the establishment. The Industrial Relations Code, 2020, once notified, raises this threshold to 300. In both cases, retrenchment requires one month's notice or wages in lieu, compensation at the rate of 15 days' wages for each completed year of service, and notification to the appropriate government. Retrenchment without following this process is illegal and the retrenched workman is entitled to reinstatement with back wages.

Standing orders under the Industrial Employment (Standing Orders) Act prescribe the conditions of employment in industrial establishments with 100 or more workmen. Every such establishment must have certified standing orders covering matters including classification of workmen, working hours, leave, disciplinary procedures, and grounds for dismissal. An establishment that dismisses a workman without following its certified standing orders, or without giving the workman a reasonable opportunity to be heard, is exposed to a reinstatement and back wages order from the labour court.

POSH: Prevention of Sexual Harassment

The Sexual Harassment of Women at Workplace Act, 2013 requires every employer with 10 or more employees to constitute an Internal Complaints Committee with a woman as its presiding officer. Every employer is required to conduct annual awareness programmes and to submit an annual report to the District Officer. The ICC must complete its inquiry within 90 days of receiving a complaint and submit its report with recommendations to the employer.

POSH compliance failures carry significant consequences: penalties for the employer, personal liability for the presiding officer in some circumstances, and serious reputational risk. We advise employers on constituting legally compliant ICCs, conducting POSH training, drafting POSH policies that go beyond the statutory minimum, and managing the investigation process when a complaint is received. We also advise employees who need to understand their rights in the complaint process.

EPF, ESI, and Gratuity Compliance

The Employees' Provident Fund applies to establishments with 20 or more employees. Both employer and employee contribute 12 percent of the basic wage to the EPF. The employer also contributes to the Employee Pension Scheme and the EDLI insurance scheme. EPFO inspections and demand notices for shortfall in contributions, including on the question of what amounts constitute basic wages for EPF purposes, are a common source of compliance disputes for employers.

The Employees' State Insurance Act applies to establishments with 10 or more employees where employees earn below the wage ceiling. ESI provides medical, disability, maternity, and dependants' benefits funded by employer and employee contributions. Gratuity is payable to all employees who have completed five years of continuous service, at the rate of 15 days' wages for each year. We advise on EPF and ESI compliance, defend employers in EPFO and ESIC proceedings, and advise on gratuity calculation disputes.

Gig Workers and the New Economy

The Code on Social Security, 2020 defines gig workers as persons who perform work or participate in a work arrangement and earn from activities outside of traditional employer-employee relationships. Platform workers are gig workers who work through digital platforms. The Social Security Code, once notified, will require the Central Government to frame welfare schemes for gig and platform workers covering life and disability insurance, health and maternity benefits, and old age protection. Platform aggregators will contribute a specified percentage of their annual turnover to the social security fund.

The classification of app-based workers as employees versus independent contractors is a live and commercially significant question. Workers classified as employees have statutory rights to minimum wages, EPF, gratuity, and industrial dispute protection. Workers classified as contractors do not. Courts and tribunals are increasingly looking at the substance of the relationship rather than its label, and platforms that misclassify employees as independent contractors face retrospective compliance liability.

Why Diwan Advocates for Labour and Employment?

Legislative Reference Index

Labour disputes are expensive, disruptive, and often avoidable.

The best employment law advice is the kind that prevents problems before they reach a tribunal.

Diwan Advocates provides that advice.

Diwan Advocates  |  Delhi, India

Diwan Advocates

NDPS Act Practice

The Narcotic Drugs and Psychotropic Substances Act, 1985 is one of the strictest criminal statutes in India. Under most laws, bail is the rule and custody is the exception. Under the NDPS Act, for cases involving commercial quantities of drugs, that principle is reversed. Getting bail requires the accused to satisfy a court that there are substantial grounds for believing they are not guilty. The investigation period before a chargesheet can last up to 180 days in commercial quantity cases. Trials are long. The consequences of a conviction are severe.

This is not a law that rewards a passive or reactive approach. A client accused of an NDPS offence needs a lawyer who understands the Act deeply, knows how courts have applied it, and starts building the defence from the moment instructions are received.

At Diwan Advocates, we have defended clients across the full range of NDPS offences, from personal consumption cases before magistrates to commercial quantity prosecutions before Special Courts, High Courts, and the Supreme Court. We understand that NDPS cases are frequently decided on procedural grounds. A failure to follow Section 42 when conducting a search, a failure to comply with Section 50 when searching a person, or a break in the chain of custody for seized samples can undermine the prosecution's case entirely if identified and argued correctly. We look for these issues from the start, not as an afterthought.

We also represent clients when the Enforcement Directorate gets involved. NDPS trafficking is a scheduled offence under the Prevention of Money Laundering Act, which means that a drug case can quickly become a money laundering investigation running in parallel. Our criminal and financial law teams work together when that happens.

Background and Structure of the NDPS Act

The Narcotic Drugs and Psychotropic Substances Act, 1985 was passed by Parliament to consolidate and amend the law relating to narcotic drugs and psychotropic substances. It received Presidential assent on 16 September 1985 and came into force on 14 November 1985. The Act was India's response to its international obligations under the Single Convention on Narcotic Drugs, 1961, the Convention on Psychotropic Substances, 1971, and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.

The Act has been amended four times since it was passed, in 1988, 2001, 2014, and 2021. The 2014 amendment corrected a significant drafting error introduced by the 2001 amendment, which had inadvertently removed the punishment provisions for several serious offences and left them technically unpunishable for a period. The 2014 amendment also removed the mandatory death sentence for repeat commercial quantity offences and replaced it with a discretionary sentence of up to 30 years rigorous imprisonment, restoring judicial discretion in those cases.

The Narcotics Control Bureau, set up under the Act with effect from March 1986, is the central agency responsible for coordinating drug law enforcement across India and implementing India's obligations under the international narcotics conventions.

Prohibited Activities and Key Offences

Section 8 of the NDPS Act is the general prohibition provision. It makes it unlawful to cultivate, produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import or export any narcotic drug or psychotropic substance except as permitted by the Act. Most prosecutions under the Act are brought for contravening Section 8 read with the specific section applicable to the substance involved, such as Section 20 for cannabis, Section 21 for manufactured drugs including heroin, or Section 22 for psychotropic substances.

Section 27: Personal Consumption

Section 27 deals with consumption of narcotic drugs or psychotropic substances. A person found in possession of a small quantity for personal consumption faces rigorous imprisonment of up to six months or a fine of up to Rs 10,000 or both. For small quantities of certain drugs such as cannabis preparations other than charas and ganja, the penalty is a fine only. Section 27 has been the subject of debate for many years. The government has periodically considered decriminalising personal consumption of small quantities, but no amendment has been passed to date.

Section 27A: Financing Illicit Traffic and Harbouring

Section 27A is one of the most serious provisions in the Act. It penalises anyone who finances illicit traffic in drugs or who harbours a person engaged in that traffic. The punishment is the same as for commercial quantity trafficking, with 10 to 20 years rigorous imprisonment and a fine of Rs 1 to 2 lakh. This provision is regularly used against persons who are alleged to have provided funds, premises, or logistical support to drug networks even if they did not physically handle any drugs.

Section 29: Abetment and Criminal Conspiracy

Section 29 provides that a person who abets the commission of any offence under the Act, or who is a party to a criminal conspiracy to commit such an offence, is liable to the same punishment as if he had committed the offence himself. Conspiracy charges under Section 29 of the NDPS Act are often joined with charges under the Bharatiya Nyaya Sanhita, 2023 and require the prosecution to establish that two or more persons agreed to carry out the unlawful activity. The Supreme Court's decision in the Aryan Khan bail matter (2021) clarified that mere presence with a co-accused is not sufficient to establish conspiracy.

Section 31 and Section 31A: Repeat Offences

Section 31 provides for enhanced punishment in cases of a second or subsequent conviction. Section 31A, which previously provided for a mandatory death sentence for certain repeat commercial quantity offences, was amended in 2014. Courts now have the discretion to impose either death or rigorous imprisonment for a term of not less than 30 years and a fine of not less than Rs 2 lakh for a second or subsequent conviction for specified serious offences involving commercial quantities.

Quantity Classification: Small, Intermediate, and Commercial

The quantity of the substance found with the accused is the single most important factor in determining the severity of the punishment and the difficulty of obtaining bail. The Central Government specifies the thresholds for small quantity and commercial quantity for each drug by notification. Intermediate quantity falls between the two thresholds.

As an illustration, for cannabis resin (hashish/charas), a small quantity is less than 100 grams, an intermediate quantity is between 100 grams and 1 kilogram, and a commercial quantity is 1 kilogram or more. For heroin, a small quantity is less than 5 grams, intermediate is between 5 grams and 250 grams, and commercial is 250 grams or more.

Search, Seizure, and Procedural Safeguards

NDPS prosecutions often fail not because the drugs were not found, but because the procedure followed during search and seizure was defective. The Act contains specific mandatory requirements that investigating officers must follow. When they do not, courts have in many cases treated those failures as grounds to doubt the prosecution's case, which in turn can satisfy the Section 37 standard for bail or create reasonable doubt at trial.

Section 42: Search Without Warrant

Section 42 gives officers of the gazetted rank the power to enter, search, seize, and arrest without a warrant if they have reason to believe that an offence under the Act is being committed. The section requires that if the officer has prior information, it must be reduced to writing before the search. If the search is conducted between sunset and sunrise, the officer must record the grounds of his belief in writing and forward them to his immediate superior. These requirements are mandatory, and the Supreme Court has held in several cases that failure to comply with Section 42 is a serious procedural irregularity that can affect the validity of the prosecution.

Section 50: Personal Search Requirements

Section 50 is one of the most litigated provisions in NDPS law. It provides that when an officer wants to search the person of an accused (as opposed to premises or a vehicle), the accused must be informed of their right to be taken before a gazetted officer or a magistrate before the search is conducted. Compliance with Section 50 is mandatory, and the Supreme Court has held that a search of a person conducted in violation of Section 50 renders the evidence obtained inadmissible. We examine compliance with Section 50 closely in every personal search case.

Section 52A: Certification of Seized Samples

Section 52A provides the procedure for dealing with seized drugs after arrest. The officer is required to draw samples from the seized consignment, have them certified by a gazetted officer, and dispose of the bulk consignment while retaining the certified samples for trial. This provision was intended to reduce storage problems with large drug seizures, but it has also generated litigation about whether the sampling procedure was properly followed and whether the samples used in the chemical analysis can be treated as representative of the entire seized quantity.

Bail Under Section 37: The Twin Conditions

Section 37 is the provision that defines the real difficulty of NDPS cases. It has two parts. First, it declares all offences under the Act to be cognizable and non-bailable. Second, for offences under Sections 19, 24, and 27A, and for all offences involving commercial quantities, it imposes two conditions that must both be satisfied before bail can be granted.

The first condition is that the Public Prosecutor must be given an opportunity to oppose the bail application. The second, and more demanding, condition is that where the Public Prosecutor does oppose the application, the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that the accused is not likely to commit any offence while on bail.

These are called the twin conditions. The burden is effectively reversed. The accused has to show, at a stage when the trial has not taken place, that there are substantial reasons to believe in their innocence. The Supreme Court clarified in Union of India v. Shiv Shanker Kesari (2007) that the expression 'reasonable grounds' in Section 37 means something more than prima facie grounds. It requires the existence of circumstances sufficient to justify satisfaction that the accused is likely not guilty.

When Bail Is Still Possible Under Section 37

Section 37 does not make bail impossible. Courts have identified several circumstances in which the twin conditions can be satisfied or in which bail is granted despite the conditions.

If the prosecution's case rests largely on a confession made to an NDPS officer, the Tofan Singh ruling now makes that confession inadmissible at trial, which can significantly weaken the prima facie case against the accused and potentially satisfy the first twin condition. If the search was conducted in breach of Section 42 or Section 50, courts have found that the procedural irregularity creates reasonable grounds for believing the accused may not be convicted, which again can satisfy the first condition.

Where a case involves intermediate rather than commercial quantities, courts have greater flexibility and apply the twin conditions less rigidly. Most importantly, the Supreme Court held in Mohd Muslim @ Hussain v. State (NCT of Delhi) (2023) that undue delay in trial can be a ground for granting bail even in commercial quantity NDPS cases, despite Section 37. Where an accused has spent a substantial period in pre-trial detention and there is no likelihood of the trial concluding soon, courts have used Article 21 of the Constitution to grant bail in the interest of personal liberty.

Special Courts Under the NDPS Act

Section 36 of the NDPS Act provides for the establishment of Special Courts to try offences under the Act. A Special Court judge must be a Sessions Judge or an Additional Sessions Judge. The Special Court takes cognizance of offences directly on a police report or on a complaint by an authorised officer, without the case needing to go through the committal process that applies in ordinary criminal trials. This means that the normal delay involved in the committal of cases to sessions courts does not apply in NDPS matters.

The initial remand of an accused after arrest is given by a magistrate, who has jurisdiction to grant remand for up to 15 days at a time. If the accused is not to be detained further, the magistrate forwards the matter to the Special Court. In commercial quantity cases, the investigation period before a chargesheet must be filed is extended to 180 days under Section 36A(4), compared to the standard 60 or 90 days under the BNSS.

We represent clients at every stage before Special Courts, from the first remand hearing through to trial and sentencing. We also handle bail applications before the Special Court, and where bail is refused, applications for bail before the relevant High Court.

NDPS Offences and the Prevention of Money Laundering Act

Drug trafficking is listed as a scheduled offence under the Prevention of Money Laundering Act, 2002. This means that when the Enforcement Directorate has reason to believe that property has been acquired through the proceeds of an NDPS offence, it can attach that property and initiate a prosecution for money laundering independently of the NDPS prosecution.

The practical consequence for an accused person is that they can face simultaneous proceedings in two different forums before two different agencies. The NDPS case proceeds before the Special Court under the NDPS Act. The money laundering case proceeds before the Special Court designated under the PMLA. Each has its own bail regime. The PMLA bail conditions under Section 45 of that Act are similarly stringent to Section 37 of the NDPS Act.

We advise clients and their families on managing both sets of proceedings simultaneously. The strategy in one set of proceedings can affect the other, and decisions about what to say in one forum need to be taken with the other proceedings in mind. This requires our criminal law and financial crime teams to work together from the beginning.

Drug Smuggling and the Customs Act

When drugs are seized at airports, seaports, or land borders, the prosecution can be brought both under the NDPS Act and under the Customs Act, 1962. The Customs Act has its own search and seizure powers, its own penalty structure, and its own adjudication and appellate mechanism. A person arrested at an airport with drugs faces arrest under both statutes and proceedings in both forums.

We advise clients arrested in cross-border drug cases on the intersection between the NDPS prosecution before the Special Court and the Customs adjudication before the Customs authorities and the Customs, Excise and Service Tax Appellate Tribunal. The outcomes in each forum are independent but the evidence produced in one is often relevant to the other.

Constitutional Rights of the Accused

Despite the stringency of the NDPS Act, the accused retains all constitutional rights guaranteed under the Constitution of India, 1950. Article 20 protects against double jeopardy and self-incrimination. Article 21 guarantees the right to life and personal liberty, which courts have used to grant bail where trial delay has become excessive. Article 22 gives every arrested person the right to be informed of the grounds of arrest and to consult a lawyer of their choice.

Courts have over the years used Article 21 as a corrective when the machinery of the NDPS Act produces results that appear disproportionate or unjust. The right to a speedy trial is part of Article 21, and where an accused has spent years in pre-trial detention for an offence that carries a maximum sentence of one or two years, courts have granted bail on constitutional grounds even where the normal NDPS conditions could not be met.

We raise constitutional arguments in NDPS cases where they are available. When an arrest is procedurally unlawful, when custodial treatment has been improper, or when the length of pre-trial detention has become constitutionally unsustainable, we file writ petitions before the High Court alongside the bail proceedings in the Special Court.

Why Diwan Advocates for NDPS Cases?

Legislative Reference Index

The table below lists the main statutes and legal frameworks relevant to NDPS practice, with notes on their role and links to authoritative sources.

An NDPS accusation can take away a person's freedom for years before the trial even begins.

The quality of the legal defence at every stage, starting from the first hearing, makes a real difference.

Diwan Advocates is prepared to provide that defence.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Insurance Law Practice

A family's breadwinner dies. The life insurance claim is filed. Three months later, the insurer repudiates it on the ground of non-disclosure of a pre-existing medical condition that appeared in a health check-up two years before the policy was taken. The family believes the condition was not material and was not asked about at the time of application. The insurer disagrees. There is a policy, there is a death, and there is a dispute about whether the insurer must pay.

A manufacturing company's factory catches fire. The fire policy covers the plant and machinery. The insurer sends a surveyor. Six months later, it offers a settlement that is forty percent below the declared sum insured, citing under-insurance and a dispute about the cause of loss. The company has taken out a policy precisely to avoid bearing this risk itself. The gap between what it expected and what the insurer is offering is enormous.

These situations, claims repudiated or settled far below what was expected, are the most common reason clients come to an insurance lawyer. But insurance law is not only about disputes. It also covers the regulation of insurers and intermediaries by IRDAI, the design and approval of insurance products, the obligations of brokers and agents to their clients, the reinsurance arrangements that sit behind every large risk, and the emerging regulatory framework for InsurTech businesses that are changing how insurance is distributed and underwritten.

At Diwan Advocates, we advise both sides of the insurance relationship. We represent policyholders challenging repudiations and inadequate settlements. We advise insurers on regulatory compliance, claims handling, and IRDAI proceedings. We advise insurance intermediaries on their licensing obligations and on disputes with insurers and clients.

The Regulatory Framework: IRDAI and the Insurance Act

The Insurance Regulatory and Development Authority of India is the primary regulator for the insurance sector, established under the IRDAI Act, 1999 and exercising extensive powers under the Insurance Act, 1938. Every insurer operating in India must be registered with IRDAI. No insurance business may be transacted without registration. IRDAI approves insurance products before they can be offered to the public, sets solvency and investment requirements for insurers, licences intermediaries including brokers and corporate agents, and conducts inspections of regulated entities.

IRDAI has become significantly more active in recent years. The IRDAI (Insurance Products) Regulations, 2024 consolidated and replaced a large number of earlier product-specific circulars and regulations, simplifying the product approval framework but also raising the compliance baseline. The Insurance Laws (Amendment) Act, 2015 strengthened policyholder protections, increased penalties for violations, and paved the way for raising the FDI cap in insurance from 26 percent to 49 percent, subsequently raised to 74 percent. The sector continues to evolve rapidly.

Life Insurance: Policy Terms, Claims, and Repudiation

The Duty of Utmost Good Faith

An insurance contract is a contract of utmost good faith. Both parties must disclose all material facts. The policyholder must disclose all facts that would influence a prudent insurer in deciding whether to accept the risk and at what premium. Failure to disclose a material fact, whether intentional or not, gives the insurer the right to avoid the policy. The question of what is material and whether non-disclosure was fraudulent or innocent determines the strength of the insurer's repudiation.

The courts and consumer forums have scrutinised insurer repudiations on non-disclosure grounds carefully. Where the insurer accepted the proposal without asking specific questions about a particular condition, accepted the premium for several years, and then repudiated on the occurrence of a claim, courts have in many cases held that the insurer cannot rely on non-disclosure of facts it did not specifically ask about. The IRDAI has issued guidelines limiting the period within which an insurer can repudiate a life policy on non-disclosure grounds to three years from the date of issuance.

Claim Repudiation: Grounds and Challenges

The most common grounds on which life insurance claims are repudiated are non-disclosure of material facts including pre-existing medical conditions, misrepresentation in the proposal form, death occurring within the exclusion period for specified conditions, suicide within the first year of the policy, and death by exclusions specifically listed in the policy terms. We review repudiation letters for their legal and factual basis, advise policyholders on the strength of their position, and represent them before the Insurance Ombudsman, Consumer Commissions, and courts.

Insurance Ombudsman

The Insurance Ombudsman is a free, accessible, and faster alternative to consumer courts for individual policyholders with claim disputes up to Rs 50 lakh. IRDAI has notified Ombudsman Councils across India. The Ombudsman hears complaints about repudiation of claims, delay in settlement, disputes about premium or policy terms, and non-issuance of documents. An Ombudsman award is binding on the insurer. The policyholder may accept or reject it. We advise policyholders on when the Ombudsman route is appropriate and represent them in Ombudsman proceedings.

Health Insurance: Coverage, Exclusions, and Disputes

Health insurance disputes have increased significantly as coverage has expanded and as insurers have become more aggressive in scrutinising claims. Common areas of dispute include rejection of cashless claims on the ground that the treating hospital is not on the approved network, repudiation of claims for pre-existing diseases not disclosed at proposal stage, disputes about whether a condition is specifically excluded, co-payment disputes, and the application of sub-limits on specific treatments.

Pre-Existing Disease and Waiting Periods

The IRDAI (Insurance Products) Regulations, 2024 have standardised the treatment of pre-existing diseases in health insurance. A pre-existing disease is any condition for which the insured received treatment or was diagnosed in the 48 months before the policy inception. IRDAI has capped the waiting period for pre-existing diseases at 36 months for standard health products, meaning that after three continuous years of coverage, no pre-existing disease exclusion can apply. Insurers who attempt to apply exclusion periods beyond what IRDAI regulations permit are acting contrary to the regulations.

Corporate Health Insurance

Corporate group health policies cover employees and their dependants. The employer is the policyholder and the employees are the insured. Disputes arise about the scope of coverage, the process for adding and removing members, the treatment of claims during policy renewal gaps, and the insurer's right to increase premiums significantly on renewal after a high claims year. We advise corporates on negotiating group health policy terms and on resolving disputes with group health insurers.

General Insurance: Property, Liability, and Marine

Property Insurance Claims

Property insurance covers damage to buildings, plant, machinery, stock, and other assets from specified perils including fire, flood, earthquake, and theft. When a large property claim arises, the insurer appoints a licensed surveyor and loss assessor to investigate and quantify the loss. The surveyor's report is a critical document in any property insurance dispute. We review surveyor reports for the insured and advise on challenging findings that are factually wrong, based on wrong principles of valuation, or that fail to account for the actual replacement cost of the damaged assets.

Liability Insurance

Liability insurance covers an insured against claims made by third parties. Product liability, professional indemnity, directors and officers liability, and public liability are the most commercially significant liability insurance lines. The trigger for coverage, the duty to defend, the right to control the defence, and the treatment of settlements without the insurer's consent are the most common sources of disputes between insured and insurer in liability coverage situations. We advise insured parties on their coverage position when a liability claim is made and represent them in disputes with their liability insurers about coverage and defence obligations.

Marine Insurance

The Marine Insurance Act, 1963 governs contracts of marine insurance for ships, cargo, and freight. Marine insurance law is heavily influenced by English admiralty law and London market practice, and marine insurance disputes frequently involve questions about seaworthiness, the Institute Cargo Clauses applicable to the policy, abandonment and constructive total loss, and the obligations of the assured to minimise loss after a casualty. Marine cargo claims involving containerised goods, bulk cargo, and project cargo are handled by our team with understanding of both the legal framework and the shipping industry context.

Insurance Intermediaries: Brokers, Agents, and Corporate Agents

Insurance intermediaries, including brokers, corporate agents, and web aggregators, are licensed by IRDAI and are subject to conduct obligations that include acting in the best interest of the client, maintaining confidentiality, and avoiding conflicts of interest. The IRDAI (Brokerage) Regulations, 2018 set out the specific requirements for insurance brokers, including minimum net worth, professional indemnity insurance, and the prohibition on receiving compensation from both the insurer and the client for the same transaction.

Disputes between intermediaries and their insurer principals, disputes between intermediaries and their clients about the adequacy of coverage placed, and IRDAI enforcement actions against intermediaries for regulatory breaches are all matters we handle. We advise intermediaries on their compliance obligations and defend them in IRDAI proceedings and before consumer forums when clients complain about the coverage they were sold.

Reinsurance

Reinsurance is the mechanism through which insurers transfer part of their risk to other insurers or specialised reinsurance companies. The primary reinsurer in India is GIC Re, the state-owned national reinsurer, which has the right of first refusal on all reinsurance placed by Indian insurers. Foreign reinsurers can establish Indian branches with IRDAI approval and compete for Indian reinsurance business.

Reinsurance disputes involve the cedant insurer on one side and the reinsurer on the other. The most common issues are whether a particular loss falls within the scope of the reinsurance treaty, the allocation of large losses across multiple reinsurance layers, the impact of policy conditions in the original insurance on the reinsurer's obligation, and the follow-the-fortunes doctrine under which a reinsurer is generally bound by the cedant's good faith settlement of original claims. International reinsurance arrangements are often governed by English law and subject to London arbitration, requiring us to coordinate with English counsel on cross-border reinsurance disputes.

InsurTech: The Emerging Regulatory Frontier

Technology is changing insurance faster than the regulatory framework has been able to accommodate. Usage-based motor insurance products that price premiums based on telematics data, embedded insurance distributed through e-commerce and fintech platforms, parametric insurance products that pay on the occurrence of a defined event rather than a proven loss, and AI-driven underwriting that analyses non-traditional data to price risk are all areas where IRDAI is actively developing its regulatory position.

IRDAI has introduced a regulatory sandbox framework that allows InsurTech companies to test innovative products and distribution models with regulatory permission and within a defined scope and timeline. We advise InsurTech companies on structuring their products and business models to fit within the existing regulatory framework or to qualify for sandbox testing, on IRDAI licence applications, and on the compliance obligations that apply once a product is approved for launch.

Why Diwan Advocates for Insurance Law?

Legislative Reference Index

An insurance policy is a promise. When that promise is broken, the policyholder deserves a lawyer who knows how to enforce it.

When an insurer needs to manage its regulatory obligations or defend against a fraudulent claim, it deserves the same quality of advice.

Diwan Advocates delivers both.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Indirect Tax Practice

A technology company receives a show-cause notice from the GST department alleging that certain software services it supplied to overseas clients do not qualify as exports of services because the place of supply rules have been applied incorrectly. The proposed demand including interest and penalty runs to several crores. The company believes its position is correct. Its lawyers need to draft a reply that engages with the technical provisions of the IGST Act, the place of supply rules, the export of services conditions, and the relevant advance rulings and High Court decisions.

A manufacturer imports components and classifies them under a customs tariff heading that attracts a five percent duty. The customs department rejects the classification and assesses the goods under a heading that attracts fifteen percent. The difference in duty on three years of imports is material. The manufacturer has paid duty in good faith under its classification. It now needs to challenge the assessment, obtain a stay of the demand, and pursue the matter through CESTAT and, if necessary, the High Court.

Indirect tax in India after GST is both simpler in structure and more complex in practice than the pre-GST regime it replaced. The unified tax base, the input tax credit mechanism, and the online return infrastructure have rationalised the system. But the rate classification framework, the place of supply rules for services, the treatment of related party transactions, the input tax credit restrictions for specified categories of goods and services, and the interface between GST and customs create disputes that require genuine technical expertise to resolve.

At Diwan Advocates, we advise on GST compliance, customs classification and valuation, export incentive schemes, SEZ compliance, and the full range of indirect tax disputes before the GST appellate authorities, CESTAT, and the High Courts.

GST: The Core Framework

The Goods and Services Tax came into force on 1 July 2017 through a constitutional amendment and four Acts: the CGST Act, the IGST Act, and the corresponding state GST Acts. CGST and the applicable state GST apply to intra-state supplies. IGST applies to inter-state supplies and imports. The GST Council, comprising the Union Finance Minister and state finance ministers, recommends rates and policy changes that are then notified by the Central Government.

Input Tax Credit

Input tax credit allows a registered person to set off the GST paid on inputs, input services, and capital goods against the GST payable on output supplies. ITC is the mechanism that prevents the cascading of taxes through the supply chain. The conditions for claiming ITC are strict: the supplier must have filed its return and paid the tax, the recipient must hold a valid tax invoice, and the goods or services must have been received. ITC is blocked for specified categories including food and beverages, club memberships, and personal consumption.

ITC disputes are the most heavily litigated category in GST. Common disputes include the reversal of ITC on the ground that the supplier failed to pay the tax or file its return, the denial of ITC for goods and services alleged to be for personal use, and the treatment of ITC on capital goods across different uses. The Supreme Court and High Courts have developed a growing body of jurisprudence on ITC, and staying current with it is essential for any GST advisory practice.

Place of Supply and Export of Services

GST on services is levied at the place of supply, which for cross-border services is determined by detailed rules in the IGST Act. For a service to qualify as an export and attract zero-rate treatment, the supplier must be in India, the recipient must be outside India, the place of supply must be outside India, payment must be received in convertible foreign exchange, and the supplier and recipient must not be merely establishments of the same person. Each of these conditions has been litigated, and incorrect determination of place of supply is a common source of GST disputes for service exporters.

GST Assessments, Audits, and Demands

The GST department conducts scrutiny assessments, departmental audits, and special audits for specified categories of taxpayers. A show-cause notice typically alleges a specific breach: incorrect ITC claim, wrong classification, undervaluation of supplies, or failure to pay on a reverse charge basis. The taxpayer has an opportunity to file a reply and appear for a personal hearing before the adjudicating authority. We draft replies to show-cause notices, represent clients at personal hearings, and advise on the litigation strategy if the adjudication order is adverse.

GST Appeals

An adverse order of the GST officer can be appealed to the Appellate Authority at the first level, then to the GST Appellate Tribunal at the second level, and then to the High Court on a question of law. The GST Appellate Tribunal, after years of delay, is being constituted and will significantly change the pace at which GST disputes are resolved. We appear at all levels of the GST appellate hierarchy and advise on the best point in the appeal chain to raise specific legal arguments.

Customs: Classification, Valuation, and Disputes

The Customs Act, 1962 and the Customs Tariff Act, 1975 together govern the levy of customs duty on imports and exports. Classification of goods under the Harmonised System of Nomenclature determines the applicable duty rate. Valuation of goods determines the customs duty base. Both are frequent sources of dispute between importers and the customs department.

Classification Disputes

The customs department can challenge an importer's self-assessed tariff classification and issue a demand for the differential duty. Classification disputes turn on the characteristics of the goods, their principal use, and the Explanatory Notes to the HS. Courts have held that classification must be done on the basis of the goods as presented at the time of importation, not their ultimate end use. We appear before the Customs Commissioner, CESTAT, and the High Courts in classification disputes.

Customs Valuation

The primary method of customs valuation is transaction value: the price actually paid or payable for the goods when sold for export to India, adjusted for specified additions. The customs department can reject transaction value and substitute a higher value where the parties are related, where there are conditions on the sale that affect the price, or where the transaction value is significantly lower than comparable goods. We advise importers on documenting their transactions to withstand valuation challenges and represent them in valuation disputes.

Advance Rulings and Binding Guidance

The Authority for Advance Rulings under both GST and customs allows taxpayers and importers to obtain a binding ruling on the tax treatment of a proposed transaction. An advance ruling provides certainty before a transaction is entered into and avoids the risk of a post-transaction demand. We prepare advance ruling applications on classification, valuation, place of supply, and ITC eligibility questions.

Export Incentive Schemes

The Foreign Trade Policy administered by the DGFT provides a range of export incentive schemes for goods and services exporters. These include the Remission of Duties and Taxes on Exported Products scheme, advance authorisations for duty-free import of inputs used in export production, Export Promotion Capital Goods authorisations for duty-free import of capital goods, and duty drawback on customs duties paid on inputs used in exported goods. Each scheme has specific eligibility conditions, export obligation periods, and compliance requirements. Failure to meet export obligations results in duty demands with interest and penalty.

Why Diwan Advocates for Indirect Tax?

Legislative Reference Index

Indirect tax disputes are technical, fast-moving, and consequential.

Having the right team at the show-cause notice stage determines the outcome at every level above it.

Diwan Advocates is that team.

Diwan Advocates  |  Delhi, India

Diwan Advocates

Immigration Law Practice

A senior executive from a German company is being posted to India for three years to head the India operations. She will need a business visa converted to an employment visa, a Foreigner Regional Registration Office registration within 14 days of arrival, her dependants will need dependent visas, and her employer will need to ensure its HR compliance obligations under the immigration framework are met. If any step is missed or delayed, she faces overstay violations that affect both her and her employer.

An Indian-origin professional settled in the United Kingdom for 22 years wants to return to India permanently. He holds an OCI card. He wants to buy property, open business bank accounts, and invest in Indian companies. His OCI status gives him certain rights but not others. His FEMA classification as an NRI versus a person resident in India will change once he returns. His income tax residential status will shift after the first year. Getting these transitions right requires understanding immigration, FEMA, and tax law together.

Immigration law in India governs who can enter, how long they can stay, what they can do while here, and the consequences of non-compliance. It also governs Indian citizens' rights to passports, OCI status, and the legal consequences of prolonged foreign residence. At Diwan Advocates, we advise foreign nationals, their employers, NRIs, and OCI holders on the full range of immigration and citizenship matters.

Visas and Entry into India

Entry into India is governed by the Foreigners Act, 1946 and the visa conditions prescribed by the Ministry of Home Affairs. The principal visa categories relevant to work and business are the Employment Visa for foreign nationals employed by Indian companies, the Business Visa for persons visiting for business meetings and transactions without taking up employment, the Project Visa for specific construction and infrastructure projects, and the Intern Visa for foreign nationals undertaking internships. Each category has specific conditions on the nature of work permitted and the documentation required.

Employment Visa

An Employment Visa is issued to a foreign national who is being employed and paid by an Indian entity or by a foreign company for work to be performed in India. The applicant must be a specialist or skilled professional in their field. The minimum salary threshold for an Employment Visa is prescribed by the Ministry of Home Affairs and is reviewed periodically. The visa is typically granted for an initial period of one year and can be extended at the Foreigners Regional Registration Office. Holders must register with the FRRO within 14 days of arrival if their stay is expected to exceed 180 days.

Business Visa

A Business Visa permits the holder to visit India for business activities that do not constitute employment: attending meetings, exploring investment opportunities, participating in trade fairs, and similar activities. A Business Visa holder cannot draw a salary from an Indian source. Persons on Business Visas who are found to be performing activities that require an Employment Visa face cancellation of their visa and potential deportation.

Visa Extensions and Conversions

Extensions of employment and business visas, and conversions from one visa category to another, are processed by the Foreigners Division of the Ministry of Home Affairs or by the FRRO depending on the category. Extensions are not automatic and must be applied for before the existing visa expires. We manage extension and conversion applications for corporate clients and individual applicants and advise on the documentation required to avoid rejections and delays.

FRRO Registration and Compliance

Foreign nationals who are issued a visa for a stay exceeding 180 days must register with the Foreigners Regional Registration Office within 14 days of arrival under the Registration of Foreigners Act, 1939. Registration involves filing a form with supporting documents and obtaining a Residential Permit. The RP specifies the permitted period of stay, the permitted activities, and any other conditions. Changes of address, employer, or marital status must be reported to the FRRO within prescribed timelines. Failure to register or to report changes is a violation of visa conditions and can result in penalties and visa cancellation.

OCI and Citizenship

Overseas Citizenship of India is governed by the Citizenship Act, 1955. OCI is not full citizenship but a lifelong visa with multiple entry rights and parity with Non-Resident Indians on most economic, financial, and educational matters. OCI holders cannot vote, hold constitutional office, or purchase agricultural land. OCI is available to persons of Indian origin who are citizens of a country that allows dual citizenship, and to their spouses and minor children.

OCI Applications and Renunciation

OCI applications are made through the Indian diplomatic mission in the applicant's country of residence. The process requires documentation of Indian origin, current foreign citizenship, and a clean criminal record. We advise on OCI applications, on the situations in which OCI status can be cancelled, and on the process for renouncing OCI if a holder wishes to apply for Indian citizenship. An OCI holder who acquires Indian citizenship is required to surrender their OCI card.

Indian Citizenship: Acquisition and Loss

Indian citizenship can be acquired by birth, descent, registration, or naturalisation under the Citizenship Act. Citizenship is lost by renunciation, termination, or deprivation. A person who voluntarily acquires the citizenship of another country automatically loses Indian citizenship. The rules around citizenship for persons born to Indian parents abroad, and for persons who have spent extended periods outside India, are complex and fact-specific. We advise on citizenship status and on the documentation needed to establish or demonstrate Indian citizenship.

Detention, Deportation, and Enforcement

When immigration authorities detain a foreign national for visa violations, overstay, or suspected illegal entry, immediate legal action is required. A habeas corpus petition before the High Court is the primary remedy for a person in unlawful detention. The petition must be filed quickly and must establish that the detention is not in accordance with the procedure established by law. We file habeas corpus petitions in immigration detention cases and appear at urgent hearings before the High Courts.

Deportation orders can be challenged before the appropriate authority and, where the order is unlawful or disproportionate, before the High Court. Persons who have lived in India for extended periods, have family ties in India, or whose country of origin poses a risk to their safety if they are returned can argue against deportation on those grounds. We advise on the available grounds of challenge and pursue them urgently given the timelines involved.

NRI Legal Status and FEMA Classification

An Indian citizen who has been residing outside India for a period exceeding 182 days in the preceding financial year is classified as a Non-Resident Indian for income tax purposes and as a person resident outside India under FEMA, 1999. This classification determines their rights to hold foreign currency accounts, invest in Indian securities, purchase property in India, and repatriate income from Indian sources. When an NRI returns to India permanently, their FEMA status changes after the return and their income tax residency changes after meeting the prescribed number of days. The transition period requires careful management of bank accounts, investments, and ongoing FEMA compliance.

Why Diwan Advocates for Immigration Law?

Legislative Reference Index

Immigration compliance is not optional and the consequences of getting it wrong affect both the individual and their employer.

Diwan Advocates manages these matters so our clients can focus on why they are in India.

We handle the paperwork. They handle the business.

Diwan Advocates  |  Delhi, India

Law of Inheritance deals with Intestate Succession, Testamentary Succession and Partition. The laws are primary based on customary principles derived from uncodifiedpersonal laws. The Parliament has codified some of them i.e. The Indian Succession Act, 1925, The Hindu Succession Act, 1956, The Partition Act, 1893.

The Firm provides complete legal assistance in relation to drafting of Wills, deeds and other legal instruments. The Firm also drafts the legal documents i.e. Applications, Pleadings and Petition and appears before the Court of Law on behalf of its clients.

Diwan Advocates

Environment Law Practice

A power project obtains an environmental clearance. Environmental activists challenge it before the NGT, arguing that the public hearing was not conducted properly and that a significant ecological impact was not assessed. The developer's investment depends on this clearance surviving. The challenge has merit in one specific respect that the developer did not anticipate. The outcome turns on whether that defect is material enough to warrant setting aside the clearance or whether it can be cured without starting again.

A factory receives a closure notice from the State Pollution Control Board. The notice says the factory is discharging effluents in excess of the prescribed standards. The factory's directors are personally liable under the Water Act if the violation is proved. The factory disputes the test results and believes the sampling procedure was not followed correctly. The closure notice must be challenged quickly or operations stop.

Environmental law in India is constitutionally grounded, technically demanding, and enforced by a tribunal that has shown it is willing to act against both private parties and government authorities. At Diwan Advocates, we advise on environmental clearances, pollution control compliance, NGT proceedings, forest and coastal approvals, and the emerging climate and ESG regulatory framework.

Environmental Clearances and the EIA Process

The EIA Notification, 2006 requires prior environmental clearance for specified categories of projects before construction or operation begins. Category A projects are assessed at the national level by MoEFCC. Category B projects are assessed by State EIA Authorities. The process involves: scoping of the Terms of Reference, the EIA study, a mandatory public hearing for most projects, appraisal by the Expert Appraisal Committee, and grant or refusal of clearance.

Post-clearance compliance is as important as obtaining the clearance. Conditions relating to pollution control, monitoring, and green belt development must be reported on at prescribed intervals. Violations of clearance conditions can result in suspension or revocation. We advise on structuring EIA submissions, managing public hearings, responding to EAC queries, and challenging conditions that are disproportionate or unlawful.

Forest, Wildlife, and Coastal Clearances

Any project diverting forest land requires Central Government approval under the Forest Conservation Act. Forest rights under the Forest Rights Act, 2006 must be settled and gram sabha consent obtained before diversion. Projects near Protected Areas require NBWL clearances. Coastal development requires CRZ clearance from MoEFCC or State Coastal Zone Management Authorities. Linear projects such as highways and pipelines must co-ordinate all three clearance types simultaneously.

Pollution Control Enforcement

Industries require Consent to Establish and Consent to Operate from the State PCB under the Water Act, 1974 and Air Act, 1981. Operating without consent or violating consent conditions is a criminal offence. Directors of a company that violates pollution control laws are personally liable if the violation occurred with their consent, connivance, or due to their neglect.

The National Green Tribunal

The National Green Tribunal Act, 2010 gives the NGT original jurisdiction over environmental disputes and appellate jurisdiction over orders under the scheduled environmental statutes. Applications must be filed within six months of the impugned order or the arising of the cause of action. Environmental clearances can be challenged by any aggrieved person. The NGT has also taken suo motu cognizance of pollution events, forest encroachments, and urban solid waste failures based on media reports and citizen letters.

ESG and Climate Law

SEBI's Business Responsibility and Sustainability Reporting framework requires the top 1,000 listed companies to report environmental, social, and governance performance annually. The Supreme Court in M.K. Ranjitsinh v. Union of India (2024) recognised the right against adverse effects of climate change as a fundamental right under Articles 14 and 21. Extended Producer Responsibility for plastic, e-waste, and battery waste requires manufacturers, importers, and brand owners to collect and process the waste from their products.

Why Diwan Advocates for Environment Law?

Legislative Reference Index