Isbn 978-81-948082- 1-3)

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISBN 978-81-948082- 1-3)

Volume 1 Issue 3 (May 2021)

Email – [email protected] Website – www.ijlra.com

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DISCLAIMER

No part of this publication may be reproduced or copied in any form by any means without prior written permission of Managing Editor of IJLRA. The views expressed in this publication are purely personal opinions ofthe authors and do not reflect the views of the Editorial Team of IJLRA.

Though every effort has been made to ensure that the information in Volume I Issue X is accurate and appropriately cited/referenced, neither the Editorial Board nor IJLRA shall be held liable or responsible in any manner whatsever for any consequences for any action taken by anyone on the basis of information in the Journal.

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EDITORIAL TEAM

EDITORS Ms. Ezhiloviya S.P. Nalsar Passout

Ms. Priya Singh West Bengal National University of Juridical Science

Mr. Ritesh Kumar Nalsar Passout

Mrs. Pooja Kothari Practicing Advocate

Dr. Shweta Dhand Assistant Professor

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ABOUT US

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS ISBN 978-81-948082-1-3 is an Online Journal is Quarterly, Peer Review, Academic Journal, Published online, that seeks to provide an interactive platform for the publication of Short Articles, Long Articles, Book Review, Case Comments, Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim is to upgrade the level of interaction and discourse about contemporary issues of law. We are eager to become a highly cited academic publication, through quality contributions from students, academics, professionals from the industry, the bar and the bench. INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS ISBN 978-81-948082-1-3 welcomes contributions from all legal branches, as long as the work is original, unpublished and is in consonance with the submission guidelines.

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INDEX

S.No Name Title Page no.

1 Anubhav Singh & Copyright in the digital world: Issues and a Way 5 Yashi Singh Forward 2 Shrey sahai Social base of political parties with their voters having 22 shifted their allegiance to different political parties 3 Chandi Prasad A Study On The Legal Aspects Of The Inter-State 37 Khamari & Anjana Migration Of Labour (Dadan) With Special Reference Tripathy To Balangir District, Odisha 4 Prachi Shekhawat Abrogation Of Constitution: Transition From “Judicial 47 Activism” To “Overreach” 5 Katyayani Jha Role Of Asean Countries In The Paris Agreement 60 6 Dhruv Mehta Children Should Be Allowed To Play Video Games For 71 An Hour On A Daily Basis 7 Rachit Sharma Malicious Prosecution 79 8 Anuroopa D The Wto Dispute Settlement Mechanism- An Analysis 88 9 Ambika Gupta Interplay between Constitutional Law and Criminal Law 105 while Analysing the Legality and Evidentiary Value of Physiological Devices 10 Anjali Bisht The Impact Of Climate Change On Children: A Study On 116 South-Asian Children 11 Mansi Mankotia Right To Privacy, Vis-À-Vis The Personal Data Protection 136 Bill, 2019 And Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules 2021 12 Nishita Kirty Legal Personality & Artificial Intelligence 144

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AUTHOR: ANUBHAV SINGH COLLEGE: MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI COURSE: B.A.,LL.B.(Hons.) YEAR: 2ND YEAR

CO-AUTHOR- YASHI SINGH COLLEGE: MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI COURSE: B.A.,LL.B.(Hons.) YEAR: 2ND YEAR

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TABLE OF CONTENTS ABSTRACT ...... 7 INTRODUCTION ...... 8 1.1 AIM: 9

1.2 RESEARCH METHODOLOGY: 9

1.3. RESEARCH HYPOTHESIS: 10

THE COPYRIGHT LAWS AND THE DATA BASES ...... 10 2.1 WHAT IS DATABASE? 10

2.2 COPYRIGHT LAWS AND DATABASES 11

2.3 PROTECTING THE DATABASE IN INDIA12

INFRINGEMENT OF COPYRIGHT ON THE INTERNET ...... 13 3.1. FRAMING: 13

3.2. CACHING 13

3.3. DISPLAYING PUBLICALY AND THE RIGHTS OF UPLOADING AND POSTING ON THE INTERNET 14

JURISDICTION PROVIDED UNDER THE COPYRIHT ACT ...... 15 RIGHT TO REPRODUCTION OF DIGITAL WORK ...... 16 6.1. CHARACTERISTIC OF COPYRIGHT AMENDMENT ACT, 2012 AND RULES DEFINED 17

CONCLUSION ...... 18 BIBLIOGRAPHY ...... 19 7.1. BOOKS: 19

7.2. CASES: 19

7.3 JOURNAL ARTICLES: 19

7.4 RESEARCH ARTICLES: 19

7.5 STATUTES: 20

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ABSTRACT

Internet plays a vital role in one’s day to day life. In nowadays life for someone to reach out the world with better outstretch or influence. Individuals are sharing their authentic work on internet i.e., on digital platform making it convenient and obtainable to the majority of people out there in the world. Law of Copy right has its historical significance in order to safeguard and shield the originality of the work. Internet is a massive and immense platform for one to present his or her work digitally, and it also becomes easy for the work to be duplicated on the same platform. Copy right laws are mainly responsible to prevent the work of creator to not to be copied or duplicated. Since, the times have changed and with changing times the vicinity of the technology has only increased and with it the approach of people to others through digital platforms mainly internet has also gained a huge jump. Now when there is a threat to originality of the content created by the creator with complete authentic approach, this is the part where Copyright laws comes in the picture. Copy rights laws have been gaining lot of significance in today’s world since the reach to their intellectual property by others have also increased. It is of grave concern if noticed that strangers controlling your work, your content, using it for their gain and are getting away with it. In order to prevent such situation, the Copy Right Law in the Digital world is important. Hence, with this the researcher would enlighten that this research paper will solely concentrate on the problems and issues faced by the copy right laws on the digital platform, and how the laws have been changing with the time being, and what are the significant steps required to as in order to enhance the security and protection of the content online or on digital platforms by the Copy Right Law in the country. KEYWORDS: COPY RIGHT LAWS, PROBLEMS AND ISSUES, DIGITAL PLATFORM, CHANGES IN THE LAWS.

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INTRODUCTION

With the world changing around us, it also includes the social life of individuals. With the change in one social life results in change of various laws related ton ones’ rights and life too. Every day there’s new technology being introduced to the world which has become a potential threat to the Copyright Laws. The digital world for instance has an immense impact on the Copyright laws and demonstrates on the fact the content and work on the internet is to be protected, the creation’s originality shouldn’t be jeopardized under the Copyrights law. The industry consequently has put every new invention to its advantage in terms of creating newer forms of exploitation of art, widening markets and increasing profits1. There are many challenges faced by the Copyrights law since with the technology changing the internet is more available to the world than it ever was. And hence this is the reason the data on internet can easily be target for manipulation, changes and duplication. By enabling the making of perfect copies of copyrighted works for little cost, digital technology threatens to undermine the distribution systems and increase unauthorized use of copyright works2. The issue rises with the concept that what is the definition of Internet defined by Copyright laws, and how is it suppose to protect data on the digital platform. Hence, there is no specific definition provided under the Copyright Designs and Patents Act 1988, it doesn’t say anything concrete about the Internet or the digital platform. There are many questions present regarding the explanation of the internet under the Act, but it isn’t answered. The advancement of the digital environment has been huge challenge to the copyright laws. The growth of technology has given rise to concepts like computer programs, database, layout, etc. In the digital era, copyright is a key issue in Intellectual Property Rights.3 Copyright is an essential asset for the Intellectual property rights when digital platform and data on the internet is considered. The main responsibility of the Copyright laws is to protect the creativity and the labour of the brain over the content which is used to make the content authentic. Once the work is published on the digital platform it becomes easier for that content to be replicated or to be saved by someone else making it harder for the copyright laws to protect the content from being threatened. There are many characteristics that can be considered once the copyright laws over the data is imposed. For instance, the issues of the data being reproduced, the data being easily distributed on a global platform or the data being easily saved by many on the digital platform. Hence, this proves that there is a dire need for copyright laws ton advance in its own field including the digital platform too. There should be special provisions or the amendments made in order to aid the copyright to protect the data on internet potentially, since at present the laws are not well equipped to provide any sense of

1 Mittal, R. (2006). From Printing Press to the Internet: The Stride of Copyright along with Technology, Intellectual Property and Technology Law Journal, 1, 21-46. 2 WIPO. (1996). Basic Proposal for the Substantive Provisions of the Protection of Literary and Artistic Works to Be Considered by the Diplomatic Conference. WIPO, Geneva 3 Copyright in Digital Era, http://www.rmlnlu.ac.in/webj/alok_kumar_yadav.pdf last seen 12/05/2021

www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 safety to the authentic works of the creators on the internet. Copy rights laws have been gaining lot of significance in today’s world since the reach to their intellectual property by others have also increased. It is of grave concern if noticed that strangers controlling your work, your content, using it for their gain and are getting away with it. In order to prevent such situation, the Copy Right Law in the Digital world is important. It completely depends on the desire of the creator to make his or her work public, i.e., opening it to the public domain to read and use but not to entirely duplicate it. Hence, with this the researcher would enlighten that this research paper will solely concentrate on the problems and issues faced by the copy right laws on the digital platform, and how the laws have been changing with the time being, and what are the significant steps required to ass in order to enhance the security and protection of the content online or on digital platforms by the Copy Right Law in the country. 1.1 AIM:

● To analyse whether there are equipped provisions under the Copyright laws in order to address issues related to the work which is being exploited on the digital platform. ● To analyse if there are any special provisions under the statute is provided for the efficiency of the Copyright laws to work.

1.2 RESEARCH METHODOLOGY:

The study has relied on the secondary method of research, also known as armchair research. The secondary method of research is based on the analysis of secondary data. Secondary data is information which has already been collected, compiled, and published by other researchers. This study is based on authentic secondary data collected from various sources, such as books, research papers, and online resources. ● In order to understand the concept of Copyright laws related to the digital world, the researcher has referred to different online blogs, books, research essays and this helped the researcher to get the basics clear. ● The researcher has referred to various digital and internet platform components in the laws, though there is not much information provided for the same but the researcher has examined ample amount of internet blogs and notes and articles in order to get a clearer picture regarding the relation and issues faced by the copyrights in the digital world. ● Further, the researcher will try to establish and analyse the relation between the copyrights and the digital environment and how various characteristics impacts the relation between them. This was achieved with the help of the online research papers, links, various online articles and books.

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● And at the end the researcher will try to analyse the whole picture with help of the data collected and will try to provide with some suggestion and the conclusion with the help of the resources like books, online research articles, research papers etc.

1.3. RESEARCH HYPOTHESIS:

For the purpose of this paper, the researcher has come up with the hypothesis that there is dire need to amend the present copyright Laws for the digitally created content on the digital platform.

THE COPYRIGHT LAWS AND THE DATA BASES

The basic idea of a data base is storage where all the collection of the data, content, essential material related to work, and work is done. It can also be called as a compiler of the work done. The database actually stores the data in a chronological and in a systematic method in a methodological way. According to Lord Atkinson, for the subsistence of copyright, ‘it is necessary that labour, skill and capital should be expended sufficiently to impart to the product some quality or character which the raw material does not possess and which differentiate the product from the material.’4 2.1 WHAT IS DATABASE?

A database is a place which can be looked upon as a section which records and saves the data, content, work etc in a chronological or methodological way. It is a systematic system in order to keep record of the work done. The data provided and storage by the data base is usually done in an electronic form5. The data base system is entirely different form the data base where the data is stored. The data base system actually is used to direct and administer the data base. A database can contain contents like sequencing of the DNAs’, the information related to any scientific field like chemicals, informational data on a person or even on any specific object in order to keep it safe, or any kind of recipe, work related to any art, etc. It might also include data for any specific corporate company employee list, or work list, the salary records of the workers there, numbers, addresses, positions, etc. These information are stored in a particular place (data base) hence it becomes significant in order to protect the data stored in side. Since, the data may also include personal information of an individual.

4 Macmillan & Co. Ltd v. Cooper, (1924) 40 TLR 186 at p. 188 5 http://www.oznetlaw.net/FactSheets/DatabaseProtection/tabid/930/Default.aspx last visited, 12/05/202.

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These can store texts, images, audios, videos etc. Hence, it comes under the domain of copyright laws to protect the data from being used carelessly and from being threatened. Any interference caused to the data stored inside the database can cause huge damage to someone’s privacy, since all these breaches happened to the data stored this amount to great threat to the copyright laws as well, since most of the data stored is computer based and can easily be copied on digital platforms, on internet to larger audience out there.

2.2 COPYRIGHT LAWS AND DATABASES

As mentioned before database is a compilation of specific data that can be stored in a systematic way. It was stated that even though the data stored in data base sometimes is not an original work though it needs to be protected under copyrights Law6 . In principle, the facts themselves cannot be protected but the order and organization can, if they show a certain level of creativity on the part of the author. When referring to databases it is necessary to distinguish between creative and non-creative databases because each is dealt with under a different set of legal rules7. Under section 2 (o) of the copyright Act, 1957 the data base is protected in the Indian Intellectual property rights. Under this section only, though not defined prominently but the work of art or work of literature also comprise computer programs and databases stored in the computer system. In case Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd 8, the Australian court stated that the creativity by any one and the labour done by the person needs to be protected. It was also mentioned the literary work done by anyone also comprise the computer data or the database. Under the copyright Act, the definition of the literary work is anything stored in the form of table, words, or anything in figures or symbols. The Protection of the Database in India comes under the section 13 (1) (a) of the Copyright Act, 1957. It simply states that the originality and the authentic work and labour of the person should insisted and protected. There further more severe consequences to the actions if some one tries to breach the security or someone tries to duplicate the work done, under section 63B the punishment is defined, which clearly states that such actions can amount to imprisonment for at least seven days to three years, and it may also include fine of about fifty thousand more or less to two lakh rupees. In Apple Computer Inc. v. Mackintosh Computers Ltd 9, it was found that there was infringement of the work in the form literature which stored in the computer and was reproduced, hence the court held that this was complete infringement of somebody’s intellectual labour.

6 Jain,Pankaj & Rai.Pandey Sangeet, Copyright & Trademark Laws relating to Computers. (2005) at p. 45 7 http://www.unc.edu/courses/2006spring/law/357c/001/projects/dougf/node1.html (accessed on 12/05/2021) 8 Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd, [2001] FCA 612 9 Apple Computer Inc. v. Mackintosh Computers Ltd, (1988) 44 D.L.R (4th) at p. 74.

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2.3 PROTECTING THE DATABASE IN INDIA

The Copyright Act in India was amended in the year 1994 in order to provide protection to the literary database which also comprised the data stored on computer database. It was stated that the digital database also amounts to the labour done by intellect and the skill used to perform such labour needs to be protected without depending on the fact that what results it may give. Computer programs performed by people also required skills and labour and hence in order to protect the authentic work done by them the Copyright Act, was amended. Under section 2 (0) of the Information Technology Act, 2000 the definition of data was defined more prominently. It came under the vicinity of the concept of computer-based programs, media i.e., audios, videos, anything which is being stored on computer or is relying on computer to be stored, it was the first time that the word data base got its definition and explanation under the India jurisdiction under Information Technology Act, 2000 within Section 43 of the Act. Other provisions provided under the Act it about the liabilities to the person if he or she tries to jeopardize any data, or someone’s work which is stored in computer and who has a complete intention to cause harm to the data stored on the computer, this may cause to violation of privacy of the person, computer trespass such provisions are covered under section 66 of the Act. This also includes the actions like hacking if anyone tries to destroy the content stored on the computer with an intention to do so.

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INFRINGEMENT OF COPYRIGHT ON THE INTERNET

As mentioned prior to this internet is a vast source of content. And hence it has also become one of the greatest threats to the copyright Act, since it is easier to copy, infringe, or to share someone else’s work on the digital platform. In order to protect the originality of the work the Copyright laws are induced. Sometimes infringements are done with purpose, with an intent to cause haem to the content and sometimes the infringement may be caused due to the negligence. There are many forms in which a data can be infringed online, like, copying, archiving, sharing the work on the internet to the larger domain of public, or by linking, framing, hacking etc. 3.1. FRAMING:

Framing is an exercise which is becoming common these days. In this one can easily frame the original work, data, or the site in order to claim it and can display it as an independent site for use, one can easily download data and create a different independent frame to use. These sites do not frame on itself or overlap once put to use.10 The framing was also observed in the case Washington Post Co v Total News Inc11, in the instant case plaintiff was responsible for the infringement of the copyright laws of the internet since he made a website and then framed it inside the website of the defendant, hence when the symbol on defendant’s website was clicked it framed directly to the website of the plaintiff. In Future Dontics, Inc vs. Applied Anagramics Inc12 the plaintiff created a website on the plaintiff’s frame in order to do advertisement of his own business, even though he was provided with a telephone number for the business purpose and even a mark for the business. In the present case court stated that there was infringement of the copyright on plaintiff’s part. 3.2. CACHING

If a person wants to copy an original work and needs to store it in a temporary storage then caching is used. Cache basically defines as a storage place where one can store data or content temporarily and the content saved can be available to the user whenever he wants to use it.13 There are some features to caching, that is if one person needs to go through the procedure then the copying if data is done on the computer while accessing the website in the meantime, then the data copied by the person is also saved with the data viewed by the users and in the last the data copied is not exactly getting saved on your desktop rather on Internet Service Provider or we can say on the website.

10 Microsoft Press Computer Dictionary, third ed., p 207 11 Washington Post Co v Total News Inc, No. 97 Civ 1190 (PKL) (SDNY 1997) 12 Future Dontics, Inc vs. Applied Anagramics Inc Case No. CV-97-6991 ABC 13 Pankaj Jain and Pandey Sangeet Rai, Copyright and Trademark Laws Realting to Computers, Eastern Book Co, 2005, p 278

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3.3. DISPLAYING PUBLICALY AND THE RIGHTS OF UPLOADING AND POSTING ON THE INTERNET

All the work and content created and posted on the internet, holds the copyrights of the originality of the work. When any such data or content is posted on the digital platform, i.e., on the internet without any direction of the copyrights provided to it then the work uploaded has infringe the copyright of the original work. Since, internet is a vast platform it is difficult to control the people on the internet and when the content is posted on the internet it is almost open to everyone present on it. There are not any concrete or hard and fast rules defines for this but a conclusion can be reached if tone detects the infringement of the copyright of the original work. Sometimes the user is unaware with the fact that he or she is copying someone else’s work and causing infringement of the copyright. In the case Playboy enterprises Inc v. Frena14 the defendant said that he was not aware of the idea that by his actions he was infringing the copyrights, he created the BBS (Bulletin Board service) where the content provided was copied and infringed. He said he never had any intentions in doing so but the court held him liable for his actions. Completely different actions were taken in the case Religious Tech Ctr vs. Netcom Online Communication Service Inc15. in this case the court expressed that BBS did not withheld any information from the originally copyrighted work, and did not make any changes over it or never did they control the content created by the original creators hence they were not charged with infringement of the copyright of the original work. They basically said that it was acting as a medium of information to the public.

14 Playboy enterprises Inc v Frena, 839 F Supp 1552 (MD Fla 1993) 15 Religious Tech Ctr vs. Netcom Online Communication Service Inc, 907 F Supp 1361. 1372-73 (ND Cali 1995)

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JURISDICTION PROVIDED UNDER THE COPYRIHT ACT

For the first time the copyright in India and the skills and work of the people were protected by the Copyright Act, 1957. After there were many amendments made to the Act, mainly there were many other definitions and provisions were added to the Act. With the constant change in the society the laws had to amend itself in order to protect the rights of the users, content creators. The most recent amendment made to the copyright Act, 1957 is Copyright Act, 2012. This was mainly enforced in order to protect the originality of the data and content present on the digital platform. More specifically data which can easily be transferred, copied, framed or even hacked. The internet services play a vital role here. The internet is a platform with the majority of the chance to cause infringement to the copyright of the work. The newly amended Copy right act clearly mentions about the liabilities, punishments and penalties for the infringement of the copyright work. It also covers the part with the portion of stating the necessity of the statutory license in order to make sure that the sharing of the data does not amount to infringement of the data. The Copyright Act, 2012 had tried to maintain the originality of the work by distributing creators with the royalties of their authentic work and to the creators. There is also a provision of fair use which is covered under the section 52 of the Act, and is influence by the TRIPS agreement 1995 and Berne Convention of 1885. The Indian justice system is trying to make copyrights law more authoritative and empowered in order to protect the data used digitally. In the recent case UTV Software Communication Ltd vs. 1337x and ors16 it was stated by the court that there is no need to cause any distinction between the crimes caused in the physical world to the crimes caused digitally, as it was questioned in the case. The second main issue was raised to put severe guidelines over the usage of internet due to piracy of work. It was stated by the court that putting obligations on the user in order to use internet is not a solution, let alone also interferes with rights of the users, hence there should be sense of responsibility in order to handle and use the content on internet. There should some expected regulations that should be followed and should be implemented in order to prevent any such situation. In the present case the main issue was that the plaintiff hosted the defendant’s website and shared the copyrighted content over it there by infringing the copyright of the work, hence amicus curiae was assigned to Mr Hemant Singh in order to answer the issues raised.

16 UTV Software Communication Ltd v/s 1337x and ors, CS(COMM) 724/2017

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RIGHT TO REPRODUCTION OF DIGITAL WORK

It has become easier to copy the work which is created digitally or with help of the digital technologies around. In copyrights right to reproduction is an essential role and it has also caused major threats to the copyright laws in time. Right of reproduction is also addressed by the Berne Convention but in 1967. In the Stockholm Revision of 1967, a new text of Article 9(1) was inserted, which in the words of Stuart, “is both lapidary and embracing both present and future processes”17. Since the adoption of the Statute of Anne, the mother of modern copyright law, the reproduction right has been at the heart of copyright law for more than three hundred years. Though recognized as a seminal right accorded to authors18 the reproduction right per se has not been unambiguously delimited by the international instruments for copyright protection19 . Due to the lack of agreement on the right's scope and content, the original text for the Berne Convention did not include any provision that expressly protected the reproduction right20. There are many questions and arguments over this specific right. As mentioned under the Article 9 of the Berne Convention, it gives privilege of the right to reproduction of the work. Hence it defines it in the form where it says that the provision of right to reproduction is provided under this article in a form. Now the phrase “in a form” has caused a great ambiguity in the article and among others. Does that mean that the person under this article is not entirely free to copy the content and can only reproduce it with the idea of the original text and in a different body form? Hence under WIPO there is provision of two article where the right to reproduction of the content is defined and is also protected. It clearly states and specify about the direct or indirect authority of right to reproduction over the content. In this the members or the users have got the freedom of recreating, changing, reforming the content with the right of reproduction, this simply specify the idea of reproducing something with modified features in it. Under section 13 of the Copyright Act of 1957, it states about the protection of the work, and the creation of the work since it is the intellectual labour. But further it also provides provision where it states that if a person who has created content, then he or she can enjoy the right where they can reform or reproduce their own work but this provision is not applicable for indefinite time. It has a time limit over it.

17 Stewart, supra, p 121 18 Goldstein, P. (2001). International Copyright: Principles, Law and Practice. New York: Oxford University Press 19 Spoor, J. H. (1996). The Impact of Copyright in Benelux Design Protection Law. In P. B. Hugenholtz (ed.), The Future of Copyright in a Digital Environment (54-86) Hague: Kluwer Law International. 20 Ricketson, S. (1987). The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986. London: Centre for Commercial Law Studies, Queen Mary College

www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 6.1. Characteristic Of Copyright Amendment Act, 2012 And Rules Defined

Copyright Amendment Act, 201221 have made may major changes and provisions are provided under the same: ● If a person saves the content or data from any electronic platform or digitally with clearly stating the reasons behind it then it must not amount to the infringement of the Copyright Laws. ● If the non-commercial library is providing with the hard copy or paper-based copy of the work then they are allowed to store the E-copy of the very work and it may not constitute to infringement of the copyright. ● The links created in order to use them later for the purpose mentioned are not strictly prohibited. ● The data which can be used for the cause like education is provided without any prohibition. Such data can be used in lecture by the teachers to teach, there are no such rules applied here.

The Copyright Rules 201322 ● The rules made the license obligatory ● The statutory license became an essential part ● Copyright societies are required to go for their registration ● The members and users are required to join the membership of the administration of copyright societies

21 https://www.wipo.int/edocs/lexdocs/laws/en/in/in066en.pdf last used 12/05/2021 22 http://copyright.gov.in/Documents/Copyright_Rules_2013_and_Forms.pdf last used 12/05/2021

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CONCLUSION

The present copyright laws are not concrete enough to protect a creator’s work. The laws and jurisdiction provided under the act is filled with loopholes, and drawbacks. The provisions are not enough to give safe environment to authors to create new art, data, work. In spite of various legal developments made in the field of copyright laws, there are still many infringement cases being reported on daily bases. There is a need to update the laws related to protection of the data present digitally on Internet since the internet and society is evolving everyday with new technology being added to it. There is still work needed in order to speed up procedures in court, since the growth of a copyright bar has not been at its peak. There is a requirement for a well-equipped and intellect government official in order to detect any infringement in relation with copyright. There needs to be more penalties, concrete penalties as a consequence of the violation of the copyright laws. Such incidents can be used as precedents in order to prevent such actions or offences in future. Though the new amendment in the copyright laws have made a sign, where one can see that the government is working in the direction in order to make the digital world as safe to work with all the required measures taken.

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BIBLIOGRAPHY 7.1. BOOKS:

● DAVISON, THE LEGAL PROTECTION OF DATABASES 11(CAMBRIDGE UNIVERSITY PRESS, CAMBRIDGE,2003) ● K Idris, INTELLECTUAL PROPERTY: A POWER TOOL FOR ECONOMIC GROWTH 78-79 (WIPO, Geneva, 2000) ● MEENU PAUL, INTELLECTUAL PROPERTY LAW, 272-277 (ALLAHABAD LAW AGENCY, FARIDABAD, FOURTH EDITION 2012) ● V K AHUJA, LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS 219, 311, 535-551(3RD ED., LEXIS NEXIS 2021) ● GINSBERG, J. (2003). ACHIEVING BALANCE IN INTERNATIONAL COPYRIGHT LAW, COLUMBIA JOURNAL OF LAW & ARTS, 26, 201-245.

8.2. CASES:

● Macmillan & Co. Ltd v. Cooper, (1924) 40 TLR 186 at p. 188 ● Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd, [2001] FCA 612 ● Apple Computer Inc. v. Mackintosh Computers Ltd, (1988) 44 D.L.R (4th) at p. 74. ● Washington Post Co v Total News Inc, No. 97 Civ 1190 (PKL) (SDNY 1997) ● Future Dontics, Inc vs. Applied Anagramics Inc Case No. CV-97-6991 ABC ● Playboy enterprises Inc v Frena, 839 F Supp 1552 (MD Fla 1993) ● Religious Tech Ctr vs. Netcom Online Communication Service Inc, 907 F Supp 1361. 1372-73 (ND Cali 1995) ● UTV Software Communication Ltd v/s 1337x and ors, CS(COMM) 724/2017

8.3 JOURNAL ARTICLES:

● Gulla, R. K. (2007). Digital Transformation of Copyright Laws and the Misty Indian Perspective, Icfai Journal of Intellectual Property Rights, 6(3), 1-26 ● Mittal, R. (2006). From Printing Press to the Internet: The Stride of Copyright along with Technology, Intellectual Property and Technology Law Journal, 1, 21-46 ● Ginsberg, J. (2003). Achieving Balance in International Copyright Law, Columbia Journal of Law & Arts, 26, 201-245.

8.4 RESEARCH ARTICLES:

www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 ● 8 Indian Copyright Law and Digital Technologies, http://docs.manupatra.in/newsline/articles/Upload/040BB5AA-DE9A-4895-AA66- C82590E7BFF2.pdf ● Copyright Protection in Digital Environment: Emerging Issues, http://www.ijhssi.org/papers/v2(4)/version-3/B240615.pdf ● Copyright Issues in Digital Media https://www.cbo.gov/sites/default/files/108th-congress-2003- 2004/reports/08-09-copyright.pdf ● Copyright in Digital Era https://blog.ipleaders.in/copyright-digital- era/#:~:text=Challenges%20faced%20by%20Copyright%20in%20Digital%20World&text=Copyri ghted%20works%20on%20the%20internet,copy%20of%20the%20protected%20work. ● COPYRIGHT INFRINGEMENT ON THE INTERNET https://blog.ipleaders.in/copyright- infringement-on-the-internet/#_ftnref11 ● Why India needs to modernise its copyright laws for the digital era https://theprint.in/opinion/why-india-needs-to-modernise-its-copyright-laws-for-the-digital- era/550243/ ● Digital Copyright Laws https://lawtimesjournal.in/digital-copyright-laws/#_ftnref9

8.5 STATUTES:

● THE COPYRIGHT ACT, 1957 ● THE COPYRIGHT RULES, 2013 ● THE COPYRIGHT ACT 2012

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Research Paper on Social base of political parties with their voters having shifted their allegiance to different political parties. Politicianstoo are found to be party hoppers. By : Shrey sahai

ABSTRACT-

While there seems to be general consensus among politicians and voters and that the influence of political leaders on voters is very important. In this paper My approach is based on two perspectives: that party leaders influence indirect voting behaviour and that the main effect leaders have is on how voters think and feel about their parties. (2) If party leaders are concerned, leadership changes must be accompanied by the most powerful changes in party affiliation and subsequent changes in support of the election. In order to get the results of the political leaders in the vote the right strategy is to focus on changing unity immediately after a change of leadership. I will also mention about voter behaviour in relation with the present elections scenario.

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INTRODUCTION -

“Voting is one of the most widely used words in the modern era of democratic politics. In democratic systems, old citizen uses “voting" as a way to show his acceptance or reject government decisions, policies, and program editors. For this reason, vote is considered a basic process of democratic decision-making. However, in broad terms, such as Richaed Rose no Harve Massavir pointed out, covering voting as as many as six tasks: - 1. It involves personal choice executives or major government policies; 2. Allows people to contribute to continuous and continuous exchange of influence office bearers and candidates; 3. It helps to develop individual honesty of existence constitutional state; 4. Contributes to voter development disagreement with the existing constitution state; 5. It has emotional significance for individuals; and 6. For some people, it may not work off any emotional or political significance human results.

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Understanding voter behaviour and it’s determinants

Samuel S. Eldersveld in his article “Theory and How to Investigate Electoral Conduct ” he writes: “The word electoral conduct is not new. More recently, however, it has been used to describe specific areas of research and types of politics events that were not previously conceived or is considered inappropriate. ”Behaving in time voting is not limited to voting tests statistics, records, and accounting changes to elections and ratings. It is an analysis a human and psychological process and political actions. According to J. K. Plano and Riggs: “Voting ethics a field of learning about how often people vote in public elections and the reasons why vote the way they do ”. Personal choice voting votes and related values is called voting function. Election is about process for the role of democracy in which all people express their opinions individually as well issues with voting votes . However, given the situation with the conduct of Indian choice, prof. UV. S. Sirsikar observes: “The study of the selection process points to other external factors. It can be said that India has benefited stable government, but great deception, caste influences, fear of a few and a prime minister governance did not play a significant role in this process. There can be many determinants in voter’s behaviour some are -

Caste continues to be the deciding factor how to vote in India. It has deep roots in community and forms an important foundation for social relations at all levels. Apart from- acceptance of various restrictive conditions action and discrimination on the basis of, class it continues to be a decisive factor . The political parties in India, without exception, formulate their policies, programs and election strategies always maintain caste status in mind. It is often seen in several political parties during the nomination process the voter while exercising his or her voting right, pays special attention to the category of the person to be written time for the election slogan "jat ki beti jat ko, jat ki voto jat ko "were seen . Morris Jones writes, "Politics is very important to the elite and the elite more politically important than ever before.’’

Popular slogans: Sometimes different political parties suggest people's slogans according to the need of time and affect voter thinking. For example, the conference has adopted the motto, ‘garibi hatao ’in 1971. In Lok Sabha the slogan was' Aabki bar Modi sarkar.

www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 . Personal contacts: Candidates' contacts ,voters personal contacts ,it also affects the behaviour of voters. The majority of voters are influenced by the candidate’s visit and vote for their kindness. Apart from this, relatives as well Friends of the candidate also voted in kindness to them for personal gain relationship.

Religion: Religion also plays an important role in India politics. Many political parties were built on the basis of religion in India. During election time, different political parties pleads votes in the name of religion. They raise the slogan ‘Religion is in danger’ and they promote the religious feelings of the people. While distribution of party tickets religion voters and nominees are given a fair go consideration. It is often seen that they do not vote ,they voted for the candidates in the election under the influence of a religious feeling.

Language: India is a multilingual country. The language also acts as a factor in voting behaviour. There have been problems in provinces such as those of the individual state language in that context, or relating to quality of the state language of the state. Since people have emotional contact with themselves ,their languages, they are easily influenced at any time any language-related issue arises. Language interests always influence voting character, for example, DMK defended the vote of the Tamil Nadu people in 1967 and 1971 by making anti-Hindi propaganda.

Financial influence: India is nation with a large number of people living below the poverty line. Money plays a very important role in determining conduct of voting in India . During elections, the poor attracted by the lust of money. In this way, the process of, ‘Give a note and vote’ continues in India

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1) Political parties dominating elections , not the candidate

The general view regarding Indian politics is that it is not the candidate ,but the party, who wins the election. This makes it important for parties to choose candidates who are “right”, and Indian parties spend a lot of effort on local consultation and ownership statistics when deciding who will get party tickets. The belief that candidates will win or lose has also led many independent candidates to throw their hats in the polls. How do these independent people continue? The dramatic growth over time in the number of candidates, especially electoral candidates, but also the fact that an independent candidate is less likely to win a parliamentary seat in India. While in most constituencies, most people are vying for one seat, there are also rare cases where one person running for office is unopposed. This happened 13 times between 1962 and 2014.

An irresistible election often occurs when there is a very strong election in practice. For example, Manavendra Shah, the last ruling king of the Garhwal Kingdom (a prince who came in Independent India on May 18, 1948), was elected a Member of Parliament from the Tehri Garhwal (modern-day Uttarakhand) party in 1957. It was the most prosperous region in his former empire, and he received the largest majority of 79 percent of the total votes he received. In 1962, he ran for re-election unopposed.

Another example is the President of the National Conference Farooq Abdullah, the son of Sheikh Abdullah (former Prime Minister of Jammu & Kashmir and the icon of Kashmiri politics), who ran unopposed from the Srinagar region of Jammu & Kashmir in 1980 when Sheikh Abdullah appointed him as his successor. The last time he won the Lok Sabha seat unopposed was in 1989, The poor performance of the independent candidates indicates that the electoral competition in India is primarily between political parties. An excellent example of the importance of parties comes from the above-mentioned Manavendra Shah, who, despite honouring his name, lost the election in 1971 while running for re-election. He returned to power in 1991, but with a BJP ticket.

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Changing trends in the mind set of Indian women:

Social transformation has led to various developments in various fields such as communications, media, transport and education. And these changes have a profound effect on the lives of both men and women. While change is evident in urban areas, it is not so in rural areas. With minimal development impact rural areas remain unaffected by all such social changes. Mahatma Gandhi said: “Women are men's partners, they are capable of mental equality and have the right to participate in the smallest detail of human activities and have an equal right to freedom and liberty with him. She is entitled to a higher position in her profession as well as men. ” Over the past 30 years, there has been a marked improvement in the number of women from various parts of India. Itmay not be the highest number of female voter registration but the active participation. The women who had been barred from the four walls of their houses under cover came out to choose their futurerepresentatives to have the same voice as the men."An empowered woman can be one who is self- confident, who carefully analyses her environment and who controls decisions that affect her health." Modern women want equality in all areas of life. In addition to finding this equation it depends on the set of values they follow, their psychological structure and the society in which they operate. Although in Indian society, the role of women in politics can be criticised or hampered, the fact is that women play an equal and important role in society.

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Political involvement:

Equality and equal participation in the representation of women compared to men in politics reflects equality, freedom, justice and equality in society. Women who participate in politics are not only equal but also act in the interest of women in Indian society.

Women's political participation is necessary because the votes make up the decision-making power in government ,where they raise their voices against government to ask what the government has done for them. “India's constitution gives women full political, equal rights with men. Women can vote, run for office and hold ministerial and senior positions. According to the Women's Status Committee report, three key indicators can be used to assess the political status of women, namely, (i) participation in the political process as voters and candidates; (ii) political contexts such as awareness, commitment and political involvement and independence from political action and conduct; and (iii) their impact on the political process. ”

"In India, electoral politics continues to be maintained by a man, both intellectually and figuratively. when women increase their votes in India, there is a way for women to first seek advice from male family members, or to follow the instructions of male members of the family, which suggests that they have the power to make sound decisions. ”

“There are fewer women for political office than men. On average, there were three women candidates for every major candidate in the last election (3%). “Although Indian women have been very successful in development as part of the political arena, her struggle continues to be accepted as an important political component. Participation can be given in many ways in the community and voting for the electorate to represent the people is one of them. The active participation of women in politics has been a staple of the growth and development of society as a whole.

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Bengal voters most obvious question -Employment (Through voter’s mind)

From a man working in Bankura to a young student in Paschim Medinipur to a young farmer in the middle of Birbhum - they all see the BJP-led government as a revolutionary political party, which can pull the government out of the ruling party's vicious circle of widespread violence and corruption.

That Bengal was "left behind" many decades ago due to allegations that ruling parties in the state are talking about without hesitation. Aside from the fact that the state has one of India's leading social and social infrastructure, and that successive governments are focused on strengthening the welfare model of the poor, the average voter in Bengal wants more, and believes that only by changing governments every five years will political parties respond publicly.

"The CPI (M) issued a decision for 34 years, and then gave Didi ten years, now it is time for a new party," said Dalit voter in Surul village in Birbhum district. .Most have the right answers to ensure that the performance of BJP in the institution is less productive, and that India currently sees one of the highest unemployment rates.

BJP, unlike TMC and CPI (M), is a supportive . If it comes to power, and succeeds in getting other industries to come here, we can get jobs in our province instead of looking for work abroad, ”said an Adivasi agricultural worker in Jhargram. Similarly, a Singur farmer, who supported the disruption of crops against Tata Nano in 2007-08, said it was a mistake to evict the Tata. He said they should have let the factory go up their - a belief reinforced by the small amount of money he received as a potato farmer a few years ago.

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The various girls' education schemes introduced during the TMC government do little for the young woman who graduated from the Sabbath in Paschim Medinipur. He said, "Porashona kore ki laabh, kono chaakri toh paachi na ('what will come out of my education, I don't get jobs')."

A middle-class port official loudly recommended that Haldia harbor be made a home, where he was informed of TMC's campaign against BJP's brutal investment policy. “Now there is a lot of corruption and bigotry here. We are contract workers who rely on daily salaries. Whether we work hard or not doesn't matter. No one respects us. If the company takes over, I believe the port will be well managed. And we will be given promotions according to our ability and hard work.

The BJP campaign, which sponsors “vikas” and “ashol poriborton” addresses these specific problems of the rural and middle class poor. It draws all efforts to be seen as an industry-backed political party compared to the ruling TMC and the Left Front. The BJP's grievance among a large segment of the population, including organised communities, organised races, and many other low- income farming communities lies directly in the hope that the Narendra Modi-led group could bring in other sources of employment. While the BJP's top leadership, including the Prime Minister and Union Minister of Home Affairs Amit Shah, spoke mainly about these concerns, its regional leadership supported its top leadership in the face of the TMC extremism. The constant self-control one hears in rural Bengal is that the TMC leaders are corrupt and oppressive

INDIA VOTES WILL CHANGE IT’S FUTURE COURSE

Looking back at the 2004 national elections, the NDA was confident that it would win and the election was rescheduled for the day before, but the results showed that everyone was wrong. In 2009, people were convinced of the change and the UPA was expected to come out, but the results showed that everyone was wrong again. In India, it is difficult to pinpoint exactly how people vote. Moreover, poll research is hard to believe because it is often wrong rather than right.

The Indian election is equally deceptive. Having said that, it is very important for voters, especially those who will be voting for the first time, to look at this: India is among the smallest

29 www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 countries, where the average age by 2020 could be 29 years. This is more commonly called segregation - our great asset. This human share is likely to last for another 25 years. Therefore, it is important that India is governed with a clear and long-term vision. If we waste our voter’s power our vision ,India will lose it’s path

How do voter’s vote in India

In India, the majority of people decide to vote on issues such as personal preferences, party, election, occupational equity ; and not in data, understanding and consultation. Money and muscle power play an important role in rural and urban areas. If this continues in the future elections, we must abandon our dream of becoming a prosperous nation.

Real Problems of Assumption

Given the available data, it is expected that today’s ‘responsible’ voters will not believe in slogans, long-term promises and suspicions, but carefully filter out the details of the current situation, economic growth and power in India. For me, this is the most advanced. If the economy does not grow by double digit, India has a problem knocking on its door.

Forget creating jobs; saving jobs will be a major challenge. Also, the education system is in trouble and needs to be repaired. Healthcare seems to be at the forefront but there is still much to be done. Agriculture is another source of concern and needs to be addressed, as only 46.5 percent of arable land is irrigated. If the agricultural crisis is not fully addressed, we will face the challenge of food security and inflation, without the burden on urban infrastructure and jobs due to people leaving the agricultural sector.

In job creation, the Micro Small and Medium Enterprises (MSME) sector needs greater strengthening, and plans to connect it to agriculture are the key. No one is talking about ‘job creation costs’.In my research I have come to the conclusion that to create between 1 - 1.2 crore jobs every year, India will need an investment of $ 3 - 3,60 million annually, which seems difficult with less money at alarming rates. Also, the current growth rate, assuming that it remains 8%, will

30 www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 only produce 60 lakh jobs every year, and this will add to unemployment and only unemployment. We need ideas out of the box to develop the economy.

There are 13 crore seniors - while their income is declining, their health spending and social security are increasing with age. We need special work to develop skills for adults. Ignoring the needs of the elderly will drag the economy backwards. It is our moral responsibility to take care of them. Foreign measurement agencies are constantly measuring India’s growth with their irrational rating system. Political leadership will have to pick up the line between 'shortfall' and 'deficit'. We need greater investment in infrastructure.

The Role of News on mind of Indian voters

Indian voters look at the news to determine where the country is heading, and the role of the media is crucial in all the elections. Therefore, it is important that the media remain neutral and separate the electoral roll for all political parties, the current economic situation, and make it easier for many people to distinguish between discourse and truth.

Also, in addition to analysing the commitments made in the election manifesto, there should be a debate and discussions on how those commitments will be fulfilled, as well as their previous record should be taken care off.. The media must play their part in delivering the facts as they are, and voters must put their heads in the assurance that the promises made in the manifestos can be fulfilled and supported by the system?

KERELA -AN INSIGHT INTO MIND OF VOTERS

In Kerala, a country with its long-tested social and political system that seeks to unite all segments of the people, regardless of religion or class, the emergence of the National Democratic Alliance as an alternative to both political parties resulted in a minority class. Varying voting preferences reflect the Left Democratic Front crisis. With the exception of the extremely poor, all other social and economic groups, including Dalits, Other Backward Castes, lower classes and the younger generation, are more flexible and changing their political preferences, depending on the emerging social reality.

www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 Kerala's election elections have marked a dramatic change in voter’s voting behaviour, that is, voters of all constituencies have lost their loyalty and vision to look forward. While the Hindu sect has moved from the Left Democratic Front (LDF) and the United Democratic Front (UDF) to the National Democratic Alliance (NDA) called the Bharatiya Janata Party (BJP), the vast majority of people have fallen over the UDF to -LDF The NDA has pierced the ecclesiastical hierarchy of polarism , which has been popular with the government since 1957, by opening its account at the meeting for the first time and increasing its vote share significantly, from 6.06% in 2011 to 14.64% and in 2016. In addition, the election also dashed the hopes of many smaller parties and factions such as the Democratic Kerala Congress, the rebel party Kerala Congress (Mani) —KC (M), Revolutionary Socialist Party (RSP), Janata Dal (United) —JD (U), Indian National League (INL), and the Communist Marxist Party (CMP), to name a few.

In the run-up to the elections all three parties grew well with their Kerala vision for the future and clarified the same in their electoral riches. In addition, for the purpose of quick communication with the masses, the services of the advertising companies were also used and the form of consolidated opinion was presented in the form of slogans. For the UDF this was "careful development" "left- wing development without corruption and a non-communist society." Meanwhile, the NDA has stated that it stands for “inclusive development”. Interestingly, voters decided, for the most part, to cast their ballot with the LDF and the result was 91 seats out of 140, with 43.42% of the vote.

WINING OF AAP TELLS ABOUT UNIQUE FORM OF POLITICAL AWARENESS

AMONG VOTERS

Modi's BJP could continue to be a prominent political party at the Union level, and without a trusted national opposition or candidate to contest, the party could continue to play its role in the coming years. However, what is most interesting is that the regional parties stand out and win over the BJP in the many recent elections at the state level. The party lost Rajasthan, Kerala ,West Bengal and

www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 failed to gain the full majority in the Haryana region, Maharashtra (given the Shiv Sena-Congress- NCP coalition there).

The BJP's national governance and Modi's reputation and presence have never diminished at the level of government and this, in the context of segregation and a climate of mistrust or division between state and institution, could pose all sorts of problems with the implementation of Union rules (some government meetings have already passed. It says a lot about the dynamics of the existing structure of state power). The past few years have seen the rebuilding of the power base between the Union and the centre under Modi-Shah's rule. The main focus is on reducing agency or autonomous political and financial autonomy. While the latest national-led protests against the NPR-NRC-CAA have sought to revitalise India's constitutional spirit and restore faith in the foundations of the constitution, it is important to understand that the ambitious issue of centralisation can be better challenged by the combined manifestation of a republican culture. and stand up against the practices of centralism (whether institutionalised or officially sanctioned from above). Co-operation, along with the demolition of the democratic agency actually leads to the creation of a lifting and democraticization of preferences.

As a result, the political divisions of power structures at national, state, and local levels in the current system, and the AAP victory in Delhi, may seem to have taken a toll on the divided sense of the people of India. This choice to have a competitive government base in its link to electoral change must therefore be understood as a collective resistance to the merger of political agency and administrative action, providing a new face to the spirit of strong unity emerging.

VOTING ANALYSIS IN ASSAM (TEA TRIBES)

Voting behaviour is always influenced by the existing social, economic and cultural and historical aspects. Apart from that, traditional methods such as caste, charisma, position, positions, wealth etc. also influence voters to a large extent. As India is slowly experiencing radical social, economic, cultural and political change, voter’s voting patterns also remain unchanged. There are various communities and parties in all societies and they support different political parties and ideologies. In some cases, urban areas use their franchise on a much larger scale than those in rural areas. It is said that the attitude and conduct of voters significantly determines the election and the conduct of the election.

33 www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 The political significance of the nation of tea nation in Assam is very significant. National tea voter’s play a major role in all Assam elections. For all the parties and communities in Assam, the role of the tea nation in the election has become very important. This community has 35 lakh voters enough to play a key role in any election. Looking at the voting behaviour of the tea nation, it is clear that the tea community is becoming increasingly involved in the electoral politics of Assam. Their vote in the recent Lok Sabha elections is also higher than in previous elections. In addition, tea gardeners are interested in political activities that will enhance their political participation. This is a good sign of a democratic process. We have seen the level of political involvement of the tea nation and we can say that this community plays a major role in Assam's electoral politics.

There is a growing need to study voting behaviour in developing countries. Because it is very important to know how voters behave under various circumstances during elections. In any democratic system the characteristics of voting behaviour affect the way they vote as time voters have their direct and most powerful influence on the governance process.

DATA TELLING ABOUT INCUMBENCY

When all the explanations fail to explain the election decision, one green answer always helps: to fight for office. If the National Democratic Alliance (NDA) government had lost power in Bihar, the most prominent story would have been the struggle for power. The parties themselves are accused of defending positions as a definition once they have been elected, as if Indian voters are accustomed to voting for ruling parties.

Conclusion: The continuity in the operation of India’s political system as a developing democratic political system is progressively training the Indian voters. The process of emergence of an issue-based political struggle in place of caste or religion or personality dominated struggle for power is slowly but gradually changing. Elections occupy a prominent place in the democratic government. It is a way through which people express and implement their political opinion and control the political organisation of society. However, the behaviour of a voter is affected by many factors such as

34 www.ijlra.com Volume 1 Issue 3|May 2021 ISSN: 2582-6433 religion, caste, community, language, money, policy or ideology, the objective of the polls, and the like political parties make use of these variables for winning the elections. It is, therefore, crucial that the use of these determinants should be avoided and elections should be conducted in a very free and fair manner.At this rate, it is encouraging to see voters show an increase in the tendency to consider broader indicators of their government's performance in managing the economy when conducting their election statistics. Looking a little over the prism of domination and democracy, this is a good development. At the moment, concerns based on ownership and economic or systemic evaluation are at play; it is impossible to conclude that one is clearly superior to the other. It is noteworthy, however, that politicians who want to gain power on the basis of petitions based on personal ownership have experienced difficult times. Successful politicians have found reliable ways to marry with traditional grievances on the basis of ownership with a forward-looking, aspiring agenda.

Second, it is ironic that while voter motives may change, the composition of the electoral body is not the same. In a sense, voters have more options than ever before, as evidenced by the increase in the total number of parties running for office. However, there is little change in the status of candidates. Dynastic politicians and those with criminal records are often well-represented in state and national politics. Moreover, politics continues to be dominated by men. In 1957, in the first general election in which gender information was available, only 3% of the candidates in Parliament and 4.5% of the winners were women. While those numbers have skyrocketed - in 2014 women accounted for 8.1% of the electorate and 11.2 percent of the winners - women are still the most represented in parliament in terms of their general public budget.

Finally, while the full balance of power between regional and national parties seems to have reacheda stable level, the fortunes of Congress and BJP have seen a dramatic change. In the first four decades of the post-independence era, Congress was the turning point in Indian politics. That position was to be held after the historic 1989 election, which marked the beginning of a unified political era in Delhi, in which there was no clear centre of national political dictatorship.

As a result of its performance in the general election and the general election held before and after the national election, the BJP filled that vacancy - and its election benefits from 2013 came as a result of Congress, which followed - often showing in the general election. The continued decline of Congress could mean that the BJP will lose true national competition in a few years. While the

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nomination of India's leading political party has now been passed, it is difficult to predict whetherthis change will be temporary or will be maintained over time.

Somehow, from the BJP's point of view, this change of guards is a blessing and a curse. In states where BJP and Congress are the only game in town, losing the Congress Party will be the way for the BJP. But the situation is much more complex in countries where BJP and Congress are fightingfor a seat with one or more regional parties. In these provinces, such as Bihar and West Bengal, a rapid decline in Congress could lead to the unification of the BJP, especially if Congress leaves theelection alone and develops new regional alliances. As BJP may learn soon, this is one of the negative consequences of being a pillar in political planning.

REFRENCES

1) https://www.jstor.org/stable/2642815

2) https://www.jstor.org/stable/2644759

3) http://www.ocerints.org/socioint18_e-publication/abstracts/papers/111.pdf

4) https://ncert.nic.in/ncerts/l/iess404.pdf

5) https://www.nap.edu/read/9897/chapter/12

6) https://carnegieendowment.org/2015/06/23/understanding-indian-voter- pub-60416

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A STUDY ON THE LEGAL ASPECTS OF THE INTER-STATE MIGRATION OF LABOUR (DADAN) WITH SPECIAL REFERENCE TO BALANGIR DISTRICT, ODISHA

By : Chandi Prasad Khamari & Anjana Tripathy

ABSTRACT

Human life swings as it were between two poles; movement and settlement. As such, it chooses to be either sessile or mobile. The movement of human beings for the purpose of earning livelihood and settling down occupies a central place in the drama of human history as well as in the growth of civilization. In order to get a better insight into the problem of the migrant labourer and the protection available to migrant labour, a brief review of available studies on migration has been written below. While preparing for the present paper, the researcher have delved into the most embroiling issues entangling the civil society from the context of varied & diverse socio-economic theories including the legal element and thereby exploring the dignity of the Dadan Labourers. But the emergency of literature cannot be overruled in topics of socio- economic stance; thereby it finds mention here or its fair share. An attempt has been made in reviewing the past studies on Dadan Labourers to fetch a level playing field about the issues of problems contesting the given subject matter. The scholar has also elaborated on what Dadan means i.e. a person recruited on the basis of a contract (either expressly or impliedly) from the State of Odisha. In this chapter the Scholar also highlighted the plight of Dadan Labour of Odisha. Further the researcher had made an attempt to discuss the various legal provisions applicable to Dadan Labour available in various labour laws and the specific beneficial protective legislations applicable to them. The paper is concluded by giving suggestions for the proper implementation of the labour laws.

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INTRODUCTION The State of Odisha, whenever it is in news, it is mostly for wrong reason. Odisha is endowed with rich natural resources and plenty of diversities .It is so, especially so far as human resources are concerned. In spite of having the grace of Nature, in terms of minerals and potential to use those minerals, yet in terms of economic growth, it is lacking behind many more states in India. Not far back, Odisha used to be known for starvation-deaths, for flood, for cyclone, for human trafficking, for lack of medical facilities and drought and famine etc. This very thing is paradoxical per se. Agriculture is the lifeline of the State’s economy as it provides employment to about 62 percent of total workforce of the State. At the same time the State of Odisha is formulating &emphasizing on Industrial growth. Last as well as present the Government has adopted various Industrial policy resolutions23. In Spite of having a dedicated policy for addressing the issue of unemployment, 23.8% is the rate of unemployment in Odisha24. The census of 2011 lays down the total population of Odisha as 41 million out of which 22% belong to the scheduled tribe community and 16% belong to the schedule caste community. It also categories 47% of Odisha’s Population tally below poverty line. The Tendulkar committee estimates the BPL stats of Odisha up-to 57.2% whereas N C Saxena committee suggests that it is 84.5%. However the 2001 census portrays Odisha as a key migrant sending state with 9,37,148 inter-state migrants(Dadan)25. During the lockdown owing to Covid Pandemic, it is reported that 8,53,77726 migrants reported to have come back to Odisha. This indicates that there is dearth of employment opportunity for which a sizable number of inhabitants from Odisha have been migrating to other states in search of their livelihood. There are numbers of laws to address the issue relating to migrant labourers. In Odisha there is a specific law to deal there with migration i.e., the Orissa DadanLabour (Control and

23 Directorate of Industries, Odisha, Retrieved Jan 19, 2021. 24 The New Indian Expresss(2019, June 19, Retrieved Jan 10,2021, from www.indianexpress.com : https://www.newindianexpress.com/states/odisha/2019/jun/29/unemployment-shadow-on-odisha-governments- growth-claims-1996908.html 25 Docbox. (2014, july). Retrieved Dec 20, 2020, from www.lawsdocbox.com : https://lawsdocbox.com/Immigration/74721096-Studies-stories-and-a-canvas.html 26Bisoyi, S. k. (2020, Sept 30). Times of India. Retrieved Dec 20, 2020, from www.timesofindia.com : https://timesofindia.indiatimes.com/city/bhubaneswar/8-53l-migrants-returned-to-odisha-after-lockdown- minister/articleshow/78392115.cms

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Regulation) Act, 197527. Often on various occasions, the state assembly is found to have discussed and debated these kinds of issues. Wherever such reports of suffering of migrant labourers hit the headline, mind often agitates. Though it has become a permanent feature; still it is not being examined from the prospect of lacuna in the enforcement of the law.

REQUIREMENT OF THE STUDY Dadan Labour migration in Odisha was in existence historically but in the context of urbanization, Industrialization and globalization it assumes special significance. Dadan migration has drawn considerable attention after the initiation of economic reforms. Economic, Social, Political and Geographical push and pull factors are responsible for the movement of workers within the nation and across the nations. The development policies by all the governments on one side and lack of sincerity on the part of the rulers and policy makers, lack of effective legislations on the other since independence have accelerated the problem of migrant workers. The policy makers have brought out much labour legislations including the legislation pertaining to Inter State migrant workers conscientiously to improve the conditions of Inter State migrant workers. The Inter State Migrant Workmen Legislation aims at protecting the rights and interests of migrant workers who though moves from their ‘home state’ to ‘host state’ to seek conducive employment, yet they suffer continuously. The policy makers, the government failed to prevent and eliminate all forms of malpractices and exploitation prevailing on Inter State migrant workers. The issues and problems relating to law on inter State migrant workers have not gained much attention. Migration being an Inter disciplinary field of research involving various disciplines such as Geography, Economics, Demography, Sociology and law, has attracted mostly the Socio Economic scholars to conduct research studies in the last six decades. Sufficient number of legal studies has not been conducted by the scholars from the legal fraternity to address the issues and problems relating to migrant workers, the law applicable to them and identify the loopholes and the lacunae in the existing protective mechanism. Due to the loopholes existing in the

27 Orissa Gazette, Extraordinary, dated 17th March, 1975(No. 496)

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implementation, Labour laws aiming to protect migrant workers have remained largely on paper. OBJECTIVE OF THE STUDY Objective is a very important element in order to conduct a research. Basically it helps to determine the outcome of the research. An objective helps to ensure the research compatible and expose to the research outcome. Therefore, the objective in a research is an essential element. The objectives are as follows:- 1. To examine the legal aspects of Dadan migration with special reference to Balangir district. 2. To find out the problems and to suggest the remedial measures to combat the problems of inter-state migrant workers.

GEOGRAPHICAL AREA OF THE STUDY Though the interstate migration is spread across whole Odisha but for the present study. The area of the study is in Balangir District of State of Odisha. The proposed study relates to inter-state migrants (Dadan) laborers, both male and female, who had moved to other state from the state of Odisha. Balangir district of Odisha is the survey area among the thirty districts of Odisha for the present study. Balangir District, also called Bolangir District, is a district situated in the western region of Odisha, in India. The district has an area of 5,165 square km and a population of 1,648,99728. The town of Balangir is the district headquarters. Compared to other districts of Odisha, Balangir is less developed but rich with natural resources. Not only this but also many tribal communities living in this district. On other hand large numbers of labours are migrating from this district to outside or within Odisha for work every year. Therefore in order to find out the lacunas the present study has been attempted. MEANING AND DEFINITION OF DADAN The term ‘Labour’ is used in various senses. In the broad sense the term “labour”, may be defined as any work, whether manual or mental, which is undertaken for a monetary consideration. According to Marshall, Labour may be defined as “any exertion of mind or body

28 As Per 2011 census

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undergone partly or wholly with a view to some good other than the pleasure derived directly from the work”29. According to S.E.Thomas, “Labour consists of all human effort of body or of mind, which is undertaken in the expectation of reward”. Therefore, the term labour as is ‘generally’ used to refers either to those persons who live by selling their services directly to the employers or to the services that they sell. Migration in Odisha is mostly understood as ‘Dadan’. It is important to note here that legally this term has expressly defined under the Orissa Dadan Labour (Control and Regulation) Act, 1975. The dadan system has been in practice since a long time. The Orissa Dadan Labour (control and Regulation) Act, 1979 explains the Dadan labourer means a person recruited on the basis of a contract (either expressed or implied) from the state of odisha. In short state recognizes and admits that there is the practice of Dadan Labour.

MIGRATION IN ODISHA In Odisha, a large number of Dadan labourers were engaged in brick kiln industry. Brick is one of the most important materials used to construct buildings in India. Brick kiln employs a large number of labourers. The labourers engaged in the brick kiln industries are mostly the dadan labourers brought from other part of the country. The main reasons of migration are poverty, illiteracy, and unavailability of work, irregular wages or fewer wages. Today, due to poverty, destitution, unemployment and debt, people who once used to be engaged as agriculture workers are making a beeline to urban areas to work as seasonal migrant labourers30. In India, 310 million people are reported as migrants31. In Odisha, close to 10 million people are migrants32. Both opportunity and distress migration have been quite active in the state. Whereas the poor and marginalized people from under-developed regions in the state are migrating under distress conditions, coastal Odisha reports large-scale migration of people

29ACHARI, K. D. (2001). Constraints In Implementation Of Labour Laws In Defence Establishments. All India Reporter Pvt Ltd . 30Daniel, U. (2014). Migration and Bondage in Brick Kilns in Odisha. Labour File .

31Census 2001 32Aajeevika Bureau. (n.d.). Retrieved Feb 20, 2021, from https://www.humandignity.foundation/wp- content/uploads/2018/11/Odisha-State-Migration-Profile-Report.pdf

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for better opportunities and livelihoods33. Various surveys and attempts at enumeration in India are yet to capture the migration of poor people leaving their villages to work in different establishments in urban centers within and outside the state34. However, there are micro surveys and studies that suggest that migration from rural and under-developed regions is on the rise. The Koraput-Balangir-Kalahandi (KBK) belt in Odisha is one such region where distress migration is widely prevalent. During the late 80`s, the then prime minister, Rajiv Gandhi, was moved to visit Kalahandi, to understand the plight of the people of this region, who were undergoing starvation and dispossession. Kalahandi, along with two other backward districts Koraput and Balangir have long been known for its under- development, poor human development indices and backwardness35. The Planning Commission of India has launched a special project known as the KBK project, keeping in mind its poor human development, higher percentage of tribal and dalit communities, drought and human destitution. Tribal’s and dalits are migrating in distress to various Indian cities in search of livelihoods and means of survival. Migration to brick kilns accounts for 60 per cent of this, with the rest moving into construction and other sectors. A well-organised labour recruitment system, bringing brick kiln workers by paying them an advance is quite evident in these regions. Close to 1,00,000 people are being recruited across the villages of four high migration-prone districts Balangir, Nuapada, Sonepur and Bargarh districts of western Odisha36. In 1975 and prior to the enactment of Inter-state Migrant Workman Act of 1979, Odisha was the first to formulate a law the Orissa DadanLabour (Control and Regulation) Act, 1975 to safeguard the rights of migrant workers. (Dadan, in Oriya, means debt migration/bondage). Later, the Government of India took its cue from the Act, and formulated the Inter-state Migrant Workman Act of 1979, formally recognizing the system of Dadan and its nature. Today, in many parts of Odisha, inter-state migration is still known as Dadan, and people still use the terminology in rural Odisha to describe debt migration37.

From 2011 to 2013, some 1,139 brick kiln workers were rescued by both the government administration and NGOs from brick kilns in Andhra Pradesh, Tamil Nadu and Karnataka. More

33Daniel, U. (2014). Migration and Bondage in Brick Kilns in Odisha. LabourFile . 34 Ibid 35Daniel, U. (2014). Migration and Bondage in Brick Kilns in Odisha. LabourFile . 36 Ibid 37 Ibid

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than 20 per cent of those released were children working in brick kilns38. Once these hapless people are back in their respective states, immediate relief and long- term rehabilitation becomes a huge challenge. After they return, they usually approach the local administration for their rehabilitation. Whereas most districts have district-level Vigilance Committees to identify and initiate the rescue of Dadan labourers, many of the nine districts to which these people have returned do not have active and functional Vigilance Committees or the Committee members do not have a basic understanding of the procedures and processes for initiating rehabilitation39. Thus, it is high time that the issue of Dadan labourers in organised sectors such as brick- making, stone-crushing and construction came under the Department of Labour. A special enforcement wing should conduct routine visits to ascertain the implementation of labour laws and welfare programmes in brick kilns.

SCRUTINY OF LEGAL PROVISIONS In order to protect the interests of the migrant labourers, there are number of legislations in India. Though some legislation is not directly linked with Dadan, yet it has some bearing on their fate. In this segment of the present study, the scholar briefly discuss about those laws. At the same time, the scholar is also discussing those laws which are exclusively meant for inter-state migration and their welfare. In 1975 and prior to the enactment of Inter-state Migrant Workman Act of 1979, Odisha was the first to formulate a law i.e., the Orissa Dadan Labour (Control and Regulation) Act, 1975 to safeguard the rights of migrant workers. (Dadan, in Oriya, means debt migration/bondage). The objective of the Act is to control and regulate the Dadan Labour Migration. Later, the Government of India took its cue from the Act, and formulated the Inter-state Migrant Workman Act of 1979, formally recognizing the system of Dadan and its nature. Today, in many parts of Odisha, inter-state migration is still known as Dadan, and people still use the terminology in

38 Daniel, U. (2014). Migration and Bondage in Brick Kilns in Odisha. LabourFile . 39 Ibid

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rural Odisha to describe debt migration. The Orissa Dadan Labour (control and Regulation) Act, 1975 under Chapter II, sec 4 states that “No Person to act as agent without registration” but during the pandemic period it was divulge that maximum person from the state is not having a valid license. Further it was also published that the time period of registration has also been lapsed in many a cases40. Similarly under sec 8 it has been provided that register to be maintained by the registered agent where the name, age, address, place of works, descriptions about the agreement is to be mentioned but it was seen that this provision of the law is not been implemented in its true sense. Under chapter III of this Act, conditions of recruitment and welfare of Dadan Labourer has been provided where it is mentioned that “No agent shall recruit any Dadan labourer without entering into an agreement with him in the prescribed form41. Under sub-section 2 of sec 9, the act provides that the rate of wages payable to the dadan labourer shall in no case be less than the minimum wages fixed under the Minimum Wages act. The Act also speaks that the minimum necessities that are required to be provided to the labourer would includes suitable residential accommodation, adequate medical facilities, protective clothing to suit varying climatic conditions and suitable conditions of work taking into account that they have migrated from another State. It was observed that the said provision is in the statute only; none of the state is implementing this in their respective territory. The Act is silent about the imposition of punishment because it is said that punishment is not for revenge, but to lesson and reform the criminal. Thus it can be said that this act is like barking dogs seldom bite. Apart from the State law the Unorganized Workers’ Social Security Act, 2008 also reveals the following drawbacks. There is no clarity in the Act as to what the state means by ‘Social Security’ or any of the benefits it proposes. Chapter III and IV of the Act are devoted to formation of National Social Security Board and State Social Security Board for unorganized workers respectively. But the role performed by these boards is only recommendatory and advisory in nature. They are not competent or empowered to take decisions on their own. It is up to the government to accept or not to accept the recommendations made by the board. These boards may review issues relating to

40 The Sambad, Odia Daily Newspaper 41 Sec 9(1) of Orissa DadanLabour (control and Regulation) Act, 1975

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theregistration of workers and monitor schemes notified by the government. In fact, the board has no power, no authority over anything. Therefore, it can be said that the boards are toothless. In addition to it these boards are also very large. These raise serious questions on the commitment of the government about the delivery of social security benefits to the unorganised workers. However, the problems relating to security, sexual harassment, lack of accommodation, non- payment of wages, child care facilities etc have been totally ignored. The Study, after examining the Migrant Law, finds that even after half a Century of Independence the State has failed to protect Migrant Workers and to enforce the law to any successful extent. The Migrant Law examined in this study has not been successful for a variety of reasons. Loopholes exist both in the Laws and in the System that help Employers and Contractors to escape from their responsibility and obligations. To mitigate these problems, the Government has to modify the law to protect the migrant workers. CONCLUDING OBSERVATION However, the study after examining and analyzing the effectiveness of migrant law and after assessing the legal arrangements along with the Rules made there under relating to Dadan Labour, the study leads the researcher to present some legal remedial measures in the form of suggestions to improve the inter-state migrant law, to protect the migrant workers and to combat the problems of migrant workers. The accompanying proposals/suggestions have been made by the researcher. 1. After study it was revealed that the Dadan Labour was not getting wages at regular interval. So, sec 4 & 5 of Payment of Wages Act, 1936 should be implemented in its true sense. 2. The Concerned authority must guarantee that the dadan labours are given with the travel allowance to visit their native place especially during the Nuakhai festival42. 3. The Act does not provide any punishment for continuing offence. This is a genuine lacuna in the Act. Consequently, the Act ought to be revised likewise.

Therefore, from the study it can be concluded that the study strongly support that ‘Law relating to inter-state migration (Dadan) is inadequate to protect the Dadan Labourers”. In

42Sec 15 of Inter State Migrant workmen Act, 1979

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addition to this it is suggested that a comprehensive legislation should be enacted to provide safety and security to the migrant (dadan) labourers. REFERENCE 1. Aajeevika Bureau. (n.d.). Retrieved Feb 20, 2021, from https://www.humandignity.foundation/wp-content/uploads/2018/11/Odisha-State- Migration-Profile-Report.pdf

2. Bisoyi, S. k. (2020, Sept 30). Times of India. Retrieved Dec 20, 2020, from www.timesofindia.com : https://timesofindia.indiatimes.com/city/bhubaneswar/8-53l- migrants-returned-to-odisha-after-lockdown-minister/articleshow/78392115.cms

3. Daniel, U. (2014). Migration and Bondage in Brick Kilns in Odisha. Labour File .

4. Government of Odisha. (n.d.). Retrieved Jan 20, 2021, from www.agriodisha.nic.in : https://agriodisha.nic.in/Home/StatusofAgriculture

5. Labour Exploitation Accountability Hub. (n.d.). Retrieved Jan 23, 2021, from www.accountabilityhub.org : https://accountabilityhub.org/provision/interstate-migrant- workmen-act-section-27/

6. (2007). The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. In The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. New Delhi: Universal Law Publication .

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ABROGATION OF CONSTITUTION: TRANSITION FROM “JUDICIAL ACTIVISM” TO “OVERREACH”

By : Prachi Shekhawat

Abstract

An active role of Indian judiciary over the functions falling constitutionally within the legislative competence raises certain serious and prominent issues qua ‘Judicial Activism’ in India. The Supreme Court of India time and again has contributed to recognising to a greater extent by directing the Indian government to seek compliance under its power of contempt, many a times legislating just like the way legislature does. Such occasions of legal intercession call for a need to closely scrutinize the substance and the sacred viewpoint of the lawmaking function of judges in refinement with the intrinsically conferred legislative powers of the legislature. Without any doubt under the set up of ‘separation of powers’, the parliament is the official authority to enact laws, however, the judiciary while adjudicating upon cases, do get chance to interpret various statutes and give them an actual application suitable to real life situations, as the needs and aspiration of societies keeps on changing from time to time. Law by its very nature is organic. Practically, every enacted law on a probing analysis reveals certain gaps which the judiciary is expected to fill up by way of interpretation, which is popularly known as ‘Judicial Legislation’. Such filling up is however expected to be done in consonance and conformity with the constitutional dictates and confined to the extent permitted by the Constitution which distinguishes it from being branded as an instance of ‘Judicial overreach’. This paper is an attempt to make an analytical study of the concept of Judicial Activism and its emergence as Judicial Overreach. This paper concerns with the accountability of the judiciary under the constitutional framework.

Key words: Judicial activism, separation of powers, Judicial overreach, constitutional.

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INTRODUCTION In a diverse country like India with over 2 billion of population, various kinds of environment, languages, religions, culture, delivering of justice is not easy and will never be an easy task. In India democracy like the British model of parliamentary government is followed which represents the will of the people.43 There are three distinct organs of the government namely executive, legislative and judiciary. The making of laws rests with legislative organ, the executive enforces them, and the judiciary applies them to the specific cases this is known as the doctrine of separation of power.44 As widely accepted for any political system to be stable the power needs to be balanced off between the holders of these organs. Dr B.R Ambedkar before the constituent assembly in his speech stated that “In fact, the purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because, if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression… t would result in utter chaos.” 45 Various articles of the Indian constitution like Article 122, 212 express the doctrine of separation of power, which requires no interference by judiciary and legislature in each other's respective domains. Though practically it is very difficult to strictly follow the doctrine of separation minus checks and balances. The proactive role played by Indian judiciary over the functions falling within the legislative authority (constitutionally), this is certain pertinent and serious questions. The Indian Supreme Court has time and again has contributed to this at a very large scale by giving directions to the Government of India seeking compliance under the power of content and many a times by legislating exactly in a manner akin to the legislature. Such circumstances of judicial

43 B.N Cardozo, The Nature of the Judicial Process, (New Haven: Yale University Press, 33rd printin1974) p.94. 44 This doctrine is traceable in the writings of Aristotle, Locke but actually, we owe these principles to French philosopher, Montesquieu, who explained it in his work L‘ESPIRIT DES LOIS in 1748. For more details see C.K.Thakker, Administrative Law (1992) p.31. 45From the website: http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html.

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intervention call for the need to closely look into the law-making aspect of judiciary whether it is constitutionally valid and how does it differ from the legislative powers of the legislature. Since law by its very nature is organic46 no legislative authority can foresee what will happen in the future and the future contingency that is why judicial function attempts to address this by enacting laws. In real life every enacted law reveals certain gaps which the judiciary has to fill up by way of its interpretation; this is known popularly as judicial legislation. However, such filling up is expected to be in conformity with the constitutional values and confined to the extent allowed by the constitution of India, this is what distinguishes it from instances of judicial overreach.

In broader sense judicial review comprises of three aspects namely:

A. Judicial review of administration,

B. Judicial review of legislative action,

C. Judicial review off judicial decisions.47

Since the very commencement of Indian constitution this doctrine has been a topic for debate its scope and extend varies from case to case. It is believed by many that judiciary under the disguise of interpreting the law goes a step beyond and ends up giving the country a whole new law in itself which is usually different from the one existing.48

Are the laws made by judges?

People around the globe agree that under any constitution which is modern, Hon'ble justices 'do make law specially judges of the constitutional courts of the country. The courts have to deliver justice at par with the expectations of the people as well as the changing circumstances by way of the interpretation skills. There can be seen a complete movement accorded by this Supreme Court of India while interpreting article 21 of the Indian constitution from the case of

46Ibid. 47 M.P.Jain, Indian Constitution Law (Wadhwa and Company Nagpur, New Delhi, 5th edition, 2003, Vol 1) p. 120. 48 Henry J.Abraham, The Judicial Process (1980) p.296.

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AK Gopalan49 to Menaka Gandhi.50 Further, innovations in the field of Public Interest Litigations (PIL) have also provided thrust to the undisputable notion that judges do indeed make law through directions.

It was argued by many commentators in the earlier days that a judge has a role of simply discovering, applying the existing body of legal principles by a purely mechanical procedure. These commentators Saw law as aptly said by Oliver Homes “brooding omnipresence in the sky”.51 Although now it is a well settled concept that by extending or applying established rules to newer circumstances, by way of altering established legal rules in accordance with the time, the economic and social circumstances of the country.

A basic objection that arises at this stage is that the very notion of lawmaking by the judges of India, as we know the judges in India were trained in the lines of conservative English tradition under which they were expected to depart as little as possible from the established rules and precedents,52 also the judiciary should not be concerned with the policy underlining any legislation. However, it must be noted that it is impossible for a judge who unlike in England functions under a written constitution not to make any interpretation by way of making a law, to ensure that such policy confirms with the demands of the constitution.

AMBIT FOR “JUDICIAL LAWMAKING” UNDER THE CONSTITUTION OF INDIA

The extent of judicial creativity or innovation is the highly overpowering when it relates to constitutional interpretation being an organic law and also the source of all laws to be made in future. When the constitution is highly detailed the scope of judicial lawmaking narrows down because the gaps are also lesser, in so far as it deviates from that standard, and descends into details and particulars, it loses its flexibility and the scope of interpretation contracts, and the meaning hardens.53

49 A.K. Gopalan v.State of Madras AIR 1950 SC 27. 50 Maneka Gandhi v. Union of India AIR 1978 SC 597. 51 Holmes J. Dissent in Southern Pacific Co v Jensen 244 US 205 (1917) at 222. 52 M.Hidayatulla, Democracy in India and the Judicial Process 71 (1965) 53 AIR 1951 SC 318

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Article 141 of the Indian constitution recognizes “Lawmaking” power of judiciary, though there is huge misunderstanding pertaining to this article, it seems like the honorable Supreme Court is given power to make laws for the country and it is binding on everybody which cannot be questioned. Article 141 of the Indian constitution recognizes “Lawmaking” power of judiciary, though there is huge misunderstanding pertaining to this article, it seems like the honorable Supreme Court is given power to make laws for the country and it is binding on everybody which cannot be questioned.

• Under Articles 14, 15 and 16 what classifications / provisions are legitimate and reasonable?

• Under Article 19 which restrictions are fair and reasonable along with being in public interest? • Under article 21 what all comprises right to life and right to personal Liberty. • Under article 25 and 26 what regulations are related to morality, public order and health? • What regulations governing minority educational institutions are reasonably related to the need of maintaining educational standards and do not amount to an unreasonable interference with the right of the minorities to establish and administer the institutions of their choice.

Lawmaking by the judiciary and constitutional interpretation

Traditionally it is believed that judges find the law rather than making the law, by using the tool of interpretation judges not only make the law but, in the process, also state what should be done. This movement can be seen right from the decision of Golekhnath, the post Maneka Gandhi syndrome has given a new boost making Articles 14 and 21 omnipotent for judicial law making. In fact, what the U.S. Supreme Court has done under the commerce clause, our Supreme Court has achieved under Articles 14 and 21 of the Constitution. After the honorable Supreme Court passed the ruling in Maneka Gandhi case it is clear that The Supreme Court of India not merely declares the law or applies it rather it creates the law. This way The Indian Supreme Court has turned into an ongoing convention.

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The lawmaking of the judiciary commenced with the right to property, the first case in this regard was Kameshwar Singh v. State of Bihar 54, after this decision the first amendment in the constitution was made in 1951, followed by the case of State of West Bengal versus Beta Banerjee.55

The judicial process ignored the express and intended legislative directions and created a judicial norm. In Madhav Rao Scindhia v. Union of India56 the court held that Privy purses were property and could not be abolished without compensation. A clear veto to the socio-economic programmes of the government was made an electoral issue by the Congress party. This party won the election with a thumping majority. The conflict between the legislature and the judiciary once again started. The Twenty Fourth, the Twenty-Fifth and the Twenty-Sixth Amendments were made to the constitution in 1971 to nullify the ruling of the Supreme Court in Golak Nath, Bank Nationalization and the Privy Purses cases, respectively. It is notable that the judges trained in Common Law traditions neither followed the rule of supremacy of Parliament in England nor the judicial restraint of the US Supreme Court. In Marbury v. Madison57 the US Supreme Court declared that “it is emphatically the province and duty of judicial departments to say what the law is, but it did not invalidate Congressional legislation for fifty five years thereafter”.

The Constitution (Fourth Amendment Act) 1955 was blown out in Vajravelu v. Special Deputy Collector. The Court, in this case declared the compensation “illusory” and a fraud on the Constitution. Clearly, the court neither obeyed the rule of interpretation nor followed the philosophy of the Constitution. It acted as a super legislature.

The Commission of crime against women has increased tremendously in the past few years. The cases of custodial rapes have also increased however, the attitude of judiciary as not changed and the judges have clung on to the age-old rules of interpretation of procedural laws and law of evidence. Activism shown by judiciary in this area is rather slow, classic example of this is the case of Tuka ram versus State58; the facts of the case are that two constables raped one girl in Mathura, eventually they were charged with the offence of rape but were acquitted on grounds

54 AIR 1951 Pat 91. 55 AIR 1954 SC 170. 56 AIR 1971 SC 530. 57 Marbury v. Madison 2. L.ed 60 (1803). 58 AIR 1989 SC 937

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known best to the bench. This led to hue and cry in the society from all sections, it was severely criticized. Eventually, the law was amended by criminal law amendment act 1983 along with changes in the Indian Penal Code Section 376A, 376 B, 376 C and 376 D were added. According to section 228A any publication of such trials requires prior authorization from the court. S. 327 Cr. P.C. 1973 provided for in-camera inquiry and S. 114 A of the Evidence Act makes provision for presumption as to the lack of consent in prosecutions for custodial rape etc. Section 376 (2) of the IPC as amended, provides for a mandatory punishment of not less than ten years imprisonment in the case of custodial rape.

In the case of State of Haryana versus Premchand59 the trial court along with the honorable High Court punished the accused police personnel with sentence of 10 years rigorous imprisonment for the custodial rape of the victim. But, in the appeal stage against the quantum of punishment, the honorable Supreme Court reduced this sentence to mere five years. The reasons for reducing the sentence and statutory necessity were more astonishing. Though the court agreed that the offense was of serious nature and had huge repercussion on the society it, nonetheless reduce the sentence for reasons best known to the court. Preliminary it appears that the bench was swayed away by arguments put forward by the council for Appellant that the woman was off questionable character an easy virtue you with lascivious and lewd behavior.

This judgment was severely criticized, after which a review petition was filed before the Supreme Court under Article 137 of the Indian constitution11. However, the review petition also failed. The Supreme Court failed to find any errors apparent on the face of the record and didn't make any ruling to this effect. The Judges have neither characterized the victim Suman Rani as a woman of questionable character and easy virtue nor made any reference to her character or reputation in any part of the judgement. The honorable judges also clarified that the expression conduct was used in lexie graphical meaning for the limited purpose of showing as to how they victim behaved or conducted herself. it is most respectfully submitted that the reasoning given by the Supreme Court, neither encourage the reduction of sentence, nor fulfills the requirement of adequate and special reasons as envisaged by Section 376 (2) IPC. If the delay of five days is so fatal, there does not seem any reasonable ground for punishing the accused appellants.

59 AIR 1990 SC 538

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The position of an ordinary citizen vis-a-vis the police is well-known. The gravity of the offence is aggravated by the conduct of the police constables who had raped the prosecutrix in the police post. If such leniency is shown, the very purpose of the law is defeated. This may justify the killing of an accused that is suspected of murder or a dacoity. The conduct of a dacoit or murderer can always be manipulated to be special. This will give legitimacy to police lock-up deaths. By any standard, five days delay cannot be taken as fatal for a girl who had undergone a trauma for sexual assault by the police personnel. She might have been dissuaded to make a complaint for obvious reasons. Moreover, the girl came from the lower stratum of the society and may not have been prepared for allowing the act to be a permanent stigma on her life by publicity.

It is clear from the above mentioned that the judges have an act of will along with power of creation of laws and not just a degree of choice. 160 With the advancement of public interest litigation judicial activism has reached its all time high, the well established and defined rules of procedural law have become nearly redundant in PIL world. This has brought uncertainty into law. Moreover, an already divided court into benches has further been divided. Individual leadership among the justices of the court is yet another outcome of public interest litigation. Leading example to establish this is in the case of bandua mukti morcha wherein, Hon’ble Justice Pathak held that letter without any proper format and verification should not be entertained by the goat was sidetracked and it was asserted that even a letter written by a nonprofit organization or an individual acting in public benefit is admissible. There is no doubt that judicial activism is it required but it should be within a defined set of rules and regulations. For a democracy to thrive the judicial process should not supervene the legislative mandate or the executive authority.

The Court can take a clue from the Constitution for social and economic transformation but it cannot usurp the legislative role. Judicial restraint, particularly in PIL cases is the need of the hour. Justice V Khalid has given timely warning in this regard. He favours restraint on PIL not only by the Court but also by litigants.

60 SP Gupta v. President of India, AIR 1982 SC 149.

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The process of interpretation necessarily results in law-making by interpretation of statutes and the Constitution up to the permissible extent constitutes a purely activist category of judicial legislations. Under this category, decisions rendered by the Supreme Court with regard to speedy trial61, prisoner‘s rights62, preventing children from being engaged in match manufacturing63, protection of ecology64, laying down the principle for the award of compensation65, right to privacy66, handcuffing of prisoners,67right to free legal aid68 etc.

The court under the instances has used Art.32 for a much wider purpose than its ordinary purpose,viz. to lay down general guidelines having the effect of law to fill the vacuum till such time the legislature steps ;in to fill in the gap by the making the necessary law. The Court has derived this power by reading Art.32 with Article 141and Article 142. In Union of India v. Association for Democratic Reforms69, the Supreme Court issued certain directions to the Election Commission that it should inter alia call for information from each candidate contesting election on an affidavit regarding his past criminal record, his financial assets (including those of his spouse or dependants), and his liabilities to public sector bodies and educational qualifications, justifying this, the Supreme Court confessed:

It is not possible for this court to give any directions for amending the Act or the statutory rules. It is for the Parliament to amend the Act and the Rules. It is also established law that no directions can be given, which would be contrary to the Act and the Rules. However, it is equally settled that in case when the Act or Rules are silent on a particular subject and the authority implementing the same has constitutional or statutory power to implement it, the court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted.

61 Hussainara Khatoon v. Home secretary, Bihar (1980) 1 SCC 98. 62 Sunil Batra v. Delhi Adminstration AIR 1980 SC 1759; Prabha Dutt v. Union of India AIR 1982 SC 6. 63 M.C.Mehta v. State of Tamilnadu AIR 1991 SC 417. 64 The Ganga Water Pollution Case (1988) SCC 41; M.C.Mehta v. Union of India (1987) 4 SCC 463; Rural Litigation & Entitlement Kendra v. State of U.P (1985) 2 SCC 431. 65 Nilabati Behera v. State of Orrisa (1993) 2 SCC 746. 66 Kharak Singh v. State of U.P AIR 1963 SC 1295. 67 Premshankar Shukla v. Delhi Adminstration AIR 1980 SC 1535. 68 D.C Works Ltd. v. Jai Narain AIR 1957 SC 264 69 (2002) 5 SCC 294.

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Similarly basing its opinion on the same reasoning, the Supreme Court in Vishakha v. State of Rajasthan, declared sexual harassment of a working woman at her workplace as amounting to violation of Articles 14, 15 and 21 of the Constitution. To this effect, the court came up with model legislation with elaborate guidelines70.

In Vineet Narain v. Union of India,71the court laid down directions to ensure the independence of the Vigilance Commission and to reduce corruption among government servants. The court did so since there was no legislation enacted by the Parliament to cover the said field so as to ensure proper implementation of the rule of law.

To the same tune, in Common Cause v. Union of India,72the Supreme Court issued directions for revamping the system of blood banks in the country. These directions provided for how blood banks in the country.

Instances of overreach by the judiciary

In the case of Mohini Jain versus state of Karnataka,73the honorable Supreme Court held that right to education is included within the meaning of right to life, in the last later case of Unnikrishnan versus state of under Pradesh this was narrowed down to primary education74.In these cases it can be rightly said that the Supreme Court overstepped it prescribed domain constitutionally. It’s known that one of the directive principles of state policy categorically mentions that the state has to provide free and compulsory primary education to children up to 14 years of age. It is not for the court to convert a directive principle of state policy into a fundamental right. Moreover, even if it does so, it will merely amount to conversion of a non- enforceable directive principle into a non-enforceable fundamental right. Further, the court said that all private institutions shall charge different fee for half of the students. Such kind of judicial lawmaking of a substantive nature is legally untenable. If the Parliament feels to induct such directive principles into the fundamental rights, it is competent to do so; and to this effect it did the same when it inserted Art.21-A into the Constitution.

70 (1997) 6 SCC 241. 71 (1998) 1 SCC 226. 72 AIR 1996 SC 929. 73 (1985) 3SCC 545. 74 (1993) 1 SCC 645.

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The recent enhancement of fines pertaining to traffic violations in Court on its own Motion v. Union of India & Ors.75can be cited as a glaring example of judicial overreach where the Delhi High Court, taking suo-motu cognizance of increasing death toll on Delhi roads enhanced the traffic fines. This illustrates how the judiciary has transgressed its functions and took over the job which falls exclusively in the domain of Parliament. On account of legitimate judicial activism, what it could at the most do was to only reflect the need of revising the fine charges or could have commanded the government to do so by way of issuing a writ of mandamus since enhancement or revision of fines is purely a legislative function which can only be done by way of an amending enactment by the legislature.

In All India Judges Association v. Union of India, the Supreme Court issued directions to the government to create an All India Judicial Service so as to bring about uniform conditions of service for members of the subordinate judiciary throughout the country.76This was, in fact, a policy question requiring a constitutional amendment and the judiciary clearly overreached since it was not proper for the Supreme Court to direct the Parliament as to what policy it should adopt.

CONCLUSION

Law making is primarily the function of legislature however courts can exercise that power with a confined jurisdiction. The confined jurisdiction has to be the interpretation of the particular statute which in no circumstance be challenged. However the law may be such which has become redundant or is inconsistent with the idea of constitutionalism or not par with societal conscience. To replace such laws is the function of legislature. The dynamic society at times demands for alteration and amendment in a particular law to expand its horizons and for that purpose also the legislature becomes the correct forum. The laws which are against the societal values sometimes create havoc for the judges.

In every judgment an accord is required. However such accord if obtained at the cost of conviction shakes the public faith. Accord should not be bought at the expense of the litigant by injuring his available remedy. Chief Justice Hughes once observed that the case should not only

75 139 (2007) DLT 244. 76 AIR 1992 SC 165.

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be decided by the judge but it should be decided by their wisdom which is like DNA not same in two. By this he meant that judges cannot always have like mindedness and therefore independence of judges is more important than bringing accord in the judgement.

A contravention in a court, according to Justice Hughes words, is an appeal of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed. From the birth of the Indian constitution till the present day, the most interesting as well as extravagant aspect is the power of the judiciary and its expansion which has attained a position of dominance over the legislature and the executive.

The then Chief Justice of India said of the Indian Judiciary, “the range of judicial review recognized in the superior judiciary of India is perhaps the widest and most extensive known in the world of law. The Indian Supreme Court is today the most powerful of all apex courts in the world”.

To conclude, it can be said that a law made by the courts is a legislation which is confined within the statute. The power of making law is used as a judicial hammer to interpret the law while deciding the conflict between the parties. Such a law is the extended hand of the law in force as he is in a position to reach out to a consensus. However on the other hand it cannot be said that judges are not authorized to law making in another form or nature.

To evaluate judicial activism, it has to be separated from judicial excessism as judiciary exercises wide discretion and vision. However such exercise should not disturb delicate balance and harmony of other pillars of the constitution. Prima facie it is the duty of the law making wing of the constitution i.e. legislature that it should dive into the societal norms and the changing need of the society. Laws should never become redundant or should constantly evolve with the continuously evolving society otherwise there will be lawlessness in the society which is not the goal of the constitution.

The three pillars of the constitution i.e. Legislature, Judiciary and Executive should thrive to attain harmony amongst them. Furthermore, the differences are realistic approach. The ultimate

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goal of constitutionalism can only be achieved if these pillars work under the shadow of the Indian Constitution. The Indian Constitution is a written Constitution and forms the ground norms from which basic and ultimate principles all laws emanate and from which all the organs of the State derive their powers. The respective pillars have been bestowed with their individual and independent powers. This individuality should always be maintained in every case and exercise their powers within the limits prescribed by the Constitution.

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ROLE OF ASEAN COUNTRIES IN THE PARIS AGREEMENT

By : Katyayani Jha INTRODUCTION Background Climate change is a global problem and it affects everyone, but it does not affect everyone equally. Geographic location is of course a key factor; some areas are simply more affected than others through their physical characteristics and the interaction between local climate systems.77 In 1992, the United Nation Framework Convention on Climate Change (UNFCCC) was adopted as the basis for a global response to climate change.78 The main objective of the Convention was to stablise the greenhouse gas concentration at a level that would prevent the dangerous anthropogenic intervention in the present climate system. All those states which are parties to this Convention are represented by the Conference of Parties (COP) and COP is basically the supreme decision making body of the UNFCCC. Presently, there are 197 States, including ASEAN Member States (AMS) which are parties to the UNFCCC. The Subsidiary Body for Scientific and Technological Advice (SBSTA) is one of such body which assist the COP by providing information and advice on scientific and technological matters related to UNFCCC.79 The Paris Agreement In 2015 at COP21 parties to the UNFCCC came together to an agreement to deal with the dangerous change. The main objective of the Paris Agreement was to combat the threat of climate change by keeping a global temperature rise this century below two degrees Celsius above pre-industrial level and to adopt such measures which limit the temperature increase even

77Catherine Pettengell, Climate Change Adaptation, Oxfam International Research Report, Apr. 2010, available at https://www.preventionweb.net/files/13795_rrclimatechangeadaptationfull290410.pdf. 78What is the United Nation Framework Convention on Climate Change, United Nations Climate Change, https://unfccc.int/process-and-meetings/the-convention/what-is-the-united-nations-framework-convention-on- climate-change 79ASEAN Preparatory Workshop for the UNFCCC COP22, 28th Oct. 2012, available at http://www.fao.org.

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further to 1.5 degrees Celius.80 The main aims is to strengthen the global climate change response by increasing the ability of all to adapt the adverse impacts of climate change and foster climate resilience. Further, it increases the countries abilities to deal with the adverse effects of climate change and at making finance flows consistent with the low green house gas emissions and to builds a climate resilient pathways. These goals can be reached by the appropriate mobilisation and provision of financial resources, new technology framework and the financial and technological assistance from the developed countries to the developing countries or least developed countries (LDCs). The Paris Agreement was signed on 22 April, 2016 in New York and thus, entered into force on 4 November, 2016.81 To this date, 187 parties have ratified of the 197 patied to the United Nation Framework Convention on Climate Change.82 Its goal is to ensure an adequate and effective adaptation response in the context of the goal of holding average global warming well below 2 degrees Celcius and pursuing efforts to hold it below 1.5 degrees Celcius.83 The main aim of the parties should be to reach global peaking of greenhouse emissions as soon as possible, so that this temperature goal can be achieved. The Paris Agreement, provides that all parties to this framework should communicate their priorities, action plans and support or needs trough adaptation communications. It also requires the transparency of actions by the parties, understanding of climate change and strengthening of climate goals.84 The Paris Agreement and Nationally Determined Contributions (NDCs) The Paris Agreement establishes a binding commitment, that all Parties should put forward their efforts through nationally determined contributions. Article 4 of the Paris Agreement85 provides that all Parties of the agreement are required to prepare, communicate and maintain the successive nationally determined contributions which it is intended to achieve by their domestic

80United Nations Climate Change, The Paris Agreement, https://unfccc.int/process-and-meetings/the-paris- agreement/the-paris-agreement. 81What is Paris Agreement?, United Nations Climate Change, https://unfccc.int/process-and-meetings/the-paris- agreement/what-is-the-paris-agreement. 82Paris Agreement- Status of Ratification, United Nations Climate Change, https://unfccc.int/process/the-paris- agreement/status-of-ratification. 83United Nations Framework Convention on Climate Change, New elements and dimensions of adaptation under the Paris Agreement (Article 7)”, https://unfccc.int/topics/adaptation-and-resilience/the-big-picture/new-elements-and- dimensions-of-adaptation-under-the-paris-agreement-article-7. 84Article 13, Paris Agreement (2015). 85Article 4, para 2 of the Paris Agreement (2015).

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measures.86 Parties are required to submit or communicate their nationally determined contributions every five years to the UNFCCC secretariat and to provide all the information necessary for clarity and transparency. The main objective behind the submission of NDCs in every successful five years is to achieve the long term goals specified in the Article 2 and Article 4.1 of the Paris Agreement by comparing to the previous NDC.87 All parties are requested to submit their next round of new or updated NDC by 2020 or every five years thereafter. ASEAN COUNTRIES AND CLIMATE CHANGE

ASEAN countries in the climate change negotiations The Association of South-East Nations consists of ten countries such as Brunei Darussalam, Cambodia, Indonesia, Lao’s People Democratic Republic, Mayanmar, Phillipines, Malaysia, Thailand, Singapore and Vietnam. These regions has approximately 8.6 percent of the global population and almost 48.2 percent of the total population resides in the urban areas.88 Today the, world is facing the serious threat of climate change. In Paris Agreement, nations have agreed to reduce the level of green house gas emission and ASEAN countries have also assisted in their emission mitigation target. In, 1990, the ASEAN countries became the part of the first regional Strategic Plan of Action on the in order to harmonise their environmental policies. Joint climate cooperation was launched in the second half of 2000. The main objectives were to establish a joint representation of the ASEAN countries at the UNFCCC negotiation and to work for the harmonistaion of climate change activities at the regional level by the member countries. According to the UN grouping, ASEAN countries are the part of various climate change negotiations such as these countries are the members of G77 and China group, Cambodia, Mayanmar and Lao PDR are also the member of LDC group and Malaysia, Thiland and Philippines are also involved in the LMDC Group.89 AMS countries has jointly recognised the importance of the climate change negotiations and they have sought to promote their common regional interest by issuing a joint statement for the COP13, 15, 16 and 17 in the years 2007,

86Nationally Determined Contributions (NDCs), United Nations Climate Change, https://unfccc.int/process-and- meetings/the-paris-agreement/nationally-determined-contributions-ndcs#eq-5. 87United Nations Climate Change, Nationally Determined Contributions (NDCs), https://unfccc.int/process-and- meetings/the-paris-agreement/nationally-determined-contributions-ndcs#eq-5. 88National Environment Agency, Study on cooperative MRV as a foundation for a potential regional carbon market with ASEAN, Synthesis Report, https://unfccc.int. 89Prof. HO Juay Choy, Mellisa Low Yu Ying, Gautam Jindal, Dora Almassy, HANDBOOK FOR ASEAN GOVERNMENT OFFICIALS ON CLIMATE CHANGE AND SDGS, ASIA –EUROPE ENVIRONMENT FORUM, 2016, https://www.asef.org.

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2009, 2010, 2011 and 2014. However, the pre COP21 statement mainly focused on the Paris Agenda and urged all the parties to the UNFCCC to recognise the vulnerability of ASEAN countries to the climate change and thus, sought the importance of strengthening the adaptation and developing climate resilient capacity in the Paris Agreement.90 In the recent years the ASEAN countries have also recognised the threat of climate change and the high vulnerability of AMS to the climate change. From 2009 onwards, the ASEAN countries have emphasised a road map to address or tackle the threat of climate change more comprehensively with the cooperation of all sectors. In 27th ASEAN Summit in 2015, the AMS declared the their commitment to implement the objectives enshrined in the ASEAN Action Plan on Joint response to Climate Change and to adopt the action plans for mitigation and adaptation at the national or regional level.91 ROLE OF ASEAN COUNTRIES IN REALISING PARIS AGREEMENT In this section countries is reviewed in alphabetical order to provide an estimate for the emissions gap between the baseline scenario trajectories and NDC pledges for each ASEAN country. Country-level analysis Brunei Darussalam Brunei Darussalam is a small nation which shares its boundaries with Malaysia and South China. Its economy is mostly dependent on the revenues from the extraction, refining and export of its oil reserves. Brunei Darussalam aims to work on realising the environmental awareness and mainstreaming the environmental consideration by appropriate planning, assessment of natural resources, improving the rural and urban environment and protecting the biodiversity, forests, coastal and marine areas. It submitted its Intended Nationally Determined Contributions (INDCs) in 2015. In the baseline scenario, it is intended to emit 14.3 MtCO2e, excluding LULUCF emissions in the year 2035, with emissions from fossil fuel combustion contributing 98.4% of the total greenhouse gas emissions. Its NDC describes that it will reduce its energy intensity of the GDP by the 45% in 2035, which is corresponding to the total greenhouse gas emission target of

90ASEAN Joint statement on Climate Change to the 21st session of the Conference of Parties to the UNFCCC (2015), http://environment.asean.org/download/climate-change/agreement/ASEAN-Joint-Statement-on-Climate- Change-Adopted.pdf 91Prof. HO Juay Choy, Mellisa Low Yu Ying, Gautam Jindal, Dora Almassy, HANDBOOK FOR ASEAN GOVERNMENT OFFICIALS ON CLIMATE CHANGE AND SDGS, ASIA –EUROPE ENVIRONMENT FORUM, 2016, https://www.asef.org/.com.

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10.3 MtCO2e in 2035.92 It’s NDC aims to meet its renewable energy requirements by the through solar power and energy generation from the waste. The country also intends to make an additional efforts to reduce the Carbon dioxide emission from the vehicles by 40% in order to improve the fuel efficiency of the vehicle and thus, promoting the transportation by bus, walking etc. Additionally, the Brunei Darussalam’s Land Transport White Paper encourages and identifies various transport policy recommendations in order to increase the use of public transport from 1% to 22% of trips by the year 2035.93 Cambodia Cambodia is the most vulnerable to the climate change. According to the World Bank report of 2014, Cambodia is very prone to the sea level rise in the future that will pose a serious threat to low lying coastal areas, high tides, storms, coastal erosion and seawater intrusion.94 In the baseline scenario, Cambodia is intended to emit 15.7 MtCO2e from the energy sector in the year 2030. In the NDC of Cambodia, its target is to reduce the total greenhouse gas emission by 27% in 2030. The Total Primary Energy Supply (TPES) of the Cambodia in 2030 will total 12,379 ktoe with 61% from biofuels and waste, 28% from oil, 8% from coal, 2% from hydro, and there will be negligible amounts from other renewable resources. According to this report, the electricity generation will reach at 8,178 GWh in 2030 with a generation mix of 50% coal, 44% hydro, 5% oil, and 1% biofuels and other non-hydro renewable sources.95 The country has adopted the use of renewable sources for the development of a national grid of connected energy system in the country through from solar, hydro, biomass and bio-gas in order to increase the country’s electrification ratio of its 2015 level of 65%. These policies and actions are clearly described in Cambodia’s Climate Change Strategic Plan for the year 2014-2023. Indonesia Indonesia submitted its NDC on 24 September, 2015 to the UNFCCC. Its strategic plans indicate the reduction of GHG emissions from the land use change and forestry emission by 29% below the business-as-usual and a conditional 41% reduction below business-as-usual by the end of

92Sergey Paltsev, Michael Mehling, Pathways to Paris: Association of Southeast Asian Nations (ASEAN), Massachusetts Institute of Technology, https://globalchange.mit.edu/sites/default/files/P2P-ASEAN-Report.pdf. 93Ibid. 94Prof. HO Juay Choy, Mellisa Low Yu Ying, Gautam Jindal, Dora Almassy, HANDBOOK FOR ASEAN GOVERNMENT OFFICIALS ON CLIMATE CHANGE AND SDGS, ASIA –EUROPE ENVIRONMENT FORUM, 2016, https://www.asef.org. 95Sergey Paltsev, Michael Mehling, Pathways to Paris: Association of Southeast Asian Nations (ASEAN), Massachusetts Institute of Technology, https://globalchange.mit.edu/sites/default/files/P2P-ASEAN-Report.pdf.

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year 2030. According to the APEC project in Indonesia, the baseline emission from the energy sector will be doubled between the 2010 and 2030.96 However, the NDC of Indonesia aims to bring back down to the level of 2010 but it is still about the 50% higher in the 2030. Additionally, the NDC of Indonesia does not provide the detail information about the sector, which is intended to reduce their emissions in order to reach their target. Indonesia’s National Energy Policy, is considered as the most relevant policy which deals with the future energy supply of the country. The main objective is to increase the use of renewable energy to 23%, as the primary source of energy supply by the year 2025. The National Medium Term Development Plan 2015-2019 was formulated by the Indonesia as an action plan for the reduction of GHG. It aims to reduce the GHG emission in the five major sectors such as forest and peat lands, agriculture sector, industrial sector, energy and transportation and waste in order to achieve the target.97 Malaysia Malaysia submitted its NDC to the UNFCCC in the January 2016 and it is ratified in November, 2016. The NDC of Malaysia states the reduction of greenhouse gas emission of the GDP by 45% by 2030 in which 35% includes the unconditional basis and a further 10% is conditioned upon receipt of climate finance, technology transfer and capacity building of the developed countries.98 The NDC does not provide any quantified analysis about the measures of baseline projections. According to the APEC, the emission of carbon dioxide from the energy sector is estimated to increase from about 200 to 300 megattonnes by the 2030. Malaysia has adopted various NDC policies to reduce the emission. The National Renewable Energy Policy and Action Plan was adopted in 2010 to increase the use of renewable energy in the country’s development plans and to reach the target of 11% by the year 2030. Further Eleventh Malaysia Plan 2016- 2020 is adopted by the government with the concept of sustainability. The main intention is to reduce the Malaysia’s carbon emission by strengthening and enabling the environment for green growth, sustainable consumption and production of resources and conservation of natural resources. Myanmar

96 Lew Fulton, Climate Change Mitigation Pathways for the Southeast Asia: CO2 Emissions Reduction Policies for the Energy and Transport Sectors, Sustainability 2017, Vol.9, https://www.mdpi.com. 97Ibid. 98Ibid.

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Myanmar has submitted it NDC to UNFCCC in September, 2015. In the baseline scenario, the Myanmar is expected to emit 72.8 MtCO2e excluding the contributions from land use, land-use change, and forestry (LULUCF) and 44.9% of the total greenhouse gas emissions is contributed from the combustion of the fossil fuels, by 2030. In the Paris Agreement, Myanmar is committed to expand their hydropower capacity to 9.4 GW for an estimated hydro output of 16,469 GWh by 2030 and to reduce their emissions from the fossil to 20% 2030. Its mitigation action aims to develop the hydroelectric power generation, rural electrification from the renewable sources of energy and the efficient use of energy in the industrial sector. Myanmar’s National Electrification Plan aims to increase the electrification of 6 million rural people by using at least 30% of renewable sources and to increase their national electrification rate from 33% in 2014 to 100% by 2030.99 In addition to this Myanmar has adopted National Climate Change Strategy and Action Plan in 2015, with the aim to achieve the goal of sustainable development with climate resilient and low carbon emission by 2030. Furthermore, these policies and plans make various provisions and measures to be adopted for the sustainability projects, management plans and impact assessment in the areas of forests, transportation, energy and other sectors. Lao PDR Lao PDR has submitted its NDCs to UNFCCC in October, 2015. Its NDC provides the mitigation activities under forestry, use of renewable source of energy, rural electrification by the use of renewable energy and the large scale generation of hydropower energy. In the baseline scenario, the Lao PDR is expected to emit 22.5 MtCO2e by the year 2030.100 In 2011, the government has adopted the Renewable Energy Strategy to reduce the emission of the greenhouse gas by the use of renewable energy resources which includes increasing the share of consumption of small scale renewable energy to 30% and the share of bio-fuels to 10% by 2020. Furthermore, the main aim is the electrification of 90% of rural household by the use of renewable energy in order to reduce the further emission of greenhouse gas from the use fossil fuels in such areas. These strategies, also aim to contribute to the country’s long term national development goals enshrined in its 8th Five Year National Socioeconomic Plan for the year 2016- 2020.101

99Sergey Paltsev, Michael Mehling, Pathways to Paris: Association of Southeast Asian Nations (ASEAN), Massachusetts Institute of Technology, https://globalchange.mit.edu/sites/default/files/P2P-ASEAN-Report.pdf. 100Ibid. 101Ibid.

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Philippines Philippines submitted its INDC to UNFCCC in October 2015 and ratified in the year 2017. The main target of NDC is the 70% reduction of all climate pollutants by 2030 with the help of financial and other assistance by the international agreements. The Philippines has very less per capita level of carbon emission which would increase 1.5 in 2030. Additionally, NDC provides the National Climate Change Action Plan 2011-2018 which aims to the development of National Renewable Energy Program (NREP) which seeks to increase the country’s renewable based energy capacity by 2030. The Philippines Energy Plan 2012-2030 was formulated under the National Renewable Energy Plan to strengthen the use and power generation from the renewable source of energy. Singapore Singapore submitted its INDC to UNFCCC in July, 2015 and it was ratified in September 2016. The NDC of Singapore aims to reduce the GHG emission by 36% by 2030. According to the APEC projection, the carbon emission of Singapore will rise up to 10% by 2030. However, Singapore’s NDC does not clearly specified their policy related to energy.102 NDC provides that the country is mostly dependent on using the fossil fuels. Therefore, the country in order to reduce the greenhouse emission, it is now encouraging the use of renewable energy for the electricity generation and at present 90% of the Singapore’s electricity is generated from the natural gas. Energy Conservation Act of Singapore was enacted with the aim to mandate the energy efficiency requirements and the energy management practices to promote the conservation of energy. Further, the government of Singapore is encouraging the use of solar photovoltaic and its target is to green 80% of its building by 2030. It encourages household and companies to use and invest in the energy efficient equipment and technologies such as the Grant for Energy Efficient Technologies, or the Energy Efficiency Improvement Assistance Schemes. Third National Communication of Singapore provides that by 2020, the energy efficiency

measures are expected to be only 1.15 MtCO2e and the other measures such as building sectors

and domestic transportation system is expected to reduce about 1.21 MtCO2e and 1.16 103 MtCO2e by 2020. Thailand

102Ibid. 103Ibid.

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Thailand submitted its INDC to UNFCCC in October 2015 and it is ratified in September 2016. In the baseline scenario, by 2030, the Thailand is expected to emit 645 MtCO2e excluding the contributions from land use, land-use change, and forestry (LULUCF) and 84.7% of the total emission is contributed from the combustion of the fossil fuels. The NDC of Thailand aims to reduce their greenhouse emission by 20% in 2030. Additionally, Thailand clearly stated in its NDC that, IN 2012, 73% of its emission came from the energy and thus now its policies and plans are more inclined towards the mitigation efforts of the energy and transport sectors of the country.104 Thalind has adopted various plans such as National Economic and Social Development Plan, Climate Change Master Plan 2015-2050, Power Development Plan 2015- 2036, Alternative Energy Development Plan 2015-2036, Environmentally Sustainable Transport Syatem Plan 2013-2030, and National Industrial Development Master Plan 2012-2031 which forms the basis of their NDCs. The main aim of Power Development Plant is to reduce the greenhouse gas emission and increase the use of renewable sources from 8.5% in 2015 to 20% by 2036. Similarly, Thailand’s Alternative Energy Development Plan, aims to achieve the target of 30% of Total Primary Energy Supply (TPES) from the renewable sources of energy as compared to 19% in 2015. Furthermore, Environmentally Sustainable Transport Syatem Plan aims to encourage the “road to rail” mode of transportation system for both passengers and freights. However, Thailand’s Climate Change Master Plan, aims to reduce 7-20% reduction in the greenhouse emission from the energy and transportation system by 2020. The target of Thailand’s NDC to achieve the 30% share of the total energy consumption by 2036 can be achieved by the robust energy efficiency plans and regulatory policies.105

Vietnam Vietnam submitted its INDC to UNFCCC in September 2015 and it is ratified in November 2016. The NDC of Vietnam cites the reduction of greenhouse gas emission by 8% and by 25%, conditional on international financial support and assistance by 2030. In the baseline scenerio, Vietnam is expected to emit 571 MtCO2e with the emission from energy sources and

104Sergey Paltsev, Michael Mehling, Pathways to Paris: Association of Southeast Asian Nations (ASEAN), Massachusetts Institute of Technology, https://globalchange.mit.edu/sites/default/files/P2P-ASEAN-Report.pdf 105 Lew Fulton, Climate Change Mitigation Pathways for the Southeast Asia: CO2 Emissions Reduction Policies for the Energy and Transport Sectors, Sustainability 2017, Vol.9, https://www.mdpi.com.

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contributing 69% of the total greenhouse gas emission by 2030. Vietnam has adopted various plans and policy measures as the basis of their NDC. In Vietnam’s Revised Power Development Plans, the main aim is to achieve the goal of 10% renewable in electricity generation by 2030. Similarly, National Green Growth Strategy for the period 2011-2020 is adopted with a vision in 2050 which provides the measures to reduce the greenhouse gas emission, energy consumption and efficiency for the year 2020, 2030, and 2050. However, National Socio-economic Development Strategy 2011-2020 provides that the target of NDCs can be achieved by management of urban energy consumption through effective and efficient utilisation of renewable resources. Thus, it is very evident that ASEAN countries are highly vulnerable to the negative impacts of climate change. With the future prospects of worsening the climate change, the ASEAN countries must seek the common interest in the climate change negotiations and to promote their interest.106 CONCLUSION In this paper the researcher has reviewed the NDCs of ASEAN countries regarding their commitments towards the Paris Agreement. Paris Agreement is the first ever universal and legally binding climate change agreement adopted at the Paris Climate Conference in December 2015. The Paris Agreement sets out the global framework to avoid the threat of climate change by reducing the global warming to below 2 degrees Celsius and undertaking various efforts to limit it to 1.5 degrees Celsius. ASEAN Countries have also ratified the UNFCCC, Kyoto Protocol and also participated in the Paris Agreement. In the Paris Agreement, ASEAN countries committed to reduce their greenhouse gas emission by the year 2030 and to introduce various plans and policies to achieve their target or commitment. ASEAN countries already faced and is facing and will face a wide variety of challenges from the climate changes. ASEAN countries are highly vulnerable to the adverse impacts of climate change which may severely affect their socio-eceonomic development and their political stability. Further, it is recognised that many of the most vulnerable sectors such as agriculture, forestry, health sector and water management requires the prioritisation of the adaptation needs in the ASEAN countries. Adaptation plans must be integrated by the ASEAN

106Arief Wijaya, Shira Idris, ASEAN Countries Must Countries Together to Confront Climate Change, Nov.16, 2017, https://www.wri.org/blog/2017/11/asean-countries-must-act-together-confront-climate-change.

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countries into top-down and bottom up approaches for planning to enable sustainable development and the efficient use of resources for adaptation. ASEAN countries face the major challenge of reducing the greenhouse gas emission and the same time expanding their energy supply in order to meet the needs of rapidly developing countries. In an aggregate ASEAN countries are making good progress towards their goal of Paris Agreement but it still requires the additional measures to sufficiently decrease the emission. However, some countries are close to or even achieved their goals for 2030,while the other needs substantial additional efforts. In order to achieve the target of reduction of greenhouse gas emission other policy instruments are needed to promote the clean technology. Wind and solar energy provide an attractive option for lowering the emission, basically a switch from fossil fuel to renewable source of energy promotes lower carbon generation and enables higher penetration of renewable energy by serving as a backup capacity of the ASEAN countries.

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CHILDREN SHOULD BE ALLOWED TO PLAY VIDEO GAMES FOR AN HOUR ON

A DAILY BASIS

By : Dhruv Mehta

“There are plenty of skills I’ve learnt from playing video games. It’s more interactive than

watching TV, because there are problems to solve as you’re using your brain” – Shaun White

Shaun White is a professional snowboarding Olympic winner. He has developed his own

snowboarding video game. Video games hold a lot of value as compare to the television as they

help exercise the mind and brain. Complex puzzles, mysteries and missions help hone

coordination, enhance decision-making skills as well as help develop lateral thinking.

Advancements in technology have led to global gaming sessions. Players can play with each

other from any parts of the world making the world of gaming more interactive and enjoyable.

Television is associated with passive watching and is a form of non-interactive entertainment.

Technological advancements, affordability and easy accessibility to an array of games has soared

the demand for video games. Children as well as adults are engrossed in video games. Akash

Rathee the founder of NODWIN games claims, “The largest monetizing user base in India on

video games and mobile games are people above the age of 50” (Sreedhar).The history of video

games turns back to the 1950’s. William Higinbotham created the first video game in the year

1958. The game fondly known, as “Pong” was associated with tennis, did not resonate with

many gamers during those times but the demand for virtual sports games have grown in recent

times(Chodos). Video games in recent times have been scrutinised and frowned upon by parents

and teachers. Violent gaming series such as the Grand Theft Auto leave a bad impact on children

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exposing them to blood, intense violence, strong sexual content and drugs (Harvard Health

Publishing). Such games leave a tarnishing impact on small children, leading them to become

violent and show signs of aggressive behaviour as stated by Claire McCarthy the senior editor of

Harvard Health Publishing. Excessive screen time leads to poor sleep pattern increasing the

chances of weight gain, heart diseases and inducing depression (Tortolero). Even though parents

and teachers detest children playing video games on a daily basis. I argue that children should be

allowed to play video games for an hour daily.

Several psychologists have contributed to “Review of General Psychology” published by

American Psychological Association portraying the side effects of violent video games and

showing them as being harmful. Dr Christopher Ferguson a professor at A&M International

University argues that many studies on media violence rely on measures to assess aggression that

do not correlate with real world violence. Such an approach does not prove the cause and effect

of violent video games and their impact. Citing data from the federal criminal justice agency, Dr

Ferguson proves that violent crimes among youths have decreased since 1996 even though the

demand of video games has soared. Dr Ferguson argues that an hour of video gaming daily

sharpens the brain aiding children to solve complex classroom problems and learn different

concepts. Video games can help budding lawyers learn concepts of law and deal with real life

cliental situations right from the first year of law school. “Do I have a right (Brown)?” helps law

students learn about constitutional amendments. The game simulates real life situations, as the

user has to build a staff of lawyer with different expertise, helping testing of knowledge and

grasping of various law concepts. Students as they graduate often forget law concepts introduced

in class. Teachers can encourage students to play such intellectual games for an hour daily at

home. This will not only help students retain difficult concepts taught in class but also make

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learning interesting and enjoyable. With the evolution of technology, teachers must capitalise on

technological and scientific advancements by adopting video games in schools. Brown

University and University of Southern California developed a video game identified as “Immune

Attack”. This educational video game supplements classroom teaching by making complex

biological and immunological topics easy for students to grasp. The game gives detail insights

about the body’s immune system, helps learn about different infections and simulates the real

working of the human body. Surveys by the Federation of American Scientists shows that

students who play immune attack showed increased levels of knowledge compared to students

who did not play the game. An hour of educational video gaming daily is associated with better

knowledge as stated by the survey (Federation of American Scientists). Professor James Gee

explains the importance of video games for various educational uses by saying, “We tend to

teach science, and for example, by telling you a lot of stuff and then letting you do science.

Video games teach the other way. They have you do stuff, and then as you need to know

information, they tell it to you.” Educators turned to video games during the Corona Virus

pandemic that led to shutting down of schools and cancelling of educational trips. Kevin

Peloquin a history teacher turned towards video games to teach Greek History. The cancelling of

the educational trip to Greece made Kevin take the help of video games to digitally tour Greece

and help his students learn about Greek history. Digital touring of the city for two hours every

day helped them continue with the course and learn something new while other students frittered

away time. Kevin emphasises that he limited the use of video games for his students to two hours

daily keeping in mind the health and adverse consequences of long exposure to video games

(Favis).

James Gee a professor in the Mary Lou Fulton Institute and Graduate School of

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Education says, “Computer games are nothing but problem solving spaces.” Gee describes the

video games environment as “situated learning” as the player solves various puzzles and

challenges in the game. These complex puzzles help the player think better and further challenge

him. Video games can aid in retaining concepts learnt at the beginning of the year as games

provide information as and when needed instead of all at once. Teachers can encourage students

to play educational video games daily. This will not only supplement learning but also help in

revising various concepts and retaining concepts taught in class. Schools and universities can

assess children with the help of gaming. Video games assess the player and provide feedback

further testing the problem solving skills in students and not memory or knowledge. Gee says,

“How do we change our assessment regime so that we favour innovation, critical thinking and

problem solving?” The advancements in gaming technology make learning enjoyable, while

testing the student’s skills and critical thinking ability (Shumaker). Taking inspiration from

modding of games educators can invite students to “mod” subjects such as science. Such

experiences help children experiment as well as learn the rules of the subject. Gee, explain that

such an activity will help students connect with the subject further increasing understanding.

Despite, such advancement parents are rightly worried that too much gaming can lead to anti-

social behaviour and peer-conflicts. The American Academy of Paediatrics suggests maximum

one hour of gaming for children. An hour of gaming can help elevate the mood of teenagers and

children. Research proves that short periods of video gaming such as an hour aids in changing

brain activity and improving attention skills (Shumaker). Dr. Jesus Pujol of the Hospital del Mar

in Barcelona explains, “One to nine hours of video gaming per week seems to be safe.”

According to Dr. Pujol parents must supervise the amount of time their children spend on video

games. He recommends parents to allow their children to game for one hour on weekdays and

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two hours on weekends as excessive gaming over fifteen hours a week can lead to gaming

addiction, which can have detrimental impact on a child’s health. According to the study

conducted by Dr. Pujol children who played video games for an hour on a daily basis had faster

motor responses and had better involuntary responses than non-gamers (Rapaport). Another

study points to the benefits of video gaming for an hour on a daily basis. Andrew Pryzybylsky

published the article “Electronic Gaming and Psychosocial Adjustment (Pryzybyls)” which

explains the impact of video gaming on children and how video games affect children’s

health. He explains that an hour of video gaming every day elevated the mood of children

making them happy and satisfied. Excessive video gaming may lead to eye problems in children.

Parents often being worried about such issues restrict children from playing video games

completely. Parents must impose the “two hour rule”. Various campaigns such as “Healthy

People 2020” encourage parents to limit screen time of children to two hours per day. If parents

impose, the two-hour rule children can enjoy their favourite video game for an hour leaving an

hour as spare time for other activities such as video chatting with friends or watching television.

Such practices by parents keep their children happy as well as ensure that their children have

enough time for physical activities, academics and socialisation hence; ensuring video games do

not have an adverse effect on their child’s health (Steinkuehler 359).

The World Health Organisation has classified “gaming addiction” as a mental health disorder

since 2018 due to the rise in gaming addiction. Gaming addiction has led to suicidal tendencies

among children. During the lockdown due to the pandemic, a fourteen-year old child known as

Sriram locked himself in a room for his parents prevented him from playing video games. The

addiction to video games caused him to take the drastic step of taking his life (Boda). The online

classes during the COVID-19 pandemic have increased online gaming. Dr Arun a Kochi based child

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psychologist says “Many children, after logging in and marking attendance for virtual classes,

open gaming windows and play while classes are on. The option to shut the class audio and

video has become very convenient (Varghese).” Parents can adopt the one-hour rule for their

children. They can restrict their children to play video games for one hour only. This will lead

children being content with playing video games as well as reduce their screen time. Japanese

authorities have introduced a new gaming law that limits gaming time for children under the

age of eighteen, to sixty minutes on weekdays and ninety minutes on weekends (Peppiatt).

The imposition of the law was due to the rising rate of gaming addiction in Japan. The law

will help restraint the exposure to video games and help reduce gaming addiction among

children. Despite, being the largest video game market in the world, Chinese authorities

imposed gaming laws and regulations for children and young adults. Gaming curfews in

China restrict game time and the number of gaming accounts per child (Video game addiction:

China imposes gaming curfew for minors).

Video gaming has been a persistent worry for parents. Parents can ensure that their children

play only one hour of video games on a daily basis. Educational video games can help explain

complex educational courses easily. Educational institutes in India must take advantage of

technological advancements by turning to video games to explain complex concepts.

Advancements in gaming technology can aid teachers by making subjects such as Law,

English, History and Science more realistic and interesting. Video game addiction has

increased all around the world, especially in India. Misuse of technology during the corona

virus lockdown has led to adverse consequences for children. The Indian government must

take inspiration from Chinese and Japanese gaming laws. Regulating gaming and imposing

strict rules can help discipline children. The Indian government can regulate the sale of video

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games and the number of video gaming accounts. Educating parents and children about the

benefits and adverse effects of video games will help control the addiction. Excessive video

gaming can have adverse effects on a child’s health but an hour of video gaming on a daily

basis has a positive effect on a child’s health as proven by various theorists.

Works Cited

1. Sreedhar N, “In the World of Video Games, These Senior Gamers Show That Age Is Just a Number” (mintSeptember 21, 2020) accessed December 9, 2020

2. “October 1958: Physicist Invents First Video Game.” Edited by Alan Chodos, American Physical Society, 2020, www.aps.org/publications/apsnews/200810/physicshistory.cfm. 3. Rapaport, Lisa. “Parents Think Teens Spend Too Much Time Playing Video Games.” Reuters, Thomson Reuters, 20 Jan. 2020, www.reuters.com/article/us-health-teens- gaming-idUSKBN1ZJ25M. 4. Publishing, Harvard Health. “Violent Video Games and Young People.” Harvard Health, 2010, www.health.harvard.edu/newsletter_article/violent-video-games-and-young- people. 5. Tortolero, Susan ` R. “Daily Violent Video Game Playing and Depression in ...” Daily Violent Video Game Playing and Depression in Preadolescent Youth, 2014, www.researchgate.net/publication/263778852_Daily_Violent_Video_Game_Playing_and _Depression_in_Preadolescent_Youth.

6. Brown, Tyson. “Do I Have a Right?” National Geographic Society, 28 June 2019, www.nationalgeographic.org/interactive/do-i-have-right/.

7. Federation of American Scientists. "Fixing The Education Digital Disconnect One Video Game At A Time: FAS Launches Immune Attack." ScienceDaily. ScienceDaily, 26 May 2008. www.sciencedaily.com/releases/2008/05/080522090248.htm

8. Favis, Elise. “With Coronavirus Closing Schools, Here's How Video Games Are Helping Teachers.” The Washington Post, WP Company, 17 Apr. 2020, www.washingtonpost.com/video-games/2020/04/15/teachers-video-games-coronavirus- education-remote-learning/.

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9. “Educational Video Games.” The Science Teacher, vol. 77, no. 4, 2010, pp. 18–19. JSTOR, www.jstor.org/stable/24145444. Accessed 13 Dec. 2020.

10. Shumaker, Camilla. “One Hour of Video Gaming Can Increase the Brain's Ability to Focus.” University of Arkansas News, University of Arkansas, 14 Feb. 2018, news.uark.edu/articles/40981/one-hour-of-video-gaming-can-increase-the-brain-s-ability- to-focus.

11. Rapaport, Lisa. “How Much Video Game Time Should Kids Get?” Reuters, Thomson Reuters, 15 Sept. 2016, www.reuters.com/article/us-health-videogaming-children-brains- idUSKCN11L2PN.

12. Pryzybyls, Andrew. “Electronic Gaming and Psychosocial Adjustment.” 2014, pediatrics.aappublications.org/content/pediatrics/early/2014/07/29/peds.2013- 4021.full.pdf.

13. Steinkuehler, Constance. “Parenting and Video Games.” Journal of Adolescent & Adult Literacy, vol. 59, no. 4, 2016, pp. 357–361., www.jstor.org/stable/44011284. Accessed 14 Dec. 2020.

14. Varghese, Anuja. “Covid Curbs, Virtual Classes Lead to Gaming Addiction among Children.” The New Indian Express, The New Indian Express, 24 Sept. 2020, www.newindianexpress.com/cities/kochi/2020/sep/24/covid-curbs-virtual-classes-leadto- gaming-addiction-among-children-2201054.html.

15. Boda, Tharun. “Lockdown Brings Spotlight on Online Gaming Addiction.” The Hindu, The Hindu, 20 July 2020, www.thehindu.com/news/national/andhra-pradesh/not-all-fun- games/article32132643.ece.

16. Boda, Tharun. “Lockdown Brings Spotlight on Online Gaming Addiction.” The Hindu, The Hindu, 20 July 2020, www.thehindu.com/news/national/andhra-pradesh/not-all-fun- games/article32132643.ece.

17. “Video Game Addiction: China Imposes Gaming Curfew for Minors.” BBC News, BBC, 6 Nov. 2019, www.bbc.com/news/world-asia-50315960.

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MALICIOUS PROSECUTION

By : Rachit Sharma

ABSTRACT Putting a person through tedious and lengthy prosecution, when he has allegedly committed an offence, is extremely tiresome and often affects individuals physically, mentally and financially as well. When these prosecutions are done with malicious intent either to hurt the reputation of the individual or because of any previous vendetta, it becomes Malicious Prosecution and is considered a wrong which may arise a tortuous liability, the person has the right to get adequate remedy from the court. Malicious Prosecution has been prevalent from a very long time with many judicial pronouncements elaborating on the essentials which must be there in the cases of malicious prosecution and for which a person can seek relief. The paper talks about the definition of the Term ‘Malicious Prosecution’ and how it originated by citing relevant case laws. The paper also talks about Distinction between False Imprisonment and Malicious Prosecution as both might seem similar, but are completely different from each other. Key Words: Malice, False Imprisonment, Probable Cause, Prosecution

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INTRODUCTION In attempting to safeguard the judicial process from misuse by litigants, the tort of malicious prosecution has historically provided that those who are the subject of groundless and unjustified proceedings must be given a means of redress against prosecutors. While the impetus for the development of the tort has largely arisen as a result of private litigation The history of malicious prosecution can be traced back to the writ of conspiracy which was in existence as early as Edwards I’s reign. This fell into decay in the 16th century, partly because the writ of maintenance supplanted it. The gap was filled by an action on the case which appeared in Elizabeth I’s reign and eventually came to be known as action for Malicious Prosecution. The tort was later put on a firm footing in 1698 in Saville v. Roberts107. The tort of malicious prosecution has the highest frequency in Indian tort litigation, and from 1914 to 1965, the cases of malicious prosecution came to 184, while the total number of tort cases were 613. This tort now contains more than 25% of Tort Litigation. Malicious prosecution is a common law intentional tort, while like the tort of abuse of process. Malicious prosecution consists in instituting unsuccessful criminal proceedings maliciously and without reasonable and probable cause. When malicious prosecution through criminal proceedings causes actual damage to the party prosecuted, it is a tort for which he can bring an action. Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. The foundation lies in the triangular abuse of the court process of the court by wrongfully setting the law in motion and it is designed to encourage the perversion of the machinery of justice for a proper cause the tort of malicious position provides redress for those

107 1698 1 Ld. Raym. 374

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who are prosecuted without cause and with malice. In order to succeed the plaintiff must prove that there was a prosecution without reasonable and just cause, initiated by malice and the case was resolved in the plaintiff’s favor. It is necessary to prove that damage was suffered as a result of the prosecution. According to Underhill, the tort of malicious prosecution consists in "instituting unsuccessful criminal proceedings maliciously and without reasonable or probable cause," which causes actual damage to the party prosecuted, as a natural consequence of the prosecution complained of.

In Saville v. Roberts108, Halt CJ classified damage for the purpose of this tort as of 3 kinds, any of which might ground the action. Malicious prosecution might damage- a. A person’s fame (i.e., his character) b. Safety of the person c. Security of his property by reason of his expense in repelling and unjust charge

MEANING OF MALICIOUS PROSECUTION Malicious prosecution is the malicious institution against another of an unsuccessful criminal, bankruptcy or liquidation proceeding, without reasonable or probable cause. It is also known as ‘abuse of process’, that is, abuse of process of law for personal interest. A malicious Prosecution is defined as ‘a judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it’ It is said to be ‘a prosecution on some charge of crime which is willful, wanton or reckless or against the prosecutor’s sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy.’ The Apex Court in West Bengal State Electricity Board v. Dilip Kumar Ray109, explained that there were two essential elements for constituting a malicious prosecution: • That no probable cause existed for instituting the prosecution or suit complained of. • That such prosecution or suit terminated in some way favourably to the defendant therein. Once, a wrongful criminal or civil proceeding instituted for an improper purpose and without

108 ibid 109 AIR 2007 SC 976

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probable cause, has ended in the defendant’s favour, he or she may sue for tort damages termed as malicious use of process. Distinguishing between “an action for malicious prosecution and an action for abuse of process”, the Supreme Court explained that: A malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to affect the improper use of a regularly issued process. The court illustrated that the institution of vexatious civil proceedings known to be groundless was not abuse of process but was governed by substantially the same rules as the malicious prosecution of criminal proceedings. Where the averments made in plaint are extremely vague, lacking in details, no specific averments regarding malicious prosecution are made or no issues are framed nor any evidence is led to that effect, then the remedy for malicious prosecution would not lie. Malicious Prosecution consists in instituting unsuccessful criminal proceedings maliciously and without reasonable and probable cause. When such prosecution causes actual damage to the party prosecuted, it is a tort for which he can bring an action. The law authorizes persons to bring criminals to justice by instituting proceedings against them. If this authority is misused by somebody by wrongfully setting the law in motion for improper purpose, the law discourages the same. To prevent false accusations against innocent persons, an action for malicious prosecution is permitted.

ESSENTIALS OF MALICIOUS PROSECUTION The plaintiff has to prove the following essentials in a suit for damages for malicious prosecution: 1. That the defendant prosecuted him 2. The prosecution ended in his favor 3. The prosecution lacked reasonable and probable cause 4. The defendant acted with malice 5. The plaintiff suffered damage to his reputation or to the safety of person or to security of his property

1. Prosecution

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It is not necessary that the defendant has to be the prosecutor. The defendant, though, should in substance be the person responsible for the prosecution being brought. Thus, there are two elements involved herein: a. Plaintiff was prosecuted b. Defendant was the prosecutor To prosecute is to set the law in motion by an appeal to some person clothed with judicial authority in regard to that matter, i.e., the defendant should set the Magistrate in motion. An investigating officer will not be liable unless he was party to the falsity of the case. Similarly, no witness or pathologist who acts in good faith can be held liable. In Martim v. Watson110, it was laid down that where a person falsely and maliciously gives a police officer information indicating that some person is guilty of a crime and is further willing to give evidence in Court, he is clearly the prosecutor in the case. Moreover, Proceedings before police authorities is no prosecution. The court, in Nagendra Nath Ray v. Basanta Das Bairagya 111held that police proceedings and prosecution are not the same thing. The same thing was accorded in Bolandanda pemmayya v. Ayaradara112 by Karnataka High Court.

2. Favorable termination of the prosecution The plaintiff must show that the prosecution ended in his favour, which can take place due to various reasons like: a. A verdict of acquittal b. By discontinuance of the prosecution by leave of the Court c. By quashing of the indictment for a defect in it d. By corium non judice proceedings There has been significant change in law in this area: In Reynolds v. Kennedy113, Court held that there can be no action if the plaintiff had been convicted, even if the conviction was later appealed. The law does not regard the above principle in today’s scenario.

110 1995 3 All ER 559 111 I.L.R. (1929) 47 Cal. 25 112 AIR 1966 Kant 13 113 43 Cal. 643, Cal. Supreme Court (1872)

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Shiv Shanker Patel v. Phulki Bai114 Plaintiff faced criminal prosecution for 8 years for theft of crops because of wrongful prosecution in fact of point. Rs. 10,000 was paid as damages for loss of reputation and mental agony.

3. Lack of Reasonable and Probable Cause In order for there to be a reasonable and probable cause, following conditions have to be satisfied: • An honest belief of the accuser in the guilt of the accused • Such belief to be based on an honest conviction of the existence of circumstances which led the accused to that conclusion. • Belief is on such grounds as would lead any fairly cautious man in the defendant’s situation to believe so. • Circumstances so believed by the accuser must be such as amount to a reasonable ground for belief in the guilt of the accused.

In Abrath v. North Eastern Railway115, the court laid down 3 principles necessary to form a reasonable & probable cause: • Person complaining took due care to be informed of the facts • He honestly believed his allegations to be true • The facts were such as to constitute prima facie evidence

The same was reiterated in Feroz-ud-Din v. Mohammed Lone 116by the J&K High Court.

4. Malice The prosecution was instituted with malice, i.e., with an indirect and improper motive and not in furtherance of justice. The bringing of false charge to the knowledge of the prosecutor indicates malice as per the law which is not sufficient to support a civil action. In Antarajami Sharma v. Padma Bewa117, The Orissa High Court held that in cases of Malicious Prosecution, onus of proof of absence of reasonable and probable cause rests on the plaintiff. But

114 2007 (2) CGLJ 100. 115 (1886) 11 App Cas 247 116 Civil Second Appeal No. 29 of 1974 117 AIR 2007 Ori. 107.

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if accusation against plaintiff is that the other party saw him doing that act, then it would be presumed that there was no reasonable or probable cause for such accusation. Hicks v. Faulkner118 If the defendant has honestly and bona fide instituted the prosecution, he is not liable even though due to a defective memory, he had forgotten the true facts and has gone on with the prosecution. State of Tripura v. Shri Hardhan Choudhary119 Forest officials filed cases against plaintiff for felling trees without any evidence. Plaintiff was acquitted and was rewarded Rs. 25,000 for malicious prosecution.

5. Suffered damage in person, reputation or pocket This requirement is mainly applicable only under English law. In India, it is only applicable for aggravated damages. It has also to be proved that the plaintiff has suffered damage as a consequence of the prosecution complained of. Even though the proceedings terminate in favour of the plaintiff, he may have suffered damage as a result of the prosecution. Damage is the gist of the action and in Mohammed Amin v. Jogendra Kumar120, the privy council said: To find an action for damages for malicious prosecution based upon criminal proceedings, the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached the stage at which damage to the plaintiff results. In Het Ram v. Madan Gupta121, Plaintiff was maliciously charged by defendant for setting fire to his house. Plaintiff was acquitted and rewarded Rs. 55,000 for mental agony, loss of business and litigation expenses. In a claim for Malicious Prosecution, the plaintiff can thus claim damages on the following three counts: a) Damage to the plaintiff’s reputation b) Damage to plaintiff’s person

118 1878 8 QBD 167 171 119 AIR 2006 Gau 181 120 (1947) 49 BOMLR 584 121 2006 (2) ShimLC 354

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c) Damage to plaintiff’s property

DISTINCTION BETWEEN FALSE IMPRISONMENT & MALICIOUS PROSECUTION 1. In the case of false imprisonment there is an important element of total restraint of personal liberty without lawful justification. But in the case of malicious prosecution there is the element of causing damage by means of an abuse of the process of Court. 2. In False Imprisonment, individual liberty of the plaintiff is wrongly restrained by a private individual’s legal action whereas in the case of malicious prosecution, the arrest of plaintiff is obtained with the help of judicial sanction 3. The onus of pleading and proving affirmatively the existence of reasonable and probable cause as justification lies on the defendant in the case of false imprisonment. But in the event of an action of malicious prosecution the plaintiff is to allege and prove affirmatively its non-existence. 4. In an action for false imprisonment, it is not required to prove malice whereas in malicious prosecution the plaintiff has to prove that the defendant acted with malice. 5. Damage is not the essence of false imprisonment whereas in an action for malicious prosecution, damage is said to be the essence of it.

CONCLUSION In the case of Vishweshwar Shankarrao Deshmukh and Anr v. Narayan Vithoba Patil122, The plaintiff was the sarpanch of the village Shirputi in the year 1980 and the defendant no. 1 was in the service as a Gram sewak under the Zila Parishad and the defendant no.2 was a teacher in a school run by the Zila Parishad. The plaintiff contended that he made several reports against the defendants for their misconduct. The report was made against defendant no.1 for his misbehavior, defalcation and forgery of accounts and also against defendant no.2 for his absence from duties and other irregularities. It is contended that both the defendants then hatched a conspiracy to involve the Plaintiff in a criminal conspiracy and such that the defendant no.1 had lodged an F.I.R. with the police that was assaulted by the plaintiff while he was discharging his duties. On the basis of the F.I.R and investigation done by the police; criminal proceedings were launched against the plaintiff. The plaintiff was acquitted of the

122 2005 (2) BomCR 491

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charges against him. Itis contended that on the basis of the F.I.R. lodged by the defendant no.1, plaintiff was arrested but the police and the criminal proceeding against him was with malicious intention on the part of the defendants. The prosecution was launched without any reasonable cause and due to the false prosecution, there was a loss to his prestige and reputation and his status was lowered down in the society being a sarpanch and a politician. The court held that the plaintiff was maliciously prosecuted by the defendants without any reasonable and probable cause, and therefore they are liable to pay damages worth Rs 12,500.00 to the plaintiff. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. In order to succeed the plaintiff must prove that there was a prosecution without any just and reasonable cause, initiated by malice and the case was decided in the plaintiff’s favour. It is necessary to prove that damages were incurred by the plaintiff as a result of the prosecution. The burden of proof rests on him. He has to prove the existence of malice. Malice may be proved by previously stained relations, unreasonable and improper conduct like advertising the charge or getting up false evidence. Though mere carelessness is not the per se proof of malice, unreasonable conduct like haste, recklessness or failure to make enquiries would be some evidence. Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. It is an effort to disturb the proper functioning of the judicial machinery.

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THE WTO DISPUTE SETTLEMENT MECHANISM- AN ANALYSIS

By : Anuroopa D

CHAPTER 1 1.1 INTRODUCTION: After the World War II the leaders of the allied countries started deliberating a world post the war which is not characterized by economic isolationism.123 The economic discriminations and trade barriers with the rise of dictatorships has resulted in the II World War. This led to the Bretton Woods conference and the development of International Monetary Fund and the World Bank in 1944. But many of the developed nations wanted a trade agreement which removes the trade barriers. More over the post war planners also wanted a Multilateral Trade Organisation. The United States pitched in a proposal for the establishment of an International Trade Organisation. But in 1950 the United States announced that it would not seek a congressional approval for the ITO charter. The other states did not ratify the charter as the USA refused to obtain a congressional approval for the ratification. In 1947 United States invited countries to negotiate a trade agreement. 123 set of negotiations took place for a period of six months on different products of trade. This resulted in successful tariff cutting. The General Agreement on Tariffs and Trade came into effect in 1948. The 1947 Geneva negotiations for GATT were followed by seven additional negotiations called rounds which included more participants which acceded to the GATT. Initially the dispute settlement in the GATT was a form of conciliation. In 1948, in a dispute between Netherlands and Cuba on the issue of MFN was decided by the chairman. Later the disputes between the parties to the GATT were referred to the working committee consisting of the interested parties. Then came the process of referring the disputes to the panel consisting of neutral members. There was no specific procedures for the dispute settlement in GATT. Article XXII states that each contracting party must afford adequate opportunity to other parties for consultation. Article XXIII provided that if the benefits accruing to a contracting party is being

123 World Trade and the law of GATT, Bobbs-Merill, 1965

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affected by the actions of another party then the contracting party could make representations to the that other party. If it does not lead to a satisfactory then the matter can be referred to the contracting parties of the GATT who will investigate and make recommendations. The contracting parties of GATT can also authorize the suspension of the concession by the contracting party to the other party. Thus there were no specific procedures and any action to be taken must be approved by all the contracting parties.124 The losing parties in the dispute often blocked the GATT panel reports. More over the panels themselves formed working procedures. Thus later the Uruguay round led to the establishment of WTO in the year 1995. The dispute settlement mechanism is the cornerstone of WTO. The World Trade Organisation which was established through the Marrakesh agreement consists of 4 Annexes. Annex 2 to the Marrakesh Agreement consists of the “Understanding on Rules and Procedures governing the Settlement of Disputes”. 1.2 AIMS AND OBJECTIVES: The paper aims to with the procedures of the DSB and rulings of the body with regard to the jurisdiction and applicability of laws, administration of evidence, due process in DSU, amicus curiae participation and the compliance mechanism. The major problems in the dispute settlement mechanism of WTO are also dealt in the paper. The paper also focuses upon the utilisation of the DSB by developing countries. CHAPTER 2 2.1 SOURCES OF WTO LAW Article 38 of the ICJ statute establishes the sources of international law. According to Article 38 the sources include 1. International conventions and treaties which is binding on the states that are parties to such agreements 2. International customary law 3. The General principles recognized by civilized nations 4. Judicial decisions and teachings of highly qualified publicists. Therefore the fundamental source is the covered agreements that consists of the Marrakesh agreement establishing the WTO, the annexes to the Marrakesh agreement and the legal instruments and agreements referred to in the Dispute Settlement Understanding. Article 7125 and

124 Article 40 of the Vienna Convention on the Law of Treaties.

125 Terms of Reference of panels: “To examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement.

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3.2126of the DSU also points out the sources of WTO law. The term covered agreements in Article 7 means all multilateral WTO agreements annexed with the Marrakesh Agreement. The international agreements reflected in the covered agreements are also fundamental sources of WTO law. INTERPRETATION OF COVERED AGREEMENTS The Appellate Body in the case of Japan Taxes on Alcoholic beverages127 held that the proper interpretation of article is first of all textual interpretation. The WTO panels and Appellate Body has in many cases observed that the Vienne Convention on the Law of Treaties is relevant to the interpretation of WTO agreements. In the US-Gasoline128 the appellate body observed that Article 31 and 32 of the VCLT has attained the status of general international law. Pursuant to Article 3(2) of the DSU the panels and the appellate body must apply the customary rules to clarify the provisions of the covered agreements. Article 31 of the VCLT states that a treaty must be interpreted in accordance with the original meaning of the terms and also in light of the object and purpose of the treaty. Article 32 is a supplemental means of interpretation which also includes the travaux preparatories TRAVAUX PREPARATORIES The history of negotiations is called as travaux preparatories. Many developed nations argue that the cannot be considered as a source as not all parties participate in the negotiations and also because no concrete conclusion is obtained from the negotiating history. In case there is an ambiguity in the interpretation of provisions article 31 of the VCLT is applied and Article 32 is far less resorted when compared to Article 31 as it is a supplementary means of interpretation. In Canada Pharmaceuticals129 case the negotiating history was looked into by the panel. In Canada Diary130 the Appellate Body found that Canada’s schedule of Commitments under the Agreement on Agriculture was not clear and hence resorted to supplementary rules of

126 The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. 127 Appellate Body Report,Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996. 128 Appellate Body report (WT/DS2/AB/R), WT/DS4/AB/R

129 Canada-Patent Protection of Pharmaceutical Products, Report of the Panel, WTO, WT/DS114/R 130 Appellate Body Report,Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/AB/R.

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interpretation under Article 32 of the VCLT. Similarly in EC Chicken Cuts case131, Brazil challenged the EC’s unilateral decision to change the tariffs. But EC claimed that domestic court passed a law even before the conclusion of the WTO agreement. The panel looked into the negotiating history and the decision of the domestic court as the supplementary means of interpretation. ADOPTED GATT REPORTS: Article XVI of the WTO agreement specifies that the WTO shall be guided by decisions procedures and customary practices followed by the GATT. The panel in the Japan Alcoholic Beverages II132 case relied upon the GATT adopted panel report and stated that it had the status of judicial decisions. But the Appellate Body ruled that the decision to adopt a panel report is not a decision but it is a part of GATT Acquis. The Appellate Body thus observed that adopted panel reports does not have definitive interpretation and hence there is no rigid stare decisis in WTO. UNADOPTED GATT REPORTS: The Appellate Body in Japan Alcoholic Beverages II held that unadopted panel reports of GATT have no legal status. It also noted that the reasoning in the unadopted panel reports can be used as a guidance. The unadopted panel reports were used as a guidance in numerous instances. Thus both the adopted and unadopted panel reports have only a persuasive value and is not legally binding. WTO PANEL AND APELLATE BODY REPORTS: Adopted WTO panel reports create legitimate expectations among the members of WTO and hence can be considered relevant in a dispute but the adopted WTO also has a persuasive value and is not binding. In India Patents-EC133 the panel held that the decisions of WTO panels and Appellate Body is not binding even if the subject matter is same. But the reasoning in the reports can be taken into account by the panels and Appellate Body. More over at the same time importance must be given to Article 3.2 of the DSU which states that the role of WTO dispute settlement is to provide security and predictability in the multilateral trading system. Thus the adopted WTO reports have strong persuasive power even though it is not binding.

131 European Communities - Customs Classification of Frozen Boneless Chicken Cuts, Brazil and Thailand v European Communities, Appeal, WT/DS269 132 Panel Report,Japan – Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R. 133 Panel Report,India – Patent Protection for Pharmaceutical and Agricultural Chemical Prod-ucts–Complaint by the European Communities, WT/DS79/R.

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CUSTOM Article 3.2 of the DSU states that customary international law applies to clarify the provisions of the agreements. Article 31 and 32 of the VCLT has been held to codify customary international law on this subject.134In EC hormones135 case a question as to whether the precautionary principle is a part of customary international law was dealt by the Appellate Body. It observed that the principle of precaution has crystallised and obtained the status of customary environmental law but still it is not a part of general customary international law. In Korea Procurement case136 the panel held that customary international law applies to the extent that there is no conflict between the customary law and WTO covered agreements. GENERAL PRINCIPLES OF LAW The Panels and the Appellate Body in many cases applied general principles of law to support their reasoning. In US Shrimp case137 the Appellate Body observed that GATT Article XX which is an expression of the principle of good faith is a general principle of international law. In US-FSC case138 it was held that Article 3.10 of the DSU commits the members of WTO if a dispute arises to engage in dispute settlement procedures in good faith. This is another manifestation of the general principles of international law in the DSU. In US- Softwood lumbar139case the principle of estoppel was applied. The US and Canada before the panel entered into a MOU which prevents them from initiating further action. Therefore the principle of estoppel applies which prevents US from initiating further action under the Panel or the Appellate Body. This principle was also applied in the Argentina Poultry case.140

134 Panel Report EC Hormones case 135 United States - Continued Suspension of Obligations in the EC - Hormones Dispute, European Communities v United States, Appeal, WT/DS320/AB/R

136 Panel Report,Korea – Measures Affecting Government Procurement, WT/DS16/R 137 United States - Import Prohibition of Certain Shrimp and Shrimp Products, India and ors v United States, Report of the Appellate Body, WT/DS58/AB/R

138 United States - Tax Treatment for 'Foreign Sales Corporations', United States v European Communities, Appellate Body Report, WT/DS108/AB/R 139 Panel Report, United States-Final Dumping Determination on Softwood Lumber From Canada, at 8, WT/DS264/R 140 Argentina - Definitive Anti-Dumping Duties on Poultry from Brazil, Brazil v Argentina, Report of the

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2.2 JURISDICTION: The WTO dispute settlement system has jurisdiction over any disputes that may arise between the member countries arising under any of the covered agreements.141 Article 23 of the DSU states that the WTO has exclusive jurisdiction to resolve disputes arising from the violations of the covered agreements. Article 3.8 also provides that the jurisdiction is quasi automatic and hence the responding member cannot refuse to participate in the DSB process initiated by a challenging member. Accession to the WTO agreement constitutes acceptance of the compulsory jurisdiction of the WTO. But some of the covered agreements provide for additional rules and procedures to deal with the dispute settlement arising out of a violation of a specified covered agreement. Article 1.2 of the DSU provides that these additional rules and procedures prevail over the DSU rules and procedures. CLASH BETWWEN RTA AND WTO- DSM Article XX1V of the GATT and Article V of GATS authorize members to form RTA provided that specific conditions are fulfilled.142 Many of the RTA provides for the establishment a separate dispute settlement mechanism. In such cases there might be a conflict of jurisdictions between the WTO DSM and RTA DSM. In Mexico Soft drinks143 the AB ruled that the DSU obliged the panels to exercise the jurisdiction unless a legal impediment precluded them from ruling on the merits of a claim. In Peru Agricultural Products144 the AB ruled that the WTO adjudicating bodies cannot refrain from exercising jurisdiction unless the right to access to WTO DSM was clearly relinquished by the parties to the dispute. CAUSE OF ACTION Article XXIII of GATT provides for the cause of action as to when a member can have a recourse to DSM. In India Quantitative restrictions145 the AB held that according to Article

Panel, WT/DS241/R 141 Article 1.1 of the DSU 142 Appellate body report on Turkey – Restrictions on import of Textile and clothing products. 143 Mexico - Tax Measures on Soft Drinks and Other Beverages, United States v Mexico, Appellate Body Report, WT/DS308/AB/R

144 Peru - Additional Duty on Imports of Certain Agricultural Products, Peru v Guatemala, Report of the Appellate Body, WT/DS457/AB/R

145 India — Quantitative Restrictions, India v United States of America, Appellate Body Report, WT/DS90/AB/R

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XXIII any member if it considers that the benefit accruing to it directly or indirectly is nullified or impaired as a result of failure of another member to carry out its obligations may resort to DSM. The AB held that the US benefits were nullified because of the failure of India to carry out its balance of payments obligations. There is no explicit provision requiring a member to have a legal interest to approach the DSB. This was held in the EC Bananas III146 case in which EC questioned the interest of US to bring a case as US was not an exporter of bananas. The AB held that a member has a broad discretion to bring a case and Article 3.7 of the DSU states that a member may bring an action if it considers that the action ends in a fruitful solution. Therefore, as the US is a producer and potential exporter of bananas and there could be a potential effect on the internal market of US for bananas, it has the right to bring an action in the WTO DSB. TYPES OF COMPLAINT: A member can bring three types of complaints against a member in WTO. This includes violation, Non violation and situation complaints. In case of situation and Non violation complaint the complainant must demonstrate that there is an impairment or nullification of a benefit.147 In case of violation complaints this is not required as in such cases as there is a presumption that the breach of an obligation under WTO by a member will have adverse impacts on the other members.148 CHAPTER 3 The main functions of a WTO dispute settlement mechanism include provide security and predictability to the multilateral trading system, to preserve the rights and obligations of WTO members, to clarify the provisions of WTO through interpretation and to favour mutually agreed solutions. The WTO provides for the resolution of disputes in two ways through mutually agreed solutions and through adjudication. 3.1 MUTUALLY AGREED SOLUTIONS: CONSULTATIONS The objective of consultations is to allow parties to obtain satisfactory adjustments of the matter

146 European Communities - Regime for the Importation, Sale and Distribution of Bananas, European Communities v Ecuador and ors, Appeal, WT/DS27/AB/R,1997 147 Article 26 of the DSU 148 Appellate Body report EC Bananas III Para 125.

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before resorting to further action.149Each member must undertake to accord sympathetic consideration and afford adequate opportunity for any representation made by a member. Thus consultations allow the parties to clarify any facts and resolve any misunderstandings. Through consultations the Appellate Body observed parties exchange information assess the merits of the positions. Request for consultations should be made in writing and a copy must be given to the DSB and relevant WTO committees. Under Article 4.5 the complaining party must give reasons for the request and identify the measures at issue. Thus consultations must be requested before establishing a panel under Article 6.2 of DSU. If the defending parties decline to consult then the panel could be established directly. In Mexico Corn Syrup150, Mexico waived its right of any consultations. Therefore the DSB constituted a panel without consultation and this was not raised by mexico in the panel stage. In the AB it raised an issue stating that there is a defect in the process. The AB held that lack of prior consultations is not a defect that deprives the panel of its authority to deal with the matter. A third party can also join the consultation process if it has a substantial interest and if the party to whom the request is made agrees that the third party has substantial interest. Under Article 4.3 a defending member must respond to the request of consultations within 10 days of the receipt of request and must consult within 30 days of receipt or within a time frame mutually agreed. If a party does not respond within 10 days or consult within the time frame then the requesting member could proceed with the establishment of a panel. If the consultations are held but fail to settle a dispute within 60 days of receipt of a request, then the establishment of a panel can be requested. GOOD OFFICES, CONCILIATION AND MEDIATION Good offices, conciliation and mediation are not compulsory processes in WTO. Article 5 of the

149 Article 4.5 of DSU 150 Mexico - Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States, United States v Mexico, Recourse to Article 21.5 of the DSU by the United States - Report of the Appellate Body, WT/DS132/AB/RW

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DSU states that this can be initiated voluntarily if the parties to the dispute agree. These process will not diminish the rights of the parties to approach the dispute settlement body for initiating a panel process. These processes can be initiated at any time during the dispute settlement process. 3.2 ADJUDICATION PANEL PROCESS As stated a party can resort to panel process if the defending party does not reply within 10 days or if the consultations are not held within the specified time frame of 30 days or in cases a solution is not reached within 60 days from the date of receipt of request of consultations. If a defending party has agreed to the consultations, then the panel process cannot be initiated until 60 days have lapsed from the date of receipt of request unless the parties agree that further consultations is not productive. A request for the establishment of a panel must be made in writing and indicate whether the consultations were held. It must also identify the specific measures at issue and the legal basis of request. The panel will be established at the first DSB meeting, unless there is a consensus in the DSB not to establish a panel. The panel usually consists of 3 experts and possibly upto 5 members who are well qualified governmental or non- governmental individuals. It is made sure that the panel consists of members from diverse backgrounds151. Citizens of WTO members whose governments are parties to the dispute cannot be a part of WTO panel. A panel is considered to be properly constituted if the terms of reference are agreed upon.152 Unless the parties agree to the contrary within 20 days from the date of establishment of a panel, the panel will proceed with the standard terms of reference. If the parties agree the DSU provides for the chairman to draw special terms of reference in consultation with the parties under Article 6.3 which was followed in Brazil desiccated coconut case153. The panel process is time bound and it cannot take more than 6 months. Once written submissions have been received and the parties and third parties have been heard, the panel issues the draft descriptive part of its panel report for comments in writing by the parties154. Parties are invited to make comments on the draft descriptive part within two weeks. After the receipt of comments on the descriptive part,

151 Article 8.2 of DSU 152 Article 7 of DSU 153 Brazil — Measures Affecting Desiccated Coconut, Brazil v Philippines, Appellate Body Report, WT/DS22/AB/R 154 Article 15 of DSU

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the panel issues its interim report containing the revised descriptive part and the findings of the report. Parties are again invited to make comments and may request an interim review meeting of the panel further to argue specific points raised with respect to the interim report. This is the interim review stage. The final report must contain a reference to all the arguments raised by the parties during the interim review stage. The panel issues its final report to the parties within two weeks following the interim review meeting, if one is held. A panel report may be considered for adoption 20 days after it is circulated to all the Members. It shall be adopted at a DSB meeting within 60 days after the date of circulation of a panel report to the Members, unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report.155 AMICUS CURIAE BRIEFS AND EXPERT CONSULTATION

Though amicus curiae briefs are accepted by the panels most of them are not used to resolve the disputes. The question as to the amicus curiae briefs first emerged in the case of US Shrimp where the panel refused to accept the briefs stating that it had not requested them. It held that under Article 13 of the DSU only parties and third parties are allowed to submit information. This was rejected by the AB which held that the panel has the discretion to accept or reject the information submitted to it whether requested or not by the panel.

Article 13 also authorizes the panel to seek information from the persons who are experts. In EC Hormones156the panel decided not to obtain a consensus report of the group of experts rather obtain the opinions individually. In Argentina Textiles and Apparels157 the AB stated that the panel is not bound to seek expert advice and that they have discretion to decide whether to seek expert advice.

APPELLATE PROCESS158

The Appellate Body is responsible for hearing appeals from panel decisions. Only parties to the dispute, not third parties, may appeal a panel report. Third parties which have notified the DSB of a substantial interest in the matter before the panel may make written submissions to, and be

155 Article 16 of DSU 156 Supra note 13. 157 Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and other Items, United States v Argentina, Report of the Appellate Body, WT/DS56/AB/R 158 Article 17 of DSU

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given an opportunity to be heard by, the Appellate Body. Any appeal of a panel report must occur before the report is adopted by the DSB. The appeal process begins when a party to the dispute formally notifies the DSB of its decision to appeal.

Appeals are limited to issues of law covered in the panel report and legal interpretations developed by the panel. This was observed in EC Hormones case. In Korea Alcoholic beverages159the AB rejected a claim relating to the weight the panel has given to the evidence. The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel. The Appellate Body shall generally complete its review process within 60 days. In no case shall it exceed 90 days. An Appellate Body report must be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to Members. In case of appeal, the panel and the Appellate Body reports will be adopted by the DSB together. The panel and Appellate Body reports will only be binding upon the parties after adopted by the DSB.

In US certain EC products160 the Appellate body reflected upon its task and held that that task of the AB is not to amend the DSU but only to preserve the rights and obligations of the members and to clarify the existing provisions.

CHAPTER 4

4.1 IMPLEMENTATION OF REPORTS

The DSU states that prompt compliance with the recommendations or rulings of the DSB is essential in order to ensure the effective resolution of disputes. 161 At a meeting within 30 days after the adoption of the report, the losing Member has to inform the DSB of its intentions to implement the recommendations and rulings of the DSB and whether it is able to comply immediately with the recommendations and rulings. If it is impracticable to comply immediately, the party will be granted a reasonable period of time to comply. This reasonable period of time can be decided in three different ways:

159 Panel Report,Korea – Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R, adopted17 February 1999, as modified by the Appellate Body Report, WT/DS75/AB/R,WT/DS84/AB/R 160 Appellate Body Report,United States – Import Measures on Certain Products from theEuropean Communities, WT/DS165/AB/R, adopted 10 January 2001. 161 Article 21 of DSU

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(i) Proposed by the Member concerned with the approval of the DSB (Article 21.3(a) of the DSU)

(ii) Agreed upon by the parties within 45 days after the adoption of the report (Article 21.3(b) of the DSU)

(iii) Determined by arbitration within 90 days after the adoption of the report (Article 21.3(c) of the DSU). When the reasonable period of time is arbitrated, a guideline for the arbitrator is that the reasonable period of time to implement the panel or Appellate Body recommendations should not exceed 15 months from the date of adoption of a panel or Appellate Body report.

DISPUTES IN IMPLEMENTATION:

Disagreements might arise between the parties when in the view of the complaining party the defending party had not brought the measures into conformity. When disagreement occurs as to the compliance measures recourse is made to the dispute settlement procedures.162 The referral is made to the original panel which will circulate its report within 90 days of referral.

The scope of review by a compliance panel under Article 21.5 first arose in the EC Bananas III. In that case EC argued that the panel’s terms of reference was limited on the matters on which the DSB had adopted its recommendations. The compliance panel noted that article 21.5 directs the panel to consider the existence or consistency with a covered agreement of measures taken to comply with the recommendations of the DSB. The same was held in Australia-Salmon case.

In Mexico Corn Syrup it was argued by the EC that the compliance panel cannot be established without prior consultations. The AB held that lack of prior consultations is not a defect that deprives the panel of its authority to deal with the matter.

4.2 REMEDIES

COMPENSATION

Compensation and the suspension of concessions or other obligations are temporary measures available in the event that the recommendations and rulings are not implemented within the

162 Article 21.5 of DSU

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reasonable period of time. If the WTO Member concerned fails within the reasonable period of time to bring the measure found to be inconsistent with the covered Agreement into compliance in accordance with the recommendations, that Member must, if so requested, enter into negotiations with a view to agreeing on mutually acceptable compensation (Article 22.2 of the DSU). This compensation does not mean monetary payment but the respondent is supposed to offer a benefit which is equivalent to the benefit that the respondent has nullified or impaired by applying its measure. The compensation is voluntary and must also be consistent with the covered Agreements.

SUSPENSION OF CONCESSIONS

Authorization for suspension of concessions or other obligations may be sought from the DSB by the Member concerned if no satisfactory compensation has been agreed upon within 20 days after the date of expiry of the reasonable period of time. The DSB is required to grant such authorisation within 30 days of the expiry of the reasonable period of time unless it decides by consensus to reject the request.

CONDITIONS FOR SUSPENSION OF CONCESSIONS The complaining party should first seek to suspend concessions or other obligations with respect to the same sector as that in which nullification or impairment has been found. If it is not practicable or effective to do so in the same sector, the suspension of concessions or other obligations may be made in other sector under the same Agreement. If even that is not practicable and the circumstances are serious enough, the complaining party may seek to suspend concessions or obligations under another Agreement. This is referred to as cross-retaliation. For these purposes, "sectors" are classified in three categories: (i) goods (ii) services (iii) intellectual property. The level of suspension of obligations authorized by the DSB must be equivalent to the level of nullification or impairment - that is, it may not go beyond the harm caused by the respondent (Article 22.4 of the DSU).

In EC Bananas III the WTO member requested DSB authorization to suspend the concessions under the TRIPS agreement as a cross retaliation. The arbitrators authorized Ecuador to request the suspension of concessions under the TRIPS agreement from the DSB which also authorized

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the suspension. In US-Gambling163 Antigua requested for the suspension of concessions under TRIPS as the US measures on cross border gambling services was inconsistent with the GATS.

In case of disagreement regarding either the equivalence of the level of nullification with the level of suspension or the conditions applicable to cross-retaliation, arbitration may be requested (Articles 22.6 and 7 of the DSU). Such arbitration shall be carried out by the original panel, if members are available, or by an arbitrator appointed by the Director-General, and shall be completed within 60 days after the date of expiry of the reasonable period of time. Concessions or other obligations shall not be suspended during the course of the arbitration (Article 22.6 of the DSU).

ISSUE OF SEQUENCING

The sequencing problem is between the compliance reviews under Article 21.5 and the request for authorization to suspend the concessions in Article 22. When disagreement occurs as to the compliance measures recourse is made to the dispute settlement procedures under Article 21.5 and thus a compliance panel is set. The compliance panel must circulate the report within 90 days of the expiry of reasonable period. Article 22 also mentions the situations in which a member has failed to bring a measure consistent with the covered agreements. But article 22 does not state as to who should determine whether the measures are in compliance. It is argued by some it is implied in Article 22 that the question as to the whether the measures are in compliance is decided by a compliance panel. Under Article 22.2 if the measures are not in compliance the parties may enter into compensation negotiations. If an agreement is not reached within 20 days the complaining member may request authorization to suspend concessions.

Article 22.6 states that if a member has not complied with the measures, then the complaining member may request authorization for suspension of concessions within 30 days of the expiry of the reasonable period. Therefore out of the 30 days there is only a 10 days gap for a complaining member to request for arbitration as a 20 day period out of the 30 days must be allotted for compensation negotiations. If an arbitration is resorted to under Article 22.6 the arbitrators must issue an award within 60 days of the expiry of the reasonable period. Whereas a compliance

163 US - Gambling, Antigua and Barbuda v United States, Report of the Appellate Body, WT/DS285/ABR

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panel must circulate the report within 90 days of expiry of the reasonable period. So there arises a problem of sequencing as to whether a member can request authorization for suspension before the compliance report is circulated.

This issue of sequencing arose in the EC Bananas III case where the US requested an authorization for the suspension of concessions under Article 22. The EU argued that the question as to whether the EU has failed to comply with the report must first be determined by a compliance panel under Article 21.5. The dispute highlighted the underlying issue in the sequencing problem: who determines whether a respondent has failed to comply.

Moreover, the case shed light on the vague wording “recourse to these dispute settlement procedures” in Article 21.5. It is presumably a reference to the DSU’s normal panel procedures, but the short time frame for a compliance panel, 90 days, compared to the normal 6–9 months for panel proceedings, and another 2–3 months for an appeal, shows that the same procedures would be impracticable and may not be intended. In such case, the question is which of the normal rules apply to a compliance panel procedure.

The disagreement between the EU and the US on the correct sequencing resulted in two parallel procedures: Article 22.6 arbitration and Article 21.5 compliance panel proceedings. As a consequence of the time frames of the two Articles, the arbitrators would have decided the level of suspension of concessions before the compliance panel had determined whether the EU had failed to comply. The two procedures were carried out by the original panelists as provided by both Articles 21.5 and 22.35 These individuals solved the problem mainly by acting as Article 22.6 arbitrators. They interpreted the articles to mean that the short time frame for authorization to suspend concessions confirmed that such authorization could not be conditioned by a prior determination of compliance by a panel.164It considered that arbitrators under Article 22.6 were competent to determine compliance instead of a compliance panel.

4.3 DEVELOPING COUNTRIES AND DSM

Particular consideration shall be given to the special situation of LDC Members at all stages of the dispute. Members are to exercise due restraint in bringing a dispute against LDC members. The Director-General or the Chairman of the DSB are required, upon request by a LDC member,

164 EC – Bananas (Recourse to Article 22.6) (WT/DS27/ARB), paras. 4.1-4.15

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to offer their good offices, conciliation or mediation to help the parties to settle the dispute, before having to resort to requesting the establishment of a panel. If a measure adopted by a LDC member has been found to be inconsistent with WTO rules, complaining parties are to exercise due restraint in asking for compensation, or seeking authorization to suspend the application of concessions or other obligations.165

The Secretariat must make available a qualified legal expert from the WTO technical cooperation services to any developing country member which so requests. This expert must assist the developing country member in a manner ensuring the continued impartiality of the Secretariat.166 Members should give special attention to the particular problems and interests of developing country members in consultations167. At least one panelist should be selected from a developing country member in a dispute between a developing country member and a developed country member, if the developing country member so requests168. During implementation particular attention should be paid to matters affecting the interest of developing country members.169

165 Article 24 of DSU 166 Article 27.2 of DSU 167 Article 4.10 of DSU 168 Article 8.10 of DSU 169 Article 21.2 of DSU

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CHAPTER 5

5.1 CONCLUSION

Thus the corner stone of WTO is the development of a dispute settlement process. In the implementation of most of the measures and the settlement of disputes the WTO has been a success. The dispute settlement mechanism has widened the WTO jurisprudence. The development of jurisprudence regarding the applicability of general principles, the determination on the applicability of the precedents are quite significant. However it is argued by some that the WTO dispute settlement is effective in facilitating mutually agreeable solutions but is not effective in creating a level playing field. Though developing countries have started participating in the dispute settlement process most of the them are still excluded. It is said though developing countries receive special treatment in WTO, they are targeted by the developed countries in the DSM. Moreover cost considerations and lack of legal expertise have prevented developing countries from taking full advantage of the WTO dispute settlement process. It is also argued by some that the WTO panels and Appellate Body has in some cases encroached upon the power of the legislature. However the WTO’s dispute settlement Understanding represents in the words of Celso Lafe, former chairman of DSB a thickening of legality. The WTO dispute settlement represents a system away from diplomacy and towards litigation.

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Interplay between Constitutional Law and Criminal Law while Analysing the Legality and Evidentiary Value of Physiological Devices

By : Ambika Gupta

THE MOST dangerous cocktail in a democracy is when those who are meant to enforce the law take the law into their own hands. The most unfortunate aspect of compelled administration of psychological techniques is that it ambushes at the very root of Right against Incrimination which shatters the confidence of citizens towards democracy and criminal justice system. If a person is maliciously confiscated by police, the court can order his release. But what if the remedy loses its meaning even before the court gets an opportunity to hear the case? What if the person cannot be presented in court because he has succumbed to injuries caused by “psychological torture”? Introduction

On October 2, 2020 when Uttar Pradesh Government expressed its willingness for conducting polygraph and narcoanalysis tests of all the people on accused and victim side as a part of investigation into the alleged gangrape and murder of nineteen-year-old girl in Hathras1, the discussion relating to constitutionality and legality of physiological tests again came into limelight. The instance of Abdul Karim Telgi in the stamp paper scam and several other suspects in the Aarushi murder case are of contemporary relevance in this respect. Recent times have witnessed a spate in the use of modern scientific techniques such as the lie detector, brain mapping and narcoanalysis, for use in criminal investigation. Although the legal and ethical propriety of their use has been in doubt, they may in fact be a solution to many complicated investigations. This paper describes how the techniques may be used against an accused and concludes that although the legal setup in India may limit the evidentiary use of the techniques, their extensive deployment, particularly that of narco analysis, in investigative processes, in itself violates the fundamental rights i.e., right against self-incrimination and right to privacy of the accused.

1Hathras Case: Issues of Consent, reliability in narcoanalysis and polygraphy tests, available at https://indianexpress.com/article/explained/explained-issues-of-consent-reliability-in-narco-and-polygraph-tests- 6682709/, last accessed on 07-05-2021

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Constitutional Validity of Physiological Devices in Investigation

One of the biggest legal controversies, surrounding the usage of physiological devices in investigation, is its alleged violation of the sanctum scrotum of the Indian Constitution. In this regard, it is worth quoting the article titled Two Models of the Criminal Process2 by the American jurist Herbert Packer wherein he expressed, ultimate goal of Criminal Control Model is the “repression of criminal conduct” which gives “weightage on the quality of administrative fact finding”. While the second model, Due Process Model gives paramountcy to constitutional ethos of “human dignity and individual freedom”. Therefore, it is impediment to test the constitutionality of physiological devices on the touch stone of these models which will involve systematic analysis of Right against self-incrimination and Right to privacy. • Right against Self Incrimination under article 20(3) of Indian Constitution

In an academic commentary, Leonard Levy had pointed that doctrinal origin of Right against self-incrimination could be traced back to the Latin maxim nemo tenetur seipsum prodere3. In Indian Constitution the idea of “no one is bound to accuse himself” is envisaged under article 20(3)4. For checking the constitutionality of forensic evidence on the parameters of article 20(3) it is imperative to analyze the meaning of “witness against himself” and “Testimonial Compulsion” o Witness against himself

This term for the first time was interpreted in the case of MP Sharma v. Satish Chandra5 in which Justice Jagannadhadas observed to be witness means nothing more than to furnish evidence, it is not confined to oral testimony but also includes documentary evidences. Thus, every positive volitional act which furnishes evidence is testimony6. However, in State of Bombay v. Kathi Kalu Oghad7 there was a dis-agreement with the aforementioned meaning, CJ BP Sinha opined, to be witness means imparting knowledge in respect of relevant facts8 by means of oral and documentary evidences. The recognition of ideals of article 20(3) finds

2 Herbert Packer, Two Models of the Criminal Process (1964) 113 U Pa L Rev 1 3 Leonard Levy, The Right against Self Incrimination: History and Judicial History 4 No person accused of any offence shall be compelled to be a witness against himself. 5 AIR 1954 SC 300 6 Id at ¶ 10 7 AIR 1961 SC 1808 8 Id at ¶ 11

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a close parallel in some foreign decisions. In Holt v. US9 the court ruled that privilege against self-incrimination prohibited the use of compulsion to extort communications but not the use of defendant’s body as evidence. In Schmerber v. California10, Justice Brennan observed a compulsion imposed on a person to submit to testing for determining the guilt or innocence on the basis of psychological response will evoke the spirit of fifth amendment. In this view it may be pointed, self-incrimination involves giving information based upon personal knowledge and cannot include mechanical process of producing evidence which may throw light on any of the question in controversy. o Compulsion and Voluntariness

Compulsion is duress11. Compulsion has to be a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of statement involuntary12. The mere fact of being in police custody at the time of making statement does not by itself lead to inference that the accused has been compelled to make the statement13. However, if the police obtain the statement by employing third degree torture, then barred under article 20(3)14. Justice Iyer in Nandini Satpathy v. PL Dani15 advocated an expansive interpretation of “compelled testimony”, it is evidence procured not merely by physical threats but also by psychic torture. The anti-thesis of compulsion is voluntariness. Voluntary, means simply of one’s own free will16. In Horvath v. Queen17 the Canadian Supreme Court while examining the admissibility of statement given by accused in hypnotic stage referred the meaning of voluntary statement as given in Halsbury Law of England and Ibrahim v. Queen18 -a statement was voluntary if it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression. However, rejecting the essence of definition the court rests its judgement on the infringement of privacy, unconsented access to what in a human being is of the utmost privacy, the privacy of his own mind19. Hence, whenever there is compulsory administration of impugned technique an individual is mentally compelled to

9 54 L Ed 1021 10 16 L Ed 2d 908 11 Pershadi v. State of UP, AIR 1957 SC 211 12 Supra note 4 13 Supra note 5 14 Ghazi v. State of UP AIR 1966 All 142 15 AIR 1978 SC 1025 16 Rennie (1982) 1 WLR 64, per CJ Lord lane at 70 17 (1979) 2 SCR 376, 377 18 Id at 401 19 Saunders v. UK, (1996) ECHR 65

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make statements, irrespective of whether they subsequently prove to be inculpatory or exculpatory, thereby, an absence of voluntariness of statements. This forcible conveyance of personal knowledge violates the right against self-incrimination. • Right to Choose between Remaining Silent and Offering Substantive Information

Those supporting impugned techniques contend, by virtue of Explanation (a) of Section(s) 53, 53A and 54 of CrPC, narcoanalysis, polygraph and BEAP tests fall under the expression such other tests. However, in the landmark case of Selvi v. State of Karnataka20 CJ Balakrishnan, opined interpretational rule of ejusdem generis does not permit the inclusion of three tests in expression such other tests21.Thereby, protecting the responses directly corelated to mental faculties. For meeting the ends of justice, section 161 of CrPC bounds a person to answer truly all questions, howbeit, a conjoint reading of article 20(3) of Indian Constitution and section(s) 161(1) and (2) protects person to answer those questions which has a tendency to expose him to criminal charge. Taking these legal viewpoints into consideration the court in paragraph 185 observed: The compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a “positive volitional act” becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition. Since, during compulsory administration of impugned technique an individual makes a statement which he would not have otherwise made, thus, depriving him of autonomy in aspects such as the choice between remaining silent and speaking. • Right to Privacy

Right to privacy is not independent of the other freedoms guaranteed by part III of Indian Constitution. It is an element of human dignity and is an inalienable natural right22. In a narcoanalysis test the subject is likely to divulge irrelevant and incoherent information. It is fundamental to justice that the state should not be allowed to invade the sanctum of the mind for the purpose of incriminating individual23. Hence, subjecting a person to impugned techniques without consent violates the subject’s mental privacy24.

20 (2010) 7 SCC 263 21 Id at ¶ 168, 169, 170 22 KS Puttaswamy v. UOI (2017) 10 SCC 1, Justice DY Chandrachud 23 R v. S (RJ) (1995) 1 SCR 451, 605 24 Supra note 20, ¶ 257

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In a democratic nation the techniques adopted must be in consonance to Rule of Law and Liberty25. Linking the impugned techniques with the analysis of constitutional provisions and two models of criminal process, it can be construed, compulsory imposition of impugned techniques is against the Due process model as it gives paramountcy to extraction of information rather than the unconstitutional method in which it is extracted.

Evidentiary Value of Modern Psycho-Physiological Devices With recent advent of technologies in every sphere of life, criminal investigation is no more left out of its effects26. As science has outpaced the development of law there is unavoidable complexity regarding what can be admitted as evidence in court27. This part of research paper is outlined in such a way so as to determine the veracity of the impugned techniques, expert evidence and the evidentiary value of statements made thereto. • Veracity of results

While analysing the reliability of statements it is pertinent to note the practical problems involved in their results. In polygraph test, interpretating results is complex as it might be susceptible to distortions such as countermeasures used by subject. In BEAP test, there is possibility of subject having had prior exposure to probes that are used as stimuli28. American Psychological Association (11-11-1994) has demurred the truthfulness of information elicited during narcoanalysis test29. Since, eternity courts have been cautious in relying on the results of statements. In United States v. Scheffer30 the majority stated, there is simply no consensus that polygraph evidence is reliable. In 2005, the 11th Circuit Court of Appeals stated that polygraphy did not enjoy general acceptance from the scientific community31. While negating the veracity of brain mapping test, in State v. Zimmerman32, a case of a conviction for murder, had excluded evidence of brain mapping, concluding that the test was not generally accepted in the neurological community. On same lines of reasoning in an unpublished opinion in Ross v. Schrantz33, a case in which primary evidence was retrieved

25 Public Committee against Torture in Israel v. State of Israel (1999) 7 BHRC 31 26 Barcelona Panda, Narco-Analysis and its evidentiary Value in India, (2011) PL July S-36 27 Daubert v. Merrell Dow Pharmaceutical, 125 L Ed 2d 469 28 Suresh Badha Math, Supreme Court judgement on polygraph, narcoanalysis and brain mapping IJMR (2011) 134(1) 4-7 29 LA Gottschalk, The Use of Drugs in Information Seeking Interviews: Technical Reports ARDC Study, SR 177 D 30 523 US 303 (1998) 31 USA v. Wyatt Henderson 409 F.3d 1293 32 43802 P.2d 1024 (Ariz. Ct. App. 1990) 33 1995 WL 254409 (Minn. Ct. App. May 2, 1995)

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through brain mapping, the court excluded the evidence, stating that there is no scientific literature to show the reliability or acceptability in clinical applications. An absence of accuracy of the fruits or considerations of results might prove to be prejudicial to Right to Fair Trial34. The use of truth serum was prohibited by the New Jersey Supreme Court in State v. Pitts35 on the ground, results of the tests are not scientifically reliable and that it was possible for the subjects to fill lacunae in stories (hypermnesia) or to believe in false events, or to do a hypnotic recall, whereby thoughts of non-existent events are believed by the subject, thereby not narrating the true state of affairs. The ideology of judiciary while pronouncing aforementioned judgements can be aptly epitomised by the words of Justice William Mc Intyre, Reliance on scientific technique could cloud the human judgement on account of an aura of infallibility36. Since, these techniques induce the subject into delusive state where the subject is prone to divulge information which might be tampered by external stimuli and hallucinations, the court in such situations will abstain from taking statements into record unless technique has a reasonable measure of precision and is accepted in its scientific field or profession37. • Expert Evidence Indian Evidence Act permits evidence of the opinion of persons (called “experts” under the Act itself)38. However, the weight accorded to such evidence is another question altogether. Expert evidence is appreciated based on several factors such as the skill of the expert39 and the exactness of the science40. If the science itself is imprecise, expert opinion is only of corroborative value and insufficient to secure a conviction by itself41. The first reference is to the decision of State v. Hudson42, the defence lawyer in a prosecution for rape attempted to rely upon the expert opinion of the doctor. The doctor declared, he relied on truth serum and defendant had denied his guilt in drug induced state. The court refused the testimony by finding the technique to be completely unreliable. In State v. Lindemuth43 the court while discarding the testimony of the psychiatrist wherein exculpatory statement by accused was made in delusional state observed, until the use of drugs as a means of procuring truth

34 US v. Piccinonna 4 885 F 2d 1529 35 116 NJ 580 A 2d 1320 36 R v. Beland (1987) 36 CCC 3d 481 37 Fyre v. US (1923) 54 App DC 46 38 § 45 Indian Evidence Act, 1872 39 State v. S.J. Choudhary, AIR 1990 SC 1050 ¶ 9, quoting the 69th Report of the Law Commission, ¶ 17.31 40 Pratap Misra v. State of Orissa, AIR 1977 SC 1307, ¶ 5 41 Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529 42 314 Mo 599 (1926), p.602 43 56 NM 237 (1952)

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receives scientific recognition results thereof cannot be accepted. In Lindsey v. US44 while excluding the recording of an interview conducted under the influence of truth serum and psychiatric testimony expressed, scientific tests reveal that people thus prompted to speak freely do not always tell the truth, meaning thereby for admitting the statement as an evidence, it should be scientifically established that test is absolutely reliable. As medical experts are bewildered as to the accuracy of the results45 of impugned technique the expert opinion made in regards to their results will not be given utmost reliance. • Confessions

Confessional statement of accused before police officer46 or in the custody of police officer47 is inadmissible as evidence, unless made in the immediate presence of a Magistrate48. Thus, statement shall be inadmissible, even if made to the medical officer, if they are made in the custody of a police officer49, except made before a Magistrate50. Before a confession is made before a Magistrate, the Magistrate is to explain to the subject that he is not bound to make such a confession and the Magistrate may only record it if he believes that it is being made voluntarily51. The presence of the lie-detector reduces the choice which the accused has to say what he or she feels like saying. The accused is not free to make any statement he or she wants to, thus, clearly rendering the circumstances coercive. Hence, a confession made to the Magistrate under the influence of the test cannot be said to be voluntary and is likely to be refused to be recorded by a Magistrate. The brain mapping test does not entail the making of a statement at all. However, a police officer may administer the test to the accused and find out from a medical expert the areas on which the accused has knowledge, and later take him under duress to the Magistrate in order to record his confession. Nevertheless, the Magistrate shall follow the same process as in case of the lie-detector to ensure that the statement is being made voluntarily, and hence the same result shall ensue52. The narco-analysis test, on the other hand proactively involves the making of statements by the accused. However, a

44 237 F.2d 893 45 Supra “Veracity of results” 46 § 25 Indian Evidence Act, 1872 47 Id at § 26 48 Id 49 Ram Singh v. Central Bureau of Narcotics, AIR 2011 SC 2490 50 Kamal Kishore v. State (Delhi Administration) (1997) 2 Crimes 169 Del 51 § 164(2) CrPC, 1973 52 Quoted from Use of Modern Scientific Tests in Investigation and evidence by Abhyudhya Agarwal and Pirthwiraj Gangopadhyay, 2 NUJS L Rev. (2009)

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Magistrate would not record the statements as they are involuntary53 and induced54 and also not reliable55. In regards to this, it is worth mentioning the case of Townsend v. Sain56 , a heroin addict was arrested on the suspicion of having committed robbery and murder. In order to treat the withdrawal symptoms, the physician administered “hyoscine”, as an effect of the administered drug he promptly made confessional statements to police and was convicted on the basis of statements. On this issue, while issuing habeas corpus, CJ Warren observed: If an individual’s “will was overborne” or if his confession was not the product of rational intellect and free will; his confession is inadmissible because coerced. These standards are equally applicable to drug induced statements. The clarification pertaining to the question, whether statements made during impugned tests be considered as an evidence was remarkably clarified in the paragraph 264 of Selvi v. State of Karnataka57 No individual should be forcibly subjected to any of the techniques. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave a room for the voluntary administration of impugned techniques. Even when the subject has given consent to undergo any of these tests, the results cannot be admitted as evidence because the subject does not exercise the conscious control over the responses during administration. However, any information that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of Evidence Act 1872. Accordingly, it is evident that in Selvi the court while rejecting the admissibility of callously obtained evidence through impugned techniques has demarcated “illegal” and “unconstitutional” evidence and applied exclusionary principle to latter. Therefore, statements (even inculpatory) made during in/voluntary administration of impugned techniques will not be considered as an evidence. However, an independent evidence found because of voluntary administration of technique by virtue of Doctrine of Confirmation by Subsequent Events enshrined in section 27 of Evidence Act can be considered relevant evidence58.

53 State of Gujarat v. Ashishbhai Kapilbhai Nanda 2011 SCC OnLine Guj 7617 ¶ 1 to 3 54 § 24 Indian Evidence Act 1872 55 Balbir Singh v. State of Punjab, AIR 1957 SC 216, for details on reliability of statement of witness. 56 372 US 293 (1962), page 307-309 57 Supra 20 58 Navaneethakrishnan v. State AIR 2018 SC 2027

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Some Ethical Questions Answered Since eternity Indian judiciary by series of progressive judgements like Sunil Batra case, Rudal Shah case, Hussainara Khatoon case, DK Basu case and Anita Kuswaha case has recognised article 21 as the heart of Indian Constitution of which personal liberty, bodily integrity and dignity59 and right against cruel, inhuman punishment are arteries and veins. Human rights activists world over have been avidly protesting against the use of third-degree methods to extract information. Though, used as an alternative these techniques are still labelled as psychological third-degree method60 of interrogation as a form of torture. While giving expansive interpretation of term torture UN General Assembly has incorporated “mental torture” within the definition of torture given under article 1 of UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. It is quite conceivable that administration of any of the impugned technique though may not inflict physical pain or suffering but might reveal a person to mental pain or suffering61 hence falling within the scope of mental torture and injury62 defined under section 44 of Indian Penal Code. Research Analysis Indian judiciary during its course of journey from Ramchandra Reddy v. State of Maharashtra63 to Selvi v. State of Karnataka64 has gone through different phases and has tried to answer the intricacies attached with constitutionality and evidentiary value of impugned techniques. Strict legal reasons failed to justify the compulsory administration of impugned techniques. This is because they are violative of right against self-incrimination which have miscarried the test of reliability as well as voluntariness of statements (denial of individual’s choice between speaking and remaining silent). Though the scheme of criminal procedure as well as evidence law mandates interference with physical privacy, the same cannot be the basis for compelling a person to impart personal knowledge about a relevant fact. According to Justice K Iyer, no article pertaining to fundamental rights is an island in itself. Just a man is not dissectible into separate limbs, cardinal rights in an organic

59 Article 5 UDHR 1948 and Article 7 ICCPR 1966 60 Santokben Jadeja v. State of Gujarat 2007 Cri LJ 4566 61 Supra 20, ¶ 239 62 Any harm whatever illegally caused to any person, in body, mind, reputation or property. 63 2004 All MR (Cr) 1704 64 Supra 20

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constitution have a synthesis65. This theory of inter-relationship of rights mandates that the right against self-incrimination should be read as a component of personal liberty under article 21. Manifestly, right to privacy (including privacy of one’s mental process) should be intertwined with article 20(3) to the extent that rule against involuntary confession as embodied in section(s) 24, 25,26 and 27 of Indian Evidence Act are adhered too. Thus, blanket ban on involuntary administration of tests and voluntary administration of tests after receiving an informed consent is consonance with the standards of substantive due process of law.

Suggestion A major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license. - Heraclitus

The aforementioned abstract aptly exemplifies the extent to which investigative authorities should be allowed to use the impugned techniques, towards balancing the rights of citizens and interest of social security. In our country, crime is the by product of socio-economic conditions and criminal prosecution is used as an instrument of harassment. Taking this into consideration principles relating presumption of innocence, proof beyond reasonable doubts and right against self-incrimination are duly incorporated in the statute, therefore, to maintain its sanctity it is impertinent that these techniques (even if voluntarily) should be used in grave offences like terrorism (ticking bomb scenario)66. In addition to the guidelines of NHRC67, if the entire process of impugned tests is recorded by virtue of proviso of section 161 of CrPC added by Criminal Procedure (Amendment) Act, 200868 then it can act as an additional safeguard against the abuse and misuse of those tests.

65 Maneka Gandhi v. UOI, (1978) 1 SCC 248 66 Dr. Jyotirmoy, Devices in Police Investigation, 2011 4 SCC (J) 67 Supra 20, ¶ 265 68 Provided that statement made under this sub-section may also be recorded by audio-video electronic means.

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Conclusion Neither the Indian Constitutional Law nor Criminal Laws explicitly acknowledges the involuntary administration of psychological devices as violative of Right to Fair Trial. When an individual is ravished by psychological third-degree torture those in power justify it, by being the perfect substitute of physical third-degree torture. What’s more miserable is that there is still no legislative enactment declaring it to be illegal and unconstitutional. Unfortunately, if an individual suffers any injury during the course of these tests, those in power dispense their duty by paying a meagre amount which indeed, is a blow on the very notion of dignity and human rights. Therefore, the need of the hour is – development of a unified jurisprudence for determining the legality of these techniques and quantum of compensation for violation of the right to life, otherwise, victims and their families might contemplate compensation case as a lottery (wherein amount will be determined by chance)!

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THE IMPACT OF CLIMATE CHANGE ON CHILDREN: A STUDY ON SOUTH- ASIAN CHILDREN By : Anjali Bisht Abstract: There exists no greater and unequivocally growing threat facing the world’s children than climate change. It is apposite to mention that in every crisis, children are the most vulnerable and climate change poses no exception as climate change intensifies droughts and flooding which degrade food production resulting in children bearing the brunt of hunger and malnutrition. Furthermore, as the temperature increase, coupled with water scarcity and air pollution, children will stand prone to the lethal impact of water-borne diseases and hazardous respiratory conditions. Besides, climate change may also objectively intensify domestic violence, crime rates, and increase the likelihood of conflict and war as household violence may increase because an upsurge in heat can spur aggressive tendencies and economic stress resulting from climate shocks might also lead to increased violence. The aggravation of extreme weather conditions will magnify the number of humanitarian crises leading to displacement and children will pay the highest price. It is a future distressing to visualize and in this article, we delve into climate change’s likely implications for children in developing countries especially India as children already face severe challenges, which climate change will likely aggravate. Keywords: Climate Change, Children, Indian children, health.

1. INTRODUCTION

“Climate change is a future problem. But it is also a past problem and a present problem. It is better thought of as a developing process of long-term deterioration, called, by some psychologists, a “creeping problem.” The lack of a definite beginning, end, or deadline requires that we create our own timeline. Not surprisingly, we do so in ways that remove the compulsion to act. We allow just enough history to make it seem familiar but not enough to create a responsibility for our past emissions. We make it just current enough to accept that

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we need to do something about it but put it just too far in the future to require immediate action”69

With nearly 2.2 billion people under the age of 18, out of which over 1.2 billion are people under the age of 9 years, nearly 625 million are under five years old 1.2 billion people are adolescents between the ages of 10 and 19 years, it is safe to say that world’s population is young representing one-third of the world’s population.70 There exists substantial data that most of the primary killers of children, i.e. malaria, diarrhoea, pneumonia and undernutrition, are extremely susceptible to climatic conditions and as the climate conditions are expected to worsen owing to climate change, these threats are expected to amplify their effect as children are much more vulnerable to such dangers owing to their physical, cognitive and physiological naivety. Resultantly, in the world, today, approx. 2.2 billion children are living and growing up posed with the severe effects of climate change. Children represent 30 percent of the global population and, therefore, they possess the absolute right to live in a sound environment and have a right to access to essential resources such as education, food & nutrition, good health, and growing up in a disaster and conflict free environment. This is not something which is merely a moral argument and it is a legal obligation that we have undertaken under the United Nations’ Convention on the Rights of the Child (CRC) which is the world's most widely ratified treaty concerning human rights and serves as the foundation for UNICEF's commitment towards the children. These fundamental rights of children are unswervingly threatened by global warming and climate change, and generations of children today and soon may be deprived of their fundamental right to live, learn, develop- intellectually, physically and mentally, and contribute to the society.71 We owe a better world to our children because today around 503 million children are living in live extremely high risk of floods zones owing to hazardous weather events such as typhoons, cyclones and storms, as well as rising sea levels. Further, the number of children living in areas undergoing high levels of drought is close to 160 million children. It is estimated that by the year 2040, 1 in every 4 children will be forced to live in an area undergoing extreme water stress. Moreover, it is the children under 5 years of age who bear the brunt (as much as 90

* LLM (Energy laws)- University of Petroleum and Energy Studies, 2016-2017 | Advocate – High Court of Uttarakhand 69 GEORGE MARSHALL, DON'T EVEN THINK ABOUT IT: WHY OUR BRAINS ARE WIRED TO IGNORE CLIMATE CHANGE 63-64 (Bloomsbury, 2015). 70 UNICEF- Innocenti Research Centre, Climate Change and Children- A Human Security Challenge (November 2008) https://www.unicef-irc.org/publications/pdf/climate_change.pdf. 71 Joy Guillemot, Child rights at risk: the case for joint action on climate change, UNICEF, https://www.unicef- irc.org/article/928-child-rights-at-risk-the-case-for-joint-action-with-climate-change.html.

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percent) of climate change in the form of diseases. Further, the weather-borne disasters escalate the possibility for girls to discontinue their schooling and be coerced into marriages, sexual abuse, etc. Another worrisome fact is that there are approximately 300 million children, out of which 17 million children are under the age of one year, who are inhaling toxic air as these children live in areas which exceed around six times the global limits of PM2.5 set by the World Health Organisation and as a result, these children are being exposed to life-long effects on their cognitive functions and development.72 The exposure to harmful and toxic air claims the life of 6,00,000 children under the age of five years every year due to pneumonia and other respiratory issues.73 This paper tries to discuss the impacts of climate change on children.

2. THE UNITED NATIONS CONVENTION ON THE RIGHTS OF CHILD AND CLIMATE

CHANGE:

The children all over the world are in urgent need of protection from the impacts that climate change brings as it is estimated that over the next decade approximately 175 million children a year will be adversely affected by climate change-induced disasters, and in the next two decades an additional 37.5 to 125 million African children will suffer undernourishment induced by water scarcity and by 2050, approximately 25 million more children will suffer undernourishment due to climate change. Children, who are the least responsible for adversely affecting the environment, bear the brunt of it the most and as such their vulnerability to climate change primarily threatens the fulfilment of the rights laid out in the United Nations’ Convention on the Rights of Child. After being ratified by 193 States, the UN-CRC is the most widely ratified treaty on human rights which outlines specific rights of a child in a legally- binding international law and sets out universal codes and principles for the status and treatment of children all over the world. However, child rights are exposed to climate risks and will become harder particularly for developing countries, including India, to maintain their commitments to the CRC.74

3. IMPACT OF CLIMATE CHANGE ON CHILDREN:

From merely an environmental issue, climate change has become an issue that affects every aspect of an individual’s life. The impact of climate change and the gravity of the same can be easily construed from the fact that a child, today, will experience a world that has a

72 UNICEF, FACT SHEET: ‘The climate crisis is a child rights crisis’, UNICEF (Dec 9, 2019), https://www.unicef.org/rosa/press-releases/fact-sheet-climate-crisis-child-rights-crisis. 73 Ibid. 74 Supra 3.

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temperature 4 degrees more than the pre-industrial average, and, resultantly, the life of such a child will be affected right from pre-birth across old age.75 Talking about Asia, which is the largest continent on Earth spread over four climatic zones, i.e. oreal, arid and semi-arid, tropical and temperate, the pressure on its eco-system has been burdened and rapidly compromised with degradation, deforestation which are a threat to survival owing to food insecurity, deteriorating water quality, desertification, etc. Besides, these issues, the region is highly prone to natural hazards, which includes the 2004 Indian Ocean Tsunami, the 2005 Pakistan Earthquake, and the 2006 landslides in the Philippines.76 Evidence suggests that there will be a significant and disastrous increase in the intensity and/or occurrence of various life- threatening weather events such as heatwaves, prolonged dry spells, tropical cyclones, intense rainfall, hurricanes, avalanches, landslides, thunderstorms, and dust storms in the region which will claim the life of millions and will render the regions inhabitable leading to large scale inter-country or intra-country displacement. A lot of environmental problems in Asia will be aggravated by climate change as predicted rainfall is likely to increase over most of Asia which would lead to increase in flood-prone areas in East, South and Southeast Asia.77 In South Asia, crop yields are estimated to decrease by 30 per cent which would create food insecurity in countries like India, Bangladesh, etc. Moreover, global warming is triggering the melting of the Himalayan glaciers which increases the risk of flooding, erosion, mudslides in Nepal, Bangladesh, Pakistan, and north India during the wet season and since the melting of the glaciers overlaps with the summer monsoon season, this will aggravate the flooding in the Himalayan attachments.78 Further, global warming would also cause disappearance of many glaciers which will severely affect the populations who are heavily reliant on the 7 main rivers in Asia sustained by melted water from the Himalayan glaciers.79 Resultantly, by 2050s, all over the Asian continent, as many as one billion people could be exposed to water shortage leading to drought and land degradation.80 In South Asia, the major impacts of climate change on health will be an increase in the occurrence and intensity of epidemics of malaria, dengue, and other vector-borne diseases while the global burden of diarrhoea and malnutrition, attributed to climate change, in

75 Nick Watts et al., The 2019 report of The Lancet Countdown on health and climate change: ensuring that the health of a child born today is not defined by a changing climate, Vol 394 Lancent Report 1836, (Nov. 16, 2019) https://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(19)32596-6.pdf. 76 Climate Change: Impacts, Vulnerabilities and Adaptation in Developing Countries, UNICEF (2007), https://unfccc.int/resource/docs/publications/impacts.pdf. 77 Ibid. 78 Supra 8. 79 Supra 8. 80 Supra 8.

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Southeast Asian countries like Bangladesh, Bhutan, India, Maldives, Myanmar and Nepal in 2000, is already the largest.81 Furthermore, India will be brutally crushed by continuing climate change due to its dependence on agriculture as a warming of 0.5 degree C is expected to take over entire India by the year 2030 and a warming of 2-4 degree C is going to terrorise Indians by the end of this century.82 That being said, children are generally left out of deliberations about suitable responses to climate change when they should be a centre of these debates because they have a much larger stake in the outcome than we do.83 Children are physically much more exposed to the direct effects of extreme heat, drought, and natural disasters as compared to the adults while the indirect effects can also derail children’s growth through conflict, vector-borne diseases, economic distress, undernutrition, migration, etc.84 Children, being the most vulnerable group in the society, usually suffer the most on every occasion concerning social turmoil and the severe impact of climate change will also affect them the most. The impacts of climate change on children have been discussed below.

A. EXTREME WEATHER AND NATURAL DISASTERS

Climate change leads to disasters and impacts the wellbeing of children directly. When a region is hit by a natural disaster such as floods, the damage caused to the property and assets, especially for vulnerable regions, is irreparable as homes may be completely or partially destroyed leading to vagrancy and destitution on a large scale. The constant damage to the natural buffers against natural disasters, mangroves in case of flooding, for example, jeopardises the lives, livelihood while triggering secondary calamities such as landslides. Further, it is often the children that are on the receiving end of high death rates, morbidity, injury, illness, etc. during and after a disaster and this is dependent on the socio-cultural aspect and the capacity to move to a safer location. Since children are greatly dependent on their elders for their survival, disasters can cause extreme physical and psychological distress to children. Moreover, impaired infrastructure and deteriorated housing conditions after a disaster can expose the children to the calamities which may take place in the future.

81 Supra 8. 82 India: The Impact of Climate Change to 2030 A Commissioned Research Report (April 2009), https://www.dni.gov/files/documents/climate2030_india.pdf. 83 Janet Currie & Olivier Deschênes, Children and Climate Change: Introducing the Issue, 26 (1) THE FUTURE OF CHILDREN 3, 4 (2016); Also available at: https://futureofchildren.princeton.edu/sites/futureofchildren/files/media/children_and_climate_change_26_1_ful l_journal.pdf. 84 Ibid.

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After a household is hit by a disaster, the households may cut off their expenditure towards the education of the children, nutrition, healthcare, etc. which will have a long-term effect on the development of the child. In some cases, the families may choose to discontinue schooling of their children as a result of acute financial distress caused by a disaster, and in some cases, the children may be pushed into labour activities to add on the support of their families. Disasters also have a tendency of destroying essential infrastructures such as medical & healthcare, education, transport and the availability of vaccination, immunisation may be disrupted leading to graver issues. Between 1990 and 2007, 66.5 million children annually were affected by disasters worldwide.85 Furthermore, child malnutrition following a disaster is also a concern of the international community and as per the estimates of the World Health Organization, between 2030 and 2050, climate change may claim the lives of approximately 95,000 children due to undernutrition because of damage to crops and the rising food insecurity.86 Also, malnutrition may lead to stunting, cerebral impairment and may also affect the development of in-utero and maternal health which would affect birth weight and overall health of the child. Also, millions of people living in the in low-lying coastal areas of south and Southeast Asia will be brutally affected by the rise in sea level and the occurrence of high-intensity tropical cyclones. Furthermore, sea-level rise due to climate change has the power to flood the dwelling of millions of people living in the low lying areas of South, Southeast and East Asia such as in Viet Nam, Bangladesh, India and China and 30 per cent.87 Coming to India, 40 million hectares, i.e. over 8%, of the Indian area is prone to floods, nearly 5, 700 kilometres is prone to cyclones, 68% area is susceptible to drought and 15% of the geographical area covering Himalayan range, Western and Eastern Ghats are prone to Landslides.88 Apart from these major threats that India is faced with, the country is also chronically prone to many other disasters such as heatwave, cold wave, hail storms, thunderstorms and lightning, coastal and sea erosion, biological hazards like epidemics.89 There are 169 districts prone to multi-hazards considering only floods, earthquake and cyclone as per the vulnerability Atlas of India 1997; however, the revised atlas of 2006 shows 241

85 Samantha Ahdoot & Susan E. Pacheco, Global Climate Change and Children’s Health, Vol. 136 (5) Pediatrics, (Nov. 2015), https://pediatrics.aappublications.org/content/136/5/e1468. 86 Climate Change and Children, UNICEF (Dec. 2007), https://www.unicef.org/publications/files/Climate_Change_and_Children.pdf. 87 Supra 8. 88 Sreeja S. Nair et al., Training Modules: Databases and Statistics for Disaster Risk Management, NATIONAL INSTITUTE OF DISASTER MANAGEMENT & DEUTSCHE GESELLSCHAFT FUR INTERNATIONALE ZUSAMMENARBEIT GMBH (2013), https://nidm.gov.in/PDF/modules/db%20stat.pdf. 89 Ibid.

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districts covering 20 states which are prone to multiple hazards.90 India experienced an average of 18 disasters per year between 2000 and 2014 and during the same period, 655 million people have been affected due to natural hazards in India, including climate-related hazards, claiming the lives of 71,000 and causing almost $54 billion in economic damage.91

Figure 1: Total number of deaths, affected people and total damage by disaster type in India, 2000–2014.92

45000 Figure 1 highlights 40000 the gravity of 35000 various disasters 30000 that hit India 25000 between 2000 and 20000 2014 and the loss 15000 10000 of life and 5000 property it caused.

0 Drought Earthquake Flood Storm The simple Total deaths 20 37,820 22,318 1,658 deduction leads us Total affected (millions)* 350 8 276 21 Total damage (US$m) 1,498.72 4,765.80 38,473.35 8,640.51 to believe that during such disasters, children suffer directly and indirectly- directly as they are also exposed to these threats and their survival is at stake and indirectly as they are susceptible to vagrancy and orphanhood if they lose their elders on the occurrence of such an event.

Also, 6.17% of the Indian forests are susceptible to severe fire damage, and out of 63 million ha. of forest area, around 3.73 million ha. is affected by fires on an annual basis as per the Forest Survey of India.93 Furthermore, heat waves are attributable towards evaporation of water resources at a faster rate, thereby, increasing the vulnerability of the Indian population (See Table A). Over 22,000 heat-related fatalities in India have taken place since 1992.

90 Supra 20. 91 Vidya Diwakar et al., Child poverty, disasters and climate change Investigating relationships and implications over the life course of children, CHRONIC POVERTY ADVISORY NETWORK (Mar 2019), https://www.odi.org/sites/odi.org.uk/files/resource-documents/12618.pdf. 92 Supra 23. 93 Dr. Sushma Guleria et al., Heat Wave in India Documentation of State of Telangana and Odisha, NATIONAL INSTITUTE OF DISASTER MANAGEMENT (2018), https://nidm.gov.in/PDF/pubs/heat_wave_18.pdf.

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Table A: Rising number of heatwave deaths in India since 1992.94

Year No. of Deaths 1992 612 1993 613 1994 773 About 580 1995 1677 heatwaves hit 1996 434 India. 1997 393 1998 1016 1999 628 2000 534 2001 505 2002 720 2003 807 2004 576 2005 1075 About 670 heatwaves hit 2006 754 India. 2007 932 2008 616 2009 1071 2010 1274 2011 793 2012 1247 2013 1216 2014 1677 2015 2422

Why are these statistics important and how they relate to children? These statistics are crucial to understanding the quantum of the problem the children of India are faced with and it can be understood by the following points where the relationship between the natural hazards/disasters and wellbeing of children is discussed: 1. Effect of climate change in utero and birth: In India, in disaster-prone areas: i. 90% of chronically underprivileged mothers had less than four antenatal visits compared with 85% elsewhere. 95 ii. 20% of chronically poor mothers accessed formal delivery care in disaster- prone compared with 22% elsewhere.96

94 Supra 25. 95 Supra 23.

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iii. 67% of babies in chronically poor households were registered compared with 77% elsewhere.97 2. Effect of climate change in children under the age of 5 years: In India, in disaster-prone areas, 11% of chronically poor children had diarrhoea in the two weeks preceding the survey compared with 6% elsewhere.98 3. Young children, i.e. between the ages of 6 and 14 years: In India, in disaster-prone areas: i. 84% of chronically poor children were enrolled at the time of the survey compared with 88% elsewhere.99 ii. Chronically poor children had on average 2.5 years of education compared with 2.4 years elsewhere.100

B. WATER SCARCITY AND FOOD INSECURITY

The threat posed to the nutrition and health of the world’s marginalised by climate change is undeniable. The weather pattern undergoes a change owing to the climate change which can lead to extreme draughts or flooding or both and both of these calamities bring along with themselves the decimation of a region’s food supply. The existing data asserts that developing countries like India which are mostly located in warmer regions and are majorly dependent on agriculture as a major source of income will be worst hit by changes in rainfall patterns, greater weather extremes and increasing droughts and floods.101 The quality and quantity of water supply is going to be affected with the change in precipitation patterns thus compounding the impact of poor water, sanitation, as well as malnutrition.102

96 Supra 23. 97 Supra 23. 98 Supra 23. 99 Supra 23. 100 Supra 23. 101 Supra 18. 102 Ibid.

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90 74.2 75.5 80 70 62.9 60 52.3 50 40 30 30 11.9 12.9 20 11.2 7 10.5 12.7 11.7 9.2 10 4.1 2.5 1.7 1 0.7 0.1 0.2 0 Latin America and Sub-Saharan Africa Asia Eastern Europe the Caribbean (18 countries) (18 countries) (6 countries) (6 countries) Water on 11.9 52.3 74.2 75.5 premises (%) Woman 15 years 62.9 30 10.5 11.7 or older (%) Man 15 years 11.2 12.9 12.7 9.2 or older (%) Girl under 7 2.5 1 0.1 15 years (%) Boy under 4.1 1.7 0.7 0.2 15 years (%) Figure 2: Percentage distribution of households by a person responsible for water collection by region and by rural area (2005–2007).103

Percentage distribution of households by person Figure 3: Percentage responsible for water collection by region's urban area distribution of (2005–2007) households by the 120 person responsible for 100 80 water collection by 60 region and by urban 40 104 20 area (2005–2007). 0 Latin America Sub-Saharan Asia and Eastern Europe Africa (18 countries) the Caribbean (6 countries) (18 countries) (6 countries) Water on Water scarcity is also a 51.5 83.9 98.1 95.6 premises (%) trigger towards other Woman 15 years 29 8.7 3.1 2 socio-economic or older (%) Man 15 years 10.2 5.3 4.9 2.3 problems as in most or older (%) Girl under 4.3 0.8 0.2 0.1 developing countries it 15 years (%) Boy under 3.1 1 0.4 0.1 is general children or 15 years (%)

adolescents, mostly women, are responsible for fetching water and, often, they are required to travel miles of distance for the same. Figure 2 represents the percentage of water present on- premises along with the individuals responsible for fetching water in rural areas while Figure 3 represents the same for the urban areas.

103 Engin Koncagül, Facing the challenges: case studies and indicators;UNESCO's contributions to the United Nations world water development report 2015, UNESCO (Mar 20, 2015), https://unesdoc.unesco.org/ark:/48223/pf0000232179. 104 Ibid.

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The per capita water availability statistics given in Figure 4 below are the national average figures; however, the status is quite different in the specific river basins and even though, with a probable per capita availability of 1,588 cu m/capita/year (CWC, 2010), India is not suffering from ‘water scarcity’ but it does fall into the category of a region under 'water stress'. While per capita water availability in Brahmaputra and Barak basin is very high, it is low in the river basins such as Sabarmati, west-flowing rivers in Kutch and Saurashtra including Luni, Cauvery, Pennar, etc.105

2000

1800 Figure 4: Average 1600 annual per capita 1400 availability of water in 1200 India.106 1000 800 Climate change will

600 render hundreds of 400 200 millions of people 0 without sufficient 2001 2011 2025 2050 Census census (Projected) (Projected) means to produce or Population (million) 1029 1201 1394 1640 Per capita Average annual 1816 1545 1340 1140 purchase food as the availability (m3/year) rising temperature and

unpredictability of rains will reduce crop productivity in vulnerable regions especially the developing countries. In India, where livelihoods of 61.5% population are heavily depended on rain-based agriculture, crop failure due to floods and drought will pose a grave threat to the survival of children and women.107 Further, 61 percent of land in India is arid and semi-arid, a slight alteration in weather conditions will lead to quick desertification in India. Also, Irrigation commission report indicates that there are 102 districts spread across 15 states of India which are chronically prone to drought.108 The number of children under 5 years of age who lost their lives in 2018 is 8,82,000 and 69 per cent of these deaths has been attributed to malnutrition (See Figure 5).

105 Water in India: Situation and Prospects, UNICEF, FAO and SaciWATERs (2013), http://www.indiaenvironmentportal.org.in/files/file/water%20in%20india.pdf 106 Supra 37. 107 Supra 18. 108 Supra 20.

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382 Figure 5: Food Grain and Low Demand 280 222 Feed Demand Projection in India.109 449 High Demand 291 224 Despite developments in the 0 100 200 300 400 500 nutritional status of High Demand Low Demand children, still, a substantial 2050 449 382 2025 291 280 number remains 2010 224 222 malnourished. The

nutritional status of children is calculated by taking three main indicators into account which are: i. height-for-age, i.e. stunting which represents chronic malnutrition; ii. weight-for-age, i.e. underweight representing the insufficient food intake and poor health status; and iii. weight-for-height, i.e. wasting which is a consequence of a recent period of starvation.

Figure 6: Percentage of Child Malnutrition (0-5 years) in India, 2015-2016.110

The present situation is horrific enough Underweight Stunted Children, Chilldren, 38.4 and climate change will further lead to: 35.7 i. Aggravated water stress to over a hundred million people due to Wasted decrease of freshwater availability Children, 21 in Central, South, East and Southeast Asia. ii. Aggravate the number and severity of glacial melt-related floods, slope destabilization followed by a decrease in river flows as glaciers disappear.

109 Supra 37. 110 Ministry of Statistics and Programme Implementation & The World Food Programme, Food and Nutrition Security Analysis, India, 2019 (March 2019), http://www.indiaenvironmentportal.org.in/files/file/Food%20and%20Nutrition%20Security%20Analysis.pdf

127 www.ijlra.com Volume 1 Issue 3| May 2021 ISSN: 2582-6433 iii. Decreases in crop yield for many parts of Asia putting many millions of people at risk from hunger. iv. Reduced soil moisture and evapotranspiration may increase land degradation and desertification. v. Northward shift in the extent of boreal forest in north Asia, although likely increase in frequency and extent of forest fires could limit forest expansion. vi. Coastal inundation is likely to seriously affect the aquaculture industry and infrastructure, particularly in heavily-populated mega-deltas.

C. VECTOR-BORNE AND INFECTIOUS DISEASES The adverse effects of climate change on children’s health due to change in temperatures, precipitation patterns, rising of the sea level, and extreme weather events are backed by substantial evidence and the immature physiology of children make them the most vulnerable section as an estimated 88% of the existing global burden of the diseases borne out of climate change befalls on the children below the age of 5 years in industrialized as well as developing countries.111

Pneumonia, 11% Fi gu re 7: Percentage of death of children other, 4% under 5 years of age Diarrhoea , 9% in India (2017).112

T he World Health Injuries , 3% Organization

NCDs, 3% estimates that in 2000

Preterm, 2% approximately 2.4 Congenital, 2% Meningitis, 2% percent of the worldwide diarrhoea and 6 percent of malaria, diseases that disproportionately affect young children in developing countries, was induced by climate change in some middle-income countries.113 Further, as per the estimates of the World Health Organization, in 2007, around 1.62 million children under the age of 5 years die of diarrhoea annually and most of these deaths are because of

111 Supra 17. 112 Countdown to 2030, Countdown Country Dashboards, http://profiles.countdown2030.org/#/ds/IND. 113 Supra 18.

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contaminated water.114 Climate change will aggravate heat stress and the occurrence of disease vectors severely affecting health. South Asia will witness a rapid increase in endemic morbidity and mortality due to diarrhoeal disease and cholera. Globally, diarrhoea is one of the main killers of children and is responsible for approximately 8 percent of all deaths among children under the age of 5 years in 2017 which means that over 1,300 young children die every day, i.e. approximately 4,80,000 children die in a year.115 Talking about India, as represented in Figure 8, diarrhoea is responsible for 9 percent of the deaths of children below under the age of 5 years.

Meningitis Figure 8: Percentage 2% of death of children between the ages of 0 Pneumonia and 28 days in India 5% Other (2017).116 6%

Approximately 638 Congenital million Indians still 11% defecate in the open, Preterm 44% thereby, in 2002, Sepsis 13% unsafe water and poor sanitation contributed

to 7.5 percent of total Intrapartum related events deaths and 9.4 percent 19% of total disability- adjusted life years in India.117 One-third of all deaths of all children under five years of age in India are due to diarrhoea and pneumonia and many more children who survive have weakened immune system because of diarrhoea, pneumonia, malaria, and worm infestations, and become underweight and malnourished which has a severe impact on their learning ability throughout their lives.118 In 2017, malaria severely affected the children under the age of 5 years and accounted for

114 Katherine M. Shea and & the Committee on Environmental Health, Global Climate Change and Children's Health, 120(5) Pediatrics (Nov. 2007), https://pediatrics.aappublications.org/content/120/5/e1359.full#ref-36. 115 Diarrhoeal disease, UNICEF Data (Oct. 2019), https://data.unicef.org/topic/child-health/diarrhoeal-disease/. 116 Supra 44. 117 Supra 37. 118 Ibid.

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61%, i.e. 2,66,000 of deaths in the world.119 Almost 80% of the malaria deaths worldwide, in 2017, were concentrated in 17 countries in African and India and 7 of these countries accounted for as many as 53% of the global deaths owing to malaria with India accounting for 4 percent of the global malaria deaths.120 Further, five countries, including India, accounted for half of all malaria cases worldwide and India was responsible for 4% towards the same. Although India reported 3 million fewer cases in the same period with a 24% decrease compared with 2016, 121 even one death is too many and climate change is estimated to aggravate the frequency and intensity of these diseases.

D. AIR POLLUTION Air pollution has the potential to permanently damage the brains of children through several mechanisms as damaging the blood-brain barrier which is a thin, delicate membrane that protects the brain by causing neuro-inflammation, and ultrafine pollution particles, i.e. particulate matter that is equal or less than 2.5 microns in diameter, can easily enter the bloodstream and travel through the body to the brain.122 Further, there exist several studies that highlight that polycyclic aromatic hydrocarbons, a specific class of pollutants which are a result of fossil fuel combustion are responsible for a loss or damage to the white matter found in the brain which is important towards assisting the neurons to communicate across different parts of the brain.123 The youngest children are most vulnerable to air pollution and a UNICEF analysis which was focussed on very young children concluded that nearly 17 million babies, i.e. children under the age of 1 year, are living in the regions of the world which are severely affected by air- pollution with outdoor air pollution, at least, six times the international limits and the majority of these babies, i.e. approximately 12 million, live in South Asia.124 Further, ambient air pollution (AAP) is ranked 5th in mortality and 7th in overall health burden among various other health risk factors in India and 10 out of the 20 most polluted cities in the world are in India which includes Delhi, Patna, Gwalior, Raipur, etc. according to the World Health Organisation (WHO) and the PM levels in three fourth Indian cities is often surpassing the National

119 WHO, This year's World malaria report at a glance, WHO (Nov. 19, 2018), https://www.who.int/malaria/media/world-malaria-report-2018/en/.

120 Ibid. 121 Supra 51. 122 Nicholas Rees, Danger in the air: How air pollution may be affecting the brain development of young children around the world, UNICEF (Nov. 2017), https://www.unicef.org/rosa/media/2846/file/Danger%20in%20the%20air.pdf. 123 Ibid. 124 Supra 54.

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Ambient Air Quality Standards (NAAQS).125 Further, in India, only 44 percent of households use clean fuel for cooking and fifty-five per cent of households in India use some type of solid fuel for cooking, with virtually all being wood or dung cakes.126

Figure 9: Percent distribution of urban, rural, and total households and de jure population by their use of cooking fuel characteristics, India, 2015-16.127

70 60

50 40

30 20

0 using Agric clean LPG Straw solid Coal ultur fuel Elect /natu Biog Keros Char Woo /shru Dung Othe fuel /lign al for ricity ral as ene coal d bs/gr cakes r for ite crop cooki gas ass cooki waste ng ng Urban (%) 1 78.3 1.3 2.5 1.3 0.6 12 0.5 0.4 1.5 0.5 80.6 16.4 Rural (%) 0.4 23 0.6 0.6 0.7 0.6 55.7 3.6 4.4 10.2 0.2 24 75.2 Total (%) 0.6 42.3 0.8 1.2 0.9 0.6 40.5 2.5 3 7.2 0.3 43.8 54.7 De Jure Population (%) 0.6 39.9 0.8 1 1 0.6 41.9 2.5 3.2 8.5 0.1 41.2 57.7

Figure 10: Percent 70 distribution of urban, rural, and total 60 households and de jure population by 50 their place of cooking, India, 2015- 40 16.128 30 1,00,000 children died 20 due to indoor air 10

125 Air Pollution and Health i n India: A review of the current0 evidence and opportunities for the future, CENTRE FOR ENVIRONMENTAL HEALT H (Jul. 2017), https://www.ceh.org.in/wp-content/uploads/2017/10/Air-Pollution- and-Health-in-India.pdf. -10 126 Balram Paswan et al., Nati In the In the NTERNATIONAL NSTITUTE FOR onal Family Health Survey (NFHS-4), 2015-16, I In a I house, house, no POPULATION SCIENCES, MINI STRY OF HEALTH AND FAMILY WELFARE, INDIA (2017),separate Outdoors Other separate separate http://rchiips.org/NFHS/NFHS -4Reports/India.pdf. building 127 Ibid. room room 128 Supra 58. Urban (%) 64.3 26 5.9 3.4 0.5 Rural (%) 40.9 35.9 11.6 11.5 0.2 Total (%) 49 32.4 9.6 8.7 0.3 De Jure Population (%) 49.3 32.1 9.9 8.6 0.1 131

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pollution in India in the year 2012 as approximately 60 percent of the Indian population is still dependent on solid fuels for cooking (See Figure 9 and Table C).129 Table B: Death rate per 1,00,000 children attributable to the joint effects of household and ambient air pollution in 2016, by WHO region and income level.130 Income level Children < 5 Children 5– years 14 years ow and middle- 184.1 12.9 income African countries Region High Income 4.3 1.4 Countries High Income 0.3 0.0 Countries ow and middle- 14.2 0.7 income Americas countries Low and 75.0 2.5 middle- South-east income Asia countries In India, even today a major part of the population is dependent on un-sustainable modes of energy owing to their socio-economic status (See Figure 7). In 2016, worldwide, one in every eight deaths was attributable to the joint effects of ambient and household air pollution, i.e. a total of 7 million deaths.131 In India, air pollution killed over 1 lakh children in 2016 as per WHO, i.e. a total of 101,788 deaths under the age of five years. Table C: Exposure of Indian Children to ambient and household pollution- 2016.

Exposure of children to ambient PM2.5 and burden of disease in India, 2016.132 Sex PM2.5 PM2.5 PM2.5 No. of DALY No. of DALYs No. of Death No. Dea exposure exposure exposure DALYs rate DALY rate deaths rate of th total rural urban (< 5 years) per (5–14 per 100 (< 5 per death rate (μg/m3) (μg/m3) (μg/m3) 100000 years) 000 years) 100000 s (5– per (< 5 (5–14 (< 5 14 100 years) years) years) years 000 ) (5– 14 yea rs) Both 65.2 55.9 68.0 5560430.5 4633.8 368945.7 145.6 60 987.2 50.8 4 360.5 1.7

F - - - 2996229.5 5270.4 205376.5 171.5 32889.5 57.9 2 441.7 2.0

M - - - 2564201.0 4060.6 163569.2 122.4 28097.7 44.5 1918.9 1.4

129 Nicholas Rees, Clear the air for children- The impact of air pollution on children, UNICEF (Oct. 2016), https://www.unicef.org/publications/files/UNICEF_Clear_the_Air_for_Children_30_Oct_2016.pdf. 130 Marie-Noël Bruné Drisse et al., Air Pollution And Child Health: Prescribing Clean Air, WHO (2018), https://apps.who.int/iris/rest/bitstreams/1157950/retrieve. 131 Ibid. 132 Supra 62.

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Exposure of children to household PM2.5 and burden of disease in India, 2016. 133

Sex Househo Househo No. of DALYs No. of DALYs No. of Death No. of Death lds lds DALYs rate DALYs rate deaths rate deaths rate per that rely that rely (< 5 years) per (5–14 per 100 (< 5 per (5– 100 000 primaril primaril 100000 years) 000 years) 100000 14 (5–14 y on y on (< 5 years) (5–14 (< 5 years) years) clean polluting years) years) cooking Fuels (%) fuels (%) Both <5 59 6098660.0 5082.3 398523.0 157.3 66890.5 55.7 4711.7 1.9

F - - 3286253.8 5780.6 232061.8 193.8 36073.1 63.5 2758.9 2.3

M - - 2812406.5 4453.7 166461.2 124.6 30817.4 48.8 1952.8 1.5

Joint effects of exposure of children to ambient and household PM2.5 and burden of disease in India, 2016.134 Sex No. of DALYs rate No. of DALYs rate No. of Death rate No. of Death rate DALYs per 100 000 DALYs (5 - per 100 000 deaths per 100 000 (<5 deaths (5 -14 per 100 000 (< 5 years) (< 5 years) 14 years) (5 -14 years) (<5 years) years) years) (5 -14 years) Both 9280411.0 7733.8 612021.7 241.6 101788.2 84.8 7234.4 2.9

F 5000735.5 8796.4 346992.9 289.8 54893.0 96.6 4125.3 3.4

M 4279675.5 6777.2 265028.8 198.3 46895.2 74.3 3109.1 2.3

Further, there is sufficient data to support the statement that maternal exposure to ambient pollution results in a stillbirth, pre-term birth and/or the birth of a congenital child. The links between climate change, air pollution and infant and child health are also increasingly being studied, with growing concern for the health and well-being of future generations.

E. IMPACTS ON MENTAL HEALTH

“The human symptoms of climate change are unequivocal and potentially irreversible— affecting the health of populations around the world today”- The Lancet Countdown on Climate Change and Health, 2017. UNICEF has declared that the quality of a child’s environment is a key determinant of whether a child survives the first year of life.135 Apart from the above-discussed impacts of climate change on children, climate change also impacts, quite severely, the psychological stability and growth of children. Abrupt and sudden change in climate and/or after a disaster, a child may experience anxiety, major depressive disorder

133 Ibid. 134 Supra 62 135 Susana Sanz-Caballero, Children’s rights in a changing climate: a perspective from the United Nations Convention on the Rights of the Child, 13 ETHICS SCI ENVIRON POLIT 1, 5 (2018); Also available at: https://www.int-res.com/articles/esep2013/13/e013p001.pdf.

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(MDD), depression, vicarious trauma, survivor guilt, suicidal tendencies, post-traumatic stress (PTSD), etc. To elaborate, rise in the temperature may cause crop-failure and/or water- shortage, which could further aggravate economic distress; thereby, affecting the temperament of individuals and causes an increase in violent tendencies and domestic violence which could have a deep psychological effect on a growing child. Further, studies show that increasing temperature and vapour pressure were linked with a significant increase in high distress.136 Trauma associated to extreme climatic conditions like floods, hurricanes, wildfires, heatwaves, snowstorms, etc. can have a direct psychological effect on children and the environmental, social and economic disruptions attributed to climate change can indirectly effect on the mental health and well-being of children.137 Extreme heat events and humidity have been noted to increase hospital admissions for mood and behavioural disorders, including schizophrenia, mania, and neurotic disorders and the scholars in the field note that heat-related mental health morbidity tends to occur most often in people with impaired thermoregulation, namely people with pre-existing mental health illness and problems, people taking prescription medications (specifically lithium, neuroleptic and anticholinergic drugs), and those with substance abuse (alcohol and drugs) problems.138 Further, extreme heat is also linked with an increased risk of wildfires, which also directly impact mental health and cause psychological distress and depression.139

CONCLUSION: Climate change cannot be seen as an isolated event as it affects every aspect of every human being. Children deserve to be born and grow in a world free from the extreme and life- threatening effects of climate change. This paper has tried to highlight the various threats that climate change exposes the children to. The overwhelming data on the risks and reasons for climate change is right in front of us, therefore, the inadequacy in taking an action is an injustice to all the children all over the world. However, the direct impact of climate change on children in India is still a study not strictly undertaken by the Government of India and it is worrisome. The threats climate change poses on to the children of India to have not been specifically quantified and immediate attention towards the same is required. We need to act now. Concluding with the Giddens Paradox which states that “since the dangers posed by global warming aren’t tangible, immediate or visible in the course of day-to-day life, many will sit on their

136 Haris Majeed et al., The impact of climate change on youth depression and mental health, 1 (3) 94, (2017); Also available at: https://www.thelancet.com/journals/lanplh/article/PIIS2542-5196(17)30045-1/fulltext. 137 Katie Hayes et al., Climate change and mental health: risks, impacts and priority actions, NCBI (Jun. 1, 2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5984805/. 138 Supra 69. 139 Supra 69.

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hands and do nothing of a concrete nature about them. Yet waiting until such dangers become visible and acute—in the shape of catastrophes that are irrefutably the result of climate change—before being stirred to serious action will be too late”.

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RIGHT TO PRIVACY, vis-à-vis THE PERSONAL DATA PROTECTION BILL, 2019 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021

By : Mansi Mankotia

RIGHT TO PRIVACY & THE PERSONAL DATA PROTECTION BILL, 2019 The Constitution of India doesn't expressly give right to privacy in its content. Though, Indian courts had considered the supplication that privilege to privacy is an essential right while thinking about differed instances of State activity against singular protection. In M.P. Sharma v. Satish Chandra,140 an eight-Judge Bench of the Supreme Court of India while analyzing an inquiry whether court order gave under Section 96(1) Cr.P.C141 is ultra vires Article 19(1) (f), held that privilege to privacy isn't ensured by the Constitution of India. Another significant judgment worth talking about is the minority/contradicting judgment of the Supreme Court conveyed by K. Subbarao and K.C. Shah, JJ. in Kharak Singh v. Territory of Uttar Pradesh142, where they perceived the privilege to protection as a central right under Articles 21 and 19(1)(d) of the Constitution of India. In this matter, the Court was thinking about of the legitimacy of the arrangements of the U.P. Police Regulations for day by day reconnaissance. The solicitor was blamed for dacoity and was later cleared. The lion's share judgment in the matter held that privilege to privacy doesn’t exist under the Constitution. At that point come the most commended judgment in K.S. Puttuswamy v. Association of India143, where the issue of privacy was talked about considering the Unique Identity Scheme. The inquiry under the steady gaze of the Court was whether right to protection is ensured under the Constitution and on the off chance that it is the wellspring of such right, given the way that there is no express arrangement for privacy in Indian Constitution. This judgment denoted a takeoff from the earlier statute in its reasonable and unambiguous

140 M.P. Sharma v. Satish Chandra, 1954 SCR 1077. http://www.scconline.com/DocumentLink/68mt5dT9 141 Code of Criminal Procedure (Act V of 1898) 142 Kharak Singh v. State of Uttar Pradesh, (1964) (1) SCR 332. http://www.scconline.com/DocumentLink/FD3qAsEl 143 (2017) 10 SCC 641.

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revelation that there is a basic right to protection under the Constitution of India. With regards to this article, this judgment is critical as 'right to protection' was conceptualized as a privilege in itself, interestingly. There were endeavors from the public authority, throughout the most recent decade towards defining an information insurance law. In 2012, a gathering of specialists established by the Planning Commission under the chairmanship of Justice A.P. Shah suggested institution of the Privacy Act and gave a draft.144 Furthermore, the Department of Personnel and Training which was the nodal authority chipping away at a privacy/information insurance enactment, made at any rate two unique drafts, one out of 2011 and another in 2014. None of these endeavors were effective because of an absence of political will. In Puttuswamy case145, it was held that enlightening privacy is a feature of the privilege to protection. In the said judgment, there was a further order to the Union Government to look at about bringing a powerful system for information insurance, adjusting singular interests and authentic State concerns. The Government reacted by setting up a Committee of Experts headed by Justice B.N. Sri Krishna to consider different issues identifying with information privacy in India and proposes a Draft Data Protection Bill. In September 2019, the MeitY146 likewise set up a specialist board under the executive boat of Shri Kris Gopalakrishnan (Co-organizer of Infosys) to give proposals on the administration structure for non-individual information. On 11.12.2019, India's Minister for Electronics and Information Technology presented the Personal Data Protection Bill (PDP Bill) in Lok Sabha as Bill No. 373 of 201923. A goal moved by Union Minister Ravi Shankar Prasad was passed by Lok Sabha by a voice vote and the Bill was then alluded to a Joint Select Committee comprising of 20 individuals from Lok Sabha and 10 from Rajya Sabha147. The PDP Bill ponders an uncommon change in information assortment and handling rehearses in India. Up until now, both the private area and the state have worked in a generally unregulated space, where they don't need to stress over governing rules and cycles to ensure the privacy interests of the residents. In any case, the Personal Data Protection Bill, 2019 is as yet on hold for above and beyond a year currently, apparently stuck during the time spent being surveyed by a Joint Parliamentary Committee. Effectively set up are the Information Technology (Reasonable Privacy Practices

144 Report of the Group of Experts on Privacy Constituted by Planning Commission of India under Chairmanship of Justice A.P Shah, Former Chief Justice, Delhi High Court, available at https://www.dsci.in/content/report-group-experts-privacyconstituted-planning-commission-india, 145 (2017) 10 SCC 641. 146 Personal Data Protection Bill, 2019 http://www.scconline.com/DocumentLink/A3yGRo3e 147 Anurag Vaishnav, ‘The Personal Data Protection Bill, 2019: All you need to know”, available at https://www.prsindia.org/theprsblog/personal-protection-of-data-bill-2019-all-you-need-know

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and Procedures and Sensitive Personal Data or Information) Rules, 2011, proclaimed under the Information Technology Act, 2000 (IT Act), which explicitly manage the insurance of "touchy individual information or data of an individual". On 4 January 2021, WhatsApp reported its new protection strategy for India. Because of this protection update, WhatsApp will get authorization to impart to Facebook the metadata of clients and their messages with business accounts. WhatsApp could make this stride in India and not in the European Union since India doesn't have a powerful information privacy system. Subsequent to getting a great deal of reaction from the media and overall population, WhatsApp had prior this year chose to push back its refreshed protection strategy from kicking in from the initially planned date of February 8, 2021, to May 15, 2021. The issue with the up-degree of the application's current privacy strategy is the condition that if a client needs to keep utilizing the application, they should consent to their metadata being utilized by WhatsApp, its parent organization Facebook, and any outsiders they are managing, whether or not the client has a record on or utilizes these different stages. Prior, clients of the application could decide to quit such information sharing, however the refreshed privacy strategy makes it compulsory. Clause 11(2) (c)148 of the PDP Bill says that information administrators should give explicit assent. Provisions 5 and 6 order that the information guardian can gather information just for the reason to which the information chief has agreed. Nonetheless, WhatsApp can undoubtedly sidestep these arrangements. It can contend that clients have explicitly agreed to leave their metadata alone used to work with the informing administration and imparted to Facebook. In this manner, WhatsApp safeguard may be that it isn't covering a single thing from the client. The issue with this protection update is that it doesn't leave a lot of decision for the client or the information head. A client can either dismiss the terms of administration inside and out, in which case they would be not able to send messages on WhatsApp. Or on the other hand a client should agree to their information being utilized for the two purposes. Clause 11(3) (c)149 requires the information guardian to take assent for handling touchy individual information independently for each extraordinary reason. This arrangement might have kept WhatsApp from taking assent for the two purposes together, on the grounds that the metadata and visits with a business account that WhatsApp would have had the option to impart to Facebook could uncover delicate individual information like wellbeing data, sexual

148 Personal Data Protection Bill, 2019 http://www.scconline.com/DocumentLink/A3yGRo3e 149 Ibid

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direction, and so forth Notwithstanding, to guarantee a secure component against tech monsters like WhatsApp it is attractive to make the arrangement more complete by broadening the ambit of this arrangement past touchy individual information to incorporate all close to home information. Consequently, an arrangement like Article 7(2) and Recital 32 of the European Union's General Data Protection Regulation (GDPR) should be embedded in the PDP bill. It would require the information guardian to take assent for gathering and preparing all close to home information independently for each irrelevant reason. It would give more noteworthy control to the information head over their information. Clause 11(4)150 forbids the information trustee from denying merchandise or administrations to information directors in the event that they won't assent for preparing information that isn't needed to give those labor and products. Thusly, WhatsApp couldn't have denied informing administrations to its clients simply in light of the fact that they wouldn't agree to the assortment and preparing of their metadata, something that isn't important to give informing administrations. Clause 40151 of the PDP bill is especially perilous and could be impeding to the information privileges of the clients of WhatsApp. This arrangement engages the Data Protection Authority to remember certain information trustees for an administrative sandbox who might be excluded from the commitment of taking the assent of the information head in preparing their information for as long as a day and a half. The GDPR doesn't have any arrangement identified with the administrative sandbox. Such a sandbox may be needed to give relaxations to specific companies, for example, those that arrangement with Artificial Intelligence so they can test their innovation in a Sandbox climate. In any case, it is a generally acknowledged practice that in a decent administrative sandbox the clients whose information is taken willfully take part in the activity. Such a condition is through and through discarded by this arrangement. The power that needs to survey the applications for incorporation in an administrative Sandbox is the Data Protection Authority (DPA). The individuals from the DPA are to be chosen by officials serving under the Union government. Thus, it can't be relied upon to work autonomously of government control (Clause 42(2))152. The DPA can allow the incorporation of an information guardian in the sandbox to advance, in addition to other things, "any arising innovation out in the open interest". This makes the arrangement dubious on the grounds that no rules have been set

150 Personal Data Protection Bill, 2019 http://www.scconline.com/DocumentLink/A3yGRo3e 151 Ibid 152 Ibid

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down for the DPA to decide if an "arising innovation" is in the "public interest". Considering this, many dread that it's anything but an outlandish fear that tech monsters, for example, WhatsApp could connive with the public authority to make gifts in races and as a compensation course of action utilize their impact to get endorsement from the DPA for consideration in the Sandbox. The enactment likewise accommodates individuals whose information is being gathered to demand data on it from "information guardians". An information trustee is any individual, state or organization that decides the reasons and methods for preparing individual information. The information chief will reserve the privilege to see their information in a reasonable, compact, clear, and organized organization. The invoice defines important and touchy records and calls for positive styles of records to be saved handiest in India. This is in keeping with pre-current protections which include the Reserve Bank of India’s requirement for nearby garage of payment-associated records. The localization mandate got here into impact in 2018; however organizations which include Google and WhatsApp have taken more than a year to conform to the mandate. Sensitive records pertain to health, spiritual beliefs, politics, biometrics, sexual orientation, price range and so on. The invoice shows the authorities need to have get right of entry to these records within side the hobby of protection. This has triggered concern, for it can enhance the ability for surveillance with the aid of using the country and what's taken into consideration a country wide protection trouble can generate a great deal debate and little consensus. With the modifications the brand new WhatsApp coverage seeks to introduce, the most important purpose of concern—although the invoice turns into regulation—is the dearth of safety of “non-public records”. Separate pleas have been filed earlier than the Supreme Court and the Delhi High Court hard this privacy coverage in advance this yr as well. In each case, the respective courts issued note to WhatsApp and Facebook. Currently, the problem is being heard with the aid of using the Delhi High Court, in which WhatsApp has claimed that it’s up to date coverage doesn’t violate any Indian legal guidelines, presents extra transparency on its records practices, and is even higher than enterprise standards. A thrilling factor of this privacy coverage replace is that it applies handiest to India. On the alternative hand, European WhatsApp customers won’t ought to fear approximately their metadata being shared with Facebook and different 0.33 parties. This is due to the sturdy records law legal guidelines in Europe, and the couple of consequences confronted with the aid of using Facebook in Europe within side the beyond few years because of records privacy violations. The records safety vacuum does now no longer imply the WhatsApp privacy coverage will

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pass unchallenged. The privacy coverage replace also can be visible as a fashionable settlement considering the fact that its customers do now no longer have the choice to barter the phrases of carrier: they both ought to be given the phrases in toot or reject them altogether. Though the Indian Contract Act, 1872 does now no longer differentiate among a fashionable shape of settlement and a regular settlement, the judiciary has advanced standards that need to be reputable given the unequal bargaining energy among the parties. When a individual “has no desire or as an alternative no significant desire” apart from signing at the dotted line and accepting the unfair clauses of a settlement, then this sort of settlement need to be taken into consideration unreasonable and unconscionable. The WhatsApp privacy coverage operates within side the identical manner as it does now no longer supply any desire to a person to simply accept the phrases with a few reservations or disable any functions that allow the sharing of metadata. The Supreme Court held in 1995 that it's miles highly obnoxious for a party to have the choice to both signal a settlement with unreasonable phrases or forego the settlement altogether and that this sort of settlement ought to be declared void. However, figuring out how affordable phrases of carrier are is fairly subjective and leaves quite a few scopes to numerous judicial interpretations. This is especially worrisome thinking about the latest oral observations of the Delhi High Court. The courtroom docket implicitly underplayed the privacy worries of customers while it stated, “It isn't obligatory to down load WhatsApp for your cellular and its miles voluntary. If you need to select now no longer to down load WhatsApp, you can.” Therefore, a complete and particular statutory backing to the privacy rights of records principals is required. The PDP invoice targets to test the powers of the records fiduciary with the aid of using strengthening consent specificity and reason dilemma in India’s records safety regime. Privacy advocates have stated that India’s non-public records safety (PDP) invoice need to consist of provisions to defend residents from arbitrary amendment of phrases of carrier with the aid of using intermediaries, following the debate over WhatsApp present day privacy coverage replace With Blockchain gaining a great deal area at the virtual front, it must be realized that the PDP Bill is a fiduciary-centric mechanism. This manner it calls for a 0.33-celebration middleman who could be held liable for records manipulation. However, Blockchain era is a peer-to- peer-centric mechanism, which means there may be no 0.33-celebration middleman. Thus, there could be no requirement of a PDP Bill for governing the Blockchain. With numerous boards becoming Blockchain, now there are Blockchain engines like Google and Blockchain social media websites. IT RULES, 2021

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The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021,153 typically termed as the brand new IT Rules 2021, come into impact from May 26, 2021. While the brand new regulations for social media structures and massive virtual structures have been introduced in February this yr, a three-month window turned into given to them to conform with those guidelines. The new regulations require massive social media structures - described as people with over 50 lakh registered customers - like Twitter, Facebook, Instagram, WhatsApp and Koo to comply with extra due diligence, such as the appointment of a first-rate compliance officer, nodal touch individual and resident criticism officer. When a middleman fails to have a look at those regulations, the provisions of sub- phase (1) of phase seventy nine of the Act shall now no longer be relevant for such middleman and the middleman will be answerable for punishment beneath any regulation in the meanwhile in pressure such as the provisions of the Act and the Indian Penal Code”. The phase seventy nine especially offers virtual media structures which include Facebook, Twitter, YouTube and WhatsApp prison immunity in a manner towards legal responsibility for posts made on their networks, 0.33 celebration records or records. That prison immunity could be withdrawn if non-compliance turns into a trouble. CONCLUSION Data is an effective tool. In the incorrect hands, it has the ability to even flip elections. This is why we want a sturdy prison device round records use and the way government can alter it. In 2017, a nine-decide Supreme Court bench in KS Puttaswamy vs. Union of India (or the proper to privacy case) affirmed privacy as a essential proper. Over 80 international locations such as India have additionally known the developing significance of records safety and feature driven for legislations. In the Budget Session of Parliament subsequent month, a Joint Parliamentary Committee is anticipated to desk its record at the Personal Data Protection (PDP) Bill, 2019. India’s proposed regulation defines “non-public records” as records approximately or referring to a herbal individual who's at once or not directly identifiable, having regard to any characteristic, trait, characteristic or another characteristic of the identification of such herbal individual, whether or not on line or offline, or any aggregate of such functions with another records, and shall consist of any inference drawn from such records for the reason of profiling. Our each transaction at the internet, from a social media submit to a piece of writing we read, always generates records.

153 Available at https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rul es-2021.pdf. last visited on May 27, 2021

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Companies use these records to make on line consumption “easier” for us. They examine billions of records factors to curate content material which their algorithms are programmed to trust are well-applicable to us. The proposed PDP invoice, which codifies the records safety standards of reason and garage dilemma, and proposes a courting of accept as true with among folks and entities accumulating or shifting their records, might also additionally limitation sharing or switch of records for motives which do now no longer at once relate to why it turned into collected. Right now, we can't come up with the money for to watch for PDP. By the time it reaches the authorities, and that they make modifications and area it earlier than the Parliament, quite a few water could have flown beneath the bridge. Using non-public records, organizations and the authorities can pick out the people indulged in certain activities approximately, as came about in the country at several events in past few years, using the facial recognition techniques.

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Legal Personality & Artificial Intelligence

By : Nishita Kirty B.A.LLB (H) 3rd Year, 6th Semester GITAM School of Law GITAM University

Table of Contents: S. No. Title Page No. 1. Abstract 3 2. Introduction 4 3. Should AI be Granted Personhood? 5 4. Rights and Duties of a Person to an AI 7 5. Liability as a Person to an AI 9 6. Right to Privacy and AI 10 7. Conclusion 11 8. Bibliography 12

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Abstract The first ones who come to our mind when we hear the word person are humans and in a lay man’s language it’s not even wrong to say that but legally the word person is very broad. The world is growing faster with technology. Now, we have services online which were unimaginable two decades back. Artificial intelligence (hereinafter referred to as AI) is one such example. Nobody ever imagined in those days that a computer can read their mind or understand their activities in such a manner as the AI is doing in the current scenario. Scientifically it may look smart and cool but legally at times it is scary also. In the contemporary world where we have started relying on AIs the question which is gaining prominence is that whether we can give legal personality or personhood to an AI. To answer this question and to narrow down the scope the term AI here refers to the humanoids. Robots who are like humans or who work like humans. When we talk about personhood or legal personality it broadly means a body having rights, duties, liabilities and maybe citizenship also. This paper will deal with all these questions regarding an AI.

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I. INTRODUCTION

The term person has been derived from a Latin word persona which simply meant a mask but later on recognized as personality. There is also a difference between natural persons and legal persons. Section 11 of Indian Penal Code 1860 defines person and it states that the term person “includes any company or association or body of persons whether incorporated or not”. This definition is an inclusive one and expands the meaning of the term persons. There are various jurists also who have defined the term persons in their own way. Some of those definitions are as follows: Salmond: “A person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not and no being that is not so capable is a person, even though, he be a man.”1 In earlier days also the definition of person was not only confined to humans and mere being a human also did not imply personhood. Slaves are of the examples that were humans but were not treated as persons as they did not have any rights and duties, whereas animals and trees were given personhood in Greek laws. Idols were also considered as persons when the Hindu laws prevailed. Over the period of time with development in the concept of law the term also gained a broader meaning jurisprudentially. Idols, dead persons, rivers, animals, unborn persons and many more were included under the umbrella of the term person. According to Britannica “Artificial Intelligence is the ability of a digital computer or computer controlled robot to perform tasks commonly associated with intelligent beings”. In the current times AI has gain importance in the world. In some of the places of work it is also replacing humans. It can also be found in common places such as hotels or restaurants having robots as waiters or assembly line of a car manufacturer can be done by robots. By giving a glance at the definition of AI it can be understood that it is a kind of replacement to the human intelligence. Now, the question is that whether it can be given the legal status of a person because it is made to substitute an intelligent being to do the task done by them, when a human does something it has both rights and duties as well as liabilities towards the other beings also. So, with the same analogy can we make then equivalent to humans and give them rights, duties and liabilities against all.2 II. SHOULD AI BE GRANTED PERSONHOOD?

As we have discussed earlier that personhood or legal personality is a body of individuals having certain kinds of rights and duties as well as some liabilities towards the fellow beings. There is a huge difference between personhood and humanism. A human being is consists of physical, mental as well as emotional attribute. When

1 V. D. Mahajan, Jurisprudence & Legal Theory, 2020 (5th Edition). 2 Shubham Singh, Attribution of Legal Personhood to Artificially Intelligent Beings, Bharati Law Review, 194. 146

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we talk about AIs specially humanoids we can see that they can be given a physical body like a normal human being, they can also be given a functional mind but whether they can be embodied with emotions is the real question here. When we talk about personhood of company we also sub consciously know that a company is run by humans, it cannot take decision on its own, same goes with other associations also but in case of an AI they sometimes tend to take their own decisions because they are designed in such a manner. Now with the point of designing we can say that they have a master who takes decisions on their behalf. But it cannot be held true in all the cases. What if they don’t listen to their masters, will that become an infringement of their rights. And if they do listen to them the concept of vicarious liability will come into picture in such a scenario.3The AI will be capable of being an agent but that can be misused too. It is known to us that AIs are made to substitute human needs like in case of lack of labour or maybe a particular kind of workers required by a company. Human beings cannot be manufactured according to the needs and wants of the business but a humanoid can be. The only difference is that we cannot make them think or dream or maybe feel. Emotions are one of the reasons which lead morality and when we talk about personhood or legal personality somewhere the drive is towards ethics and morals. When we say that we should not kill someone it means it is unethical or immoral for a human being to harm another or to take life of other. But this cannot be explained to a humanoid because they cannot understand the meaning of life.4 Kelson’s theory of personality also states that personhood is a ‘technical personification’ for the reason of asserting rights, duties and liabilities in a body. It is also not necessary that the AI has to be in some physical form. The best example is the Google assistance or some other form of assistance given on android and apple gizmos. It is a body which reads our activities and help us in our common household like a house help, can that be granted personhood and be held liable for its activities or we can claim rights against it. With all the discussions above we can understand that AIs are a new concept and to fit them in the consideration to give them legal personality is difficult. There are a lot of areas which are vague when it comes to the idea of giving legal personality to Artificial Intelligence. Since a long time it has been a debate that creation of science can be both boon as well as a bane. We can agree to give personhood to an AI but we also need to understand the limits to draw a line so that it does not threaten the mere existence if mankind. At the end of the day we all know that they are made by humans and can also be used to destroy humans. Furthermore we also know that to constitute legal personality there has to be three conditions which need to be fulfilled either directly or indirectly and we have to recognize that whether AIs fulfill even one of those conditions.

3 Journal of Critical Reviews, “Artificial Intelligence, Legal Personhood and Determination of Criminal Liability, December 25th, 2019, Available at: http://www.jcreview.com/fulltext/197-1578481214.pdf, Last Accessed: May 01st, 2021. 4 Cambridge University Press, “Artificial Intelligence and the Limits of Legal Personality”, September 21st, 2020, Available at: https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/artificial-intelligence-and-the-limits-of- legal-personality/1859C6E12F75046309C60C150AB31A29, Last Accessed: May 01st, 2021. 147

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III. RIGHTS AND DUTIES AS A PERSON TO AN AI

Rights and Duties are two concepts which go hand in hand. To understand the validity of AIs giving AIs rights and duties we first need to see what rights and duties mean or are defined by legal thinkers. According to Gray “legal rights are that power which a man has to make a person or persons do or refrain from doing a certain act or certain acts, so far as the power arises from society imposing a legal duty upon a person or persons”. Now to understand it in a better manner we can also take a glance at the essentials of a legal right” • There has to be person is the very first essential of a legal right and we discussed earlier also that there are many vague and mere assumptions which cannot be taken into consideration label an AI as a person. It is vested on a subject but when we all know that AI has a master can it be called a subject or it is only an object remains a question to ponder upon. • The next point is that the rights must be against the corresponding duty of other persons to oblige with and in the case of an AI a corresponding duty cannot be proved as it is merely considered as a machine. The person who has made the AI can have certain rights and corresponding duties against it but by the same analogy we cannot say that other persons also have a duty towards a body of machines which may physically or mechanically work like living beings but is governed by the mind of somebody else. • The third essential is that there has to be an object or subject matter of that right. In this case the AI itself is the subject matter of the right of the creator of it. Such as right to claim patent that is intellectual property right over an AI made by any person. • Another element is the substance of the legal right that is to do or forbear from doing an act. The example for it is the right to vote which is a right which compels the holder of it to do an act but in order to do it the holder must form an opinion before doing it which is somewhere related to the emotional attribute again and we have not developed the technology yet so much that we can inbuilt or internalize emotions into robots. • The fifth element is about the title or owner of the right. Most of the AIs are owned by someone else so they are not even independent. But this can be contradicted by saying that a minor or an unborn person or even an idol are not independent being but the thing is they are not even asking for independent rights but in case of an AI we are discussing to give them independent rights form that of their owners. Like right to hold property, to gift, to inherit and many more.5

There are various contradictions to these points also like International law recognizes the existence of self-

5 Supra Pg. 7-1. 148

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enforcing contracts against the AIs but in Indian Law legal persons is only competent to contract and also about them being bound by the terms of the contract and not breaching them. There are other instances also such as while they are employed or recruited to work in companies and restaurant chains they also have the right to enforce the terms of employment like other employees but it is also not addressed properly and remains a vague arena.6 As per Salmond “A duty is an obligatory act that is to say, it is an act opposite of which would be a wrong. Duties and wrongs are correlatives. The commission of a wrong is the breach of a duty and the performance of a duty is the avoidance of wrong”. To begin with the idea of duties of AIs the very first argument is that duty is the correspondence of rights and in this case the presumption of AIs having rights is also uncertain so the question of duties also remain an uncertain task. When we provide a data in any online platform the companies use AIs to take that data for advertising or various other purposes. Now the question is that whether it is the duty of the AI or company to protect that its customers from any violation. The answer to this question is that it is the duty of the company policy to not to infringe the right to privacy which is the fundamental right of an individual so it is clear that the AI does not hold any duty independently even in this scenario.

IV. LIABILITY AS A PERSON TO AN AI

As per the definition given by Salmond “Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong”. According to Markby “The word liability is used to describe the condition of a person who has a duty to perform. This means that liability rises when there is a duty of a person to do an act or abstain from doing, breaches such duty. There are two elements which are required to be fulfilled before liability can arise i.e., Act and Omission or forbearance contrary to law. To constitute an act there has to be certain conditions which are required to be satisfied. Those conditions are the following: • Mental or bodily activity of the doer which means at the time of commission of an act what was the act done (Actus reus) and what was the intension behind doing such an act (Mens rea). Now, in the case of an AI the presence of actus reus can be seen which it can do on its own also but the mens rea or the intension of the AI can be found lacking. In some cases the mens rea of the developer of the AI can be seen working in the AI because he can command the AI to do an act which he wants to accomplish. The idea of misuse of the technology can also be derived from this.

6 The National Law Review, “When to Give Legal Rights to AIs? When They Can Dream”, Available at: https://www.natlawreview.com/article/when-to-give-legal-rights-to-ais-when-they-can-dream, Last Accessed: May 01st , 2021. 149

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• Circumstance of the act is the condition in which the body that is committing an act must understand the circumstances under which the act is being done. If the circumstance of the act is in accordance with the • programming of the AI then it will function properly but if there is any inevitable situation the AI cannot react on its own towards it and may create a greater problem. • Consequences of the act are the end results of doing an act. While performing an act the person should understand the consequences of doing such an act but as discussed earlier in the case of an AI it is incapable of understanding the end results of the act done by it because it works on the way it is designed and not on its own mind.7

There can be an argument that in case of a company or association or idol also the subject is not an intelligent living being. The answer to that argument is that the company or association is actually a bundle individuals involved in it. In case of an idol also there is a presence of trust which is a body of human beings who may not be the developer of that thing but in case of an AI it is either the developer or the patent holder who is generally the master of such an AI and can misuse it for their personal gain because they have the command over the activities of the AI. One more perspective to it is that in case of other things which are given legal status of a person even if they misuse it they are not threat to mankind but in case of an AI which is a scientific creation to substitute for an intelligent being it can be threat to the mankind also.8

V. RIGHT TO PRIVACY AND AI

There is more issue that is being raised by many legal philosophers is the hindrance if AI in our privacy. India under Article 21 of the India Constitution, 1950 guarantees the right to privacy as the fundamental right of a human being. When we fill a form for any competitive examination or views or search certain things on online platforms we automatically start getting messages or advertisements regarding the same thing that we searched for and it is a known fact that it is the work of an AI that is reading our activity. The landmark judgement of Justice K. S. Puttaswamy (Retd.) v. Union of India9 which identified right to privacy as the fundamental right was also regarding the usage of Aadhar card information working through the concept of information technology and usage by AI.10 Without even giving them any status they are already being misused and it is becoming difficult to draw a line between the boon and bane of AI on digital platforms then it is not very difficult to determine that it can become a threat to all of us.

7 Supra Pg.-7-1. 8 Computer Law and Security Review, “Is it possible to grant legal personality to artificial intelligence software systems?”, Available at: https://doi.org/10.1016/j.clsr.2017.03.022, Last Accessed: May 01st, 2021. 9 Justice K. S. Puttaswamy (Retd.) v. Union of India, Writ Petition (Civil) No. 494 SC 2012. 10 Ministry of Electronic and Information Technology, “India”, Available at: https://indiaai.gov.in/country/india, Last Accessed: May 01st, 2021. 150

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Protecting a creation of someone is totally different from granting personhood to a thing. Being a natural person and legal person is totally a different thing. There is also a difference in personhood and citizenship. A humanoid named Sophia was granted citizenship by Saudi Arabia in 2017 but that does not mean it is a person or given a personhood. As discussed earlier an AI need to fulfil the conditions discussed earlier to guarantee it the status of a legal person.11

CONCLUSION It is a known fact that science us boon as well as bane. It all depends on how we use it. The development of AI is a commendable achievement in the field of science and technology and is being appreciated worldwide. Over the period of time it has also gain legal recognition through IPR and other legal concepts. But the issue comes into discussion when it is the question of giving the status of personhood to an AI. In the above chapters we discussed how there are certain conditions which are required to be fulfilled in order to obtain the status of a legal person. In case of an AI it is difficult to accommodate the AI in any of those conditions of rights, duties and liabilities. It is also observed that the developer of an AI is actually the person behind the actions and intentions of an AI. Therefore, it is important to understand that instead of giving legal status as a person we can provide other ways to protect the interest of an AI as well the developer of the AI. Creation of a gadget which substitutes the manpower cannot be given the recognition as a person. It is just a body of wires and not a body of emotions which means if there is any technical error in it, they can be a threat to the existence of living beings and when we provide them the rights with no duties the situation can be even worse. It has intelligence does not mean it can be given the recognition as a person. The blend of science and legality should always be a balanced one.

BIBLIOGRAPHY BOOKS: • V. D. Mahajan, Jurisprudence & Legal Theory, Eastern Book Company (5th Edition). • Dr. B.N. Mani Tripathi, Jurisprudence Legal Theory, Allahabad Law Agency (14th Edition).

ARTICLES: • Simon Chesterman, Artificial Intelligence and the Limits of Legal Personality, Cambridge University Press, 2020. • Dr. Dimitry Kochenov, Citizenship vs. Personhood, Global Citizenship Review.

11 Global Citizenship Review, “Citizenship v. Personhood”, Available at: https://globecit.com/kochenov-citizenship-vs-personhood/, Last Accessed: May 01st, 2021. 151

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JOURNALS: • Mr. Shubham Singh, Attribution of Legal Personhood to Artificially Intelligent Beings, Bharati Law Review, 2017. • Priyanka Majumdar, Dr. Bindu Ronald, Dr. Rupal Rautdesai, Artificial Intelligence, Legal Personhood and Determination of legal Personality, Journal of Critical Reviews, 2019. • Theodore F. Claypoole, When to Give Legal Rights to AIs? When They Can Dream, The National Law Review, 2020. • Paulius Čerka, Jurgita Grigienė, Gintarė Sirbikytė, Is it Possible to Grant Legal Personality to Artificial Intelligence Software Systems, Computer Law & Security Review, 2017.

WEBSITES: • www.scconline.com • www.indiaai.gov.in

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