INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISBN 978-81-948082-0-6)
VOLUME I ISSUE I (OCTOBER 2020)
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Copyright © International Journal for Legal Research & Analysis
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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 978-81-948082-0-6. 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& ANALYSIS ISBN 978-81-948082-0-6 welcomes contributions from all legal branches, as long as the work is original, unpublished and is in consonance with the submission guidelines.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. A.Niharica The Foreign Contribution Regulation Act: It’s Voyage 6 In India, Its Analysis And Possible Reforms 2. Aadya Tiwary Right To Constitutional Remedies:An Anlysis 17
3. Aarav Srejan Prasad & A Detailed Study Of Media Trials In India 27 Ishika Jain
4. Anannya Bera The Role Of Indian Judiciary And State In Combating 36 Child Labour
5. Charu Sharma & Madhur Driving To Suicide, From Bullying To Psychological 45 Bansal Tortures
6. Devki Sejpal Animal Testing: An Unnecessary Evil 58
7. Hena Kurian How Cyber Space Is A Front Of War Between U.S And 67 Iran
8. K.R. Azad Child Labour: A Dark Reality On Mining Industry 76
9. Nimit Gupta & Kanishka Impact Of Psu Bank Mergers On The Banking Sector In 86 Bubna India
10. Prabhat Kumar Rights Of Accused Under Criminal Procedure Code, 93 1973
11. Pragati Gilda Viral Justice – Is It The New Reality? 114
12. Priyal Sepaha Understanding India's Issue Of Illegal Immigrants 119 Through The Lenses Of Humanitarianism And Human Rights 13. Ritwik Guha Mustafi The Prospects And Problems Of Electronic Contracts In 134 India With A Special Reference To The Covid-19 Pandemic: A Comprehensive Study.
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14. Sanjana Bharadwaj The Ethical And Moral Issue Of Physician Assisted 146 Suicide: A Critical Analysis 15. Sanjeev Kumar Biodiversity Act, 2002: A Critical Analysis 160
16. S. Ravi An Analysis of Anti-Animal Abuse Laws Under Indian 169 Criminal Laws
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THE FOREIGN CONTRIBUTION REGULATION ACT: IT’S VOYAGE IN INDIA, ITS ANALYSIS AND POSSIBLE REFORMS A.Niharica 2nd year law student, Sultan-Ul-Uloom Collage of Law
In early 2017, a strong US-based Christian donor, Compassion International was exacted to stop contributions to India. This step of ministry hit a dependent health unit but would have hit the freedom of religion right if the ministry hadn’t done so, as Compassion International funded NGO’s that were indulged in religious conversions. Inception of Legislature regulating foreign contributions can be traced back to the emergency period. It has undergone some changes in the pretext of nation’s security and sovereignty. The act did play a pivotal role in curbing foreign influence on domestic politics. But the restrictions did hinder the working of some NGOs and Political parties did sculpted it to their advantage to escape from law’s whip. This is like a double edged sword. This research paper presents a theoretical view of the legislations passed by the parliament with respect to foreign donation regulations, analyses the lacunae present in the acts, and suggests some ways for mending those.
I. INTRODUCTION Foreign contribution is a donation, delivery or transfer or any article, currency or foreign security by any person who has received it from any foreign source, either directly or through one or more persons, shall also be deemed to be foreign contribution.1 Foreign funding is pivotal for working of many organisations and its importance is recognised by the United Nations which categorised foreign funding of NGOs to be a right of freedom of association2 .The issue of foreign contribution has been in spotlight in recent times due to two reasons. One, the inflow of funds saw a sudden decline since 2019 which had been on a rise since 2014 till 2019 (around 1809 associations lost their license in 2019)3 due to cancellation of associations’ licence and increased supervision by the government. For instance the Rajiv Gandhi trust is under the
1 The Foreign Contribution (regulation) Act, 2010 (Act 42 of 2010), s. 2. 2 UN General Assembly, The rights to freedom of peaceful assembly and of association, GA Res 15/21, GAOR, UN Doc A/HRC/RES/15/21, (October 6, 2010). 3 Registration cancelled list, 2019, available at :https://fcraonline.nic.in/
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appointed committee’s probe for having links with an anti-national figure. Recently 13 NGOs were also de licensed for diverting foreign funds in religious conversions in tribal areas into Christianity4 which violated the act fundamental right to religion of the tribes. Two, the recent amendments to the foreign regulation 2010. The act was initially passed to check organisations of political nature that tried to aggravate ongoing internal stirs by diverting foreign funds, and tried obstructing nation’s interests. But certain amendments were later made to the act that gave unfair advantage to the political parties that tried covering their flaws thus deviating from the original purpose of the act. The 2020 amendment was passed after heated debate in the parliament5 that has put excluded a host of category of people from receiving money also put many checks on beneficiary , their working and their spending, thus trying to keep a check on the acts that are against national security. Such measures are necessary for shielding our nation. What makes this issue of foreign funding very much contemporary and relevant is that, we are living in a society where there is a growing need for shielding of rights especially of vulnerable strata of the society, and of advancement of aspects like education, health in which NGOs play an inevitable role. The recent restrictions that have been put on NGOs (through amendments) would hurt NGOs’ functioning as most of them are neither politically nor economically strong. . The COVID pandemic has aggravated the things further by hurting the jobs too. The advantage taken by political parties is not tolerable by the society. Foreign funding is like a trump card for many in the nation, it may be a snag for the nation also, and in a word it’s like a double edge sword. Balance shall be made between economic liberty and nation’s safety. This sword shall be sharpened for the betterment of society and mitigation of external influence on internal land.
The content in this paper makes the reader traverse through the journey of foreign contribution regulation in India, analyses the respective legislations made, and propounds ways to make them finer. Part 2 analysis the origin of foreign contribution regulation in India. Part 3 analysis the reformed version of the prototype legislature. Part 4 deals scrutinizes the later amendments made to the FCRA 2010 act6 and the Judicial aspect of it. Part 5 deals with the latest developments in the legislature.. Part 6 deals with the judicial perception the Foreign Contribution (Regulation)
4 Bharat Jain, “13 NGOs lose FCRA licence over ‘religious conversions’ “, Times of India,available at https://timesofindia.indiatimes.com/ 5 Lok Sabha debates on September 20, 2020, available at https://www.youtube.com/watch?v=N66LmmxxFhY&t=9s 6 The Foreign Contribution (regulation) Act, 2010 (Act 42 of 2010)
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Act and also of international organisation. Part 7 deals with the ways as to how the concerned legislature can be ameliorated and part 8 contains the conclusion.
II. ORIGIN OF FOREIGN CONTRIBUTION REGULATION IN INDIA Full-fledged legislature for the sake of regulating and controlling foreign funding into India was Foreign Contribution Regulation Act, 19767 (FCRA, 1976)
A. FOREIGN CONTRIBUTION REGULATION ACT 1976 AND ITS BACKGROUND The act was passed in 1976, in the era of cold war (1947-1999) when Soviets and Americas intervened in the internal affairs of post-colonial nations to secure and protect their respective strategic interests and to maintain a domination in the world market.1 If a country funds foreign country, the former would have domination over the latter because of economic dependence. This domination can even crept into the internal affairs of the beneficiary country. If the individual beneficiaries are some political, media, judicial powers or so, foreign hand interferences would cost us a lot and manipulation of national, political, judicial and other sensitive issues by the donor country may take place. This would ultimately undermine the sovereignty of a country and pose a threat to the independent nation.
The fear of foreign intrusion engulfed India. The then Indira Gandhi led government gave this rational of external intervention and imposed curbs on foreign contributions to check the external influence on domestic politics. Consequently, Foreign Contribution (Regulation) Act, 1976 was enacted thus Proscribing candidate for election; correspondent, columnist, cartoonist, editor, owner, printer or publisher of a registered newspaper; judge, government servant or employee of any corporation; member of any legislature; political party or office bearer from receiving foreign funds.
Since the Act is internal security legislation, despite being a law related to financial legislation, it falls into the purview of Home Ministry and not the Reserve Bank of India (RBI).
B. AN INSIGHT INTO THE FCRA, 1976 ; HIDDEN AGENDA AND THE LACUNA
7 The Foreign Contribution Regulation Act, 1976 (Act 49 of 1976)
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The idea of protecting nation’s interest by creating an aegis through the legislation is laudable. . But it did miss some facets out, also the government did have an axe to grind. It wanted to control the combatant forces and wanted to keep political rivals under check.
1. POLITICAL ASPECT
1976, the year when the act was passed, was the emergency period when there was a lot of unrest prevailing in the country, great opposition to the government. Political opponents of Indira Gandhi were imprisoned, newspapers were censored. In support of these actions of government, FCRA 1976 didn’t allow newspapers, cartoonist to receive external funding. These things suggest the government’s intention of curbing political dissent though their legislations.
2. NGOS’ ASPECT The FCRA 1976 act didn’t prescribe anything about NGOs. This allowed some NGOs to divert foreign funding and utilize them in anti-national activities. Only in 1984, NGOs were also considered and an amendment was brought in the FCRA in 1984 whereby it was made obligatory for all NGOs to register themselves with the home ministry.
But the said amendment was not only used to curb anti national activities, but also anti- government voices as, this amendment empowered the state to ban any organisation receiving foreign contribution, that the state considered the organisation to be political instead of neutral. Such steps by government did hurt the democratic trait of our nation.
3. DISCRETION OF THE CENTER It’s completely the discretion of the central government ( ministry of home affair) to conclude if some person or entity is violating the prescribed rules or if they are acting in such a way that it would hurt nation’s interest, integrity, harmony or so. This would give the central government an upper hand over organisations. Especially is an association has an active voice against government then the life of such association may depend on the volition of the central government. So this made arbitrary decisions of government also binding.
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4. MICELLENIOUS ASPECTS There was no time limit regarding the validity of registration certificate granted to the associations etc. for accepting foreign contribution. This made the validity of license permanent by default. This would give the registered entities a lot of malevolent freedom. It was mentioned in the act that assets of the defunct associations should be disposed but a clear manner as to how it should be done was not mentioned. This further created a lacuna
III. EXTENDED NEEDS AND ALTERED LEGISLATION Foreign Contribution Regulation Act, 1976 focused mainly on political parties. There was a need for systemized version of legislature for regulating funds to associations, NGOs, organizations. There was a need for healthy control over beneficiaries. So the FCRA, 1976 became obsolete in a way and it was repealed. Thus came the inception of Foreign Contribution Regulation Act, 2010 (FCRA, 2010). An analysis of this act and the gaps present:
1. Capping of administrative expenses: 50% ceiling was imposed on administrative expenses which include costs of paying wages and salaries and providing benefits to non- sales personnel,8SO capping of this expense may hurt the associations with many staff members and that indulge more in ground work and mobilisation of people where there isn’t much non-administrative expense. 2. Sole discretion of central government: Categorising an organisation as an “organisation of political nature” is the obligation of the central government of India (according to FCRA, 2010). This mandates the interference of central government. This would lead to the targeting of inconvenient (to government) NGOs, especially those working on governance accountability. 3. Serious repercussions on Freedom of Speech and Freedom of Association of the constitution9: As the central government decides if an organisation is of political nature or not, ultimately central government is the only one which decides as to if an organisation can receive foreign fund or not. So the economic stability of an organisation in a way depends on the central government. This may lead to the suppression of critical voices that criticise the flaws of government. Prohibition of an organisation (with biased
8 Administrative expenses, available at: https://www.bdc.ca/en/articles-tools 9 The Constitution of India, art 19(1)(a),19(1)(c).
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reason) violates right to freedom of association, which is part of the Universal Declaration of Human Rights10 , so a violation of this right also constitutes a human rights violation.
IV. ORCHESTRATION OF THE LEGISLATION BY THE GOVERNMENT
Donations from a foreign source by the political parties is expressly prohibited by the FCRA, 1976 and also the FCRA, 2010. So can donations be received from Indian companies which are held by foreign companies? The same question was put before the judiciary by the Association for democratic reforms.
Sterlite Industries India and Sesa Goa, two companies then registered in India but whose controlling shareholder was Vedanta, donated 87.9 million rupees in total to Congress between 2004 and 2012.11 Sesa Goa donated 14.2 million rupees to the BJP between 2004 and 2012.12
In association for democratic reforms v union of India,13 the main question put forward by the petitioner was if the funds received by congress and BJP (till 2009) from Sterlite Industries India, Sesa Goa and, Sesa Goa respectively in which companies more than 50% shareholding was held by Vedanta Resource Pic., a company incorporated in the UK would qualify as “Foreign Contribution” under FCRA, 1976.14
The court held that firstly, Vedanta PLC would qualify as “Foreign Company” under The Companies Act, 1956.15 It was also held that the actual donor companies would come under “Foreign Sources” under the FCRA, 1976.16 Lawyers for Congress and the BJP had argued that the donations could not be classed as foreign partly because the two smaller companies were registered under India’s Companies Act and partly because Vedanta’s largest
10 The Universal Declaration of Human Rights, art.20. 11 Foreign donations to Indian parties, available at:https://adrindia.org/ 12 Ibid 13 AIR 131 Delhi High Court 2013 14 Supra.23 15 Supra.7
16 Supra.8
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shareholder is billionaire Anil Agarwal, an Indian citizen.17 So the political parties, congress and BJP were found guilty of violating the act. So the then BJP government decided to amend the FCRA, 2010 to their favour. So was introduced an amendment to FCRA by Finance Act, 2016, which was introduced as Money bill. The amendment changed the FCRA to redefine foreign companies as “Indian” if their ownership in an Indian entity was within the foreign investment limits prescribed by the government for that sector under foreign exchange management act, 199918 – was made retrospective only from 2010.19 (In the Finance Act of 2017, the government amended the Companies Act to lift the cap of 7.5% altogether, paving the way to both domestic and foreign companies for donating an unlimited proportion of their profits to the political parties).
The amendment (to FCRA, 2010) mentioned in the above para was restrospectly applicable only from 2010. So what about the breaches made between 2004 and 2010 by accepting foreign funds? So the 2016 amendment to FCRA, 2010 by government did not absolve the said political parties of their guilt as the breaches made from 2004 to 2010 were still violations only. Large amounts of money were actually donated to Congress and BJP between 2004 and 2010 from Indian companies that were actually held by foreign companies.
Government and congress were then in an intention to vindicate themselves of the violation made by them before 2010.So another amendment was introduced by the government in 2018 by the government which was supported by the congress party.
With is amendment the cut-off date in the finance bill 2016, which was 26th September, 2010 was replaced with the date 5th August, 1976.
V. RECENT DEVELOPMENTS IN THE LEGISLATURE The Foreign Contribution (Regulation) Amendment Bill 2020 is the most recent amendment made to the FCRA.
17 Ians, “BJP, Congress flouted foreign funding norms”, The Hindu, March .28, 2014. 18 The Foreign Exchange Management Act, 1999 (Act 42 of 1999) 19 Finance bill amends FCRA, available at :https://thewire.in/business
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A. Prohibiting public servants from receiving foreign funding would reduce external influence on the legislature and executive of our country. So this aspect of the amendment is commendable. B. Not all NGOs involve in distribution of money, things, and items. There are NGOs which try brining social development in the society through awareness campaigns, moral and social suggestions or through mass mobilization. Such NGOs don’t really have much non-administrative expenses. There are NGOs that do collaborative research work where money is transferred to a smaller NGO working on grassroots level. So the cap placed by this amendment on administrative expenses would impact many NGO( Large NGOs are no exception) C. Complete bar on transfer of money from one entity to another would impact the idea of providing economic support to some associate NGOs. D. Making Aadhar, mandatory is a palatable step. This helps in better regulation of the funding process. And dubious NGOs can easily be traced as Aadhar can’t be manipulated. E. Obligating the registered persons and entities to create a main bank account in specified SBI branches of New Delhi would help the government’s duty of keeping track of foreign fund transactions. As the jurisdiction of main account of every entity is restricted to New Delhi branches of SBI through which all transactions take place, the process of surveillance becomes easy.
VI. PERCEPTION OF FCRA BY JUDICIARY AND INTERNATIONAL ORGANISATIONS A. Boundaries of Rules 3(v) and (vi) of The Foreign Contribution (Regulation) Rules, 2011, defined by Supreme Court
Way back in 2011 an organisation named Indian Social Action Forum filed a petition in the Delhi High Court challenging various provisions of the FCRA, 2010.20 They alleged
20 INSAF V Union of India (2020) SC 1510
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that the said act violated many fundamental rights. The Delhi High Court dismissed the petition and a special leave petition was filed in the Supreme Court.21 So in the case Indian Social Action Forum v Union of India,22 the Supreme court upheld the constitutional validity of FCRA,2010 but it read down (restricted it applicability) the rules 3(v) and (vi) of the Foreign Contribution (Regulation) Rules, 2011. These rules barred organisation of farmers, workers, students, youth, based on caste, community, religion or language which worked towards advancement of Political interests from obtaining foreign funding and also disallowed organizations that habitually engages itself in or employs common methods of political action like 'bandh' in support of public causes from receiving foreign aids. The rationale given by the court was that only organizations connected with active politics could be brought under these rules: not organizations working on ‘social and economic welfare of the society’ and also It highlighted that the purpose of the Act and the Rules was to prohibit foreign aid from influencing Indian political activity. Organizations working towards securing social and economic betterment or agitating for securing rights of the citizens must not be treated as having political objectives or indulging in ‘active politics or party politics.’ It concluded that these organizations are outside the purview of Rules 3(v) and (vi).
B. Judicial approach to the Amendments made to FCRA, 1976 and FCRA, 2010 ” even where the law is enacted by the Legislature appears within its competence but if in substance it is shown as an attempt to interfere with the judicial process, such law can be invalidated being in breach of the doctrine of separation of powers.”23
”…The legislature has the power to enact laws including the power to retrospectively amend laws and thereby remove causes of ineffectiveness or invalidity. When a law is enacted with retrospective effect, it is not considered as an encroachment upon judicial power when the legislature does not directly overrule or reverse a judicial dictum. The legislature cannot, by way
21 Ibid
22 AIR 2020 SC 1510 23 State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696.
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of an enactment, declare a decision of the court as erroneous or a nullity, but can amend the statute or the provision so as to make it applicable to the past……”24
The above 2 principles are those, which are laid by Supreme Court in various cases. These principles clearly convey the fact that the retrospective laws should not nullify the judicial decisions. The amendments made to the FCRA, 1976 and the FCRA, 2010 through the finance bills 2018 and 2016 respectively clearly nullify the judicial decision of Supreme Court. This is a clear violation of the judicial decisions laid by the Supreme Court.
C. International organisation about the FCRA 1. The ICJ condemned the adoption by both Houses of Parliament of the Indian Foreign Contribution (Regulation) Amendment Bill 2020 (FCRA 2020). “The Bill has been passed by both Houses of Parliament only four days after it was tabled, and without any stakeholder consultation. This hasty law making that clearly undermines human rights and the work of civil society, is yet another attempt by the government to destabilize the functioning of democratic institutions in India,” said Ian Seiderman, ICJ Legal and Policy Director.25
VII. WAY FORWARD – ENHANCING THE FCRA LEGISLATION A. Political party funding: barring political parties from foreign contribution results in curbing of external influence on our legislature. Sparing a small part of national budget for political party funding would serve the purpose. Informal organisations may be encouraged to campaign on behalf of the political parties which would substantiate the campaigning process. Willing private entities (Indian) may be asked to donate the money and thus collected money may be dispersed among political parties in proportionate to the number of candidates in it. This would keep the donor party identity under cover. B. Separate committee: formation of separate committee or body leads to independent working and resolving of issues related to FCRA. This prevents political interference and develops a healthy atmosphere.
24 Cheviti Venkanna Yadav vs. State of Telangana, (2017) 1 SCC 283. 25 FCRA Amendment, 2020 available at:https://www.icj.org
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C. Surveillance on NGOs: asking NGOs to inform their expenditure plans in 3 months prior and cross checking the same by the independent committee curbs arbitrary suspension of NGOs license. D. Administration expenses limit: not all NGOs are of same nature. Categorising NGOs based on their nature (grassroots workers, essential items supplying NGOs, NGOs that do research). Some NGOs have more workers, (NGOs that try bringing awareness, change) such NGOs have high administrative expenses. Some NGOs supply needy things to needy people, in that case administrative expense may be low. The needs of NGOs vary so as the expense type. So the ceiling on administrative expenses should be made flexible. E. Transfer of money: with the latest amendment, the transfer of foreign contribution by a person/organisation to the other is prohibited. Diluting this prohibition would encourage NGOs to support their associate NGOs. F. Organisation of political nature: clear criteria must be drafted as to what organisations can be considered as organisations of political nature. The principles of that criteria shall be clear not vague or arbitrary. Obligation of Tagging an organisation as something of political nature should be taken away from the central government and given to the independent committee.
VIII. CONCLUSION Foreign contribution lends a supporting hand to the NGOs which strive for social development, they are like crutch to the needy people. It has to be made sure that this lending hand doesn’t put its hand into the internal affairs of our nation. Limiting legislature’s interference, Careful drafting and amendment of rules, regular surveillance, friendly atmosphere, and control by independent bodies would lead to emergence of brill NGOs, organizations and submergence of suspicious entities. What can we as civilians do? Giving economic support to NGOs and especially to the political campaigns, proportionate to our economic stability would for sure bring a healthy change. Inculcating a healthy criticism would further curb the menace in the society. After all we are global citizens, we do need the support of other nationals so as Foreign Contribution.
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RIGHT TO CONSTITUTIONAL REMEDIES:AN ANLYSIS (Author-Aadya Tiwary) ABSTRACT The point of the paper is knowledge on the privilege to established cures under article 32 of the Indian constitution. Article 32 of the Indian constitution accommodates protected cures against the infringement or offense of essential rights. The principal rights are of most elevated significance to the people. They are fundamental conditions for the fullest advancement of character.
Article 32 which was alluded to "as the very soul of the constitution" by Dr. Ambedkar, accommodates protected cures. Condition 2 of Article 32 gives that, "The Supreme Court will have the ability to give headings or request or writs remembering the writs for the idea of habeas corpus, mandamus, forbiddance, Quo Warranto and certiorari, whichever might be proper for the implementation of any of the rights gave by" principal rights. The residents are given the option to move—the Supreme Court if there should arise an occurrence of offense of key rights. The Supreme Court subsequently is established into a defender and underwriter central rights. The privilege to sacred cure is itself a crucial right.
Other than the Supreme Court, the High Courts additionally have been given a part in the insurance of crucial rights. Under Art. 226 of the constitution, High Courts additionally can give writs for the requirement of central rights.
However, the purviews of the Supreme Court and the High Courts in the matter of issue of writs are marginally unique. The Supreme Court can give writs just in the event of encroachment of a key right to some degree III of the constitution. The High Courts then again can give writs against encroachment of principal rights, just as against repudiation of standard law of review complaints emerging accordingly. Accordingly, the region of High Courts, as for the ability to give writs is more extensive than that of the Supreme Court. Nonetheless, ability of the High Courts to give writs is restricted inside its regional locale. The Supreme Court's zone of skill is co-end with the domain of India in general.
If there should be an occurrence of offense of crucial rights, the Supreme Court or the High Courts may give five sorts of writs. These are writs of Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto.
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INTRODUCTION Article 32 gives the benefit to Constitutional cures which suggests that a person with everything rights, can move to Supreme Court (and high courts similarly) to make sure about his central rights. While Supreme Court can give writs under article 32, High Courts have been given same forces under article 226. Further, the capacity to give writs can in like manner be offered out to some different courts (counting close by courts) by Parliament by methods for making a law for restricted constraints of purview of such courts. On account of Court Martial, the councils developed under the military law have been absolved from the writ purview of the Supreme Court and the high courts through article 33.
Article 32 – Remedies for requirement of rights introduced by this Part
(1) The option to move to the Supreme Court by fitting strategies for authorization of rights introduced by this Part is guaranteed.
(2) The Supreme Court ought to have the option to direct or ask for or issue writs, remembering writs for the idea of habeas corpus, mandamus, denial, quo warranto and certiorari, whichever may be fitting, for the necessity of any of the rights under this Part.
(3) Without inclination to the powers presented on the Supreme Court by provisions (1) and (2), Parliament may, by law empower some other
court to rehearse inside the territory of its locale or any of the forces exercisable by the Supreme Court under statement (2).
(4) The benefit guaranteed by this Article ought not be suspended with the exemption as by and large obliged by this Constitution.
Article 32 gives the privilege to solutions for the requirement of the central privileges of an oppressed resident. As such, the option to get the Fundamental Rights ensured is in itself an essential right. This makes the basic rights genuine. That is the reason Dr Ambedkar called Article 32 as the most significant article of the Constitution 'an Article without which this constitution would be a nullity. It is the very soul of the Constitution and its very heart'.
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The Supreme Court has decided that Article 32 is an essential element of the Constitution. Consequently, it can't be abbreviated or removed even by method of a correction to the Constitution. It contains the accompanying four arrangements: (a) The option to move the Supreme Court by suitable procedures for the requirement of the Fundamental Rights is ensured.
(b) The Supreme Court will have capacity to give headings or requests or writs for the requirement of any of the crucial rights. The writs gave may incorporate habeas corpus, mandamus, preclusion, certiorari and quo-warranto.
(c) Parliament can enable some other court to give headings, requests and writs, everything being equal. Be that as it may, this should be possible without bias to the above forces gave on the Supreme Court. Some other court here does exclude high courts since Article 226 has as of now
presented these forces on the high courts.
(d) The option to move the Supreme Court will not be suspended aside from as in any case accommodated by the Constitution. Accordingly, the Constitution gives that the President can suspend the option to move any court for the authorization of the crucial rights during a public crisis (Article 359).
CORRELATION OF SUPREME COURT AND HIGH COURTS IN GIVING WRITS COMPARABILITY Capacity of giving writs goes under the first ward (to hear the issue from the start event) of both Supreme Court and High Courts. An abused individual has choice to move any of them.
DISTINCTION While Supreme Court has capacity to give writs by methods for article 32, High Courts have this force by methods for article 226.
While Supreme Court can give writs for implementation of ONLY Fundamental rights, High Courts can give writs for necessity of principal rights and furthermore some other issue as well. Along these lines, High Court has a more broad domain from Supreme Court in matter of giving writs.
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High Court can give a writ against any individual or authority inside the area of India while high court can issue such writ under its own specific territorial region. Thus, High court's writ purview is more modest with respect to regional degree.
High Court can't decrease to rehearse its writ ward considering the way that article 32 itself is a key right and high court is underwriter or defender of key rights. In any case, for high courts, rehearsing the capacity to give writs is optional.
ARTICLE 33 Intensity of Parliament to change the rights gave by this Part in their application to Forces, etc. Parliament may, by law, choose how much any of the rights introduced by this Part may, in their application to: -
(a) the people from the Armed Forces; or
(b) the people from the Forces blamed for the upkeep of public request; or
(c) individuals used in any office or other affiliation developed by the State for reasons of understanding or counter information; or
(d) individuals used in, or with respect to, the media transmission set up for the reasons behind any Force, office or affiliation suggested in conditions (a) to (c), be restricted or disavowed so as to ensure the most ideal arrival of their commitments and the upkeep of control among them.
Limitation on rights presented by this Part while military law is in power in any zone Notwithstanding anything in the previous arrangements of this Part, Parliament may by law reimburse any individual in the administration of the Union or of a State or some other individual in regard of any demonstration done by him regarding the support or rebuilding of request in any region inside the domain of India where military law was in constrain or approve any sentence passed, discipline incurred, relinquishment requested or other act done under military law in such territory.
Statement of military law is somewhat dark and there is no particular arrangement in the constitution that approves chief or some other higher specialists to pronounce it. Likewise, Indian military can do it because of unclearness in its presentation technique as characterized by the Indian constitution.But, the
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ethos and working style of the Indian armed force is with the end goal that such a revelation is very improbable to occur. .
Likewise, it is verifiable in Article 34 under which military law can be announced in any zone inside the region of India. He won't be rebuffed on the grounds that he's accepted to have done that so as to keep up harmony and this needs to done by the Parliament by passing a law and accordingly doesn't give a simple departure course to anybody. Military law forces limitations and guidelines on the privileges of the regular citizens, can rebuff the regular folks and even sentence them to death. The Supreme Court held that the announcement of military law doesn't ipso facto bring about the suspension of the writ of habeas corpus. The revelation of a military law under Article 34 is not the same as the affirmation of a public crisis under Article 352.
ARTICLE 34 Limitation on rights presented by this Part while military law is in power in any territory.
Despite anything in the prior arrangements of this Part, Parliament may by law reimburse any individual in the administration of the Union or of a State or some other individual in regard of any demonstration done by him regarding the upkeep or reclamation of request in any zone inside the domain of India where military law was in drive or approve any sentence passed, discipline dispensed, relinquishment requested or other act done under military law in such on arrangements of this Part
Despite anything in this Constitution:
(a) Parliament will have, and the Legislature of a State will not have, capacity to make laws
(I) regarding any of the issues which under condition (3) of Article 16, provision (3) of Article 32, Article 33 and Article 34 might be accommodated by law made by Parliament; and
(ii) for endorsing discipline for those demonstrations which are announced to be offenses under this Part;
furthermore, Parliament will, when might be after the beginning of this Constitution, make laws for endorsing discipline for the demonstrations
alluded to in sub-proviso (ii);
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(b) any law in power preceding the initiation of this Constitution in the region of India with deference of any of the issues alluded to in sub-provision (I) of proviso (a) or accommodating discipline for any demonstration alluded to in sub-condition (ii) of that statement will, subject to the terms thereof and to any variations and adjustments that might be made in that under Article 372, proceed in power until modified or revoked or revised by Parliament.
WRITS IN INDIA The Supreme Court (under Article 32) and the high courts (under Article 226) can give the writs of habeas corpus, mandamus, denial, certiorari and quo-warranto. Further, the Parliament (under Article 32) can enable some other court to give these writs. Various types of writs referenced in Articles 32 and 226 of the Constitution:
HABEAS CORPUS It is a Latin expression which in a real sense signifies 'to have the group of'. It is a request given by the court to an individual who has kept someone else, to create the body of the last before it. The court at that point analyzes the reason and lawfulness of detainment. It would liberate the confined individual, if the detainment is discovered to be illicit. Consequently, this writ is a defense of individual freedom against self-assertive confinement. The writ of habeas corpus can be given against both public specialists just as private people.
Be that as it may, the writ of habeas corpus isn't given in the accompanying cases:
(I) Where the individual against whom the writ is given or the individual who is kept isn't inside the purview of the Court. (ii) To make sure about the arrival of an individual who has been detained by a Court of law on a criminal allegation. (iii) To meddle with a procedure for disdain by a Court of record or by Parliament.
Along these lines, writ of habeas corpus is a defense of individual freedom. It has been portrayed as "an extraordinary established benefit" or "first security of common freedom". The most trademark component of the writ is its authoritativeness for example an expedient and viable solution for having the legitimateness of detainment of the individual enquired and dictated by the Court.
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MANDAMUS It in a real sense signifies 'we order'. It is an order given by the court to a public authority requesting that he play out his official obligations that he has fizzled or would not perform. It can likewise be given against any open body, an enterprise, a second rate court, a council or government for a similar reason.
The writ of mandamus can't be given:
(a) against a private individual or body;
(b) to uphold departmental guidance that doesn't
have legal power;
(c) when the obligation is optional and not obligatory;
(d) to authorize an authoritative commitment;
(e) against the
leader of India or the state lead representatives; and
(f) against the main equity of a high court acting in legal limit.
PROHIBITION In a real sense, it signifies 'to disallow'. It is given by a higher court to a lower court or council to keep the last from surpassing its ward or usurping a locale that it doesn't have. In this way, dissimilar to mandamus that coordinates movement, the disallowance coordinates latency. The writ of restriction can be given uniquely against legal and semi legal specialists. It isn't accessible against managerial specialists, administrative bodies, and private people or bodies.
The writ of denial can be given on the accompanying grounds:
(I) Absence or Excess of locale;
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(ii) Violation of the standards of common equity;
(iii) Unconstitutionality of a Statute;
(iv) Infraction of Fundamental Rights
Consequently, writ of preclusion is accessible during the pendency of the procedures and before the request is made. The item is to make sure about that the purview of a mediocre court or council is appropriately practiced and that it doesn't usurp the ward which it doesn't have.
QUO-WARRANTO In the exacting sense, it signifies 'by what authority or warrant'. It is given by the court to enquire into the lawfulness of case of an individual to a public office. Henceforth, it forestalls unlawful usurpation of public office by an individual.
The writ can be given uniquely if there should be an occurrence of a considerable public office of a perpetual character made by a rule or by the Constitution. It can't be given in instances of pastoral office or private office.
The conditions fundamental for the issue of a writ of Quo Warranto are:
(I) The workplace must be public and it must be made by a rule or by the constitution itself.
(ii) The workplace must be a considerable one and not simply the capacity or work of a worker at the will and during the delight of another.
(iii) There has been a negation of the Constitution or a rule or legal instrument, in selecting such individual to that office.
The writ purview of the Supreme Court varies from that of a high court in three regards:
1. The Supreme Court can give writs just for the authorization of key rights though a high court can give writs for the requirement of Fundamental Rights as well as for some other reason. The articulation 'for
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some other reason' alludes to the requirement of a common lawful right. Along these lines, the writ purview of the Supreme Court, in this regard, is smaller than that of high court.
2. The Supreme Court can give writs against an individual or government all through the region of India though a high court can give writs against an individual living or against a legislature or authority situated inside its regional ward just or outside its regional purview just if the reason for activity emerges inside its regional locale. Hence, the regional purview of the Supreme Court for the motivation behind giving writs is more extensive than that of a high court.
3. A cure under Article 32 is in itself a Fundamental Right and consequently, the Supreme Court may not decline to practice its writ locale. Then again, a cure under Article 226 is optional and thus, a high court may decline to practice its writ locale.
CONCLUSION Other than the Supreme Court, the High Courts additionally have been given a function in the assurance of crucial rights. Under Art. 226 of the constitution, High Courts likewise can give writs for the authorization of essential rights.
Yet, the locales of the Supreme Court and the High Courts in the matter of issue of writs are somewhat extraordinary. The Supreme Court can give writs just if there should be an occurrence of encroachment of a central right to some degree III of the constitution. The High Courts on the other can give writs against encroachment of crucial rights, just as against negation of conventional law of review complaints emerging accordingly. In this manner, the region of High Courts, as for the ability to give writs is more extensive than that of the Supreme Court. Nonetheless, capability of the High Courts to give writs is restricted inside its regional purview. The Supreme Court's zone of ability is co-end with the region of India in general.
If there should arise an occurrence of offense of major rights, the Supreme Court or the High Courts may give five sorts of writs. These are writs of Habeas Corpus, Mandamus, Prohibition, Criterion, and Quo - warranto.
Accordingly, unmistakably huge forces are vested with the Judiciary to control a regulatory activity when it encroaches central privileges of the residents or when it goes past the soul of Grundnorm of our nation for example Constitution of India. It guarantees the Rule of Law and legitimate check and parities
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between the three organs of our majority rule framework. The way of thinking of writs is all around synchronized in our Constitutional arrangements to guarantee that privileges of residents are not smothered by a subjective authoritative or Judicial activity.
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A DETAILED STUDY OF MEDIA TRIALS IN INDIA Aarav Srejan Prasad
Student, Bachelor of Business Administration and Law (BBA LLB) School of law Christ (Deemed to be University), Bangalore – 560034, Karnataka, India.
Ishika Jain
Student, Bachelor of Business Administration and Law (BBA LLB) School of law Christ (Deemed to be University), Bangalore – 560034, Karnataka, India.
ABSTRACT Media plays a very important role in shaping the opinion of the society as a whole on a lot of events and crimes that take place. Sometimes the role played by the media is helpful whereas it also has its disadvantages and harms. The media bringing the truth to light is fair however labelling people as guilty before the court of law by media trials even pronounces the judgement cannot be taken lightly just with the excuse of freedom of press as it can lead to miscarriage of justice. It holds the power to destroy innocent people’s lives. This article focuses on both the aspects of media trials and thus concludes with how media trials should be regulated.
INTRODUCTION Media is considered to be the fourth pillar of democracy as it plays a pivotal role in framing and influencing the beliefs and opinions of individuals of all age. It is an integral element of democracy which is even recognized by the Constitution of India under article 19(1)(a) which protects the freedom of speech of the media. The media even has the capability to bring in a change in the mentality of the masses. But this power of media to alter or influence the minds of the masses has been misused in India. There are cases in which the involvement of media shaped the opinions of people as well as the judgement of the case. The cases of Priyadarshini Mattoo in 1996, Jessica Lal in 1999, Bijal Joshi in 2003 are examples of such instances. The Aarushi Talwar Murder case is a famous case where the media declared the father as the killer, latter for the CBI to state otherwise. This phenomenon of declaring accused as convicts, damaging their reputation and influencing the minds of the people to believe similarly, even before the court reaches to a conclusion, is popularly coined as ‘Media Trial’.
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In India a criminal trial does not begin until a competent court has framed charges against the accused and the charges can be framed only after the police have concluded their investigation and have then filed the investigation report before the court26. There exists no such legal provision which gives media the power to try cases but the minds of the people in a country like India gets influenced very easily by what the media shows them even before the court reaches a verdict, which is very evident when we consider the recent case regarding the death of the late actor Sushant Singh Rajput, actress Rhea Chakraborty, who is the accused is being treated as the convict because of media trials. The involvement of media is relatively high in cases involving big celebrities as it is the media that influences the opinions of the followers or fans of such celebrities.
HISTORY OF MEDIA TRIAL The phrase, media trial, even though is a recently coined term it’s history can be traced back to the 20th century. In the case of American silent movie star Roscoe “Fatty” Arbuckle in the year 1921, the accused even though acquitted was declared guilty by the media thereby, tarnishing his reputation. Parallels can be drawn between this case and the case of former National Football League player, broadcaster and actor OJ Simpson in the year 1995, where he was declared guilty yet again by the media even though he was acquitted by the court for the murder of his ex-wife, Nicole Brown Simpson, and her friend Ron Goldman. It can be thus said that the media has been influencing the opinions and beliefs of the people since as early as the 20th century. The word of the media is said to reflect the word on the streets and specially in a country like India, even though there exists a proper criminal court for trial the media can still run media trials and give out their own judgements.
CONSTITUTIONALITY OF MEDIA TRIALS FREEDOM OF PRESS The India Constitution under article 19(1)(a) guarantees the right to freedom of speech and expression. The International Covenant on Civil and Political Rights, 196627 under article 19 also guarantees the right to freedom of speech and expression irrespective of frontiers with respect to
26 Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4. 27 (1996) 6 SCC 466, paras 8, 9 and 10.
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the choice of media. In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar28 it was held by the Supreme Court recognized it as “an essential prerequisite of a democratic form of government” and regarded it as “the mother of all other liberties in a democratic society” regarding the scope of freedom of press in India. The honourable court in the case of Hamdard Dawakhana v. Union of India29, held that the right to acquire and impart ideas and information about matters of common interest comes under article 19(1)(a) of the Constitution of India. Freedom of speech and expression in media is only subject to certain duties and the rights or reputation of people. Unlike the United States, freedom of press is given under Article 19 by the Supreme of the Court of India and is not a separate guaranteed right.
IMMUNITY UNDER CONTEMPT OF COURT ACT, 1971 Under the Contempt of Courts Act, 1971, publications made pre-trial are free from contempt proceedings. However, publications which interferes with or obstructs or tends to obstruct any proceeding, be it civil or criminal, and the course of justice, which is actually a pending proceeding would amount to the contempt of court under the Contempt of Courts Act, 1971. This would amount to contempt as the high involvement of media in pre-trial cases have a negative impact on the rights of the accused for a fair trial and also his reputation under the public eye. Such involvement should relate to the alleged confessions, character or previous convictions of the accused.
In the Aarushi Talwar Murder case, the media taking advantage of the absence of a legislative intervention by way of expanding the term ‘pending’ under the Contempt of Courts Act, 1971 went haywire and declared the parents as murderers making the public go berserk leading to mass protests throughout the country.
DOES MEDIA TRIAL AMOUNT TO CONTEMPT OF COURT UNDER THE CONTEMPT OF COURTS ACT, 1971? Right to fair trail is negatively impacted due to excess involvement of media in pre-trial cases. The opinions and sentiments held by the public are influenced by what the media is showing them. Media trials make the leading news channels who are the main source of news throughout
28 Ibid., para 8. 29 1960 (2) SCR 671.
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the country make them go against the ethical code of contempt and the reputation of the person whom they declare guilty is tarnished in the minds of the people even if the court acquits the said person. The said person is portrayed as the most negative person during prime-time slot thereby, making them the enemy of general public. It is very integral to remember that the democracy includes fair play and transparency and by such acts the idea of democracy is at stake. Thus, even though media is regarded as the fourth pillar of democracy, any attempt to put the idea of democracy in danger even if it is by one of its own pillars should come under the ambit of contempt of court. Thus, media trials should amount to contempt of court under the Contempt of Courts Act, 1971 and it should be made punishable.
MEASURES TO REGULATE MEDIA TRIALS While dealing with regulatory measure it is very crucial to remember that the restrictions that are supposed to be imposed on media should have to be reasonable in nature and should not limit the capability of the media as media is the fourth pillar of democracy in India and any irregular restriction would put the democracy of the country in danger.
In Papnasam Labour Union v. Madura Coats Ltd30 the Supreme Court states certain guidelines that are supposed to be considered while considering the constitutionality of a statutory provision that imposes restrictions on fundamental rights guaranteed by Articles 19(1)(a) to (g) when challenged on the basis of unreasonableness of the restriction imposed.
Taking into the consideration, article 19(2) which deals with reasonable restrictions to freedom of speech and expression, it is constitutionally the job of the courts to ensure that these restrictions do not limit the power of the media and in no manner crosses the limit of reasonable restrictions as given under the Constitution of India.
Taking this into the consideration, we can say that the restrictions under article 19(2) specifies that the freedom of speech and expression is subject to restrictions and is not absolute in nature as well as puts a restriction on the power of the legislature to restrict the capabilities and power of press and media. With regards to Article 19(2) which deals with reasonable restrictions to freedom of speech and expression, it is constitutionally the job of the courts to ensure that these
30 (1995) 1 SCC 501
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restrictions do not limit the power of the media and in no manner crosses the limit of reasonable restrictions as given under the Constitution of India.
Press Council of India since its establishment has properly manged to regulate and restrict the media from misusing the powers vested in them by monitoring the content that the viewers get to view. It also ensures that illegal content if shown would come under the ambit of contempt of court under the Contempt of Courts Act, 1971. Thus, punishing those who violate the general code of contempt would be the most apt way to regulate media and press.
A COMPARATIVE ANALYSIS OF MEDIA TRIALS AND FAIR TRIALS A Fair trial is one of the Principle of Natural Justice which is made available to every single person irrespective of what he/ she is accused of. Principles of Natural Justice are provided in order to ensure that justice is dispensed without any interference and obstruction and the due process of law is followed. In a fair trial it is made sure that the parties in the trial do not face any sort of prejudice no matter what the subject matter of the trial is. Even though freedom of press is one of the pillars of democracy, a media trial has enough power to completely change the mindset of the people into a completely prejudiced one that is in favour or against a party even before the trial has started or concluded. This can lead to the parties in the trial face abuses by the public. Media trials can also influence the Judges’ minds by their content and their versions of the stories by creating bias in the judiciary. It does not go un-noticed that judges are humans and can be influenced by other factors which might be their own bias’, sometimes, if not all. In Re P.C. Sen vs Unknown AIR 1970 SC 1821, 1970 CriLJ 1525, 1969 2 SCR 649, Justice Shah stated, “The law relating to contempt of Court is well settled. Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Contempt by speech or writing may be by scandalising the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard. It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to contempt. To make a speech tending to influence the result
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of a pending trial, whether civil or criminal is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of justice. The question is not so much of the intention of the contemnor as whether it is calculated to interfere with the administration of justice.”31
In Jessica Lal’s case32 a senior editor of a TV News Channel had stated the defence case to be “defence of the indefensible”, thereby declaring the accused to be guilty without even it being proved. However, in fair trials every person is innocent until proven guilty, which is why media trials can prove to be harmful as such declarations lead to prejudices in everybody’s minds, including the judiciary. It’s the duty of the media to help in making the trials transparent to the public but they should keep in mind to not cross that line and interfere with the judicial proceedings leading to media trials.
IMPACT OF MEDIA TRIALS Media trials can have deep negative impacts on trials. It can scandalize the judges’ reputations, it can also lead to public’s prejudiced and biased behaviour towards the parties to the action, interfering with the witnesses, interfering with the investigation procedure by tampering of evidence and contentious publications in connection with the proceedings pending before the court of law.33 However sometimes media interfering in the due process of law can be advantageous as well like in the Sanjeev Nanda case34, in which Nanda, son a businessman, was allegedly accused of hit and run for driving his BMW under intoxication where NDTV carried out a sting operation to expose Nanda’s lawyer while bribing the witness and helped the court in discovery of the truth. In Mattoo case35 also the media helped in fast tracking the case and helped the conviction of the accused. But mostly it does create a sort of a frenzy in the public in a negative manner like in the case of Arushi Talwar36 where it declared Arushi’s parents as
31 In Re P.C. Sen vs Unknown AIR 1970 SC 1821, 1970 CriLJ 1525, 1969 2 SCR 649 32 Manu Sharma v State of Delhi AIR 2010 SC 2352. 33 ArpanBanerjee, Judicial Safeguards Against “TrialByMedia”: Should Blasi’s “CheckingValue” Theory Apply In India ? Vol.2, p. 28, Journal of Media Law & Ethics, (2010). 34 State v Sanjeev Nanda (2012) 8 SCC 450 35 Santosh Kumar Singh v State (2010) 9 SCC 747 36 Nupur Talwar v Central Bureau of Investigation and Another (AIR 2012 SC 1921)
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murderers even before the trial began which led to them being criticised and abused by the public so much, but at the end of the trial they were acquitted. Even though public opinions should not affect judicial decisions we can see from the case of K.M. Nanavathi37 where Jury opinions were also affected by the press and public to a good extent which was clearly seen in this case. This judgement was later criticized due to the mass involvement and influence of media and the opinions of the public on the judgement because of which Commander Nanavati was not penalised even though he was at fault. This decision plays an integral role in the downfall of jury trials in India. Thus, judicial decisions should be free from public opinion, personal bias or media influence. Laws are made so as to not let bias or personal opinion influence the decision given by a judge. But the bias that media trial creates defeats the purpose of the existing laws and of fair trials. And these interferences impose threat to fair administration of justice and constitutional guarantee of fair trial.2
LANDMARK CASES In the case of Sushil Sharma v The State (Delhi Administration and Ors.), 1996, there was little evidence that the accused had murdered his partner, however, while the case was still pending in the court media started portraying the accused as the murderer which was capable of changing the views of the public. The Delhi High Court in this case held that conviction of a person can only be based on the facts and evidence of the crime and not necause the media has portrayed the person to be guilty.38
In the case of Arushi Talwar5 the media declared Arushi’s parents as murderers even before the trial began which led to them being criticised and abused by the public so much, this media trial also led to the judges’ mind’s being prejudiced and her parents were sentenced to life imprisonment, however they appealed at the Allahabad High Court where after hearing their appeal at the end of the trial they were acquitted. The media had fetched a negative result in this case by framing the parents and declaring them guilty even before the court gave its judgement.
In Jessica Lal’s case the case arose due to the cold-blooded murder of a young woman in 1999. The woman was a bartender at a high-profile restaurant in Delhi. The main accused Manu Sharma was the son of a powerful politician and the Delhi High Court in 2006 acquitted all nine
37 K.M Nanavathi v State of Maharashtra 1962 AIR 605, 1962 SCR Supl. (1) 567 38 https://blog.ipleaders.in/constitutionality-of-media-trials-and-landmark-cases/
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accused in the case. However, later the media interfered in the case and showed that there was manipulation of the trial through political connections and how the witness had turned hostile and the incorrect manner in which the prosecution had conducted the case. As a result of the pressure asserted by the media Delhi High Court took suo moto reinvestigation of the case and the accused were later convicted of the crime.39
RECENT INSTANCES OF TRIAL BY THE MEDIA Just recently we can see that where the case involves a leading celebrity, the influence of media can immensely change the opinion of the public. In the case of Rhea Chakraborty v State of Bihar, 2020 (Sushant Singh Rajput case) the media is playing a very crucial role by declaring Rhea Chakraborty guilty which has led to her facing a lot of criticism and abuse from the public and she has also raised the issue of media trials.
In Sarvajeet Singh’s case who had been falsely accused by Jasleen Kaur for harassing her where she posted a picture of him which went viral on facebook following which he was arrested was later found innocent after the enquiry and it was found that wide media coverage and the media labelling him as the harasser also led to him facing public humiliation and he was also removed from his job. This instance clearly shows how media can ruin an innocent person’s life and how it can create prejudices in public’s minds.
The Principal of St. Stephen Institution, Mr. Valson Thampu has alleged that the media is targeting his institution as it is a minority institution. A professor of his institution was accused of molesting a student and it was alleged that Mr. Valson had pressurised the student to withdraw the complaint against the teacher. Mr. Valson however claims the media has already targeted him twice falsely and this is the third time it was doing so. And that he was a victim of media trials. He also demanded for a CBI probe and said that he’d resign if the claim was true and he was found guilty.
39 https://ijrar.com/upload_issue/ijrar_issue_20543141.pdf
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CONCLUSION It is evident that media trails play more of a negative role than a positive one. The courts have to keep on properly regulating the media. Even though a government controlled or government influenced media is the enemy of democracy in a nation, the implications and repercussions of media which is not regulated affect not only the reputation of the person in the eyes of the public but also influence the judgement given by the courts. It then influences the decisions given by the judiciary putting a major question on the concept of imparting justice to people. Media should keep away from forming opinions of their own in cases and conducting their own investigation and trial. When we consider all the cases of media trials, it is evident that it has damaged the reputation of people more than helping people in any manner. Thus, it is important to put reasonable restrictions on media trials, regulate the media and punish those who violate the general code of contempt.
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THE ROLE OF INDIAN JUDICIARY AND STATE IN COMBATING CHILD LABOUR (By Anannya Bera) ABSTRACT Justice Bhagwati has rightly quoted “the child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into the maturity, into fullness on physical and vital energy and most breadth, depth and height of its emotional, intellectual and spiritual being”40Its believed that a person’s best phase in his lifetime is the childhood. Yet we often find instances where young girls working as domestic help being sexually abused, physical and mentally tortured or engaged in prostitution. Child labour in India has always been a serious concern which is yet to be resolved as it has been witnessed that a child of five years being exposed to work in hazardous factories.In order to protect our future generation, it is the responsibility of the state to look into the welfare of such children who are deprived of the benefits of proper education,health and shelter. This article attempts to assess the role of the judiciary for the enforcement of welfare legislations for children, who are exposed to child labour in hazardous industries specifically .This article intends to put forward some of the landmark judicial decisions acknowledged sensing at the cruelty often meted out to the children. This article also sheds light upon some of the recent development and steps taken globally and nationally in order to stop child labour.
Research Question : This article aims address the following questions: 1. What are the steps taken by the judiciary to address the child labour issues? 2. What are the effective measures implemented by the state towards the welfare of children working in industries? 3. What are the advancement or development seen in recent times with regard to child labour globally and nation wide?
40 Mr Justice Bhagwati child basic rights.op. cit. p. 5
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INTRODUCTION A child is care free ,innocent , unknown to the cruelties of the world out there yet we come across various instances where a child’s childhood is being jeopardized.Due to poverty ,children are obliged to earn their living either for their own survival or to support family income and it has been seen the wages paid to children are often less than adult workers. In such a incapacitated situation it becomes the responsibility of the state to take good care of a child’s both physical and mental health at large when the parent themselves fail,as they are regarded as the future of a country.The main discussion revolves around children, their welfare,their social and economic rights and their constitutional rights against child labour. So its necessary to assess who is a child and what amounts to child labour for that matter.Who is a child, has different connotations under various state legislatures and international conventions and treaties.In the United Nations Conventions on the Rights of the child 1989,defines child as an individual who has not attained 18years of age. Whereas in various Indian legislature, the age of a child is subject to that particular legislature, like as in Factories Act of 1948, prohibits a child under 14 years of age to work in a factory and children between 15 to 18 years of age can be employed subject to various rules. Hence the confusion prevails as to who can be interpreted as a child and can thus can be kept outside the scope of child labour.According to International labour organization ,child labour means any activity that withhold a child from enjoying his childhood, and such activity has the potential of harming the physical and mental health and deprive them from their dignity. It refers to such type of socially and morally dangerous work that is harmful to them and interferes with their ability to attend regular school, or work that affects in any manner their ability to focus during school or in such a manner that they are deprived of having a healthy childhood.41Whereas on the other hand United nation’s Child Fund , describes child labour as ,”a child between the age of 5 to 11 years of age ,engaged in labour activities or the child did atleast one hour of economic activity or at least 28 hours of domestic work in a week and in case of children between 12 to 14 years of age, he or she did at least 14 hours of economic activity or at least 42 hours of economic activity and domestic work per week.42
41Child labour,International labour Organization,(Aug6,2020,5:30PM) https://libguides.ilo.org/child-labour- en#:~:text=%22The%20term%20'child%20labour',and%20harmful%20to%20children%3B%20and 42 Vrinda Nigam, ‘What are the laws related to child labour in India’ Ipleaders,16 January,2015 (Aug 6,8:55 PM) https://blog.ipleaders.in/laws-related-child-labour-india/
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THE ROLE OF JUDICIARY IN FRAMING CHILD WELFARE LEGISLATION. India being a developing country it had to meet its international obligations along with eradication of poverty,underdevelopment by expanding its economic growth. Since 1991 India’s economy has grown at an unprecedented level yet the issue of child labour is yet to be solved. The famous diplomat Kofi Annan said“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.”43Here comes the role of judiciary. Indian judiciary took this as a serious concern, and took all measure in implementing legislations for the betterment of our children who are exposed to child labour, if not eradication of it.This article would put forward some of the landmark judgments which brought various reforms for protecting children against child labour. The constitution of India44 has granted certain fundamental rights and mentions the obligation a state has towards its citizens. These provisions have been the pathway for the judiciary in framing child labour laws and protecting them from being further exploited. Under the Constitution of India article 15(3) provides for protective discrimination in favour of children. It states that states can make any special provisions for women and children. Thus in explicit terms, Article 15(3) empowers the State to make special provisions for children as and when it is necessary for the well being of children,45 and under article 14 of the constitution it provides equality of any person before the law, in such a case, nobody including the children should be denied of equality of status, opportunity and protection. Under Article 21A it provides that the State is duty bound to provide free and compulsory education to all children below the age of fourteen years in such a manner as a state may, by law, determine46.The landmark decision given by the supreme court with regard to right to education in the case of Unni Krishnan vs. State of Andhra Pradesh47. “The court held that the right to basic education is implied by the fundamental right to life (Article 21) if read conjointly with the
43 Shaksham Sharma, ‘Child Rights in India : An account of landmark decision and regulation’,Racob Legal,20 November 2018 (Aug 8,2020,8:30 AM) https://racolblegal.com/child-rights-in-india-an-account-of- landmark-decisions-and-regulations/#_ftn17 44 1950 45 M.P. Jain, Indian Constitutional Law, Vol.1. 5th edn., Wadhwa& Co., Nagpur, 2003 at p. 1060 46 Inserted by the Constitution 86th Amendment, 2002 47 AIR 1993 SC 2178
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directive principle on education (Article 41).The Court held that the factors of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to endeavor to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children in the age group between 6 years to 14 years of age.” In the case of Labourers Working on Salal Hydro Project v. State of J. & K48,court held that construction work is a hazardous type of employment and hence children below 14 years of age cannot be engaged there in. Article 24 of the constitution specifically prohibits employment of children below the age of 14 years in any factory, mine or in any other hazardous employment and state is under an obligation to protect the economic,social and humanitarian rights of millions of children working in factories or such other types of places.49The above cases discussed how a child can protected by enforcing their fundamental rights which are guaranteed under part III of the Constitution, hence its the duty on our part to claim our fundamental rights. But not only us, even the state has a responsibility towards its people, which are enshrined as the directive principles of state policy under part IV of the Constitution.Under article 39(a),(e) and (f) provides that certain policies are required to be followed by the state for the welfare of the children.Under article 45 of the Constitution of India, “in explicit terms directs the State to endeavour to provide free and compulsory education for all children until they have completed 14 years of age, within a period of ten years from the commencement of the constitution of India. This direction reflects the interest of the framers of the constitution as regards the education of the children as education is the foundation for a healthy and proper development of a child.”50 Some of judiciary’s stern decisions to upheld the right of children against exploitation can seen as in the case of People’s Union for Democratic Rights v. Union of India51,the supreme court held that construction work is a hazardous work and therefore under Article 24 no child below the age of 14 year can be employed in the connection work even if the construction work or industry is not specified in the schedule in the employment of children Act, 1935. This was the landmark decision of the Supreme Court for the protection of the child labour which brought in
48 AIR 1984 SC 177 49 In line with the constitutional provision many Acts provide for the prohibition of employment of children. For e.g., The Indian Factories Act, Mines Act, The Merchant Shipping Act, 1958, The Motor Transport Corporation Act, 1951, The Act, 1966 50 In Unnikrishnan v. State of A.P.,(1993) 1 SCC 645 , the directive principles has been raised to the level of fundamental rights and it was held that the right to education flows directly from ‘right to life’. 51 A.I.R. 1982, S.C. 1373
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the Child Labour Amendment (Prohibition and Regulation) Act, 2016. According to this act children below 14 years are not allowed to work except in family business or as a child artist.This law also paves the path for India’s obligation towards fulfilling the International Labour Organization ,convention number 82 “which prohibits hazardous work which is likely to jeopardize children’s physical, mental or moral health. It aims at immediate elimination of the worst forms of child labour for kids below 18 years.”52 In the case M.C.Mehta v State of Tamil Nadu53, the supreme court dealt with the issue of child labour force used in the match industries and directed that children should not be employed in hazardous industries such mach or fireworks and affirmative steps should be take for improving the quality of life for children.Similarly children working in the carpet industry was considered to be employment in hazardous industry as held in the case of Bandhua Mukti Morcha v. Union of India54. This judgement lead to the formation of National Commission for Protection of Child Rights (NCPCR) in 2006 which was entrusted with assessing compliance with the Convention on Rights of child and monitoring the provision for free and compulsory education for all children in country and protection them from exploitation. “Hence it can be concluded that the provisions of the constitution represent noble thoughts and buoyant spirit. It is sacrosanct to be glorified but there is wide gap between precept and practice. The actual solution can emerge only with acceleration of economic growth with social justice keeping pace as an essential concomitant of its accompaniment and need for massive thrust of economic development is imperative and important to tackle the problem of child labour.”55
AFTERMATH OF THE JUDICIAL PRONOUNCEMENTS. Judiciary’s piece of work was done by providing with guidelines on how to deal with child labour and now its the job of the legislature and the state to fulfill its obligations towards its future generation as children are considered to be the national asset hence it is the duty of the
52Malavika Rajkumar,’What does What Does India’s Law Say on Child Labour? How to File Complaints?’12thJune,2020(Aug7,2020,4:30PM)https://www.thequint.com/explainers/child-labour-in-india-what- laws-say-explained
53 (1991) 1 SCC 283 54 AIR 1984 SC 802 55 Dr. Anand Parwar , Rakesh Vaidya , ‘Legal Protection of Child Labour in India: Problems and Perspective’(2014)3(11)IJR(Aug8,2020,5:30PM)https://www.worldwidejournals.com/paripex/recent_issues_pdf/20 14/November/November_2014_1416652707__57.pdf
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state to look after the children with view to ensure full development of his personality as held in Sheela Barse v. Union of India56.Here are some of the beneficial legislatures which somehow controlled child labour if not fully eradicating it from India.They are as follows: I. Children Pledging of Labour Act 1933. This Act was enacted to prevent the practice of pledging the child under 15 years of age. According to this Act any agreement relating to the pledge of the service of a child is void and any person entering into any such agreement is punishable under the act. II. The factories Act 1948.This an important piece of central legislation which prohibits employment of children under 14 years of age in any factories and rules are provided for those who are employed within the age group of 15 to 18 years. III. The Mines Act,1952. This Act defines a child to be a person who has not completed the age of 15 years and an adolescent means who has completed 15 years of age but is less than 18 years of age. This Act also provides that an adolescent who has completed the age of 16 can only be employed in any part of the mine if it is under ground, after obtaining a competent medical certificate and that too for only four and half hours on any day, save between 9 p.m to 6 a.m. This Act also prescribes the penalty on the violation of the provisions of law . IV. The Child Labour (Prohibition and Regulation Act, 1986. With a firm intention to provide better safeguards to child workers the Government of India passed this act which was later amended in 2006. The Employment of Children Act, 1938, and its successor, the Child Labour ( Prohibition and Regulation) Act, 1986, are substantially the same. Here the legislatures took some effort in preparing an exhaustive list as to what is to be considered as hazardous occupation under schedule A and B.Thus it identifies more hazardous processes and industries with a view to banning child labour in those units and regulates working conditions for children in non- hazardous units. . The main objects of this Act are as under:- 1.To bring uniformity in the definition of child in the related laws. 2. To ban the employment of children in specific occupations and processes. 3.Enabling and expanding the ambit of industries and processes to be banned for employment of children by laying down a procedure.This a much stricter legislation by prescribing punishment with imprisonment along with fine for any violation under the Act. V.In 2009, The Right of Children to Free and Compulsory Education Act was enforced whereby, the law mandates free and compulsory education to all children aged between 6 to 14 years. This
56 A.I.R 1986 SC 1773
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legislation also mandated that twenty-five percent of seats in every private school must be allocated for children from disadvantaged groups and who are physically challenged.57” VI. The Commission For Protection Of Child Rights Act of 2005. This acts provides for the constitution of national and state commissions for the protection of child rights and establishing of children’s court for speedy trail of offences against children. VI. Besides these legislation, there are various schemes and awareness campaigns being organized either by the state or by individual initiative of NGOs.One such scheme is National Legal Services Authority( Child Friendly Legal Services to Children and their Protection) Scheme,201558. The main objective of the scheme is to make the children aware of the various legal aids available to them for their welfare and ensuring legal representation to the children in need of care and protecting them from the conflict of law in all levels.
RECENT DEVELOPMENTS GLOBAL SCENARIO: The United Nations General Assembly has unanimously adopted a resolution declaring 2021 as the “ International Year for the Elimination of child labour “ and has asked International Labour Organization to work for its implementation .The member states have made commitments to “take immediate and effective measures to eradicated forced labour end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.”59 It also recognized the importance of revitalized global partnership for the implementation of the 2030 agenda for sustainable development including the implementation of goals and targets for the elimination of child labour. It has been seen that between 2000 to 2016 there has been a 38% decrease in child labour by the means of intense advocacy,national mobilization and legislative practices.
57 Vrinda Nigam, ‘What are the laws related to child labour in India’,Ipleaders,16 January,2015(Aug9,2020,4:00PM) https://blog.ipleaders.in/laws-related-child-labour-india/accessed 9 August,2020 58NALSA(Child Friendly Legal Services to Children and their Protection) Scheme ,2015 (Aug 9,2020,4:30PM) https://nalsa.gov.in/acts-rules/preventive-strategic-legal-services-schemes/nalsa-child-friendly-legal-services-to- children-and-their-protection-scheme-2015 59 International Labour Organization,2021 declared International Year for the Elimination of Child Labour,Newsroom(Aug14,2020,7:57PM)https://www.ilo.org/global/about-the- ilo/newsroom/news/WCMS_713925/lang--en/index.htm
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INDIAN SCENARIO: Even after the enforcement of child welfare legislation,and guaranteeing fundamental rights for the right to free education, the International Labour Organization records around 12.9 million60children between the age group of 7 to 17 years are engaged in child labour and around 20 percent61 of all children aged around 15 to 17 years old are engaged in hazardous industries and jobs.Even after so many laws and regulation there are lack of implementation. Its a failure on part of the government to fulfill its obligation. Yet there are some success which has been achieved. India among fourteen other countries have made significant advancement in efforts to eliminate the worst form of child labour in 201762 and the government has also released a new National plan of action for children which implements the national policy of children. It focuses on child labourers, child trafficking, forced labour and other vulnerable children groups There are also foreign funded programs which are concerned about the Indian’s rising cases of child exploitation , one such is the “SOS children’s village” in India focusing on the education providing support to the families are being held to prevent exploitation of children.At present there are thirty one centers operating across India and supporting nearly about 33,00063 family members so that the children can receive the care and break the chain of child labour.
60 International Labour Organization,Measuring Children’s work in South Asia:Perspective from National Household Surveys (Aug14,2020,8:00PM) https://www.ilo.org/newdelhi/whatwedo/publications/WCMS_359371/lang--en/index.htm 61 Ibid 62 PTI Washington,India made significant advancement to eliminate worst forms of child labour in 2017,BusinessLine,Sept 22,2018,(Aug 14 ,2020,8:30 PM) https://www.thehindubusinessline.com/economy/india- made-significant-advancement-to-eliminate-worst-forms-of-child-labour-in-2017/article25013924.ece# 63 SOS Children’s Villages Canada, Child Labour India (Aug 14,2020,8:00PM) https://www.soschildrensvillages.ca/news/child-labour-in-india-588
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CONCLUSION A happy and healthy childhood is the ultimate key to a successful and bright future of the nations. Some of the recent web series like “Asur” or “Breath :into the shadows” potrays how a significant incident hampers their mentality and turns them into psychopath criminal ,so its pf utmost importance for the parents to look after their mental and physical health.From the above discussion it can be concluded that , the awareness of the cons of child labour made judiciary and the legislatures to take the following steps, yet there are lacuna in implementation process. Not only the law makers but every sections of the society needs to be aware of the effects of child labour and thus not exploiting them. The evil has to be combated on several fonts. Its not only the duty of the state for safeguarding children as the primary responsibility lies on the shoulder of the parents. India’s economic condition and poverty may be the deep rooted cause for this evil yet every individual must understand the importance of welfare of children to grow and study for the sake of the nation’s future.
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DRIVING TO SUICIDE, FROM BULLYING TO PSYCHOLOGICAL TORTURES -By Charu Sharma & Madhur Bansal (Bansathali Vidhyapith & ILS Law College) ABSTRACT: There are several reasons why a person kills himself. Bullying is one reason why a person suffers from psychological torment when the hangdog is at an early age when pressure causes suicide if not treated during the lifetime. It can occur in the early years when a baby is physically weak or is mentally abused. Women's husbands or attorneys have been distressed in households. Anybody and anybody can apply bullying. Another person can experience cyberintimidation, which can affect his / her colleges, social actions and development, and emotional growth. There is no strenuous rule that a strong individual can not be an intimidating barrier, but the way to raise their voice when hanging dogs is through some means. In different cases and times, legislation usually forces a person to get hanging dogs by getting anti-stress legislation. Therefore, the Indian Penal Code has established certain rules for the protection of any person, including children, women's safety legislation, anti-raging legislation, cyber-bullying and data technology law. Everything and all is proper to life wherever the right to equality is necessary and thus the right to life, with dignity, guarantees that everybody is completely valued. It's also considered a punishable offence if someone urges someone to commit suicide. There are defence rules, but each victim must speak up, so that bullies do not bully and suicides are less than currently done.
OBJECTIVES OF STUDY: The main purposes of this present study are-
1. To know about the nature of driving to suicide from bullying to psychological tortures. 2. To analyse the victimization, perpetration and bystander pattern of bullying among college and school students. 3. To know about the different types of bullying 4. To investigate the impact of peer bullying on student’s behavioral engagement 5. To make a comparison between the public and private university students.
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RESEARCH QUESTIONS: The Research questions that guided this study are- 1. What is bullying? 2. What is the impact of bullying on human psychology? 3. What the lived experiences of elementary level public school educators who have been bullied or experienced bullying at work? 4. How bullying may shape adolescent brains? 5. What is psychological torture? 6. What is the impact of psychological torture? 7. What is the correlation between victimization from bullying and depression? 8. What are the best ways to prevent bullying?
INTRODUCTION: Bullying is just a sort of bullying, discouraging, dominant or victimising others with intimidation and coercion. Bulling is also an individual's implanted behaviour. Bullying happens once the social and physical forces are unbalanced among people. An individual is also injured by repetitive violent actions which will showing emotion, physically or psychologically have an effect on another individual. In schools, homes or at the geographic point, this bullying culture will grow. Bullying is split primarily into four parts: psychological, verbal, physical, and cyber.
Bullying will have an effect on an individual's brain and might trigger psychological imbalance that ends up in suicide. Bullying has larger influence on youngsters and teenagers which might have lasting consequences.
EARLIER STAGES OF BULLYING: An individual's face bullies within the norm of living at any stage of life. Bullying starts from home in lecture rooms, faculties and thus from the start the geographical stage. This definition was unmistakable next stage of cyberbullying. When a private person can't cope with his psychological imbalance, suicide is the new option available. A number of the explanations why bullying started ar as follows:
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1- Family Bullying- Reception bullying is always a physical or verbal assault. Any member of the family will harass someone else. Many of the victims are girls and men. Bullying can have an incredibly risky impact on a baby's life and become a bully in the future. The psychological reason remains, for a person who is a bully, that he has something in his past life. Bully an individual with anxiety , depression or issues with receiving. In childhood , especially, when a kid is physically hurt, the child's picture is mutilated. This leads to depression and anxiety and makes them feel like the only choice is suicide. 2- Bullying in Schools-The National Centre for academic Statistics calculable in 2016 that one in each 5 students in class was bullied. Many who are bullied are still afraid and helpless. Faculties are the place wherever a toddler will develop, however that may impede his development each mentally and physically once he's bullied. Youngsters quite quickly take things to their heart, they suppose for any single factor. A silly rumour will build them disturbed or depressed. Chiefly in faculties categories are created that harass their juniors. There are primarily cases during which folks send their youngsters to boarding or different larger faculties to supply them with the simplest education. However faculties play the position of neglect by promoting bullying in faculties either by lecturers or by different students. Similarly, in Sanjeev Garg v. Ut of Chandigarh64 and Ors., the petitioner was transferred to a replacement town during this case for his youngsters to be higher educated. The victim's father believed different students troubled his son and college was goddamn for inflicting the child's mental depression. Such circumstances have a lasting impact on a toddler 's brain and for a lifespan he might want a defeated person. Schools are stressed to be healthy for kids. Lecturers don't seem to be even permissible to strike youngsters as a result of they'll be afraid and hateful. Once a toddler is being troubled, mental state is noncontinuous. Parents conjointly have to be compelled to keep a watch on their kid, so {the kid} may be supported and not abused if somebody bullies their child. 3- Bullying at College- Bullying can be harmful at any stage. The pattern shifts completely when young people go to school. Emotional interference from an adult partner is terribly
64 Sanjeev Garg v. Ut of Chandigarh and ors. CWP-15750-2017 (O&M)
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difficult to cope with. Their square follows the departure to elementary education of many young WHOs and their families and homes. A lot of new developments are being tested on your square. And bullying has become a convention in faculties, since they claim that elderly persons generally have double faces and don't follow their elderly 's steps. The bullying in universities is more detrimental to both physical and mental health. And if anyone is harassed by a mate, it's hard to flee. Even in Lok Sabha debates, this question was raised wherever it absolutely was argued that a law should be brought forbidding ragging in faculties. That for several students, this ragging culture has become death kneels. oldsters square measure still involved regarding causing their youngsters to varsities in alternative cities. a. To prevent bullying, the government of Republic of India has enacted a regulation referred to as the UGC Regulation on curb the Menace of Ragging in Higher Education Institution, 200965 with the intention of forbidding ragging in faculties. b. With this anti-rage statute, there square measure some provisions of the Indian Penal Code , 1860, which provides someone legal immunity to file a FIR consistent to Sections 294, 339, 340, 341, 342, 506 and once the bullying takes an image of utmost violence Sections 323, 324, 325, 326 and wherever the bullying is completed if someone loses his life Section 304, 306, 307.66 c. In the case of Yelchuri Manohar v. State of Andhra Pradesh67, there was a happening that cask the outlet state during which a student woman WHO was getting ready for her sensible examination was violently molested from behind and hacked to death. The appellant was the preparer of this surprising crime and was sentenced below section 302 of Indian Penal Code 1860 forever imprisonment. d. And to resolve the matter of India's ragging, The Prohibition and demolition of Ragging Act, 2016 was introduced by the government to ban and eliminate ragging in academic establishments.
65 https://www.ugc.ac.in/page/Ragging-Related-Circulars.aspx 66 http://www.gvpmc.in/index.php 67 Yelchuri Manohar v. State of Andhra Pradesh, 2005(2) ALD Cri 751, 2005 CriLJ 4593
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4- Bullying at Workplace-Bullying in workplaces can also be somehow private, professional picture. The co-workers or managers can also bully. An person can even be misled about work or misleading instructions for his work. An person who is embarrassed is seen as a harsh criticism of his wellbeing. The job pace of awarding degrees can be hampered by bullying as it can always be an unnecessary depression he can not avoid with a degree. The employers are required to verify that their employees are not exploited by their subordinates. If a graduate assistant has a negative impact, then the leader is responsible. In leading judgement of Vishaka and other v. State of Rajasthan68, the Supreme Court gave the Vishaka pointers describing harassment and putt the responsibility on employers to produce a healthy operating setting for the ladies used. Therefore, Vishaka guidelines are important for any employer to obey them. 5- Cyberbullying- Cyberbullying happens once one person uses digital devices to intimidate, harass or shame the opposite person. Cyber bullying laws, usually named as anti-bullying laws, area unit meant to prosecute perpetrators and shield victims. Cyberbullying are often achieved through multiple social media platforms. The varied sorts of cyberbullying could also be hacking accounts, posting obscene messages or comments or pictures, abuse of bank accounts, pressuring a private to commit some flagitious crime, stalking etc. i. Cyberbullying is covered by Section 67 of the Information Technology Act, 2000. ii. Section 66 E of the IT Act, 2000 prescribes penalties for breach of privacy where punishment is imposed on a person who transmits, captures or publishes any private image of others. iii. The crime of anti-bullying and cyberbullying is also covered by Section 507 of the IPC, 1860. Ritu Kohli's Case-While discussing cyber stalking and Cyber bullying, Ritu Kohli's case is the case one should mention. Ritu Kohli's Case was the first cyber stalking case reported in India. A girl named Ritu Kohli filed a complaint in 2001 that someone else is using her identity in social media and she was deliberately getting calls from different
68 Vishaka and others v. State of Rajasthan AIR 1997 SC 3011
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numbers she was also getting calls from abroad. A case was also filed under Section 509 of Indian penal code.
CYBERCRIME LAWS IN INDIA: ARE WE SAFE? “Threat is a mirror of security gaps. Cyber-threat is mainly a reflection of our weaknesses. An accurate vision of digital and behavioural gaps is crucial for a consistent cyber-resilience.” ― Stephane Nappo
Internet is a framework design that has revolutionized communications and methods of commerce by permitting different computer networks to interconnect. The Internet emerged in the United States in the 1970s but did not become visible to the general public until the early 1990s. By 2020, approximately 4.5 billion people, or more than half of the world’s population were estimated to have access to the Internet.
In the 21st century , the rise of what was called "Web 2.0," an Internet based on social networking and user-generated content and cloud computing, came about. Social networking networks such as Facebook, Twitter and Instagram have become some of the most popular Internet sites by enabling users to share their content with their friends and the wider world. With the introduction of smartphones, the number of Internet users worldwide has risen from about one sixth in 2005 to more than half in 2020, and mobile phones have been able to access the network.
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Due to growth in the economy, information, jobs and social life, the Internet growth has been a key factor in recent decades, and the list continues. Since the internet is situated in one location, the world has become convenient. Shopping for the Internet , social networking, on-line banking, data storage, Online training, food ordering, gaming, mailing, information sharing and almost everything can be done on the web. The Internet is useful in all sectors, whether public or private or global.
The Internet demands that data exchanged by the internet user in the network be processed and transmitted and that Internet access is at risk. Data transmitted can contain all information, including private and confidential information, that is only accessible to restricted persons. These data could seriously damage the company in question if people are leaked or improperly accessed. Cyber crimes are triggered by the avarice with which this privacy and steel data can be used illegally?
Many cyber criminals target corporate, public and private information. Violent criminals also commit non-cyber-assisted crime using technology. And a social media user is currently constantly updating their everyday life, activities and personal information such as location, address , telephone number and e-mail identity. This data, given by a social media holder, monits and facilitates control of the target population for offenders.
Since cybercrime is a free-flowing, borderless global problem, cybercrime is not linked to regional constraints. These offences can not be deterred by municipal law. With the advent of technology, various types of crime will rise. The lack of awareness, literacy and awareness that cybercrime exist and is highly dangerous is very much overlooked and embraced in India. The confidentiality of most Indians is not extreme.
One of the most common forms of cybercrime in the country includes sexually explicit content, cyber-bullying and online harassment, cyber-infringement, cyber-terrorist activities and hate posts and false social media storeys.
Cybercrime in India is highly common and can be seen as the third largest cybercrime victim in India. In 2018, a total of 27,248 cases of cybercrime have been recorded in India and more than 2000 cyber harassments in India were reported in 2018, according to the latest national crime records bureau ( NCRB).
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The way we live and communicate has changed fully in this age of digitalisation. The long- runners, such as bank / money transfers, bill payments and so on, are now just a short tap. In addition, global people and businesses have become increasingly vulnerable to new serious cyber-threats that few can recognise or foresee.
With the Covid-19 Outbreak, these crimes will increase recently as many industries have moved online and are thus more likely to leak and hack confidential and secret information. In connexion with Coronavirus funds, thousands of frauds, fake PM cares, and offenders requested thousands of dollars. The number of allegations that cybercrimes occur in workplaces and at home has risen by 300 percent.
These cybercrimes are monitored by IPC, IT Act 2000, IT Regulations 2011 and a cyber cell. Nevertheless, no improvements have been made to regulations to improve protection, particularly following the rise in digitisation. It is high time the troubling condition was treated properly, which has been neglected for a long time. Real regulations are obsolete and need to be revised on these offences. Increased digitalisation and the situation today require more stringent legislation.
The protection of data can not be carried out solely in accordance with the legislation; consumers and vendors, however, should include businesses, law enforcement authorities and digital supply chain governments. With little expectation and with many new risks and retrospective acts, the information age has arrived. Unfortunately, we are still behind cyber-legislation and cyber-crime prevention. Cybercriminals must be remembered as a country-specific problem, and a solution must be found shortly.
SELECTED CASES OF CYBER BULLYING IN INDIA – • Avnish Bajaj vs. State (DPS MMS Scandal Case)69 • Karan Girotra v State and Ors.70 • Bullying teachers -2 • Creation of fake profile- Vinupriya’s Case71 •Air Force Bal Bharti School & Another v. Delhi School Tribunal & Others72
69 (2005) 3 CompLJ 364 Del, 116 (2005) DLT 427, 2005 (79) DRJ 576 70 Karan Girotra vs. State and Ors. (08.05.2012 - DELHC) : MANU/DE/1983/2012 71https://indiankanoon.org/doc/182599907/
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• Cyber bullying, kidnapping and murder
PSYCHOLOGICAL IMPACT OF CYBERBULLYING: Cyberbullying study says that victims apparent psychological issues like depression, anxiety, loneliness, low self-esteem, social exclusion, college phobias and poor tutorial performance, low shallowness, family issues, college violence and delinquent behaviour , that brings them to expertise self-destructive thoughts as however of escaping the torture .
The victims of cyberbullying, beneath nice emotional stress, are unable to ponder their studies, and therefore their tutorial progress is adversely affected .Since the victims are typically hurt psychologically, the depressive result of cyberbullying prevents students from excelling in their studies.
In a university study, majority of the participants (85%) interviewed indicated that cyberbullying affected their tutorial performance, specifically their grades.
CHANGES IN ACADEMIC, SOCIAL, AND EMOTIONAL DEVELOPMENT OF UNDERGRADUATE STUDENTS: The transition to schools is characterised by dynamic mental , social, and scholastic transformation challenges. Furthermore, adjusting to a substitute environment is a critical feature of tutorial success and potential intervention.
Students undergraduates don't tend solely to grow academically and mentally; they often establish and retain personal relationships , develop their personalities, seek career choices and some students interact with people from different backgrounds. Some people adapt to live far away from home for the first time.
The definition of education should involve not only educational skills, but also psychological and systemic issues. The field of tutoring has important elements: motivation to follow, to take steps to fulfil the criteria for teaching, a good sense of purpose and overall satisfaction with the environment.
72 (2013) 199 DLT 607 Air Force Bal Bharti School & Another v. Delhi School Tribunal & Others
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Crises within the social sector reflect conflicts that manifest themselves in an incredibly badly living state, starting or keeping relationships , social conflicts, family and money issues.
Emotionally, students typically doubt their relationships, their way of life and their self-esteem.
A balanced temperament is one that is showing emotion adjusted. Emotional adjustment is important for making a sound temperament. physical, intellectual mental and aesthetic changes are doable once emotional adjustment is formed. Inner disorders might result from queries on identity and may generally cause personal crise. Emotional issues may even be manifested as world, corporeal distress, anxiety, low shallowness, or depression. Impediments to success in emotional development embody depression and anxiety, stress, misuse, and relationship issues.
IMPACTS AND CONSEQUENCES OF CYBERBULLYING: CHANGES IN ONLINE BEHAVIOUR They concerned a lot of careful and a lot of cautious approaches of the victims to additional communication, use of cyberspace and their movements in game.
Develop a psychological characteristic pattern for recognising the aggressors, children learn to judge people on the basis of their words. Reducing risky sources of online threats or taking a restrictive strategy – prohibit personal data previously publicly accessible on the net to ban risky sources of on-line threats. Another's cyberbullying-induced anxiety and mistrust took place wherever its expression is exasperating and distrustful. Lower assurance occurred in reaction to negative comments from social media members targeted the victim. Nightmares occurred to kids appears like somebody forcing ME to undertake and do one thing.
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Social isolation manifested itself practiced each offline and on-line cyberbullying. Reluctance towards meeting new individuals, that was occurred from cyberbullying. Increasing feeling of loneliness, which may cause by less contact with friends and relatives. Impacts of cyberbullying in terms of changes in physical aggression occurred inside the cases of self-harm manifested inside the fashion of cutting or assaultive to somebody whereas feeling anxious, dynamic.
HOW TO CURB THIS PROBLEM: 1. Counselling victims and potential perpetrators- The only way to solve this bullying problem is to give advice. Therapy can be used to regulate dynamic emotions such as rage, guilt, angst, depression and hurt. A individual under counselling needs to improve self-esteem to prevent abuse in the future. Strategies for preventing bullying must be taught. Counseling can help break the victimisation cycle and improve the communication skills of an individual. And if the person who is being bullied correctly expresses himself, depression or suicide may be avoided. You don't have to say any third party parents or friends at home. 2. Amending old laws and introducing new ones- Anti-bullying legislation must be strictly monitored in order to ensure that the victim is safe. Sometimes, bullying in colleges and workplaces leads to physical violence that causes a person to commit suicide or kill others. Sections such as 323, 324, 325, 326, 304, 306,307 etc. of the 1860 Indian Penal Code provide an individual with defence. The Dowry Prohibition Act, 1961; the Protection of Women from Domestic Abuse Act , 2005; the Sexual Harassment of Women at Work (Prevention , Prohibition and Redressal) Act, 2013, etc., are all separate laws for the protection of women if they are bullied at home or at work. 3. Take a stand to get justice- By reaching out to the public or the support he wants, a person needs to help himself first. If he's going to stand up for himself so only someone will support him. If one is able to fight for themselves, suicide isn't the last option. In the example like Boys locker room, if the girls hadn't raised their own voices then no one would have helped. Such an example gives the survivor the courage to fight and stand for his own war.
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4. Rewarding for positive behaviour- It is easy to indicate, especially if the student seems distracted sometimes, if a student is doing something wrong. What if anything good was captured by him? She ought to have noticed it? Wright created the "Good Behavior Game," which celebrated good behaviour in the school day. Not many people are involved in developing good behaviour. This is a problem. Here is a problem. It's proactive if sometimes a children find it hard to "catch it well" and to strengthen the best behaviour which defines and improves action. In this way, the student is more likely to be optimistic. Students will be given specific suggestions about what they want to change their actions as well as clear guidelines and the application of those guidelines. 5. Using modern technologies- If a person gets bullied and he documents all of it and can then lodge a FIR against the abuser, the use of technology can be very useful and the proof can be a life saver for the victim. The Internet has a great power where you can post the evidence and many people come forward to help. If they're affected by the same technology, maybe the same technology will shield them from bullies. In the case of Shibani Barik v. State of Odisha73, in this case the position where Tiktok videos were made public and forced the deceased to commit suicide. Thus, after an inquiry extracted under section 161 of CrPC, it became evident that the individual was liable under section 306 of IPC 1860 for abetment to suicide. In talking about the lives of many, technology used for fun could be dangerous.
RESULT OF THE STUDY: There is no connexion between bullying and suicide; for many reasons a person can commit suicide. Suicide danger is for the victims who are bullied. When someone is threatened or can't even be helped by his friends or family, social pressure arises when he thinks he doesn't like him, and so he has to put an end to his life by suicide. The bullied person and his actions must be controlled as only certain conditions can be handled. There is no better help than a family and parents, and problems like depression will arise if a child is overlooked.
If he thinks like he wants to speak with someone to support, suicide is not always the last resort. And our friends and people around us, as human beings, must also keep an eye on us. He needs
73 Shibani Barik v. State of Odisha, BLAPL NO. 915 of 2020
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to be taken up when someone is faced with abuse. It's very tempting to believe that when a human is dead, it's a responsibility for any person to look for their loved ones. Law provides security, but law can not endure mind strain. law provides protection. Psychological torture is now a modern trend that causes people very quickly to end their lives. Suicide is never a brave conquest choice.
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ANIMAL TESTING: AN UNNECESSARY EVIL
AUTHOR: DEVKI SEJPAL DESIGNATION: SECOND YEAR B.A. LL.B (HONS) STUDENT AT KIRIT P. MEHTA SCHOOL OF LAW (MUMBAI)
ABSTRACT Animals have been exploited for human gains since time immemorial and in recent years this exploitation has increased at an alarming rate. From decades of testing conducted on animals for numerous purposes such as research and development, education and manufacture of products, it has often been seen that the results are such that cannot conclusively deem products and drugs fit for human use. Therefore animal testing primarily leads to loss of life, resources and energy. Keeping this in mind, several steps have been taken by the Indian Government under various provisions to stop or minimalize the use of animals for testing and experimentation. Bans have been imposed and regulations have been made stricter. The advent of technology has made it possible for scientists and developers to explore alternatives to animal testing, but the question still remains as to how effective are the bans and regulations used and where has the discovery of alternative methods of experimentation taken us. This article aims to explore these dimensions.
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CHAPTER 1
INTRODUCTION “Humanity’s true moral test, its fundamental test consists of its attitude towards those who are at its mercy-animals.”- Milan Kundera
Animals have played an essential role in the lives of human beings and experimentations on animals has given humanity abundance of knowledge and information that has helped us understand various components of the living organism and helped us cure many diseases.74 However more often than not, these experiments are detrimental to the existence of these animals. Animals have often been tested while manufacturing drugs and vaccines for curing diseases, cosmetics and beauty care products, household-product testing and in fields of pharmaceutical and biochemical studies for educational purposes. An animal test is any scientific experiment or test in which a live animal is forced to undergo something that is likely to cause them pain, suffering, distress or lasting harm. Animal testing and experiments include; injecting or force feeding animals potentially harmful substances, exposing animals to radiation, surgically removing animals’ organs or tissues to deliberately cause damage and subjecting animals to frightening situations to create anxiety and depression.75 In India, there are a set of laws, rules and regulations present when it comes to animal testing thus ensuring animal welfare and protecting the rights of the animals. India has always been on the frontlines for ensuring the protection of animals from such inhumane treatment. Animal experimentation in India is overseen by the Committee for the Control and Supervision of Experiments on Animals (henceforth referred to as the CPCSEA), which is a committee formed under the Prevention of Cruelty to Animals Act, 1960. The Breeding of and Experiments on Animals (Control and Supervision) Rules, 1998, the Establishment of Medical College Regulations, 2013, The Education (Amendment) Regulations, 2014 and the Drugs and Cosmetics Rules, 1945 and the legislations in place for regulating and keeping experimentation of animals in check and prevent the abuse of animals. In its pursuit to ending animal testing, India has banned animal testing for cosmetic products and ingredients an India and was the first South Asian nation to do so.
74 Dr. P. Suresh, ‘Current status of Animal Experimentation in India’(2015)
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Subsequently animal testing was banned in case of household-products like soaps and other surface-active agents. India is also actively exploring emerging technologies to replace animals in research. Despite several results in various fields that have proved that successful animal testing does not ensure that the product is suitable for human use, experimenting on animals still remains, as stated by doctors and scientists, an important part of developing a new product or carrying out new research. This article aims at studying the general view on animal testing in India and the laws in place for the same along with analyzing the steps taken in India to stop animal testing.
CHAPTER 2 ANALYSIS [2.1]Legal Provisions in India with respect to animal experimentation Animal welfare has been taken care of by the legislative and executive by implementing an intricate set of rules and regulations with respect to animal testing, when can animal testing carried out, what are the conditions to be strictly maintained by the experimenters and the repercussions for violating the same. This section of the paper aims at studying these regulations.
[2.1.1] Committee for the Control and Supervision of Experiments on Animals (CPCSEA) India has a strict set of law in place when it comes to animal testing. Animal experimentation in India comes under the Committee for the Control and Supervision of Experiments on Animals (CPCSEA). This committee was formed under the Prevention of Cruelty to Animals Act, 1960. The CPCSEA functions under the Ministry of Environment and Forest and its key principle is to take all measures necessary to ensure that animals are not subjected to undue pain and suffering, before, during and after the performance of experiments on them. Keeping in line with this principle, the CPCSEA has issued guidelines such as, Guidelines for the Reuse and Rehabilitation of Dogs, Care and Management of Equines Used in the Product of Biologicals and the latest CPCSEA Guidelines for Poultry/Birds Facility issued in 2020. The Breeding and Experiments on Animals (Control and supervision) Rules, 1998 is an Act passed by the CPCSEA in the furtherance of their principles. This Act has been amended twice, the latest being in 2006. The CPCSEA in its compendium also provides detailed definition and guidelines for standard of
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care that needs to be taken of the animals involved in testing, the conditions and the repercussion of violating these standards.
The Primary Functions of the CPCPSEA are;
Registration of establishments conducting animal experimentation or breeding of animals for this purpose. Selection and appointment of nominees in the Institutional Animal Ethics Committees of registered establishments. Approval of Animal House Facilities on the basis of reports of inspections conducted by the CPCSEA.
Recommendation for import of animal use in Experiments. Taking actions against establishments in case of violation of any legal norm/stipulation.76 As per the Guidelines provided on the regulation of scientific experiments on animals by the Ministry of Environment and Forests in 2007, set ethical principles have to be followed by the CPCSEA when making decisions related to animal testing. Principle 1 states that the purpose behind the experiment must be noble and significant for ensuring well-being of people. Principle 2 states that animal testing must be carried only if no other alternatives to it exist. Principle 3 holds the experimenter accountable for ensuring that minimum pain is experienced by the animal during an experiment and that the animals are treated with kindness and compassion while Principle 4 calls for proper care for the animal post the testing is completed and making sure that the animals are rehabilitated. Principle 4 requires the experimenter to maintain suitable living conditions for the animals before during and after the experiment and requires the animals to be handled by veterinarian and trained scientists.
[2.1.2]The Breeding of and Experiments on Animals (Control and Supervision) Rules, 1998 The rules under the Breeding of and Experiments on Animals (Control and Supervision) Rules, 1998 (referred to as the Act) set out the general requirements for the using and breeding of animals for research. It lays down rules regarding the maintenance of animal breeding facilities, personnel and regarding the procedures. According to this act, ‘experiment’ is defined as either a
76 Committee for the Control and Supervision of Experiments on Animals (CPCSEA), Functions < http://cpcsea.nic.in/Content/58_1_Functions.aspx>
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program or a project that involves the use of animals, Such usage is undertaken for acquiring knowledge related to biology, physiology, ethology or is of a chemical or physical nature.77
Rule 13 of the Act commissions the formation of the Institutional Animal Ethics Committee (IAEC) which comprises of members whose primary function is to oversee the functions of an establishment during the course of them carrying out the experiment. In case of experimentation on large animals, the case is overseen by the CPCSEA. The IAEC comprises of scientists from various fields along with a socially aware member and a nominee of the CPCSEA.
The Act has been amended twice. The 2001 Amendment expands and clarifies the definition of ‘experiment’, explains in depth the reporting and registration requirements and expands on personnel qualifications. The latest Amendment of 2006 adds, along with other things, the specification that experimenters must take into consideration, using animals ‘lowest on the phylogenetic scale’, experimenters must use the minimum number of animals to achieve ninety five percent statistical confidence and that experimenters should provide justification for not using non-animal alternatives78.
[2.1.3]Ban on Animal Testing under various provisions As a step towards putting an end to animal testing and promoting the use of various alternatives present today due to the technological advancements. The Establishment of Medical College Regulations, 2013 (Amendment) bans the use of vivisection in medical education. The Education (Amendment) Regulations, 2014, under the Pharmacy council of India prohibits the use of animals for the purpose of pharmacy education. The Drugs and Cosmetics Rules, 1945 under Draft Rule 148-C; bans the use of animals for cosmetics testing and Clause 135-B bans the import of cosmetics that have been tested on animals abroad.
[2.2] General view on animal testing and steps taken to put an end to it Animal testing has been used in fields of research, education and product testing since a long time now. This section of the paper aims at viewing the effectiveness of animal testing that is carried out and while doing so it also looks at the various alternatives to animal testing now available.
77 The Breeding of and Experiments on Animals (Control and Supervision) Rules, 1998, Rule 2(e) 78 ‘India Legislation and Animal Welfare Oversight’, AltTox (25 January 2016) < http://alttox.org/mapp/regulatory- policy/india-programs-policies/india-legislation-animal-welfare-oversight/ >
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[2.2.1]Animal Testing in Research The numerous studies carried out through animal testing have proved that experimenting on animals is a waste of life, time and resources. It is believed that all major medical advancement can be attributed to animal testing, however according to the Royal Society of Medicine, this claim is not conclusive in nature and they believe that animal testing must be a last resort in case no other means of testing is feasible.79 According to the US National Institutes of Health, ninety five percent of pharmaceutical drugs that are shown effective and safe in animal testing are a failure in human trials. The US Food and Drug Administration stated “Currently, nine out of ten experimental drugs fail in clinical studies because we cannot accurately predict how they will behave in people based on laboratory and animal studies.” Even in India, decades of drug discovery R&D80 has not produced any New Chemical Entity to enter the global markets. A few molecules were out-licensed to pharmaceutical giants across the globe. The failure of animal testing for providing successful outcomes for human diseases has propelled the scientific community to think about alternative methods of testing. India has been exploring the use of emerging technologies such as organs-on-chip as an alternative for animals in the field of research. According to the Indian Council of Medical Research (ICMR); emerging technologies that model complex human physiology-such as organoids and organs-on-a-chip, which are essentially laboratory- grown versions of human tissues, are starting to rival and in some cases outperform animals in their ability to model human diseases. As per paper published in the Indian Journal of Medical Research81, Soumya Swaminathan, the former director-general of the ICMR and now deputy director general of the World Health Organization, stated that these technologies have proven to be more cost effective than animal experimentation. The development cost of these alternatives are however higher.
While countries like Denmark, Brazil, Germany, Switzerland and Australia have research programs for developing alternative technologies, only a small number of scientists work on such technologies in India. The reason for this could be the fact that people of this discipline believe that the technologies are not ready. Addicam Rao, a biochemist at the Indian Institute of Science
79 The Royal Society, ‘Statement of the Royal Society’s position on the use of animals in research’, ( 13 May 2015, last updated 1 July 2019)
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in Bangalore said that studying disease or toxicity in a dish or using organs on a chip does not show how drugs are metabolized in the whole body82.
[2.2.2]Animal Testing in Education Even in the field of education, thousands of animals are dissected their bodies preserved for studies. Frogs, pigs and fishes are most widely used by medical institutions. Owing to the massive inhumane treatment of these animals, in 2012 the Ministry of Environment and Forests issued a landmark directive to the Medical Council of India, the University Grants Commission and the Pharmacy Council of India, mandating an end to animal dissection and experimentation by undergraduate and postgraduate students, pushing for the use of superior, non-animal methods of teaching. This was done citing the Section 17(2)(d) of the Prevention of Cruelty to Animals Act, 1960 which specifically states; “experiments on animals are avoided wherever it is possible to do so; as for example, in medical schools, hospitals, colleges and the like, if other teaching devices such as books, models, films and the like may equally suffice.” Subsequent to this ban, the Dental Council of India declared a ban on using animals to educate undergraduate and post graduate dental students. The Medical Council of India has banned dissecting and experimenting on animals in undergraduate courses and has restricted the use of certain species (such as cats, dogs, and monkeys) for other training purposes.83 The University Grants Commission also directed the colleges, establishments and institutions registered under it to use alternative methods for teaching anatomy, zoology and physiology and completely banned the use of animals for dissection and experimentation84.
[2.2.3]Animal testing in Cosmetics and Household-Products In the case of trials of cosmetic and household-products, harsh chemicals are shoved down the animals’ throats and toxic substances are rubbed on their raw skin that causes damage to their bodies. These tests along with being extremely harmful for the animals are also ineffective due to the huge physiological difference that exists amongst various species. It has also been observed that the safety of product measures by animal experimentation often results in development of
82 Gayathri Vaidyanathan, ‘India pushes for alternatives to animals in biomedical research’(nature, 1 October 2019)
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practices that are abandoned85 making the suffering of these animals unnecessary in the first place. Owing to these facts, in 2013, India became the first South Asian country to ban the testing of cosmetic and its ingredients on animals. The CPCSEA defines cosmetics as; ‘ any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic.’86 In a unanimous decision of the Bureau of Indian Standards (BIS) Cosmetics Sectional Committee, chaired by the Drugs Controller General of India, Dr. G N Singh outlawed animal testing for cosmetic products and ingredients throughout India. The ban was finalized with an amendment to the Drugs and Cosmetics Rules, 1945 in 2014. Along with banning animal testing, the Bureau also made alternative non-animal tests mandatory. According to the new rules, a manufacturer interested in testing new cosmetic products or ingredients must first seek approval from India’s Central Drug Standards Control Organization. The manufacturer is only given approval to test after complying with the BIS non-animal standards87. Along with ban on animal testing of cosmetics, India also banned the import of cosmetics that haven been tested on animals abroad. This prevented companies from outsourcing the animal testing and importing it back to India for sale.88 Subsequent to this decision, in 2014, Soaps and other Surface Active Agents Sectional Committee of the Bureau of Indian Standards’ Chemical Department removed animal tests as a requirement from household products such as cleaners, detergents and their ingredients. Therefore animal testing was banned for household products manufactures in India.
85 Natalie Regoli ’16 Key Advantages and Disadvantages of Animal Testing in Cosmetics’ (ConnectUS, 30 November 2018)
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CHAPTER 3 CONCLUSION Animal testing has helped the civilization advance in the field of research, education and discoveries, however with the advent of technology, these animals do not need to undergo the pain and inhumane treatment that they do during testing and experimentation. While regulations are set in place and bans have been enforced in various fields pertaining to animal testing, time and again these rules are violated behind close curtains and therefore there is a need to enforce strict system of accountability and serious repercussions. In the field of research on drugs and diseases, the non-animal models for research must be validated, development of alternatives like the organs-on-a-chip models must be encouraged and better capital investments and guidance from regulators must be directed to this. Options like computer (in Silico) modeling where in computational models are used for predicting toxicity must be explored. Many companies have started developing three-dimensional models of various human organs and parts for testing of various products thus eliminating the need for animal testing. Since it has already been established that the vast variation of physiology that exists between animal species and humans, it has been seen that animal experimentation more often than not renders futile results. Therefore for greater predictability it is better to use in Vitro and in Silico testing. Even in the field of education, software like The Digital Frog 2.5 and BioLab programs featuring fish, frogs, transgenic flies, foetal pigs, cats and invertebrates are commercially available as alternatives for learning biology and physiology. In India, Designmate, a Gujarat- based company has created a virtual frog dissection app called Froggipedia. Banning the import of products tested on animals abroad will take us one step further towards protecting the rights of animals in India. Therefore, though it is evident that steps are being taken to eradicate the use of animals for testing and experimentation and it is imperative that these initiatives are further promoted and funded to bring us to an era where animals are no longer tested or experimented on in the field of research and education and animal testing does not form an important component to be met in the manufacturing of various products.
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HOW CYBER SPACE IS A FRONT OF WAR BETWEEN U.S AND IRAN Hena Kurian 4th year BBA LLB (Hons) Reva University, Bangalore INTRODUCTION The cyberspace is the dynamic and virtual space that such systems of machine-clones make. As it were, the internet is the snare of customer gadgets, PCs, and which interconnect the world. The word cyber space was first appeared in the book ‘Neuromancer’ by William Gibson in the year 1984. It delineated an online virtual world of computers and subjects of society who uses it. The author portrayed cyber space 3D virtual world and the networks of computer creates this space.
According to the New Oxford Dictionary of English, ‘Cyberspace’ is the notional environment in which people communicate over computer networks. Since cyberspace is a virtual space, it has no boundaries, mass, or gravity. It simply represents the interconnected space between computers, systems, and other networks.89
Warfare has traditionally been executed within easily-defined periods of time and geographic boundaries. Wars are declared and when objectives are achieved or abandoned, the parties return home. These conflicts have been fought on identifiable terrain in the air, on the ground, under the sea, and as of the last 20 years, in space. Even the changing tools of war have been easily defined: the rifle, bomb, aircraft, tank, ship, et al. Some of the newer tools, such as the improvised explosive device, are equally tangible and identifiable. But the internet and its expansionary nature have opened a whole new domain for attacks and warfare. There are no geographical boundaries and the domains are beyond the reach of traditional norms such as the Geneva Convention. This evolution of cyber warfare is a game-changer. It changes how we assess our enemies, meet their challenges, and enact policies that match the growth of the cyber domain. To determine the best policies and plans of action, government and civilian entities must cooperate to develop common definitions and goals and implement responses90.
89 https://www.toppr.com/guides/business-laws-cs/cyber-laws/introduction-to-cyberspace/ 90 https://www.bushcenter.org/catalyst/modern-military/sciarrone-cyber-warfware.html
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Cyber space is the current generation’s new front of war. The battle field expanded from land, water, air to cyber space also it is also a virtual war. In cyber warfare it is not just computer against but a much broader concept. It’s an activity through cyber space or using digital means to attack an opponent. These attacks would vary from state sponsored with an aim of disrupting information system, to individual hacks and trying to make a make political statement or malafide influence in others. It includes activities of non-state sponsored terrorist organizations. The abundant access of internet offensive cyber-attacks has become frequent occurrences at all levels.
Instead of sniper pulling trigger of a gun as in physical war, here in cyber warfare war is being fought on keyboards with ones and zeros acting like the soldiers executing orders. Due to the development of cyberspace, the battlefield has been expanded to anywhere internet extends. Our business, political, social activities are completely relied upon technology means escaping from the impact of cyber warfare is improbable. An individual can control a bunch of computers, making it even more difficult to find who’s behind the action.
RELATIONSHIP BETWEEN U.S AND IRAN U.S and Iran have dreadful diplomatic relationship since 1979. The direct bilateral political relations between the two governments were severed following the Iranian Revolution in 1979 and the subsequent seizure of the embassy of U.S in Tehran. Priorly the Persian empire, presently known as Iran was ruled by series of kings called ‘shah’ past 2500 years ago. In 1950 people of Iran elected Mohammad Mossadeq a secular democratic as Prime Minister. Later he nationalized British and U.S petroleum holdings returning Iran’s oil to its people. But in 1953. The U.S and Great Britain engineered a coup d’état that removed Mossadeq and installed Reza Pahlavi as Shah. The young Shah was known for opulence and excess and people starved due to this. He abused his power and tried to westernize Iran as a result of that an era of torture begun. In 1979 the people overthrew the Shah. The exiled Ayatollah Khomeini returned to rule in Iran. He created chaos and death squads. Dying to cancer Shah was given asylum in U.S. It emerged antagonism between Iran and U.S.
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Later the U.S embassy hostage crisis, Iran contra scandal (1985-86)91, Iranian passenger plane was shot down in 1988 these incidents deteriorated their diplomatic relations. Later 2000’s U.s accuses Iran of a clandestine nuclear weapon program which Iran denies. Then UN imposed sanctions on Iran.
Then in 2015 after a flurry of diplomatic activity, Iran agrees for a long-term deal on its nuclear program known as P5+1 with world powers like UK, US, China, France, Russia and Germany. Under an accord that Iran agrees to limit its sensitive nuclear activities and allow in international inspectors in return for the lifting of crippling economic sanctions.
But in 2018 U.S President Donald Trump abandoned the nuclear deal, before reinstating the economic sanctions against Iran and threatening to do the same to all countries and firms that continue buying oil from Iran. Iran’s economy fell into deep recession.
Relations between the US and Iran compound in May 2019, when the US fixes the sanctions focusing on Iran's oil trades. Accordingly, Iran starts a counter-pressure crusade. In May and June 2019, blasts hit six oil tankers in the Gulf of Oman, and the US charges Iran.
On 20 June 2019, Iranian powers destroy a US military automaton over the Strait of Hormuz. The US says it was over global waters, however Iran says it is over their region.
Iran starts moving back key duties under the atomic arrangement in July,2019.
2020: Qasem Soleimani death
On 3 January 2020, Iran's top military officer, Gen Qasem Soleimani, is murdered by a US drone strike in Iraq. Iran pledges "extreme vengeance" for his demise and pulls again from the 2015 atomic accord.
HOW CYBER SPACE IS A WARFARE IN BETWEEN IRAQ AND U.S Assume that the United States, in contradicting Iran's associated advancement with nuclear weapons, concludes that the most ideal approach to stop or moderate Iran's program is to undermine the Iranian financial framework, computing that the resulting money related weight would deter or keep Iran from proceeding on its present course. What's more, further guess that
91 https://www.history.com/.amp/topics/1980s/iran-contra-affair
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the United States draws up the accompanying four choices, which are all accepted liable to deliver generally a similar effect on Iran's money related framework and effect sly affect Iran's economy and populace:
(1) Military air strikes against key Iranian financial offices to pulverize a portion of the money related framework's physical foundation;
(2) An administrative cut-off of Iranian banks from the U.S. money related framework, making it hard for Iran to lead dollarized exchanges;
(3) Covert flooding of the Iranian economy with fake money and other budgetary instruments;
(4) Scrambling Iranian financial information by penetrating and defiling its money related segment's PC systems.
Obviously U.S will choose the path of virtual protest instead physical protest. That’s the reason why cyber warfare has acquired popularity.
The U.S and Iran cyber conflict have been active for past years but current crises came because of the U.S drone attack over Senior Iranian General Khasim Solemani.
Many weapons in cyber space are software vulnerabilities and these vulnerabilities can affect networks that transportation, drive health care, power generation and distribution and manufacturing. As a result, it is difficult to protect the systems which used to secure and identify people. As biometrics is not with ink and pen or finger print, now technology has converted it into electronic versions which are stored in digital database. The corresponding manner will be there in case of warfare also. These modern challenges give risk worthy approach towards national security. Encryption technology causes threat to national security.
But the activities done in accordance with the intelligence gathering and even expand as the digital world invade into almost all layers of life. So, there is distinction between intelligence gathering and cybercrime. If intelligence gathering id done as like a unauthorized access to a protected system it will be cybercrime. But if it is done by specific authorization like an investigation, it doesn’t amount to crime.
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Cyber warfare could make traditional warfare or battle grounds obsolete. The traditional system may be less useful in digital time era because of inefficiency in digital time and it cannot provide protection from others.
There are cyber-attacks by individuals as well as state itself against states. In the cyber attack by United States Cyber Command which conducted online attacks against Iranian intelligence group because American officials believe that Iran has conducted the attack of oil tankers against U.S and Persian Arab countries. Even there are specific allegations on Iran in 2012 because of hacking into American banks. Multiple computer systems were targeted which includes computer systems that control Iranian missile launches.
CYBERWARFARE AND IRAN Iranian Revolutionary Guard Corps (“IRGC”)’s Brigadier General Mohammad Hossein Sepehr has mentioned that Iran with its cyberwarfare capacities are “the fourth biggest cyber power among the world’s cyber armies.”
Cyberwarfare is a type of Iran's "soft war" military strategy. As they were both the victim and wager of cyberwarfare, Iran is considered an emerging military power in the field. Since November 2010, an organization called "The Cyber Defense Command" has been operating in Iran under the supervision of the country's "Passive Civil Defense Organization “which is itself a subdivision of the Joint Staff of Iranian Armed Forces. According to a 2014 report by Institute for National Security Studies, Iran is "one of the most active players in the international cyber arena"92. In 2013, a Revolutionary Guards general stated that Iran has "the 4th biggest cyber power among the world's cyber armies93."
Iran was the victim of cyberattack by infiltrating the cyber-worm ‘Stuxnet’94 into its nuclear facility in Natanz, the worm destroyed over 1000 nuclear centrifuges and it has delayed Tehran’s atomic program. It is alleged that the worm affected over 60,000 computers but the Iranian Government denies it. Stuxnet made Iran launch into the world of cyber space. Because of this
92 Bastani, Hossein (December 13, 2012). "Structure of Iran's Cyber Warfare". Institut Français d’Analyse Stratégique. Retrieved March 18, 2015. 93 "Israeli Think Tank Acknowledges Iran as Major Cyber Power, Iran Claims its 4th Biggest Cyber Army in World". Hack Read. October 18, 2013. Retrieved March 18, 2015. 94 "Stuxnet and the Future of Cyber War". James P. Farwell and Rafal Rohozinski.
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cyber-worm Iranian Government invested a lot into building cyber defences to maximize their cyber-attack capabilities.
Iran is accused of cyber attacking U.S and Israel and Persian Gulf countries and 2012 attack on banks of U.S but both are denied by Iran. This dispute between Iran and the United States has been called "history's first known cyber-war" by Michael Joseph Gross mid-201395.
According to Ingram Micro96, an American Distributor of Information and Technology ‘Iran has a very sophisticated broad spectrum of capabilities which are able to target critical national infrastructure, financial institutions, education establishments, manufacturers and more’ and they said that ‘Iran has a first world cyber-attack capability’. Following Soleimani’s death there is possibility of increase in cyber activities of Iran against U.S. Iran may combine with their allies like North Korea for exchange for missile and nuclear technologies. There is also a possibility of other countries use Iran as a substitute to create inconvenience to U.S and its allies.
In January of 2020, first Iranian led cyber-attack happened, the Federal Repository Library Program website had been made by hackers alleged to be working for the Iranian Government. As there are no proof to link hackers to Iran, but only one sure matter is that it’s a website of a nation state Government’s which is looking for maximum disaster.
According to Mike Beck, global head of threat analysis at Darktrace says the threat to critical national infrastructure is significant. “Sophisticated groups are using advanced software capable of going under the radar of traditional security controls and planting itself at the heart of critical systems.“Iran will be prepared to burn accesses that they have developed over the years in a dramatic show of force, potentially impacting U.S. governments, healthcare agencies and banks.97”
95 "Silent War" July 2013 Vanity Fair 96 The Iran Cyber Warfare Threat: everything to know-Kate O’Flaherty
97 https://www.forbes.com/sites/kateoflahertyuk/2020/01/06/the-iran-cyber-warfare-threat-everything-you-need-to- know/#6f1a864615aa
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-STRUCTURE OF IRAN’S CYBER WARFARE Iran established the highest governing body which assigned with cyber space is High Council of Cyberspace (Shoray-e Aali-e Fazaye Majazi)98. this organization was enforced under orders of Ayatollah Khamenei and it is to implement high level policies on the cyber space. After foundation of the new governing body all other Iranian organizations related to cyber activities should follow their policies. As well Iran has a Cyber Army which is comprising of highly acquainted individuals in information technology and professional hackers who avoid publishing their identities. This is not a registered organization but still evidences suggest that the group is affiliated with IRGC. They have the capability to hack foreign based media and government websites of different countries. In December 2011 Eric Schmidt99, the executive chairman of Google commented in an interview with CNN on Iran’s activities on the cyberspace and said that the Iranians had succeeded in taking over the information traffic on the Internet through intelligent hacking. According to him, Iranian hackers had succeeded in diverting the flow of information in Denmark towards Iran and then return it back to Denmark. He concluded that, “Iranians are unusually talented in cyber war for some reason we don’t fully understand.”
Iran is about to implement measures to control cyberspace
1) National internet project This project is to provide security on internet, to resist against internet attacks and to battle the US in the soft war. This internet will be having higher speed than normal Iranian internet. Officials tells that once national internet project is established the regular internet will be shut down from Iran. 2) National internet search engine Iranian official publishes that they will implement a search engine by swapping global search engines Google/Yahoo named as “Ya Hagh,” means ‘Oh God’. The minister of Telecommunications has informed that after the national search engine is establish, all data centers and hosting shall take place inside Iran (many of these hosting sites are presently in the US).The police chief Ismail Ahmadi-Moghadam, declared that “Our
98 http://www.strato-analyse.org/fr/spip.php?article223#outil_sommaire_3 99 http://www.strato-analyse.org/fr/spip.php?article223#outil_sommaire_3
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computer information centers should not be outside the country,” and added that “Google was not a search engine but a spying tool.” The experts by considering the progress Iranians have made by accessing the free world through the Internet it ensures their continuation is in progress. Projects which if successful, will make Iran more and more similar into a model that already exists in another part of the world: North Korea.
CYBERSPACE AND U.S As United States is a highly developed country so it’s a highly dependent of cyberspace also. They have been victim and attacker of cyber-attacks.
The Morris worm incident was the wakeup call to U.S into the cyber world. While first cyber- attack was 1986 Cuckoo’s egg hacking which attacked U. S’s computer systems by Soviet Union. Morris worm incident made them realize that innovation which was solely for interconnectivity now is a concern of security. At the national level the Intelligence Community of defence capabilities is monitoring the matters dealing cyber warfare.
The IC’s policy of cyber-attack is, identifying attacks, informing and report, providing options, damage assessment.
BUDAPEST CONVENTION ON CYBER CRIME Enactment unmistakably characterizing the lead comprising a criminal offense and setting up forces to make sure about electronic proof constrained by conditions and protects is the reason for a viable criminal equity reaction to cybercrime that meets human rights and rule of law necessities. The Budapest Convention on Cybercrime assists States with accomplishing this objective.
NEED OF A GLOBAL LEGISLATION FOR GOVERNING ACTIVITIES IN CYBER SPACE The main drawback of the Budapest Convention is that only 67 countries are the signatories of it.
There are end number of fundamental policy recommendations at international level. Most policymakers and legislators do not have comprehensive capability to address international
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cyberattacks. For example, there is not an all-inclusive definition for ‘acts of war’ in the non- kinetic sphere, and the existing definitions are unclear and not shared and agreed upon at the international level100. Because of lack of collaboration in international level, it prevents the formation of preventive mechanisms in cyber space.
CONCLUSION Almost two decades ago, Internet evangelist John Perry Barlo penned a declaration of the independence of cyber space, declaring the internet to be a ‘new home of the mind’ in which governments would have no jurisdiction101. As history proves warfare strategies must adapt to new domains. Cyber space is that next domain. As like traditional warfare and cyber warfare will also pave its way. The better solution to this scenario is to impose regulations and policies in international level. If the cyberspace is not being regulated through legislature in future, we cannot predict what all chaos will happen in future. The high-risk information of several nations are at peril because of end number of unscrupulous people in the cyber world.
The lack of formal legal framework makes cyberspace nobody's domain. No single individual, entity, or government owns or controls cyberspace. In property law, cyberspace may be considered res nullius; it is incapable of private appropriation just like outer space. The internet, an effective means of social interaction that inevitably altered human life is the new normal. Its utility to humankind could not be overemphasized as much as its inherent peril could not be underestimated. The internet is a dynamic or ever-evolving work-in-process. What is in vogue today may be passed tomorrow. Such dynamism characterizes the architecture of cyberspace. Thus, it is surely difficult for the government to regulate cyberspace based on its architecture. The best, and perhaps utmost, that the government can do is to regulate use of cyberspace. The emphasis of the regulation would be on the conduct of the user, and its consequent effect.
100 The United States cyber warfare history- Omry Haizler 101 Law and boders- the rise of law in cyberspace SSRN-ID535
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CHILD LABOUR: A DARK REALITY ON MINING INDUSTRY
Author: K.R. AZAD LL.M. (Batch: 2019-20) The National University of Advanced Legal Studies (Nuals), Kochi E-mail: [email protected] Phone no: 9496-35-1389, 9495-64-1389 INTRODUCTION Child labour is the exploitation of childhood through any form of work by children. Deprive of childhood, interfere inability to attend regular school are the things that deprive a child of exploitation and also they will be emotionally, psychologically, socially or morally harmful.102 The children are the future of the nation; if we include the children and make their life in trouble; it’s always going to hit back into that country itself. Each child around the globe should be free and happy in their surroundings where they stay safe, play, educate and raise. If they are not satisfied with their surroundings, it will affect their life so hard. The child is someone who is not ready to pick up huge tasks. They should live a simple life smiling all around. But look at our surroundings, do you see anything terrible that affect children in your streets. If not, you are not looking at them carefully.
Today, the world is seeing a horrible pandemic COVID 19, but still, if you know the world, you can see the considerable rise up of children working with their parents or all alone. Millions of children are at risk; most of them are doing highly dangerous jobs. It is one of the points where we should see that due to many reasons children are not going to the schools and get educated. Once they get trained, the world will smile. Child labour can see in every country. The International Labour Organization (ILO) in its report of 2013, says that there are around 265 million working children in the world, which constitute approximately 17% of the world child population. The sub-Saharan African region where the child labour is more prevalent and the United Kingdom is reducing their child labour in the last couple of decades.
According to the UNICEF103 2017 report says that in Country India, around 12% of the children are engaged in any industries. In India, many of the states are having children working as labour. When such a thing happens, the child’s education is under trouble, and it will lead to many
102 https://www.ilo.org/ipec/facts/lang--en/index.htm 103 The united nations international children's emergency fund
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illiterate children in the country in future. The employment rate of the country will also go down, high risk of potential that children leave their school early and the children who are not coming back to schools, remain outside the world of employment. The children are working on agriculture, on armed conflicts, commercial sexual exploitation, domestic work, mining and quarrying, and also trafficking in children.
Many of the countries with strict laws implemented on child rights, then also many children can be seen engaged in streets and many other economic activities. Among them, many are working in hazardous conditions. Many children are working in various sectors like firework, chemical processing units, coal mining etc. besides these many children engaged in the domestic services which often hidden from the public eyes. Many of the children are also kidnapped and abducted from their homes and sold in many markets. Child traffickers are also operating in many countries. They have supplied to various reasons such as labour, beggary, and sexual exploitation. Lakhs of children missing each year from India and most of them, never found.
INDIA AND CHILD LABOUR Child labour is a social wrong, malice that takes away most of the children’s most innocent phase of human life. The children are working for long hours for a little amount of money for their living hood. Most of the children brought to this job by their parents because of poverty and related problems. The child below 14 years of age are still in India, doing many labour works in this 21st century and that too most of them in the hazardous conditions. India is a home of a large number of child labourers in the world. The total number of children in India as labourers aged five to fourteen is at 10.1 million out of the 260 million children in that age group which itself is a higher risk.104
In 2001, an estimated 1% of all child workers or about 1,20,000 children in India was in hazardous jobs.105 When we see these statistics, we should always understand that India is a country which is protected and giving safeguard under the law and constitution. In India, most of the problem based on poverty, which is the most significant cause of child labour. It is an unnatural result. Poverty and inadequate public education are the leading causes of child labour in India. Schools and teachers are not available. Children don’t have an alternative—the girl
104 Age Data C13 Table (India/States/UTs ), Final Population - 2011 Census of India 105 "Children and Work (Annual Report 2009)" (PDF). Census 2001. 2008. p. 108.
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child, especially in India whose education tends to be lower across the world, including India. So what happens is they are pulled out of the schools and provide the child labour rest of her life.106
Most of the Indian families who are in poverty sets a great example forcing the child driving into the workplace. These children’s earning is a source of the family’s survival which itself contribute 25% - 40% of the household income. So such parents won’t allow their children to get educated and the salary is less, so there is no other way to supersede it. When children are not going to school, illiteracy gets high, resulting in child labour rather than children going to school for their primary and secondary level of learning. It is the effect that, the child’s skill or acquiring the ability to improve their prospects for a decent adult working life.107
90% of the child labourers are in India. The non-availability of many of the infrastructure and far distance schooling makes them do their working jobs. Almost 50% of the government schools don’t have the necessary facilities like blackboard, books or a proper building. But despite reports says that in the 2013 period the increase of children going to school in the age group 06- 14 years have increased. Child labour has become an inevitable part of India. Many policies had made to eradicate the child labour in India still; the rate of increase of child labour seen. The 2015 amendment makes it very clear that children below 14 years of age are allowed to work on the non- hazardous work, and it mentions that no children below the age of 14-18 years are permitted to work in the hazardous industries. Still, government legislation cannot control child labour efficiently.
CHILD LABOUR AND MINING INDUSTRY A Mine, defined as any undertaking, whether public or private for the extraction of substances by employing persons underground the earth’s surface.108
According to the ILO report, it says that around one million children who are about five to seventeen years of age across the world employed in the mining industry. Mining industries are the most dangerous and most hazardous industries around the world, which are infamous for operating the high number of children. If at all, there is legislation in the country, because of
106 "Beyond Child Labour - Affirming Rights" (PDF). UNICEF. 2001. 107 "Child labour - causes". ILO, United Nations. 2008. 108 The Minimum Age (Underground Work) Convention, 1965
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low-income family background and poverty struck, most of the children either directly or through parents work in such an atmosphere. Child mining can found in the mines of Asia, Africa, and Latin America and parts of Europe. The western countries, the United States and the United Kingdom, are the countries that are main destinations of the products of child mining. Consumers buy the products from the retailers with disregard of the origin of their products and the human toll that helped to produce it.
Children are most suitable for the mining works of their small in size. The miners go and pick the children mostly rather than an adult who can pass through the underground to mine tunnels and works on minimal wages to dig Gold, Diamond & Coal. Working in the mines includes the digging of the shaft, crushing stones/ rocks, carrying ore in gold, diamond and coal mines and digging, scraping and lifting in salt mines. They also do work or taking and crushing large stones in quarries. These children from an age group of five to eighteen who employed for twelve to fifteen hours for a sum of 2 dollars per day.
It is one of the most dangerous industries than any other, children working in the industry are getting exposed to various chemicals which are most harmful to their health. Many health problems are reported such as overexertion, respiratory illness, headaches, joint problems, hearing and vision loss etc. The children in Gold mines exposed by Mercury which used to extract gold which, affects the person’s brain, heart, kidney and lungs and also long term disabilities. Ten to Fourteen Hours of working in the dark mines which filled with these chemicals, high risky for a child at his/ her young age. The risk also included in such type of work, such as the collapse of mining walls, falling off rocks, explosions etc. Meghalaya coal Mining is an example of this type of accident and risk involved industry. Many of the children have injured in many parts of the world due to such illegal mining activities. Carrying Heavy stones in their head and backwards which are done by adults, are now done by the children in mines. Such tasks at the tender age is a bad sign for the health for their future. Children working at the mines die at an early age because of these illegal activities that are going and taking part in many parts of the world, irrespective of the laws that are made in that country to avoid such actions.
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RAT HOLE MINING – A DARK LIFE Most of the people in the world should have known what Rat-Hole mining is all about. The which had taken place in the Janita Hills in the Indian State of Meghalaya.109 This incident had brought into the world attention of the Illegal Rat-Hole Mining. Almost 15 workers trapped in the 320-350 feet deep coal mines. From this incident, most of the people came to know that illegal mining activities are going throughout the country. It is a mining technique that had started in the British era. It is called rat-hole because of its size which is a small hole of around ( 3 to 4 feet in diameter), so in such tunnels, it is very suitable that children can crawl into the rat hole very quickly rather than a slim, thin person. That is why most of the mining industries employers, employees children rather than an adult for nominal wages.
The legislation110 clearly says that the persons below the age of 18 years, prohibited from hiring to an employee in the hazardous mining industry. Still, thousands of people are utilising the children in India and the world for such mining industry. The illegality always comes when there is some sort of accidents like that happened in India. Till then, no one is responsible for the illegal mining that is taking place in different parts of the country. According to the NGO111 based in Shillong says that around 70,000 children employed in these type of rat hole mining in Meghalaya. The NGO also put a PIL in which the rat hole mining, banned. But despite the ban the illegal mining still taking place in Meghalaya as well as in each corner of the country. Most of the children are trafficked and employed from Bangladesh, Nepal and other neighbouring countries.
Children working in the rat hole mining are having the fear that one day all these dark mines that they work will cave in and bury them alive. These children in the remote part of north-eastern India begins work in the middle of the night, ready to dig pits, squat through narrow tunnels and cut coal shards. The twelve hours of work might earn a child around 200 Rupees for a day’s work. So these children leave school and go behind the mining activities. Many of them who wanted to study doesn’t have the facility to explore. Most of the children save their money to return to school. Because of not going to school, they miss their friends, and the dreaming of reaching into heights is a distant dream for these children working in these mines.
109 https://en.wikipedia.org/wiki/2018_Meghalaya_mining_accident 110 The Mines Act, 1952 111 https://www.impulsengonetwork.org/our-work/child-labour-rat-hole-mining/
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Due to the tradition, exemption of the Mines Act in Meghalaya given as a special status. To the northeastern state with their significant tribal population. It means that many of the mining and customary laws overrule national regulations. In the State, any landowner can dig for coal, and prevailing laws do not require them to put any safety measures in that place. The mine owners find it cheaper to extract the coal using these crude, unscientific methods and also it is effortless to hire the children of these areas for the employment in the coal mines.
LEGISLATIVE RESPONSE – CHILD LABOUR The legislative response is the part in which how the legislature has acted upon the child labour and what is its importance to it in India has been specially mentioned.
1. THE CONSTITUTION OF INDIA The makers of the Indian constitution had already included the provisions for the protection and developments of children. Without right education for the children, they cannot rise to or progress to the stage of growth in the real sense, and if they are not reaching heights, it is the country that fails in making up of the children.
a) Preamble: itself says that Justice, Social, Economic and political and equality of status and opportunity. It means that no one can deprive of children from all opportunities to develop their, socio, economic and political status.
b) Article 15(3): which states that the State shall make special provision for women and child.
c) Article 24: Clearly, Prohibits the Employment of children
d) Article 39(e) &(f): State shall safeguard the health of children who are in tender age and offered opportunities and education of children.
e) Article 45: says about the Free and Compulsory education for children.
f) Article 21 (A): as a fundamental right, it is said that the child who is six years to fourteen years, should give Free and compulsory education
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2. THE MINIMUM WAGES ACT, 1948 The minimum wages act provides for the fixation of minimum time rates of wages by state governments it also includes guaranteed time rates for wages for different scheduled employments, localities or different scheduled class of work, adult, adolescence, children and apprentices.
3. THE FACTORIES ACT, 1948 The Factories act expressly prohibit child labour under its significant provisions. It is nothing but the protection given to child workers against exploitation.
4. THE PLANTATION LABOUR ACT, 1951 The act only permits the children above 12 years with the certificate of a surgeon, but never allow or is prohibited the children below the age of 12 years.
5. THE MINES ACT, 1952 The employer should never give work to the child or allowed to present in any part of the mining industry, which is below under the earth crust or in any open cast which, used for the mining operations.
6. THE MERCHANT SHIPPING ACT, 1958 N The act prohibits child below the age of 12 years of age in a ship, except a training ship, a home ship where other family members work. It prevents the employment of young persons below the age of 18 years as trimmers and stokers except under certain conditions.
7. THE CHILDREN ACT, 1960 The act is essential legislation which prohibits the employment of children for begging and exploitation.
8. THE APPRENTICES ACT, 1961 Unless he/she is 14 years of age, no one has the right to be engaged as an apprentices or any for of apprenticeship training, and also the standard of education and fitness as prescribed should be satisfied.
9. THE CHILD LABOUR PROHIBITION AND REGULATION ACT 1986
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The object of the said Act is to prohibit the engagement of children in certain employments and regulations of the condition of work of children in certain other employments.
10. UN- THE RIGHTS OF THE CHILD The said declaration is dealt with the special provisions and facilities to develop physical, mental, moral, and social status. It gives high security and protection against exploitation and has given particular importance.
86TH AMENDMENT112 The Amendment inserted 21A of Constitution of India which gave all children between the age of 06 and 14 a fundamental right to free and compulsory education.
Article 45: The state shall attempt within ten years from the commencement of this constitution, to the children until they complete fourteen years.
Article 51A(k) (added): a parent or any guardian of a child to provide opportunity until the child complete fourteen years of age.
JUDICIAL RESPONSE – CHILD LABOUR In the past, many Judicial decisions made to prohibit child labour and make it a punishable offence. The Honorable Supreme Court of India has a significant role in the rights of the child. Also, it played an essential role in the development of child welfare and child rights. Following are some of the judicial pronouncement that had made by the courts in India.
1. M.C. Mehta v. State of Tamil Nadu113
In this case, the apex court, while interpreting Article 21 of the constitution said that child should get education until they complete the age of fourteen years and is an integral part of the right to personal liberty.
2. P.U.D.R. v. Union of India114
112 https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-eighty-sixth- amendment-act-2002 113 AIR 1991, SC 417 114 AIR 1982, SC 1473
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\The state government directed to amend the schedule of the employment of children Act, 1938, the further court held that construction of work is a hazardous occupation.
3. Salal Hydro Project v. State of J &K115
The cour said that child labour is a difficult problem and its purely an economic problem. As far as the poverty is there, eradication is not possible. Legislation cannot do anything on that.
4. Bandhua Mukti Morcha v. Union of India116
The Apex Court held that child today should be developed to be responsible and productive, and also child should be assured social and physical health.
5. J.P. Unnikrishnan v. State of Andhra Pradesh117
The court held that primary education is an aspect of personal liberty and thus elevated it to the level of the child’s fundamental right. A child has the fundamental right to get free education, up to the age of 14 years. By saying that, the court directed the state government to create circumstances facilitating schooling of below 14 years of age.
6. People Union For Democratic Rights V. Union Of India118
First, the Supreme Court considered the meaning of “ Hazardous Employment.” In which the Apex court held that the construction of work is a hazardous occupation. Working in dangerous industries by a child below fourteen years is prohibited.
7. Mohini Jain V. State Of Karnataka119
The Apex court held that in several cases, the fundamental right to education of children always flows through Article 21A of the constitution.
8. P. Cherriyakaya v. Union of India120
115 AIR 1984 SC 177 116 AIR 1997 SC 2218 117 1993 1 SCC 345 118 AIR 1991 SC 1473 119 1992 SC 1858 120 AIR 1994 Kerala (2)
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The Court held the right to education has been treated as one of the intellectual importance in the life of an individual and has been recognised all over the world. Without knowledge provided to the citizens of this nation, the objective set cannot achieve, and the Constitution would fail.
9. State of Maharashtra v. Sant Dnyaneshwar Mahavidhayala121
The court held the country is committed to providing education for all the persons of all, the priority s given to the children. They should provide free and compulsory primary education and the special needs for the eradication of illiteracy. Article 21A would cover primary and secondary education.
CONCLUSION The child labour is a sin, a social evil that has to eradicate from a country—the problems of child labour exploitation in the mining industry. The legislative and judiciary both have said that the children below 18 years of age should not be employed in hazardous industries. But still, in India, it's happening throughout the country. Where ever you look, some children are working fr their livelihood. The constitution itself says that the children should give at least primary education. Without knowledge, children in a country cannot step into another milestone.
The disease of child labour in the mining industry should take away. Otherwise, many children in the country will not be having a primary level of education. To find a proper mechanism to tackle these disease government should come forward. The instruction given is not satisfactory; it is not capable of fulfilling the economic needs. The negligent behaviour of parents indulges the children into work which is one of the risks to their socio-economic status. The government should note the illegal mining in the country and the children employed in it. The children should give education if they see working at any type of jobs. People should always look at your surroundings that whether there is any illegal thing happening and if there is try to report the same to the respected officials.
A child is the father of a man – William Wordsworth.
121 MANU/SC/1397/2008
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IMPACT OF PSU BANK MERGERS ON THE BANKING SECTOR IN INDIA Nimit Gupta & Kanishka Bubna NMIMS School of Law, Mumbai, Business Law
ABSTRACT: Mergers are the strategic union of two organizations and these unions are orchestrated between banking institutions not only with the intention of saving banks from financial doom but also to fortify their resource pool by increasing employee strength, branch network and business operation size. An effective banking system is the bulwark of a flourishing economy and hence the financial intermediation of banks has been regarded supreme since its inception in India from concepts like that of “Sahukari”. The nationalization of banks between 1960 and 1970 initiated, well-intentioned at the time, has been exploited and misused by business to make elephantine borrowings against little or no commensurate collateral. These malpractices when coupled with perfunctory regulation by the regulatory authorities resulted in the exponential rise in non-performing assets that ultimately burdened not only the banking sector but also the economy as a whole. The aftereffects of the announcement of the “Mega Merger” of 10 PSU banks into 4 by the India finance ministry in early 2020 are yet to be felt by their customers, debenture holders and employees and this paper has been drafted with the intention of understanding the longstanding impact of such a decision not only on the banking sector but other variables and industries that form a part of the Indian economy. KEY WORD: Merger, Non-performing Assets, Mega Merger, Public Sector Undertaking (PSU) Banks, Reserve Bank of India ------Date of Submission: 19-10-2020 Date of acceptance: xx-xx-xxxx ------
I. INTRODUCTION “A banking corporation is wholly a creature of statute, doing business by legislative grace, and the right to carry on a banking business through the agency of a corporation is a franchise which is dependent on a grant of corporate powers by the state”122 As financial institutions, banks remain unique in that they not only accept and receive a bountiful of public funds, but also mobilize and leverage the same liquidity in order to promote credit creation. A bank is regarded as the
122 Black’s Law Dictionary, 9th Edn., (2009) 165
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custodian of a common man’s savings and hence the failure of the banking sector is commensurate to the failure of an entire economy. Banks in India drive social change and economic upliftment but are so interlinked in the way they impact society that if one bank fails, the resulting burden on other banks can cause them to fail too. If a bank is not able to remain cashflow positive for an extended period of time, it must either liquidate or merge with another more financially sound bank in order to survive. Obsolete technology, faltering market efforts, excessive loaning at low interest rates, loss of customer confidence and inability to compete with other banks is what leads to the ultimate demise of a bank. 14 of the total 19 public sector banks (PSB) in India have been posting consecutive losses for FY19 and FY18 to the tune of Rs. 74,277 crores and Rs. 65,623 crores respectively.123 It is this decline in revenue that led Finance Minister Nirmala Sitharaman to announce the merging of 10 PSB’s into 4 larger, more established banks.124
A merger is the combination of two or more separate entities into one larger entity. The primary purpose behind initiating a merger is to expand organizational strength and operations locally and internationally by capitalizing on the fresh infusion of funds, workforce and other resources. This expansion helps organizations to benefit from economies of scale while eliminating competition, providing new life to loss making companies. While the Reserve Bank of India (RBI) is the primary regulatory authority for all banks in India, it is the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and 1980, or the Bank Nationalization Acts, that is considered the regulatory framework for the merger of PSB institutions.
II. IMPACT OF NPA’S AND RESULTING MERGERS ON BANKING IN INDIA A non-performing asset (hereinafter referred to as ‘NPA’) can be elucidated as a credit facility in respect of which the interest and/or instalment of principle has remained ‘past due’ for a specific period of time.125 The development of banks and financial institutions plays a dominant role in the financial stability and economic health of a country. The increase in NPA’s in banks and financial institutions has proven to act as a hurdle in the smooth flow of credit in the country which in turn caused a domino effect on the economy.126 According to the RBI, Public Sector Banks represent 90% of the total NPA’s in India which can be valued at Rs. 400,000 crores while the Private Sector Banks
123 FE Online, 14 PSU BANKS POST LOSSES FOR 2 CONSECUTIVE YEARS THE FINANCIAL EXPRESS (2019), https://www.financialexpress.com/industry/banking-finance/provisioning-pressure-14-psbs-post-losses-for-2- consecutive-years/1599129/ (last visited Sep 9, 2020). 124 ET Online, Finance Minister Nirmala Sitharaman announces mega merger, 10 PSBs amalgamated into 4 entities The Economic Times (2019), https://economictimes.indiatimes.com/industry/banking/finance/banking/nirmala-sitharaman-pnb-obc-united-bank- to-be-merged/articleshow/70909247.cms?from=mdr (last visited Sep 9, 2020). 125 Master Circular , INCOME RECOGNITION, ASSET CLASSIFICATION, PROVISIONING & OTHER RELATED MATTERS (2004), https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=3702&Mode=0#:~:text=For the above category of, respect of a Term Loan. (last visited Sep 19, 2020). 126 Atul Mohan and Kapur Puneet, A practical guide to Non-Performing Bank Advances, p.1, Lucknow, Vinod Law Publications & Agarwal Law Publications, 1996
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account for the remainder of 10%.127 The primary reasons behind the status quo is believed to be the lenient lending by financial houses to big corporate houses during India’s economic boom in the early 2000s and the subsequent non-repayment of these loans due to the financial crisis that followed.
The mega merger was announced by the Indian Government in August 2019 and came into effect in April 2020 as an effort to combine the infrastructure, assets, liabilities and facilities of 10 PSB’s into 4 banks. Punjab National Bank, Oriental Bank of Commerce and United Bank of India, Canara Bank, Syndicate Bank, Union Bank of India, Andhra Bank and Corporation Bank, Indian Bank and Allahabad Bank merged together to result in 4 PSB’s, namely Punjab National Bank, Canara Bank, Union Bank of India and Indian Bank.
A merger or amalgamation in the banking sector impacts not only the banks participating in the merger, but also their competitors, bank customers, lenders, debtors and various organizations that would prospectively rely on the banks for funds in the form of loans. Contemporary facilities and practices allow bank customers to automate salary crediting, credit card or bill payments etc. on the basis of their account numbers and IFSC codes. An inefficient and unplanned merger may result in the customer having to manually change bank details with all automated vendor payment and receipt touchpoints. Even a credit/debit card issued in the name of a customer may require to be exchanged for a card from the merged bank after the interim post-merger validity of old cards comes to an end. However, the merger of struggling banks does improve the infrastructural and credit creation facilitations of the merged bank as compared to its merging entities.
While the aftereffects of these mergers are still to be felt in conventional circumstances, several benefits have been promised by the government in support of restructuring these banks. Apart from economies of scale and lower costs, the main advantages projected are:
1. Reduction in cost of lending: With lesser fragmentation in the market, lending costs will drastically reduce which will ultimately trickle down as benefits to bank customers in the form of lowered rates of interest on loans and higher rates of return for deposits. 2. Reduced red-tapism: With a reduction in the number of banks, there is bound to be a reduction in the number of decision makers and bureaucratic practices that hinder the making of managerial decisions. This will ensure speedy decision making and prompt adaption to everchanging market scenarios and consumer preferences and habits. Additionally, combining upper management from different banks will result in a potpourri of diverse ideologies that can better cater to contemporary needs. 3. Improved Operational Efficiency: Combining of various ethos’ and business practices followed by the various merging banks will lead to formulation of renewed and more current operational policies, which will culminate in increased efficiency. 4. Stronger Presence and Outreach: The increase in infrastructure, operational capabilities, workforce and assets will bolster the presence of the newly formed banks not only in India but also globally. Not only will
127 Non-Performing Assets in Indian Banks - Total Value of NPA in India, CORPORATE FINANCE INSTITUTE (2020), https://corporatefinanceinstitute.com/resources/knowledge/other/non-performing-assets-in-indian-banks/ (last visited Sep 20, 2020).
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the merger increase consumer confidence in the financial stability of banks, but also encourage persons to deposit and borrow funds from these banks leading to gradual credit creation and increased circulation of money within the economy.
The Finance Ministry has also announced a capital infusion scheme whereby over Rs. 55,000 crores will be provided to 9 PSB’s in the form of staggered infusions128. Furthermore, the ministry has also announced governance reforms for these resulting PSB’s including increased autonomy in decision making and succession planning, flexibility in deciding the remuneration/sitting fee for independent directors and the appointment of a Chief Risk Officer and Chief General Manager in all PSB’s to regulate the proceedings of PSB’s internally and to maintain checks and balances to avoid financial mis-happenings.
III. LEGALITIES BEHIND PUBLIC SECTOR BANK MERGERS UNDER BANKING COMPANIES (ACQUISITION AND TRANSFER OF UNDERTAKINGS) ACT
LEGAL PROVISIONS With reference to public sector or nationalized banks, the Central Government is authorized under Section 9(2)(c) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and 1980, or the “Bank Nationalization Act” to prepare or make, after consultation with the Reserve Bank of India (RBI), a scheme, inter alia, for transfer of undertaking of “corresponding new bank” (i.e., a nationalized bank) to another “corresponding new bank” or for transfer of whole or part of any banking institution to a corresponding new bank129. The scheme framed by the Central Government is required, to be placed before both Houses of Parliament, hence a merger between PSB’s inevitably requires Parliamentary approval130. Under the mandate of these provisions, mergers like that of State Bank of India have been witnessed and the recent mega merger announcement leaves much anticipation for consolidation efforts in the hope of fortifying bank reserves and ensuring greater liquidity in banks.
In Kurian v. State of Kerala131, it was observed by the courts that a nationalized bank is a public authority/institution in the eyes of law and hence the same accountability that would apply to a government organization would apply to a public sector bank as well. The court also held that a public sector bank falls within the definition of the expression “State” when it comes to enforcement of fundamental rights, falling within the ambit of Section 617 of the Companies Act, 1956132.
128Tojo Jose, Public Sector Bank merger: the implications Indian Economy (2019), https://www.indianeconomy.net/splclassroom/psb-merger-consolidation/ (last visited Sep 18, 2020). 129 Section 9(1)(c) in The Banking Companies (Acquisition And Transfer Of Undertakings) Act, 1980 130 Section 9(6) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 131 1982 Cri LJ 780 132 Definition of "Government company": For the purposes of this Act, Government company means any company in which not less than fifty- one per cent. of the paid-up share capital, is held by the Central Government, or by any
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STATE BANK OF INDIA’S SPECIAL POWERS FOR ACQUISITION The State Bank of India is empowered under Section 35 of the State Bank of India (SBI) Act, 1955, to negotiate an acquisition of a banking business with the sanction of the central government with or without consultation with the RBI. Once a scheme for acquisition and terms and conditions for acquisition are submitted by the SBI and the concerned bank, the same is submitted to the central government for its assent. The SBI Act is very wide in its scope and allows the acquisition of “any banking business” i.e.: business organization or an individual or association. It may amalgamate/merge with any national or private banking company or its subsidiary. However, non-banking financial companies are not included within the meaning of “any banking business” in the SBI Act.
AMALGAMATION OF REGIONAL RURAL BANKS Regional Rural Banks (RRB) are owned jointly by state and central government. While the objective behind their creation was combining the local ethos and feel of rural regions with the professionalism of a commercial bank, the opening of excessive amounts of RRB’s is what led to the RBI gradually amalgamating 196 banks into 64 from 1975 to 2013133. The merging of RRB’s is a tedious and complex affair as it involves different stakeholders (various states) yet still follows the same procedure as that of any other public sector bank.
EXEMPTION FROM PROVISIONS OF COMPETITION ACT, 2002 The primary undertaking of the Competition Commission of India (CCI) is to keep an eye out for unfair business practices prevalent in the market across various sectors of business in India.134 Hence, in normal circumstances, the CCI would apply sanctions to mergers that cross a certain monetary threshold to ensure fair practice. However, considering the dire need for mergers and amalgamations in the form of survival mechanisms for PSB’s, the CCI exempted the same vide a notification in Gazette of India dated 30th August, 2017. The notification asseverated that in public interest, "CCI exempts all cases of reconstitution, transfer of the whole or any part thereof and amalgamation of nationalized banks, under the Banking Companies (Acquisition and Transfer of Undertakings) Act, from the application of provisions of Sections 5 and 6 of the Competition Act, 2002 for a period of ten years”135.
The ten-year exemption, according to the researcher, was announced by the Government in order to give merging banks some breathing space in order to smoothly transition into regular business practice. A decision of this nature is
State Government or Governments, or partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary of a Government company as thus defined. 133 Biswa Swarup Misra & P. K. Raut; ―Regional Rural Banks in India: Past, Present and Future; Dynamics of Indian Banking Views and Vistas‖; Atlantic Publishers (New Delhi); Pp. 275. 134 CCI: Nationalized banks exempted from CCI approval for mergers - Times of India, THE TIMES OF INDIA (2017), https://timesofindia.indiatimes.com/business/india-business/nationalised-banks-exempted-from-cci-approval-for- mergers/articleshow/60342342.cms#:~:text=In a notification dated August, from the application of provisions (last visited Sep 17, 2020). 135 Notification, THE GAZETTE OF INDIA (2017), https://www.cci.gov.in/sites/default/files/notification/Notification 30.08.2017.pdf (last visited Sep 17, 2020).
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taken by the CCI when it believes that a merger will have an appreciable adverse effect on competition (AAEC). A similar exemption was previously given by the Government in January, 2013 for a period of five years.136 Additionally, as stated in Section 2A of the Banking Laws (Amendment) Bill, 2011, no provision contained within the Competition Act, 2002 will apply to any banking company including SBI, its subsidiaries, any corresponding bank or any RRB in respect of an amalgamation/merger, transfer or reconstitution. This protects PSB’s from the intricacies of the law that could serve as a potential roadblock in the mergers of PSU banks.
The banking sector then would have primarily two kind of barriers when it comes to the competition and competitive practices. One would be in relation to the state ownership of the banks in which case a foreign entity is not allowed to acquire a domestic bank and the other one would be the regulatory barrier which would arise from capital requirements, etc.137 CCI’s supervision over public sector mergers is predominantly aimed at ensuring that banks provide their customers with better services, loans at low interest rates and higher rate of return on investments and deposits.138
The researcher is of the view that although the Government is taking a step forward in exempting the mergers and acquisitions of the public sector banks from CCI control in order to decrease the debt and ever increasing non- performing assets, it has not accounted for the immediate impact such mergers will have on customers and the possible new entrants in the banking industry whether private or foreign entities.
136 KS Srivats, MERGER-CONTROL PROVISIONS WILL NOT APPLY TO BANKS PLACED UNDER MORATORIUM: MCA @BUSINESSLINE (2020), https://www.thehindubusinessline.com/money-and-banking/merger-control- provisions-will-not-apply-to-banks-placed-under-moratorium-mca/article31062041.ece (last visited Sep 18, 2020). 137 Kruthika Venkatesh, MERGER OF PUBLIC SECTOR BANKS AND COMPETITION CONCERNS INDIACORPLAW (2018), https://indiacorplaw.in/2018/09/merger-public-sector-banks-competition-concerns.html (last visited Sep 18, 2020). 138 Pradeep S Mehta, CCI HAS A ROLE TO PLAY IN BANK MERGERS THE FINANCIAL EXPRESS (2010), https://www.financialexpress.com/archive/cci-has-a-role-to-play-in-bank-mergers/565367/ (last visited Sep 18, 2020).
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IV. CONCLUSION AND RECOMMENDATIONS The mega merger of 10 Indian PSB’s into 4 will adversely affect the short-term profitability and efficiency of banks. While share prices for listed banks will fall, employment opportunities in the merged entities will drastically reduce since the government has promised no job loss for current bank employees in merging banks. This will result in employee redundancies and underutilization of personnel which will ultimately cause retrenchment, resulting in strikes and protests by employee unions. Pressure is added on struggling anchor banks with 16% NPA’s like Punjab National Bank that are merging with even weaker banks like Oriental Bank of Commerce139. This will have a drastic degenerative effect on credit growth which will correct gradually over time once consumer confidence in the merged entity increases. Merging banks having similar technology solutions will improve the usability of mobile banking apps and hence customer satisfaction only if the bank is constantly adapting to latest technological implementations that simplify the life of a customer. Additionally, continuous political duress in management of PSB’s that includes banks being forced into extending large amount of credit to debtors without securing payment guarantees will continue to drain banks of their resources resulting in more NPA’s.
In the researcher’s opinion, with the correct strategy implementations, NPA’s will no longer remain a snag in the Indian economic pipeline that stagnates and arrests economic growth and the societal development that follows. The following are the strategies that may be adopted:
1. Accountability from bottom-up in banking institutions with strategic decision-making power in the hands of the upper management. A thorough monitoring of credit ratios and repayment capabilities by analyzing the profit and loss statements of the lending and borrowing party. An add-on sensitivity analysis should also be conducted in order to safeguard the lender from various external factors that could negatively impact the transaction. 2. The creation of an effective Management Information System (MIS) that monitors, coordinates, controls and produces reports on operational and logistical execution specifically highlighting the inefficiencies within the institution at every level of management. Having access to these reports will enable decision makers to prepare for and tackle the various exigencies that a banking institution may face. 3. Bestowing of more power on the RBI by amending the law to increase oversight on institutional operations in order to increase general public accountability. As of now, the law restricts RBI’s powers and does allow not monitoring of large accounts and setting up of oversight committees for the same. 4. Amendments in the law to provide more control to banks over its NPA’s by taking preventive rather than curative measures. This will reduce collateral damage and save capital to be better invested that would otherwise be invested in the revival of the NPA. 5. The compulsory requirement of a guarantee against loans issued to ensure minimal losses on non- repayment of loans by insolvent or fraudulent debtors.
139 Prince Chandak, Can Public Sector Banks' Mergers Revive India's coronised Economy? Modern Diplomacy (2020), https://moderndiplomacy.eu/2020/04/21/can-public-sector-banks-mergers-revive-indias-coronised-economy/ (last visited Sep 21, 2020).
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RIGHTS OF ACCUSED UNDER CRIMINAL PROCEDURE CODE, 1973 PRABHAT KUMAR ASSISTANT PROFESSOR (PART TIME) PATNA LAW COLLEGE, UGC NET LL.M: NUJS, KOLKATA B.A.LL.B: DAVV, INDORE EMAIL ID: [email protected] MOBILE NO:- 8518967590 INTRODUCTION The perception of the rights of accused in the criminal justice administration has been evolving over time period. In earlier period, there is absence of criminal justice machinery and the accused was considered as an offender. Crime was regarded as identical to “sin”- transgression aligned with God's will140. Subsequently a criminal viewed as a malefactor couldn’t allege any privilege for himself. Despite the fact that the Medieval Period saw remarkable changes in the tenets as far as the accused's entitlement to self-preservation, another importance was concurred to the human rights point of view in the Criminal Justice Administration with the advent of Universal Declaration of Human Rights. The right to self defence is acknowledged under the national and worldwide communities141. The features provided in Universal Declaration of Human Rights were steadily adopted by various countries and it was given further strength to the International Covenant on Civil and Political Rights in 1966142. However in spite of this the rights of accused are still disregarded. In this Project, the emphasis is on India. As we know that India is a democratic country with a Parliamentary form of government, freedom of press and other political activities, Independence of judiciary, etc. But there are gross violations of human rights, particularly the infringement of rights of accused regardless of broad statutory and constitutional measures. In this project our focus is on the rights of accused during the course of investigation, inquiry and trial of offence for which he is charged.
140 George B. Vold, Thomas J. Bernard Bernard and Jeffrey B. Snipes Snipes, 'Theoretical Criminology' (Google Books, 1998)
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CRIMINAL JUSTICE ADMINISTRATION AND CRPC The main purpose behind the enactment of criminal law is to provide protection to the society from criminals and intruders and to create fears in the minds of the people, law imposes certain punishment as well for them who took law in his hand and deter the society. Thus the offender suffered punishment for the same. Criminal law is classified under two parts: Substantive Criminal Law and Procedural Criminal law. Substantive criminal law describes offences and determines punishment for the crimes whereas Procedural criminal law dispense with the practice and procedure of substantive law and also provides mechanism for the enforcement of criminal justice administration. The Dowry Prohibition Act, Prevention Of Food Adulteration Act, Prevention of Corruption Act, etc. are parts of Substantive Criminal laws. The Indian Evidence Act, Code of Criminal Procedure etc. are parts of Procedural Criminal laws.
The Criminal Justice System is divided under three following heads i.e. Police, Judiciary and the Jail and it is anticipated that all of them united and working together effectively. However it is not so happened in the actual practice. Without the procedural law substantive law is worthless. For instance, if a person commits a crime neither he is automatically punished nor he would be confessing his guilt nor sentence is imposed. And so it is for this purpose that Procedural law is intended to laid down guidelines for the procedure, investigation and trials of the offences. Empty threats do not deter, and without deterrent effect, the law of crimes will have hardly any meaning or justification143. If the criminals and intruders are not detected, punished and prosecuted then what is the requirement of substantive law who only defines the offences and prescribing punishments for them.
Till 1882 there is no uniform Code of Criminal Procedure in India. It is for the very first time enacted in the year 1882 in the Presidency towns and in the mofussil in the whole part of India but it was replaced in the year 1898. The code of criminal procedure, 1898 was further modified by the subsequent Acts of 1923 and 1955. After sometime there is a huge demand for the radical changes of the code and the Law commission of India was given a task to examine the code of 1898144.The law commission of India in 1969 submit their reports with detailed
143 K.N.Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure (6th edn, Eastern Book Company , Lucknow 2016).p.1 144 C K Thakker Takwani and M C Thakker, Takwani Criminal Procedure (3rd edn, Lexis Nexis Butterworths Wadhwa, Nagpur 2011).. p.1-2
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recommendations. The recommendations were clearly examined by the then Government of India and prepared a draft Bill and it was presented to both Houses of Parliament and after the bill is passed from Parliament, it received the assent of President on January 25, 1974 and came into force on April 1, 1974. Various amendments have been made after the coming into force of this code i.e. Code of Criminal Procedure (Amendment) Acts, 2005, 2006, 2008, 2013, 2018.
This code is mainly procedural but not wholly. For instance, Section 125 of the code confers substantive rights on wives, children and aged parents to claim maintenance. The code of criminal procedure deals with three subjects, Constitution and the Powers of Courts, Conduct of Criminal proceedings and Prevention of Crime145.
DATA AND STUDY CONCERNING PRISON POPULATION The information gathered with respect to jail populace in India speaks to a dismal scenario. It shows that 67 percent of the jail populace is anticipating trial proceeding. The greater part of under trial prisoners are unskilled, semi proficient and illiterate. This shows that they belong to Socio economically deprived groups.
The Home Ministry reports exhibits that there are around 2,31,340 under trial detainees from different parts of the country were lodged in prisons146. In 2015, there is an approximate 12,92,357 under trial prisoners who were released out of which 11,57,581 discharged on bail147. As compared to U.S.A the incarceration rates is very much low in India148. However in spite of less incarceration rates, it reflects that merely 28% are granted bail.
MEANING OF ACCUSED In Criminal Justice Administration, the trial concentrates mainly on accused. The term accused has not been defined in the code but in general sense it means any person who is charged with violation of law and for this he becomes liable and if he is convicted then he is punished. In other word “accused means the person who is charged with the commission of an offence”149. A man accused for an offence implies a “man against whom formal allegation relating to the
145 Dr. Ashutosh, Rights of Accused, Universal Law Publishing, 2009 146 National Crime Records Bureau, Prisons Statistics (Ministry of Home Affairs, 21st Edition, 2015). 147 Idim. 148 Institute for Criminal Policy Research , “World Prison Brief” , available at : http://www.prisonstudies.org/country/india (last visited on Dec. 23, 2016). 149 http://tinsukiajudiciary.gov.in/source/misnotice/Rights%20of%20Accused.pdf visited on 2018-08-25
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commission of an offence has been charged, which may result in prosecution”150. Formal allegation can be made either by lodging a F.I.R or a complaint can be made to Proper authority that deals with it against any particular individual and blamed him for the commission of crime151. Section 202(1) of CrPC talks about the accused in context of Section 203 of the Criminal Procedure Code, which says that, after taking cognizance of the offence on a complaint to decide with regards to the issue of process against the accused152. Section 204 expresses comparative perspective of the allegation even before issuing the process.
The accused person is not presumed alike to the convicted person as in the Bill of Rights Ordinance, 1991 it declared that the accused person has a right to be presumed innocent until he is proven guilty. This means accused has the similar right alike citizens of India except his restriction of personal liberty in accordance with laws. In today’s perspectives rights of accused is taken as a more concern. It has been observed that there is a blatant and overt misused of accused rights in various stages. In a free society like ours, law is quite jealous of the personal liberty of every individual and does not tolerate the detention of any person without legal sanction153. The right of personal liberty is a basic human right recognised by the General Assembly of the United Nations in its Universal Declaration of Human Rights. This has also been prominently included in the convention on Civil and Political Rights to which India is now a party. Under Article 21 of the Constitution of India it is provided that a person could be deprived of his life or personal liberty only in accordance with the procedure established by law. Further, the procedure contemplated by this article must be “right, just and fair” and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.154
RIGHTS OF ARRESTED PERSON There are some rights provided to arrested person under Article 22 of the Constitution of India which says that if any person is arrested for any reason whatsoever, the arresting person informs
150 https://www.lawctopus.com/academike/immunity-self-incrimination/ visited on 2018-09-25. 151 Ibid. 152 K.N.Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure (6th edn, Eastern Book Company , Lucknow 2016). 153 K.N.Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure (6th edn, Eastern Book Company , Lucknow 2016). 154Maneka Gandhi v. Union of India AIR 1978 SC 597.
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him of the reason for arrest as soon as it is made, the arrested person is produced before the nearest Magistrate within 24 hours of arrest and the arrested person is also given the right to consult and defended by a Pleader of his preference. The National Commission of Police in his Third Report also identifies the unlawful arrest as one of the most sources of corruption in our country. More than 60% of arrests done by Police Officer are unlawful and superfluous and it accounted for approx 42.3% of jail expenses155. In that particular report it strongly opposes the arbitrary arrests done by Police. The Law Commission in his 154th report strongly relied on 3rd Police Report and clearly held that most of the arrests were of only minor prosecutions and it cannot be designated as necessary for crime prevention156. The Supreme Court of India in Talab Haji Hussain vs. Madhukar Purshottam Mondkar and Ors157 said that it is apparent that the foremost aim of Criminal Procedure is to make sure that accused must be given fair trial The Supreme Court of India in the case of Willie Slaney v State of Madhya Pradesh158 observed that the main aim of Cr.P.C. is to ensure proper and fair trial to every accused person, in addition with doctrine of natural justice. The Supreme Court of India even said that arrest cannot be done by Police officer even it is lawful for them159. Arrest and detention in police lock up of a person can cause incalculable harm to the reputation and self esteem of a person in the society. Thus it is alleged that arrest cannot be done in a routine mode on sheer accusation that an individual has committed transgression160.
JUDICIAL PRONOUNCEMENTS RELATED TO ARRESTED PERSON In Joginder kumar v. State of U.P.161 the Supreme Court gives certain guidelines about the validity of arrest which are as follows:-
1. No Arrest can be made in a routine manner on a mere allegation of commission of an offence against a person. 2. Arrest can be done only after investigation done by the Police as to be duly satisfied with the reason after some investigation as to the genuineness and bona fides of a complaint.
155 Third Report of the National Police Commission 31 (1980). 156 154th Report by Fourteenth Law Commission of India, The Code of Criminal Procedure, 1973 (1996), Vol. I & II. 157 AIR 1958 SC 376. 158 AIR 1956 SC 116 159 Joginder kumar v. State Of U.P AIR 1994 SC 1349. 160 Ibid. 161 AIR 1994 SC 1349.
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3. Arrested Person is entitled that his friend or relatives or other nominated person should be informed of his arrest and place of detention. He is right to be informed of the right to get bail. 4. The Supreme Court also said an entry shall be made to be required in the register maintained by the police as to whom of arrest. 5. The Magistrate is also under an obligation to satisfy himself about the compliance of the police in this regard. In Prem Shankar Shukla v. Delhi Administration162, the Supreme Court held that handcuffs and fetters on prisoners violate the basic human dignity guaranteed under constitution and further asserted that handcuffing are by all appearances brutal and outlandish. This practice violates the test of Articles 14, 19 & 21 of Indian Constitution. The Supreme Court gave certain directives regarding handcuffing:
1. Handcuffing should be imposed if and only if that person is (a) associated with severe non bailable offences, or has been earlier indicted for a crime, (b) is of urgent character brutal, muddled or obstructive; c) is probably going to commit suicide; or d) is probably going to endeavour escape. 2. The Police should record a report in Daily Diary before use of handcuffing when and wherever necessary and it must be shown to the court. 3. In extreme Situations, handcuffs have to be used, the escorting officers who produce the prisoners before the court must show the reasons so recorded to the Presiding Judge and get his approval. 4. The Magistrate also enquired whether handcuffs have been used. In D.K.Basu v. State of West Bengal163 the Supreme Court has observed that there is abuse of human rights, deformities in arrest procedures and not adequate compensation furnished to the arrested person. The Supreme Court laid down certain guidelines regarding arrest procedures:
1. The Police Personnel while making arrest should be accurate, visible and clear identification.
162 Air 1980 SCC 526. 163 AIR 1997 SC 610
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2. The Memo of arrest should be prepared and attested at least by one witness, and shall contained the date and time of arrest. 3. The arrested person shall be entitled to have his friend or relatives knows about that he has been arrested. 4. The time of arrest, the place of arrest and custody must be informed by the Police to the relatives or friends within 12 hours of the arrest. 5. The arrested person should be examined at the time of arrest and if injury found, it should be recorded. 6. He should be examined after every 48 hours by the Medical Representatives. 7. Arrested persons shall be entitled to have one friend or relatives informed of his arrest. 8. Copies of all documents including Memo of Arrest should be sent to Judicial Magistrate for his record. 9. Police Control Room at all districts and state headquarters level should have information of within 12 hours of arrest. 10. Inspection Memo must be signed by both arrestee and Police Officer affecting arrest and it copies be provided to the arrestee. 11. The arrested person should be permitted to meet his advocate during interrogation. 12. The Third degree methods used by the Police should be stopped. The Police Officers fails to comply with the abovementioned requirements shall not only be liable for departmental inquiry but also be punished for contempt of court and the proceedings for it may be instituted in any High Court of the country having territorial jurisdiction over the matter164.
RIGHTS OF ACCUSED The right of accused is a highly controversial issue. There are various records that shack light on the condition of the criminal justice organization in India. The epigraph underneath captures the situation aptly:
…If more than 50% of all detainees, and in some countries more than 70% are in pre-trial detention..., something is wrong. It usually means that criminal proceedings last far too long, that
164 D.K.Basu v. State of West Bengal., (1997) 1 SCC 416.
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the detention of criminal suspects is the rule rather than the exception, and that release on bail is misunderstood by judges, prosecutors and the prison staff as an incentive for corruption…165
There are various rights provided to the citizens in a modern state like the human rights, fundamental rights and other legal and statutory rights. These rights are given to a person regardless of the matter whether he is accused of crime or not on the basis of principles that it is better hundred guilty person may escape unpunished but not punish innocent person166.Also the primary aim of criminal system is to guarantee a fair trial to every individual accused of a crime. The concept of criminal trial has secure links with the essential and collectively acknowledged human rights167. A fair trial implies that it should be reasonable both to the Prosecution and the accused person. Therefore certain rights in favour of accused are recognised by the code at different stages of trial i.e., when the trial begins, during the trials and the last one after it is completed.
Rights of Accused at Pre Trial:- The first stage of Criminal trial begins with the institution of First Information Report on the basis of which Police have been given powers as to investigate, search, inquiries and if required then arrest also. But there are certain restraints imposed regarding arrest. These restraints mainly favours the accused person. But there are certain other provisions which expressly and directly created rights in favours of accused person. These are as follows- 1. Right to be informed of the grounds for arrest: The Police officer shall communicate to the accused person without delays the grounds of arrest168. Section 50-A of CrPC, 1973 provides about the precious right169 to the accused person and the Police Officer is duty bound to inform about the causation of charges after the rules emerges from various decisions170 and it has been given fundamental recognizance under Art. 22(1) of the Constitution of India. Under Section 50(1) of the Code, it says that if the arrest is done by Police Officer
165 Pre-Trial Release and the Right to be Presumed Innocent: A Handbook on Pre-Trial Release at International Law, Lawyers Rights Watch Canada (LRWC), March 2013. 166 SIR MATTHEW HALE, HISTORIA PLACITORUM CORONAE [THE HISTORY OF THE PLEAS OF THE CROWN] 289 (George Wilson ed., London, T. Payne 1778. 167 Arts. 10 and 11 of Universal Declaration of Human Rights. 168 Section 50 (1) of Cr.P.C. 169 Udaybhan Sukhi v. State of U.P., 1999 Cri LJ 274 (AII). 170 Joginder kumar v. State of U.P., (1994) 4 SCC 260; D.K.Basu v. State of West Bengal, (1997) 1 SCC 416.
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without Warrant he gives reasons to them and communicate to him for the particulars of the offence and if arrest is done with warrant then under Section 75 of the code says that the executing officer should notify the substance of warrant to the person to be arrested. Section 41 B of the Code says that Police Officer will prepare a memorandum of arrest and the said memorandum shall be attested by at least one family member or respected person of the society where the arrest is made. The Supreme Court in Dr. Rini Johar v. State of Madhya Pradesh171 held that “there is a complete violation of Article 21 and the guidelines issued in D.K.Basu’s case172 and the Court ordered the M.P. Government to grant a sum of Rs. 5 lakhs towards compensation to each petitioners”. 2. Right to be informed of right to Bail: Section 50(2) of CrPC provides that Police shall inform the arrested person that he is entitled to be release on bail and that he may arrange for sureties on this behalf. The Supreme Court held that person who is accused of bailable offence has absolute and indefeasible right under Section 436 of the Code173. Even under Section 167(2) of the Code if charge sheet is not filed within 60 days or 90 days, then the accused have right to applied for bail and this is called Compulsive bail. 3. Right to be produced before Magistrate without delay: Section 56 says that a person who is arrested without warrant shall be produced without unnecessary delay before a Magistrate having jurisdiction in the case or before the officer-in- charge of the police station, but subject to the provision regarding bail. 4. Right of not being detained for more than 24 hours without judicial scrutiny: Section 57 provides that in the reasonable circumstances, Police Officer cannot detained the accused person without warrant more than 24 hours, however the time necessary for the journey from the place of arrest to a Magistrate Court is exclusive. This right is further stronger by its incorporation in Part III in the
171 AIR 2016 SC 2679. 172 (1997) 1 SCC 416. 173 Rasiklal vs. Kishore Khanchand (2009) 4 SCC 446.
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Constitution of India174. If the accused is detained for more than 24 hours in absence of an order of a Magistrate then it amounts to an illegal detention175 5. Right against illegal searches: Accused have their prerogative rights. They can defend themselves. No one can compel the accused to produce documents and allow them to search without the written authority by a Competent Magistrate and the Police authorities cannot disregard the protection provided to the accused under Article 21 of the Constitution of India. 6. Right to be presumed Innocent:- It is based on the maxim Ei incumbit probation qui dicit non qui negat which means “the burden of proof is on he who declares, not on he who denies”. According to this principle one is considered innocent until proven guilty. Under the Code the burden of proving charge is on the prosecution. Every Criminal trial begins with the presumption of innocence in favour of accused. The Supreme Court observed that the cardinal principle of criminal trial is to arrive at a judgement on the basis of relevant facts and other material evidence. Since the object of trial is to mete out justice and to convict the guilty and protect the innocent. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence and not by an isolated scrutiny176. 7. Right to meet an Advocate of his choice: Section 41 D of the Code says that the arrested person is entitled to meet his advocate during interrogation. However this right is not available completely during the interrogation. 8. Right to free legal Services : Section 303 confers right on the accused person to be defended by a counsel of his choice; however if the accused is indigent then the court assign a pleader for his defence at the expense of Government177. Further the Supreme Court has held that every indigent accused person has a fundamental constitutional right to get free legal aid for his defence178. The
174 K.N.Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure (6th edn, Eastern Book Company , Lucknow 2016).p 84. 175 Gulam Mohammad v. State of M.P., 1959 Cri LJ 600. 176 Mohd. Hussain v. The State (Govt. of NCT) Delhi AIR 2012 SC 3860. 177 Section 304 of CrPC, 1973. 178 Khatri (II) v. State of Bihar, (1981) 1 SCC 627.
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Supreme Court even go further one step and says that this is a constitutional right and it should not be denied if accused failed to appropriate it179. 9. Right to be Medically examined: Section 54 has confined on the accused person the right to have his medical examination done. Such medical examination is to be conducted by a registered medical practitioner. The Supreme Court held that Magistrate must communicate to the accused person about his right to be medically examined180. 10. Right to Compensation: According to Sec. 358 of the Cr.P.C. whenever any person causes a police to arrest another person, if it appears to the magistrate by whom case is heard that there was no sufficient ground of causing such arrest, the magistrate may award such compensation, not exceeding Rs. 1000 to be paid by the person causing such arrest to the arrested person. The Supreme Court in Nialabati Behara v. State of Orissa181held that the person has the right to get compensation for unlawful arrest and detention. 11. Right to remained silence: Section 161 of Cr.P.C. provides that accused person may remains silent or may refuse to answer when confronted with incriminating questions. The Supreme Court in Nandini Satpathy v. P.L.Dani182held that accused person has been given protection both by Sec. 161(2) and Art. 20(3) of the Constitution against questions, the answers to which would have a tendency to expose him to a criminal charge. Rights of Accused at the Trial: - A fair trial indicates that it should be reasonable, both to the prosecution as well as defence side. Thus there are certain rights of accused provided under this code to make the trial expeditious and fair to the accused person: 1. Right to notify of the charges and accusation:- Fair trial requires that the particulars of the offence have to be explained to the accused person. Thus the Code provides that when an accused person is produced before the court, the Court shall inform of the accusation and charges against him to prepare for his
179 Suk Das v. Union Territory of Arunachal Pradesh. 180 Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96. 181 (1993) 2 SCC 746. 182 AIR 1978 SC 1025.
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defence183. The Court in serious offences prepares a formal charge and then it should be read and explain to the accused person184. 2. Right to have copies of documents, etc:- Section 207 provides that when the Magistrate founds the documents under Section 173(5), thereafter in any case when the proceedings has been instituted on a Police Report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of everything i.e., FIR, Police Report, Statement taken under Section 161(3), Confession and Statement taken under Sec. 164 and other relevant documents except case diary, so that accused is acquainted with the charges against him and it enable the accused to prepare his defence effectively185. The Supreme Court in Youth Bar Association vs. Union of India186 held that “an accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C”. 3. Right to get a memorandum: Right of accused to entitle a copy of memorandum regarding to local inspection done by magistrate under sec.310 of the code. It can only be used to properly appreciate the evidence given at the trial.187 4. Right to discharge: If the judge after considering the record of the case and hearing the submission of the rival parties, is of the opinion that there does not exist any sufficient ground for proceeding against the accused, he shall discharged the accused and record his reason for doing so188. 5. Trial to be held in his presence:- Fair trial also requires that the trial is to take place in the presence of accused. Section 273 attempts to achieve this purpose. Section 273 makes it imperative that all the evidence must be taken in presence of accused. The Supreme Court in Mohd. Sukur vs. State of Assam189 held that case cannot be decided in absence of accused or defence
183 Sections 228, 240, 246 and 251 of the Code. 184 Sections 228, 240 and 246 of the Code. 185 Kelkar p. 262. 186 AIR 2016 SC 4136. 187 Keisam Kumar Singh v. State of Manipur AIR 1985 SC 1664. 188 Sections 227, 239...... 189 (2011) 4 SCC 729.
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counsel appearing for accused and if it is so then it would be violative of Arts. 21 and 22(1) of the Constitution of India. 6. Representation of Accused by a lawyer: If right to fair trial has been adopted as an important element of law system then right to have competent lawyer is also an essential ingredient to fair trial so that accused can present his case properly and also, it should enable accused to engage a lawyer to defend. Generally, accused person are uneducated and are not that competent to engage a lawyer to defend themselves. Therefore, measures should be taken to make arrangements through which they can engage competent lawyers so that legal services can be made available to them in its real sense. In the light of this aspect Supreme Court has provided that if a person is unable to engage a lawyer due to the reason of his being indigent, he is entitled to obtain free legal services at the cost of the State190. 7. Right to have a trial in an open court:- Section 327 of the Code provides that the place in which the trial is held shall be an open court which means it may be accessible to the general public. The Supreme Court held that there is no error if trial is held in jail or any private place if such notification is issued by High Court and it is deemed to be an open court under Section 327 of the Code191 8. Accused may examine witnesses:- This is a vital right for the exercise of his own safeguard for the accused because evidence given by witnesses are more reliable if given on oath and verified by cross-examination. Section 311 of the Code has given power to accused to cross examine Court Witness. And if any trial does not allow it then it can be considered as unfair trial192. 9. Rights of accused to lead evidence in his defence:- Initially the burden of proof is upon the Prosecution to give evidence and accused is not allowed to give evidence in a criminal trial however for the fair trial and under Section 105 of Evidence Act, 1872 provides that when the prosecution has established
190 Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401. 191 Kehar Singh v. Delhi Administration, (1988) 1 SCC 609; Mohd. Shahabuddin v. State of Bihar, (2004) 13 SCC 565. 192 Sukanraj v. State of Rajasthan, AIR 1967 Raj 267.
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his case, the burden is discharged on the accused193. Even Section 243(1) of the Code says that after the completion of Prosecution evidence the accused shall then be called upon to present his evidence194. A criminal trial in which the accused is not permitted to give evidence cannot be considered as just and fair. The Magistrate refuses it without giving any legal justification would definitely turns to vitiate the trial195. 10. To decide his case expeditiously:- The Code does not confer such rights on the accused to have his case decided expeditiously196. However if the accused is in detention and trial is not completed within 60 /90 days he should be released on bail197. Also Section 309(1) of the Code provides guidance to the Court with regards to speedy trials198. The Supreme Court held that Speedy trial is an essential ingredient of natural justice guaranteed under Article 21 and it is the constitutional obligation of the state to establish mechanism to ensure speedy trial199. 11. Right to have reasoned decisions:- Under Section 354(2) of the Code mandates that except as otherwise provided by this Code, every judgement must contain the point or points of determination, the decision thereon and the reasons for the decisions. The accused have the right to reasoned decisions which is derived from logical conclusions .The simple requirement for fair trial and reasonable justice is what we least anticipated from the Court is to discuss, consider and notice precisely the evidence given by witnesses and on the basis of which judgement is expounded to the accused200. 12. Plea for Doctrine of “autrefois acquit” and “autrefois convict: This doctrine explains that if any accused person is prosecuted, convicted or acquitted from
193 Rizan v. State of Chattisgarh, AIR 2003 SC 976. 194 Kelkar lecture pg. 218. 195 Ajoy Kumar Ghose v. State of Jharkhand, (2009) Cri LJ 2824. 196 K.N.Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure (6th edn, Eastern Book Company , Lucknow 2016). 197 Section 437(6) of the Code. 198 K.N.Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure (6th edn, Eastern Book Company , Lucknow 2016). 199 Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98; Mohd. Hussain v. State (Govt. of NCT of Delhi) 2012 9 SCC 408. 200 Mukhtiar Singh v. State of Punjab (1995) 1 SCC 760; Ishwarbhai Fuljibhai Patni v. State of Gujarat (1995) 1 SCC 178.
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any offence, then he cannot be prosecuted again for the said offence in future or on the different offence from the same facts. This doctrine is significantly included in clause 2 of Article 20 of the Constitution of India and it is further provided under Section 300 of the Code of Criminal Procedure, 1973201. 13. Competent Witness:- Section 315 of the Code provides that the accused can be a competent witness for the defence and can give evidence in disproof of the charges made against him or even against his co-accused but that does not mean any accused should be forced to be a witness against himself202. The Supreme Court even clarified this position in People’s Insurance Co. Ltd. V. Sardar Sardul203 to some extent. 14. Right to inquired by another Magistrate: Section 191 of the Code stipulates that after the cognizance taken by Magistrate under Section 190(1)(c) of the Code, the accused must be informed that he is entitled to have the case tried by another Magistrate and if the accused objects, the case is transferred to such other Magistrate as may be specified by the CJM. Also failure to comply with Section 191 would vitiate the trial and this illegality is not curable under Section 465 of the Code204. 15. Right to present written argument in addition with oral arguments: Generally it is the prosecutions who sum up the case but Section 314 of the code says that any party after the close of his evidence submit arguments in supports of his case205 Rights of accused after the trial is Completed:- The accused person likewise has numerous and specific rights once his trial is finished. These rights rely on the result of his trial, i.e. whether the accused are indicted at trial stage, or vindicated by the court.
201 Section 300 of Criminal Procedure Code, 1973 Person once convicted or acquitted not to be tried for same offence - (1) a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted for such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section(1) of section 221, or for which he might have been convicted under sub-section (2) thereof. 202 Article 20(3) of the Constitution of India. 203 (1962) 1 Cri LJ 451. 204 Dulichand v. State, 1971 Cri LJ 25. 205 K.N.Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure (6th edn, Eastern Book Company , Lucknow 2016). p.537.
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The person who has been held liable at trial stage must experience the way toward condemning, yet they have the privilege to contend for a specific sentence. They at that point also appeal over the sentence passed by the court. These rights are further subdivided into two parts: (1) Rights of Accused if he is acquitted, (2) Rights of Accused if he is convicted. 1. Right to a certified copy:- Section 363 of the Code lays down that the accused has prima facie an implied right to get a copy of judgement. 2. Right of Appeal: This right is provided to both the parties after the conclusion of trial. It is a substantive right and not a mere matter of procedure. The accused has the right to appeal in case of conviction206. 3. Right to move appeal to the superior court: Section 372 to 374 of the Code provides that the party have the right to prefer an appeal to the superior court if injustice is done to him or error committed by lower court. 4. Right to release on bail after conviction: Under Section 389(3) of the Code provides that when the convicted person intends to file an appeal against his conviction and sentence, the court will grant bail for a limited period, it is known as interim bail. 5. Right to have a certified copy of judgement: Section 363 of the code requires that where the judgement is pronounced, he is given a certified copy of the judgement free of cost and without delay207. 6. Right to release under probation: As per Section 360(1) of the Code provides that the Court may order to release accused for probation on good conduct and under Section 360(3) the court order to release on admonition. Under Section 361, if court does not pass order under Section 360, than it will record special reasons for not doing so in its judgement.\
OTHER PROVISIONS RELATED TO ACCUSED PERSON
206 Sections 351, 374, 379 and 380 of the Code. 207 K.N.Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure (6th edn, Eastern Book Company , Lucknow 2016).p 642.
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1. Conditional Pardon to an Accomplice: The criminal proceeding against an accused person come to an end if he is given pardon in accordance with the provision of Secs. 306 and 307 of Cr.P.C. 2. Joinder of accused person: Section 218 of Cr.P.C. provides that if the accused submits an application that he desires all charges against him should be clubbed and tried together then the magistrate may permit him if there is no prejudice to him. 3. Plea Bargaining: This was inserted by the Criminal Law (Amendment) Act, 2005, Chapter XXI-A consists of Sections 265-A to 265-L. It has been described as the process whereby the accused person and the prosecutor work out a mutually satisfactory disposition of the case subject to court approval. However it does not apply where the offence is punishable above 7 years of imprisonment affects the socio economic conditions of the country or has been committed against women or child. 4. Accused of unsound mind: An accused person may be lunatic or unsound mind and is not able to understand the trial. To overcome such issue and ensure fair trial, special provisions have been made in Sections 328-339 of Cr.P.C. 5. Accused not of unsound mind doesn’t understand proceeding: Section 318 of the code provides benefits to those accused who may either be deaf or dumb, foreigner, absence of interpreter, etc. In such a case the court who tried the case and it results in a conviction, it shall be forwarded to the High Court with the given report208. 6. Beneficial Ex- Post facto laws: article 20 (1) prohibits the imposition of enhanced penalty or punishment. But it does not bar any reduction in the punishment. The Supreme Court in T. Barai v. Henry209 held that accused should have the benefit of retrospective orvretroactive criminal legislation reducing punishment for an offence. However in India unlike American constitution this protection is not available once the trial is started.
MALIMATH COMMITTEE ON THE RIGHT OF ACCUSED PERSON Malimath committee report tried to strike a balance between the constitutional rights of an accused and the inherent powers of the trial court. As far as the rights of the accused are
208 K.N.Chandrasekharan Pillai, R.V.Kelkar's Lectures On Criminal Procedure (5th edn, Eastern Book Company, lucknow 2014).p. 169. 209 AIR 1983 SC 150.
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concerned, the committee suggested adding a schedule in the Cr.P.C. in all regional languages so that the accused have knowledge about his rights.
On right to silence
Coming to ‘right to silence’, the committee recommended that a certain amount of freedom shall be given to the court to question the accused during the trial stage to “elicit relevant information” and to “draw inferences against the accused in case accused refuses to answer at all”. Presumption of innocence and right to silence has adversely affected the criminal justice system in India. The accused should have a ‘right to file a statement’ in order to disclose his stand in the case.
Because of these two kind of defective rights, the court assumes a place of being a mere spectator and the active involvement of the courts cannot be ensured in trial and investigation. This in turn affects the long delays and very poor rates of conviction in criminal cases. So Malimath Committee report suggested restoring the balance between the two and suggested reforms in this particular issue.
Proof beyond reasonable doubt
The report has criticized the expression “proof beyond reasonable doubt”. The imposition on the court to prove an accused beyond reasonable doubt hut put a huge burden on the prosecution and therefore conviction rates are very poor. Although conviction rate is not a full proof mechanism to ensure the effectiveness of a particular system of justice but it surely captures a narrative of faulty investigations and incapacity of prosecution to prove their cases. Another issue that needs to be highlighted here is the long period of trials and huge pendency of cases in Indian courts. This long pendency can be attributed to the burden that is on the prosecution to prove a case ‘beyond reasonable doubt’. Therefore Malimath Committee report suggested that the objective of criminal justice system shall be to ‘find the truth’, so courts should be given a power to evaluate the facts and matters before itself and to consider facts “if the court is convinced that it is true”.
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CONCLUDING REMARKS: The ideal of an adversarial system is that the accused is innocent until proven guilty, with the onus on the state to prove guilt according to fair (due process) procedures embodied in the principle of legality. While this creates the potential for combat as a case proceeds, there is nothing in legal theory or implicit in the rules of criminal procedure that would suggest that even the ideal function of the criminal process is full-blown adversarial conflict in every case. Indeed, some articulated ideals of due process and the rule of law do not have an identifiable empirical basis.
With the vast majority of cases being disposed of by guilty pleas after out-of-court settlements, the general belief is that adversariness is on the decline and that we are moving closer in practice to the inquisitorial system of certain continental European countries. They also ignore the fact that until the relatively recent introduction of legal aid programmes accused who were indigent pleaded guilty without the availability of a lawyer to suggest whether a challenge was possible, or worthwhile. In some cases the arguments offer no more than the tautology that good procedure protects the accused against the oppressiveness of bad procedure. Accused people in the criminal process are dependent upon the actions of others in taking actions and producing outcomes. They are treated as objects with their wishes often being read as symptoms of their suspect character. They lack organized means of altering their dependent position, in the face of an organization of criminal control that is very large and powerful in its own right and backed up by all the power of the state with its legislative apparatus.
As the agents of the state work on the accused's case, they redefine it and transform it in terms of the criminal law and also use the criminal law to regulate the process of resolution. In doing this, criminal control agents have power over the definition of reality, as well as through the definition of reality they decide upon. They take over the accused's trouble or conflict and make it state property, leaving the accused to await an outcome via a process that to him is complex, difficult to comprehend, and mystical and which makes him powerless.
To be sure, the accused is asked to participate in this process at several points along the way. Of greatest apparent importance are the many decisions he is asked to make, e.g. to give a police statement, to obtain legal counsel, to elect a court for the hearing, to plead, and to appeal the
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outcome. However, as we have observed, 'What appears externally as a "decision" to be "made", may not appear in such a way to the defendant'. Matters are foreclosed first by the police, and then by the lawyer, often to the point where only one course of action seems reasonable. With one course of action there is no choice, and therefore no decision. In a system and a society which profess to make the individual decision a central element of existence, the reality for the accused is that he rarely has a decision (choice) to take, and when he does, it cannot be viewed as an 'original' decision because it reflects submission to pressure from others and to structural arrangements.
The accused is also asked to participate by being physically present at some of the locations at which his case is decided. The accused must appear in court at some scheduled hearings, or be represented by an agent in the case of summary conviction offences; if he chooses not to appear, he is subject to an additional criminal charge for not appearing and increases his chances of being held in custody awaiting his next appearance date. At court hearings, the accused typically stands by while a remand is arranged by his lawyer, or stands up to enter guilty pleas, or stands by while his moral character is first dissected and then pieced together again to show the judge that he is still a whole person (although slightly fractured), who justifiably deserves less than what the Criminal Code maximum sentence threatens him with. In requiring the presence of the accused, the court acquires his 'consent' to what is being done to him.
The criminal process is designed so that it does not give the accused more rights than would upset the operation of criminal control in the interests of the state. The criminal process suggests reform proposals are most likely to be made, and are most likely to be successful when implemented, if they reflect the criteria of 'maximum general importance' which clearly serve the interests of administrators and agents and not the accused. The system, including the process of reform, will keep the accused relatively powerless, ensuring his dependency within the pre-trial process as well as during the time he serves his sentence to requalify as an (often still- dependent) citizen. The idea that legal provisions of due process will separate law from order and act as a bulwark against an oppressive order is a gloss; these provisions are integral to 'law and order.' The legal system, not the rhetoric, is the law and operating procedures and the way the system operates foreclose what formally might appear as choice until there is no choice for the accused. Placing the onus of proof on the crown does not mean much since the crown
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establishes the framework for the case to begin with in a way that makes it predictable that the accused will be unable to raise a reasonable doubt. The procedural law itself directs agents of law enforcement to treat differently various types of offences and offenders. Legality embodies individual civil rights against public or state interests; the law makes state and the public interest a justification for ignoring civil rights ...Deviation from legality is institutionalized in the law itself.' Apparently the law can be developed to protect the citizen from everyone but the state.
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VIRAL JUSTICE – IS IT THE NEW REALITY? - PRAGATI GILDA
INTRODUCTION Hashtags and online posts have now replaced news telecasts and are emerging as a medium of expression these days. People have now restored to social platforms to put forward not just their grievances and stories but also to educate and influence. The power that social media possess is undeniable. Its massive outreach has played an important role in harbouring change. From the suffrage movement210 in the mid 1990’s to the MeToo movement in 2017, social networking sites have played a vital role in helping women garner support for their rights and bringing down the abusers in the society. But the fight for equality and security is still on going.
210 How suffragists-and their foes-used media Women's Media Center, https://www.womensmediacenter.com/news- features/how-suffragistsand-their-foesused-media.
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ANALYSIS The 21st century witnessed #MeTOO Movement wherein women from various walks of life came forward with their stories of sexual harassment and abuse. Various popular and powerful figures were sent to jail for abusing their powers and position to gain sexual favours. The beauty of this movement was the legal process that followed was speedy due to the public outrage that surrounded the movement. Times magazine even named the movement as their ‘person of the year’ because the impact was not just on the United States of America, where it initiated, but all over the world. Recently in India, an Instagram scandal named ‘Boys Locker Room’ was exposed. It alleged involved teen aged boys from Delhi. This scandal broke out when a member leaked the chats from the group which included obscene images of girls211. The controversy flared when social media users shared the screenshots of the leaked chats and pictures of young girls. By 6th May 2020, #BoysLockerRoom was retweeted 30,000 times212. When stories like Boys Locker Room or MeToo movement goes viral, social media turns into a courtroom. Every user tries getting their opinions and views on the trending issue in. the stories spread like wildfire and the social media splits into a plethora of opinions. The boiling pot of opinions often negates the purpose of social media, that is, of free speech and expression213. The problem emerges when the collective outrages on the issue becomes toxic by taking the shape od cyber-bullying, hateful speech and the actual issue at hand gets sidetracked. Domino effect214 is followed with the stories of movements such as MeToo and Boys Locker Room. One can view the relationship between law and social media in various ways. While the latter is used to put forth a cause or an incident to the point where it has gained even momentum to come under the light of the justice system, the former protects the right of individuals on the social media platforms. In India, social networking sites fall under the preview of the Information Technology Act, 2000 (“IT Act”).
The Information Technology Act, 2000 has provisions to ensure that cyber-bullying across all networking platforms is minimized and the perpetrators are held accountable for their deeds. The
211 Yadav, Jyoti, et al. “Delhi Women's Commission Wants 'Bois Locker Room' Probed, Sends Notice to Instagram, Police.” ThePrint, 10 May 2020,
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IT Act is outdated when it comes to the structure and functioning of social media platforms215. the eruptions of events that followed the Instagram scandal could be used to draw parallels with where the IT Act stands on the issue of cyber-bullying, sharing of non-consensual chats and the chain of reactions that are observed. The sanctity of private conservations is lost when one reposts and shares the details of the conversation with others. The transmission of images, chats, and videos without the approval of the person involved amounts to breach of privacy. The locker room fiasco had a bunch of teen aged boys on sites like Instagram and snapchat circulating the images of girls and making derogatory remarks on the same. the transmission of images beyond private conservations of the parties involved amounts to both defamation under section 499216 and 500217 of the Indian Penal Code, 1860 as well as breach of privacy under section 66(E)218 and 67(A)219 of the IT Act, 2000. Violation of privacy occurs when images are transmitted over the electronic media with the intent that it be viewed by person or persons. The sharing of such images and making such obscene remarks over their bodies amounts to a punishable offence. India does not have a stand when it comes to exchanging of nudes and semi-nudes pictures between two consenting individuals. However, when these pictures cross the boundary of private conversation and is spread using a malicious intent, a violation of privacy does occur. Section 66(E) talks on punishment for violation of privacy. In a scenario, where someone comes out with the truth behind these viral chat rooms, with an attempt to make their point, they often end up posting these obscene images which were the cause of problem in the first place. In cases of sexual harassment and rape, the victim’s identity is unexposed to maintain the privacy and to ensure their safety220. But on social media platform which is far away from courtroom proceedings, ‘social media trials’ reveals the identity of the victims which in turns endangers their safety221. In case of the indignation over the #BoysLockerRoom, the issue of violation of privacy and protecting of modesty of a women were sidetracked and what emerged was a severe backlash in form of posts saying “all men are trash”, “feminism is a scam”. Well channeled
215 Supra note 3. 216 https://indiankanoon.org/doc/1041742/ 217 https://indiankanoon.org/doc/1408202/ 218https://indiankanoon.org/doc/112223967/#:~:text=Section%2066E%20in%20The%20Information%20Technolog y%20Act%2C%202000&text=(ii)%20any%20part%20of%20his,a%20public%20or%20private%20place.%20%5D 219 https://indiankanoon.org/doc/15057582/ 220 Castells, M. (1997). The Power of Identity: The Information Age: Economy, Society and Culture. Volume II. Oxford: Blackwell Publishers. 221 Edwards, G. (2014). From National to Global Social Movements: Network Movements, Alternative Globalization and New Media. pp. 151-181 in Social Movements protests. Cambridge: Cambridge University Press.
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anger could motivate to act strategically, but when pure rage takes over as a consequence of internal beliefs hurt, the individuals start blaming the movement222.
222 Chimamanda Ngozi Adichie And Her Feminist Activism Through Storytelling Feminism in India, https://feminisminindia.com/2019/09/16/chimamanda-ngozi-adichie-feminist-activism-storytelling/ .
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CONCLUSION Social media is always evolving and ways of media communication pops up every few years. It goes without saying that the government and the legal system starts working quicker if the issue is backed by masses. The law, pertaining to IT Act needs to be updated in accordance with the structure and functioning of these platforms. constant bullying, threats poses a challenge to the act, for these are untraceable due to their large populace. The domino effect can be curbed if users introspect and ensure that they are supporting a cause, story in order to help people get justice223. Towards the end of the day, social media and law are just tools at disposal to attain justice and is upon the people to use these tools responsibly.
223 The Domino Effect: How to Create a Chain Reaction of Good Habits James Clear, https://jamesclear.com/domino-effect.
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UNDERSTANDING INDIA'S ISSUE OF ILLEGAL IMMIGRANTS THROUGH THE LENSES OF HUMANITARIANISM AND HUMAN RIGHTS (By Priyal Sepaha) ABSTRACT India has been dealing with the issue of illegal immigrants as the country is a favourable asylum to immigrants from neighbouring states of Afghanistan, Pakistan, Bangladesh and Myanmar. However, India is not a signatory to the 1951 Refugee Convention, which makes it non- obligatory to abide by principles such as impediment to expulsion and non-refoulement. India has the power to expulse such immigrants if they do not fall under the criteria set up by the municipal law on immigration and asylum granting. Even though there are no specific laws pertaining to illegal immigrants, there are several statues providing definition and further treatment and rights for them.
Through this paper, the author aims to understand the Indian immigration laws concerning illegal immigrants and its relation to human rights and the principles of humanitarianism. The author firstly discusses the legal framework on illegal immigrants in India; secondly, points out the challenges faced by the country in combating the issue; thirdly, analyses if Indian laws are consistent with international human rights instruments on illegal immigration; fourthly, comparisons are drawn between treatment of illegal immigrants in light of humanitarianism; and lastly, the author proposes suggestions to combat the issue.
INTRODUCTION India's geographical positioning in South-East Asia and its comparatively stable economic situation against neighbouring states have been contributing factors in its rise as a hub for immigrants. Additionally, the secular character of the country and a demonstrated history of welcoming immigrants during partition in 1947 from Pakistan and subsequently the 1950 partition of East Pakistan has only made it more favourable as an asylum.
It is interesting to note that the immigration trend is deeply intertwined with human rights and humanitarianism. Illegal immigration is one of the most complex, challenging, yet interesting
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issues faced by India and the world. Its relation to human rights and humanitarianism stems from common observation that an illegal immigrant is, in most cases, an individual seeking refuge due to either lack of resources in the birth country or a fear of persecution. India's neighbouring states are third world countries, facing massive humanitarian crisis and are economically overburdened. Political tensions in Afghanistan, Pakistan, Myanmar and Bangladesh have spiked the trend of illegal immigration to India.
OBJECTIVE QUESTIONS FOR THE PAPER ARE AS FOLLOWS: I. What is the framework of India on illegal immigrants? II. What are the challenges faced by India in combating illegal immigration? III. Does India adhere to the international obligations pertaining to the human rights of illegal migrants? IV. Do Indian immigration laws uphold the principles of humanitarianism? THE INDIAN FRAMEWORK ON ILLEGAL IMMIGRANTS The first legislation to govern illegal migrants was the Passport (Entry into India) Act, 1920. It provided the government powers to formulate rules and regulations on immigration and a framework to deal with document verification in cases of immigration. This Act empowered the authorities to deport any individual, not in possession of his/her passport. The legislation empowered the government to make rules requiring persons entering India to be in possession of passports. Subsequently, the Foreigners Act, 1940 came into the picture which introduced concepts such as the 'burden of proof'. The Act, under Section 7, provided that the onus of proving one's nationality was on the person in doubt.224
With the implementation of the Foreigners Act, 1946, the 1940 Act ceased to exist. The Act gave more powers to government authorities and provided definitions to crucial terms such as 'foreigner'- a person who is not a citizen of India;225 and 'illegal immigrant' - persons in India without either valid Indian citizenship or a visa. An effort was made to conceptualise the definition and regulation of illegal immigrants by the Illegal Migrants (Determination by Tribunal) Act in 1983. However, the Act was struck down by the Supreme Court judgement of
224 Section 7, Foreigners Act, 1940. 225 Section 2(a) of The Foreigners Act, 1946
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Sarbananda Sonowal v. Union of India.226 The discussion on illegal immigrants was very much dormant until the introduction of The Citizenship (Amendment) Bill and the National Register of Citizens (NRC) in 2019.
The primary legal intent of The Citizenship (Amendment) Bill, 2019 was to relax the citizenship grant criteria for six minority communities migrating from neighbouring states of Pakistan, Afghanistan and Bangladesh. It granted relief to individuals falling under the mentioned category by scrapping off the requirement of presenting valid travel documents and accepted expired documents as well. This expeditious grant allowed minorities as mentioned above and replaced the previous law of terming them as illegal immigrants which disentitled them to apply for Indian citizenship. It must be noted that the said amendment does not amend the previously existing provisions of The Citizenship Act, 1955 or the rules made thereunder.227
Concerns rose at a higher rate when the CAA was linked to the National Register of Citizens (hereinafter, NRC). Student-led protests were held across the country, claiming that the amendment was discriminatory to the residing Muslim population of India and was essentially against the secular character of India. The issues were reviewed by Shri Amit Shah, Honorable Union Minister of Home Affairs and dialogue was facilitated between Union Ministry of Home Affairs (MHA) and the Assam state government.
The committee decided on providing adequate arrangements to individuals who were not included in the final NRC. They will have a right to appeal against the exclusion. The Foreigner Tribunals (F.T.) will act as an appellate authority to hear cases of such individuals, thus, giving them a fair chance to represent themselves.228 It is only the Foreigners Tribunals who vest the power to declare a person's status as a foreigner or illegal immigrant, as mentioned under Foreigners Act 1946 and Foreigners (Tribunals) Order 1964. Therefore, exclusion of an individual does not ipso facto declares him/her as a foreigner or illegal immigrant.
The State Government had also agreed to provide adequate tribunals by setting them up at convenient and accessible locations. Alongside, the state government also aims to arrange legal
226 Sarbananda Sonowal v. Union of India, Writ Petition (civil) 131 of 2000 227 Supra note 2. 228 India’s Courts are allowing Foreigners Tribunals to wreak havoc in Assam, Amnesty International India, (September 23, 19:14 PM), https://amnesty.org.in/news-update/indias-courts-are-allowing-foreigners-tribunals-to- wreak-havoc-in-assam/
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aid to the people in need of proper legal advice and representation. On the issue of stringent rules regarding the prescribed time to file an appeal, the Ministry of Home Affairs welcomed an amendment and increased the time limit from 60 to 120 days. The same amendment was made in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
While all these considerations seem promising, a human rights approach poses the contrary. The Foreigners Tribunals have had a demonstrated history of providing inadequate opportunity during hearings which violate the very fundamental right to a fair trial under Article 21 of the Indian Constitution. The Guwahati High Court has time and again increased concerns on this issue through indiscriminatory decisions notably the case of Jabeda Begum vs The Union Of India229, Shariful Islam @ Soriful Islam vs The Union Of India230 and Musstt. Nilbhan vs The Union Of India.231 A report by DAKSH, a Bangaluru based non-profit organisation, examined over 787 orders and judgments of the Gauhati High Court and concluded how matters of citizenship were decided by a discriminatory approach. The report quotes - 'one in two people are declared foreigners because issuing authorities fail to appear before the Foreigners Tribunals to testify that the documents produced are genuine and true to their knowledge. As all the cases analysed were filed by the persons who were declared to be foreigners,232 there is a need to understand how the state government and the high court are handling this issue since the court has reversed the findings of the Foreigners Tribunals in only 3% of the cases.'233
In addition to this, other issues such as the reversal of the burden of proof on the person questioned of their nationality, depriving the right to a fair investigation to Doubtful Voters and Declared Foreigners, protection from multiple references, and a bar on an extension of the deprivation of nationality status from one family member to others contribute to the discriminatory structure.234 'Now, with a nation-wide NRC, there is a possibility that there will
229 Jabeda Begum @ Jabeda Khatun vs The Union Of India And 5 Ors, WP(C) 7451/2019. 230 Shariful Islam @ Soriful Islam And ... vs The Union Of India And 7 Ors, WP(C) 2780/2019. 231 Musstt. Nilbhan vs The Union Of India, WP(C) 7928/2018 232 The authors did not come across any cases at the high court which were filed by the state regarding the citizenship of persons. 233 What 787 Cases in the Gauhati HC Tell Us About How 'Suspected Foreigner' Cases Are Decided, The Wire, (23 September 2020, 19:40 PM), https://thewire.in/law/assam-suspected-foreigners-tribunal-high-court 234 Supra Note 5.
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be thousands of Foreigners Tribunals set up across the country. They will decide whether those who are left out of the NRC are Indian citizens or not'235
The National Population Register is supposed to screen out "illegal immigrants" or "infiltrators."236 However, there is ambiguity regarding the rules on criteria, procedure and verification of documents of 'doubtful' citizens. There is not much clarity on citizenship grant either. This situation is likely to create an atmosphere of arbitrariness which can result in unfair decisions and thus, creating havoc among the already panicked public.
CHALLENGES FACED BY INDIA IN COMBATING ILLEGAL IMMIGRATION Immigrants, whether fleeing due to fear of persecution or in search of a better life have always found refuge in India; this can be seen from examples of influx from Pakistan, Bangladesh, Tibet, Afghanistan, Sri Lanka, Myanmar and the Rohingyas. While immigrants from the previously mentioned countries received a very hospitable environment, recent trends of rising illegal immigrants from Bangladesh and exodus of the Rohingyas has not been easy.
A lack of political will is witnessed in the past decade to accommodate these immigrants, mainly due to concerns on national security. It has been observed that decades of illegal immigration due to similar societal values and porous borders have adversely affected the Indian nationals. Lack of opportunities, economic constraints, volatile border issues with the People's Republic of China and Pakistan have had a lasting impact on India's immigration policy.
This hesitation and neglect have resulted in stringent laws such as CAA and NRC. Professor Ruth Gavison, in her lecture at the Kennedy School of Government, pointed out that while human rights play an inalienable role in a states' immigration policy, there is an obvious
235 Discrimination Against Muslims under India’s New Citizenship Policy, Human Rights Watch, (23 September 2020, 19:55), https://www.hrw.org/report/2020/04/09/shoot-traitors/discrimination-against-muslims-under-indias- new-citizenship-policy 236 Cabinet approves conduct of Census of India 2021 and updation of the National Population Register (NPR), Press Information Bureau, Government of India, (September. 23, 2020, 17:56 PM), https://pib.nic.in/PressReleseDetail.aspx?PRID=1597350
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prioritisation of sovereignty and national interests over human rights and aid.237 In addition to this, the insufficient and adequate national laws on defining and drawing a distinction between refugees, asylum seekers and illegal immigrants have complicated the issue. The blur and interchangeability of these highly distinct terms have given birth to confusion and in some cases, injustice.
The failure to establish the usual form of interstate supervisory mechanism for refugee convention encourages states to avoid the meaningful accountability between and among themselves which leads to a humanitarian crisis and the breakdown of the entire human rights setup guaranteed by the International Law. It is just too convenient to leave the task of protection of refugee laws to UNHCR. Yet, UNHCR is not really in a position to apply meaningful forms of pressure on states.238 It is, after all, an entity with a tiny core budget and which is effectively dependent on the voluntary contributions of a very small number of powerful governments, virtually none of which has been predisposed to empower UNHCR to act autonomously in advancing strong regime of international refugee protection. While these states have been generous in providing funds for refugee relief and for humanitarian assistance, they have too often either avoided or, on occasion, evaded UNHCR's insistence on the importance of protection principles. Because the UNHCR is and will remain, politically and fiscally constrained by structure and function, it cannot ideally be expected to provide a strong and impactful voice in favour of attention to refugee and immigrant protection that is now required.239
DOES INDIA ADHERE TO THE INTERNATIONAL OBLIGATIONS PERTAINING TO THE HUMAN RIGHTS OF ILLEGAL MIGRANTS? Indian Constitution guarantees its citizens the fundamental right to life and personal liberty. The scope and ambit of this right have been significantly expanded. While till 1978, Article 21 was construed narrowly as a mere guarantee against executive action unsupported by law, it is now
237 Immigration Policy: Sovereignty, Humanitarian Law, or Human Rights?, Harvard University, Edmond J. Safra Centre fpr Ethics, (23 September 2020, 20:58 PM), https://ethics.harvard.edu/event/immigration-policy-sovereignty- humanitarian-law-or-human-rights 238 G Loescher, The UNHCR and World Politics: A Perilous Path (2001) 239 James C. Hathaway, The Rights of Refugees under International Law (2005), p.996
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well-established by a series of decisions starting from Maneka Gandhi vs Union of India240 that it imposes a limitation upon law insofar as that the procedure stipulated therein must be just, fair and reasonable. Therefore, in the specific context of illegal immigrants, it means that while earlier, the courts merely had to consider whether the decision to deport complied with the procedure laid down in the Foreigners Act, it had now to consider whether the procedure was fair, just and reasonable.
National Human Rights Commission has also functioned very vigilantly and effectively as a watchdog for the protection of refugees. The commission had approached the Supreme Court under Article 32 of the Constitution and obtained the protection of the Chakma refugees from the Chittagong Hills tribal areas of Bangladesh when their life and security were threatened by local politicians and youth leaders in the state of Arunachal Pradesh. The relief was granted by the Supreme Court on the basis of the rights of aliens under Articles 14 and 21.241
India has categorised the Rohingya as illegal immigrants and a security threat, siding with the Burmese government. The Indian government has stated that the principle of non-refoulment, or of not forcing refugees to return to their country of origin, does not apply to India principally as it is not a signatory to the 1951 Refugees convention.242
One of the most challenging and unresolved issues of Rohingyas, a predominantly Islamic community in Myanmar. Even though Rohingyas are indigenous to Myanmar, they are held as "resident foreigners," and not citizens as per national laws. Due to an endless struggle for the search of asylum and legal status since the past decades, the Rohingyas have emerged as the most controversial issue regarding refugee laws in South East Asia. Lacking full citizenship, this community faces severe abuses and restrictions on their freedom of movement, access to education, along with arbitrary confiscation of property. The situation caught international attention after the infamous genocide in 2017 and the consequential issue of refugee flows. Although the international law provides conventions and treaties on rights of refugees, not many countries of southeast Asia are obliged by them, including Myanmar. There is a severe dearth of
240 AIR 1978 SC 597. 241 Saurabh Bhattacharjee, India Needs a Refugee Law, Economic and Political Weekly, Vol. 43, Issue No. 09, 01 Mar, 2008. 242 Ibid.
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regional instruments for the protection of refugees in South East Asia due to low regional cooperation in law enforcement, as compared to other areas of the world like Europe.
A crucial point worth addressing is that the neighbouring countries to which Rohingyas have fled to are significant in numbers. They are overwhelmingly poor and struggling with their own economic or political survival. These circumstances lead to a political resistance of refugees by developing countries to avoid the responsibility for their protection and welfare. This state of lawlessness has resulted into a rapidly increasing humanitarian crisis which calls for certain joint and effective measures by the international community and neighbouring countries to curb the situation before its outbursts into the disruption of peace and security in the subcontinent.
Refugee settlements and inflows from Bangladesh are no more an alien occurrence. The arrival of refugees began in 1947; when Muslim population from states in the newly formed India took refuge in Bangladesh (then known as East Pakistan).243 Due to the persecution in Myanmar in the 1970s, a minority ethnic group from Myanmar, known widely as Rohingyas have sought refuge in Bangladesh and other countries244. This has pushed the Bangladeshis to infiltrate into India.
While India continues to proclaim its willingness to assist immigrants as a matter of political discretion or humanitarian goodwill, it appears committed to a pattern of defensive strategies designed to avoid international legal responsibility towards Rohingya migrants. Comparing the strong support and intervention by India in the issue of erstwhile East Pakistan in 1971 to India's ignorance in the rising issue of Rohingyas in the name of national security; some may see this shift as a legal paradigm of refugee protection as a source of enhanced operational flexibility in the face of changing political scenarios.245
CAA violates India's international obligations regarding the prevention of deprivation of citizenship on the basis of race, colour, descent or national or ethnic origin. This principle has been embodied in the International Covenant on Civil and Political Rights, that India is a signatory to along with other human rights instruments such as the Universal Declaration of
243 Kamaluddin A.F.M. (1985) Refugee Problems in Bangladesh. In: Kosiński L.A., Elahi K.M. (eds) Population Redistribution and Development in South Asia. GeoJournal Library, vol 3. Springer, Dordrecht, as cited in Asia Refugee Policy Analysis, Retrieved from: https://reliefweb.int/report/bangladesh/asia-refugee-policy-analysis. 244 Xchange’s The Rohingya Survey 2017 for historical background of the Rohingya refugee situation and timeline leading up to the current crisis. Available at: xchange.org/rohingya-survey-2017/, as cited in in Asia Refugee Policy Analysis, Retrieved from: https://reliefweb.int/report/bangladesh/asia-refugee-policy-analysis. 245 James C. Hathaway, The Rights of Refugees under International Law (2005), p. 998
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Human Rights (UDHR). The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992 places an obligation on member states to protect the existence and identity of religious minorities within their territories. It calls governments to adopt appropriate measures in order to achieve this goal. Governments are under obligation to ensure that persons belonging to such minority groups, inclusive of religious minorities, may exercise these human rights free from discrimination and in full equality before the law.246
246 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, United Nations High Commissioner for Refugees, https://www.ohchr.org/en/professionalinterest/pages/minorities.aspx
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INDIAN IMMIGRATION LAWS AND PRINCIPLES OF HUMANITARIANISM The international legal system is no longer an exclusive 'western club' but is composed of a heterogeneous group of states, which differ politically, economically, culturally and ideologically.247 Today, the protection of migrants has assumed a high profile on the international agenda.
The primary instruments involved in the enforcement of international refugee laws are the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.248 However, Southeast Asian nations, including India, have not acceded to either of them, except a few. This is ironic as Southeast Asia is facing the world's most grave humanitarian issues and the refugee crisis.
India is a state where many refugee groups have taken asylum, majorly from its neighbours. India is neither a signatory to the 1951 U.N. Convention nor 1967 protocol on Status of Refugees. India has sincerely adhered to ad-hoc policies on migrant and refugee settlements since its independence. There are a large number of refugees and illegal immigrants in India due to its geopolitical location and secular values. The concerns sprouting out of refugee crisis majorly impact both to India, as a state and to the refugees, particularly in the context of law implementation.249
The Indian state has treated a few refugee communities reasonably well but has not formulated a well-defined refugee law, and judicial interventions have been case-specific. The absence of clearly defined statutory standards subjects' refugees and asylum seekers to inconsistent and arbitrary government policies.250
247 Rebecca M.M. Wallace, Olga Martin-Ortega, et.al., International Law 6 (Sweet & Maxwell, Thomson Reuters, 8th Edition, 2018). 248 Sara Ellen Davies, Legitimising Rejection – International Refugee Law in Southeast Asia https://brill.com/view/title/14640?language=en 249 J. Fitzpatrick, “Revitalising the 1951 Refugee Convention”, Harvard Human Rights Journal, Vol. 9, cited by Nikita Vadrevu, Human Rights of Refugees and Refugee Laws in India and Globally, March 14, 2018. Retrieved From: https://legaldesire.com/human-rights-refugees-refugee-laws-india-globally/ 250 Saurabh Bhattacharjee, India Needs a Refugee Law, Economic and Political Weekly, Vol. 43, Issue No. 09, 01 Mar, 2008.
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The international obligations to protect refugees, including non-refoulment, non-expulsion or non-extradition and the minimum standard of treatment are traced in customary international law as well as in international treaty law in the form of United Nation's Convention Relating to the Status of Refugees, 1951 along with the Protocol of 1967.251 During the discussion on the adoption of the International Refugee Convention, India expressed that there was no need to set up an elaborate international organisation for refugee legal protection.252 After the adoption of the Convention, there has been no official response from the government of India on its refusal to ratify the convention except for a statement by the external affairs minister in Parliament which indicated that the government was studying the implications of ratifying it.253
India has signed numerous human rights instruments that articulate a commitment to the protection of refugees. India is a party to the Universal Declaration on Human Rights (UDHR) 1948 and has joined the International Convention on Civil and Political Rights (ICCPR-1966) and the International Convention on Economic, Social and Cultural Rights (ICESCR-1966) since 1979. It is also a signatory to the Convention on the Elimination of all Forms of Racial Discrimination (CERD-1965) and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention-1984).254
It must be noted that India's refusal to join the Refugee Convention of 1951 does not absolve it from a basic commitment to humanitarian protection of refugees. The right of refugees to non- refoulement has been recognised, even if with some reservations, as a part of customary inter- national law. Thus, respect for this right is incumbent on the Indian government as the Constitution of India mentions, as one of the directive principles of state policy, that "the state (India) shall endeavour to foster respect for International Law and treaty obligations in the
251 Voice of Tamil Refugees, Sri Lankan refugees: Chennai High Court bans Tamil Nadu Government order, January 11, 2010. Retrieved From: http://voiceoftamilrefugee.blogspot.com/2010/01/blog-post.html. 252 Summary Records of the Third Committee meeting 259 (November 10, 1949), GAOR, Sixth Session, p 8143, in South Asia Human Rights Documentation Centre (SAHRDC), ‘Refugee Protection in India’ (1997), cited in Saurabh Bhattacharjee, India Needs a Refugee Law, Economic and Political Weekly, Vol. 43, Issue No. 09, 01 Mar, 2008. 253 India, Lok Sabha Debates, Vol XVII, May 7, 1986, col 32, cited in South Asia Human Rights Documentation Centre (SAHRDC), ‘Refugee Protection in India’, cited in Saurabh Bhattacharjee, India Needs a Refugee Law, Economic and Political Weekly, Vol. 43, Issue No. 09, 01 Mar, 2008. 254 United Nations, Human Rights Law, The Foundation of International Human Rights Law, Retrieved From: https://www.un.org/en/sections/universal-declaration/human-rights-law/index.html.
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dealings of organised peoples with one another."255It is pertinent to note that it is now well- established that the phrase, "International Law" represents customary International Law.256
255 Article 51 (c), Constitution of India, 1950. 256 Supra note 19.
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SUGGESTIONS The 2019 laws on citizenship and verification process are contradictory to the basic principles of equality and secularism enshrined in the Indian Constitution and continually upheld by Courts. Indian authorities should act upon these laws and adopt a human rights approach to the laws and policies pertaining to citizenship. Suggestions to balance human rights and national interests are:
I. Repeal amendment of the Citizenship Act, 2019 and come up with a screening mechanism which essentially ensures rights of equal treatment and protection against arbitrary discrimination on the basis of religion, consistent with the international legal standards.
II. Rethink on imposing NPR nation-wide as it will impose great vulnerability and injustice to the poor minority communities, incapable of producing acceptable;e documents. A mechanism which has a justifiable screening process to curb illegal immigration is needed than a discriminatory implementation which can spark communal violence.
III. Work on improving regional co-operation like in South-East Asia and come up with strong immigration agreements which are enforceable in the region.
IV. Ensure prompt and impartial investigations into the instances of unfair trials by Foreigners Tribunals in Assam and deliver justice to those who have been stripped off their nationality due to lack of organisation.
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CONCLUSION When it comes to the resistance of the developing countries to provide refuge, it must be recognised that no international over side body or international agency will ever be positioned to actually "require" governments to ensure rights perceived by states as fundamentally at risk with their fundamental national interests. The real test is, therefore, to formulate a structural mechanism for the implementation of the international human rights which states will embrace, or at least consider reconcilable to their own priorities257. Only with the benefit of an implementation mechanism on these lines will the Indian government along with governments of neighbouring states be persuaded to abide by even clear convention duties; and when compliance is the norm will it be realistic to expect any supervisory mechanism to be capable of responding dependably and effectively to instances of non-compliance.258
The question then logically arises: why is that the refugee conventions and immigration laws virtually alone among major human rights treaties, still has no free-standing mechanism to promote interstate accountability under the auspicious of an independent expert supervisory body charged with the review of periodic reports from states and the consideration of individuated communications from those aggrieved?259
India's illegal immigrant crisis needs an urgent and effective solution; firstly, it requires pressure to be put on the home countries to recognise the people and give them a legal status through coercive diplomacy by the neighbouring countries and international organisation, secondly, as a migration crisis demands-resources to counter it; provision of physical and monetary assistance to the asylum states could help willing states to cope up with the management of the refuge seekers, and lastly, a conscious and continuous effort by the international community on the rehabilitation of the mass number of refugees. The European bias of international law has, arguably, been significantly reduced due to the influx of other political ideologies. The world has a long way to achieve a forum which hears and delivers to the increasing heterogeneous demands. Nevertheless, a conscious effort to do the same can make
257 University of Michigan Law School, James C. Hathaway, Refugees' Human Rights and the Challenge of Political Will. (2006), Uploaded by Marchellene Caday-Atitiw on Jan 18, 2016. Retrieved from: https://www.scribd.com/document/295888573/Refugees-Human-Rights-and-the-Challenge-of-Political-Will-pdf. 258 James C. Hathaway, The Rights of Refugees under International Law (2005), p. 999 259 J Crawford, The Future of UN Human Rights Treaty Monitoring (2000), at 1-2
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this goal achievable and uplift millions who have migrated for a better life, free from misery, persecution and hardship.
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THE PROSPECTS AND PROBLEMS OF ELECTRONIC CONTRACTS IN INDIA WITH A SPECIAL REFERENCE TO THE COVID-19 PANDEMIC: A COMPREHENSIVE STUDY. (By Ritwik Guha Mustafi) ABSTRACT. “The bargain that yields mutual satisfaction is the only one that is apt to be repeated.”
-B.C. Forbes
The trend of electronic contracts is increasing in the contemporary society, courtesy to the growth of electronic commerce and the demand to explore the possibilities of online solution to the cumbersome traditional ways of trade and commerce. This was an important step particularly for countries with vast geographical area such as India. Undoubtedly, time-efficiency and inexpensiveness are the major positive points of electronic contracts. However, there are various challenges which the electronic contracts bring about. Electronic contracts often have jurisdictional issues when an actionable claim arises. They have problems regarding the determination of competency and identification of parties entering into a contract. These contracts do not give enough space for bargaining among the sellers and the buyers.
This paper provides a brief overview upon the types of electronic contracts and the validity of the electronic contracts in India. This paper does a detailed examination of the advantages of the electronic contracts over traditional contracts and the challenges prevailing in the system of electronic contracts with a special focus on India. The paper additionally examines the prospects of the system of electronic contracts in India in the times of the COVID-19 Pandemic. This paper aims at highlighting the lacunae in the present system of electronic contracting and providing effective solutions thereto. The paper applies the doctrinal method of research for the purpose of the article as sufficient data is available and uses primary sources such as books, journal articles, and case laws for generating data.
Keyword: Electronic, contract, jurisdictional, identification, bargaining, COVID-19.
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INTRODUCTION. As per Sec. 2(h)260, an agreement enforceable by law is a contract and this legally binding agreement recognizes and governs the rights and duties of the parties to the agreement.261 From an economic perspective, the primary reason a law of contract is required is needed is that most exchanges of any complexity can’t be performed simultaneously. The contract law facilitates the making and performing of deferred exchanges and secures cooperation in human behaviour.262 During the British rule in India, the principles of the English law of contracts, under the garb of equity, justice, and good conscience, were incorporated as the law of contracts for Indians. The 1872 Contract Act was passed to avoid conflicting laws for different communities in India.263
The internet has revolutionized the communication and exchange processes in the modern-day society. It has led to commercial transactions being carried out via electronic means. The trend of electronic contracts (hereinafter e-contracts) is increasing. When parties enter into contracts with every other and they're interacting face to face, it's far less complicated to keep away from mistakes than while they are at a distance and contracting with each other through the net as a medium. When the parties input into digital contracts the entire agreement can actually be concluded inside seconds at the press of a button.264
E-Contract is an aid for drafting and negotiating successful contracts for consumer and business e-commerce and related services. It is designed to assist people in formulating and implementing commercial contract policies within e-businesses. It contains model contracts for the sale of products and supply of digital products and services to both consumers and businesses.265
260 The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872. 261 ROBERT DUXBURY, CONTRACT LAW 1-2 (7th ed. 2006). 262 Stephen A. SMITH & P.S. ATIYAH, ATIYAH’S INTRODUCTION TO THE LAW OF CONTRACT 3-4 (6th ed. 2006). 263 Vijaysinh Shashikant Pisal, A dissertation on advantages of e-contracts over traditional contracts; e-contracts and e-commerce in India, BHARTI VIDYAPEETH DEEMED UNIVERSITY, (Sept. 22, 2020, 04:50 P.M.), http://elib.bvuict.in/moodle/pluginfile.php/183/mod_resource/content/0/Advantages%20of%20E- Contracts%20over%20Traditional%20Contracts%20-%20E-Contracts%20and%20E- Commerce%20in%20India%20-%20Vijaysinh%20Shashikant%20Pisal.pdf 264 K. Prethev & Aswathy Ranjan, A critical analysis of E-Contracts in India and enforceability with respect to Sec- 65 of Indian Evidence Act, 119 International Journal of Pure and Applied Mathematics 1757, 1758 (2018). 265 Bhanu Srivastava & Balendu Bhushan, Legal issues involved in e-contracts, LAWOCTOPUS, (Sept. 22, 2020, 05:00 P.M.), https://www.lawctopus.com/academike/legal-issues-involved-e-contracts/
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The validity of the e-contracts in the Indian scenario is subjected to the provisions of the Indian Contract Act 1872, The Information Technology Act 2000, and The Indian Evidence Act of 1872. The electronic contracts can be formed via e-mail agreements or online agreements.
The global outbreak of COVID-19 has led everyone, from promoters to investment bankers to transactional lawyers to fund managers, to change the way in which business is done. The travel restrictions and social distancing measures have made it difficult to execute contracts and e- contracts are emerging as a viable option.266 The ease of execution coupled with the enforceability makes the electronic contracts an inevitable option in times of the pandemic.267
It can be hypothesized that the ongoing COVID-19 Pandemic will provide an impetus and greater recognition to electronic contracts in India and due to this, the already-prevailing challenges in the system of electronically executed contracts will be recognized and attempted to be resolved.
THE TYPES OF ELECTRONIC CONTRACTS. I.) E-mail agreements: The e-mails which indicate the clear intention of the parties to enter into a contract can be treated as a binding contract.268 In the case related to the formation of contracts through the mail, the Supreme Court of India held that if a contract is concluded orally or in writing, the non-formalization of the contract won’t affect the acceptance of the parties and the implementation thereof and since the e- mail did clearly show the intention of the parties to enter into a legally binding relationship, the exchanges over e-mail were valid.269
II.) ONLINE AGREEMENTS:- a.) Click-wrap agreements: They require an explicit manifestation of assent, usually by clicking on the “I Agree” icon next to the terms and conditions. They are end-user
266 Ananya Sharma & Pranshul Joshi, Enforceability of electronic contracts in the context of COVID-19, AZB & PARTNERS (Sept. 22, 2020, 05:30 P.M.), https://www.azbpartners.com/bank/enforceability-of-electronic- contracts-in-the-context-of-covid-19/ 267 Kumar Panda, Electronic execution of contracts in the time of COVID-19 Pandemic, LAKSMIKUMARAN AND SRIDHARAN (Sept. 22, 2020, 05:35 P.M.), https://www.lexology.com/library/detail.aspx?g=502edd80-dd9a-4be9- ac59-9c3415d35b57 268Dr. S. Sethuram & Ms. Deepa C. Kumar, E-contracts in India: The legal framework, issues, and challenges, 4(2) International Journal of emerging innovations in Science and technology 12, 13 (2018). 269 Trimex International FZE v/s Vedanta Aluminium Ltd. , (2010) 1 S.C. 474 (India).
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agreements. The user who disagrees with the terms and conditions cannot purchase or use the product after cancellation. The terms of use shall be set down before the acceptance of users.270 b.) Shrink-wrap agreements: They are license agreements by which terms and conditions of the contract are enforced upon the contracting parties. 271 c.) Browse-wrap agreements: They do not necessarily call for explicit mutual assent and these terms are usually accessible through a hyperlink.272 In case of agreement on browsing, an ordinary user of a given website is to accept the terms and conditions of use and other website policies for continuous use.273
A BRIEF GLANCE UPON THE VALIDITY OF THE ELECTRONIC CONTRACTS IN INDIA. The Information Technology Act (hereinafter IT Act) of 2000 had, inter alia, legalizing of e- contracts as its objective.274 The IT (Amendment) Act of 2008 reiterated this objective and surprisingly enough, there was no express provision in the original IT Act validating contracts executed electronically.275
IT Act, 2000 provides statutory recognition to the system of e-contracts. Section 10 –A of the act specifically states that a contract shall not be deemed unenforceable, solely on the ground that electronic form/means were used for communication of proposals, acceptance of proposals, revocation of proposals, or acceptances, as the case may.276 Section 11 of the aforementioned act provides for the situations in which the electronic records are to be attributed to the originator and section 12 provides for the ways in which the acknowledgment of the receipt for an
270 Kaushal Kumar, All that you must know about e-contracts, IPLEADERS, (Sept. 22, 2020, 2020, 06:00 P.M.), https://blog.ipleaders.in/all-that-you-should-know-about-e-contracts/ 271 Dr. S. Sethuram & Ms. Deepa C. Kumar, supra note 9, at 12-13 272 Catherine L. Kunz et al., Browse-Wrap Agreements: Validity of Implied Assent in Electronic Form Agreements, 59 The Business Lawyer 279, 279-280 (2003). 273 Kaushal Kumar, supra note 11. 274 FAROOQ AHMAD, CYBER LAW IN INDIA (LAW ON INTERNET) 215 ( 2nd ed. 2011). 275 Farooq A. Mir & M. Tariq Banday, Emerging Legal Issues of E-Commerce, RESEARCHGATE (Sept. 23, 2020, 11:40 A.M.), https://www.researchgate.net/publication/227859135_Emerging_Legal_Issues_of_E-Commerce 276 Seema Jhingan et. al, E-Contracts- Legal Validity and Jurisdiction, MONDAQ (Sept. 23, 2020, 11:45 A.M.), https://www.mondaq.com/india/contracts-and-commercial-law/544404/e-contracts--legal-validity-and- jurisdiction?signup=true
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electronic record may be made by the addressee to the originator. Section 13 of this act provides for the determination of the time and place for the dispatch and receipt of the electronic record.
The Indian Contract Act of 1872 governs every form of contract in India and has its scope of applicability to the electronic contracts as well. The aforesaid act attracts the installation of basic principles and mandates several pre-requisites for a valid electronic contract.277
The pre-requisites are as follows278:-
1.) Clear identification of the contracting parties and time-period of validity;
2.) Clear identification of the subject-matter of the agreement;
3.) Clear intention to create legal relationship;
4.) Valid e-signatures of the parties involved;
5.) Non-repudiation i.e. no change in the content after the contract is signed.
Thus, where various steps of a contract have been affected through electronic means, the parties are at consensus-id-idem and such an agreement fulfills all the essentials of a valid contract and other pre-requisites under the Indian Contract Act, 1872 mentioned above, then, such a contract is valid and legally enforceable.279
The evidentiary value of the electronic contracts in India is provided for in the Indian Evidence Act of 1872. Section 65-A provides for the recognition of the electronic documents as evidence by the Indian courts and section 65-B provides for the procedure of and conditions under which an electronic document can be admitted as evidence in the court of law.280 Also, as per section 65B (1), any information contained in an electronic record which is printed on a paper, stored, recorded, or copied in optical or magnetic media produced by a computer shall be deemed to be a
277 Maryanka, Legal Validity of E-Contracts: A paradigm shift from conventional transaction to digitalization, 5 Mizoram University Journal of Humanities and Social Sciences 55, 59 (2019). 278 Saakar Srivastava, E-Contracts and Challenges faced, ACADEMIA EDU, (Sept. 23, 2020, 11: 55 A.M.), https://www.academia.edu/35769590/E-contracts_and_challenges_faced.docx
279 Maneck Mulla, Validity of Electronic Contracts in India, MONDAQ (Sept. 23, 2020, 12:00 P.M.), https://www.mondaq.com/india/contracts-and-commercial-law/699022/validity-of-electronic-contracts-in-india 280 M.R. MALLICK, J., CRIMINAL MANUAL (CRIMINAL MAJOR ACTS) 33-34 (2015).
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document and shall be admissible in any proceedings subject to the conditions mentioned in the said section.281
THE GENERAL ADVANTAGES OF ELECTRONIC CONTRACTS OVER TRADITIONAL CONTRACTS. Electronic contracts are standard contracts wherein the standardized terms are prepared beforehand by the former and the latter party is made to or deemed to agree to the terms where under the latter does not have much say.282 The following are a few points wherein the electronic contracts are advantageous over traditional contracts:-
In traditional contracts, parties are required to meet physically in order to understand the terms and conditions themselves and to any other middleman they may hire. Electronic contracts have ready to use templates that are available for different types of contracts and thus, they take less time to modify and draft.283 Electronic contracts foster a more collaborative process in which both parties may develop the contract together and agree to mutually beneficial business transactions. It is also ensured that addresses, names, and signatures are consistent across the entire contract.284 This contracting system is more eco-friendly as it helps in moving away from a paper- based system of contracting to an electronic system of formation and execution of contracts. The contracting procedure of electronic contracts is cost-saving and is generally quick. This mode of contracting may be used even for the management of a government contract that is otherwise very complex.285
281 R.C. KHERA, CRIMINAL MAJOR ACTS 22-23 (Diglot ed. 2014). 282 Shubhada Gholap, Electronic Contracts in India: An Overview, 6 International Journal of Research in Humanities, Arts, and Literature 251, 254 (2018). 283 Indrani Aditya Rai, Advantages of e-contracts over traditional contracts, MEDIUM (Sept. 24, 2020, 09:40 A.M.), https://medium.com/feelium-e-contract/advantages-of-e-contracts-over-traditional-contracts-9ce1f7a1e9f0 284 Alex Zhezherov, The difference between electronic contracts and traditional contracts, PANDA DOC BLOG (Sept. 24, 2020, 09:45 A.M.), https://blog.pandadoc.com/difference-between-electronic-contracts-and-traditional- contracts/ 285 Shubhada Gholap, Electronic Contracts in India: An Overview, 6 International Journal of Research in Humanities, Arts, and Literature 251, 256 (2018).
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THE CHALLENGES INVOLVED IN THE SYSTEM OF ELECTRONIC CONTRACTS WITH A SPECIAL FOCUS ON INDIA. Jurisdictional issues: These problems arise because the advancement in technologies transcends jurisdictional boundaries. In the case of e-contracts, the parties meet online and thus the places in which they are located may be different. A strict determination of jurisdiction is lacking in the place of execution.286 The courts most often apply the law of the jurisdiction that has the most points of contact with the contractual relationship which is referred to as “personal jurisdiction” of the court. The problem arises, if the violator is a non-resident of a particular area, which laws would be applicable – domestic laws of the state where he is residing, or domestic laws of the state whose laws he has committed the offense.287 The Civil Procedure Code, 1908 validates the rules pertaining to the jurisdiction of civil matters either on the basis of the cause of action or the place of business of the defendant. Section 13(3) of the IT Act asserts that the electronic record is deemed to be dispatched from the place where the originator of the “electronic record” has his place of business and is deemed to be received at the place where the addressee has his place of business. Hence, notwithstanding the place from where the electronic record was dispatched and the place where it was received, the place of contract is always either the place of business of the promisor or the acceptor of the electronic record.288
In a case before the High Court of Allahabad, the respondent had sent the letter of acceptance by an e-mail to the petitioner's e-mail address. Thereafter, the respondent revoked the same on
grounds of ‘unavoidable circumstances’. The petitioner challenged this communication in the Allahabad High Court. The respondent raised an objection as to the "territorial jurisdiction" of the Court on the ground that no part of the cause of action had arisen within Uttar Pradesh (UP), and therefore, the Allahabad High Court (UP) had no jurisdiction to try the dispute. In the case, the principal place of business of the petitioner was in district Chandauli (UP), and the other place where the petitioner carried on business was Varanasi, which is also in the State of UP.
286 Kaushal Kumar, Supra note 11. 287 Shashank Tyagi & Shivangi Rana, E-Contracts in India: Issues and Challenges, 7 International Science and Technology Journal 160, 163-164 (2018). 288 Saakar Srivastava, Supra note 28.
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The Court, therefore, on the basis of section 13(3) of the IT Act, held that the acceptance of the tender by e-mail would be deemed to have been received by the petitioner at Varanasi/Chandauli, the only two places where the petitioner has his places of business. As both these places fell within the territorial jurisdiction of the Allahabad High Court, the Court assumed jurisdiction to try the dispute.289
Identification of parties: As per section 10 of the Indian Contract Act (hereinafter I.C.A), 1872, the parties to the contract, inter alia, should be competent to contract. As per section 11 of the aforementioned act, every person who has attained the age of majority according to the law to which he is subject and who is of a sound mind and not disqualified from contracting by any law is competent to contract. A contract with a minor is void-ab-initio.290 With regard to e-contracts, there is a possibility that a minor or any other incompetent person enters into a contract by clicking the “I Agree” icon. Most of the e-contracts are formed on the basis of the visual identity which may be linked with FaceBook or Gmail accounts and there cannot be a concrete guarantee that the parties entering into the contract are competent. There is a lack of stringent procedures for the identification of the parties.
Free consent of the parties: The bargaining power is very limited in the area of electronic contracts. The two options of either “take it or leave it” is available for the consumers.291 Electronic contracts may also lack mutual assent as normally they consist of so much detailed terms and conditions that the consumers may not understand them or may not read them at all. In such contracts, the dominant party manipulates and controls the terms and conditions of the contract and the scope of negotiation is limited. By focussing on seller’s interests and demanding non-negotiable terms, there is nothing left on which the parties may voluntarily agree.292 Due to this, the concept of ‘free consent’ which is one of the fundamental requisites for a valid contract given under section 10 of the Indian Contract Act, 1872 is affected.
289 P.R. Transport Agency v. Union of India, A.I.R. 2006 All 23 (India). 290Mohoribibee v. Dharmodas Ghose, (1903) ILR 30 Cal 539 (PC) (India). 291 Dr. S. Sethuram & Ms. Deepa C. Kumar, Supra note 9, at 15. 292 M.C. BHANDARI, Supra note 21, at 1388.
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Possibility of violation of Intellectual Property Rights: The internet is boundless with minimum regulation and therefore the protection of intellectual property rights (hereinafter IPR) is a challenge and a growing concern amongst most e-businesses. The efficacy of Indian IPR regulations in the area of e-commerce transactions is a problematic issue. For instance, the Indian law is also silent on the issue of the domain name disputes which falls under the purview of Trademark laws. A domain name registry will not register two identical domain names but can register a similar domain name. This leads to a situation where deceptively similar domain names can be registered by a third party. There is no specific Indian law on domain names except the judicial pronouncements, which have reiterated the principles of law that domain names are valuable property and are entitled to trademark protection.293 Unclear provisions on the payment of stamp duty: An instrument that isn't properly stamped may not be allowed as completed and authentic unless the important stamp obligation alongside the punishment has been paid. As the installment of stamp obligation has gone on the web and e-stamp papers are accessible, it can turn into a plausibility later that stamp obligation may be asked on e-contracts also.294 As a general principle, all instruments are required to be stamped, and electronically executed contracts have not been exempted from payment of stamp duty. Some Indian states, such as Maharashtra, Karnataka, and Delhi, have specifically clarified that 'electronic records' are subject to stamp duty. While the government has made it possible for parties to purchase stamp paper online in some states, there are some other states which still do not permit such a purchase.295
293 Aijaj Ahmed Raj & Wazida Rehman, E-Commerce Laws and Regulations in India: Issues and Challenges, RESEARCHGATE (Sept. 24, 2020, 10:00 A.M.), https://www.researchgate.net/publication/330845555_E- commerce_Laws_and_Regulations_in_India_Issues_and_Challenges/link/5d865de1299bf1996f8f01a9/download 294 S.R. Subbaashini & Shaji. M, Legal issues arising in e-contracts in India: An analysis, 120 International Journal of Pure and Applied Mathematics 4601, 4606 (2018). 295 Vikram Jeet Singh & Kalindhi Bhatia, COVID-19 Series: Is the ‘E-contracting- age’ finally here? , MONDAQ (Sept. 24, 2020, 10:10 A.M.), https://www.mondaq.com/india/operational-impacts-and-strategy/979294/covid-19- series-is-the-e-contracting-age-finally-here
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THE PROSPECTS OF ELECTRONIC CONTRACTS IN THE COVID-19 PANDEMIC ERA. The COVID-19 Pandemic has profoundly affected the way in which countries and communities conduct their business. India, along with most of the countries around the world, has been adopting several safety measures to prevent transmission of COVID-19 among its masses. The pandemic has affected the legal system as well, disrupting the normal functioning of courts and law firms alike.
All the industries around the world have also been affected by this crisis. Indian companies are allowed to sign and maintain certain documents, records, registers, minutes, etc., in electronic form, provided these are digitally signed and dated and are not be capable of being edited or altered. This will likely pick up even more, given the issues with physical records now. It is also possible to submit digitally signed, electronic applications for registering certain types of intellectual property. Given that the practice of physical submissions is becoming difficult, this will likely pick up too, both in and after the COVID-19 Pandemic.296
The Indian judiciary responded immediately to the critical situation and the Indian Supreme Court adopted measures of video conferencing to hear matters under article 142 of the Indian Constitution while ensuring the safety of lawyers, litigants, and media personnel.297 The vision of virtual courts in India is no longer audacious.
The Indian laws are not averse to the idea of e-contracts and the courts have consistently upheld the validity of e-contracts provided they satisfy the prerequisites of the Indian Contract Act. However, it is the rigid mindset of the people that come in the way of execution of e-contracts. It appears, however, that the current crisis will eventually force people into accepting contracts in electronic modes. The Indian legal system has already set in motion the required laws for recognition and enforcement of such contracts.298
SUGGESTIONS.
296 Ibid. 297 Shreyash Mittal, Virtual Courts in India: During the times of COVID-19 and Beyond, SOUTH ASIA JOURNAL (Aug. 20, 2020, 03:25 P.M.), http://southasiajournal.net/virtual-courts-in-india-during-the-times-of-covid-19-and- beyond/ 298 Rajashree Devchoudhury, COVID-19: A Catalyst for E-Contracts! , MONDAQ (Sept. 24, 2020, 10:20 A.M.), https://www.mondaq.com/india/litigation-contracts-and-force-majeure/926344/covid-19-a-catalyst-for-e-contracts
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. There should be stringent rules for the identification of the parties adopting the electronic mode of contracting. This may be done through the mandatory requirements of the Aadhar card, PAN card, and other identification details of the parties entering the contract. This will help in protecting the incompetent persons, who are entering into a contract either by mistake or by force/pressure, from future legal problems. . The negotiations between buyer and seller have to be encouraged in the e-contracts. There is a possibility that for an average quality product, an unreasonably high price is charged by the seller. Above a price threshold, the terms and conditions should be made flexible enough for negotiation. . The terms and conditions listed down by the sellers should be made as lucid and summarized as possible. Key points should be highlighted. This will be time-efficient for the consumers and will increase the chances of “meeting of minds” among sellers and buyers which reduce conflicts thereafter. . It is high time for the Indian jurisprudence to develop and improve the laws related to jurisdiction over the contracts formed electronically. When the Indian Courts review the judgment passed by a foreign court upon any Indian citizen for contravention of e- contracts or when the Indian courts are passing judgment upon a foreign national for the same reason, the principles of justice must be upheld and a well-reasoned judgment must be respected to avoid multiplicity of suits and future clashes. Multiple suits may deter people from adopting electronic means of contracting. . In the times of COVID-19 Pandemic when all the legal procedures have been shifted to online mode, it is essential to take steps for developing the Online Dispute Resolution mechanisms for the electronic contracts and other such transactions. . It is advisable that the general public should be trained and made aware of the electronic contracts and the precautions they need to take in order to avoid any future problems. The corporate law firms and other relevant authorities in India may initiate advisory sessions to educate the public on electronic contracting, digital signatures, maintaining e-corporate documents, etc. while charging nominal fees. . The Indian states should be uniform in their approach towards the purchase of online stamp paper to enable the parties abide by the Indian stamp laws. The physical purchase of stamp paper and the subsequent attachment of the same in the concerned contract may
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act as an impediment in the way of paperless execution of contracts, something which is necessary in times of a Pandemic in order to avoid physical contact.
CONCLUSION. The living standards of the contemporary world have changed largely due to the advancements in the information and technology field. Large-scale changes have come about in various areas of law, be it civil law or criminal law. E-commerce has developed rapidly. It provides flexibility in the businesses and is efficient in the terms of time, place, etc. and is also expected to improve productivity and competitiveness in the global market. The growth of e-commerce has resulted in an increasing trend of e-contracts for the exchange of any type of goods and services. E- contracts are undoubtedly inexpensive and time-saving but they come with their own share of legal challenges as seen earlier in this paper. Indian laws have attempted, in a commendable way, to cover all the lacunae of the e-contracts but there is a scope of improvement. The Indian laws are still unclear on many points.
The COVID-19 Pandemic has necessitated all avenues of law, in India and abroad, to shift to a digitalized mode. Electronic contracts have become inevitable in the times of the ongoing COVID-19 Pandemic for safe transactions, thereby paving way for greater recognition of such contracts. It is expected that a hybrid of physical and electronic contracts will be used in the near future.
Therefore, it is to be concluded that the laws governing e-contracts, both that of India and abroad, have to be flexible and are needed to be constantly updated and improved as per the changing demands and other circumstances.
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THE ETHICAL AND MORAL ISSUE OF PHYSICIAN ASSISTED SUICIDE: A CRITICAL ANALYSIS By: Sanjana Bharadwaj, Assistant Professor of Law, School of Law, MIT-World Peace University, Pune India ABSTRACT The concept of physician assisted suicide or PAS has seen a lot of heated discussion and debates at national and international forums. Questions on physician assisted suicide revolves around whether a physician who has taken a sacred oath to save life be allowed to give to its patient a lethal dose of medicine to end its life, is it morally and ethically correct? In many jurisdictions like the United States, patients are given the autonomy to decide to choose a resuscitate method when they are dying. If the doctor allows that wish, is he killing his patient or whether that is ethically correct? To live with human dignity is one of the most important right in this country. Human dignity is inviolable and must be protected. It includes not only to live in a humane conditions but also includes the right to privacy. While living with human dignity, a person should be able to make decisions for his body, especially a critically ill patient. Won’t it be immoral to let a man suffer who is in severe pain? Recognising the right of an individual to be free from Government interference in deciding matters of life and death is a personal decision. The world is perpetually changing and making a provision of physician assisted suicide will take a man out of his suffering. This article will address the ethical and moral issue of physician assisted suicide. It will also deliberate on whether in a country like India, should it be allowed or not.
Keywords: Physician assisted suicide, Right to life, India and Euthanasia
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INTRODUCTION Suffering has always been a part of human existence. In some situations, patients in extreme duress--such as those suffering from a terminal, painful, debilitating illness-may come to decide that death is preferable to life.299 Increasing life expectancy, advances in medical technology, and radical changes in the regulation of drug use and the economics of health care have transformed how we die.300 Formerly, most people died at home. Today, most of them die in the hospital. Technology, invention and discoveries in medical science has made quite an impact in the minds of the people and has completely transformed the thinking of the people. Today, more and more people are being kept alive by machines in a hospital. All these developments which have taken a new stride in the field of technology have created choices for the people. These choices include not only how to live but also how to die. As individuals, we can choose to die actively or passively, practicing death control or dying of disease or old age. As a society, we can choose to let people die on their own terms or force them to die on terms decreed by the dominant ethic.301 When there is a conflict between living and dying in the 21st century, many patients who are terminally ill or don’t have a promising prognosis choose to die through physician assisted suicide or PAS.
Physician-assisted suicide occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act (e.g., when the physician provides sleeping pills and information about the lethal dose, while aware that the patient may commit suicide).302 It may also include knowingly and intentionally providing a person with the knowledge or means or both required to commit suicide, including counselling about lethal doses of drugs, prescribing such lethal doses or supplying the drugs.303
The paper will consider two questions. The first question it will address is whether the current regulations on physician assisted suicide are adequate or not. The second question it will address is what moral and ethical issues does the concept of physician assisted suicide face. Whether is it
299 American Medical Association, available at http://www.ama-assn.org/ama/pub/physician-resources/medical- ethics/code-medical-ethics/opinion2211.page, (last visited Oct 12, 2020). 300 O'Brien, Michael. “The Morality of Suicide.” The Furrow, vol. 22, no. 3, 1971, pp. 150–155. JSTOR, www.jstor.org/stable/27679286. Accessed 19 Oct. 2020. 301 Supra note 2 302 Supra note 2 303 Emanuel EJ, Fairclough DL, Daniels ER, Clarridge BR (1996). "Euthanasia and physician-assisted suicide: attitudes and experiences of oncology patients, oncologists, and the public.". Lancet 347 (9018): 1805– 10. PMID 8667927
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moral to assist a person in dying and whether it is ethically wrong? In considering these questions, this paper will do three things, first it will provide a background of physician assisted suicide and also discuss how it is different from euthanasia. Second it will trace the Indian laws and international laws on the same. It will then address the moral and the ethical issues faced by physician assisted suicide while discussing ‘The New York State Task Force on Life and the Law’ and would finally arrive at a conclusion.
PHYSICIAN ASSISTED SUICIDE V. EUTHANASIA Frances Kamm and Lucius Littauer304 in their essay "Physician-Assisted Suicide, Euthanasia, and Intending Death"305 defined Euthanasia as,
“Euthanasia involves a death that is intended (not merely foreseen) in order to benefit the person who dies.”
The concept of Euthanasia differs from physician-assisted suicide. Assisted suicide and euthanasia are sometimes combined under the umbrella term "assisted dying", an example of a trend by advocates to replace the word "suicide" with "death" or ideally, "dying". Physician- assisted suicide differs from euthanasia, the difference being in who administers the lethal medication. In euthanasia, a physician or third party administers it, while in physician assisted suicide it is the patient himself who does it, though on the advice of the doctor. In many countries/states the latter is legal while the former is not.306
Johann Wolfgang von Goethe (1749-1832) once remarked,
"Suicide is an event that is a part of human nature. However much may have been said and done about it in the past, every person must confront it for himself anew, and every age must come to its own terms with it."
Currently, physician-assisted suicide is legal in Switzerland, Germany, Japan, Albania and in the US states of Washington, Oregon, Vermont, New Mexico and Montana.
304 Professor of Philosophy and Public Policy at the John F. Kennedy School of Government, Harvard University 305 A debate about the legal aspects of euthanasia and physician assisted suicides - Term paper Sample October 2020, http://batermpaperapqc.francescocingolani.cc/a-debate-about-the-legal-aspects-of-euthanasia-and-physician- assisted-suicides-xaxyzi7781.html (last visited Oct 19, 2020). 306 Aruna Shanbaugh v. Union of India (2011) 4 SCC 454
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LAWS RELATING TO PHYSICIAN ASSISTED SUICIDE IN DIFFERENT PARTS OF THE WORLD This section of the paper shall analyse the legal provisions relating to PAS and euthanasia in different countries of the world.
Netherlands: Euthanasia in the Netherlands is regulated by the "Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002”.307 It states that euthanasia and physician- assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient's request, the patient's suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee.308
Switzerland has an unusual position on assisted suicide: it is legally permitted and can be performed by non-physicians. However, euthanasia is illegal (unlike in Holland where it is legal under certain conditions). Article 115 of the Swiss Penal Code, considers assisting suicide a crime if, and only if, the motive is selfish.309 The code does not give physicians a special status in assisting suicide; although, they are most likely to have access to suitable drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs. Switzerland seems to be the only country in which the law limits the circumstances in which assisted suicide is a crime, thereby decriminalising it in other cases, without requiring the involvement of a physician.310 Consequently, non-physicians have participated in assisted suicide. In 2009, Luxembourg passed a law allowing terminally ill patients to end their lives under supervision of doctors.311
307 Dutch “Termination of Life on Request and Assisted Suicide (Review Procedures) Act” — DRZE, , http://www.drze.de/in-focus/advance-decisions/modules/niederlaendisches-201egesetz-ueber-die-kontrolle-der- lebensbeendigung-auf-verlangen-und-der-hilfe-bei-selbsttoetung201c?set_language=en (last visited Oct 9, 2020). 308 Id 309 Samia A Hurst & Alex Mauron, Assisted suicide and euthanasia in Switzerland: allowing a role for non- physicians, 326 BMJ 271–273 (2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1125125/ (last visited Oct 9, 2020). 310 Id 311 Parliament of Victoria - Voluntary Assisted Dying Bill 2017, , https://www.parliament.vic.gov.au/publications/research-papers/download/36-research-papers/13834-voluntary- assisted-dying-bill-2017 (last visited Oct 15, 2020).
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In Oregon, the state adopted the Oregon Death with Dignity Act in the year 1994 that allowed people who had been diagnosed with terminal illness and had six months to live, to take a lethal dose of prescribed medication and die voluntarily.312
In Japan, the concept of “Mercy Killing” or Euthanasia is prevalent.313 However, physician assisted suicide is unlawful in Japan, because aiding suicide is generally unlawful in Japan, because aiding suicide is punishable in Japanese Criminal Code (Article 202).314
It is frequently argued that suicide assistance and active euthanasia are morally equivalent, the law in all states draws a clear distinction between these two types of acts. In New York, assisting a suicide, except in certain limited circumstances, is a form of second-degree manslaughter.315 Euthanasia, however, falls under the definition of second-degree murder, as the defendant intentionally causes the death of the victim through his or her direct acts. Because the consent of the victim is not a defence to murder, euthanasia is therefore prosecutable as murder in the second degree.316
The two most significant cases of the U.S. Supreme Court that addressed the issue whether there was a federal constitutional right to assisted suicide arose from challenges to State laws banning physician assisted suicide brought by terminally ill patients and their physicians. These were Washington vs. Glucksberg317and Vacco vs. Quill318. In Glucksberg's case, the U.S. Supreme Court held that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The Court observed: "The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed the two acts are widely and reasonably regarded as quite distinct."
312 Oregon Health Authority : Frequently Asked Questions : Death with Dignity Act : State of Oregon, , https://www.oregon.gov/oha/ph/providerpartnerresources/evaluationresearch/deathwithdignityact/pages/faqs.aspx (last visited Oct 13, 2020). 313 Akabayashi, Akira. (2002). Euthanasia, assisted suicide, and cessation of life support: Japan's policy, law, and an analysis of whistle blowing in two recent mercy killing cases. Social science & medicine (1982). 55. 517-27. 10.1016/S0277-9536(01)00184-8. 314 Right to Die - Stanley Yeo, 2003, , https://journals.sagepub.com/doi/abs/10.1177/1037969X0302800208 (last visited Oct 12, 2020). 315 Murder in the second degree, , NY STATE SENATE (2020), https://www.nysenate.gov/legislation/laws/PEN/125.25 (last visited Oct 10, 2020). 316 The New York State Task Force on Life and the Law's 1994 report entitled When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context explained in Chapter 4, "Decisions at Life's End: Existing Law" 317 521 U.S. 702 (1997) 318 521 U.S. 793 (1997)
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Looking at the legal framework of the different countries, the next part of the paper shall analyse the stand of the Indian courts in dealing with Physician Assisted Suicide.
STAND OF INDIAN JUDICIARY IN REFERENCE TO PHYSICIAN ASSISTED SUICIDE 'Life' has been interpreted by the Judiciary, to mean something more than 'mere animal existence'.319 Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality the feeling of wholeness with a capacity for continuous intellectual and spiritual growth. Physical, social, spiritual and psychological well-being are intrinsically interwoven into the fabric of life. According to Indian philosophy that which is born must die. Death is the only certain thing in life."320 Physical and mental health have to be treated as integral part of right to life, because without good health the civil and political rights assured by our Constitution cannot be enjoyed.321
In R. C. Cooper v. Union of India322, it was remarked by the honourable Supreme Court that if the fundamental rights confer a positive rights on the individual. They also confer negative rights as well. Mention was then made of freedom of speech and expression, as to which it was observed that the same includes freedom not to speak and to remain silent. Similarly, about the freedom of business and occupation, it was stated that it includes freedom not to do business. The Supreme Court in P.Rathinam v. Union of India323 affirmed that following the logic, right to live shall also include the ‘Right to Die’. However, this notion was overruled by the Supreme Court in Gian Kaur v. State of Punjab.324
The Supreme Court went further to state that, in any case, a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking.325
319 Sunil Batra v. Delhi Administrator 1980 SCR (2) 557 320 COLIN GONSALVES, VIJAY HIREMATH & REBECCA GONSALVEZ, PRISONERS’ RIGHTS (2008). 321 C.E.S.C. Ltd. v. Subhash Chandra Bose 1992 AIR 573 322 1970 AIR 564, 1970 SCR (3) 530 323 1994(3) SCC 394 324 1996(2) SCC 648 325 The Supreme Court in the instant case made an observation that, “The right to life' including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the right to die' an unnatural death curtailing the natural span of life.”
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The English poet William Ernest Henley wrote: "I am the master of my fate, I am the captain of my soul".326 The Union Government on the basis of 210th Report of Law Commission of India in December 2014 decided to scrap Section 309 from the Indian penal Code which criminalizes ‘attempt to commit Suicide’.327
India has no laws for euthanasia or physician assisted suicide. The Supreme Court in for the first time, in a landmark case of Aruna Shanbaug328 in 2011 laid down guidelines by which a passive euthanasia can be carried out in patients. The guidelines were as follows329:
1. A special two-judge bench will be formed in every high court to decide applications seeking permission for euthanasia. 2. A committee of three reputed doctors from a panel constituted by the high court in consultation with the state government will examine the patient and submit its report to the high court bench. 3. Notices will be issued to all those concerned with the doctor’s report attached. 4. After hearing everyone, the bench will give its verdict. The matter must be dealt with speedily as delays prolong the agony of the patient. "Passive" euthanasia involving the withholding of lifesaving treatment, such as antibiotics or a heart-lung machine, is allowed in exceptional cases after a review by medical experts and approval of the high court.
The current legislation on Physician assisted suicide is not adequate. With passing time, euthanasia has become the need of the hour. But looking at how things are moving so forward in this globalised world, the author would like to mention that a terminally ill patient or a person who does not has very promising prognosis, will die eventually. It may take him six months or a year. The point is he/she is going to die. This death may be very painful and very excruciating in
326 Poetry Foundation, Invictus by William Ernest Henley, POETRY FOUNDATION (2020), https://www.poetryfoundation.org/poems/51642/invictus (last visited Oct 11, 2020). 327 Report no 210, Law Commission of India, Humanization and Decriminalization of Attempt to Suicide, available at http://lawcommissionofindia.nic.in/reports/report210.pdf (last visited Oct 12, 2020). 328 Aruna Ramachandra Shanbaug v. Union of India (2011) 4 SCC 454 329 Passive euthanasia: Right to live includes right to die: Supreme Court | India News - Times of India, , https://timesofindia.indiatimes.com/india/right-to-live-includes-right-to-die-supreme- court/articleshow/63239760.cms (last visited Oct 13, 2020). Read also, India’s Supreme Court allows ‘passive euthanasia’ | India | Al Jazeera, , https://www.aljazeera.com/news/2018/3/9/indias-supreme-court-allows-passive-euthanasia (last visited Oct 13, 2020).
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most of the circumstances. Why should a patient suffer all of this? We have borrowed technology, made new strides in this scientific world so as to give the people some comfort in their daily lives. Euthanasia in its passive form is allowed in this country. Section 309 of the Indian Penal Code has also been struck down. We talk about protecting the rights of the citizens. We recommit ourselves to actively promote and protect the human rights. The Government in this scenario must cease to be a compulsive litigant. It should agree on the fact that development can only take place when all the sectors of a country grow together. Law also has to change itself while looking at the needs of the society. Getting a medical treatment is very expensive. Especially a treatment which has no prognosis. When we want make our life comfortable, wouldn’t it be somewhere moral to provide some relief to an already dying patient?
THE NEW YORK STATE TASK FORCE ON LIFE AND THE LAW: MORALITY REVISITED One of the most thoughtful arguments put forward against the legalization of any type of medically-assisted dying is that contained in the report of the New York State Task Force on Life and the Law330. The Task Force’s reasons to oppose legalization on the following grounds:
1. Prohibitions on physician-assisted suicide are “. . . justified by the state’s interest in preventing the error and abuse that would inevitably occur if physicians or others were authorized to . . . aid another person’s death.”
2. “. . . to the extent that laws prohibiting physician-assisted suicide and euthanasia impose a burden, they do so only for individuals who make an informed, competent choice to have their lives artificially shortened, and who cannot do so without another person’s aid. . . very few individuals fall into this group...... legalizing. . . assisted suicide for the sake of these few – whatever safeguards are written into the law – would endanger the lives of a far larger group of individuals, who might avail themselves of these options as a result of depression, coercion, or untreated pain.”
3. “. . . laws barring suicide assistance . . . serve valuable societal goals: they protect vulnerable individuals who might otherwise seek suicide assistance . . . in response to treatable
330 When Death is sought: Assisted Suicide and Euthanasia in the Medical Context. The New York State Task Force on Life and the Law, New York, May 1994.
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depression, coercion, or pain; they encourage the active care and treatment of the terminally ill; and they guard against the killing of patients who are incapable of providing knowing consent.”
4. Dependence of the patient on the physician and his recommendations. If we allow physician-assisted suicide, then although nominally the request must originate from the patient, physicians will exercise a degree of coercion and/or persuasion that is illegitimate. This is particularly likely in the current context where there is growing concern about increasing health care costs. “. . . It will be far less costly to give a lethal injection than to care for a patient throughout the dying process.”
The arguments presented by the Task force are worth noticing while considering the question of physician assisted suicide. But the author would sensitize with the patients who are suffering a medical condition which is terminal in nature and have a very short span of living. In cases like these, although the arguments presented above by the Task force would water down the argument for ‘terminally ill patients’ but it is worth considering this question that whether the excruciating pain in which the patients suffer, whether it is just and moral and humane to let them suffer when there is an alternate set of discourse which is available in the name of physician assisted suicide? Is it just and humane to let the family suffer along with the patient and exhaust all of their finances in the name of treatment when physician assisted suicide can take the burden of the family and of the patient? In the name of morality and ethics, and for the sake of the society, should a patient and his family members go through excruciating pain and distress, when physician assisted suicide can solve the issue?
ASSESSING PHYSICIAN ASSISTED SUICIDE IN THE 21ST CENTURY- MORAL OR IMMORAL? Belief in the special worth of human life is at the heart of civilised society. It is the most fundamental value on which all others are based, and is the foundation of both law and medical practice. The intentional taking of human life is therefore the offence which society condemns most strongly.331
331 Report of the Select Committee on Medical Ethics, HL Paper 21-1, 1994
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A suicide will be understood as the voluntary and intentional taking of one's own life. There are deep and diverse views on the concept of morality regarding this issue. In a research conducted by PEW research Centre United States,332 about six-in-ten adults (62%) believe a person has a moral right to end their own life if they are suffering great pain and have no hope of improvement.333 Physician assisted suicide has seen a broader moral shift over the years. While looking at this statistics and a personal belief, the author feels that the concept of physician assisted suicide should be permitted in 21st century as it would be moral and ethical to lend a hand to a patient who is already dying.
An important goal of medicine is to relieve suffering and treat others with compassion. Why physician assisted suicide should be made permissible in a country is because it gives forth the physician to relieve the suffering of their patient. Many of the best-known accounts of physician- assisted suicide are cases where compassionate, knowledgeable, and understanding physicians believed their duty to assist in a suicide in order to relieve pain, anguish or suffering was a higher duty than prolonging life.334 Liberal thinker, Thomas Szasz argues that “if freedom is self- ownership—ownership over one's own life and body—then the right to end that life is the most basic of all. If others can force you to live, you do not own yourself and belong to them.”335
Societies have some moral standards of conduct in which things are supposed to go in a particular way, if not that thing is not accepted by the society. So by standards there are things which are right to do and there are things which are wrong to do. These notions of rightness and wrongness stems from the principles expressed in an inherent society’s religion. Sometimes a moral code in a society may be secular in nature. John Stuart Mill in his essay,336 On Liberty, speaks of the tyranny of the majority, that “the society can and does executes its own mandates and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political
332 Research on Euthanasia, Pew Research Center, PEW RESEARCH CENTER , https://www.pewresearch.org/ (last visited Oct 19, 2020). 333 In this research, A majority (56%) believe a person has a moral right to end his or her life if suffering from an incurable disease. Fewer see a moral right to suicide when a person is ready to die because living has become a burden (38%) or when a person is an extremely heavy burden on his or her family (32%). 334 Resnik, D.M.: 2001, 'Physician-assisted suicide, the culture of medicine, and the under treatment of pain', volume, 127-148. 335 Mark Sacharoff (Jan–Mar 1972), Suicide and Brutus' Philosophy in Julius Caesar 33 (1), Journal of the History of Ideas, pp. 115–122 336 Christopher Macleod, John Stuart Mill, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., Summer 2020 ed. 2020), https://plato.stanford.edu/archives/sum2020/entries/mill/ (last visited Oct 19, 2020).
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oppression”. It is sad to note that enforcement of morals has all been about punishing acts of moral badness, but never about punishing the failure to perform acts of moral goodness. We need a fundamental orientation in our thinking when it concerns the morals. Deciding on what is right or wrong, should not be left to the majority or elders in a society. The people who exercise their power are not always the same people on whom the power is exercised. Everyone should deliberate on the concept of morality and should come face to face with the recent developments which are taking place in the world.
The International Code of Medical Ethics337, last revised in 2006, in the section "Duties of physicians to patients" includes "A physician shall always bear in mind the obligation to respect human life". The Hippocratic Oath makes use of the words …”With regard to healing the sick…..I will take care that they suffer no hurt or damage.” If this is so, wouldn’t it be saving the life of a critically ill patient or a patient who has absolutely no prognosis through physician assisted suicide? A doctor is there to end a human suffering. He shall do so by providing the best treatment and facilities. Why is it moral to save a life of a patient and not moral to end his life when the patient is suffering? Quiet deaths don’t come easy. Respecting the right of an individual to die in dignity would be ethically correct. Witnessing the daily suffering and deterioration of someone dear is enough to convince anyone of the need for a merciful, humane way of sparing such patients the agony of a protracted, inevitable death.338
In any event, as Beauchamp and Childress339 point out, the rightness or wrongness of the action depends on the circumstance.340 While discoursing on the right to life of an individual, it is also important to note that an individual also has the Right to die in dignity. If someone is terminally ill and has no chance of recovery, then he should be given the choice to live or to die. They should be allowed to die peacefully rather than letting them surrender to pain which is unbearable and excruciating. People who choose to die by means of physician assisted suicide
337 Lundberg, George. (2004). World Medical Association International Code of Medical Ethics. MedGenMed : Medscape general medicine. 6. 37. 338 Doctor-Aided Suicide as an Option for Terminally Ill Patients - Los Angeles Times, , https://www.latimes.com/archives/la-xpm-2001-sep-17-he-46577-story.html (last visited Oct 19, 2020). 339 Beauchamp, T.L. and Childress, J.S., Principles of Biomedical Ethics , 4th ed., Oxford University Press 1994, at p. 225 340 They argue: . . . on the merit of the justification underlying the action, not on the type of action it is. Neither killing nor letting die, therefore, is per se wrongful, and in this regard they are to be distinguished from murder, which is per se wrongful. Both killing and letting die are prima facie wrong, but can be justified under some circumstances.
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would want to live if only they could be provided with better conditions and treatments. This would include better treatment facilities, finances, pain management, palliative care etc.341
The fundamental principles on which the political life of the people is based are individuality, equality and justice. After securing the life and liberty of the State and of the individual, laws and legislations take on the task of serving and promoting the good life of the State and the people. For good life, morality is necessary and to maintain morality legislation is a must. Legislation is the framework which is required to be made for good life.342
Allowing people to have a free choice about the sort of assistance in dying they choose acknowledges that this is a personal matter and shows respect for people's autonomy or rights of self-determination. This would also be in sync with ‘Right to life’ and ‘Right to privacy’. An individual’s choice should be respected. What he does with his own body is his personal right and acknowledging the same would be respecting the right of the individual. Anecdotal evidence indicates that people may seek active euthanasia/mercy killing, assisted suicide, or physician- assisted suicide not only to avoid the last stages of terminal illnesses, but also to avoid mental and physical deterioration from long term, chronic and progressive diseases such as Alzheimer's and Huntington's diseases.343These are most anguishing to patients in the initial stages when they are relatively functional and most disturbing to the family when patients are ravaged by these diseases.344 They say Justice is the most debated word. ‘Justice-What is the right thing to do?’ For every one of us, the word justice has a different connotation. The author strongly feels that along with the word Justice, Morality is also the most debated word. “Morality” is an unusual word. They say “morality” refers to that code of conduct that is put forward by a society.345 A society might have a morality that takes accepting the traditions and customs of the society, including accepting authority and emphasizing loyalty to the group, as more important than
341 The World Health Organisation (WHO) issues the International Health Regulations from time to time as a guiding framework for domestic policies. There regulations have further strengthened the link between human rights and health. For instance, Article 3(1) of the same states: “The new International Health Regulations shall be implemented with full respect for the dignity, human rights and fundamental freedoms of persons.” 342 Kartar Singh Mann in his article "Working of Legislatures in the matter of Legislation" appearing at pp. 491 to 495 of the Journal of Parliamentary Information, Vol. 33, 1987. 343 Povar, G.J.: 2001, 'Physician-assisted suicide - a clinician's perspective', this volume, 119-126. 344 Ibid 345 Bernard Gert & Joshua Gert, The Definition of Morality, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., Fall 2020 ed. 2020), https://plato.stanford.edu/archives/fall2020/entries/morality-definition/ (last visited Oct 19, 2020).
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avoiding and preventing harm.346 For the author, morality lies in giving the best to an individual without concerning about the society or the religious texts. Morality is when a need of an individual is addressed without burdening him or making him feel guilty about it. Morality is when people start respecting and accepting the fact that every individual is different. The perception of looking at things is different and today when we are standing in a transformed world where we are making laws on transgender or homosexuals which were not accepted at one time; where we are modernising ourselves and taking pride over the development which is taking place, it is time to put the foot down and agree on the fact that if modernity and morality move together, side by side, tremendous development of the rights and of the country will take place. Morals have a place in this civilised world. No doubt about that. But considering the question on the morals of a society and the basic right of an individual, I feel the latter should win.
346 Supra note 33
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CONCLUSION There is nothing inaccurate in physician assisted suicide. The emergence of an admirable regime of law involves the emergence of law. The concept of physician assisted suicide has been challenged and debatable at many levels because the opposition says that life is sacred and a person cannot take or assist in taking the life of a person. I agree with this notion but I am not saying that life should be taken for each and every instance or a condition. Physician assisted suicide should only be allowed in a terminally ill patient or one whose prognosis is very weak. The blend of law, ethics and morality is very important for development to take place. But why in the name of ethics, morality should a dying patient suffer an excruciating, unbearable pain and burden his family financially and emotionally. A published research by the BBC on the effect of death on relatives suggests that ‘the family and friends of the patients who died by euthanasia had less traumatic symptoms than the group whose relatives died through natural causes.’347The law can do so much better to ensure a fair balance between the people. It has fought battles, is dissolving the status barrier between the haves and have not’s. In this situation, in a welfare country like India which places a lot of importance on the rule of law an emerging concept of physician assisted suicide should become legalised in our country. Physician assisted suicide will let a patient to end great suffering, and to control the manner of their death. Euthanasia in its passive form is already allowed. Suicide and attempt to commit suicide has already been decriminalised by the Legislation. Making a legal provision for physician assisted suicide, would help patients to end their life in dignity without being hooked to a machine or pain killers and end their suffering in dignity.
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347 Euthanasia grief less severe, July 24, 2003, http://news.bbc.co.uk/2/hi/health/3092905.stm (last visited Oct 19, 2020).
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BIODIVERSITY ACT, 2002: A CRITICAL ANALYSIS Mr. Sanjeev Kumar, Assistant professor in Laws, Career Point University, Himachal Pradesh, India
ABSTRACT Solving the problem of environmental threats and a dwindling biodiversity has been on the international agenda for some decades now. India woke up to the potential of its immense bio- heritage and took steps to safeguard it by enacting several laws including Biodiversity Act. But India did not have a comprehensive law dealing with conservation of biodiversity until 2002, when the Biological Diversity Act was enacted, in order to ensure compliance with the Convention of Biological Diversity, 1992. Factors like pollution, overexploitation and degradation, coupled with natural causes, pose a threat to biodiversity. Although the Act tries to deal with these problems, there are still loopholes like inadequate access to local communities, non-inclusion of genetic resources and access benefit sharing. This paper analyses Convention on Biological Diversity, National Biodiversity Act, 2002, Lacunae in the Act, attempts to provide plausible solutions that could help in dealing with these problems.
Keywords:- Biodiversity, Sustainable Use, Equitable Sharing, Conservation.
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INTRODUCTION:- Before turning to the legislative instruments used by India in implementing its international commitments in the field of biological resources, it is necessary to highlight the main international legal instruments relevant in this field. The Convention on Biological Diversity (CBD) is a landmark in the environment and development field, as it takes for the first time a comprehensive rather than a sectoral approach to the conservation of Earth’s biodiversity and sustainable use of biological resources. It was in the year 1984 that the needs to have in place a global convention on biological diversity started gaining momentum. In response, the United Nations Environment Programme (UNEP) in the year (1987) recognized the need to streamline international efforts to protect biodiversity.348 It therefore established an ad hoc working group to investigate “the desirability and possible form of an umbrella convention to rationalize current activities in the field. This group by 1988 concluded that a the existing treaties were inadequate to address the issue of conservation and sustainable use and b) a new global treaty on biological diversity was urgently needed. Organizations such as the World Conservation Union (IUCN) and the Food and Agricultural Organization (FAO) contributed draft articles in addition to specific studies commissioned by the UNEP. The UNEP Secretariat prepared the first draft and the formal negotiating process was started in 1991. The Inter-governmental Negotiating Committee for a Convention on Biological Diversity (INC) was given the task of ensuring the adoption of the Convention. On May 22, 1992 the nations of the world adopted the CBD in Nairobi and on June 5, 1992 the CBD was tabled at the UN Conference on Environment and Development in Rio de Janeiro where a record 150 countries signed the Convention. The Convention on Biological Diversity (CBD) was negotiated and signed by nations at the UNCED Earth Summit at Rio de Janeiro in Brazil in June 1992. The Convention came into force on December 29, 1993. India became a Party to the Convention in 1994. At present, there are 175 Parties to this Convention.349
GOALS OF CBD:- The biodiversity convention is in theory the main treaty dealing with the conservation and management of biodiversity. It has three main objectives:
348 UNEP (1987). 349 Kanchi Kohli, Shalini Bhutani, ‘The Legal Meaning of Biodiversity’.
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1. The conservation of biological diversity 2. The sustainable use of the components of biological diversity 3. The fair and equitable sharing of the benefits arising out of the utilization of genetic resources.350
The convention reaffirms the principle of state sovereignty, which grants states sovereign rights to exploit their resources pursuant to their own environmental policies together with the responsibility to ensure that activities within their own jurisdiction or control do not cause damage to the environment of other states. It provides a number of general obligations for its member states.
Achieving these objectives has several implications for IPRs and the conservation of genetic resources. Amongst the provisions most relevant to IPRs is the general regime on access to genetic resources and benefit sharing.351 In this regime, a framework for bilateral negotiations between provider and user countries is set forth. The elements include:
An affirmation of the sovereign rights of States over their genetic resources;
The obligation to endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Parties;
Where a Party agrees to allow access to its genetic resources, this access shall be on mutually agreed terms and subject to its prior informed consent (PIC).
Another key CBD provision concerns Article 8(j), which relates to traditional knowledge. This provision calls for Parties to: Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices."
350 Biodiversity Convention (1992). 351Article 15, Biodiversity Convention 1992.
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To facilitate the implementation of this Article, the Parties established an ad hoc Working Group on Article 8(j).352 Three key elements of the work programme subsequently adopted are to: ensure that indigenous and local communities obtain a fair and equitable share of the benefits arising from the use and application of their traditional knowledge; ensure that private and public institutions interested in using such knowledge obtain the prior informed approval of indigenous and local communities, and; assist Governments in the development of legislation or other mechanisms to ensure that traditional knowledge, and its wider applications, is respected, preserved, and maintained.353 The biodiversity convention also provides a general legal framework regulating access to biological resources and the sharing of benefits arising from their use. It attempts to provide a framework that respects donor countries’ sovereign rights over their biological and genetic resources while facilitating access to those resources for users. It therefore requires member states to provide access on “ mutually agreed terms” and is subject to the “ prior informed consent” of the country of origin of those resources.354
NATIONAL BIODIVERSITY ACT, 2002:- Biodiversity Act, 2002 came into existence much later than the other existing laws on environment such as the Indian Forest Act, 1927 , Wildlife Protection Act, 1972 , Environment Protection Act, 1986 etc. Though all these legislations laid impetus on the conservation of the environment, yet none of them properly addressed all the dimensions of the ecological and biodiversity preservation. During the period of 2000-2002, a civil society group was commissioned for preparing India’s National Biodiversity Strategy and Action Plan. However, this plan was not accepted by the government. Therefore, the government decided to release its own draft on National Biodiversity Plan which was made by the technocrats. The Act of 2002, based on this plan was passed by the Lok Sabha on 2nd December, 2002 and Rajya Sabha on 11th December, 2002.The objectives of the Act were: 1. Conservation of Biological diversity 2. Sustainable use of its components
352 Article 15, Biodiversity Convention 1992. 353 Decision V/16, UNEP/CBD/COP/5. 354 Article 15, Biodiversity Convention 1992
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3. Fair and equitable sharing of the benefits arising out of utilization of genetic resources.355
Apart from these main objectives the Act has also given force to some of the terms of CBD by the following provisions: 1. To set up National Biodiversity Authority (NBA), State Biodiversity Board (SBB) and Biodiversity Management Committees (BMC’s). 2. To respect and protect knowledge of local communities traditional knowledge related to biodiversity. 3. To conserve and develop areas of importance from the standpoint of biological diversity by declaring them biological diversity heritage sites.356
LACUNAE IN THE ACT:- A. The formulation of the BD Act, 2002 nearly took a decade after the ratification of the Convention on Biological Diversity. Thus, it clearly demonstrates that the government officials, NGO’s and academicians formulated the provisions after through research and consideration. Eventually with the enactment of the Biodiversity Rules under BD Act in 2004, there was an establishment of Biodiversity Management Committee which gave powers to the local and indigenous communities to voice out there opinion conservation, use and equitable sharing. However, certain lacunas are still apparent in the Act. A major flaw is that this act does not give sufficient consideration to conservation; rather it lays more emphasis on preventing profit-sharing from the commercial use of the biological resources. It is true that the foundation of this act was laid to prevent bio-piracy by the developed nations. However, one cannot forget another major aim of this act i.e. to protect the biodiversity.357
B. On 15 April 2004, the Union Ministry of Environment and Forests (MOEF) notified the Biological Diversity Rules under the BD Act. The Act mandated the establishment of
355 A Guide to the Biological Diversity Act 2002 by Kalpavriksh 356 http://ces.iisc.ernet.in/hpg/cesmg/indiabio.html.
357 Kudrat, Biodiversity Act, 2002: An Analysis, https://www.lawctopus.com/academike/biodiversity-act-2002-
analysis/ (Last Modified July 29, 2020).
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Biodiversity Management Committees (BMC) which could have enabled local communities to have some voice in the conservation, sustainable use, and equitable benefit-sharing of biological resources. There is a strong opinion from experts that the space provided to local representation in the BD Act has been completely diluted with the new set of Rules; because as per the Rules the role of the BMCs is merely limited to preparing People’s Biodiversity Registers (PBRs) that document local knowledge and bio resources. This immensely undermines the rights of local communities who are the most important stakeholders when it comes to conservation of biological resources. Documentation, without any legal protection is also a sure recipe for exploitation. The BMCs would be preparing the PBRs, but without the powers to ensure that they will not be liable for theft or piracy. There is an apparent lack of faith in the competence of local groups in taking decisions, as well as an attempt to centralize natural resource management all over again. This step (even after the 73rd and 74th Amendments to the Constitution of India which have upheld the need for decision making at the village level) seems completely retrograde and in complete contrast to the spirit of country’s legal system.358 C. The Act does not provide a comprehensive regime for the conservation and sustainable use of biological resources but focuses on the question of access to resources and related issues. It requires that all inventors obtain the consent of the National Biodiversity Authority before applying for intellectual property rights where the invention is based on any biological resource obtained from India, and grants the authority the power to “impose benefit sharing fee or royalty or both or impose conditions including the sharing of economical benefits arising out of the commercial utilization of such rights.” Given the lack of extra-territorial jurisdiction of the National Biodiversity Authority and its inability to monitor applications overseas though, the efficacy of such a provision will be extremely doubtful. The act condones the introduction of intellectual property rights in the management of biological resources provided for in the TRIPS agreement but does not directly address the subordination of intellectual property rights to the goals of the biodiversity convention as mandated by Article 16 of the convention. D. The Act is quite vague in its treatment of traditional and local knowledge, merely
358 Ibid
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requiring the central government to “endeavour to respect and protect” such knowledge, especially in the Indian context is important enough to not be left to the discretion of the executive and to require a definitive statement of law. It completely obliterates common property arrangements whose importance and extent in the context of the management of biological resources is still immense. The Act centralizes property rights either in the hands of the state through sovereign appropriation or in the hands of private inventors through monopoly intellectual property rights. It does not, however, provide a framework for the rights of all other holders of biological resources and related knowledge. The consequence is that resources and knowledge that are not allocated to private entities through intellectual property rights or to the state, can be deemed freely available.
E. The Indian Constitution guarantees a set of Fundamental Rights to its citizens under Part III of the Constitution. Some of these fundamental rights are guaranteed to citizens and non-citizens as well. Article 21 and Article 14 are two of the fundamental rights guaranteed even to non-citizens. It is necessary to examine how Article 14 is violated by the Biodiversity Act, 2002. The act distinguishes citizens of India and other persons on the basis of citizenship and residential status.359 F. The act assumes that resident citizens of India and corporations of India are never a threat to biodiversity. The main objective of the act is conservation of biodiversity and the legislators should bear in mind that even the Indian citizen residents and Indian corporations can be exploitative.
RECOMMENDATIONS:-
a. Apart from the enactment of the act by the government, individuals should also contribute to the protection of biodiversity by curbing threats which are imposed on it. b. People can find a way to battle environmental change, such as diminishing their carbon impressions, fostering education and contacting elected authorities. International governments and urban areas can lead the charge.
359 Art. 21, M.P.Jain, Indian Constitutional Law 98 (Kamal Law House, Calcutta, 5th edn., 1998).
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c. The answers for deforestation generally lie in approach — organizations and companies can embrace best practices and decline to utilize timber and paper providers that add to deforestation. In a similar vein, cognizant shoppers can decline to disparage organizations that do and put a focus on retailers that utilize unsustainable manufacturing strategies. People can likewise partake in land safeguarding through charities and private partnerships. Eventually, however, global governments need to authorize more grounded, logical forest protection laws. d. Protection and continued awareness with mindfulness encompassing overexploitation, particularly poaching and overfishing, are vital. Governments need to effectively implement rules against such practices, and people can be increasingly aware of what they eat and buy. Different arrangements, for example, expelling subsidies granted to large scale fisheries, can help, as well. e. The Act does not mention any form of distinction between the people who use the biological resources for their individual purposes and those who use it sustainability purposes. This could play a major role in the biodiversity conservation process, since relaxation of the rules for the people helping in the sustainable and valuable use of these indigenous resources can motivate people to perform research and use it for the welfare of the mankind.360 f. The Act doesn’t make reference to any type of differentiation between the individuals who utilize the natural assets for their individual purposes and the individuals who use it for sustainable purposes. This could assume a significant job in the biodiversity protection process since unwinding of the principles for the individuals helping in the sustainable and important utilization of these indigenous assets can rouse individuals to perform research and use it for the welfare of humanity.
360 Ayush Vermra, A critique of the Biodiversity Act : legal loopholes and the way forward , https://blog.ipleaders.in/critique biodiversity-act-legal-loopholes-way-forward/ (Last Modified July 29, 2020).
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CONCLUSION:- The intrinsic value of Biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values and its components are to be taken care properly for the better management of biological resources and biodiversity for the welfare of human beings for better, and healthier as well as peaceful living on earth. The conservation of biological diversity is a serious and common concern of human beings for better living. It should be recognized that the women in rural setup play a vital role in the conservation and sustainable use of biological diversity and affirming the need for the full participation of women at all levels of policy making and implementation for biological diversity conservation. Biodiversity is an important component for economic and social development and poverty eradication and overriding priorities of most of the developing countries in the world. The current enactments and legitimate components are definitely not sufficiently prepared to battle those dangers completely. It draws in patching up of existing machinery and alterations in existing enactments. India has made a legitimate strategy and structure in regards to biodiversity which empowers it to address some significant issues as to the security of biodiversity. Yet, the current strategy is a long way from being sufficient, since some significant worries as examined above are yet to be addressed. It is additionally important to incorporate all living things including human qualities into the more extensive meaning of natural assets to forestall any type of exploitation. It can be seen that despite the fact that the act focused on significant issues, the achievement of the goal can be an issue if the shortcomings which are called attention to are not sorted out rapidly. There is an urgent need to create awareness among rural and urban population to highlight the importance of conserving biodiversity. Government and society will have to work hand in hand to alleviate living conditions of tribals and natives and to allow scientific work that generate marketable products while maintaining and preserving biodiversity.
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ANTI-ANIMAL ABUSE LAW: AN ANALYSIS UNDER INDIAN CRIMINAL LAWS By S. Ravi, Student. ABSTRACT Throughout the globe, violence against animals takes place at the same frequency as any other violence or crime. People throwing stones at dogs, abandoning their pets, administering illegal medicines to food-producing animals, such as cows and broiler chickens, for either the treatment or prevention of diseases, and if not so, then in order to promote growth and enhance productivity, etc. These are all nothing but forms of animal abuse, but most of us are unmoved by it and those who are, some of them act hypocritically, and the rest who truly want to do something, are unable to do so because there are no proper punitive laws for animal abusers, hence the incapability of those people who want to do something for these animals. Aren’t animals living creatures? Don’t they have a living, breathing body? Don’t they have the right to live on this planet peacefully? Shouldn’t humans find a way to live peacefully alongside animals? Through this research paper, the researcher aims to answer not only these but many other questions regarding animal cruelty, animal laws and animal rights, and since the frequency of animal abuse and animal cruelty is very high, the researcher through this paper will propose ideas, suggestions and responsibilities to professionals who provide services to animals, and those who want to make a difference, and thereby in that process, will make them aware of occurrences of the abovementioned cruelties. The researcher is of the opinion that through the abovementioned process, he can make them understand their significance so that they themselves may promote appropriate professional and policy responses of their own towards this reform. The research design for the paper would be descriptive and the researcher has used primary as well as secondary data available. This paper presents a brief scenario of the animal laws in India and the abuse and cruelty they face in spite of having punitive laws and acts. The researcher also will emphasise on guidelines already laid along with a comparison analysis on the approach of different countries towards dealing with the same issue.
Keywords: animals, violence, cruelty, trauma, aggression, abuse, hypocrisy, services, change
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INTRODUCTION The Protection of Rights of Animals is not a trend, it is a movement and this is not a movement that was born yesterday. This movement dates back to many centuries. In the 3rd Century, King Ashoka had unequivocally barred the slaughter or sacrifice of any animal within his kingdom1.
In order to cope up with today’s fast paced and competitive world, we have somewhere forgotten basic morals and ethos. Nowadays, life has become like a rat-race, and in this rat- race, people want to earn infinite amount of “easy money”, and caught in the middle of their race to attain their goal of earning this so called “easy money”, are the animals who lose more than what they can make up for and eventually become targets. Cruelty towards Animals would mean animal abuse or exploitation which is knowingly done to animals by humans for their own gain or pleasure. These poor animals, who are caught up in the middle of this rat- race and eventually falling prey to animal cruelty, are exploited and abused because people are of the opinion that they are the so called “mute spectators” and cannot raise their voice against the atrocities taking place against them.
The Central Government, in order to or at least with an intention of curbing this menace of cruelty against animals, has initiated several laws. The core laws being ‘Prevention of Cruelty to Animals Act, 1960′ and the “Wildlife Protection Act, 1972”.2
These are good initiatives by the Government because thanks to these initiatives we at least have basic animal protection laws, but there are many instances of animal abuse still taking place and act as proof that the present animal laws are pathetic and demand for better provisions or complete changes. However, keeping aside the differences of opinions, if we look at the abovementioned acts, there are few provisions of these acts that are helpful towards protection of animal rights.
THE PREVENTION OF CRUELTY TO ANIMALS ACT, 1960. This Act defines ‘captive animal’ or ‘domestic animal’. In addition to defining these terms, this act also defines prohibits the different forms of cruelty towards animals. These cruelties have been mentioned under section 11 of this Act. This Act also prohibits the killing of
1 Lumen learning, The Maurya Empire, (May 14, 2020, 4:00pm), https://courses.lumenlearning.com/boundless- worldhistory/chapter/the-maurya-empire/. 2 Rebecca Furtado, Cruelty Against Animals in India, para 3, (May 16, 2020, 6:00pm), https://blog.ipleaders.in/cruelty-animals-india/.
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homeless animals. This Act has also laid down the resulting punishments for committing these offences. The punishments being that if a person commits the offence for the first time, the person will be fined with a fine which shall not be less than ten rupees but which may extend to fifty rupees and in the case of that persons second or subsequent offence, which that person has committed, within three years of the previous offence, the person will be fined with a fine which shall not be less than twenty-five rupees but which may extend, to one hundred rupees or with imprisonment for a term which may extend, to three months, or with both”.3 If anyone is found to act in contravention to the abovementioned rules laid down by the Act, this act gives the police all the powers to arrest that perpetrator. This Act not only gives the police the powers to arrest an offender, but also gives powers to a private individual to detain the perpetrator in unison with the provisions of Section 43 of the Code of Criminal Procedures, 1973.4
In our daily lives, we encounter so many animal abuses such as overloaded donkeys, bullock carts or carriages, with malnourished and badly bruised bulls and horses, on roads. But we chose to voluntarily choose to ignore this picture and remain mute, primarily because most of us are not aware of the fact that these are forms of animal abuse, secondly because most of us don’t know the laws against cruelty towards animal and thirdly, because most of us are of the opinion that animals are not living and breathing creatures, but instead are commodities or machines. This mentality has to be changed. Therefore, in view of this situation, this Act lays down the provision for the establishment of an Animal Welfare Board.5
This Board has many functions, like advising the Central Government to make better laws for prevention or eradication of animal cruelty or abuse, taking measures to better the deplorable conditions of stray animals, assisting other animal welfare organizations in any way possible, be it financially or by providing manpower.
THE WILDLIFE PROTECTION ACT, 1972 The Wildlife Protection Act, 1972 does not only cater to the protection of wild animals and birds but also caters to the protection of plants. This is basically an Act which was enacted for providing protection to wild animals, birds and plants with an aim to ensure the ecological
3 Section 11, Prevention of Cruelty to Animals Act, 1960. 4 Section 43, Criminal Procedure Code, 1973. 5 Section 4, PREVENTION OF CRUELTY TO ANIMALS ACT, 1960.
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and environmental security of the country6. A provision in this Act (Section 39) prohibits the hunting (baring a few exceptional cases) or trading of wild animals, animal articles, like trophies. There is also a provision in this Act (Section 51) that penalises the abovementioned acts. This Act also bans the keeping any wild Indian birds, mentioned under the act7, as pets. A provision under this Act (Section 50) also gives the Police certain powers, to arrest any person without a warrant. This Act also protects the primates such as Leaf Monkey (Presbytis phayrei), Rhesus Macaque (Macaca mulatta), etc. and prohibits the owning or displaying of these primates.
THE IPC ON PROTECTION OF ANIMAL RIGHTS Apart from this, a few provisions of Indian Penal Code (Section 428 & 429) that prohibit maiming or injuring of any animal with punishments in the form of fines which can be up to Rs 2000 and apart from monetary punishments, the perpetrator can also be jailed for a term of up to five years.8
The abovementioned provisions, seem to be not too bad “on paper” right? But people tend to either completely ignore or be unaware of the real problems that persist in our country. Some of which are cited below: -
THE ACTUAL SITUATION OF ANIMALS We often tend to ignore the actual situation of the animals in our Country. Some of the real problems are:
ANIMALS AND COSMETIC TESTING: Millions of innocent animals are exposed to and eventually “murdered” as many barbaric and cruel tests are performed on them in order to test out various consumer products and their ingredients and to know about the dangerous effects of the chemicals used. Many animals like mice, guinea pigs, rabbits, dogs, monkeys, etc are forcefully injected, sprayed and made to inhale enormous amounts of toxic substances which, if successful, does not harm the animal, but if the test is unsuccessful, leaves the animal in a world of pain and suffering. It is frustrating how even after the establishment of the fact that one cannot predict the results of any product on human skin just by testing the same product on animals, and also in spite of the fact that there are other testing methods
6 Aim of the Wildlife (Protection) Act, 1972, available at http://legislative.gov.in/sites/default/files/A1972- 53_0.pdf. 7 Part 1, Schedule 3, Wildlife Protection Act, 1972. 8 Compassionate Living, What You Can Do to Help Stray Animals?, (May 17, 2020, 7:30 pm)http://www.compassionateliving.in/AnimalLawsinIndia.pdf.
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available which do not require the testing on animals, such heartless practices still take place. This is heart breaking, annoying and shows the sheer ignorance on the part of humans.
STRAY DOGS BEING NEGLECTED AND SIMPLY ABANDONED AFTER THE PROCEDURE OF BIRTH CONTROL: The Animal Birth Control (Dogs) Rules which was enacted in the year 2001, calls for immediate amendment, because in there are no proper directions mentioned within the Act about what to do after the process of sterilization of stray dogs, as a result of which, animal organizations after the completing birth control/sterilization surgeries on these stray dogs, do not provide special treatment to them and these sterilized stray dogs are simply released in the area from where they were picked up. This makes them vulnerable, as they are subjected to attacks from other dogs, and also have a high risk of catching an infection because of not being healed properly from the surgery.
ANIMALS KEPT IN CRAMPED CAGES: In India, the poultry industry is a highly successful industry9. The poultry production in India has been constantly rising and has a huge annual turnover.1011 However, in spite of a provision of the Prevention of Cruelty towards Animals Act (Section 11(e)) mentioning the space which should be provided to an animal that is kept captive, poultry farmers keep these poultry animals in very congested cages which restricts any proper movement of the animals, thereby clearly contradicting the act12.
THE SITUATION OF ELEPHANTS IN OUR COUNTRY: The dilemma of elephants in our country is very disgraceful. While in India, which is a Hindu dominated Country, the Hindus worship Lord Ganesh in Temples (who is believed to have the head of an elephant), the real life treatment of elephants, who are supposed to be Lord Ganesha’s representation, is extremely painful. On one side, in accordance to Hindu mythology, the elephants are believed to be divine creatures, and on the other side, they are forced to perform perilous acts, without proper care, in circuses and/or are held captive and are used to fetch money from tourists or by being used in mundane religious festivals by making them bear the entire burden of the
9 Nageswara Rao Chitikila & Veerabhadra Swamy Pulletikurthi, Brolier Chicken Market A Case Study of Suguna Poultry Farm Ltd, VSKP, para 1, (May 17, 2020, 8:30pm), https://www.amazon.ca/Brolier-Chicken- Market-Suguna-Poultry/dp/3659919810. 10 Nageswara Rao Chitikila, LAP LAMBERT Academic Publishing, 2016 ISBN 10: 3659919810 / ISBN 13: 9783659919817, https://www.abebooks.com/servlet/BookDetailsPL?bi=30345904365. 11Rajesh Mehta & R.G. Nambiar, http://www.fao.org/ag/againfo/home/events/bangkok2007/docs/part1/1_5.pdf. 12 Grant Lingel, Poultry Farming: The Shocking Reality of Factory Farm Birds, Wire Battery Cages, (May 16, 2020, 8:30pm), https://sentientmedia.org/poultry-farming/.
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tasks they perform. There were over a million elephants roaming the wild in the 1900s, but now sadly there are only 25,000 elephants remaining in the wild in India.
THE HARSH REALITY SO FAR In the month of April, 2016, the death of a stallion named Shaktiman, who served the Uttarakhand Police Force, highlights that there is a need to radicalize the movement for the protection of animals against any cruelty. The culprit behind the death, which is an understatement, of Shaktiman was none other than a BJP leader by the name of Ganesh Joshi, who had attacked him during a protest13. Mr. Joshi belongs to the now ruling party “BJP”, which is infamous for protecting cows by building of “Gaushalas” and banning the selling and consumption of “Beef” in many of the states in which it rules. But the hypocrisy here is laughable and scorn worthy. On one hand, the cows are being protected and on the other hand, a stallion is being “murdered”. India is a Hindu dominated country, and the Hindus typically revere the cow and regard her as “gau-mata” (“mother cow”). Key Vaishnava texts teach a human ethos of cow protection (gorakhsha) in which the cow is the focus of service and love. The so called “philosophy” behind this being that Hinduism teaches that “The cow should be respected as a mother and, like all mothers, should not be killed and eaten. The bull is regarded as a father because he can plough the earth to produce food grains. One does not kill and eat one’s father or mother—not even when they are old and less economically useful”. The cow is the source of healthy and nutritious food in the form of milk, yogurt, and ghee and her urine and dung are used therapeutically to treat illness and to restore fertility to the soil. They believe that milk and milk products have the quality of purity and goodness (sattva), but here again this is particularly remarkable, and hypocrite of this philosophy when we consider the case of the Indian water buffalo who in spite of being India’s primary milk animal, the water buffalo is not sacred and has an inferior position in Hindu thought, and the worst part being that despite this so called picture perfect protection of Cows, the dark secrets are not known by many. The dark truth being, according to PETA reports, that cows are beaten into submission and artificially inseminated so that they will keep producing milk. Although this practice should be performed by trained professionals, most cows are repeatedly inseminated by “barefoot healers” who ignore the most basic hygienic standards and use equipment that has not been sterilised, exposing cows to infections and diseases.
13 Express Web Desk, Shaktiman, police horse injured at BJP rally in Dehradun, dead, The Indian Express, July 12, 2016, https://indianexpress.com/article/india/india-news-india/shaktiman-the-horse-dead-injured-at-bjp- rally-in-dehradun-2762414/.
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Most of a cow’s day is spent confined to a narrow, filthy stalls14 and they are injected with oxytocin, an illegal drug that causes them to produce unnaturally large quantities of milk, but in the process, they suffer severe stomach cramps as though they were in labour. Cows are also impregnated repeatedly without giving them proper time to recover from their previous pregnancy. They also grieve for every calf they deliver because it is ripped away a few days after birth. Cows often develop “mastitis”, an infection of the udders, from rough handling and “rumen acidosis” from unwholesome food1516. The sheer foolishness and idiocy of the present situation is laughable, but not many people know it, because most of them either do not care or are either too entangled in their faith towards the Hindu religion that they just want to be done with their part on pleasing some Hindu Gods and Goddesses by just looking after cows and ignoring other animals, but again they have failed miserably in cow protection too, which is laughable.
The offenses under Prevention of Cruelty to Animals Act, 1956 are either cognizable or non- cognizable, Clauses of Section 11 and Section 12 are cognizable, but the punishment therein is negligible, even the imprisonment provided here is just for three months. Although Section 38 of this Act covers major punishments, however these punishments are non-cognizable, meaning that the police cannot arrest a person without a warrant. Also, under the Prevention of Cruelty to Animals Act, 1956, there is a provision that requires for setting up of a Society for the Prevention of Cruelty to Animals (SPCA) in every state but barring a few states, there are no such societies in the remaining States of the country.17
The Supreme Court had given a very important judgment which banned the sport of Jallikattu practiced in the state of Tamil Nadu and Maharashtra. The Animal Welfare Board of India, which is a statutory body, established under section 4 of Prevention of Cruelty to Animals Act, 1956 challenged the 2007 judgment of Madras High Court in the case of K. Muniasamythevar v Dy. Superintendent of Police18 in which the sport of Jallikattu was allowed. But the Supreme Court banned the sport and struck down the Tamil Nadu Regulation of Jallikattu Act, 2009, however, the Supreme Court has still not been able to come up with a proper decision regarding the as the legal situation surrounding Jallikattu is
14 Available at https://www.petaindia.com/issues/animals-used-for-food/amazing-animals/cows/. 15 Harshdeep Singh, Let’s Talk About Veganism, India, para 5, (May 17, 2020, 3:30pm), https://medium.com/@harshdeepwrites/lets-talk-about-veganism-india-bc91c9d02f1d. 16 Anna S. King, Journal of Animal Ethics Vol. 2, No. 2 (Fall 2012), pp. 179-204, available at, https://www.jstor.org/stable/10.5406/janimalethics.2.2.0179. 17 Available at http://envfor.nic.in/legis/awbi/awbi01.html. 18 Muniasamythevar v Dy. Superintendent of Police W.A. no 119 of 2006.
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not yet resolved clearly and has been left in a state of ambiguity. As the Supreme Court had dismissed a petition which sought stay on traditional bull-taming sport Jallikattu in Tamil Nadu and by saying that it won't interfere in the matter and asking the petitioners to approach the High Court in connection with their plea on this controversial bull-taming festival which eventually led to the allowing the sport to be held in some regions under the supervision of monitoring committees as ordered by Madras High Court.
Two students had thrown a stray dog from a terrace, and video graphed such a cruel act19. Afterwards, a petition was filed by an honorary animal welfare officer of Animal Welfare Board of India because the offenders got an interim bail by a lower court. The Madras High Court had issued a notice to the government of Tamil Nadu for the cancellation of the bail granted to them. It is the judiciary that can perform yeoman’s service by recognizing that such cruel actions deserve immediate and harsh action despite past criminal behaviour so that a deterrent effect is created in the society.
CONCLUSION AND SUGGESTIONS The judiciary will be playing a very important function for preserving the rights of animals, and also protecting them from abuse and exploitation. If the punishments for offenses committed against animals can be made more strict and harsh, then people might try to take better care and will not be ruthlessly abusing, exploiting or killing innocent animals. However, a major loophole that needs our immediate attention is that the amount of compensation/fine imposed on any offender under the Prevention of Cruelty to Animals Act, 1956 is a paltry sum. The amount of fine which ranges between Rs 10 and Rs. 50 is ridiculous and will not hamper the rate of cruelty towards animals, because in cases like Bharat Amratlal Kothari v Dosukhan Sindhi20 which amounted to major cruelty towards livestock, as they were kept in cramped environment without proper care or food, a measly fine of only Rs.50 was imposed on the defendant. It is not a joke, this was an actual case that took place and this was the actual judgement. With such laughable punishments, the cause of prevention of cruelty towards animals can never be helped. In contrast to this, the Federal Bureau of Investigation (FBI) in the US, reclassified the crime of animal abuse as a ‘group A’ offense and hence, this crime will be prosecuted with equal seriousness as any other offense such as kidnapping, arson or homicide, making it easier to obtain penal condemnations for
19 Available at https://www.youtube.com/watch?v=Je7TxNRpTvU. 20 Bharat Amratlal Kothari v Dosukhan Sindhi S.L.P. (criminal) No 198 of 2009.
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offenders21. Our Government also can play a key role in this situation by opting for sua sponte action whenever such happenings, i.e. cruelties or atrocities, take place.
We must also keep in mind the fact that no matter how many laws we bring or amend, change will only take place when people themselves take steps to make up for the current pitiable condition of animals. Apart from this, government Organizations such as Animal Welfare Boards can put in efforts to correct their policies and get in sync with other Government bodies. Another suggestion would be that the police be directed to take cruelty against animals as seriously as other offences.
The National Green Tribunal placing an interim ban on glass-coated kite flying strings after a petition filed by PETA22, the Hyderabad High Court upholding the ban on cockfighting in Andhra Pradesh and Telangana, after a petition filed by HSI India (Humane Society International), PFA (People for Animals), and a few more such organizations,23 the amendment Schedule “Y” of the Drugs and Cosmetic Rules, 194524, following appeals made by PETA India, the Union Minister of Women & Child Development, Smt. Maneka Gandhi and a few other animal welfare organizations,25 the order of banning of caging of birds in Dadra and Nagar Haveli by the Gujarat High Court after an appeal filed by PETA India,26 and the new veterinary education regulations which, is a result of the efforts made by PETA India, eliminates the killing of animals such as rabbits, calves, frogs, etc for veterinary education,27 etc. suggest that our government is taking the right steps towards the right direction, but there still needs a lot of work to be done in order to improve our current system.
A suggestion to improve the system would be to establish the Society for Prevention of Cruelty to Animal in all the States of our Country so that this NGO can work in every State
21 Syed Mehdi Momin, Animal feels pain too, para 8, (May 16, 2020, 5:30pm), http://www.theindependentbd.com/home/printnews/153342. 22 FPJ Bureau, National Green Tribunal bans kite strings coated with glass across the country, (May 17, 2020, 7:30 am), https://www.freepressjournal.in/cmcm/national-green-tribunal-bans-kite-strings-coated-with-glass- across-the-country. 23 Alokparna Sengupta, High Court at Hyderabad reiterates ban on cockfighting, (May 15, 2020, 3:30pm), https://www.hsi.org/news-media/hyderabad-high-court-reiterates-andhra-pradesh-cockfighting-ban-010518/. 24 Schedule Y of THE DRUGS AND COSMETICS RULES, 1945, available at, https://cdsco.gov.in/opencms/export/sites/CDSCO_WEB/Pdf- documents/acts_rules/2016DrugsandCosmeticsAct1940Rules1945.pdf. 25 Ashwin Sapra, Biplab Lenin & Kartik Jain, New Drugs and Clinical Trials Rules, 2019 – A Regulatory Overview, (May 15, 2020, 3:00pm), https://corporate.cyrilamarchandblogs.com/2019/07/new-drugs-clinical- trials-rules-2019-regulations-india/. 26 Available at https://www.petaindia.com/blog/dadra-nagar-haveli-bans-caging-birds/ 27 ClearIAS, Jallikattu: History, Court Rulings, and Controversy, (May 14, 2020, 3:30pm), https://www.clearias.com/jallikattu/#what-are-the-recent-policies-of-india-on-animal-advocacy.
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independently with no interference of other States. There is also a need to make sure that there is a State Animal Welfare Board in each State and they run properly, because in many states there is no such board and where there is one, they haven’t met for years.28
These slight changes by different groups and stakeholders can change the scenario for animals in India, and reduce or completely eradicate cruelty and abuse towards animals from our society.
28 Mayank Aggarwal, Despite a decade-old Supreme Court order, nobody is really looking after India’s stray animals, (May 15, 2020, 3:00pm), https://scroll.in/article/956247/despite-a-decade-old-supreme-court-order- nobody-is-really-looking-after-indias-stray-animals.
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