Isbn – 978-81-948082-1-3)

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

VOLUME I ISSUE II (APRIL 2021)

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

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DISCLAIMER

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

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

[1] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

EDITORIAL TEAM

EDITORS Ms. Ezhiloviya S.P.

Ms. Priya Singh

Mr. Ritesh Kumar

Mrs. Pooja Kothari

Dr. Shweta Dhand

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ABOUT US

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& ANALYSIS ISBN – 978-81-948082-1-3 welcomes contributions from all legal branches, as long as the work is original, unpublished and is in consonance with the submission guidelines.

[3] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 INDEX

S.No Name Title Page No. 1. Bhakti Khule The Concept Of Corporate Governance 6

2. Pari Research Paper On Data Theft 15

3. Nithya Sowmya Challenges in the implementation of POSH Act 31

4. Twinkle Shaji Section 113-B of The Indian Evidence Act, 1872: A Pre- 44 emptive Conclusion or A Necessary Precaution

5. Pothuru Sashank Varma Pre Packaged Insolvency 55

6. The Role of a Defense Counsel in Criminal Proceeding 62 Joyita Ghosh

7. Pragati Gilda Smart Contracts - Can Code be law? 70

8. Shwetha Maria History Of Police Brutality In India 78 Solomon

9. Anjali Nair Emergence of Right to Clean Environment as Human Right’ 87

10. Akash Kumar &Ayush Corporate Governance & Ownership Structure 101 Yadav

11. Divyanshi Goel Rights Of The Accused Under The Code Of Criminal 112 Procedure And The Constitution Of India

12. Sarashika Eakambaram Film Censorship And Its Impact On The Fundamental Right To 134 Freedom Of Speech And Expression - A Constitutional Analysis 13. Param Bhamra & Aditya 142 Mathur Should India Follow The Culture Of Giving Death Penalty As

[4] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 14 Nitin Dhatarwal Constitution as the guardian of rights of its people 148

15 SHREEYA Right to Privacy and it's Limitations under the Indian 154 PRABHAKAR Constitution. TAMBE 16 Samyak Godha A Comprehensive Analysis on legality of cryptocurrency in 164 India

17. Samarth Bajaj Living Resources in the Exclusive Economic Zone 172

18. Mehak Andrabi Human Rights Crises in Kashmir: An Overview 183

19. Ratnesh Kumar Tiwari & Right to Private Defence A Preventive Right 192 Aman Singh

20. Esha Dubey Issues Related To Citizenship Ammendment Act 2019 : 200 Analysis

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THE CONCEPT OF CORPORATE GOVERNANCE AUTHOR: BHAKTI KHULE Student- Symbiosis Law School, Hyderabad

CHAPTER I: MEANING AND CONCEPT Corporate Governance is the collection of policies developed to determine the success and course of a corporation. It is a summary of the rules and regulations for an incorporated firm's individuals in charge. We are the ones who want to bear the very liability to creditors. Corporate governance is a broad concept, and is the corporate climate of today. Corporate governance legal accessories may be tailor-made to suit each wearer's conscientious preference. This paper would elaborate and discuss the corporate governance as a topic from the ambit point subject of India. The paper will examine the obstacles facing a developing economy like India. This will also clarify why follow good corporate governance practices is essential to every government. The next segment will discuss how corporate governance has become an undivided or non-separable part of India's economy. First, it addresses the role of India's ethics, corporate control, and auditor preference and audit committee. In addition, the report presents a description of how corporate governance affects India's current economic situation. In plain terms, corporate governance means to such extent businesses are managed in a transparent and truthful manner. The U.K. committee on Cadbury in 2002, corporate governance was described as – the structure that guides and regulates businesses. The nature of the business sector lies in fostering openness and responsibility, and satisfying the stakeholders' reasonable standards. Corporate governance is such sort of mechanism which is achieving this aim and safeguarding the rights of specific stakeholders in particular. The corporate governance system promotes the effective utilization of resources and also calls for responsibility for the use of such services resource. Corporate governance and value-creation are also said to go hand in hand. If a company accepts ethical conduct and ensures it does not thrive. Different research was undertaken to investigate the similarities and differences between corporate governance and the financial

[6] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 performance of any organisation, but the conclusion tends to be mixed and inconclusive. In this following paper, we will also look at and examine the effect of corporate governance in an Indian context on the financial output of a company. The collection of rules, controls, strategies, and decisions put in order to dictate organizational conduct is referred to as governance. Shareholders and proxy counselors are influential stakeholders that have an indirect impact on governance, but they are not models of governance. The board of directors plays a critical role in government, and its decisions may have a significant impact on stock values.Investors value corporate governance because it demonstrates a company's direction and business credibility. Corporate governance aids in the development of trust among investors and the general public. As a result, corporate governance contributes to financial viability by providing investor holders with a long-term investment incentive.Community relations include communicating a company's corporate governance. Apple Inc., for example, describes the corporate leadership—the executive team and board of directors—as well as its corporate governance, which includes committee charters and governing records including bylaws, shareholder holding rules, and articles of incorporation. Corporate governance is something that most businesses aim for. Many shareholders believe that a company's profitability isn't enough; it must also show strong corporate citizenship through environmental responsibility, ethical action, and sound corporate governance practices. Good corporate governance establishes a consistent system of rules and controls with aligned benefits for owners, directors, and officers. From the early days of collective organization, the idea of corporate governance has existed and is changing. Via entrepreneurialism, creativity, growth and discovery, successful corporate governance mechanisms enable companies to build value and have oversight and management processes that are proportionate to the risks involved. Beyond corporate regulation, corporate governance extends. It contributes to the creation of a legislative, economic and administrative structure as it is conducted under a well-laid-out scheme and demarcates the limits under which these roles are executed. Its fundamental purpose is not simply to meet the provisions of the statute, but to ensure that the board and its senior officers are committed to operating the company in a straightforward way, including optimising the worth of long-term shareholders. There are plenty of laws in this respect, but successful enforcement of these laws is what is needed.1 Corporate governance is the acknowledgment on behalf of the company of the administration of

1 4 S. LI AND A. NAIR, ASIAN CORPORATE GOVERANCE OR CORPORATE GOVERANCE IN ASIA? Corporate Governance: An International Review, no. 4, pp. 407-410, (2009).

[7] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 the inalienable stockholders as the rightful owners of the company and of their own position as trustees. It is all about making a difference in a top business between personal and corporate assets. Both in the public and the private sector, the concept of corporate governance has gained relevance. In order to sustain or change operational behaviour, it is used to track whether results are in line with expectations and to motivate the organisation to be more thoroughly aware. It is the process by which people are driven to match their individual actions with the participants in general.Corporate governance must take care of the interests of workers, past, current and future, which form the whole of life. The continuum involves preparation, procurement, operating climate, severance or retirement arrangements for future needs. Corporate governance is good oversight that promotes doing so by keeping with all existing laws and regulations, everything is safer and preserves the interests of the company.

CHAPTER II: CONVERGENCE OF CORPORATE GOVERNANCE AND CORPORATE SOCIAL RESPONSIBILTY An interaction between corporate governance and corporate social responsibility is developing. Corporate governance and corporate social responsibility are related to market forces but are closely related to them.Their aims are not concurrent; they may serve as instruments to accomplish the goals of each other, while their configurations as organisational structures are distinct. When corporate governance is primarily informed by ethical principles and the need for transparency, a theoretical alignment between them emerges when corporate social responsibility adapts to current market strategies.Where two different sets of structures once existed, one concerned with "hard core" financial and corporate decision-making and another with "sweet" business policies that are people-friendly, a more hybridised, synthesised body of laws and standards that regulate corporate activities has evolved these days.Public regulations that have historically been enforced by formal administrative agencies, such as anti-discrimination at workplace and sustainable development boards, are being jointly approached by public-private sector engagement and consultation. Internal corporate governance regulations and rules that prioritise ethical and cultural responsibility for accountability and collaboration have been more effective than conventional management systems in bringing about responsible organisational behaviour. This intersection leads primarily to corporate governance by reconciling the conflict between the participation of corporate governance with stake-holders involvement and stake-holder point of interest; which has been regulated to corporate financial governance circumstances. This

[8] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 convergence with corporate social responsibilities generates corporate social responsibility.

CHAPTER III: EVOLUTION OF CORPORATE GOVERNANCE IN INDIA The notion of good governance in India goes back to the third century B.C. It is very ancient. Where Chanakya (Vazir of Parliputra) established a king's fourfold duties, viz. Raksha, Vriddhi, Yogakshema and Palana.2 “The substitution of the King of the System with the CEO of the Corporation or Board of Directors by the ideals of corporate governance refers to the preservation of shareholder capital (Raksha), the improvement of capital by prudent use of properties (Vriddhi), the conservation of wealth by profitable businesses (Palana) and, above all, the security of shareholder rights (Yogakshema or safeguard).”3Companies until around the early 1990s but nobody in the book of law until then can find any connexion to this topic. In India, structure vulnerabilities such as unwanted or undesired stock trading practises, boards of directors lacking sufficient duties, inadequate disclosure practises, lack of accountability and capitalism have all been pushing for changes and enhanced governance. The 1991 financial meltdown and the subsequent need to implement the IMF forced the government to implement reformist steps to liberalise economic stabilisation.

CHAPTER IV: CORPORATE GOVERNACE PROVISIONS IN COMPANY ACT, 2013 In 2013, the implementation of the Companies Act 2013 was a notable advance in corporate governance. The new Act replaces the Companies Act of 1956 which seeks to strengthen principles of corporate governance, simplify legislation, which strengthen the rights of minority shareholders. 1. Board of Directors (Clause 166): The new Act specifies that a limit of 15 directors can be on the Board of Directors of a corporation. 2. Independent Director (Clause 149): In the Company Law of India, the idea of independent directors (IDs) was implemented for the first time. 3. Related Party Transactions (RPT) (Clause 188): The new Act mandates that no corporation enter into RPT arrangements for the selling, procurement or procurement of products or services of any sort.

2DAS, A. AND S. GHOSH, CORPORATE GOVERANCE IN BAMKING SYSTEM: AN EMPIRICAL INVESTIGATION (2004) 3 3 M BHASIN, AUDIT COMMITTEE MECHANISM TO IMPROVE CORPORATE GOVERANCE: EVIDENCE FROM A DEVELOPING COUNTRY, Modern Economy, pp. 856-872, (2012)

[9] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 4. Corporate Social Responsibility (CSR) (Clause 135): The new Act also required businesses that make money to invest on CSR-related programmes 5. Auditors (Clause 139): A public company must not nominate or appoint new (a) an individual as an auditor for a period of five straight years or longer, 6. Disclosure and monitoring (Clause 92): Under the current Act, with contrast to the former format in the Companies Act, there is a major shift with various financial annual disclosures and monitoring by businesses. 7. Class action cases (Clause 245): for the very first time, a class action rule has been rendered according to which the judgement of the Tribunal binds all the parties concerned, including the corporation and all its owners, depositors and auditors.

CHAPTER V: CHALLENGES AND IMPERATIVES 1. A company should in all its activities be equal and open to its stakeholders. Then what's "Corporate Governance" It is understood that every organisation's critical performance needs linger on its ability to organise and use all sorts of tools to achieve the targets specifically set as basis for planning. 2. In industry, corporate governance is all about ethical behaviour. The code of moral values that requires a person to choose among right and what is wrong is associated with ethics. In addition, legal dilemmas emerge from the interested parties' competing desires.4 3. It is also likely that there will be efforts to do something that are bordering on the unethical or even unethical in attempting to arrive at the highest possible financial results or market results. There is also the risk of grey fields where an act is considered immoral but not criminal. This raise questions about morals.5 4. For resilient and thriving capital markets, sound corporate governance is essential and an essential tool of investor security. 5. Companies collect equity capital and customers suffer from disreputable management that has done even more than publicly recorded estimates. Several firms did not pay attention to investors' complaints.6

4 N. Ram v. N. Ram W.P.No.5129 of 2012 5 Companies Act v. Unknown (2014) 6 Salil Dinkari v. Osmanbad District Central CRIMINAL APPLICATION NO.209 OF 2013 [10] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 6. A company's board of directors and fairly senior executives-walking their talk. It is by moving their talk that the top leadership will build legitimacy. This all has a strong impact on an institution's morale. 7. We get through the topic of a code whenever it comes to a technology component of corporate governance, which has become a measuring stick for behaviour. But the sad truth in our country is that, while there's a lot of chatter about corporate governance, nothing really happens when it comes to facts.7 8. There is a lack of accountability in the Indian sense, which contributes to unethical or criminal conduct. 9. The mind-set of the people and the business culture is probably the most critical obstacle we face for better corporate governance. From inside, this transition will have to come. 10. Another main element is to understand that the essence of corporate governance is essentially more essential than the form. More essential than beauty is material. Values are the foundation of corporate governance, and in order to practise these values, these would have to be specifically defined and processes and procedures invented. 11. In running companies, we then come to a common moral problem. You may have activities that are legal but immoral. In fact, tax preparation activities will, several times, verge on the edge of the fine razor between the purely lawful and the patently immoral. 12. The primary principles of Corporate Governance within any corporate organisation are transparency, honesty and responsibility. In the case of public sector banks, these considerations are of greater significance. 13. Report of the Advisory Committee of Bank / Financial Institutions Executives, led by A.S. Ganguly concentrated on more basic issues, such as the supervisory position of the boards of banks and financial institutions and the operation of the boards in relation to enforcement, accountability, disclosure, independent auditors, etc.8 14. Banks deal with confidence. The corresponding financial loss does not quantify the true risk whether faith is suspicious, weakened or destroyed. Trust as the cornerstone of banking, the debate on the validity of good governance was really a foregone conclusion. 15. For long-term sustainability, ethics in operating an enterprise are crucial. As far as corporate ethics is concerned, in competitiveness, public affairs and social obligations, a basic code of

7 Andrew yule Head office v. Union of India and Anr (2019) 8Surender Babbar v. Delhi Transco Ltd. & Ors W.P.(C) 5260/2017 (2017) [11] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 ethics needs to be followed. Ethical principles and fair management practises are promoted by corporate governance. 16. Lastly, clarity regarding the governing structure of organisation is important. It is important to introduce corporate governance practices, but it is most vital to establish the right culture. 17. Beyond corporate regulation, corporate governance extends. Its aim is not simply to satisfy legal criteria, but to maintain a commitment to clear management to optimise shareholder values.9 18. Four components are increasingly migrating through national boundaries.

CHAPTER VI: SUGGESTION AND CONCLUSIONS SUGGESTIONS Corporate culture based on value: It has to have some ethics, values for any organisation to operate in a successful manner. There must be an organisational ethos focused on long-term business. It is a set of ideals, principles and values that are inviolable. Holistic approach: This holistic view is a moral mind-set, more or less godly, which tends to manage organisations. It is not easier to accept it, it takes extra efforts and once editing is embraced, it contributes to the growth of nobility, tolerance and empathy qualities. Compliance with legislation: These firms cooperate with and comply with the rules of the Stock Exchange Board of India (SEBI), Foreign Exchange Control Act, Competition Act2002, Cyber Laws, Banking Laws, etc. Disclosure, openness and transparency: An essential element of good government is disclosure, transparency and accountability. On matters such as the economic situation, results, etc., timely and reliable information should be disclosed. The consumers who have options do not move to other business bodies due to massive rivalry in the global marketplace. Corporate Governance and Human Capital Management: The personnel and contractors are much like families with every corporate body. The role of Human Resource Management is also critical for an organisation to be perfect, all of which are directly related. Each person should be regarded with individual dignity, and his accomplishments should be remembered. The best ways to show their merit can be offered to each individual employee and employee and this should be achieved by the Department of Human Resources. Necessity of judicial change: There is a need for judicial reform for a good economy, and

9 Hitesh Babbar v. Punjab National Bank (2018) [12] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 globalisation and liberalisation are still evolving today. Disputes need to be easily settled in a cost- effective way. Learnings from the very Corporate Failure: Every storey has a principle to learn and seek from, every disaster has achievement to learn from, in the very similar manner, corporate governance as a body have those regulations and if goes as a disappointment they will need learn from all of this. Whatever that may be, disappointment may be both internally and externally. Corporate bodies need to benefit about their mistakes in good governance and therefore need to shift to the road of success. CONCLUSION The very vast definition of corporate governance relies on absolute honesty, dignity and responsibility of the leadership and the executive board. Each and every position needs strong corporate governance, whether it is economics, taxation, banking or legal structure. Corporate governance is indeed a process not a goal, and the goal should be corporate performance. Effective corporate governance is once done, and the Indian corporate entity will glow to outshine the whole globe.The need for corporate governance has been illustrated in the Indian sense due to the scams that have regularly arisen since the 1991 advent of the principle of liberalisation. We would have the Harshad Mehta Scam, Ketan Parikh Scam, UTI Scam, Bhansali Scam, or any Business Scam, etc.An organization with solid, open corporate governance makes ethical choices that favour all of its owners, helping it to position itself as an appealing investment opportunity if its financials are in good shape. Bad corporate governance causes a company's collapse, which also results in scandals and bankruptcy. The need to enforce global norms in the Indian corporate environment so that it can at least be limited to the minimal, at least because the potential for scams will still exist.There are a variety of benefits to corporate responsibility and ethical practise. Next, they help establish a positive picture of the company's name. There is greater commitment even if there is a brand name, once there is stronger loyalty, there is greater dedication to the workers, and the workers can become more innovative because there is a dedication to employees. Creativity is important for achieving a strategic advantage in the new competitive climate.Corporate Governance throughout the civil service cannot be prevented but for this purpose it must be accepted. Yet because it has plenty to give to the public sector, corporate governance should be welcomed. Strong corporate policy, good leadership and good company go hand - in - hand.

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RESEARCH PAPER ON

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WRITTEN BY – PARI

INTRODUCTION

The rapid development of Information Technology give rise to new challenges before the law. These challenges are not confined to any single traditional legal category but arise in, for example, Criminal Law, Intellectual Property Law, Contract and Tort. One such challenge is the growing threat of Data Theft. It is the term used when any information in the form of data is illegally copied or taken from a business or other individual without his knowledge or consent. In this modern era of Information Technology, data is a valuable asset. Data is a crucial raw material for call centers and I.T. Companies. It has also become an important tool or weapon for corporates to capture larger market shares. Due to the importance of data in the present scenario, its security has become a major issue with the I.T. industry. The piracy of data is a threat faced by I.T. players, who spend millions to compile or buy data from the market. Their profits depend upon the security of data.10 With the increase in internet usage, Data has become an important resource that is now a part of our lives. Considering that data is one of the most critical piece of information or an asset for most of the organizations, crimes regarding stealing, hacking, deleting, removing it are prone to happen. a new series of cyber-crime has come up. This has made a new and different kinds of criminals, who plan to exploit the helplessness of computer programs and use it for their very own benefit or just to cause harm. So, with the advancement of technology, where almost everything is getting digitized, data theft stays a huge danger to any organization or an individual. Hence, protection of

10 “Data Theft in Cyber Space – Issues and Laws, (available at - www.legalservices.com) (visited on – 9th Feb,2021) [15] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 sensitive data it at all cost has become extremely critical and more than any strong antivirus, which works as a preventive measure, what is also required is set of strong enactments to deal with the crimes as and when any organization or an individual faces it.11 ‘Theft’ - Whoever intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.12 ‘Movable Property’ -The word movable property are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.”13

WHAT IS DATA AND DATA THEFT?

Data - “Under the IT Act, 2000, ‘Data’ means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalized manner,

11 Diganth Raj Sehgal, “Criminal Threat of Cyber Data Theft: An Analysis under the Indian Criminal Law, (available at – www.blog.ipleader.com) (visited on – 9th Feb,2021) 12 Section 378 of Indian Penal Code, 1860 13 Section 22 of Indian Penal Code, 1860 [16] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 and is intended to be processed, is being processed or has been processed in a computer system or computer network, and maybe in any form (including computer printouts, magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer”. According to the Personal Data Protection Bill, 2019, “data” “includes a representation of information, facts, concepts, opinions or instructions in a manner suitable for communication, interpretation or processing by humans or by automated means.” In simple terms, data is the quantities, characters, or symbols on which actions are performed by a computer, which may be stored and communicated in the form of electrical indicators and recorded on magnetic, mechanical or optical recording media.14 Data Theft - Data theft in simple terms is an act of unapproved replicating, taking or removal of confidential, valuable or personal information from an association without its assent or information. It is the act of taking virtual data with an aim to compromise someone’s privacy or to procure confidential data. It may be regarding taking or hacking passwords, banking data, personal data of customers, master card data or some other data, for example, trade secrets, source codes, programming, customer database and so forth of significance to any association or hacking into government databases for taking confidential data and abusing them and a few more in accordance with these. “Data theft is currently a new era of crime in India as well as everywhere throughout the world. With the sharp ascent being used of web and technology, a new series of cyber-crime has come up. This has made a new breed of criminals, who plan to exploit the helplessness of computer programs and use it for their very own benefit or just to cause harm.” “So, with the advancement of computerized data and advanced trade, where our everyday lives are connected to the internet, exchanges based over E-messages and networking sites, e-shopping is the new trend, where organizations are built in a virtual space and everything is digitized, data theft stays a huge danger to individuals. As per the Indian law, theft must be committed in regard of movable property. Information is anything but a movable property, and consequently the unapproved act of expulsion of information electronically (by method of E-messaging it to oneself or by hacking into a PC framework, for instance) isn’t considered as theft. In any case, taking of information is no uncertainty a criminal offense, and is culpable under the law.”15

14 Ibid at 2 15 Data Theft, Cyber Crime and Data Protection Laws in India, (available at – www.mylegalwork.com) (visited on – 9th Feb,2021) [17] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

TECHNIQUES AND ISSUES OF DATA THEFT

Data theft pertains to illegally obtaining of someone's personal information which defines one's identity for economic benefit. It is the commonest form of cyber theft. Identity theft can take place whether the fraud victim is alive or deceased. Creating a fake account or impersonation by creating multiple email-ids has become quite common and has resulted in commission of fraud in order to obtain any such information which can be used by cyber criminals to take over the victim's identity to commit myriad crimes. The advancement of technology has made things much easier as it is much difficult to track the person impersonating as Internet and online transactions provides a kind of anonymity and privacy to an individual.

There are various techniques through which data theft could be committed and personal information could be procured from electronic devices. These are as follows: -

 Hacking- The persons known as hackers unscrupulously break into the information contained in any other computer system. Section 66 deals with the offence of unauthorized access to the computer resource and defines it as. "Whoever with the purpose or intention to cause any loss, damage or to destroy, delete or to alter any information that resides in a

[18] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 public or any person's computer. Diminish its utility, values or affects it injuriously by any means, commits hacking." The offence of hacking is a violation of one's fundamental right to privacy as provided by the Constitution. It is a method wherein viruses or worms like malware divert information from another computer system by decrypting it to the hacker who after obtaining the information either use it themselves or give it to others to commit fraud using such information.  Phishing- It uses fake email-ids or messages containing viruses affected websites. These infected websites urge people to enter their personal information such as login information, account's information.  E-Mail/SMS Spoofing- The spoofed e-mail is one which shows its origin to be different from where it actually originated. In SMS spoofing, the offender steals identity of another person in the form of phone number and sending SMS via internet and the receiver gets the SMS from the mobile number of the victim.  Carding- The cyber criminals makes unauthorized use of the ATM debit and credit cards to withdraw money from the bank accounts of the individual.  Vishing- The cyber-criminal calls the victim by posing to be a bank representative or call center employee, thereby fooling them to disclose crucial information about their personal identity16.

Issues of Data Theft – The major issue regarding Data Theft is its International character, for example Systems may be accessed in USA, the data manipulated in China and the consequences felt in India. The result of this ability is that different sovereignties, jurisdictions, laws and rules will come into play which again is an issue in itself. Further, collection of evidence in such circumstances become another issue as investigation in three different countries, all of whom may not be in talking terms, is almost impossible and poor technical know-how of our cops adds to the woes. Also, the lack of coordination between different investigating agencies and a not-so-sure extradition process is another headache. However, the biggest of all these issues is the lack of specific laws in the country dealing with this crime, so even if the culprit is caught he can easily get away by picking and choosing any of the of various loopholes in our law.17

16 S.S. Rana and Advocates, “India: Cyber Theft – A Serious Concern in India”, (available at -www.mondaq.com), (visited on 10th Feb,2021) 17Supra note 1 at 4 [19] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

LAW GOVERNING DATA THEFTS IN INDIA

Because of the absence of a different enactment to deal with cyber- crimes like data theft, the charges against the hoodlum are built on the statement of the person affected. Accordingly, it is imperative that the victim knows about the fundamental laws which identify with data misuse. The act is frequently reported and punished under the umbrella of different laws.

Cyber-crime is one among the chief significant issues looked by the nations over the world recently. It incorporates unapproved access of data and break security like privacy, passwords, and so forth of an individual with the utilisation of web. cyber theft is one of the pieces of cyber-crime which implies that theft directed by methods through PCs or the Web.

The most widely recognized classes of cyber theft incorporates taking of information or personal data by means for utilizing different strategies like Hacking,vishing, email spoofing, phishing, virus attack, carding, ransomware attacks and so on with the aim of:

 Data Theft

– Wrongful collection of personal identity of a person,

– Wrongful utilization of such data with a goal of making legitimate damage to such an individual.

 Password theft, theft of data, internet time thefts etc.

[20] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021  Intellectual Property Theft,  Internet Time theft18.

The most significant provisions for this regard are as contained in the IPC, 1860 (IPC), the IT Act, 2000 (IT Act) and The Copyright Act, 1957, that can be conjured against the culprit are recorded underneath:

Criminal breach of Trust

“Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‘criminal breach of trust.”Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.19

Criminal Breach of trust by public servant, or by banker, merchant, or agent

“any person who is in any manner entrusted with property, or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 (ten) years, and shall also be liable to a fine.”20

Penalty and compensation for damage to computer, computer system

18Supra note 2 at 4 19 Section 405 and 408 of Indian Penal Code, 1860 20 Sec 409 of Indian Penal Code, 1860 [21] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 “If any person without permission of the owner or any other person who is in-charge of a computer, computer system or computer network:21

(a) accesses or secures access to such computer, computer system or computer network or computer resource.

(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;

(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;

(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;

(e) disrupts or causes disruption of any computer, computer system or computer network;

(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;

(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made there under,

(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,

(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means; 22

21 Sec 43 of Information Technology,2000 [22] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 (j) Steals, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage, he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.”23

Compensation for failure to protect

“whenever a corporate body possesses or deals with any sensitive personal data or information, and is negligent in maintaining a reasonable security to protect such data or information, which thereby causes wrongful loss or wrongful gain to any person, then such body corporate shall be liable to pay damages to the person(s) so affected.”24

Computer Related Offences

“if any person, dishonestly, of fraudulently, does any act referred to in Sec 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.”25

Punishment for dishonestly receiving stolen computer resource or communication device

“Whoever dishonestly received or retains any stolen computer resource or communication device knowing or having reason to believe the same to be stolen computer resource or communication device, shall be punished with imprisonment of either description for a term which may extend to three years or with fine which may extend to rupees one lakh or with both.”26

Punishment for identity theft

22 Ibid at 10 23Ibid at 10 24 Section 43A of Information Technology Act, 2000 25 Section 66 of Information Technology Act, 2000 26 Section 66B of information Technology Act, 2000 [23] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 “Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine with may extend to rupees one lakh.”27

Punishment for cheating by personation by using computer resource

“Whoever, by means for any communication device or computer resource cheats by personating, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.”28

Penalty for breach of confidentiality and privacy

“if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.”29

Punishment for disclosure of information in breach of lawful contract

“any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.”30

27 Section 66C of Information Technology Act, 2000 28 Section 66D of Information Technology Act, 2000 29 Section 72 of Information Technology Act, 2000 30 Section 72 A of Information Technology Act, 2000 [24] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Infringement of Copyright

“literary work” “includes computer programmes, tables and compilations including computer data bases”

Penalty: Monetary fine commensurate with the magnitude of the offense. Further, infringement of copyright is a criminal offence.”31

The biggest issue with regard to Data Theft arises when cross border territories are involved involving multiple countries, for example, a system may be accessed in Singapore, data manipulated in USA and results felt in India. The result of such an issue is that jurisdictions, rules and laws will become an integral factor which again is an alternate issue in itself.

Couple of challenges that generally arise in such situations:

 Collection of evidences in such circumstances is again a separate issue since examination in three distinct nations, who may not be in talking terms to each other makes it incomprehensible alongside the absence of specialized expertise of our cops add to the demerits;  Lack of coordination amongst different investigation offices.  Lack of explicit laws in the nation dealing in such crimes. Because of this, regardless of whether the guilty party gets captured, he can without much of a stretch escape by finding different loopholes in our law. 32

31 Section 2(o) and 63 of Copyright Act, 1957 32Supra note 2 at 4 [25] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

PUNISHMENT FOR DATA THEFT “The Indian law deals with punishments and penalties for data crimes in the IT Act, 2000, in this manner making a method of redressal for violations attempted with the help of technology through the web. This Act is the supreme law managing E-commerce and provides punishments for the following:”

 “Unauthorized access of a computer framework,  Destruction of computer framework programming,  Unauthorized download or duplicating of data,  Tampering with computer source codes,  Hacking into unapproved computer framework,  Accessing information kept in secured framework and abusing it. secured system data is that data which is expressed by the legislature as secured information,  Breach of confidentiality and protection of data by a person who has been agreed powers under the IT Act.”

“The IPC defines ‘theft’ and lays down punishments for theft of movable property which consolidates all corporeal property. This clarifies that data, which is impalpable, is beyond the extent of IPC. In any case, if the information is kept in a medium, for instance: floppy disks, CD, pen drives, hard drives, and so forth., and afterward on the off chance that that is taken, at that point the applicable Sec identifying with theft in the IPC can be applied and thusly the blamed will be arraigned in a criminal court and, if proved guilty, will be criminally charged for the same.” [26] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 If an issue emerges regarding data crime or any cyber-crime connected to misappropriation of information, at that point the affected individual can submit a complaint by method of a criminal complaint and furthermore a civil complaint according to the nature of the crime, within the police station or a cyber cell in their city.”33

The country’s data protection laws mainly consist of:

 A legal arrangement for settlement of compensation for inability to protect sensitive personal data; and  A criminal arrangement for exposure of private data without the data subject’s information, assent or in breach of a contract.

However, both provisions apply as long as there is a outcome of a wrongful gain or loss from such disclosure or breach. Government-prescribed rules on privacy apply as long as the parties haven’t agreed to their own security standards and, even if they do apply, the sole consequence of non- compliance would be payment of compensation if the breach resulted in wrongful gain or loss. We as of now have a circumstance where an assortment of offenses are penalised by both the IPC and the IT Act, despite the fact that the components of the two offenses are the same. There are exceptionally unobtrusive contrasts in punishments under these Acts, explicitly in viewpoints like whether the offenses are bailable or compoundable or cognizable.34

In the case of Gagan Harsh Sharma v. The State of Maharashtra,35 certain individuals were accused of theft of data and software from their employer and charged under Sections 408 and 420 of the IPC and also under Secs 43, 65 and 66 of the IT Act. Offences under Sections 408 and 420 of the IPC are non-bailable and cannot be compounded other than with the permission of the court. Offences under Secs 43, 65 and 66 of the IT Act are compoundable and bailable. Therefore, the petitioners pleaded that the charges against them under the IPC be dropped and therefore the charges against them under the IT Act be investigated and pursued.

It had been further argued that if the Supreme Court’s ruling in Sharat Babu Digumarti v.

33Supra note 4 at 5 34Supra note 2 at 4 35 AIR 2017 SC150 [27] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Government of NCT of Delhi36 were to be followed, the petitioners could only be charged under the IT Act and not under the IPC, for offences rising out of the same actions. The Bombay High Court upheld the contentions of the petitioners and ruled that the charges against them under the IPC be dropped”.

PREVENTIVE MEASURES AND PRECAUTIONS TO BE TAKEN FOR THE PROTECTION OF DATA THEFT

Data Theft is the theft of software through the illegal copying and selling of copyrighted data or software codes in open market without permission of the owner's company. So, corporate sectors or individuals have to follow the following measures and precautions to save their sensitive data or to protect the data: 1. Copyright your program code/software/data.

2. Create a license agreement with your customers/users.

3. Obfuscate your code.

4. Provide a trial version of your code.

5. Never share complete code/data required to run the software with a single person in your company.

6. Never allow your employees to copy/share the data/software on their personnel gadgets/emails/external drives and along with that make company devices secured to prevent data theft from the devices.

7. Always assign specific duties to each employees.

8. Always make non-disclosure agreement with the employees.

9. Always make inventory of the hardware/software issued to employees.

36 2019 CriLJ 1398 [28] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 10. Train your employees and prepare them for phishing attempts and privacy breaches.

11. Create user accounts for each employee to prevent unauthorized users from gaining access to your business computers. Laptops can be stolen easily; make sure they are locked when unattended.

12. To prevent outsiders from gaining access to private information on your network, enable your operating system’s firewall or purchase reputable firewall software37.

CONCLUSION

With increase in internet penetration and access to digital technology, our economy is quite vulnerable to while collar crimes including cybercrime and we’re sitting on a ticking time bomb, which can be really detrimental to any individual or any corporate or the economy at large.

Though lot of initiatives have been taken to strengthen the judiciary action in the area of cyber- crime, yet at the same time here is still a great deal of inertia in enlistment and examination of cyber-crimes and hence lot of programs need to be run within the judiciary to guarantee that the people engaged with the framework comprehend the impacts of cybercrime and act quickly.

The proposed bill need to be passed on a war footing to start recognizing cybercrime as a criminal offense and hence to be judged from an angle quite different from the current definition of “Theft”, using which the criminals get away easily. Laws need to be stricter and consequences need to be substantial so as to detract people from committing such crimes and with the increase in the

37 Cyber Crime Cell, “Data Theft”, (available on - http://www.cybercelldelhi.in/datatheft.html), (Visited on – 10th Feb,2021) [29] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 number of frauds and cyber related crime, the government is coming up with refined regulations to protect the interest of the people and safeguard against any mishappenning on the internet. Further, stronger laws have been formulated with respect to protection of "sensitive personal data" in the hands of the intermediaries and service providers (body corporate) thereby ensuring data protection and privacy.

[30] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Challenges in the implementation of POSH Act

By : Nithya Sowmya

INTRODUCTION

“Forgettingisdifficult;Rememberingisworse”

Indiahasnearly50%womeninitstotalpopulation.Womenareinvolvedandparticipatingin every sector of the country actively like men and they are trying to achieve the equal socioeconomic status like men and contributing to the country's economy as well. Sexual harassmentwhichisthecommonwordwearepassingbyeverydayatleastonenewsthatsomegirlorwome nhas been harassed or raped by some men or man. It has become like a practice of having chaieveryday.Sexualharassmenthasbeendefinedas“suchunwelcomesexuallydeterminedbehaviour, whether directly or by implication, such as: physical contact and advances, a demandor request for sexual favours, sexually coloured remarks, showing pornography, and any otherunwelcome physical, verbal or non-verbal conduct of sexual nature.”1 it is the most cruel andheinouscrimeagainstthewomenwhichdirectlyimposesthatstillgenderdescriminationexistsinour country.Butthereisapositivethinginthisthatnowadaysthevictimsarevoicingoutagainstthecrimehapp enedagainstthemunlikeoldendays.Thissexualharrassmentishappeningineveryplace including schools, colleges, bus stops, work places and even in homes, etc., With respect tothe sexual harassment at workplace, it consider as an inequality against women and there isviolationofrighttoequality,righttolifeandrighttolibertyofwomenandalsoitaffectsthesocialand economic empowerement of women who wishes to work and stand independently but thisincidentofharassmentdiscouragesthemtonotparticipateintheworkandaffectingthemmentallyand physically.

Until 2013, there is no specific legislations or laws has been enacted exclusively to dealtwithsexualharassmentatworkplaceeventhoughtherehashugenumberofcasesreportedbuttheimp oratnce of having specific legislation in order to address the sexual harassment of women atworkplacehasbeenidentifiedinthecaseofVishakavStateofRajasthanwheretheSupremecourtobserv

[31] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 edtheimportanceofsepcificlegislationandlaidgidelinescalledas‘Vishakaguidelines’inorder specifically adress this issue. But it to the dismay we could see that the specific legislationcalled “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)Act2013”otherwisecalledas‘POSHAct’wasenactedonlyafter16yearsofVishakaguidelin es.

1Vishakav StateofRajasthan(1997)6 SCC 241

[32] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 This act has been enacted by the Government of India in order to protect and prevent the womenagainstsexualharassmentatworkplaceandtosetuptheredressalforuminformingthecommittees toaddress theissuein anexpeditemanner.

The main objective of this act is to form an internal complaints committee in everyinstitutional or organisational level where it has more than 10 employees and a local complaintscommittee in every district level by district officer in order to address the issue where the districthas institutions or organisation with less than 10 employees. Even Though the act has beenimplemented in 2013 but the implementation, consequences of an offense and its redressal is notworking in a full-fledged manner and its limited. Not only the implementation of this act shouldcreate safe environment for working women but also it should create awareness and preparementallythatwomenarealsoequaltomenandsuchharassmentareagainsthumanrightsandthere shouldbeequalprotectionandsafetytothemintheworkingenvironmentinordertopromotethesocio and economic condition of women and as well as the country. The sexual harassment istakingplaceeventhoughwehavespecificlegislationsandguidelinesandthispaperaimstodrawoutthec hallenges in implementing thePOSH actin ourcountry. VISHAKAGUIDELINES

A violence and crimes against women are being reported every day.But it came to lightbefore the public in the Bhanwari Devi case where the victim was a Dalit Women worked as agovernmentemployeewhoisasocialworkerworkedunderthe‘Rajasthangovernment’sWomen’s Development Programme’. With respect to this program she has to create awarenessamongthepeopleabouteducation,familyplanning,hygiene,needforgirlchildeducationand alsoconducted campaigns on female infanticide, child marriages and dowry prohibition. While thistime she happened to stop a child marriage of very young Gujjar girl who is a daughter ofRamkaran Gujjars. Due to stopping the marriage of Gujjar girl, Bhanwari devi has undergone asocial punishment and also she has been raped by Ramkaran Gujjar and his five friends cruellybefore the eyes of her husband. In accordance with this heinous crime she filed a criminalcomplaintagainsttheoffendersbuttothedismay,inthetrialcourttheaccusedhasbeenconvicted of lesser punishment is much lesser than the punishment of rape upon the dismissal of the crimebyeveryoneincludingthevillagers,doctorsandpolice.Therearisesaninjusticetoherinthe

[33] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 workplacebecausetheinstitutionwhichisagovernmentmachineryherefailedtoprotectandassisther andalso thereis no oneto stand against theoffenders2.

Due to this injustice prevails, there is big controversy arises among social welfare womengroups and NGOs which they have filed a collective Public Interest Litigation in the SupremeCourtofIndiaunderthecommonnameoftheplatform‘Vishaka’andthroughthistheycollective lydemandedajusticeforBhanwariDeviwhohasbeenbrutallyharassedandrapedbytheoffendersduring her work and to take actions against the sexual harassment at workplace which is directlyaffectingthethoughtandopinionofthewomenwhowishestowork.AgroupofNonGovernmenta l Organisations has filed a PIL in the name of Vishaka and highlighted that thefundamental rights of Bhanwari Devi have been violated. In the Bhanwari Devi case, the right toequality,righttolifeandlibertyhasbeenviolatedwhichhasbeengrantedunderArticle14,Article14, Article 15, Article 19(1)(g) and Article 21 of the Constitution of India3. In the year 1997, thevishaka guidelines has been laid down by the Supreme Court in order to protect and prevent thewomen from sexual harassment at workplace and also paves a way for an idea about creating anew legislation exclusively4.

The special features of this Vishaka guidelines5 are elucidated by the Hon’ble SupremeCourtofIndiain theyear1997,

● Itprovidedadefinitionof‘sexualharassment’ ● It instructed that it is the duty of the employer to create a safer working environment forthe employee which involves taking measures to ensure that they protect the womenemployees interest and keep checking that none of them has been sexually harassed at theworkplaceandifthereisanythenanappropriateactionmustbetakenagainsttheoffender. ● It is the duty of the employer to file a complaint towards the employee who committed asexual harassment on other women employee which is a punishable offense under theIndianPenal Codeandhas to ensurethatthe victim has notbeenvictimizedagain.

2Ungender,“Thereiseverything youneedtoknowabout“VishakaGuidelines””,21November 2019 3 S. C. Srivastava, “Sexual Harassment of Women at Work Place: Law and Policy” Indian Journal of IndustrialRelations,Jan.,2004,Vol.39https://www.jstor.org/stable/27767912accessed on 25 March 2021 4SexualHarassmentLaw, 40COMMW.L.BULL.398(2014). 5Vishakav Stateof Rajasthan(1997)6SCC241 [34] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 ● In order to address the complaints on sexual harassment at workplace, the employer needtosetupacomlaint redressalcommitteewhichis mandatoryforeveryorganisationwhcihwilltakeaction against theoffender directly. ● Also there is duty vested with the employer that he/she needs to assist the employee if shehas been sexually harassed at work place with respect to taking protective actions andsupporting them. ● Itisthedutyoftheemployertocreateawarenessamonghisemployeesinhisorganisationwith information pertaining to the workplace environment for women against harassmentandto ensurethe safety of women. ● The complaint committee of the concerned government should submit the annual reportwhichconsistsoftheinformationlikethecomplaintsfiledanddetailsofnecessaryactionst aken on them and also there should be the submission of compliance report by theemployerand person in charge. ● Thecourthasalsopointedoutintheguidelinethatthegovernmenthasadutytowidenthescopeof these guidelineswhich willhelp thewomenas well asthewholecountry.

TheVishakaguidelinesareaground- breakingstepinensuringwomen'swelfare.Accordingtotherules,employeesareresponsiblefortakingp reventativemeasurestopreventsexualassaultatworkand filing a lawsuit if such an act is discovered to have occurred with an employee. Which willguarantee that women who are sexually assaulted have the necessary financial assistance fromtheir bosses in order to file a lawsuit and be represented by qualified attorneys. The SexualHarassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, has nowreplacedtheVishakaguidelines.TheVishakaguidelines,ontheotherhand,arethemostimportantse riesof guidelines that arethought to haveaidedin the development of theAct of 20136. OVERVIEWOF THEPOSH ACT

The issue of sexual assault against women and children has reached dangerous levels.AccordingtoasurveypublishedbytheInternationalLabourOrganization,one- thirdofwomenindevelopedsocietieswassexuallyassaultedatwork.Ithasnowbecomeaworldwideissu e.7.In

6 Subodh Asthana, “The Vishaka Guidelines: A step against Sexual Harassment” 2 March 2020 accessed on27/03/2021. [35] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 India, the criminal law by that time does not spoecifically mention about the sexual harassmentand also there exists a section 509 of The Indian Penal Code, 1860 which more or less like theoffense of sexual harassment states that whoever intends to outrage the modesty of a women8 is apunishable criminal offense where the person will be punished with a simple imprisonment of 1year or with fine or with both. Like there exists sections like section 292 and 294 of IPC more orless defines the similar acts but not in particular. In order to protect and prevent the women fromsexual harassment at workplace, the government of India has enacted a special legislation calledthe POSH Act or “The Sexual Harassment of Women at Workplace (Prevention, Prohibition andRedressal) Act, 2013” in the year 2013 nearly after 16 years of Vishaka guidelines formulationandit replaced that guidelines in theyear 2013.

The bill of the said act has been proposed in 2000 itself but has travelled a way long to beenacted by the government in 2013. This act is applied to the whole of india and endures that nowomenhasbeensubjectedandstipulatedtotheheinouscrimeofsexualharassmentatworkplaceand to protect and prevent them from the said offense. With respect to the statute ‘aggrievedwomen’ includes women employed or not in the workplace and can be of any age who aresubjected to the cruel act of sexual harassment. The POSH act applies to both organised andunorganisedsectorincludingthegovernmentbodies,privatebodies,non- governmentalorganisations, vocational and educational institutions, industries, commercial places, hospitals,nursing homes, stadiums, dwelling place or house9. The POSH act also defined the term ‘SexualHarassment’ in accordance with the ‘Vishaka Guidleines’ and also it has state definition of‘employee’ where it includes “the regular, temporary, ad hoc employees, individuals engaged ondailywagebasis,eitherdirectlyorthroughanagent,contractlabourers,co- workers,probationers,trainees, and apprentices, with or without the knowledge of the principal employer, whether forremunerationornot,workingonavoluntarybasisorotherwise,whetherthetermsofemploymentaree xpressor implied”10.

Theactalsocoverstheconceptof‘workplace’and‘extendedworkplace’definitionwhereitinclu des“theplacesvisitedby theemployeearising outof orduring thecourseof employment,

8Section509of The Indian PenalCode, 1860 9TheSexualHarassmentofWomen atWorkplace(Prevention,ProhibitionandRedressal) Act, 2013 10TheSexualHarassmentofWomen atWorkplace(Prevention,Prohibition andRedressal) Act, 2013 [36] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 including transportation provided by the employer for the purpose of commuting to and from theplace of employment”11. It is submitted that this act introduces a new mechanism to regulate thisoffense is the formation of a complaints committee which includes the Internal Complaintscommittee and Local complaints committee. This act provides interim reliefs, punishment to therespondentandcompensationwillbeprovidedtotheaggrievedparty.Also,theacthasspecificallyme ntionsabouttheconfidentialityoftheincidentwherenoonecangetinformationinaccordancewith the Right to Information Act, 2005 and it prohibits revealing the identity and address and ofthe complainant and pertaining to the procedures and inquiry and actions taken by the committeeandthepress, media andnews control.Andall the offenses underthisact arenon- cognisable.

INTERNALCOMPLAINTS COMMITTEEANDLOCALCOMPLAINTSCOMMITTEE

Internal Complaints committee and Local complaints committee where the complaint ofthe victim will be filed if the incident happens in the workplace before it is going to the policestation. A victim has to file a complaint within 3 months from the date of incident and if there is any continuous incident thenwithin the periodof 3months from the last incident date in a written statement to the ICC/LCC. A six copies of written statement must be there with the names and address of the witnesses along with the supporting documents.This act not only allow sthe victimor aggrieved women to file complaint but also the family, friends, relatives and co- workers, etc.,on behalf of her when she is unable to make a complaint due to mental instability and physicalincapacity. With respect to these committees every organisation or institution must comply ainternal complaints committee under the Sexual Harassment of Women at Workplace (Prevention,ProhibitionandRedressal)Act,2013 and onnon compliance in forming the committee would lead to a imposition of monetary penalty of Rs.50000 and if there is any reoccurrence of the incident then the statutory business license will berevoked.

It is submitted that with respect to the section6(1)of the POSHAct, “AnyDistrict Officer shall form a committee known as the "Local Committee" in the district involved to accept sexual assault reports from businesses where the Internal Committee has not been established and there are less than ten employeesor where the allegation is against theemployer himself.”12 In addition to the formation of the local complaints committee in each district,the head of the committee will

[37] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

be the district officer and he/she is an incharge who used to collect the reports from the nodalofficers where they will follow the complaintsat their block or Taluka or Tehsil and also responsible for creating awareness and sensitization among the workers and employees of the of the organisations or institutions. Also the members of the local complaints committee will betrained by means ofskill and capacity in order to achieve fair and equal justice .Buttothed is may there is no formation of such committees in every district of the country and there is no valid information available on the same and still a lot of incidents goun noticed because of the failure of implementation of this particular mechanism13. CHALLENGESINIMPLEMENTINGPOSHACT– SPECIFICANALYSISINTAMILNADU

The implementation of the POSH act lies in constituting ICC and LC in the first part andthen making awareness about the said act to the public. But unfortunately we could see that thesecommitteesarenotconstitutedasitwasmentionedintheact.EspeciallywithrespecttoTamilnadu, wecouldn’ttrace detailsofallthelocalcomplaintscommittee whichmustbeconstituted in every district. There are hardly details available of 4 district local complaintscommittees but details of the rest of the districts are unknown. In Tamilnadu the enforcement ofthis act is still lagging as the government could not monitor every internal complaints committeesituatedinthefactoriesandinstitutionsandalsothecommittehasonememberfromthemanag ement which restricts the women to speak out truth and it has been mentioned by districtsocialwelfareofficersinaninterviewwithHumanRightsWatch“Poongothai,theTirupurdistrict socialwelfareofficerinchargeofenforcingthelawagainstworkplacesexualabuse,saidgovernment offices in the district first established Internal Committees in 2018, nearly five yearsafter the law took force. She told Human Rights Watch that the Internal Committees in factorieswere barely controlled, despite the fact that they were knowledgeable of enforcement problems.“Wehaveafiniteamountofresources.ExternalCommitteesaredifficulttotrack..”Most

13ParamitaChaudhuri,“SexualHarassmentattheWorkplace:ExperienceswithComplaintsCommittees”SexualHarassment at the Workplace: Experiences with Complaints Committees https://www.jstor.org/stable/40277396accessed on25March2021

[38] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Companies have

a tleastonepersonfrommanagementinthesecommittees,whichshesaid,actsasadeterrent for women tospeak out.``14

In accordance with the act there is no regular and periodical awareness made by thegovernment to educate women upon the provisions of the act and the protection and remediesavailable to them subject to an offense. Due to which still many people especially in rural areasareaffectedatlarge.Notonlyinruralareasbutalsoincitieswomenarefacingsexualharassmentand it's increasing day by day. Lack of specific authorities to deal with this matter especially isunavailable is the main drawback of implementing this act and also there is no regular awarenessgivento the public regarding thefunctioning and implementingof theact.

‘#METOO’MOVEMENTININDIA

In October 2017, Tarana Burke founded Me Too movement but it was the hashtag startedasasocialphenomenonstartedbyaAmericanActressAlyssaMilanowhohassharedherstoryofse xual harassment assault against Harvey Weinstein. In India it has been started by an actressTanushreeDuttaagainsttheactorNanaPatekar.The#MetoohashtaghasspreadquicklyinIndiaon India where ‘eve-teasing’ is used for the sexual harassment term in common. This movementhasfollowedafterthenotoriousgangrapeinNewDelhi.Afterthisincidentmanycaseshavebe enreported not only in the cine field but also in industries. This #Me too mainly focuses first onpowerful men the later it includes all whoever commits the offense at the workplace. This hasbrought many voices out in public to speak about the cruel thing that happened to them in theworkplaceandthishasclearlyshownhowthelawshavebeenimplemented.Eventhough2013actimpl emented all over the country then why this big outrage has happened and it is very clear tocometoaconclusionandthelawhasnotbeenworkingatitsfulleffectivemannerandthereexistslack of awareness about the act and the punishment it provides to the offenders and the benefitsthevictim avails. COMPARISONOFREALITYANDLEGALITYOFTHEACT

Realityandlegalityoftheactliesinimplementationoftheactandhowfarit'sapplicableandbenefit ingthepeoplebecausethelegalityofthecrimeisnotthesameastherealityofthe

[39] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 14HumanRightsWatchinterviewwith I.Poongothai,Tirupur,TamilNadu,January 28,2019

[40] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 crime.There involves a lot of procedures involved in law in order to convict a person in one crime and if there is no sufficient materials to prove or if not able to prove that he is the culprit beyond reasonable doubt then there is a chance of acquittal of the accused. It is submitted that in order to protect the employee from sexual harassment, “Rule 17(1) Industrial Employment (StandingOrders) Central Rules, 1946 framed under the Industrial Employment (Standing Order) Act, andtheamendedmodelstandingorderspermitthatdisciplinaryactionmaybetaken,interaliaincasesof sexual harassment” which shows that the labour law has addressed the issue in its legislationbut in reality it doesn’t used by the employees which means there is legal remedy but reality doesn’t knows about thesame15.

One of the incident which took place before vishaka guidelines and the POSH act falls under the ambit of ‘sexual harassment’ that is in “Shehnaz Mudbhatkd. (Mrs.) & Others v. Saudi Arabian Airlines, Mrs. Shehnaz started her work with Saudi Arabian Airlines as the Assistant tothe Station Manager on November 16, 1978. On the 10th of October, 1979, she got a letter of gratitude. In October of 1980, she was also granted a merit pay, as well as a merit certificate on September 6, 1984. The trouble began when Abdul Allah Bahrani was appointed as the Airport Station Manager. She was passed over for the role of Lead Customer Service Agent, which was eventually offered to her junior. When the second vacancy emerged and Mrs. Shehnaz made are presentation, Bahrani made inappropriate requests and unwanted sexual advances. Around midnight, Bahrani called her home and requested her to come to his house right away to addressthe topic of her promotion. She was insulted and spoke to the Country Manager about it (India).She was, however, threatened on a regular basis and was then fired for wrongdoing. She brought about a labour issue. The Labor Court found in favour of reinstatement. The Bombay High Courtruled on a writ petition that Bahrani's actions constituted "sexual abuse," as described in the Vishakav. Union ofIndiacase.”16.

When it comes to the proving of crime our laws are structured in a way that there should be evidence to support the crime in order to convict and merely upon the statement the conviction will not be made. But again here comes discrepancy again what if she is the only person present

15ShebaTejani,“SexualHarassmentattheWorkplace:EmergingProblemsandDebates”EconomicandPoliticalWeekly ,Oct.

[41] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 9-15,2004,Vol.39https://www.jstor.org/stable/4415633accessed on 25March 2021 1651999LLR329(Bom.H.C.)

[42] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 intheoffendersplaceandthereisnooneelsebythattimethenthematterwillbeputintoquestionandexper t opinion will beneeded. CONCLUSION

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)Act, 2013 which is called as ‘POSH’ Act has lot of challenges in way of implementing it all overthe country and tor regulate it. With respect to the main challenge in implementing the POSH act is lack of a constitution of the internal complaints committee and local complaints committee.Andalso with respect to the regulation of the internal complaints committee and its control under one particular authority in each district has not been vitiated and also local complaints committee which is amandatory constitution committee in every district is still not been constitute dandals ono proper information has been available to the public in the respective government and its departments websites. I have filed an RTI to gather information regarding the constitution of the local complaints committee and its present controlling authority with their designation on 12thMarch 2021 but i didn’t receive any reply so far. There is one report prepared and published by Maratha Foundation clearly shows that only26%districts in India have constituted Local complaints committee in their district and no information available on the rest of the districts. Inorder to protect and prevent the women from sexual harassment at workplace this act needs to be implemented without any flaws like lack constitution of committees and anawareness needs to be created among the public about the severeness of this act.

[43] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

Section 113B of The Indian Evidence Act, 1872: A Pre-emptive Conclusion or A Necessary Precaution By : Twinkle Shaji 3rd Year, B.A LL.B (Hons.)

I. INTRODUCTION:

This article is titled, “Section 113B of The Indian Evidence Act, 1872: A Pre-emptive Conclusion or A Necessary Precaution”. The author in this article shall try to find out through her humble doctrinal research as to which category of the two, Section 113-B falls under. The proper understanding and justification can only be done after going through the entirety of the article and thus, the author shall refrain from trying to confuse the readers at the very rudimentary stage of the article. Marriage is a sacrosanct covenant. Both the spouses embark on a new journey together. Their priority after marriage shifts from ‘me’ to ‘us’. But what transpires when everything does not go as planned? It is said that a woman “marries into a family”. But when the so-called family and her ‘till death do us part’ husband become the cause to her misery and ultimately her death, everything shatters. Section 2 of The Dowry Prohibition Act, 1961 defines dowry and section 3 & 4 talk about how, Dowry – both giving and taking, is illegal in our country. But even now this practice is prevalent. People preach that giving and taking of dowry is bad publicly, but individually most of them actually are on either side of this transaction. Calling it a transaction may be a bit business minded as dowry is considered one of the necessary evils of society. The family of the girl gives dowry to her fiancé and his family as way of asking them to look after their precious daughter and to make her happy for the rest of her life. But it is not always possible for her parents to give a dowry that they cannot afford. Neither is it possible for them to keep giving dowry whenever their in-laws keep asking. But they still try because their daughter’s happiness is at stake here. Imagine the fright upon these very parents when they learn that their daughter is murdered by the very people they trusted to take care of her. They might not have a reason to live anymore. Death because of dowry is termed as a dowry death. India is a diverse country and apparently dowry practices are also pretty diverse here. Except for the Muslim community, who have the concept of Mehr, dowry is known to be taken by both Hindus and Christians. In spite of the various Dowry probation laws put in place, “the practice of dowry continues to be widespread, which transcends all class, socioeconomic, and religious lines in India.38”

38 Namratha S. Ravikant, DOWRY DEATHS: PROPOSING A STANDARD FOR IMPLEMENTATION OF DOMESTIC LEGISLATION IN ACCORDANCE WITH HUMAN RIGHTS OBLIGATIONS, Vol. 6 Issue 2, MJGL (2000) (US) [44] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

[45] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

II. HISTORICAL BACKGROUND :

The concept of dowry supposedly dates back to the late Vedic Age from around 2500 BCE to 1500 BCE. The Early Vedic Period actually saw the equal treatment of women and equal opportunities given to them. They participated in the Sabha and Samithi meetings; were allowed to go to school; the concept of child marriage did not exist and; monogamy persisted. It was the late Vedic Age that saw a decline in these aspects.

Dowry started out as Stridhan to ensure that the bride would be self-sufficient even during her toughest times. The bride was given jewellery, gold and land that was in her name which meant that she would have a right over it even if her marriage ended. But this was only practiced by the upper castes, as they were the only ones able to afford such a custom. The lower castes on the other hand, practiced what was known as “Bride Price” custom. This was quite similar to Mehr as in this case, the groom paid the bride’s family for the loss of an extra hand in the fields and their daughter. The drastic change in this practice was brought about with people wanting to climb up the ladder economically. Another reason was that with the influence of western culture, the demands for gold turned into demands for vehicle. Thus, the greed for material acquisition is what is believed to have brought about this change.39

Hindu Shastras use a term called “Varadakshina”, which is a voluntary “Dakshina” in which the bride’s family paid the groom’s family, was needed to be done to finish Kanyadan. The reason for such a dakshina was to ensure that their daughter could lead a dignified life and never be looked down upon by her husband or her in-laws. Dowry was earlier a way to make up for the daughter not having any right to inherit her father’s property. This concept is also one that is considered to have sprouted into what we call “the evil of dowry”. The concept of dowry once again has become a major reason for parents not wanting to have a girl child which has led to numerous female foeticide and female infanticide and abandonment of girl children.

It is also believed that the Manu Code, which allowed dowry, could also have given a push in the wrong direction for the existence of this evil. 40The need for a separate section with regard to dowry death is believed to have been brought about due to the increase in specific murders by husband and his relatives of his wife solely for the purpose of dowry. This specific kind of homicide required a specific kind of section which the researcher believes, helps in narrowing down the suspects which in turn leads to speedy delivery of justice.

39Namratha S. Ravikant, DOWRY DEATHS: PROPOSING A STANDARD FOR IMPLEMENTATION OF DOMESTIC LEGISLATION IN ACCORDANCE WITH HUMAN RIGHTS OBLIGATIONS, Vol. 6 Issue 2, MJGL (2000) (US) 40Anwesha Arya, DOWRY IN TRADITION AND TEXT: ŚĀSTRA, STATUTE AND THE ‘LIVING LAW’ OF DOWRY AS SADĀCĀRA IN INDIA [46] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

III. SECTION 304-B OF IPC :

It becomes imperative to understand the offence of dowry death under S. 304-B of IPC before understanding the section that complements it. This Section was inserted by way of Amendment in the year 1986. In the case of Shanti v. State of Haryana41, the court explained the reason for insertion of a separation section for dowry death as being a move to combat the increasing dowry death menace in India. According to Section 304-B of the Indian Penal Code, 1860 (hereinafter referred to as IPC, 1860), Part one mentions that when a death of a woman is caused by burns or bodily injury or due to any other circumstances which is not normal, then, within seven years of marriage it is made known that soon before her death the person of woman was subjected to some sort of cruelty (S.498-A IPC) or harassment by husband or any relative of the husband for any demand of dowry shall be called as dowry death. 42 But Article 20 (1) prevents the State from punishing people for acts/omissions which when committed were not offences i.e., at the time of commission the law prohibiting it was not in force. So offence committed under Section 304-B before the Amendment Act of 1986 came in to force, does not attract the section.43 The judiciary when dealing with cases of dowry deaths also pulls into its purview ‘murder’ which opens a window into awarding the accused with a death sentence instead of the maximum sentence of life imprisonment under Section 304-B with the minimum being 7 years. Unnatural death of wife does not ipso facto mean that a charge is to be brought under section 304-B and 498-A of IPC against husband and in-laws.44 Other ingredients like the demand for dowry and cruelty or harassment by the accused in furtherance of such demands need to be present for a case to be brought under the purview of S. 304-B.

41 Shanti v. State of Haryana, (1991) Cr LJ 1713 (India) 42Biswajit Halder @ Babu Halder v. State of West Bengal, (2008) 1 SCC 202 (India) 43 Lakhjit Singh v. State of Punjab, (1994) SCC (Cri.) 235 (India) 44 Baijnath v. State of Madhya Pradesh, 2016 SCC OnLine SC 1287 (India) [47] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

IV. PRESUMPTION & SECTION 113-B :

Now that we have had a good understanding into the concept of dowry, we will now move to the topic in focus, Section 113-B of The Indian Evidence Act, 1872. But to understand this section we first need to understand what a ‘presumption’ is. Section 4 of the IEA, 1872, hereby referred to as The Act, talks about two kinds of presumptions – May & Shall presumptions. In ‘may presumption’, the court has the discretion to let there be such a presumption or not but in ‘shall presumption’ the court is bound to have such a presumption. But presumption by itself does not imply guilt. In the case of N. Narsinga Rao vs State Of Andhra Pradesh45, the Supreme Court opined that “presumption is not final conclusion drawn from other facts. But it could be final if it remains undisturbed.” Presumption as defined by Thayer is “a rule of law that courts and judges are supposed to draw a specific inference from a particular fact or from a particular piece of evidence until and unless the truth of such inference is disproved.”46 Presumption of innocence is a legal principle which is based on the phrase that “a person is innocent unless proven guilty”. Usually the burden of proof is upon the prosecution to prove that the accused is guilty (S. 101 of IEA). India, is one of the numerous countries that is a signatory to and has ratified The Universal Declaration of Human Rights, 1948 which likewise, upholds this legal principle.47 But with Section 113-B, this is just the opposite. Under Section 113-B, the accused is presumed to be guilty instead of innocent and, the burden of proof then shifts onto the accused to rebut such a presumption. According to section 113-B of the Indian Evidence Act, 1872, when due to the demand of dowry, death of a woman is committed and soon before her death she was subjected to cruelty or harassment by such person then the court shall presume that it is dowry death. But the husbands and in-laws now are not fools. They tend to wait till the end of seven years to harass or act with cruelty towards the wife for dowry. So after this time frame, if the wife is killed by the husband and his relatives then, this brings the case under Murder but then there is no presumption and it becomes the duty of the prosecution i.e., the onus falls onto the prosecution, to prove it was them. This makes it difficult to ensure speedy justice to a clear case. Let us try to look at Section 113-B of IEA verbatim. Section 113-B says that the Court “shall” presume that the accused is the guilty person when there is a query of dowry death and cruelty or harassment to the deceased by the accused has been established. Section 113-B is a legal presumption as it needs to be read in combination with Section 4 of IEA.48 The researcher is not going into the details of any particular case as the facts of most of the cases are similar. The was allegedly a continuous demand for dowry in furtherance of which was also alleged cruelty or harassment by the accused. This lead to the accused

45 N. Narsinga Rao vs State Of Andhra Pradesh, (2001) 1 SCC 691 (India) 46Deekshitha Ganesan, THAYER AND MORGAN V STEPHEN HOW PRESUMPTIONS OPERATE UNDER THE INDIAN EVIDENCE ACT, 1872, Vol. 11 No. 4, NSLR (2019) (India) 47 180th Report, ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND THE RIGHT TO SILENCE, available at: http://lawcommissionofindia.nic.in/reports/180rpt.pdf (last accessed 10th April, 2021) 48 Devinder v. State of Haryana (2010) 10 SCC 763 (India) [48] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 allegedly killing the woman. It might be interesting to not in this context that in India, brides are usually burnt to death by their in-laws. This is because there would be no corpus delicti of the woman left after her death. This could cover up all the cruelty and harassment marks on her body. 49The reason behind the death place to be the house is, so the accused can then claim that it was a gas leak accident in the kitchen. For some reason, the researcher believes that the idea of covering up a cold blooded murder as a kitchen accident has been picked up from the various TV serials that mostly have a plot involving a feud between the daughter-in-law and her in- laws.

49 Keerthan M . Murali & Arya. R, A STUDY ON PRESUMPTION OF DOWRY IN INDIAN EVIDENCE LAW, Vol. 120 No. 5, IJPAM (2018)

[49] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

V. WORD ANALYSIS OF SECTION 113-B :

In the case of Sher Singh @ Partapa vs State Of Haryana50, a woman, not even within a year of her marriage, had died of consumption of poison. In this case the woman had informed her family of the harassment and cruelty being committed on her for the demand of a motorcycle and a refrigerator. She had after about a month consumed poison and died or so is what her husband and in-laws informed her family. Justice Vikramajit Sen and Justice Kurian Joseph while looking into the case, wanted to start with the analysis of “the cauldron of a legislation passed by the Parliament”. The court believed that it was a method tried upon to eradicate the social evil called ‘dowry’. The Court also voiced its dissatisfaction with the non-inclusion of the term “dowry” under S.498-A of IPC even though the reason it was created was to prevent cruelty on the basis of dowry. Even after this, within 3 years, the Parliament had to make more stringent laws to curb the threat of dowry as the resulting consequences seem to be getting out of hand. The Court even criticised S.113-B by calling its existence futile and ignominious as it was preserving “…the withered appendage in the form of the existing S.113, and further perpetuating an anachronism.” These criticisms were mainly due to the Court’s discontent that the Parliament had added provisions to remove this evil under S.113 which was a British law and even now is, in the way it is articulated in the Act talking about the proof of cession of British territory. The court stressed that for the application of S.113-B, the prosecution needs to ‘show’ and not ‘prove’ that the deceased was subjected to some form of harassment or cruelty. The Court also believed that if both ‘proved’ and ‘show’ were to be used synonymously, then the prosecution would have to prove its case beyond even an iota of doubt, which according to them would defeat the purpose of S.113-B & S.304-B. Thus, that way of interpretation is disapproved of and deprecated. The Court stated that, “…keeping in perspective the use of ‘shown’ instead of ‘proved’, the onus would stand satisfied on the anvil of preponderance of evidence.” The terms ‘soon before’ are very broad and can be misconstrued and misused by ill-intended people. Thus a reasonable interpretation of this ambiguous pair of words was given by Justice Arijit Pasayat in the case of Baldev Singh v State of Punjab on 4 August, 200851 in the Apex Court. Herein the court quoted, “The expression `soon before' is very relevant where Section 113-B of the Evidence Act and Section 304- B of IPC are pressed into service...`Soon before' is a relative term, and it would depend upon the circumstances of each case and no ‘strait-jacket formula’ can be laid down as to what would constitute a period of ‘soon before’ the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for - the proof of an offence of dowry death, as well as for raising a presumption under Section 113B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of ‘proximity test’.”

50 Sher Singh @ Partapa vs State Of Haryana, (2015) 3 SCC 724 (India) 51 Baldev Singh v State of Punjab, 1971 Cr LJ 234, 1969 (India) [50] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 52 This was also upheld in the case of Kailash v. State of Madhya Pradesh that the terminology ‘soon before’ should not be taken in its most literal sense but should be interpreted basing of the different facts and circumstances of every case. To draw a presumption in the case of dowry death, material must be shown that the elements of “dowry death” are met.53 The most important requirement for the attraction of presumption under section 113-B & under section 304-B is that the harassment/cruelty needs to be for dowry otherwise, the accused would be acquitted of the charge under section 304-B. 54 In the very recent case ofSandeep Kumar & Ors v. State of Uttarakhand & Ors55, the Supreme sentinel of justice in India, impressed and reiterated the importance of fulfilling if the ingredients of S. 304B of IPC, 1860 in order to attract the preferred presumption under 113B of IEA, 1872. The court emphasised, “The ingredients are well settled…The death must be unnatural…Section 113-B of the Evidence Act, 1872 comes to the rescue of the prosecutor by providing for a presumption that - a person has caused dowry death…”

52Kailash v. State of Madhya Pradesh, (2007) SC AIR 107 (India) 53 G.V. Siddaramesh v. State of Karnataka, (2010) 3 SCC 152 (India) 54 Girish Singh vs State Of Uttarakhand, Criminal Appeal No. 1476 of 2009, Judgment delivered on 23-07-2019 (India) 55Sandeep Kumar & Ors v. State of Uttarakhand & Ors, Criminal Appeal Nos. 1512-1513 of 2017, Judgment delivered on 02-12-20 (India)

[51] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

VI. CONCLUSION :

The Law Commission in its 91st Report on “Dowry Deaths & Law Reform” (1983), stated the need for S.113-B. The need stated in there was to prevent the rise of ‘bride burning’ cases in Indian at that time. Thus, it was deemed next to impossible to fit such a specific offence into an already existing offence as that would do injustice to the gravity of the offence. Let us suppose, the bride killed herself. Now, the death is highly conspicuous, to say the least. The harassment and cruelty inflicted upon her for dowry is apparent. Her husband and in-laws being responsible for her death is also as clear as day. But with the law existing then, the people responsible could only be charged with abetment to suicide under section 306 of IPC. It also becomes difficult to prove if she was murdered when her body has burned to ashes. This then leaves the State in a helpless position. Thus, these sections were introduced as also a preventive measure to put an end to such grossly inhumane incidents.56 The reasons for taking of dowry are mostly economical & social. In fact, there are theories like the “Price model” theory; the “Bequest” theory in which different economists and jurists try to understand the various reasons adopted to the asking of dowry.57 Even in Sher Singh’s58case, the father of the deceased assured her that he would meet all the dowry demands of her matrimonial home once her brothers also get married. This could mean that, he will ask for dowry from his sons’ wives and use that dowry to meet his daughter’s in-laws’ dowry demands. Thus, the vicious cycle of dowry sees no end. Making stringent laws to prohibit dowry did not end this evil. It is not just the illiterate that are involved in cases of 304-B, it is also the high class society.

56 91st Report, DOWRY DEATHS AND LAW REFORM, available at: http://lawcommissionofindia.nic.in/51- 100/report91.pdf (last accessed: 10th April, 2021) 57 Raj Arunachalam & Trevon D. Logan, ON THE HETEROGENEITY OF DOWRY MOTIVES, Working Paper No.12630, NBER 58 Sher Singh @ Partapa vs State Of Haryana, (2015) 3 SCC 724 (India) [52] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 YEARLY ANALYSIS OF NUMBER OF DOWRY DEATHS REPORTED IN INDIA FROM 1998-2018 10000

9000

8000

7000

6000

5000

4000

3000

2000

1000

0 NUMBER OF DOWRY DEATHS REPORTED IN INDIA IN REPORTED DEATHS DOWRY OF NUMBER

YEAR *Source : National Crime Records Bureau  With reference to the above graph, it is evidently visible that institution and incorporation of stringent laws has not lead to any significant decrease in the number of dowry deaths reported in India over the years.

 The number of dowry death cases reported in the end of the 20th century is less when compared to the same in 2018.

 The highest numbers were recorded in the years 2011 & 2014 with the reported cases being 8618 & 8455, and the least being in the year 2003 – 6208 cases reported.

 The number of cases left unreported or deemed as suicides only add fuel to the rage of the Indian citizens when faced with the devil of “dowry death”.

 The reports with regards to the dowry death cases for the years 2019, 2020 seem to be yet to be recorded by the National Crime Records Bureau.

Thus, a change in the mindset of the people and initiative taken on an individual level seem to be the only way forward. The downside of this section is that it is only applicable, if the torture by the husband & his relatives is for dowry and not applicable if it is for any other reason. Though we have come a long way

[53] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 from ‘burning brides’ (which unfortunately, still exists), there is still a lot to be done. The time frame of 7 years is too low which needs to be raised. A clear line of distinction needs to be made between Stridhan & dowry as proposed by the National Commission for Women in its Annual Report of 2008-0959. A major study into dowry related murders after 7 years of marriage needs to be done to propose for an amendment into the provisions. That could act as a deterrent in preventing such heinous crimes against women because this era is not very tolerant towards crimes against women. This prevention under S.113-B is not an empty conclusion made by the Court. The need for this section is based on a lot of study and a lot of research done by highly qualified people on the subject. The importance of this section in proceeding forward with a dowry death case cannot be stressed enough. Thus, the researcher would like to conclude by opining that according to her S.113-B as a pre-emptive conclusion is a very necessary precaution.

59RECOMMENDATIONS AND SUGGESTIONS ON AMENDMENTS TO THE DOWRY PROHIBITION ACT, 1961, available at: http://ncwapps.nic.in/AnnualReports/200809/Eng/Annexure5.pdf (last Accessed: 10th April, 2021) [54] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

TITLE: PRE PACKAGED INSOLVENCY

By :Pothuru Sashank Varma

PRE PACKAGED INSOLVENCY

INTRODUCTION

“A pre-packaged insolvency or simply pre pack is an understanding for the goal of the obligation of an upset organization through an arrangement between made sure about lenders and speculators rather than a public offering measure”60. This arrangement of indebtedness procedures has become an inexorably famous component for bankruptcy goals in the UK and Europe over the previous decade. For India's situation, such a framework would probably necessitate that monetary banks concur on terms with possible financial specialists and look for endorsement of the goal plan from the National Company Law Tribunal (NCLT). This cycle would probably be finished a lot quicker than the customary CIRP which necessitates that the banks of the bothered organization take into account an open sale for qualified speculators to offer for the upset organization. Pre-pack would go about as a significant elective goal

60 Lorraine Conway, ‘Pre-pack Administrations, House of Commons Library, Briefing Paper Number CBP5035’ (2017) House of Commons Library, at https://commonslibrary.parliament.uk/research-briefings/sn05035/

[55] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 instrument to the CIRP and would help bring down the weight on the NCLTs.The cycle should be finished inside 90 days so all partners hold confidence in the framework. “Pre-pack is a semi proper method which coordinates the embodiment of an out of court private rebuilding and that of a conventional liquidation. It is a pre-arranged indebtedness methodology where a goal plan is defined and finished preceding the inception of formal procedures”61.

In India, pre-packs could change the way where bankruptcy goals are attempted. The Indian economy is wrestling with non-performing resources (NPA) that banks and monetary organizations are abandoning with subsequent loans to huge corporates who, because of different reasons, have not had the option to support these advances. It takes a normal of 4.3 years for a loan boss to recuperate its obligation in India according to the World Bank's Doing Business Report 2019 and India has been positioned 108 among 190 nations as far as the goal of bankruptcy62. In an offer to tidy up the accounting report of the banks, the Reserve Bank of India (RBI) likewise recognized certain huge corporations which have added to the greater part NPAs in top notch shipped off all banks having introduction to the named corporates. The banks were additionally commanded by the RBI to initiate Corporate Insolvency Resolution Process (CIRP) under The Insolvency and Bankruptcy Code, 2016 (IBC) and the principles and guidelines thereunder against the named corporates, on their inability to meet certain set targets.

The term 'Restructuring' is utilized regularly with regards to bankruptcy goals. The terms 'corporate rebuilding' and 'obligation rebuilding' have various implications. According to Black's Law Dictionary, 'corporate restructuring' for the most part implies: 'A central and now and then extraordinary change that will modify the connections inside an organization or with different organizations', while 'obligation rebuilding' alludes to, 'An understanding among leaders and the organizations to redesign liabilities to make it more plausible. It is done to maintain a strategic distance from abandonment or liquidations. It can include absolution, rescheduling, and change into value'. There are different contemplations while breaking down the expansive effect of undertaking 'rebuilding' of a disturbed organization.63 In the above setting, a pre-pack is a method of rebuilding which may include any component or mix of the rebuilding techniques set out above, to be embraced in regard to the borrower organization. A pre-pack, in any case, is recognized from different methods of corporate salvage by the way in which the borrower organization is tried to be convoluted and the timetables which are continued corresponding to the cycle. In a pre-pack, a generous part of the rebuilding of the issues of the organization happen preceding the borrower organization petitioning for bankruptcy.64

INITIATION OF PRE PACKS

The embodiment of a pre-pack is that the terms of rebuilding are detailed preceding the

61 Black’s Law Dictionary, Free Online Legal Dictionary 2nd Ed., The Law Dictionary, at https://thelawdictionary.org/prepackaged-bankruptcy/

62 Pallavi Chavan and Leonardo Gambacorta, ‘Bank Lending and Loan Quality: The Case of India WPS (DEPR): 09 / 2016 RBI Working Paper Series’ (2016) Reserve Bank of India, at https://m.rbi.org.in/Scripts/PublicationsView.aspx?id=17400

63 Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed., The Law Dictionary, at https://thelawdictionary.org/restructuring/

64 Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed., The Law Dictionary, at https://thelawdictionary.org/debt-restructuring/

[56] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 beginning of bankruptcy. At the point when a prepack is attempted preceding the event of an occasion of default with a bank, it is the borrower organization which would be in a situation to propose the initiation of a pre-pack. In any case, in a circumstance where the organization has defaulted or has set off a 'expected occasion of default' proviso in its credit records or in any event, when a bank gets mindful of the pain in the account holder organization, he may try to have the obligation of the borrower organization rebuilt as a pre-pack. Regardless of whether the cycle is account holder driven or lender driven is a significant factor while examining a pre-pack. On the occasion the account holder organization tries to start the pre-pack, it would need to guarantee that the essential investors' goals and board goals have been passed. For a bank to start a pre-pack, the essential factor is the entomb se comprehension of the relative multitude of leaders of the indebted person organization. The UK and US indebtedness laws mull over any partner of a corporate account holder starting a pre-pack corresponding to the borrower organization.65

A pre-pack basically includes rebuilding of the obligation of the organization. The method of rebuilding that is embraced according to a pre-pack versus the account holder organization, would rely entomb alia upon the idea of movement or business that is essentially attempted by such indebted person organization, the quantum and nature of obligation that is caused and remaining alive, and the phase of pain that the borrower organization is confronting, in this way requiring rebuilding. This could likewise incorporate corporate rebuilding being considered as a piece of such rebuilding works out. When the method of rebuilding and the conditions of the equivalent host have been concluded between the gatherings, the pre-pack is executed speedily as the organization documents for bankruptcy. Curiously, under certain European laws, a pre-pack is effectuated around the same time as the arrangement of the Insolvency Professional (IP) itself, ie, a prompt handover of the business to the approaching buyer.66 While 'pre-pack' as an idea under UK laws has been utilized all the more regularly with regards to offer of considerable business or resources of the indebted person organization to another substance preceding the borrower organization officially petitioning for indebtedness, the use of a pre-pack chapter 11 under the US laws has a lot more extensive undertone and involves plan of the terms of liquidation of the organization before the organization seeking financial protection. In the two situations, ie, in the UK and in the US, when an account holder organization records for bankruptcy, the chairman or the court-designated goal proficient effectuates the pre-pack right away. In the UK, when the conditions of a pre-pack are defined, the borrower organization is ordinarily put under organization by moving toward the court and a manager is selected according to the administration of the matter of the indebted person organization, despite the fact that the authorization of a court isn't needed to start a pre-pack.67

NEED FOR PRE PACKAGED INSOLVENCY The Corporate Insolvency Resolution Process thought about under the Insolvency and Bankruptcy Code, 2016 includes support of the legal executive to a colossal degree; most likely that it extends the time taken all the while, however the association of Adjudicating Authority guarantees that the goal becomes enforceable once it gets affirmed. Along these lines, right now in our nation's situation, it doesn't avoid any degree for any with regards to court settlement of liquidation. The most compelling motivation behind it is that the new system in our nation to manage indebtedness and chapter 11 is as yet in its incipient stage and the market has not

65 PricewaterhouseCoopers, ‘Insolvency in brief: A guide to insolvency terminology and procedure’ (2009) PricewaterhouseCoopers 66 Law 360, ‘The ProsAnd Cons Of Prepackaged Bankruptcy’(2013) Simpson Thacher & Bartlett LLP, 67 Investopedia, ‘Prepackaged Bankruptcy’ (2017) Investopedia, at https://www.investopedia.com/terms/p/prepackagedbankruptcy.asp . [57] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 developed enough for a casual insolvency goal. In nations like the USA and in the UK, the pre pack indebtedness goal is by and by throughout recent decades. Under Chapter 11 of the United States Bankruptcy Code, an organization in monetary pain agrees on the footing of a Chapter 11 arrangement with its key leaders and requests acknowledgments for a goal plan preceding declaring financial insolvency security and asks the liquidation court to affirm the arrangement and support the connected exposure proclamation and sales methodology on an assisted premise. A pre bundled indebtedness case isn't accessible to each monetary troubled organization, it is accessible for just those situations where the borrower's monetary misery essentially is brought about by over the top obligation levels and the organization isn't needing far reaching rebuilding of its business tasks. According to UK laws, A pre-pack is a game plan whereby the offer of all or part of an organization's business or potentially resources is arranged and concurred, before a bankruptcy expert (IP) is designated with the significant documentation being marked and executed, promptly or not long after the arrangement is made. One of the significant favorable circumstances of pre-pack organization is the speed of offer of the organization, coming about into better yields for banks when contrasted and elective courses into indebtedness alongside straightforwardness, business congruity, diminished expense of organization, and so on Investigating the act of pre-bundled bankruptcy goal measure and the positive result of it in created countries, it tends to be received in the Indian setting too.

BENEFITS OF PRE PACKS

Moneylenders add prohibitive contracts to advance arrangements that forestall an indebted person organization from estranging its resources (which are made sure about) or discarding all or a greater part of its business without loan boss endorsement. In this manner, the indebted person organization alongside the IP will undoubtedly guarantee that every one of banks' inclinations are considered to affect a significant pre-pack68. A pre-pack which doesn't consider the interests of a specific lender will eventually prompt a loan boss autonomously starting recuperation activities against the corporate borrower, accordingly delivering the whole exercise of a pre-pack worthless. To thusly empower indebted person organizations to attempt pre-packs, the first inquiry presented to heads and administrators is: Will the Indian circumstance industrially advantage from pre-packs? There might be disparate perspectives on this. While contending against the approach of prepacks, it very well might be said that a pre-pack isn't needed right now, given that the IBC accommodates a genuinely comprehensive system to distinguish and resolve bankruptcy. It might likewise be expressed that a pre-pack may truth be told not be attractive since it might allow the borrower organization to strip its business and resources which, in all decency, should be made accessible for lender activity and managed officially according to the predominant bankruptcy rules that everyone must follow. It is basic, along these lines, to assess the two advantages and disservices of a pre-pack. Pre-packs are embraced ordinarily in view of the accompanying preferences:

1. A pre-pack provides the debtor company with a way to realise its assets and repay its outstanding dues. 2. In the event a change in management of the debtor company is contemplated as a part of a pre-pack, the assets of the company are put to good use, albeit under a new management.

68 Benefits of Pre Packs at https://www.hjsrecovery.co.uk/the-5-biggest-benefits-of-pre-pack-administration/

[58] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 3. A pre-pack reduces the strenuous and cumbersome exercise, which all involved parties are put through, during conventional restructuring or even liquidation of a company. 4. The insolvency process is a costly procedure and the costs of the same are borne by the estate of the debtor company. It is from the assets of the debtor company that the insolvency costs are discharged. Valuation of assets and costs and fees of professionals and resolution professional costs sometimes tax an already burdened company to a great extent. A pre-pack is a promising way of achieving a smooth transition of the assets of the company in a cost-effective manner. 5. Creditors have better prospects of expecting greater returns since the debtor company’s tradeable value is not eroded by virtue of the insolvency proceedings as the assets are valued and sold at a price determined prior to the initiation of insolvency. 6. Given the distressed status of the company, a pre-pack is characterised by the speedy procedure followed for concluding the terms of the proposed sale, which helps in addressing the stress in the company and effectuating company rescue before the value of the assets of the debtor degenerates or before creditors stake claim to it.69

DISADVANTAGES OF PRE PACK

Given the intrinsic idea of pre-packs, it has confronted solid resistance from specific quarters which have referred to the way where prepacks are closed. In the Indian situation, it might likewise be contended that the interests of the unstable loan bosses are normally not considered because of their low need in the liquidation cascade system set out under the indebtedness laws, and in the event of pre-packs, such class of banks has no occasion to protest the exchange. Sufficient cures and a plan of action corresponding to pre-packs to check the wide and uncontrolled utilization of pre-packs by indebted person organizations, as a method for keeping away from the bankruptcy cycle, would be considered thereunder70. There exist a few perspectives that pre-pack plans might be gone into without thinking about the interests, everything being equal. It is questionable that where the indebtedness of an organization has been brought upon the organization by its own administration (because of operational fumble of the current advertisers or the executives), allowing them to control the distance of the resources de hors the legal bankruptcy system is exceptionally biased to the premium of the multitude of partners. At last, it should be featured that any move which is made by the chairman should be with a view to: (I) guaranteeing that the organization capacities as a going concern and (ii) amplify estimation of the resources of the indebted person organization to guarantee that the contribution of the leaders don't get influenced.71

What is the pre-pack insolvency resolution process for MSMEs? On 4 April 2021, President of India Ramnath Kovind declared the IBC Amendment Ordinance 2021, permitting the utilization of pre-pack indebtedness goal measure for Micro, Small and

69 Advantages of Pre Packs at https://www.begbies-traynorgroup.com/articles/rescue-options/what-are-the- advantages-and-disadvantages-of-a-pre-pack-administration

70 Disadvatages of Pre Packs https://www.begbies-traynorgroup.com/articles/rescue-options/what-are-the- advantages-and-disadvantages-of-a-pre-pack-administration

71 Pre Packs and Disadvantages https://companydebtadvice.co.uk/pre-pack-liquidation/pre-pack-liquidation-advantages-and-disadvantages/

[59] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Medium Enterprises (MSMEs) with defaults up to Rs. 1 crore. The primary point behind the presentation of the pre-pack was to give another indebtedness goal cycle to the bankrupt MSMEs. According to the Chairman of Insolvency and Bankruptcy Board of India (IBBI) M.S. Sahoo, "It is casual to a certain degree and formal from that point. It mixes debt holder under lock and key with bank in-charge. It is neither a completely private nor a completely open cycle - it permits the organization, if qualified under area 29A (which excludes wilful defaulters), to present the base goal plan which is presented to swiss test for esteem expansion."

According to the Ministry of Corporate Affairs, "It gives a productive elective bankruptcy goal system for corporate people delegated MSMEs for convenient, proficient and savvy goal of misery subsequently guaranteeing positive sign to the obligation market, work protection, simplicity of working together and conservation of big business capital." Prior, in the wake of the COVID-19 pandemic, the public authority suspended the indebtedness for a year and expanded the base default limit for bankruptcy procedures from Rs. 1 lakh and Rs. 1 crore.

What are the provisions in the ordinance to protect the creditors?

The pre-pack component presented by the Central Government takes into account a swiss test for a given goal plan that makes reference to not exactly full recuperation of levy for lenders. Additionally, if the lenders are not happy with the goal plans set forth by the advertiser, they can look for goal plans from an outsider. Under this system, any outsider would have the option to present a goal plan for a bothered organization and the first candidate can either go ahead with the improved goal design or forego the speculation.

Why most MSMEs are not eligible for the pre-pack insolvency resolution process?

Most MSMEs won't be qualified for the pre-pack bankruptcy measure presented by the Central Government under the IBC. This is on the grounds that a corporate account holder should be enlisted as a miniature, little or medium endeavor under sub-segment (1) of segment 7 of the Micro, Small and Medium Enterprises Development Act of 2006 to be qualified for the pre-pack measure as referenced in the Chapter III-An of the law. According to the NSS 73rd Round Survey (2015-16) on MSMEs, 6.3 crore MSMEs exist in India. The MSME enlistment entrance, Udyam Registration specifies that lone 26.42 MSMEs have been enrolled to date. Mulling over these figures, the unregistered MSMEs surpasses the enrolled MSMEs and couldn't profit under the pre-pack bankruptcy measure. Another limitation in pre-pack bankruptcy is that it is simply confined to the organizations and Limited Liability Partnerships (LLPs). The sole ownership, organizations and Hindu Undivided Family (HUF) types of MSMEs are out of the ambit of the previously mentioned measure, further limiting the qualified MSMEs for pre-pack.

CONCLUSION

Considering the analysis undertaken in this article, corporate salvage and explicitly pre-packs would demonstrate helpful since liquidation of borrowers appears to be a long way from a reasonable answer for fixing the longstanding discomfort of NPAs in India. Corporate salvage, consequently, is viewed by numerous individuals if all else fails before recuperation procedures are started. In such cases, the alternative might be considered by banks of even large borrowers as a way to leave its presentation to turnaround substances (be it by stripping the obligation or

[60] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 change of the board of the indebted person organization) who really have the data transmission to subsidize organizations with extraordinary capital necessities in specific areas. In the current circumstance of NPAs with which the monetary area is abandoned, pre-packs may end up being a valuable apparatus to help the IBC cycle. Such pre-pack exchanges notwithstanding, would need to be carefully inside the four corners of an explicitly detailed system, be checked completely and affirmed by particular adjudicatory bodies which might be set up under the aegis of the NCLT, which could significantly chop down the necessity of NCLT support too. Truth be told, the Chairman, Insolvency and Bankruptcy Board of India and the NCLT President have communicated certainty that indebtedness cycles would before long develop and India may see the presentation of pre-packs.

[61] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

The Role of a Defense Counsel in Criminal Proceeding Joyita Ghosh BBA LLB 2nd Year KIIT School of Law, KIIT University Abstract In the past few decade, the role of a defense attorney has drastically changed and that had not only made this job quite respectable but also made it more dramatic change in their professional image. The top law graduates from top law colleges used to flock to the giant corporate firms, now seen frequently applying for a position in public defender’s office or practice independently. Once a very dormant and neglected area of profession has now gained popularity and thus strengthening the position of the defense attorney in the meanwhile. This article focuses on the changing image of the criminal lawyer and introducing how they are involved in the whole process of the trial proceeding – both before and after. It also sheds lights how the defense lawyer acts to help his client whether guilty or not and while maintain their role and responsibility doesn’t lose his integrity, ethics and moral values in the process. Keyword Defense attorney, Crimes, Prosecution, Defendant, Justice Introduction Crimes are referred to as an act or omission which causes harm to certain individuals. Thus crimes are mentioned as offence against the state. Thus rise in criminal law whose basic principle is to preserve and defend the rule of law, its maintenance within the society and speedy trial along with the punishment of the offenders or rehabilitation through the judicial system. Although it promises equal justice to all but the current criminal justice system is filled with various loopholes and faults and the path for legal justice is time- taking. The nature of the criminal justice system is general geared towards mind of the accused, i.e. A system that is involved with the rights and interests of the offenders instead of those of the victims- An accusatory system rather than inquisitory. The criminal justice system has far been divided into three parts namely- Judge, Prosecutor and the defence counsel. Each one of them has a specific role. The judges give the imperial ruling after hearing from both sides. The prosecutor has a burden to prove the accused is the guilty [62] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 person. The defence counsel on the other hand has no burden to prove. It’s always believed that the accused is not guilty until proven. A defence counsel is a lawyer who is representative of the defendant in a criminal trial. In the last few years, there has been a vivid alteration in the community and expert appearance of the defence counsels in criminal justice. Previously, the defence lawyer was stigmatized and isolated for the real world and public opinion recognized the criminal defence lawyer with the defendant he signified. The storybook or T.V. defence lawyers only represented not guilty people; this could be acknowledged in the honourable custom of the winner of the rightful cause. But there was slight misinterpretation of how a lawyer could represent a guilty criminal without having gone over to the underworld himself. During a period of purportedly increasing crime percentages and residents' fear of brutal violations in the roads, attorneys who filled in as the implementers of improved criminal litigants' privileges couldn't conventionally hope to get a superior picture freely or even expertly, since the greater part of their associates at the bar had no contact with the criminal law and responded to wrongdoing and the criminal interaction with the feelings of laymen. Whenever it was perceived that individuals normally captured for the wrongdoing were the mistreated and disengaged of the cursed ghettos, who had been denied equivalent freedom for schooling, lodging, business, and so on, the protection of their motivation turned into a respectable endeavour deserving of the endeavours of a noteworthy legal advisor. Criminal Defence lawyer A criminal defence counsel is hired for representing both the corporations and individuals in legal settings where they had been under arrest as a suspect for unlawful activities. Criminal lawyers have a piece of deep awareness about the law and working of the court and they can also be appointed by a Court if the defendant cannot afford to pay for one of his own. He works along with the defendant to create the best possible deals for the defendant and in the process tries to minimize the consequences of the offence he might have been involved in. it becomes his job to prove that the client is innocent. He lays out the best options for his clients and tries to help them keep out of jail or from future troubles- mostly in juvenile or family court cases. It depends on the ability of the lawyer to encounter the state and thus putting it to its burden of proof, which would involve the prosecution to inspect the procedure and proof to regulate whether it has a proper case that it can establish according to the law. And this test by the defendant can only be made with the help of a lawyer representing him. And regardless the aid of the defence lawyer, the defendant is basically defenceless to challenge the prosecution, since a good defence lawyer identifies the ins and outs of the court circuit. They would be using tactics that would eventually lead to a reduced sentence or a mistrial or getting a case thrown out. The

[63] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 influence they are known by is the control to resolve cases outside the courtroom. There are many types of criminal lawyers- some work on low-profile cases in cities and towns whereas some take u high profile ones which are federal court cases. There are also international criminal defence lawyers accountable for working on immigration cases or internet-based crimes. Provisions of CRPC Code of Criminal Procedure is the main regulation for the management of substantive criminal law in India which was enacted in 1973 and came into force on 1 April 1974. This system had been adopted by the states of India and has been using the resources of investigation to employ a capable Prosecutor to put on trial the accused, which will prove to be a competent opponent to a defence counsel to test in the trial. As mentioned in the Constitution of India and the Code, under Article 2272 and Section 30373 of CrPC, the defendant is entitled to have a lawyer of his choice and to consult with him regarding his case. Even, when the defendant is unable to provide for a defence counsel of his own, it becomes a duty of the court to provide a lawyer at the state’s expenses before the proceeding of the accused under Section 30474 of CrPC. There’s nothing original regarding the information that the criminal justice system will be dealing with rich as well as the poor and it has been dealing primarily with the poor and the disadvantageous people for a long time. The court knows that there is a high possibility that a poor man could be constitutionally tried and sentenced to grave felony in a state and a cases presented in absence of a defence lawyer would not only be a violation of fundamental right but also this might hurt his case and man has a privilege to have a fair trial. A person suspected of grave charges must not be deprived of of this valuable right. Since it is quite evident that without a defence counsel appointed and present at the time of preliminary hearing where critical issues were involved, and without the right guidance the person might not be able to challenge the prosecution or get himself best deal from the incident. Article 39A helps the defendant to receive free legal aid and according to directive principles, this Is the main duty of the state to provide the legal ad. The case of Sukh dev v state of Arunachal Pradesh75 believed that the conviction of the accused in a trial in which he was not provided with any defence lawyer would be set aside as

72Article 22 Constitution of India: Protection against arrest and detention in certain cases, , LATEST LAWS 22, https://www.latestlaws.com/bare-acts/central-acts-rules/coi-article-22-protection-against-arrest-and-detention-in- certain-cases/ (last visited Apr 14, 2021). 73CrPC Section 303. Right of person against whom proceedings are instituted to be defended, , LATEST LAWS 303, https://www.latestlaws.com/bare-acts/central-acts-rules/crpc-section-303-right-of-person-against-whom- proceedings-are-instituted-to-be-defended/ (last visited Apr 14, 2021). 74CrPC Section 304. Legal aid to accused at State expense in certain cases, 304, https://www.latestlaws.com/bare- acts/central-acts-rules/crpc-section-304-legal-aid-to-accused-at-state-expense-in-certain-cases/ (last visited Apr 14, 2021). 75Suk Das & Anr vs Union Territory Of Arunachal ... on 10 March, 1986, , https://indiankanoon.org/doc/765136/ (last visited Apr 15, 2021). [64] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 76 it is thought to be violating Article 21 of the Indian Constitution. Role and responsibility of Defense Lawyer Criminal Defense lawyers are the individuals who defend the people who have been accused of a crime or an offence like rape, murder, theft, domestic violence and other such types. They help in research, analyse the case and present their findings in the court before the judge against the prosecutor and they put a lot of effort to gain the defendant's freedom and prove his innocence and negotiate plea deals or settlements. Their responsibility ranges from investigating the whole case, collecting evidence, negotiating plea deals, managing bail, handling media responsiveness through a press release or conferences. They also get the client acquitted or gets the charges dropped. It is one of the duty, while in a trial, to create rational distrust in the minds of the jurors by introducing exculpatory evidence or discrediting the witness or by bringing new witness testimony which might change the whole case. They are only acceptable only if they are gathered legally and ethically. For doing these, he needs to be quite skilled in criminal pleadings, quick to think, effective and efficient in drafting motions, scrutinising the shreds of evidence, interviewing clients. Assignment of case A defence lawyer either gets clients who directly contact them or gets contacted by the court. Some are public defenders and some are appointed hired by private firms and some do autonomous legal office that they run themselves. Public defenders incline to get remunerated less income than any independent or private lawyers and also there is incline to be a greater caseload due to the recommendation process and the pay coming from persons other than respondents. In rare cases, the court of law might assign private lawyers to a specific case.

Interviewing the case

 The attorney-client’s conversations are always confidential and with that, the client can confess to his attorney which might help his case, the defence lawyer, in turn, would ask specific questions which would help him to understand the strengths and weakness of the cases and with this, he can help the client to prepare for the trial.  The defence attorney can inform the respondent regarding his privileges at the beginning (like the option to stay quiet) so the respondent knows about them and can profit by them.

76Article 21 in The Constitution Of India 1949, 21, https://indiankanoon.org/doc/1199182/ (last visited Apr 15, 2021). [65] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021  The defence attorney can look for the release of the respondent through bail, permitting the respondent to all the more likely aid the planning of a protection.  Defence attorney can discuss with the prosecuting attorney to have custodies to be decreased or even dropped.  Besides, defence attorney can guide the respondent on various procedures and contentions that can be utilized for the situation just as the advantages and disadvantages for everyone.  The defence attorney, with their graduate law school instructions, related knowledge and procedural strides in a criminal case can undoubtedly think about the lawful meanings of the particular violations and the components which will be set up by the examiner to developed the evidence against his client and this information assists him with countering attack or get ready contentions for his litigant and forestall the hard impact the customer would have confronted.  The defence attorney needs to become familiar with the most noticeably awful, he needs to face to make sound lawful and vital decisions concerning the lead of the case.

Investigating into the case He would not only ask specific questions he would further investigate on his own to govern any likely opportunities of acquitting the defendant. These all would help him to make a strong defence for the case.

 It would also include questioning the police, possible witnesses, preparing alibis and also collecting information from the witnesses. With all these, they try to build up the case and a strong defence. They also have a right to review the prosecution’s case before its submitted and this would allow him to find the loopholes and find more information on how he should turn the case into his client's favour. They may also try to use the evidence for re-examination from an autonomous lab or talk to experts to test evidence in the case to gain more insight.  The defence lawyer can give exhortation on what request to enter, regardless of whether to acknowledge a supplication arrangement, whether to postpone a jury preliminary, and whether the respondent ought to affirm for his sake.  He should also include obtaining evidence of the circumstances surrounding the arrest and confession of the defendant and it will become his obligation to make the essential motions to overturn the evidence.

Analysis of the evidence

[66] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021  The defence lawyer would analyse the evidence which had been collected and with which has been charged against the defendant. He would try to study the facts and theories of the case and sometimes might send them to an independent lab for re-examination. He would get it examined to determine if any legal theories would work against the conviction of his or her client.  The defence lawyer can decide which eyewitnesses to call and how they should be inspected.

 The defence lawyer works with the respondent and different observers to comprehend the respondent's adaptation of occasions and to decide a proper guard (e.g., alibi, self- defence, misidentification).

Continuous contact with the client. The lawyer has to keep in touch with the defendant and direct him on how he should represent himself and also discuss the developments in the case and always keep him informed. He should keep these conversations between them confidential and should convey any message he receives from the other side. He should explain the details so that the client can understand the consequences. The defence lawyer shows up for his clients in the court. Not just this, he informs the clients in regards to what has occurred in every one of those court appearances and that too consistently. He makes his clients cognizant of the potential consequences of their wrongdoings. In addition, He additionally clarifies his techniques and arrangements to assist them with getting a reasonable conviction. Trial Participation • A criminal defence attorney battles for their clients during the preliminary. The person analyses observers, interviews the state's observers and attempts to persuade the jury that the indictment has neglected to meet its burden of proof. • The defence attorney presents all proof to counter the examiner's contentions and difficulties all sketchy declarations of realities by the investigator to guarantee that the high weight of verification is met. • The defence attorney challenges procedural mistakes and may look to have charges excused as a result of problematic proof or declaration. • The defence attorney informs the respondents regarding his privileges and protects those rights to guarantee they have not been abused. Sentencing In the event that the criminal defendant is condemned for the wrongdoing either on the grounds

[67] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 that the individual acknowledged a supplication deal or was indicted by the adjudicator or jury, a defence attorney can address the respondent during this stage. The individual in question may talk about factors that can help persuade the appointed authority or jury to restrict the measure of time that the respondent serves and to examine potential options in contrast to detainment. Too often the defence attorney bows out at this stage and leave their client's destiny to the resources of the court, which are generally the probation division. Discussion, Justification and Critical Appraisal Individuals would pose a question like "why a defence lawyer defend a rapist or a killer?" To answer ideally, he is bound to defend clients regardless of whether he realizes that the individual whom he is addressing may be blameworthy and solitary explanation is that - under the System, everybody is assumed to be honest until proven guilty and that he should address the individual morally and give assistance to the criminal to their just punishment for his wrongdoing. In cases accordingly, the criminal at times gets away and the attorney turns into an assistant in the criminal's departure. The criminal justice system works in a serious bigoted way and the provisos utilized by the attorneys help them escape. In some cases, the laws and the conditions for detainment can be very unforgiving, and along these lines, a defence attorney can help to forestall the detainment of poor people and the minorities to either get a diminished sentence or keep them from proceeding with it. It not only applies just to poor people, however they additionally apply to middle-class violations, racial-greater part respondents and those whose disciplines are not unreasonably cruel. At times, the prosecutor gives a few extra charges and picks an extreme-most among the few prospects and press the hardest for the cruel punishment that the respondent might not need to go through for the wrongdoing they are being blamed for. Here is one of the crucial jobs is played by the defence attorney and his abilities are tried, where they arrange, give contentions and advocating the litigant as energetically honest. Lawyers don’t always represent the poor innocent; they sometimes represent the right guilty. The legal advisors relish a couple of events in their professions when they address honest respondent, and subsequently, this numbers of blameless individuals are the explanation which drives us to recollect that the fundamental motivation behind the protected shields and the weight on the public authority to demonstrate blame past a sensible uncertainty is to forestall the conviction of the honest. In any case, truth be told, a great many people captured and accused of violations are blameworthy and that the safeguard legal advisors are essentially associated with addressing liable, not honest respondents. Under the game theory, the defence lawyer is at the losing ends and it is obvious that if the defence lawyer is winning every case there has to be somewhat incorrect with our law

[68] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 enforcement agency and prosecutorial system. But that doesn’t mean that the defence lawyers gets defeated in their case every time professionally, and if they can provide the best plea deal possible, and accomplish a favourable judgement or reduce a sentence this can be considered as a success in their professional service to their client. It all comes under the fact that the lawyers must know the limits and has the accountability to regulate moral and professional strategic decisions on the case. The defence lawyer must never permit himself to follow up on the myth that he is the alter ego of the respondent. Directing his lead all through the case should be his reasonable understanding that he is the expert agent of the charged and not his courier kid, or in the vernacular, his "mouthpiece." No expert duty of the defence attorney to his client expects him to take part in the criminal lead like subornation of perjury. The obligation of safeguarding the client's confidences essentially precludes the legal advisor from uncovering implicating realities given to him by his client; it doesn't change him into a backstabber with his client to execute fraud on the court through the presentation of lied declaration. Conclusion Hence, it turns out to be certain that the criminal lawyer assumes a significant part in shielding his customers accused of any of the criminal offences. Numerous attorneys have been helping customers in such a manner. One can allude to web sites for discovering a solid criminal lawyer for a legitimized safeguard in the courtroom. A portion of the criminal attorneys keeps up their committed sites to help customers in such a manner. One can go through every one of these locales to shape a steady choice in regards to the determination of the criminal lawyer. Regardless, the various networks will pick distinctive protection administrations, and it is very fascinating that more attorneys are presently addressing and later on will address litigants in criminal cases than at any earlier time. In this manner, there is an implantation of legitimate labor in the criminal justice system on the safeguard side. It is very critical that the defence attorneys can play out their administrations for the benefit of the criminal respondents as an expert legal advisor without experiencing the shame that once joined the training and that they are getting general help from the court, judges yet additionally from the local area for giving expanded protection administrations and going through the cash to help them. This changed picture has brought about the piece of the acknowledgement of the defence attorneys and their job in the Criminal Justice system.

[69] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

Smart Contracts - Can Code be law?

INTRODUCTION By: Pragati Gilda

“The term smart contract was originally coined by cryptographer, Nick Szabo in the early 1990. He aptly noted that computers make it possible to run algorithms. First, the contract terms are translated into code - a series of if-then transactions77. Once a condition is met the smart contract will take the next step necessary to execute the contract. Thus, the term smart contracts refer to computer transaction protocols that execute the term of a contract automatically based on a set of conditions. Although, the concept of smart contract existed for a long time, a real-world application has only recently been made possible due to developments in blockchain technology.Historically we have relied on established institutions such as banks and governments to authenticate transactions- to verify that the people with whom we are transacting are really who they claim to be. These institutions act as middle men to build trust between the two parties that are transacting with each other. However, at times, they have become victim of foul play by external or internal actors.In contrast to a centralized system where only certain people can view and modify transactions blockchain was originally developed as a decentralized Ledger open to the public. One of the leading platforms for smart contracts is “Ethereum” which was specifically designed to be a smart contract platform Figured it is also capable of carrying data and form of arguments which means that the platform can be programmed to take a specific action once certain conditions are met test contracts can be programmed to be self-executing because platform can

77Tsui, S.Ng., “Blockchain and Beyond: Smart Contracts”, (Business Law Today, 2017). [70] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 78 send money once the specified conditions are satisfied . Many boldly proclaim that blockchain will replace the functions of lawyers. However, the reality is these technologies have a lot of promise, but have yet to be fully realized by the legal world. In this research paper, the researcher would explore what smart contract may mean for the law and how might a smart contract work in the real world”. Smart contracts are models of legal efficiency reducing the need for a complex system to enforce transactions because the contracts themselves a self-enforcing.Cross border transactions can occur with less risk that either party will need not go to court enforced performance since there is more certainty that the counterparty will fulfill its obligation under the contract. Intermediaries would become obsolete. If developed and implemented properly smart contracts promise simplified and streamlined transactions by eliminating inefficiencies and uncertainty introduced by regulators, parties with divergent interests and could represent a new frontier of transactions. Every smart contract user accesses this same smart contract using the same set of code this means that blockchain is effectively tamper proof which gives smart contract user certainty that deal will not be changed unilaterally and alerts the transaction to be self-enforcing.

ANALYSIS 1. What is a Blockchain?

“In 2008, a pseudonyms individual under the name Satoshi Nakamoto proposed to create a digital currency called Bitcoin. It started with the idea of a peer transaction without a trustworthy middle ground. It started with a peer-to-peer transaction outside of a reliable central location. Using advances in technology, promotional markets and cryptography, he has developed a system in which any participant can do the job, ensuring the status of the anonymous transaction. Nakamoto designed a system in which voluntary node broadcasts, ensures transactions and achieves consensus on transaction history without the need for any trusted party79. The theoretical system and application in 2009 led to the development of Bitcoin cryptocurrency and its record keeping technology which is Blockchain. Blockchain is exactly what the name implies. It is the online value that enables data blocks to be created and categorized. In other words, a blockchain is a data structure for how information is compiled and stored. Blockchain is

78 I-H Hsiao, “Smart Contract on the Blockchain-Paradigm Shift for Contract Law”, (14 US-China Law Review 685, 687, 2017). 79 Nakamoto, Satoshi., “Bitcoin: A Peer-to-Peer Electronic Cash System,”, (2008).. [71] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 a new way of growing; its decentralized ledger functionality and security agents prompted it to urge various organizations to put in place resources to investigate its unimaginable business applications. A blockchain is an independent database chain, where each chain contains a variety of transactions. The collection of information into chains is known as "digital ledger". Simply put, a blockchain is just a book. Historically, the ledgers were moderate and hand-held by one team. What is new about blockchain is that it does not have a single centralized database and is a distributed database of all transactions made and maintained by interested parties80.

2. What is a Smart Contract?

“A smart contract is an independent software that can make financial decisions. In simple terms, a smart contract is a written agreement that is translated into code and constructs as complex statements then. Smart contracts can also do this on their own by extracting data. Smart contracts are about changing the way we do business. The blockchain acts as a link and enforcer. Smart contracts are a big deal because when machines start making contracts, it becomes difficult or impossible to postpone81. All smart contracts guarantee an external data supply to prove performance and deliver payment to the right team. Legal contracts in our society depend on people to interpret what the parties to the contract mean. Computers (at least until now) can only understand code, not the purpose of groups. Nick Szabo describes the smart contract as a set of promises, specified in a digital form, including protocols within which the parties perform on those promises82. In other words, the smart contract is a legal contract that is represented and executed, at least in part, by automated software83. “A smart contract, however, is not exactly very “smart”. A smart contract does not modify its behavior to match what is appropriate for the circumstances, understand concepts commonly found in traditional contracts such a materiality or knowledge, adopt to changing environments, or learn from experience84”. Today, examples of such protocols are everywhere, subscriptions to stream services, such as Netflix, agreement to deliver goods through Amazon, etc. All of the e-commerce industry today

80 Iyer, Krishna V., “Blockchain, Bitcoin and Cryptocurrency Explained”, (2018). 81 Boronkay, Miklos and Exenberger, Philip., “Blockchain, Smart Contracts and Arbitration Overrated Hype or Chance for the Arbitration Community?”. 82 Szabo, Nick., “Formalizing and Securing Relationships on Public Networks”, (First Monday, 1997) . 83 Mateja Durovic and Andre Janssen, “The Formation of Smart Contracts and Beyond: Shaking the Fundamentals of Contract Law?”, (Research Gate, 2018). 84 Kolber, Adam J., “Not-So-Smart Blockchain Contracts and Artifical Responsibility”, (21 Stan. Tech. L. Rev. 198. 2018). [72] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 would fall within the traditional notion of Smart Contracts. However, the reference to Smart Contracts here means the use of computer code, with ‘if-then’ scenarios that require no human intervention. For instance, if goods are not delivered by a scheduled date, a penalty of 10% of the contract price shall automatically be debited from the account of the seller and paid to the buyer”.

3. How does Smart Contracts work?

How will a computer code receive the input that goods have not been delivered, since the real world exists outside the computer code? This input can be given to the computer code in two ways, a) through an Oracle, i.e., a website which will contain that input, like the tracking of a courier, or consignment bill. b) through the use of Blockchain which will automatically upload the ledgers as soon as delivery is made. It is pertinent to point out that Smart Contracts can work without Blockchain85.

“Oracle is an interesting concept, dealing with smart contracts. It is an off-chain data source that can be used by a smart contractor to change its performance. Smart oracle contains real-world representations of information, such as ownership, address, or certificate, as well as assets that guide a smart contractor to behave in a certain way”. They work together harmoniously because one of them is on the blockchain (smart contracts), and the other is off-chain (smart oracle). For example, if a police officer wishes to check a driver's license status, may check the blockchain and obtain the latest driver's license, expiration, or other driver-related information. Understandably, the registor can be a smart oracle and publish their information on the blockchain. Therefore, an Oracle, as a bridge to the outside world and the world of computer code, will supply this information to the variable in the contract. To say, blockchain allows two or more parties anywhere in the world to enter into a transaction directly with each other. This transaction can be done whether or not the parties know each other’s true identity and without any third-party facilitation or mediation and these parties can be relatively sure that the transaction is secure, authenticate, and unalterable.

85 Zibin Zheng , “An Overview on Smart Contracts: Challenges, Advances and Platforms”, (105 Future Generation Computer Systems 475, 486, 2020). [73] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 4. Smart Contracts – Next Frontier for Legal Agreements? Anyone reading this paper, may, in fact, be convinced after reading the above, that ‘this is too much tech’. How an ordinary person who does not understand standard form contracts is,reasonably expected to understand all these technologies? That is a fair question. However, the answer to this Smart Contracts and Blockchain is the simplicity, transparency and accessibility at a lesser cost: i. Trust: Since Smart Contracts are self-executing, the problem of enforcement becomes minimal, if not zero. Therefore, there is no need for trust between the consumer and the seller before undertaking the transaction86. The trust is digitised through certainty of execution. If the consumer receives defective goods, or the shipment is delayed, conditions within the Smart Contract will be triggered, and the consumer will immediately receive refunds, or compensation.

ii. Legal Certainty: One of the key advantages of Smart Contracts would be the reduction of costs of enforcement, but more important issues of cross border legal frameworks and rules of civil procedure will not arise as Smart Contract is independent of applicable law.

iii. Privacy: Since Blockchain does not require the identity of the party holding the asset but applies to the asset itself, there is no need for the parties to provide his/her name, GPS location, etc. A physical address may be sufficient, without electronic access to his/her private data87.

iv. Confidentiality: Similarly, there is no need for linking bank accounts, or digital payments, or paying commissions. Crypto currency can directly be debited and credited without the need for any financial intermediary.

However, as a coin has two sides, similarly Smart Contracts also have its own advantages and disadvantages. An issue that is identified within the context is compliance with the existing regulatory framework.Presently,there have been no court cases providing direct guidance on the enforcement of smart contracts nor there is a fully developed smart contract market with agreed upon standard practices.“Smart contracts are not contract by law but can be recognized as

86 Clifford Chance, “Smart Contracts: Legal Agreements for the Digital Age”, (Briefings Clifford Chance, 2018) 87Ibid. [74] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 88 contracts by law if they bring along with them all essential elements of a contract by law” . Essential elements of a contract as the contract law provides are:  Offer  Acceptance  intention to create legal relations  consideration  capacity  mutual consent.

“If a smart contract which is a piece of code codifying terms and conditions, brings with it the above essential elements then, provided that its purpose is legal, it will probably be recognized as contract by law and it wouldn’t be wrong to even refer to it as a “smart legal contract”. So, in this case, the smart contract will not only be a code but will be a coded contract by law, thus a smart legal contract89. And if recognized as such, i.e. as a smart legal contract then it will enjoy all benefits that contracts by law enjoy, such as, enforcement by the courts and the various remedies available for breach of contracts, such as damages, compensation. However, many legal hurdles have to be crossed before such an implementation can become a reality. The technology does not address issues of capacity and free consent. Similarly, there exist issues of termination of the contract. Smart Contracts cannot be stopped voluntarily by parties, not by a central entity, court or any other supervisor, even when there is a change of circumstances, or intent of the parties. therefore, even if a contract were to hold the contract illegal, it will be performed nonetheless. The actual process of codification of certain set of terms may also present legal challenges. Let’s say that two parties have agreed to exchange value on a particular set of terms and conditions and intend to put these terms and conditions of their agreement into lines of code and have a smart legal contract between them. In other words, they want their contract on the blockchain90.In this case it must be ensured that the codification of the agreed terms and conditions is made in an accurate way, that the exact intention of the parties is properly recorded in the code and that all essential elements necessary for the formation of a smart legal contract are properly reflected in the code. This is hugely important for both parties because due to the self-execution of the smart contract code, a mistake or defect in the way terms and conditions of a contract are codified, will bring about results not intended by the parties. In fact, it is quite challenging to code contract terms with accuracy and precision91”.

88 Randolph A. Kahn and Breeanna T. Brock., “When Information becomes Lawyer’s Thang”, (Business Law Today, 2017). 89 Max Raskin, “The Law and Legality of Smart Contracts”, (Georgetown Technology Review, 2017). 90https://www.linkedin.com/pulse/smart-contracts-blockchain-challenges-government-christiana-aristidou 91 S Bourque and S Fung Ling Tsui, “A Lawyer's Introduction to Smart Contracts” (Scientia Nobilitat, 2014). [75] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Not all terms that we ordinarily find in traditional contracts are capable of being recorded or may be easily recorded in smart contracts. For example, it is hard, if not impossible, to code subjective terms like “within reasonable time”, “best efforts”, and “good faith” that we often find in agreements. The solution to above hurdles could be a Ricardian Contracts, defined by its creator, Ian Grigg as a contract that exists both on paper (as traditional contracts) and code form. However, the terms and conditions of the contracts are self-executing based on if-then statements, like a smart contract. Importantly, it is both human and machine readable and digitally signed92.

CONCLUSION

“Our rapidly evolving technological landscape poses challenges for all of us. We will continue to see practical applications of the technology exponentially expand and that the transformation will be dramatic. It is not surprising that blockchain and smart contracts are becoming an increasingly important part of the strategy of various governments around the world and an equally promising tool for the business world. At the same time, the private sector seeks to use these technologies with a view to meet the increasingly demanding consumer needs and achieve time and cost efficiency.

Moreover, Ricardian Contracts can be formed with minimum terms and conditions driven on the blockchain technology. Similarly, Oracles can be a viable bridge between code and the real world. Creative use of such Oracles may fill gaps in the contract. Alternatively, the use of cryptographic keys may permit suspension, termination, modification and regulation of these contracts93”.

It could be anticipated that these technologies will be used by the public and private sector and between the two. For this reason, immediate action is required from a policy-making perspective. New legislation and regulatory framework will dissolve some of the current uncertainties and will facilitate the operation of these technologies. It is incumbent upon regulators to understand the technology, accurately evaluate the benefits and risks and develop appropriate policy

92 Dmitri Koteshov, “Smart v. Ricardian Contracts: What’s the Difference?” (EliNext, 2018) 93https://ezproxy.svkm.ac.in:2090/SessionExpire.aspx?ReturnUrl=%2fMembers%2fSearchResult.aspx [76] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 responses, design strategies, set actions and introduce laws and regulations that will embrace and facilitate these technologies, while at the same time enabling a new tomorrow, a better future.

[77] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

HISTORY OF POLICE BRUTALITY IN INDIA

BY: SHWETHA MARIA SOLOMON

ANCIENT INDIA

Custodial violence, including torture, death and other excesses in police custody or jail, is not a new phenomenon. It's been in the world for ages. The law enforcement agencies have been practicing this on prisoners, criminals and wrongdoers.Even in ancient Indian history, we find rulers like 'Nanad' Mahapadam in the Mauryan era who had taken the whole family of 'Chandra Gupta Maurya' to prison, and only as much food was given to the entire family, which was sufficient for the survival of only one person.Kautilya in Arthsastra speaks of various kinds of torture, such as burning 1imbs, tearing by wild animals, trampling to death by elephant and bulls, cutting of limbs and mutilations, etc. Manu, the lawgiver, stressed the importance of torture in protecting humanity from criminals' hands.During the Gupta period (A.D. 320-500 A.D.) an ordeal trial was common.The administration of justice had been imbued with humanitarian values during the Buddhist era (B.C.320-300A.D.), which was an age of great humanitarianism. As a result, all forms of torture were outlawed, and special favors were shown to female inmates, as well as those who were elderlyor who had many dependents.In the post-Gupta period, torture of prisoners became a method of punishment.94 In the Mohammedan era, the Shariat law applied to crimes; the thief's hands to be cut off; life for life; tooth for tooth was the basic principle of Muslim criminal Jurisprudence still followed in the Islamic country. In the medieval period the Rulers usurped to themselves all the authority from

94Singh, M. (n.d.). Custodial Violence in India. [online] www.legalservicesindia.com. Available at: http://www.legalservicesindia.com/article/1893/Custodial-Violence-in- India.html#:~:text=The%20phenomenon%20of%20custodial%20crime [Accessed 09 Mar. 2021]. [78] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 primary hearing to appeal from apprehension and trial to execution of punishment. The rulers in this period set himself as the all-powerful authority and master of events.The most common form of punishment at that time was death, mutilation, public humiliation, fines, forfeit of property, banishment, transportation and imprisonment. The practicecontinued in the Mughal period in the form of inflicting several inhuman punishments based on the principle of retributive theory.95 PRE- INDEPENDENCE (BRITISH INDIA) The British Raj was also famous for the use of violence in police custody.They displayed a strong desire and passion to improve the Indian legal system by using the English legal system as a model. The abuse and barbaric treatment of people in police custody, on the other hand, increased exponentially. Since their primary concern was to act in support of British law, the rights of those in detention were revoked, and human rights were completely alien to the police officers96.Only in the mid-nineteenth century did incarceration become the most common method of punishment. However, until then, no jails had combined as a means of carrying out judicial punishment.Men, women, and children were caught, beaten, and tortured to make them confess to the crimes they did not commit. During this period, political workers were picked up for questioning and, if they did not provide the desired answer, they were subjected to torture. The naked lying on the ice, the denial of food or the lack of food, excess physical work and physical beatings were some of the methods used under British rule to punish lawbreakers, mostly political prisoners and workers.97 The British discovered gangs of professional and hereditary robbers and murderers known as "thugs" operating in every remote part of the country during their early years of rule. Many people were apprehended indiscriminately on false charges and held in jails for years before being brought to trial, and many of them died in jails. Torture by police officers, was common at the time, resulting in deaths sooner or later, and there was no criminal justice system in place.98Justice Sir C. Walsh, an Allahabad High Court judge, also criticized and made a clear statement about the evil of police torture of suspects. The key reason for the rise of torture during the British era was the investigating officer's excessive desire to obtain a conviction, which was used as a yardstick to judge an investigating officer's merit. The need for prosecution became so widespread that the investigative mechanism itself suffered a reverse process. “In certain cases, the truth is that, while the English detective starts with his available witness and works his way up to the discovery of the accused, the Indian sub inspector begins with the accused, and from

95 G. Tiwari, THE PRACTICE OF TORTURE: A HISTORICAL RETROSPECT, University of North Bengal (mar.12,2021), https://ir.nbu.ac.in/bitstream/123456789/1400/8/08_chapter_02.pdf. 96 Nirman Arora, “Custodial Torture in Police stations in India: A Radical Assessment” JILI 41, 513(1999) 97 G. Tiwari, Supra note 2, at 22. 98 Id at 22. [79] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 him works his way up to the witnesses, who are often surprised to know,” Justice Walsh explained.99 TORTURE COMMISSION The British took a number of steps and interventions from time to time to discourage the use of torture by police. Sir Charles Napier, who invaded Sindh in 1843, used the Royal Irish Constabulary model for policing in Sindh and formed a separate police force operated entirely by its own officers. The cops were also given some administrative instructions. This was the British government's first ground-breaking effort to combat the police's tortuous and unethical activities. This positive step prompted other presidents' governments to offer similar incentives.Thus, in order to enact similar reforms to those of the Sindh Police Administration, the Government of Madras set up a Commission known as the Torture Commission in September 1854 to investigate charges of torture commonly used by revenue and police officers. The report was submitted by the Commission in April 1855.Although proposing major reforms in the police administration, the Commission also demarcated the limits of the roles and obligations of the police in order to remove their extra-judicial exercise of power.100 ENACTMENT OF CRIMINAL LAWS AND PROCEDURES AGAINST TORTURE The depictions of rampant and systematic violence in prisons, rape and death in detention, and widespread corruption among police officers galvanized the governmental machinery to begin the process of reforming existing laws. As a result, the enactment of the Indian Penal Code of 1860, the Indian Police Act of 1861, the Indian Evidence Act of 1872, and the Code of Criminal Procedure of 1898 resulted in a great reformation in the state of society.Similarly, the Madras District Police Act 1859 was enacted in response to the recommendations of the Madras& Presidency Commission. Sections 24 101and 25102 of the Indian Evidence Act, sections 162,103 163,104 172,105 and 173106 of the Code of Criminal Procedure, and sections 330107 and 331108 of the Indian Penal Code have provided cops with disciplinary rules and regulations in order to combat the heinous cases of police torture. Illegal detention was protected by Section 339109 of the Indian Penal Code, which defines ‘wrongful restraint.Lord Curzon's establishment of the

99Idat23. 100 Nirman,supra note 2, at 516-17. 101The Indian Evidence Act, 1872,§ 24,No.1, Acts of Parliament, 1872 (India). 102The Indian Evidence Act, 1872, § 25,No.1, Acts of Parliament, 1872 (India). 103The Code of Criminal procedure, 1973,§162, No. 2, Acts of Parliament, 1973 (India). 104 The Code of Criminal procedure, 1973,§163, No. 2, Acts of Parliament, 1973 (India). 105 The Code of Criminal procedure, 1973, §172, No. 2, Acts of Parliament, 1973 (India). 106 The Code of Criminal procedure, 1973, §173, No. 2, Acts of Parliament, 1973 (India). 107The Indian Penal Code, 1860, § 330, No.45, Acts of parliament, 1860 (India). 108The Indian Penal Code, 1860, § 331, No.45, Acts of parliament, 1860 (India). 109The Indian Penal Code, 1860, § 339, No.45, Acts of parliament, 1860 (India). [80] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 110 Police Commission in 1902 was another landmark initiative. Other legislations concerning police administration were also passed, such as the Indian Riffles Act, 1920; the Police (Incitement to Disaffection) Act, 1922; the Delhi Special Police Establishment Act, 1946, and so on. But, from 1903 until 1947, when India gained independence, the British retained the status quo of the police machine to suit their colonial needs. However, as India transitioned from a slave country to an independent, socialist, democratic, and welfare state, the police approach to criminals and law and order situations had to shift from an offensive and "mailed fist" approach to a peaceful and convincing approach to agitating groups.111 Previous reports by Amnesty International and human rights groups such as ASIA WATCH detailed the use of torture by police, military, and paramilitary forces. Torture, on the other hand, is not a modern phenomenon in this country; it has been practiced by the police and, in some cases, law enforcement officials since ancient times. Physical torture was legal and legally accepted as a form of interrogation in many nations, including India, until the end of the eighteenth century. As a result, torture is a legacy of previous centuries in independent India. POST – INDEPENDENCE

After independence, in order to protect prisoners from serious treatment, our Constitution included a variety of protections against torture and placed substantial limits on law enforcement officers against illegal activities, including torture in police custody. The adoption of the constitution of India has given rise to a bloodthirsty expectation that law enforcement officers will seek to boost the tarnishing reputation of the police and to create a healthier atmosphere for public co-operation.The democratic values enshrined in the Constitution have modified the primary responsibility of the police force. The safety and security of the public's interests have now become their primary responsibility. Unfortunately, however, the Indian police have not been able to clear up the stigmas that have been put on it. However, as years have passed, these steps have not contributed to any noticeable improvement in police operations compared to the pre-independence days. In reality, the practice became more pronounced after independence.Custodial torture has become so common these days that not only the police and the bureaucrats, but also the people take it for granted as a regular police procedure or interrogation. As a result, the news of such scandalous behavior triggers nothing more than a momentary shock in society. When something horrible happens, there's a media outcry. Only

110G. Tiwari, Supranote 2, at 25. 111 CUSTODIAL TORTURE IN POLICE STATIONS IN INDIA: A RADICAL ASSESSMENT. (n.d.). [online] The Indian Law Institute. Available at: http://14.139.60.114:8080/jspui/bitstream/123456789/17767/1/036_Custodial%20Torture%20in%20Police%20Stati ons%20in%20India_A%20Radical%20Assessment%20(513-529).pdf. [81] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 then does the government notice custodial torture, as the public outcry leaves them with no other choice. When the events have faded away from the mind of the public, they are back in the service again.112 MATHURA RAPE CASE The Mathura case is also known as the Mathura rape case in India. It was an incident of custody rape in India on 26 March 1972, in which Mathura, a young tribal girl, was allegedly raped by two policemen at the Desaiganj Police Station in the Gadchiroli district of Maharashtra.Following the release of the accused by the Supreme Court, there was public outrage and opposition, which ultimately led to changes to the Indian Rape Law through the Criminal Law Amendment Act, 1983. Legal Reforms: The Criminal Law (2nd Amendment) Act , 1983 1. This amendment Act made a statutory provision in the face of Section 114 (A) of the Evidence Act made 25 December 1983, which states that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent (as a rebuttable presumption of law ). 2. Section 376 ( Punishment of Rape under Indian Penal Code ) underwent a change with the enactment and addition of Section 376(A), Section 376(B), Section 376(C), Section 376(D) IPC , which made custodial rape punishable (which were further amended in 2013 after Nirbhaya Rape Case). 3. Besides defining custodial rape, the amendment shifted the burden of proof from the accuser to the accused once intercourse was established; it also added provisions for incamera trials, the prohibition on the victim identity disclosure and tougher sentences.113 DURING EMERGENCY Police atrocities were violent and disturbing during the emergency era.Many prominent political figures were detained. In total, 676 opposition leaders were detained. According to the Shah Commission, nearly one lakh eleven thousand people were detained under preventive detention laws.The police took a Satyagrahi into custody in March 1976, but there was no case against him. In addition, he was held in unlawful isolation for a few days during which he objected to different kinds of physical torture, such as stamping on the bare body with heel boots, beating with cane on the bare soles of his feet, beating on the spine, sticking live electrical wires into the body crevices, burning with lighted cigarettes and candle flame, etc. These were the acute forms of torture used by the police during the emergency.In Kerala, police atrocities took a bad turn when all the inmates were stripped to their underwear and was beaten by groups of 10 to 12 constables. No food was given while in custody. If the physical signs of beating became too

112G. Tiwari, Supra note 3 at 28. 113Tuka Ram vs. State of Maharashtra, (1983)1Ch LR 261. [82] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 evident, they were not produced before the magistrate, but transferred from station to station. Madhya Pradesh was a state where the maximum number of prisoners was held in jail during the emergency operation. In the Gwalior District Jail, political prisoners were kept along with notorious dacoits, who were allowed to abuse them. Police atrocities during Emergency reached its climax when in Delhi; most of the students were victims of them. The police used third- degree tactics to obtain knowledge from the students. Hemand Kumar Vishnu Secretary, Delhi University Students Union, was arrested with fellow students in the Buddha Garden. He was hanged upside down, beaten, burned with a candle on the bare soles of his legs; the chilli powder was rubbed in his nose and rectum to make a confession of some non-existent plot. He was then transferred to the Rajendra Nagar Police Station and a case against him was filed.Shiv Kumar, a B.Sc. student, was arrested and assaulted with sticks, shoes, and gun butts, and forced to inhale chilli dust. Mahavir Singh, another Delhi University student, was hanged upside down, stripped naked, and beaten.Tilak Nagar resident Barish Kumar and M.A. student Suresh Jain were both badly beaten. Haryana was also a victim of police atrocities. Satyapal and Pawan Kumar were arrested on November 23, 1975, in Mulik Chand's Yamuna Nagar. He was forced to stand naked outside in the freezing wintry night on November 24th as buckets of water were poured over him. He was not permitted to sleep.114 During an emergency, different forms of police atrocities were perpetrated against poor and working class, pupils, teens, and even teachers. CUSTODIAL DEATH OF RAJAN P. Rajan115, a final-year student at Calicut Engineering College in Kerala, was abducted from the hostel in the early hours of March 1, 1976, along with another student, Joseph Chali. T.V Eachara Warrior, Rajan's father, worked tirelessly to find his son.As a consequence of the declaration of the state of emergency, questions surrounding the liberties of people could not be brought before the courts. After the Emergency was lifted, Warrior petitioned the Kerala High Court in Ernakulam for a writ of Habeas Corpus. According to witness testimony, Rajan was taken from the hostel the next day and taken to the Tourist Bungalow in Calicut, where he was tortured by the police. At a subsequent hearing, the Kerala government informed the High Court that Raian died in "illegal police custody" as a result of continuous police torture.116 FROM JUNE 1977- MAY 1978 Mrs. Indira Gandhi was deposed from power in the 1977 general election, but the police's trigger-happy, lathi-wielding behaviour did not improve. Even during the Janata regime, we

114G. Tiwari,Supra note 3 at 30. 115TV. Eachara Warrier v. Secretary to the Ministry of Home Affairs, 1978 CriLJ 86. 116The Crisis of Democratic order, Background to Emergency, NATIONAL COUNSIL OF EDUCATIONAL RESEARCH AND TRAINING (Jan.21,2015), https://ncert.nic.in/ncerts/l/leps206.pdf. [83] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 witnessed police lathi-charges, tear-gassing, strike bans, prohibitory orders, and other draconian steps to suppress the working class and other parts of the toiling people. If India is governed by the Congress (I), the Janata Party, or the Janata Dal, police atrocities have continued.117 On the night of July 3, 1977, in Bihar, the agricultural worker's chief of East Champaran, Gambhira Prasad Sah, was apprehended by police from a friend's house in Chhoradano without a warrant.According to Report from the Fleming Fields of Bihar, "he organized a militant peasant movement in Chouradano that rapidly assumed the proportions of an upsurge." Local landlords and their henchmen wanted to finish him off because they were alarmed by the peasant militancy.” Landlords plotted with police and administration, and he was apprehended in the early hours of July 3 from a village.He was escorted to Dharpa Math. He was later moved to Police Station Chhordano, where he was beaten again. Gambira died as a result of the torture.Karpoori Thakur's government not only declined to launch an investigation into the murder, but also revoked the order suspending the police officers who had beaten Gambhira to death.118 Shobhari Rai and Sankhi Rai (two agricultural workers from the village of Saihara in the Sitamarhi district) were arrested by the police on June 21, 1977. They were taken to the local landlord's house and fired. Suresh Yadav, a poor farmer, died from torture on July 22, 1911, in the lock-up of a Monghyr sub-urban police station. On October 29, 1977, the police set fire to the Teenpahar railway station which injured two people. Between December 12 and 14, 1977, a group of police officers lathi-charged students protesting for educational reform in Patna.On March 3, 1978, police violently charged a rally of the Backward Classes in front of Patna's Assembly House. On March 31, 1978, without notice, police opened fire in Raghunathpur Bazaar, Bhojpur: district, killing four people on the spot."Harnam Singh, a fireman with the Prestolite Company in Faridabad, died in a police cell on June 28, 1977, after eight days of torture. His dead body was coated in nail marks. He was arrested and tortured for making a self- implicating statement at the request of his bosses, who were afraid that Harnam Singh, who was well-versed in their misappropriation of Company land, would one day expose them.Ramji Lai, a Harijan youth from Mohammadpur village in Hisser district, was killed by a police officer because he demanded to see the search warrant before allowing the police to enter his home. His protesting brother was also shot and wounded. For hours, the dead body was left at a road crossing.119 THE POLICE ATTROCITIES AND TORTURE AFTER 1980’s

117G. Tiwari, Supra note 2, at 32. 118Communist Party of India (Marxist-Leninist) Liberation, https://www.cpiml.net/liberation/2007/08/peoples-hero- champaran-comrade-gambhira-sah (last visited Mar.17,2021). 119G. Tiwari,Supra note 3 at 33-34. [84] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 After 1980, police resorted to more authoritarian methods in order to leave no evidence of police atrocities on the victims' bodies. And minors were not exempt from police brutality. According to a newspaper article, ‘young boys aged 10 to 14 years' were being supplied to convicts for their delectation, and a boy named Munna was in pain because ‘after the way he was used, he was unable to sit.' The helpless boy described police torture succinctly: "I was taken to Baz Mandi Police Station and beaten up." My feet were swollen. They wrapped a bandage around my head and passed electric shocks through it.120 The tale does not come to an end here. Many young boys were tortured into impotence by the police in a small town in Madhya Pradesh. The young men were hanged upside down. They were then ruthlessly tortured, and electric shocks were passed into their genitals, rendering them impotent. The police are using a variety of violent tactics to extract false confessions from innocent people. The victim is subjected to inhumane torture that begins with a rigorous beating. If the victim refuses to confess, he is taken outside, stripped, and forced to sit on the top of a sharp bamboo.Following that, the cops begin pushing hard on the victim's shoulders in order to impale him. Torture is strong enough to persuade any victim to confess to any crime. Using such third-degree tactics, the police have ruined the lives of many individuals.121 According to the Amnesty Report on India, about 415 persons died in the custody of police and security forces due to torture between 1 January 1985 and 1 November 1991. Examining the cases of custody death, the same report points out that not more than 42 magisterial enquiries were conducted; judicial enquiries were ordered in 20 cases; criminal charges were framed in 52 cases; police officers were arrested in 25 cases, and only in 3 cases the guilty officers were known to have been convicted by the court.122 Custodial abuse and deaths are not a new occurrence. It has existed in our culture for ages. Despite many initiatives in recent years, torture and ill treatment remain widespread in India, depriving thousands of people of their human dignity. Custodial torture has become so popular in recent years that not only the police and bureaucracy, but also the general public, accept it as a standard police interrogation practice. As a result, news of such heinous acts just triggers a brief shock in society.When a person dies in custody, there is a public outcry that either fades away with time or is at least subdued by the formation of an enquiring committee. In all countries, the legislation allows the police to use force in such situations. This authority is essential to the organization's function and cannot be challenged. It is a legal requirement for police officers. Despite there a lot of laws protecting a person's life and liberty, and despite numerous reports

120Munna v. State of UP, AIR 1982 SC 806. 121G. Tiwari,Supra note 3 at 35. 122 Patra, C. (n.d.). Custodial Death A Glaring Violation Of Human Rights. [online] www.legalserviceindia.com. Available at: http://www.legalserviceindia.com/legal/article-3924-custodial-death-a-glaring-violation-of-human- rights.html#:~:text=Custodial%20Torture%20incidents%20are%20frequently [Accessed 16 Apr. 2021]. [85] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 issued by various committees from time to time, there is still custodial abuse, torture, and deaths.We understand that police officers operate under a great deal of stress and that other distractions exist, but the police have no right to inflict violence on a vulnerable individual in their custody while ignoring the law. The police are essentially an extension of the government, which is ultimately responsible to the people. The police have to protect the society from the acts of murderers, armed robbers, habitual criminals, and terrorists and make it a safe place to live in.

[86] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

Emergence of Right to Clean Environment as Human Right’

By: Anjali Nair

Introduction When the natural environment is damaged and contaminated to the extent that it threatens life, health, food, shelter, and minimum work standards, it also becomes a threat to established human rights.123 The destruction of life-sustaining ecosystems, the pollution of the world's water, land, and air, the inability to control the world's wastes, and other related environmental problems prevent people from securing the minimum requisites for health and survival, thereby impeding and even prohibiting the effective exercise and enjoyment of human rights for much of the world's population.124 All human beings depend on the environment in which we live. A safe, clean, healthy and sustainable environment is integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation. Without a healthy environment, we are unable to fulfill our aspirations or even live at a level commensurate with minimum standards of human dignity. At the same time, protecting human rights helps to protect the environment. When people are able to learn about, and participate in, the decisions that affect them, they can help to ensure that those decisions respect their need for a sustainable environment. In recent years, the recognition of the links between human rights and the environment has greatly increased. The number and scope of international and domestic laws, judicial decisions, and academic studies on the relationship between human rights and the environment have grown rapidly.125 Current Issues The last remaining tropical glaciers between the Himalayas and the Andes will disappear in the

123 REPORT OF THE UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT 124 https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1330&context=djcil 125 https://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx [87] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 next decade and possibly sooner due to climate change, a new study has found. The glaciers in Papua, Indonesia, are ''the canaries in the coal mine'' for other mountaintop glaciers around the world, said one of the researchers.126 Researchers have identified forests in the western United States that should be preserved for their potential to mitigate climate change through carbon sequestration, as well as to enhance biodiversity.127 A research shows significant association between multiple prenatal and early life exposures to indoor pollutants and the degree of allergic sensitivity in 2-year-olds.128 With 2019 on pace as one of the warmest years on record, a major new study reveals how rapidly the Arctic is warming and examines global consequences of continued polar warming. The study reports that the Arctic has warmed by 0.75 degrees C in the last decade alone.129Almost 40 percent of global flora is categorized as 'exceedingly rare,' and these species are most at risk of extinction by human development and as the climate continues to change, according to new research.130The world's tropical forests store huge quantities of carbon in their biomass and thus constitute an important carbon sink. However, current estimates of the amount of carbon dioxide stored in tropical forests of the Amazon vary largely. Scientists have developed an approach that uses recent satellite data to provide much more precise estimates of the amount of biomass in tropical forests than in the past131Health effects. Many systems are affected by wildfire smoke, predominantly through the respiratory system. Cardiovascular effects and ocular problems can also occur as well as acute burns. Both water and soil pollution can cause longer term threats to human and ecosystem health after a wildfire. The worsening condition of the capital is not only the result of vehicular pollution, rather, domestic pollution, industrial emission, road dust, and garbage burning also have a large share in Delhi’s total pollution load. Furthermore, construction of infrastructure including large residential complexes potentially contributes to the Delhi’s air pollution load.Apart from the vehicular and

126 Ohio State University. (2019, December 9). Last remaining glaciers in the Pacific will soon melt away: Researchers believe other mountaintop glaciers will follow quickly. Science Daily. Retrieved December 10, 2019 from www.sciencedaily.com/releases/2019/12/191209161315.htm 127 Oregon State University. (2019, December 9). Some forests crucial for climate change mitigation, biodiversity. ScienceDaily. Retrieved December 10, 2019 from www.sciencedaily.com/releases/2019/12/191209131911.htm 128 Mallory J. Gallant, Anne K. Ellis. Prenatal and early life exposure to indoor air-polluting factors and allergic sensitization at 2 years of age. Annals of Allergy, Asthma & Immunology, 2019 129 University of California - Davis. (2019, December 4). Outlook for the polar regions in a 2-degrees-warmer world: International team assesses widespread effects of polar warming. ScienceDaily. Retrieved December 10, 2019 from www.sciencedaily.com/releases/2019/12/191204144914.htm 130 University of Arizona. (2019, November 27). Nearly 40% of plant species are very rare and are vulnerable to climate change. ScienceDaily. Retrieved December 10, 2019 from www.sciencedaily.com/releases/2019/11/191127161235.htm 131 Helmholtz Centre for Environmental Research - UFZ. (2019, November 18). The forests of the Amazon are an important carbon sink: Innovative combination of forest models with satellite data provide more precise estimates. [88] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 industrial emissions, local climatic and seasonal factors also affect the air quality of Delhi. Delhi, being a land-locked territory, is unable to dilute its emission usingthe moderating effects of sea; the opportunity availed by other metropolitan cities, such as Mumbai, Kolkata, and Chennai. Surrounded by the regions of varied climate, Delhi also represents a great variability in the seasonal patterns. At its west, there is Great Indian dessert (Thar dessert) of Rajasthan while in the north and east direction there are cool hilly regions. At its south, there are central hot plains. Thus, Delhi is located in the subtropical belt with extremely scorching summers, moderate rainfall, and chilling winters. The winters are extremely important in Delhi as it is dominated by cold, dry air, and ground based inversion with low wind conditions, which are responsible for increasing concentration of pollutants. High concentration of pollutants is trapped close to earth’s surface because a layer of warm air acts as a lid on top of this layer. Moreover, dense smog formation during winter months has also been witnessed in Delhi, the reason of which is vehicular pollution as well as the prevailing meteorological conditions in the months of December and January. Similarly, wind pattern also affects the weather conditions. According to a study, during the autumn and winter months, approximately 500 million tons of crop residues are burnt in Indo-Gangetic plains. Also the biomass burning in the state of Punjab and Haryana contribute to the cause. The wind blows from India’s north and north- west to the east direction during winters as depicted from the wind-rose diagram of Delhi. This ultimately results in combination of pollution and fog, leading to heavy smog formation in Delhi esp. during winters.132 Inter-Relation between Human Rights and Environmental Protection Reliance on human rights to achieve environmental ends raises a host of other questions. Among the most pressing are: who would hold a right to a healthy environment;38 and how would the right account for future generations and group rights.39 What steps are necessary to clarify and strengthen the human rights and environment linkage? Does international law currently recognize a standalone right to a healthy environment? If not, should it? Do equitable principles like inter-generational equity and common but differentiated responsibilities help mediate the relationship between environmental and human rights regimes? Perhaps most importantly, in our ever-more integrated, globalized world, how would the right to a healthy environment be enforced and would the right have any limits?133

132 According to the report “Air Pollution in Delhi: An Analysis” by CPCB, MoEF&CC (2016) 133Rebecca Bratspies, Do We Need a Human Right to a Healthy Environment?, 13 Santa Clara J. Int'l L. 31 (2015) [89] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 There are three main dimensions of the interrelationship between human rights and environmental protection:

 The environment as a pre-requisite for the enjoyment of human rights

(implying that human rights obligations of States should include the duty to ensure the level of environmental protection necessary to allow the full exercise of protected rights);

The first dimension of the link between human rights and environment to be mentioned and which is already widely acknowledged in doctrine and practice, considers that proper and full enjoyment of existing human rights – such as the right to life, private life, health, food, water and proper sanitation, housing, work and development – cannot take place without taking into account adequate protection of the environment.134

 Certain human rights, especially access to information, participation in decision-making, and access to justice in environmental matters, as essential to good environmental decision-making

(Implying that human rights must be implemented in order to ensure environmental protection)

Although the conferral and use of ‘procedural rights’ to give individuals a say in environmental decision-making processes, has been widely accepted as a desirable and appropriate approach to linking human rights and environmental protection,135 it has also often been held that this approach has some short-comings, most notably because reliance on ‘procedural environmental rights’ of this kind can only offer limited guarantees in actually ensuring that a particular ‘environmentally acceptable’ substantive outcome will be achieved, i.e. no substantive limitations on the environmental decision making process are recognized.136 As was affirmed by UNECE and others on this matter: procedural rights should not be considered ends in themselves, ‘but are meaningful as means towards the end of protecting the individual's substantive right to live in a healthy environment.’137 ;and

 The right to a safe, healthy and ecologically-balanced environment as a human right in itself

More than 2 million annual deaths and billions of cases of diseases are attributed to pollution. All

134 Dinah Shelton, ‘Human Rights and the Environment: What specific environmental rights have been recognized?’, Denver Journal of International Law and Policy, Vol. 35, 2006, pp. 130-132 135 Pedersen, ‘European environmental human rights and environmental rights: a long time coming?’, Georgetown International Environmental Law Review, Fall (2008) 136 Turner, A substantive environmental right : an examination of the legal obligations of decision-makers towards the environment, Alphen aan de Rijn, Kluwer Law International (2009) 137 UNECE in the Report of the Secretary-General prepared in accordance with Commission resolution 1996/13 [90] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 over the world, people experience the negative effects of environmental degradation ecosystems decline, including water shortage, fisheries depletion, natural disasters due to deforestation and unsafe management and disposal of toxic and dangerous wastes and products. Indigenous peoples suffer directly from the degradation of the ecosystems that they rely upon for their livelihoods. Climate change is exacerbating many of these negative effects of environmental degradation on human health and wellbeing and is also causing new ones, including an increase in extreme weather events and an increase in spread of malaria and other vector born diseases. These facts clearly show the close linkages between the environment and the enjoyment of human rights, and justify an integrated approach to environment and human rights.

The Stockholm Declaration in Principle 1 “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”138, and to a lesser extent the Rio Declaration, which makes human beings the ‘central concern of sustainable development’ and refers only to their being ‘entitled to a healthy and productive life in harmony with nature, show how the link between human rights and dignity and the environment was very prominent in the early stages of United Nations efforts to address environmental problems. That focus has to some extent faded away in the ensuing efforts by the international community to tackle specific environmental problems, with more focus being placed on developing policy and legal instruments, both at the international and national levels, targeted at the environmental problems that were emerging, through a series of MEAs and other mechanisms. Although the foundation of developing such mechanisms laid on the considerations made at the time of the Stockholm Conference, the human rights dimension is not made explicit in most of these instruments.139The momentum to link these two fields has grown stronger in the past decade, with an increasing focus on the effects of climate change on individuals, communities and countries.While there has been an understandable focus on human rights and the effects of climate change, in recent times the human rights dimensions of the depletion of global biodiversity, trans boundary pollution and large scale, human-caused land degradation and its sub-set of desertification has begun to emerge.

Although most international human rights treaties do not make a specific reference to the

138 Indeed, such a right was spelled out in the Summary of Proposed Legal Principles for Environmental Protection and Sustainable Development adopted by the World Commission on Environment and Development Experts Group On Environmental Law, appended to the Brundtland Report Our Common Future, Oxford 1987: “1. All human beings have the fundamental right to an environment adequate for their health and well being.” 139UNEP Report [91] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 environment, healthy environmental conditions are regarded as one of the necessary prerequisites for the enjoyment of human rights – especially the rights to life140 and health. Other rights such as the right to adequate food, water and housing are also dependent on healthy environmental conditions.141

Over the past decades the links between human rights and environment have become more established due to a growing awareness of the mutually reinforcing links between the two values and the recognition that increased protection of both values would be an issue of primary concern for the international community for decades to come. Right to a safe, healthy and ecologically balanced environment itself must be considered as human rights Just as a healthy environment can contribute to the enjoyment of human rights, there is a growing sense that environmental degradation and climate change have “generally negative effects on the realization of human rights.” Thus, there is a growing sense that the goal of realizing human rights necessarily entails protecting the environment.142More extensive, approach linking human rights and environment is then a ‘separate substantive right to environment’. It is important to note that discussions on the right to environment are complicated by the fact that over time the right has developed in a fragmented manner in various legal systems around the world, i.e formulations of the right have varied over time from the ‘right to a healthy environment’, to the right to a ‘good’, ‘unpolluted’, ecologically balanced’, ‘favourable’, ‘clean’ or ‘viable environment’. Shelton has observed on the matter more recently that formulations of the right to environment have been changing, increasingly moving away from the right to a ‘healthy’ or ‘healthful’ environment, to formulations of a right to an ‘ecologically balanced’ environment, suggesting that a more holistic view is taken of what the right to environment entails. Although the formulation of the right to environment has been thought to have some bearing on the meaning and content of the right, it is not fully clear how judges would in each case be able to derive exact meaning and content from a right that is formulated in a particular (vague) manner and much discussion has been had on this. Indeed, the question of how courts would be able to appropriately determine and enforce the content of a right to environment is a question that keeps returning in debates on the right to environment, and seems to present the biggest challenge to the acceptance of a right to environment in systems

140 The right to life is protected in several international documents including Article 3 of the Universal Declaration of Human Rights (UDHR) 141 Prof Ben Boer, Human Rights and Environment, ASEM 142 Rebecca Bratspies, Do We Need a Human Right to a Healthy Environment?, 13 Santa Clara J. Int'l L. 31 (2015) [92] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 143 which presently do not yet contain such a right. This right is enshrined in the constitutions of over 92 states, and is protected by municipal law or treaty in many more.144 This widespread adoption raises the possibility that the right to a healthy environment may be becoming a “general principle of law recognized by civilized nations” and thus, a source of international law under Article 38 of the ICJ Treaty. The environment is mentioned directly in the ICESCR in article 12(2) on the right to health: The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for (b) The improvement of all aspects of environmental and industrial hygiene. As mentioned previously, the right to a healthy environment was first explicitly recognized in the Stockholm and Rio declarations as nonbinding principles. Those declarations were not intended to create legal rights and obligations. However, they did contribute to the development of international and national law. In relation to environmental obligations, certain treaties of potentially global application include: • The 1972 World Heritage Convention, whose purpose is to create a list of natural and cultural sites whose irreplaceable value should be preserved for future generations and to ensure the sites’ protection through international cooperation,As of January 1996, there were 469 properties on the World Heritage List. • The 1985 Vienna Convention, whose purpose is to set up a framework within which countries can cooperate to tackle the problem of ozone depletion. Signatory nations agreed to take "appropriate measures . . . to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.” • The 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (UNEP), which aims to reduce and eventually eliminate the emissions of man-made ozone depleting substances. The Protocol has been amended four times since 1987.The amendments established mechanisms for transfer of technology and financing, and added chemicals to the list of those ozone-depleting substances that should be phased out. • The 1989 Basel Convention on the Control of Trans boundary Movements of

143 OHCHR study Human Rights and Environment (2011) 144 Rebecca Bratspies, Do We Need a Human Right to a Healthy Environment?, 13 Santa Clara J. Int'l L. 31 (2015) [93] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Hazardous Wastes and Their Disposal (UNEP), which obligates parties to reduce to a minimum the trans boundary movements of hazardous wastes; to ensure that such wastes are managed and disposed of in an environmentally sound manner, as close as possible to their source of generation; and to reduce to a minimum the generation of hazardous wastes at the source. • The 1992 Framework Convention on Climate Change (UNEP), which requires parties to achieve "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” It aims to protect the climate system and mitigate against the adverse effects of climate change, and recognizes that the parties "have a right to, and should, promote sustainable development. “It also seeks to avoid placing a disproportionate burden on developing countries in the implementation of the convention, and encourages policies and procedures that take into account different socio-economic contexts. • The 1992 Convention on Biological Diversity (UNEP), whose objectives are to conserve biological diversity as well as encourage sustainable, fair and equitable use and benefits of genetic resources. It requires parties to create national strategies, plans and programs for conserving biodiversity and to integrate biodiversity conservation into national economic planning. The convention also requires that parties take specific measures, including creating a protected area system, establishing means of managing modified organisms, and preventing or controlling alien species. It recognizes the importance of indigenous and traditional peoples’ lifestyles and knowledge with respect to biodiversity conservation. UNEP’s 1989 Register of Environmental Agreements lists a total of 139 treaties. In addition, there exist treaties that do not primarily address environmental issues, but deal with environmental obligations. These include agreements relating to trade and other international economic matters (such as GATT), regional free trade agreements, the EEC Treaty, the agreements establishing the World Bank and the regional multilateral development banks, and the multilateral development assistance agreements such as the 1990 Fourth Lom Agreement. Additionally, there exist bilateral environmental agreements, which have contributed significantly to the development of international environmental law. The Rio Declaration, although it is not a treaty, stipulates certain state obligations.The Commission on Sustainable Development (CSD) has been mandated by the UN General Assembly to be a central forum for reviewing progress and for urging further implementation of the Rio documents.

[94] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Special Rapporteur of Human Rights and Environment All human beings depend on the environment in which we live. A safe, clean, healthy and sustainable environment is integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation. Without a healthy environment, we are unable to fulfill our aspirations or even live at a level commensurate with minimum standards of human dignity. At the same time, protecting human rights helps to protect the environment. When people are able to learn about, and participate in, the decisions that affect them, they can help to ensure that those decisions respect their need for a sustainable environment. The Special Rapporteur is tasked with studying the human rights obligations, including the obligation of non-discrimination, relating to the enjoyment of a safe, clean, healthy and sustainable environment. The Special Rapporteur also identifies and compiles best practices for informing, supporting, and strengthening environmental policy-making. The Special Rapporteur promotes and reports on the realization of human rights obligations relating to a safe, clean, healthy, and sustainable environment, and the Special Rapporteur identifies the challenges and obstacles to realizing those human rights obligations.145 In March 2012 the Human Rights Council decided to establish a mandate on human rights and the environment, which will (among other tasks) study the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and promote best practices relating to the use of human rights in environmental policymaking. Mr. John Knox was appointed in August 2012 to serve as the Independent Expert (2012 – 2015) and as the Special Rapporteur on human rights and the environment (2015 – 2018).146 As the first person to hold the position of Special Rapporteur on Human Rights and the Environment, Professor Knox created a precedent for others to follow, ensuring States recognize the interdependence of human rights and the environment. During his mandate, Professor Knox published reports on Children’s Rights and the Environment and the Framework Principles on Human Rights and the Environment.147 Professor Knox urged States to consider human rights in their environmental policies. He considered rights to biodiversity as human rights and called upon States to recognize the right to a safe and healthy environment. Professor Knox articulated that the time has come for the United Nations to recognize environmental rights as human rights, which many countries have already done. The United Nations must also recognize the Framework Principles because they contain more complete versions of environmental human rights and coinciding State obligations.148

145https://ijrcenter.org/un-special-procedures/special-rapporteur-on-the-issue-of-human-rights-obligations-relating- to-the-enjoyment-of-a-safe-clean-healthy-and-sustainable-environment/ 146 A healthy and ecologically balanced environment: An argument for a third generation right, Duke Journal of Comparative & International Law Vol 3:351. 147 Knox, Linking Human Rights & Climate Change at the U.N (2009) 148 Supra [95] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 The new Special Rapporteur on Human Rights and the Environment, appointed on 6 July 2018, is Professor David Boyd of the University of British Columbia. He commented that “I am delighted to be serving as the next Special Rapporteur on human rights and the environment and feels tremendously fortunate to be building on the strong foundation laid by John Knox during his exemplary term as the mandate-holder.” Professor Boyd believes that “there is a window of opportunity opening up for global recognition of the fundamental right to live in a healthy environment. Our responsibility is to do everything in our power to make this happen as quickly as possible, so that we can turn our attention to implementing and fulfilling this right.”149 The Special Rapporteur receives complaints about alleged violations of human rights related to the enjoyment of a safe and healthy environment, or the protection of those rights. Importantly, the Special Rapporteur does not issue decisions concerning individual complaints and cannot require the State to remedy any alleged violation; rather, the Special Rapporteur raises the issue of concern with the relevant State. The Special Rapporteur may contact the government concerned to invite comment on the allegation, seek clarification, remind the government of its international obligations, or request information on steps being taken by the government to redress the situation. Generally called “communications,” these exchanges with the government can take a variety of forms of varying degrees of significance. Specifically, the Special Rapporteur contacts a government through either an allegation letter or an urgent appeal.150 The communications sent by the Special Rapporteur and other special procedures are also compiled in periodic reports submitted to the UN Human Rights Council at each of its regular sessions. In all communications, the Special Rapporteur is careful not to draw any conclusions about the facts of the case. Instead, the Special Rapporteur simply presses for the government to ensure that the individual’s human rights are not violated. The post-modern approach of the Indian judiciary to include Right to Environment asFundamental Right The Constitution of India is a dynamic and living tree and is not a static document. The Courts have to interpret the Constitution keeping in view the needs of the present generation. Some of the leading public interest litigations are Taj Mahal case, Hazardous industries matter in Delhi, Vellore Citizen's Welfare Forum case and Rural litigation and Entitlement Kendra case relating to lime stone queries in Dehradun, etc. PIL has created a ray of hope in the dark universe of injustice. The air of judicial enforcement rushes in to fill the vacuum caused by administrative abdication. It is PIL that confronts that one and invites resolution by the other. Environmental control is also

149 https://www.iucn.org/news/world-commission-environmental-law/201808/john-knox-finishes-historic-mandate- special-rapporteur-environment-and-human-rights 150 Report UNRC [96] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 the subject matter of PIL. It covers environment, ecology, degradation of forests in forest cover area; air, water pollution; vehicular, industrial, noise pollution; the aqua, eco system, wildlife starvation, smoking and public health.The development of public interest litigation in India has been one of the important legal developments of the past couple of decades. The following publications analyze specific aspects of public interest litigation. Some of them focus on the environment specifically. It was Mr. M.C Mehta who revived the concept of environmental jurisprudence in India through PIL.Some of the landmark judgments having fair share in development of the environmental jurisprudence in India are:Andhra Pradesh Polluting Industries Case151: Nakka Vagu was a fresh water stream which provided fresh water for drinking andirrigation to the villagers living in 14 villages adjacent to it. But the indiscriminately set up 250 industries which did not fulfill the condition of setting up water treatment plants turned the stream into a huge drain carrying industrial effluents. The Supreme Court directed that an amount of 20 million should be paid to the farmers who had lost their crops and cattle due to air and water pollution. The authorities are directed monitor setting up of set up pollution control devices by the polluting industries.Delhi Ridge Case152: To save the Delhi ridge from destruction an order from the Supreme Court was obtained directing NCT of Delhi to declare it as ‘Reserved Forest’.Gamma Chamber Case153: Against the hazardous radiation a PIL was filed in the Apex Court. The Court’s timely intervention saved the students and teachers of Jawaharlal Nehru University (JNU) from the radiation of Gamma Chamber, New Delhi.Ganges Pollution Case154: The Supreme Court of India reacting to the public interest litigations has passed several judgments and a number of Orders against polluting industries numbering more than fifty thousand in the Ganga basin.As a result of these directions millions of people have been saved from the effects of air and water pollution in Ganga basin covering 8 states in India.Kamal Nath’s Case155: The irony of this case is that a Public Interest Litigation was filed against the family members of Kamal Nath, the Minister of Environment and Forests, Govt. of India. The family members of the Minister own the Span motel in the State of Himachal Pradesh. They diverted the Course of River Beas to beautify the motel.The Supreme Court of India had directed the owners of the Motel to hand over the forest land to the Govt. of Himachal Pradesh and further order the removal of all sorts of

151 (1996) 6 SCC 26 152 (1996) 8 SCC 462 153 W.P. 4677/1985 154 AIR 1987 SC 1086 155 W.P. 182/1996 Decided on 15th March 2002 [97] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 156 encroachment spending the money from their own pocket.Taj Trapezium Case : In and around Agra, several industries were set up. The Mathura Reinery, iron foundries, glass and other chemical industries are first and foremost amongst them. The Supreme Court of India delivered a historic Judgment in December 1996. The apex Court gave various directions including banning the use of coal and cokeand directing the industries to switch over to Compressed Natural Gas (CNG).Enviro-legal Action vs. Union of India157 In this case this was held that once any activity is inherently dangerous or hazardous dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. In the Oleum Gas Leak case (M.C. Mehta v. Union158, the Supreme Court laid down that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and to those residing in the surrounding areas, owes an absolute and non delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without negligence on its part. Thus, in India, the judiciary has interpreted Art 21 to give it an expanded meaning of including the right to a clean, safe and healthy environment. Class actions have been entertained by the Supreme Court under Art 32 of the Constitution as being part of public interest litigation actions. The High Courts, also being granted this jurisdiction under Art 226 have intervened by passing writs, orders and directions in appropriate cases, thereby giving birth to an incomparable environmental jurisprudence in the form of the constitutional right to healthy environment. Conclusion and Suggestions The health of the world environment cannot be influenced to any significant degree by the actions of a single nation; yet the environmental transgressions of a single nation, unlike other human rights violations, may affect the life and health of persons all over the world. International recognition of the right to a healthy and ecologically balanced environment is fully warranted. New human rights may and have been recognized, and the proposed right fits the definitional framework of a human right. Most importantly, its

156 AIR 1997 SC 734 157 1996(3) SCC 212 158 AIR 1987 SC 1086 [98] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 implementation is essential to secure the first and second generation rights that the Universal Declaration and the Covenants have established and guaranteed. The concept of right to healthy environment as a part of right to life under Art 21 of Indian Constitution is developing through judgments. Further the right to environment is often associated with human right, mostly right to live. Right to life is guaranteed as a fundamental right under article 21. In order to live a healthy life it is of utmost importance that our environment and surroundings be pollution free and clean. The flora fauna also impact the lives of individuals and can also be of utmost importance for survival. Thereforethere is emergence of the concept of right to environment as a fundamental right as can be seen in various judgments in the previous section. Good practices on Human Rights and the Environment UNEP, the UN Office of the High Commissioner for Human Rights, and the UN Special Rapporteur on human rights and the environment have joined efforts to identify, promote and exchange views on good practices relating to the use of human rights obligations and commitments to inform, support and strengthen environmental policymaking, especially in the areas of environmental protection and management. The joint initiative identified practical and concrete examples of good practices where states and other actors have successfully implemented human rights obligations related to environmental protection and management, which could be replicated in other contexts, and which will increase the understanding and awareness of the linkages between human rights and the environment, including providing more clarity on the human rights obligations related to the enjoyment of a safe, clean, sustainable and healthy environment. The good practices were collected at the international, regional, national and sub- national levels in collaboration through regional/ sub-regional consultations as well as questionnaires and surveys. In the process of identifying such practices and analyzing the practical aspects of the interaction between the two field of human rights and the environment, UNEP and partners also identified challenges and problems in the balancing of the protection of human rights and the protection of the environment, and identified lessons learned in respect of such interaction, which are also available with the good practices identified.159 The increasing intervention of Court inenvironmental governance, however, is being seenas a part of the pro-active role of the Supreme Courtin the form of continual creation of successivestrategies to uphold rule of law, enforce fundamentalrights of the citizens

159http://web.unep.org/divisions/delc/human-rights-and-environment [99] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 and constitutional proprietyaimed at the protection and improvement ofenvironment.The innovative methods in environmentaljurisprudence, however, have both procedural andsubstantive characteristics. Procedural innovationsrefer to those judicial initiatives that expand theexisting procedure of environmental jurisprudencefor environmental protection and improvement. The UN Human Rights Commission adopted several resolutions linking human rights and the environment, such as Res. 2005/60 entitled Human rights and the environment as part of sustainable development. The resolution called on states “to take all necessary measures to protect the legitimate exercise of everyone’s human rights when promoting environmental protection and sustainable development and reaffirmed, in this context, that everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms.” The resolution emphasized the needs of the vulnerable members of society and also encouraged efforts towards the implementation of the Rio Declaration on Environment and Development. The human rights that are directly affected by the state of the environment consist but are not limited to the following: The right to life, the right to an adequate standard of living and the right to health. Also, procedural human rights such as access to information and participation in decision making are connected to the right of citizens and communities to partake in the formulation of environmental policies.

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"CORPORATE GOVERNANCE & OWNERSHIP STRUCTURE"

By : Akash Kumar& Ayush Yadav

Abstract This paper deals with corporate governance and ownership structure where the primary part of the paper deals with the definitions of Corporate Governance and guiding principles of corporate governance wherein the key principle of shareholders primacy is being discussed intimately with regards to the Indian Scenario. Further, Intercorporate Ownership is talked about. The substantive part of this research paper deals with ownership concentration and ownership structure where the connection between Corporate Governance and Ownership Structure is being highlighted. In the second part of the paper how an ownership structure is an integral part of governance is talked about along-side the consequences of ownership on corporate governance and performance would be discussed.

INTRODUCTION: Corporate governance is the framework by which organizations are coordinated and controlled. The Board of Directors is answerable for the administration of their organizations. The investors' function in administration is to name the directors and the auditors and to fulfill themselves that a fitting administration structure is set up. The duties of the board incorporate setting the organization's vital points, giving the authority to place them into impact, governing the administration of the business and answering to shareholders on their stewardship. Corporate governance is consequently about what the leading body of an organization does and how it sets the estimations of the organization, and it is to be recognized from the everyday operational administration of the organization by full-time executives.160 The Cadbury Committee defines corporate governance as “the system by which companies are directed and controlled” (Cadbury Committee, 1992, introduction). The Cadbury Committee’s

160 ‘What is Corporate Governance’ (ICEAW) https://www.icaew.com/technical/corporate- governance/principles/principles-articles/does-corporate-governance-matter Accessed on 8th October 2020. [101] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 definition is close to later definition that defines corporate governance as a set of mechanisms through which firms operate when ownership is separated from management. It is furthered as a mechanism through which the boards and directors are able to direct, monitor and supervise the conduct and operation of the corporate and its management in a manner that ensures appropriate levels of authority, accountability, stewardship, leadership, direction and control.161 Corporate ownership can include quite a few proprietors however it transforms the business into a company, which is an unmistakable legitimate substance. The business gets a name and takes on a large number of the rights and duties that private people appreciate. Corporate ownership likewise ensures proprietors' risk; in the event that somebody documents a claim against the business, the proprietors are not by and by capable and their own resources are secured. Corporate proprietorship permits a business to set itself in the mood for selling stock later on through an IPO, or initial public offering.162 Guiding Principles of Corporate Governance: The management creates and actualizes corporate methodology and works the organization's business under the board's oversight, with the objective of delivering feasible long-haul esteem creation. The audit committee of the board holds and deals with the relationship with the outside auditor, administers the organization's yearly budget summary review and interior powers over monetary announcing, and supervises the organization's danger the executives and consistence programs. In making decisions, the board may think about the interests of the entirety of the organization's bodies electorate, including partners, for example, workers, clients, investors, and the network in which the organization works together, while doing so contributes to an immediate and important manner to building long haul esteem creation.163 A Key Principle of Corporate Governance – Shareholder Primacy Maybe one of the most significant standards of corporate governance is the acknowledgment of shareholders. The acknowledgment is two-overlay. To start with, there is the essential acknowledgment of the significance of investors to any organization – individuals who purchase the organization's stock asset its tasks. Value is one of the significant wellsprings of subsidizing for organizations. Second, from the essential acknowledgment of investor significance follows the guideline of duty to investors.164

161Agyei A, ‘The Effect of Ownership Structure and Corporate Governance on Capital Structure of Ghanaian Listed Manufacturing Companies’ (2014) International Journal of Academic research in accounting finance and management science. 162DanniesHeartman, ‘What does Corporate Ownership mean?’ (Buzfluent 2017) https://bizfluent.com/info- 7922862-corporate-ownership-mean.html Accessed on 22nd October 2020. 163 ‘Principles of Corporate Governance’ (2016) Harvard Law school Forum on corporate governance. 164 ‘What is Corporate Governance’ (CFI) https://corporatefinanceinstitute.com/resources/knowledge/other/corporate-governance/ Accessed on 22nd November 2020. [102] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 The approach of permitting investors to choose a directorate is basic. The board's "prime order" is to be continually looking for the eventual benefits of investors. The directorate employs and regulates the chiefs who involve the group that deals with the everyday tasks of an organization. This implies that investors, successfully, have an immediate state in how an organization is run.165 The issue of corporate governance is significantly more basic on the move economies, specifically in the nations of previous Soviet Union. A huge rule specialist issue began from state proprietorship, a difficult that has not been perceived for a long time and turned into a standard in consistently life. The significance of the corporate administration issue can halfway clarify the contrasts on economy's venture inflows and thusly its development rates in progress nations of Central Europe and CIS. Except if property privileges of financial specialists are emphatically secured, scarcely anybody will contribute their cash. Furthermore, presently when private ownership shows up in FSU nations the earnest foundation and authorization of the correct corporate governance standards is imperative for improving the advancement of endeavours, just as, of the economy as an entirety.166 Albeit corporate governance is an intriguing issue in meeting rooms today, it is a moderately new field of study. Its foundations can be followed back to the original work of AdolfBerle and Gardiner Means during the 1930s, yet the field as we currently realizes it rose uniquely during the 1970s. Accomplishing best practices has been impeded by an interwoven arrangement of guideline, a blend of public and private approach producers, and the absence of an acknowledged measurement for figuring out what establishes fruitful corporate governance. The idea of the discussion does not help either: sharp voices, an apparently unbridgeable separation between investor activists and supervisors, widespread irreconcilable circumstances, and recently marked out places that group out nice conversation. The outcome is a framework that nobody would have planned without any preparation, with unintended results that at times undercut both presence of mind and public strategy.167 Indian Scenario: The Indian state was the other major prevailing investor in various enormous organizations when as a major aspect of public strategy, state claimed endeavours were set up to arrive at telling statures in the Indian economy; a considerable lot of these are currently traded on an open market companies because of the legislature's privatization activities. The third gathering answerable for packed proprietorship in thenation is the unfamiliar global area: numerous worldwide companies

165 Ibid. 166Zheka V, ‘Corporate governance, ownership structure and corporate efficiency’ (2005) Managerial and decision economics 451-460. 167 Subramanian G, ‘Corporate Governance 2.0’ (Harvard Business Review 2015) [103] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 have recognized India alongside China as the future monetary force motors of the world and set up for business in the nation. With a few areas of the economy bit by bit opening up for unfamiliar support, this area may fill generously soon.168 Inter Corporate Ownership – Pyramids and Groups The acknowledgment of the rule that partnerships may claim partakes in other corporate substances was to affect the turn of events and development of what we know now as corporate gatherings and combinations. This was to be the harbinger of goliath corporate substances as far as their definitive command over resources and assets of the aggregate bunch without essentially contributing completely to gain those monetary interests. With arrangement of layers of holding and auxiliary or partner organizations frequently with just lion's share control at each level, corporate pyramids were made with people or families or administrative groups at the head of the cone being slung into positions using gigantic control rights with nearly little income rights169 OWNERSHIP CONCENTRATION: Ownership Concentration is a huge interior governance instrument in which proprietors can control and impact the management of the firm to ensure their inclinations. This examination centers on the connection between proprietorship focus and corporate administration and disclosure practices of firms.170Starting with the early work by Berle and Means (1932) and proceeding into the 1980s, the writing contemplating the effect of proprietorship structure on corporate governance.171Also, firm execution has zeroed in on the benefits of possession fixation. This question has significant ramifications for privatization strategy, as strategy creators must choose regardless of whether it is smarter to circulate the portions of firms to enormous quantities of people (as in the voucher strategy) or to concentrated gatherings of proprietors or even single proprietors (e.g., through direct deals). The primary concern was the expense of the detachment of proprietorship and control, or office costs (e.g., Jensen, Meckling, 1976; Fama, Jensen, 1983). The thought is that scattered proprietorship in huge firms builds the head specialist issue due to Hilter kilter data and vulnerability. Since contracts among administrators and investors are unavoidably deficient (future possibilities are difficult to portray completely), investors must screen supervisors. There is a boundless agreement that a more prominent level of

168Balasubramanian N, Anand R, ‘Ownership Trends in Corporate India 2001-2011’ (2013) Indian Institute of Management Bangalore, Working paper no.419. 169 Ibid. 170Madhani P, ‘Ownership Concentration, Corporate Governance and Disclosure Practices: A Study of Firms Listed in Bombay Stock Exchange’ (2017) UP Journal of Corporate Governance Vol. 15 No. 4 7-36. 171 Corporate governance may affect firm performance directly, via ownership and control, but also indirectly, through the financial structure of the firm. According to an even broader view of corporate governance, managers in firms characterized by the separation of ownership and control are constrained from taking actions that are not in the interest of shareholders by several disciplining mechanisms, such as the threat of takeovers, bankruptcy procedures and the managerial labour market. Competition on the product market is often considered as another disciplinary device. [104] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 control by an outer investor improves profitability execution: all the more observing apparently builds efficiency (Shleifer, Vishny, 1986). At the point when the value is broadly scattered, notwithstanding, investors do not have suitable motivators to screen administrators who, thusly, can dispossess financial specialists and expand their own utility rather than expanding investor esteem. At long last, moved possession in the possession of pariahs is likewise frequently supported on the ground that it encourages the arrangement of capital.172 La Porta et al. (1998a) show that, in many nations, enormous enterprises have huge proprietors who are dynamic in corporate governance. Hence, the principle issue of corporate governance is not observing the administrators; the genuine concern is the danger of the seizure of minority investors. Similar creators, in a relative investigation of the adequacy of general sets of laws in 49 nations from the point of view of financial specialist rights assurance, find that proprietorship fixation is a response (transformation) to powerless assurance of financial specialist rights under the public corporate administration models (La Porta et al., 1998b).173 OWNERSHIP STRUCTURE: Corporate governance permits to diminish the danger of loosing ventures, by methods for lawful assurance of financial specialist/investor rights and making such components of organization the executives that permit financial specialist or investor to be guaranteed that the administration utilizes his (her) speculations proficiently and that they will present to him the normal profit.174As per the OECD definition, corporate governance is the framework by which business enterprises are coordinated what is more, controlled. The corporate governance structure determines dissemination of rights and obligations among various members in the enterprise, such as, the board, directors, shareholders and different partners, and explains the rules and strategies for settling on choices on corporate undertakings. By doing this, it additionally gives the structure, through which the organization goals are set, and the methods for achieving those goals and checking execution (OECD, 1999).175 Ownership structures are vital in corporate governance in light of the fact that they influence the motivators of administrators and along these lines the proficiency of the firm. The ownership structure is characterized by the circulation of value with respect to votes what is more, capital yet additionally by the character of the value proprietors. An exemplary reference is Jensen and Meckling (1976). These financial experts attempted to build up a hypothesis of the Ownership

172Bozec Y, ‘Ownership concentration and corporate governance practices: substitution or expropriation effects?’ (Wiley Online Library 2007). 173 ‘Corporate Governance and ownership structure in the transition’ (2003) Econbiz Accessed on 13th October 2020. 174Demsetz H, ‘The Structure of Corporate Ownership: Causes and consequences’ University of Chicago Press Journals, Vol.93. 175Ferrarini G, ‘Corporate Ownership and Control Law Reform and the Contestability of Corporate Control’ (2002) University of Genoa. [105] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 structure of the firm by incorporating components from the hypothesis of office, the hypothesis of property rights and the hypothesis of money.176 Ownership structure can be recognized by the degree of convergence o of possession rights just as by the character of the proprietor. By and large possession structure may incorporate inside just as outside proprietors. Inside proprietors are directors and representatives, and outside proprietors are people, associations and state. Proprietors may likewise be recognized as unfamiliar and local ones.

There is clear proof that the structure of corporate ownership can altogether impact the budgetary exhibition of the organization through, for instance, its sway on motivating force system, dynamic techniques just as execution checking framework. Anyway, the hypothetical and experimental proof on the impact of possession structure on organization's effectiveness is very questionable. To see this debate further I sum up the hypothetical proof on the impacts of various possession structures regarding sorts of proprietors and the degree of possession focus on the corporate presentation.177 RELATIONSHIP BETWEEN CORPORATE GOVERNANCE AND OWNERSHIP STRUCTURE

176Zheka V, ‘Corporate governance, ownership structure and corporate efficiency’ (2005) Managerial and decision economics. 177 Ibid. [106] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

A lot of consideration has been given to see how corporate governance andownership structures influence firm execution. Corporate governancecan impact an association's execution at whatever point an irreconcilable situation emerges among the board and investors as well as among controlling and minority investors. In the administration shareholdersstrife, the office issue shows itself in administration's low exertion and inefficient ventures, typically known as perquisites. In the controlling-minority investor struggle, controlling investors utilize their capacity to profit themselves to the detriment of the minority. Investors, in what is called confiscation or private advantages of control. The base of both clashes in the way that the directors in the main case, and the controlling investors in the second case, get just a part of the association's net income, while they completely suitable the assets redirected. Consequently, it is possible that, considering this motivator structure, insiders will boost their (pecuniary and non- pecuniary) utility in any event, when the firm as an entire won't.178Worldwide occasions concerning prominent corporate failures have returned on the approach plan and strengthened discussion on the viability of corporate governance systems as a method for expanding firm

178Muka K, ‘THE RELATIONSHIP BETWEEN CORPORATE GOVERNANCE AND OWNERSHIP STRUCTURES OF FIRMS LISTED AT THE NAIROBI STOCK EXCHANGE’ (2010) University of Nairobi Accessed on 3rd November 2020. [107] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 execution. Since the start of the 21st century, genuine monetary outrages and numerous instances of corporate bungle achieved an expanding thoughtfulness regarding corporate governance, in a cozy relationship with business morals issues. Just as in open arrangement discusses, corporate governance is these days recognized as a basic factor in monetary turn of events and monetary business sectors strength the analysts assert.179 In short, the structure of sheets of chiefs is identified with the adequacy of an association. In any case, with the blended outcomes, there is no reasonable comprehension on board structure, CEO duality also, freedom governing body measures with possession structures (shareholding measurement). Moreover, there are very little experimental confirmations who explain this relationship in Malaysian setting. In like manner, in view of the conversation in the writings, to address the examination questions and to react to this contention the accompanying speculations are created: 1: Ownership structure affects board structure. 2: Ownership structure affects President Duality. 3: Ownership structure affects board size. 4: Ownership structure has a positive significant influence on independence board of directors.180 5: Ownership structure has a positive significant influence on board meeting.181 The connection between the different qualities of ownership structure and corporate governance is an open experimental inquiry. Corporate sheets perform significant choice control errands, such as deciding chief pay, investigating the budgetary proclamations and selecting new heads and chiefs (Hayes et al., 2004). These capacities are believed to be fit best for non-leader chiefs, since they require board individuals to act as screens over administration. Then again, corporate sheets moreover perform undertakings of choice administration, for example, setting long haul methodology and settling on reasonable contributing and financing choices. Klein (1998) gives a fascinating understanding into this issue by seeing that chief chiefs should be most valuable serving in standing board panels zeroing in on choice administration errands (venture and account panels), and non-leader chiefs in councils zeroing in on choice control assignments (the compensation, designation, and review boards). This conversation consequently recommends that the standing board panels is what is significant, and not the creation of the board overall.182

179 ‘Ownership Structure and Corporate Governance and effects on performance’ (2011) International Journal of Business Administration vol. 2 No.3. Accessed on 7th November 2020. 180IryanaAkimova, ‘Ownership structure, corporate governance, and enterprise performance’(Springer link 2004). 181M’lthiria E and Musyoki D, ‘Corporate Governance, Ownership Structure Perspective and Firm Value: Theory, and Survey of Evidence’ (2014) International Journal on Research management and business studies Vol.1 issue 3. 182Alshabili I and Elamer A, ‘Ownership types, corporate governance and corporate social responsibility disclosures: Empirical evidence from a developing country’ (2018) Corporate Governance and firms outcome

OWNERSHIP STRUCTURE AS AN INTERNAL GOVERNANCE MECHANISM Ownership Concentration: Starting with the early work by Berle and Means (1932) and proceeding into the1980s, the writing examining the effect of possession structure on corporate governance183 also, firm execution has zeroed in on the benefits of ownership focus. This inquiry has significant ramifications for privatization strategy, as policymakers must choose whether it is smarter to disperse the portions of firms to enormous quantities of people (as in the voucher technique) or too thought gatherings of proprietors or even single proprietors (e.g., through direct deals). The fundamental concern was the expense of the detachment of ownership and control, or office costs (e.g., Jensen, Meckling, 1976; Fama, Jensen, 1983). The thought is that scattered ownership in enormous firms builds the head specialist issue because of unbalanced data and vulnerability. Since contracts among directors and investors are definitely deficient (future possibilities are challenging to portray completely), investors must screen administrators. There is a far reaching agreement that a more prominent level of control by an outside investor upgrades profitability execution: all the more checking probably builds efficiency (Shleifer, Vishny, 1986). At the point when the value is generally scattered, notwithstanding, investors don't have suitable impetuses to screen administrators who, thusly, can dispossess investors and expand their own utility as opposed to augmenting investor esteem. At last, gathered proprietorship in the possession of outcasts is additionally regularly pushed on the ground that it encourages the arrangement of capital.184 The chief arrangements of controls for a company come from its inner mechanisms. These controls screen the advancement and exercises of the association and make restorative moves when the business goes off course. Keeping up the company's bigger interior control texture, they serve the inner targets of the partnership and its stake holders, including workers, supervisors, and proprietors. These goals incorporate smooth activities, obviously characterized detailing lines, and execution estimation frameworks. Inner components incorporate oversight of the executives, free interior reviews, the structure of the governing body into levels of obligation,

ial_responsibility_disclosures_Empirical_evidence_from_a_developing_country> Accessed on 18th November 2020. 183corporate governance may influence firm execution straightforwardly, by means of ownership and control, yet additionally in a roundabout way, through the monetary structure of the firm. As per a significantly more extensive perspective on corporate governance, directors in firms portrayed by the partition of ownership and control are obliged from making moves that are not in light of a legitimate concern for investors by a few restraining components, for example, the danger of takeovers, insolvency strategies, and the administrative work market. Rivalry in the item market is regularly considered as another disciplinary gadget. 184 ‘Corporate Governance ownership structure in the transition’ (2003) Centre of Social economic research https://www.academia.edu/20157432/Corporate_Governance_and_Ownership_Structure_in_the_Transition_The_C urrent_State_of_Knowledge_and_Where_to_Go_from_Here Accessed on 10th November 2020. [109] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 185 isolation of control, and strategy improvement. The idea of corporate governance issues in companies is to a great extent reliant on their ownership and control structures, and the institutional set-up in which such enterprises are implanted. At the same time, the possession structure is one of the key inner governance components generally considered to relieve administration issues both in generally held firms and in those with concentrated ownership and control. The goal of this paper is to look from the outset at the ownership structure of recorded private area Indian corporate as a wellspring of likely administration issues, and afterward to dissect how such issues can be mitigated by distinctive ownership constituents. Also, in light of existing exact concentrates in the Indian setting, the paper looks to survey the current proof on the connection among proprietorship and corporate administration as shown in firm execution.186 EFFECT OF OWNWESHIP STRUCTURE ON CORPORATE GOVERNNCE AND PERFORMANCE: The corporate governance issues have gotten extensive consideration in view of their obvious significance for the financial soundness of organizations and society everywhere particularly after plenty of corporate tricks and catastrophes in the ongoing occasions. The U.S., Canada, the U.K., other European Countries, the East Asian nations, and even India besides have seen extreme strain on their economies along with the disappointment of a few driving organizations over the most recent twenty years or thereabouts. This has brought about more prominent accentuation and consideration on the corporate governance issues.187 From a limited perspective, corporate governance indicates the relationship instigate or control board chiefs and the executives to best serve the monetary interests of investors (and different partners) of an organization. A considerable lot of these different partners additionally assume a function in checking the conduct of the board/the executives. among different essential members (investors, chiefs, and directors) in deciding the headings and execution of organizations. From a more extensive perspective, it portrays the rights and duties of every essential partner and the plan of establishments and components that the aspect of any association that has the most power over administration is the governing body and the board is the 'spirit' of an organization – the establishment of all business choices and the inception of corporate culture of the entire element. The quintessence or traits of good corporate governance incorporate morals, administrative order, freedom, assurance of investors' privileges, decency, straightforwardness, board obligations, responsibility, and social mindfulness. One significant corporate administration rule

185 Julie Davoren, ‘Three types of corporate governance mechanisms’ (Chron) Accessed on 12th November 2020. 186Jayati Sarkar, ‘Ownership and Corporate Governance in Indian firms’ Accessed on 1st December 2020. 187Alipor A and Amjadi H, ‘The Effect of Ownership Structure on Corporate Performance of Listed Companies in Tehran Stock Exchange’ (2011) International Journal of business and social science, Vol.2 No. 13. [110] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 of OECD is to "centre around the organization instead of on one gathering of individuals." Most corporate governance rating offices utilize a few or a large portion of these traits for estimating the corporate governance scores on a corporate level.188 Hypothetical and applied work on corporate governance frameworks highlight the significance of the structure of proprietorship and control in setting the foundation for the corporate governance gives that can emerge actually.189 Three perspectives that should be considered are the structure of possession and its fixation; the instruments of control and exercise of control. The association between possession structure and execution has been the subject of a significant and progressing banter in the corporate money writing. The discussion returns to the Berle and Means (1932) proposal, which recommends that a converse connection ought to be seen between the diffuseness of shareholdings and firm execution. Their view has been tested by Demsetz (1983), who contends that the possession structure of a company ought to be thought of as an endogenous result of choices that mirror the impact of investors and of exchanging available for shares. The observational examinations about the connection between the two factors appear to have yielded clashing outcomes. Further, it has been seen that the overall highlights of the lawful and administrative framework, and that the recorded factors and encounters have added to the current corporate administration framework are as yet assuming a significant job.190 As has been noted previously, some long-late administrative measures are on the iron block and a greater amount obviously would be required. Some key measures, among them, remarkably, the restriction on advertisers deciding on goals where they remain to profit, have just been started through enactment and guideline; their effect will obviously rely on fast and viable consistence monitoring.191 On the other side, guideline is just a halfway obstacle and the great administration in evident stewardship soul can just happen with a wholehearted purchase in of best practices in the bigger interests of the organization and every one of its investors, regardless of whether regulators or non-attendants.192

188Chandegani A and Boroujeni H, ‘The Effects of Ownership Structure and Corporate Governance on Capital Structure’ (2013) Australian publication of basic and applied science, 424-430. 189 Mohammad A, ‘The impact of ownership structure on firms performance’ (2018) Academy of accounting and financial studies journal, Vol.22 issue 5 Accessed on 3rd December 2020. 190 ‘The Effects of Ownership Structure on Corporate Governance and Performance: An Empirical Assessment in India- UBS- 2008’ (National Foundation for corporate governance) Accessed on 1st November 2020. 191Mirchandani A, ‘Impact of Ownership Structure and Corporate Governance on the Performance’ (2018) International Journal of economics and financial issues. 192Balasubramanian N, Anand R, ‘Ownership Trends in Corporate India 2001-2011’ (2013) Indian Institute of Management Bangalore, Working paper no.419.

[111] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 RIGHTS OF THE ACCUSED UNDER THE CODE OF CRIMINAL PROCEDURE AND THE CONSTITUTION OF INDIA

DIVYANSHI GOEL Student (LLB (H.))

ABSTRACT

This research paper is based upon the rights of an individual under The Code of Criminal Procedure, 1973 and also the Constitution of India where the individual is accused and arrested for a criminal offence in India. The paper is targeted on the guiding principle of criminal code behind any procedure and also the evidence guiding our court that, “Let a hundred guilty be acquitted, but one innocent must not be convicted” and also focuses on the fundamental rights of a personal which protects their right to life, dignity, liberty and equality. This paper covers the judicial trend where rights of an individual were protected, given priority and the offenders were punished.

Key Words: right, The Code of Criminal Procedure, Constitution of India, life, dignity, liberty, equality, protected

[112] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

Introduction A person who is in custody, or under trial or convicted does not make him non-human and lose his fundamental rights. The Constitution of India and the CrPC gives some fundamental and legal rights to the individual accused which are inviolable. One of the main principles of criminal jurisprudence is to prove the guilt of the accused beyond reasonable doubt and there is no chance of any error in proving the guilt of the accused. In mostly all crimes the burden of proof falls upon the prosecution. In India, we also follow the presumption of an accused as innocent until he is proven guilty. Rights of an accused cover the right of an accused at the time of arrest, during the trial process and after the trial process is over. In a democratic country like India, even the prisoners have the fundamental rights which can’t be violated. There are six basic fundamental rights within the constitution of India which includes right to equality, right to freedom, right against exploitation, right to freedom of religion, Cultural and educational rights and right to constitutional remedies and legal rights as stated in the Code of Criminal Procedure which covers the rights of an accused. The rights of an accused in India are divided into three categories as in my research paper as Rights of an accused during the pretrial stage, Rights of an accused during the trial and Rights of an accused after the trial is over or post trial stage with specific rights and cases in each category.

Pre-Trial Rights of Accused in India These are the rights of an individual accused of a criminal offence in such a manner that their freedom and liberty don’t seem to be hampered.The primary stage of a trial is called the pre-trial stage. Here an FIR has been filed on the basis of which the police arrests an individual or searches his/her property.

[113] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 The stage before the commencement of a court trial is extremely crucial. So, any person accused of a criminal offence must be granted the subsequentrights.

1. Right to know about the accusations and charges The first and foremost requirement of lawful arrest is that the notification of the explanation of arrest along with the charges against him to the arrestee. Section 50193 of the Cr.P.C provides that, “ Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest, where a police officer arrests without a warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.”

It may be noted that when a person is arrested with a warrant, the police officer executing the warrant of arrest shall notify the substance thereof to the arrestee (Section 75194). Further under Section 55195, when a subordinate officer is deputed by a senior officer to arrest someone, such subordinate officer shall before making the arrest, notify to the person to be arrested the substance of the written order given by the senior policeman specifying the offence or other cause for which the arrest is believed to be done. This is also a constitutional right guaranteed under Art. 22(1)196 of the Constitution, “No person who is arrested shall be detained in police custody without being informed as soon as may be, of the reasons for such arrest.” Section 50197of the code is in compliance with Art. 22(1).

It may be noted that if the arrest is made by a Magistrate without any warrant under Section 44198, the case is not covered in any sections 50199, 55200 and 75201 nor by any other section within the code which requires the Magistrate to communicate with the arrestee the reason for the arrest.

193The Code of Criminal Procedure 1973 §50, Universal’s 2020 194Id. 195Id. 196INDIAN CONSTI. art 22, cl. 1, Universal’s 2020 197The Code of Criminal Procedure 1973 §50, Universal’s 2020 198 The code of Criminal Procedure 1973 §44, Universal’s 2020 199Id. 200Id. 201Id. [114] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 However, in practice, the Magistrate would be still bound to state the grounds under Art. 22(1) of the constitution and it is also Magistrate’s duty to ask the accused whether he has been informed of the grounds of arrest by the police officer (Section 167202). Also, the accused must be informed of the precise act done by him for which he is arrested and not just the law applicable to that act.

In re:Madhu Limaye203, Madhu Limaye, Member of the Lok Sabha and a number of other persons were arrested. Madhu Limaye addressed a petition in the kind of a letter to the Supreme Court under Art. 32204mentioning that he together with his companions had been arrested but had not been communicated the reasons or the grounds for arrest and that there was a violation of the mandatory provisions of Art. 22(1) of the Constitution. The Supreme Court observed that Art. 22(1)has been considered as important and fundamental for safeguarding personal liberty in all legal systems where the Rule of Law prevails.205The court further observed that the two requirements of Art. 22(1)are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also to know exactly what the accusation against him is so that he can exercise his second right, mainly of consulting a legal practitioner of his choice and to be defended by him.206 Whenever that is not done, the petitioner would be entitled to a writ of Habeas Corpus directing his release. Hence, it was stated by the court that Madhu Limaye and others were to be released on this ground alone.

Also, in case of Govind Prasad vs State of WB207, it was stated that it was mandatory for a police officer or any other person arresting to communicate the full particulars of the offence communicated and non-compliance with it amounts to disregard of the procedure established by law.

In Vimal Kumar Sharma vs State of U.P. and Ors.208, the arrestee must be informed of the particulars ‘as soon as possible’, however not immediately. The courts have insisted that valid reasons must be given for the delay and the uncertainty of the time limit has been made certain

202The Code of Criminal Procedure 1973 §167, Universal’s 2020 203AIR 1969 SC 1014 204 INDIAN CONSTI. art 32, Universal’s 2020 205 P.J. ALEXANDER, POLICING INDIA IN THE NEW MILLENIUM (Allied Publishers, 2002) 206Mrs. N. Ratnakumari vs … on 24 July, 2014, INDIAN KANOON, https://indiankanoon.org/docfragment/156479333/?formInput=section%2050%20%281%29%20crpc 207 1975 CrLJ 1249 (Cal) 208 1995, CrLJ 2335(All) [115] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 209 by the expression “forthwith” used in Section 50(1) .

In cases Joginder Kumar vs State of U.P.210 and D.K. Basu vs State of WB211, the decisions of Supreme Court were enacted in Section 50-A212where it was compulsory obligation of person making arrest to inform about the arrest to a nominated person and an entry to whom the arrest has been informed to be made in a book and also inform the arrested person of his rights.

2. Right to be produced before a magistrate and against illegal arrest Section 56 of CrPC states that, “a police officer who is making an arrest without warrant shall, subject to the provisions contained as to bail, take or send the individual arrested before a Magistrate responsible in the case, or before the officer in charge of a police station with no delay.”213 and Section 57of CrPCstates that, no police officer have the right to detain any individual in custody without any warrant not for a period of 24 hours excluding the time of travel from the place where arrest took place except if there is no special order from the Magistrate under Section 167.214

Also, it can be noted that Section 76 of the code is comparable to Section 56 of the code, only it within the case of an arrest with a warrant and Section 57 of the code has also been incorporated in the Constitution as of the basic fundamental rights (Art. 22(2)215).

In case of State of Punjab vs Ajaib Singh and anr216 held that arrest without warrant has the greater need of the accused to be produced within 24 hours to ensure that the arrest thus made is legal and valid.

In case of Manoj vs State of M.P. 217, states that the arrested person must be produced before the Magistrate within 24 hours of his arrest and it was also held that the Magistrate should be aware on what is going on and have information of the nature of the accused whatever incomplete information maybe.

209 The Code of Criminal Procedure 1973 §50(1). Universal’s 2020 210 1994 4 SCC 260 211 1997 6 SCC 642 212 The Code of Criminal Procedure 1973 §50A, Universal’s 2020 213The Code of Criminal Procedure 1973 §56, Universal’s 2020 214Id. 215 INDIAN CONSTI. art 22, cl. 2, Universal’s 2020 216 1953 AIR 10 217 1999 3 SCC 715 [116] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Also, it was held that if a person is failed to be presented before the magistrate within the time frame then the police officer is charged (as in case of D.G. and I.G. of Police vs Prem Sagar218). 219

It is also held in case of Saptawna vs State of Assam220, that even if a person is illegally restricted but if he is presented before the magistrate within 24 hours then the illegal detention becomes lawful. The arrest of a person is said to commence with the restraint placed on the liberty of the person and not when the arresting officer records the time. However, if an accused is produced before the magistrate after 24 hours it could still be considered legal if there’s a valid explanation for the delay by the arresting officer.221

3. Right against double jeopardy

The concept of double jeopardy relies on the doctrine of ‘autrefois acquit’ which suggests that if an individual is tried and acquitted or convicted of an offense he can’t be summoned again for the identical offense or on the identical facts for some other offense.

This clause embodies the common law rule of ‘nemo debet vis vexari’ which states that,“that no man should be put twice in jeopardy for the same offense.”

Section 300222 of the Code provides that a person once convicted or acquitted by a court of competent jurisdiction cannot be tried again for the same offence on the same facts while the conviction or acquittal is in force. The law permits the accused by serving his sentence, if any or by undergoing the ordeal of a trial for the same offence on a previous occasion, he cannot erase and start that again if he was perpetually liable to further prosecution for the same offence based on those facts itself.

Art.20(2)223 of the constitution states the principle as a fundamental right where, “No person shall be prosecuted and convicted for the same offence more than once.”

In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao224the Supreme Court differentiated

2181991 5 SCC 700 219Alagammal vs Inspector of Police, 2005 HCP 56 220 1971 SC 813 221Kultej Singh vs Circle Inspector of Police And ..., ILR 1991 KAR 3198 222 The code of Criminal Procedure 1973 §300, Universal’s 2020 223 INDIAN CONSTI. art 20, cl. 2, Universal’s 2020 2242006 CriLJ 1 [117] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 225 226 between Section 300(1) of CrPC and Art. 20(2) of the Constitution.It is also stated that in the same fact’s proceedings could be taken under two different sections and thereSection 300 of the code cannot apply (State of Bihar vs Murad Ali Khan227).

Even though the offence in the second trial is not “ the same offence”, still the second trial will be barred if it is based on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 221228 of the code (also Section 300(1)).229Thus, if a charge might have been made for another offence in the first trial, the accused cannot be tried again for such offence.

In S.A. Venkataraman vs UOI230, the appellant was dismissed from service as a result of an inquiry under the Public Servants (Inquiries) Act, 1960, after the proceedings were before the Enquiry Commissioner. Later, he was prosecuted before the Court for having committed offenses under the Indian Penal Code 1860, and the Prevention of Corruption Act 1988. The Supreme Court stated that the proceeding held before the Enquiry Commissioner did not result to a prosecution for an offense. It can’t be concluded that the person has been prosecuted.

The principle in a criminal trial is that where a point of fact has been tried by a competent court on a previous occasion and a finding has been reached in favour of the accused, such a finding would constitute as‘estoppel’ against the prosecution as preventing the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence for which the second trial is permissible by law as in case of Masud Khan vs State of U.P.231

4. Right to legal aid The code of criminal procedure and constitution of India provides opportunity to the accused to secure a counsel of his own choice and the duty of the state to provide a counsel to the accused in certain cases and it has been upheld in re: Madhu Limaye232.

In India, right to counsel is recognized as fundamental right of an arrested person under

225 The code of Criminal Procedure 1973 §300(1), Universal’s 2020 226 INDIAN CONSTI. art 20, cl. 2, Universal’s 2020 227 1989 CrLJ 1005 228 The Code of Criminal Procedure 1973 §221, Universal’s 2020 229Id. 2301954 AIR 375 231 1974 3 SCC 469 232 AIR 1969 SC 1014 [118] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 233 Art.22(1) where, “no person shall be denied the right to be consulted, and to be defended by, a legal practitioner of his choice.”

Sections 303234and Section 304235 of the Code also provides such rights to the accused.

The right of the accused begins from the moment of arrest which is the pretrial stage. It is seen as in case of Joginder Kumar vs State of U.P.236where when a public servant is arrested, superior authority should immediately be informed.

A person can consult with his lawyer maybe in the presence of the police officer but it his right that police officer doesn’t hear the consultation between the two and it’s the right of the arrestee that he can also have consultation with his friends and relatives as in case of Francis Coralie vs U.T. of Delhi237.

Further, Art 39-A238 was also inserted in the Constitution as per the 42nd Amendment, 1976 which is a Directive Principle where the state should pass suitable legislation for promoting and providing free legal aid to an indigent accused person.

In Suk Das and Ors. vs U.T. of Arunachal Pradesh239, it had been settled in law that free of cost legal assistance at State’s expense is a fundamental right of the person accused. It was held in this case that if the accused is not informed of his right of legal aid, then that would vitiate the trial.

An accused can also voluntarily defend himself if he in clear words tell that he does not want assistance of lawyer as in case of S. Yuvaraj vs State Rep. By.

Justice Krishna Iyer in R.M. Wasawa vs State of Gujrat240 observed, “Indigence should never be a ground for denying fair trial or equal justice and liberty to an individual…Special attention should be paid to employ competent advocates, sufficient and competent to handling difficult and complex cases, not patronizing gestures to new entrants at the Bar. Enough time and complete papers should be compulsorily made available in order that the advocate chosen may serve the reason of justice.”

233 INDIAN CONSTI. art 22, cl. 1., Universal’s 2020 234 The Code of Criminal Procedure 1973 §303, Universal’s 2020 235Id. 236 1994 4 SCC 620 2371981 AIR 746 238INDIAN CONSTI. art 39A, Universal’s 2020 2391986 AIR 991 240 AIR 1974 SC 1143 [119] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

5. Right to an open and expeditious trial The right to a public hearing means the hearing should as a rule is conducted orally and publicly in front of an audience, without a particular request by the parties thereto effect. Section 327241of the Code makes provision for open courts for public hearing.Also, the presiding judge or magistrate has the power to order at any stage of the proceedings any particular individual or the general public should not be allowed to enter or remain in the trial.

Section327(2) of the code provides that the inquiry into and trial of rape or an offense under Section 376242, 376(A-E) of the Indian Penal Code shall be conducted in camera.

Printing or publishing of any matter in relation to any proceedings is prohibited except with courts permission.In State of Punjab vs Gurmit Singh & Ors.243, it showed lack of sensitivity on the part of the court where the information regarding a young girl who was raped was released the court was condemned for the same.

Public trial in open courts acts as a check against judicial vagaries and creates a sense of confidence amongst the general public of the fairness and unbiasedness of the of the criminal justice system.

Speedy trial or expeditious trial as under Section 309(1)244after 2013 amendment stated that in every inquiry orproceedings shall be held as fast as possibleand speedy trial acts as an important aspect of fair trial as delayed justice believes to make people lose confidence in the criminal justice system.

Section 309(2) of the code also right that if not necessary can’t delay the trial or suspend the trial. Also. provides that an accused can’t be put in custody for more than 15 days.

In case of Hussainara Khatoon vs State of Bihar245it was held that, “speedy trial or expeditious trial is one of the most importantpart of ‘rational fair and impartial’ procedure assured by Art. 21246and it is the constitutional responsibility of the state to set up such a method as that would ensure timely and speedy trial to an individual accused. This was one of the first case which talked about the condition of people in jail. It was put forth that many people are in jail due to

241 The Code of Criminal Procedure 1973 §327, Universal’s 2020 242 Indian Penal Code 1860 §376 2431996 AIR 1393 244 The Code of Criminal Procedure 1973 §309(1), Universal’s 2020 245 1980 1 SCC 98 246INDIAN CONSTI. art 21, Universal’s 2020 [120] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 their inability to afford bail. Also, many who continue to be in jail for even very small and petty offences. Most of the people who are found in jail even after serving their sentence and these consists of mainly poor people. Thus, there were few conditions put forth to give bail to such prisoners. These are mainly on giving bail based on PR bonds.

Also, the state cannot avoid this obligation by pleading any kind of financial or administrative incapability and it’s their obligation to enforce that the fundamental right of the accused is enforced.

In case of State Through Cbi vs Dawood Ibrahim Kaskar & Ors.247, it was observed that this section was for under trial accused and if an accused is subsequently arrested in course of further investigations, he can be detained in police custody.

Also, in case of Khatri And Ors vs State of Bihar & Ors.248, the supreme court had criticized the State Government for detaining the accused person in jail without any remand order.

Section 309249 also doesn’t allow remand custody for an indefinite period and it should not be beyond the duration of adjournment and should be specifically mentioned.

If a witness is present in court, his examination should not be adjourned to another day because of any reason if not special and approved.Also, Section 309(1) provides that, “if an offence under Section 376250of the Indian Penal Code, the inquiry or trial should be completed within the timespan of two months from the date charge sheet was filed.”251

6. Right against self-incrimination

Art 20(3)252 of the Constitution of India provides, “No person accused of any offence shall be compelled to be a witness against himself.”

This Clause is predicted on the maxim ‘nemo tenetur prodere accussare seipsum’ which suggests that ‘no man is bound to accuse himself’.

In Nandini Sathpathy vs P.L. Dani.253, where an accused can’t be forced to give statements, who

247 1997 CrLJ 2989 248 1981 1 SCC 627 249 The Code of Criminal Procedure 1973 §309, Universal’s 2020 250 Indian Penal Code 1860 §376 251CrPC Section 309, DEVGAN, http://devgan.in/crpc/section/309/ 252 INDIAN CONSTI. art 20, cl. 3., Universal’s 2020 2531978 AIR 1025 [121] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 has right to keep silent during interrogation. If forced then breaks the right of the accused to remain silent and violates the law. The accused has the right to remain silent and not give any statement against himself.

In M.P. Sharma vs Satish Chandra254and Ranjit Ram vs State255stated that the right provided by Art. 20(3)256 protects an accused to make and oral as well as documentary evidence against oneself. The right is not hampered if the accused acts as a witness against someone else and not himself.

In State of Bombay vs. Kathi Kalu Oghad and Ors.257, the Supreme Court held that, “’to be a witness’ is not similar to ‘furnishing evidence’. Self-incrimination should mean communicating information which is based upon the personal knowledge of the individual conveying the data and can exclude merely the mechanical process of creating reports in Court which may illuminate any of the focuses in the discussion, yet which don’t contain any statement of the charged based on his own insight. Compulsion or impulse implies pressure which incorporates threatening, undermining, beating or detaining the spouse, parent or offspring of an individual.258” In this way, where the charged person makes a statement with no incitement, danger or guarantee Art. 20(3)259does not apply.

7. The Right against the ex-post facto law

Under Art. 20(1)260 of the Indian Constitution it is stated that no individual shall be convicted of any criminal offence except for any breach of a law in force at that time of the commission of the act charged as an offence , nor can subjected to a fine higher than what might have been imposed under the law in force at the time the offence had been committed.

In case of Kedar nath vs State of WB261, where the petitioner committed a criminal offence in 1947 and that time under the law which was in force was later amended in 1949 where the additional fees was included. The court under ex-posto law held that the amended punishment

2541954 SCR 1077 255AIR 1961 All 456 256 INDIAN CONSTI. art 20, cl. 3., Universal’s 2020 257 1961 AIR 1808 258B P Sinha, The State Of Bombay vs Kathi Kalu Oghad And Ors. on 4 August, 1961, INDIAN KANOON, https://indiankanoon.org/doc/1626264/ 259 INDIAN CONSTI. art 20, cl. 3., Universal’s 2020 260 INDIAN CONSTI. art 20, cl. 1., Universal’s 2020 261 1953 SC 404 [122] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 would not be applicable to the accused as the crime was committed in 1947. Also, in case of State of W.B. vs S. K. Ghosh.262

8.Right to Bail The right of a charged individualpermits them to file a bail application for him to be discharged from the prison guardianship. There are three sorts of bail under Indian law and two different kinds of offences, bailable and non bailable offences.

Section 436263 of the CrPC, the accused can claim bail as cases which have been shown bailable offences in the First Schedule of the code. Generally, non- serious offences are considered bailable whereas, serious offences, offences punishable with imprisonment for 3 years or more.

“Even in non-bailable offences, the charged individual is entitled for bail if the court comes to the conclusion that the prosecution has failed to establish a prima facie case against him or if the court is satisfied that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so264”, as stated in case of Kalyanchandra Chandra Sarkar vs Rajesh Ranjan@ Pappu Yadav & Anr265. The provision of bail to women, ailing and old age persons is mainly allowed priority subject to what the nature of the offense is.

The power to grant bail vests in the court before whom the accused is produced. The power of the Magistrate to concede bail does not rely upon his capability to try the case however on the punishment endorsed for that offence. An order refusing bail is not final, the bail once refused can be granted later in the same proceedings. As in case of Rajendra Singh Sethia vs State266, a fresh bails application under new conditions can be held maintainable. Also it is believed that the accused has right to be released on bail if there are no reasonable grounds for believing the accused guilty of a non- bailable offence but sufficient for further inquiry, according to Section 437(2)267 and also if trial is not concluded within 60 days according

2621963 AIR 255 263 The Code of Criminal Procedure 1973 §436, Universal’s 2020 264S Hegde,Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr on 18 January, 2005, INDIAN KANOON, https://indiankanoon.org/doc/1521407/ 265 AIR 2005 SC 921 266 1988 CrLJ 749 267 The Code of Criminal Procedure 1973 §437, Universal’s 2020 [123] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 268 to Section 437(6).

9. Right of medical examination Under Section 54269 of the CrPC gives the right to have himself medically examined by a medical expert of his own choice at any time when he is the custody or presented before the magistrate270.

Rights of the Accused during Trial

There are many privileges of an accused person in India during the trial proceedings within the court. It has been observed that the State has to make sure that due procedure of law is being followed. The rights of the accused during the trial include the subsequent.

1. Rights of accused to be present during evidence collection

As per Section 273271of the CrPC states that, all evidence which are taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, in front of his pleader.This section makes it mandatory that the evidence from both the defence as well as

268Ibid. 269Id. 270Mukesh Kumar vs State, 1990 CrLJ 1923 271 The Code of Criminal Procedure 1973 §273, Universal’s 2020 [124] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 prosecution side should be taken in presence of the accused. The proceeding is said to be vitiated in failure of presence of the accused.

In case of Banchhanidhi Singh vs State of Orissa272, where the accused was held for trial under Section 379273 and during the examination of the prosecution witnesses the accused was absent which made the whole trial vitiated.

Same with case of State of M.P. vs Budhram274 where due to the absence of accused the trial has been vitiated and also, mentioned in case of K. Belli Gowder vs Emperor.275

Video conferencing of the witness is considered to be violation as in case of Dr. P.B. Desai And Ors. vs The State of Maharashtraif opposed.

Also, when the personal appearance of the accused is not possible, the evidence can be recorded in the presence of his pleader thus, showing that actual presence is not considered necessary under Section 273276of the code.

2. Right to get Copies of Documents

Section 207277of the CrPC states, where the proceedings of the case has already started it provides the furnishing to the accused some relevant documents or some relevant and important statements and confessions of witnesses and police charge sheet and report where the proceedings have been initiated by the police so that the arrested person is aware of the charges and material against him by which the charges against him is going to be started by the prosecution.

This would give him the chance to prepare his defence and against the charges filed on him as in case of Pradeep Kumar Bansal vs State ason 22 January, 2013 and the non-fulfilment of this section can vitiate the whole trial or cam be used by the prosecution as a ground for setting aside conviction like done in case of Gayadhar vs State of Orrisa278. Here, without delay as mentioned in section means not as fast as possible but the documents to be given before the trial commences.

2721990 CriLJ 397 273 The Code of Criminal Procedure 1973 §379, Universal’s 2020 274 1996 CriLJ. 46 275AIR 1934 Madras 691 276 The Code of Criminal Procedure 1973 §273, Universal’s 2020 277Id. 278 1985 CrLJ 108 [125] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 279 Also, Section 208 of the code providessupply of copies of statements and documents to accused in other cases triable by Court of Session, where unlike Section 207280 of the code, Section 208281 has no police record available to the accused as in case of The State vs Dhirajlal Maneklal282.

3. Right to be considered innocent in the eyes of the court till proven Guilty The charged person has the right to be considered as innocent until his guilt is provedduring a trial is based on a legal principle. The principle is called “Presumption of Innocence”. The judge is believed to be neutral and has go make sure that the accused is not denied of his legal right.

In case of Shivaji Sahebrao Bobade & Anr vs State of Maharashtra283, the court held the principle of, “even if a thousand people may get acquitted, one innocent person should not be punished” but with caution. Thus, we can believe that the judiciary is very cautious and in mainly cases the burden of proof lies on the prosecution.

Also, the judgement of Chandra Shekhar vs State of Himachal Pradesh on July 06, 2018 held that the accused’s freedom is of utmost importance and can’t be stopped unless he is otherwise proved guilty.

4. Right to cross-examination

Under Section 311284of CrPC states, apart from the prosecution and defence, the court can at any time call the witness to re-examine who has been previously examine if he deems it fit or find it necessary.

Where the court has been empowered to summon any person as a witness not only on the motion of either the prosecution or the defence but also it can do so on its even motion as in case of Heeralal vs State of Madhya Pradesh285.

A magistrate is competent to summon any person except the accused as a court witness. The court has inherent power to recall a witness if it presented that he’ll give evidence which is

279 The Code of Criminal Procedure 1973 §208, Universal’s 2020 280Id. 281Id. 282(1957) 59 BOMLR 645 2831973 AIR 2622 284The Code of Criminal Procedure 1973 §311, Universal’s 2020 285 1997 2 Crimes 634 [126] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 different or additional to the evidence he has already given as in case of Mohd. Hussain Umar Kochra Etc vs K. S. Dalipsinghji & Anr.286

As in case of Mohanlal Shamji Soni vs UOI287, where the court has the power to recall any witnesses already examined or to summon any witness can be invoked even if the evidence in both sides is closed so long as the court retains seisin of the criminal proceedings.

Also, under section 243(2)288 of CrPC the magistrate may on the application or filing of accused, issue a summon to any of the witnesses to be present in the court or for him to produce any document or evidence as in case of Maheshchandra K. Trivedi vs State of Gujarat289.

286 1970 AIR 45 287 1991 CrLJ 152 288 The Code of Criminal Procedure 1973 §243(2), Universal’s 2020 2892000 1 GLR 701 [127] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

Post-Trial Rights of the Accused Person An accused person also has certain rights once the trial is over which are depended upon the result of his trial. This means if the accused has been convicted or acquitted.

1. Rights of a person acquitted When a person is declared innocent and acquitted by the court, it is believed that the person has the right to get a copy of the decision by court and the right to receive any kind of protection from police if he believes his life to be in danger after the acquittal.

2. Rights of a person proven guilty in court

2.1. Right to file an Appeal In Section 374290, CrPC lays down the rules for filing appeals by the arrested person against the decision of the court. The accused used this right in case of Ram Kishore Pandey vs State291. Also, in Section 389(1)292 of the code empowers the appellate court to suspend execution of sentence, or when the convicted person in confinement, to grant bail pending any appeal to it. Court is not required to give notice to the public prosecutor before suspending sentence or releasing on the accused on bail. Existence of an appeal is a condition precedent for granting bail. Bail to a convicted person is not a matter of right irrespective of whether the offence is bailable or non-bailable and should be allowed only when after reading the judgement and hearing the accused it is considered justified as in Section 436293 of the code. In case of Rohit vs The State of Madhya Pradesh, it was held for suspension of custodial sentence. 2.2. Right to Humane Treatment It is believed that even the convict has the right to be treated with respect and dignity. Being convicted doesn’t make that not human. Even if prison restricts the liberty but the treatment in prison should as such where prisoners get a life of self-respect, inner healing and training oneself to outside life as in case of Phul Singh vs State of Haryana294. In case of Arvinder Singh Bagga vs State of U.P. and Others,295it was held by the apex court

290 The Code of Criminal Procedure 1973 §374, Universal’s 2020 2911983 CriLJ 904 292 The Code of Criminal Procedure 1973 §389(1), Universal’s 2020 293Id. 2941979 4 SCC 413 2951995 AIR 117 [128] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 that inhumane treatment can not only be physical, it can be mental or psychological treatment where the prisoner is made to submit to the authorities. The apex court asked the U.P. government to take actions against the police officers involved and gave compensations to the victims. Inhumane treatment led to the violation of Art 21296of the constitution where it provides, “No person shall be deprived of his life or personal liberty except according to provisions which have been established by law.” Also, in case of D.K. Basu vs State of WB, the court addressed a letter to Chief Justice as a writ petition where he wrote that custodial death is a grave concern and there is not any effective method to deal with it. The case highlighted the misuse of power by the executive authorities and the atrocities they inflicted on the arrested person. In order to keep the police under check, the court passed a few guidelines for protection of an arrested person. The police officers in charge of the investigation or arrest should have exact, visible and necessary identification which includes their name and designation. These all details to be recorded in a register. Some other changes were mentioned in Section 50A of CrPC. Failure of a police officer to comply with any of the following provision make him vulnerable and questionable in court. The guidelines in this case are given in Section 41B, Section 41C, Section 41D of CrPC which were inserted in 2009. Right against inhume treatment also includes right against solitary confinement where a person is kept in a separate place away from other prisoners with only occasional visits from any other person. Solitary Confinement is isolation of a prisoner from the society with additional security and measures. In case of Kishore Singh vs State of Rajasthan297, Justice Krishna Iyer held that, “the torture by police is violation of Art 21298and also solitary confinement for a long period from 8 to 11 months and putting bar fetters on the prisoners in jail for several days on flimsy ground like loitering in the prison, behaving insolently and in an uncivilized manner, tearing of his history ticket must be regarded as barbarous and against human dignity and hence violative of Art21, 19299and 14300 of the Constitution.”301 Handcuffing of a prisoner is also violation of Art 19 of the constitution which was held in the landmark case of Prem Shankar Shukla vs Delhi Administration302where a habeas corpus was submitted in court.

296 INDIAN CONSTI. art 21., Universal’s 2020 297 AIR 1981 SC 625 298 INDIAN CONSTI. art 21., Universal’s 2020 299Id. 300Id. 301T. S. N. SASTRY, India and Human Rights: Reflections, (Concept Publishing Company 2005) 3021980 AIR 1535 [129] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 2.3. Right to lawful punishment Art 20(1)303 of the constitution of India states, “No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence”. As in case of Om Prakash vs State of Uttar Pradesh304, offering bribe was not an offense in 1948.

Special security to females There are special provisions in the law which given to females in the law where no female is allowed to be arrested without the presence of female constable and can only be searched by a female constable. Also, under Section 47305of the CrPC provides that, if an apartment is to searched which is occupied by a female who doesn’t appear in public, such person or police officer shall, before entering give notice to such female that she is at liberty to withdraw.as in case of as in case of Kamalabhai vs State of Maharasthra306. Also,Section 53(2)307 of the code states that, “if a female wants or is supposed to be medically checked then it must be done by only or under direction or in charge of a registered lady medical doctor.” This is to protect the privacy of a women. In case of Sheela Barse vs. State of Mahararashtra308, custodial torture of women was questioned and put forth. Also, women shall not be arrested before sunrise and after sunset. If the police officer arrests a female needs prior permission from the senior officers. In case of State of Maharashtra vs Christian Community Welfare309 after Bombay High Court, supreme court held that all efforts should be taken by the arresting officer to have in presence of a female officer during an arrest but if it delays the investigation and is absolutely necessary then police has to record the reasons for the same.

303INDIAN CONSTI. art 20., cl.1., Universal’s 2020 304AIR 1957 CriLJ 695 305The Code of Criminal Procedure 1973 §47, Universal’s 2020 306 AIR 1962 SC 1189 307The Code of Criminal Procedure 1973 §53(2), Universal’s 2020 308 1983 AIR 378 309AIR 2004 SC 7 [130] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

CONCLUSION & SUGGESTIONS 1. Conclusion:

An individual has been provided by various rights in the Code of Criminal Procedure and the Constitution of India. It can be seen from the paper that it is the responsibility of the police and the court to make an individual aware of his rights. We have discussed rights of an individual who has been accused of a criminal offence. Rights are also based upon the principle of presumption of innocence of an individual until the guilt is proved. Under section 50, Section 50- A, Section 55, Section 75 and Section 167 of the criminal code and Article 22(1) of the constitution provides that it is an individual’s right to be informed of the accusations and charges and it should be communicated to him by the police or the magistrate. Section 56, Section 57 and Section 76 of the code and Article 22(2) of the constitution gives an individual right against illegal arrest and the right to be presented before the magistrate within a time span of 24 hours. Section 221 and Section 300 of the code and Article 20(2) of the constitution provides an individual right against double jeopardy where an individual can’t be tried again for the same offence for which he has already been convicted. Section 303 and Section 304 of the code of the criminal code and Article 22(1) and Article 39A of the constitution gives an individual right to get legal aid of his choice. Section 309 and Section 327 of the criminal code and Article 21 of the constitution provides the right to an open and expeditious trial. Article 20(3) of the constitution given the individual right against self-incrimination where an individual can’t be forced to be a witness against himself and under Article 20(1) of the constitution, a person can only be convicted for a crime when the law is enforced not for any change which happens in the law after the commencement of the act. Section 436, Section 437(2) and Section 437(6) of the code of criminal procedure gives the accused right to file a bail application and Section 54 of the code gives the arrested person right to be checked by a medical practitioner. Section 273, Section 207 and Section 208 gives the accused right to be present in the court during evidence is presented in the court as well as the right to get copies of the documents such as chargesheet, statement from witnesses or any statement presented before the magistrate etc. Section 243(2) and Section 311 of the criminal code gives right to cross examine the evidences and witnesses. Section 374 and Section 389(1) and Section 436 of the code gives an individual to file for an appeal and also get bail for the same if the conditions are satisfied. Also, Article 14, Article 19, Article 20(1) and

[131] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Article 21 of the Constitution of India allows a convicted person to be treated with respect, liberty and against inhumane treatment and also for a lawful punishment if proven guilty. There are also special provisions provided to women in the code under section 47 and Section 53(2) to protect the dignity of women and prevent any kind of ill treatment towards them. Thus, it can be concluded that the provisions under the CrPC and The Constitution of India protects the rights and privileges of any individual in India.

2. Suggestions:

These rights are written in the law however, it is also the responsibility of the accused to be aware of his rights. There are many people in the country who are not aware of their rights and due to which they suffer and even their basic fundamental rights are also infriged, it is the responsibility of the authority that these rights provided are properly enforced and no person is deprived of their right and extra caution and care should be maintained that these rights are actually enforced. Still in India, extra steps should to be taken and further amendment is required so that the trials are conducted in timely manner and managed properly in the courts as there are still many cases which are lagged for years and the justice is not yet served.

BIBLIOGRAPHY PRIMARY SOURCES Bare Acts 1.Bare Act with Short Notes, The Constitution of India, Universal. LexisNexis, 2019. 2.Bare Act with Short Notes, The Code of Criminal Procedure, 1973, Universal. LexisNexis, 2020. 3.Bare Act with Short Notes, Indian Penal Code, 1860, Universal. LexisNexis, 2020. SECONDARY SOURCES Books 1.VSN.Shukla, The Constitution of India, (Ninth Edition, Eastern Book Company, 1996)

[132] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 2.M.P. Jain, Indian Constitutional Law, (Fifth Edition, 1059, Wadhwa and company, Nagpur, 2006) 3.R.VS Kelkar, Lectures on Criminal Procedure (Eastern Book Company, 6th Edition, 2016) 4.Ratanlal and Dheerajlal, The Code of Criminal Procedure (LexisNexis, 22nd Edition, 2017) 5.P.J. Alexander, Policing India In the New Millennium (Allied Publishers, 2002) 6.T.S.N.SASTRY, India and Human Rights: Reflections, (Concept Publishing Company 2005) Websites www.scconline.com blog.ipleaders.in www.indiankanoon.com Legistquest.com hindustantimes.com Indianexpress.com shodhganga.inflibnet.ac.in www.ssrn.coms

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FILM CENSORSHIP AND ITS IMPACT ON THE FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND

EXPRESSION – A CONSTITUTIONAL ANALYSIS - Sarashika Eakambaram, 3rd year student at NLU Delhi

INTRODUCTION

The right to freedom of speech and expression is one of the fundamental principles of a democratic society that was incorporated by the framers of the Constitution post-Independence.310 The right under Article 19(1)(a) is one intended to be construed broadly to encompass all forms of media including films, which have particularly been considered a powerful mode of expression given their widespread appeal and greater impact on members of society. It is for this very distinctly powerful appeal of films that they have been treated on a different standing as compared to other forms of expression – unlike the relatively liberal freedom of press or other forms of written or artistic publications, films have been subject to stricter scrutiny in the Indian context and Article 19(2) restrictions frequented imposed in the interests of the larger community. This stringent approach is primarily colonial in its origin, given the colonial government’s desire to severely restrict cinema, a new medium at that point of time, in order to clamp down on possible spread of nationalist ideals and also prevent the slide of impressionable minds into immorality. The Cinematograph Act of 1952 is largely a reflection of this conservative perspective in allowing for pre-censorship of films, a mode of restriction considered autocratic across the world. This Act and its accompanying Rules311 comprise the governing mechanism for film certification in India. However, a comprehensive critique of this approach cannot be in a black-and-white terms – A distinction has to be drawn between reasonable restrictions of films on permissible grounds and arbitrary refusal of certification under the garb of preserving sovereignty, public order or morality. The various nuances thus have to be examined through the analysis of the judiciary’s verdicts over the years and the social context in which censorship has been practised. Before proceeding further, a brief overview of Article 19’s structure is warranted. The right to freedom of speech and expression in India is not an absolute but is one subject to the reasonable restrictions enumerated under Article 19(2). Of these, the grounds of national interest, decency and morality, and public order are of key interest in respect to films as they form the most common basis for restricting exhibition. Films in India undergo the review machinery constituted under the 1952 Act which requires them to be certified by the statutory authority of Censor Board – on the basis of outlined criteria and guidelines, the films are duly evaluated and either certified for unrestricted or restricted public exhibition (U or A certificates) or denied certification on specific grounds. These grounds for restriction of exhibition under Section 5B(1) of the Act are incorporated verbatim from

310 The Constitution of India 1950, Article 19(1)(a). 311Cinematograph Act 1952 (37 of 1952) ; Cinematograph (Certification) Rules 1983. [134] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 312 Article 19(2). As will be subsequently analysed through landmark judgements, these decisions under the Act are often examined in terms of the scope of interpretation of such restrictions, the manner of evaluation of films for this purpose and validity of restrictions beyond those laid down in Article 19(2). This article also aims to analyse the censorship of films in television and the validity of state actions in regard to censorship and recent trends in film censorship. The researcher aims to conclude with the set of guiding principles that have emerged out of the judicial approach over the seven decades since Independence. While censorship in itself hasn’t been rendered obsolete yet, the changing society’s demand for a more liberal approach is but justified in the current context and this view has been reflected in the judiciary’s verdicts as well.

A CRITICAL ANALYSIS OF LANDMARK JUDGEMENTS ON FILM CENSORSHIP

I. KA Abbas v UoI

The issue of film censorship in India first came under the light in 1970 in KA Abbas v. UoI. The constitutionality of provisions of the 1952 Cinematograph Act, specifically Section 5B was challenged by the petitioner in this landmark case. The petitioner’s documentary named “A Tale of Four Cities” had been denied a certificate for unrestricted exhibition due to a short reference to Bombay’s red-light region, which was deemed unsuitable for public exhibition as it depicted relations of prostitution. The Court addressed the broader question of whether pre-censorship under the Act’s provisions was violative of the fundamental right to freedom of expression. On examining the nature of permissible restrictions under Article 19(2), the Court observed that censorship was but the only way for the implementation of certain restrictions on produced films.313 More intriguingly, the Court went further and stated that pre-censorship itself was a part of censorship and only differed in the stage of regulation, while the substantive aspect remained the same.314 The Court also distinguished this stricter treatment of films from other media on grounds of the stronger emotional response evoked by motion pictures. While the apex court acknowledged the comparatively liberal approach of England and USA on censorship, it emphasised the ground of public decency and public interest as a permissible restriction on Article 19(1)(a) in India.315 The constitutionality of Section 5B of the impugned Act based on Article 19(2) grounds was also upheld, since the Constitution prevented an excessively liberal interpretation. On the question of vagueness of the guiding principles of such regulation under the Act, the Court in rejecting the “void for vagueness” doctrine held that laws may not be struck down only for reason of vagueness but rather construed in line with the legislative intent.316The Supreme Court thus upheld the validity of pre- censorship of films in light of community interests trumping over individual interests and the need to preserve public morality.

312 Indian Cinematograph Act 1952 313 KA Abbas v Union of India AIR 1971 SC 481. 314 Ibid ¶20 315 See Ranjit Udeshi v. Maharashtra 1965 AIR 881, that dealt with sale of the book “Lady Chatterley’s Lover” which was determined to be obscene. 316 KA Abbas v UoI , ¶48 [135]

www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 II. Raj Kapoor v Laxman Censorship was again the centre of inquiry in this case of 1979, wherein the interplay of Section 79 of IPC and the Cinematograph Act were considered in determining whether a film’s certification under the Act was legal justification for exempting it from Section 292 IPC’s application for indecency. The comprehensive structure of the Cinematograph Act in laying down guiding principles, specific procedural machinery for film review and appropriate restrictions in line with Article 19(2) was highlighted by the Court in stating that due concerns on the indecency would be suitably addressed within the Act itself.317 More importantly, the court observed that the ultimate power of censorship lay with the masses and the Board was required to be diligent in drawing the line between immoral films and progressive motion pictures– the fundamental freedom cannot be unreasonably restricted on narrow interpretation of 19(2) grounds and neither can it be disproportionately enlarged in leading to immorality or public disorder. III. S.Rangarajan v Jagjevan Ram

The subsequent landmark case in this sphere that invited the scrutiny of the Supreme Court was this case of 1989.318 The appeal in this case was raised against the Madras High Court’s revocation of “U” certificate to the Tamil film “Oru Oru Gramathile” in response to petitions that the film’s caste reservation theme would possibly create a law-and-order issue.319 It was contended by the appellant’s counsel that the film was to be viewed in its entirety in respect to the depicted theme and emphasised such cinematic expression as covered within the ambit of Article 19(1)(a). The Court on this occasion as well distinguished the liberal nature of USA on freedom of communication from the Indian right to freedom of speech and expression subject to the Article 19(2) restrictions that were deemed essential for the community’s interests by the framers of the Constitution. The distinctly different standing of films prevent its operation in free market. Importantly, the court reaffirmed Abbas in stating that pre-censorship wasn’t merely desirable but rather, necessary.320 As per the censorship guidelines directed at ensuring responsibility to societal values, maintaining public order and foreign relations were held to be valid objectives necessitating prior restraint. But the Court also reiterated that the applicable standard would be of a reasonable and prudent man and not weak-minded or easily-swayed individuals. More importantly, the apex court came down heavily upon the opinion that the release of the film would cause a public order issue due to its sensitive theme – the importance of freedom of discussion in a democratic society cannot be diluted by the state. Further, the balancing of societal interests with the Article 19(1)(a) freedom is not an equally balanced scale but one that tilts in favour of the latter, unless the situation absolutely necessitates suppression of the right in order to preserve interests of the community. Even in such event of necessity, the high threshold is of a direct, proximate relation to the act of

317 Ibid ¶7 318 S.Rangarajan v Jagjevan Ram, (1989) 2 SCC 574. 319 Ibid ¶5 320 Ibid ¶10 [136]

www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 321 expression. In this context, the state’s request for non-exhibition to prevent public disorder is but a failure on the government’s part in its duty to protect the fundamental right by succumbing to intimidation and threats of protests. It is the state’s obligation to deal with the manner of audience reaction where the act of expression was validly within the ambit of Article 19(1)(a), thus denouncing intolerance in a democratic setup. IV. Bobby Art International v Om Pal Singh Hoon

In what is famously referred to as the “Bandit Queen” case, the Court in 1996 examined the question of whether the “A” certification for exhibition of the movie “Bandit Queen” was to be revoked for the presence of certain scenes.322 The film was based on the real story of Phoolan Devi, a village woman- turned-dacoit and depicted her various struggles in life. The appellant protested the various cuts proposed by the Board which was later acknowledged by the Tribunal in granting the film an “A” certificate for exhibition. However, the High court quashed the “A” certificate post the film’s release on petition of a Gujjar community member who objected to the derogatory depiction of his community and women in the film. The Division Bench overturned the Tribunal’s order on the grounds that the expletives used in the film, the scenes of the protagonist’s rape and nudity was denigratory and indecent thus requiring them to be deleted from the movie. The apex court duly referred to the landmark decisions rendered in this sphere, beginning with KA Abbas, where the question of whether the film’s artistic merit overweighed the obscene elements had been highlighted. Specifically, the observation that aspects like “rape and immorality” in themselves do not attract censorship unless the manner of their depiction is such that such restrictions become necessary. Reference was also made to the cases of Samaresh Bose323and Shailabala Devi324, where this court had held that vulgarity cannot be necessarily equated to obscenity and tendency to deprave would have to be looked at from the work as a whole against the context in which it was made. The socially relevant theme of the film in depicting the adverse impact of violence and abuse on a woman was thus the backdrop against which the Court analysed the impugned scenes. In this light, the alleged portions of nudity and rape were not intended to glorify such elements but to evoke a reaction of disgust at the perpetrators, thus placing the scenes outside the ambit of restriction – the court thus allowed the appeal in stating that a film could not be restricted for the depiction of a social evil where the purpose is to elicit disapproval of such evils.325 V. FA Pictures v Central Board of Film Certification

In 2004, a liberal perspective on censorship was yet again evinced by this Bombay High Court judgement where Justice Chandrachud underlined the importance of freedom of expression in Indian society.326 The

321 Ibid ¶42 322 Bobby Art Int v. Om Pal Singh Hoon, AIR 1996 SC 1846 323 Samaresh Bose v. Amal Mitra, 1986 Cri LJ24 324 Bihar v Shailabala Devi, 1952 Cri LJ1373 325 Bobby Art Int v. Om Pal Singh Hoon, ¶¶29-34. 326 F.A. Pictures International v. CBFC, AIR 2005 Bom 145 [137] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 case concerned the denial of certification for the film “Chand Bhujh Gaya” for its theme of the Gujarat Riots. The certification had been refused on the ground that the visuals from the film had the danger of inciting communal. The petitioner expressed his grievance on such refusal as the film was intended to promote communal harmony by showcasing the evils of communal violence and deletions would weaken this social message, Justice Chandrachud, in following the line of reasoning of the Bandit Queen case, opined that films dealing with such controversial themes would necessarily have to depict the social reality and to exclude such references would take away from the main objective of such depiction. The element of dissent and expression of critical perspectives on the existing reality were regarded by the Court as essential aspects of democracy – a filmmaker’s right to depict a theme is not premised upon the obligation to exclude non- mainstream thoughts.327 The petitioner’s contentions were thus accepted by the court in examining the film from the broader perspective of its intended message – the scenes of violence and communal disturbance were not intended to be extolled but rather criticised and dissuaded.

CENSORSHIP OF FILMS IN RESPECT TO TELEVISION

In the sphere of television as well, the question of censorship under the Cinematograph Act has been examined in depth by the judiciary. The reasoning adopted in examining rejection for televised screening has been on the same lines as exhibition of films. The primary principles emphasised by the judiciary through these string of judgments have been those of restrictions being limited only to those grounds under Article 19(2), the filmmaker’s right to have a film screened where it was within Article 19(1)(a) rights and the need to examine the film as a whole in light of its theme for the purpose of determining censorship. A brief analysis of the key aspects of these judgements crystallises the central principles further. In 1988 in Odyssey Communications v Lokvidyan Sanghatna328, the court struck down the High Court’s injunction on the screening of a serial named “Honi Anhoni” which had been denied telecast for its alleged likelihood to promote superstitious beliefs. The Court in striking down the restrictive injunction observed that a filmmaker’s right was to be viewed in the same light as those of a citizen in expressing his views – this being the case, the right could not be restricted on any other ground other than that of Article 19(2). In the same year, the court also entertained an appeal against the Bombay High Court’s decision in Ramesh v UoI329 where the impugned serial “Tamaas” was ordered to be screened without restraint as it did not propagate violence but rather depicted a message of peaceful coexistence while dealing with the events post Partition. The apex court upheld the High Court’s decision in holding that the overwhelming impact of the social message shadowed the other elements of violence in seeking to promote tolerance.

327 Ibid ¶13

328Odyssey Communications Private Limited v. Lokvidyan Sanghatna,AIR1988SC1642.

329 Ramesh v. UoI [1988] 2 SCR 1011 [138] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 330 In the LIC & UoI v Manubhai Shah case of 1992, the issue of whether there existed a fundamental right of telecast of a film on Doorsharshan and whether the grounds for refusal of such telecast are permissible if beyond the Article 19(2) grounds was determined by the court. An award-winning film on the Bhopal Gas Tragedy had been rejected for telecasting by Doordarshan for the reasons that the film was not currently relevant, lacked restraint or moderation of any kind and was deemed nor right for telecast when victims’ claims were still subjudice. The High Court upheld the filmmaker’s right to have the film telecasted and observed that Doordarshan’s guiding grounds were not in line with Article 19(2) restrictions and thus could not be regarded as a valid basis for impinging on the fundamental right under Article 19(1)(a). The burden of proof for imposing restrictions thus lay on the relevant authority to justify them on Article 19(2) grounds.331 The issue came up again before the court in the well-known case of Director General of Doordarshan v Anand Patwardhan in 2006.332 The case concerned the request for telecast of respondent-filmmaker’s documentary “Father, Son and Holy War” on Doordarshan – the film dealt with the theme of gender violence. It is interesting to note here that the two previous documentaries of this trilogy on communal violence had also been denied telecast by Doordarshan on similar grounds but had nevertheless been ordered to be aired and had received a positive reception. The court yet again reiterated that the motion pictures are not to be tested for violation of grounds in specific portions but as a whole in light of the theme depicted by them.333 The award-winning documentary in this case was held to showcase the message of communal harmony. In light of this objective underlying the film, it was held to be within the right of freedom of expression. Doordarshan as a state entity was not allowed to deny screening on grounds other than Article 19(2),ie, own internal guidelines.

STATE ACTIONS OF CENSORSHIP AND RECENT TRENDS

While the power of certification of films is vested exclusively in the Central government,334 State governments utilise the powers under the State List335 to prevent exhibitions of films despite certification by the Censor Board. State governments often cite possible public disorder and law-and-order situations as a basis for denying screening of certified films in their state – actions that but evince underlying political interests or pandering to threats of violence by certain organisations given the sensitive themes of certain films. A key example is that of Shree Raghavendra Films v Andhra Pradesh336in 1995 wherein the state’s regulatory Act on cinema was invoked to deny exhibition of the movie “Bombay” despite certification, for the reason of hurting certain community sentiments. This restriction was later quashed by the AP High Court for its arbitrary reasoning as the film intended to promote a message of communal harmony.

330Life Insurance Corporation of India & UOI) v Manubhai Shah & Cinemart Foundation, AIR 1993 SC 17. 331 Ibid ¶23 332 Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346 333 Ibid ¶17 334 The Constitution of India 1950, Article 246, Seventh Schedule – Entry 60 of the Union List. 335 Ibid, Entry 33 of the State List. 336 Sree Raghavendra Films v Andhra Pradesh, MANU/AP/0434/1995. [139] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Another key example is that of the “The Da Vinci Code” film, whose exhibition was protested against by Christian organisations across states. As a result, multiple states banned the film under respective state laws – though such orders were quashed by the High Court in some states337 and the Supreme Court refused to ban screening of the film given its fictional nature and approval by the Censor Board. In 2019, the Bengal government’s indirect restriction of a film under public disorder concerns attracted the criticism of the apex court which then ordered compensation for the filmmaker.338 In recent times as well, the Censor Board has often drawn flak for its oft regressive perspective in certifying films – “The Pink Mirror” on Indian transgenders was banned for vulgarity in 2003. Later in 2016, multiple cuts were demanded for the certification of “Udta Punjab” that dealt with the drug usage problem in Punjab – this was later overturned by the Bombay HC for lack of reasonable grounds of restriction. The Board’s refusal to certify “Lipstick under my Burkha” in 2017 also invited severe criticism for its patriarchal approach.

CONCLUSION

The call for limiting film censorship has been on the rise in recent times, in line with the changing circumstances. Article 19(1)(a) and 19(2) are both intended to be dynamic provisions to reflect social values and individual rights. While the authority’s approach towards censorship may be legitimately criticised, the need for such restriction in itself is a broader question that remains heavily debated. The various cases have led to the culling out of the following observations and principles: First, the continuing importance of the fundamental right to freedom of speech in a democracy339 and the state’s duty to protect this right by preventing possible demonstrations of threats. Thus, the balance between this fundamental right and community interests tilts in favour of the former, unless reasonable grounds are shown for its restriction. Second, the distinction drawn by courts between motion pictures and other modes of expression – the instantaneous impact of cinematic works, the greater emotional response elicited from the audience and its capacity for social change have all been recognised as crucial aspects warranting a separate and careful treatment of films as compared to freedom of press or speech. Third, the standard of examination of films – the judiciary has held the standard to be that of reasonable prudent men and not hypersensitive or easily swayed individuals. Equally important is the principle that permissible restrictions on films cannot go beyond those under Article 19(2) – autocratic actions exceeding the scope of this provision in restricting films are invalid and liable to be struck down. Fourth, the balance of interests that has to be struck by the certifying authority and the judiciary in ensuring proper exercise of this right without disproportionate restriction or enlargement. The right under 19(1)(a) is not absolute but circumscribed by Article 19(2) in India – thus community interests are also considered in allowing the exercise of this right. Lastly, the manner of examination of films for the purpose of censorship. The basic requirement is to not

337Sony Pictures v. State 2006 3 LW 728 ; Lakshmi Ganesh Films v. Andhra Pradesh, 2006(4) ALD 374. 338 Indibily Creative Private Limited v West Bengal , : AIR 2019 SC 1918 339 Sakal Papers v UoI [1962] 3 SCR 842 [140] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 analyse problematic portions of the film in isolation but rather, broadly examine them in light of the whole film and its theme. The film should also be analysed in regard to its temporal and cultural background. The test for obscenity is also relevant in this context as vulgarity of content cannot be equated to obscenity -the tendency to deprave needs to be clearly shown for the test to be met. There is thus a need for a well-rounded perspective of the film and the filmmaker’s intention in ascertaining the applicability of 19(2). It thus emerges from these observations that the fundamental right to freedom of expression is one that extends equally to filmmakers, albeit with a certain degree of regulation given the greater impact of films on the masses. The restrictions however form only the exceptions to the norm of the fundamental freedom – they are to be narrowly construed within Article 19(2) grounds and imposed only where necessary for societal interests. While certain actions of the Censor Board and governments do raise legitimate questions on the extent of adherence to these principles, the fact remains that they comprise the essential guidelines for censorship in India and are key to ensuring filmmakers’ freedom in contemporary times.

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SHOULD INDIA FOLLOW THE CULTURE OF GIVING DEATH PENALTY AS PUNISHMENT OF RAPE? By Mr. Param Bhamra340& Mr. Aditya Mathur341 Abstract Incident of Rape cases are not a rare sight on news channel these days, there are enough rape cases in India that media cannot even begin to cover even 10% of the cases. Delhi, Capital of World’s future Superpower is the place where rapes are so common that it is being called as “Rape Capital”, as nearly one rape incident took place daily and that’s just the capital. Many other states such as Uttar Pradesh and Bihar, rape incidents are horrifically normal as most of the accused roam free by exercising their social muscle. One of the main reason for this is corrupted minds or inadequate resources or skills, fails to save and protect the girls. Combine this with the lack of proper investigation and serving of injustice, it becomes a motivational factor for the perpetrator to commit such a heinous crime. Rape in India has become a huge problem as it terrorizes half the population to live in fear of the other half. This paper focuses on the provisions laid down by the domestic law and are comprehensive in nature and includes almost all the scenarios except Marital Rape. This paper further focuses on the economic hindrances which are being faced due to this ever imminent threat and solving of which will bring a push into India’s economy. At the end, this paper also analyses the scope of death penalty under the offence of rape and whether the punishment will serve as deterrent to other or not along with possible repercussions of providing the same and how will it affect the society in large and whether it is constitutional or not? KEYWORDS: Rape, Human Rights, Modesty, Consent, Involuntarily I. INTRODUCTION

Humankind generally tends towards its animalistic instinct to procreate and sometime this instinct can make the man fail to remember that in act of procreation the consent of both the persons is required, sometimes when women doesn’t give her consent, the men as physically stronger than women tends to force himself upon her by neglecting her consent and outrage the modesty of women. This concept is known as Rape, the definition of rape that is provided under various different criminal codes of the world basically mentions that to constitute an act of rape, there should be an act of non-consensual sexual act or forceful penetration of the same nature, main ingredient of rape is Lack of Consent. Rape is one of the heinous type of offence, a man is capable of committing against the women. Rape is the mental and physical torture or oppression of a gender over another gender. Up until 2012, Rape laws in India were gender biased under which the charge can only be filed against by female against male but after 2012, the view changed along with the definition of rape under Indian Penal Code and made it unbiased as now it recognizes victim of any gender. II. CRIMINAL LAW AMENDMENT 2018

The Criminal Law Amendment342 was introduced in 2018 following a public outcry in Kathua Rape Case where a minor girl was brutally raped and then murdered, this criminal law

340Mr. Param Bhamra, Founding Partner at MediateGuru, Email: [email protected], Mobile No. +91 9971087756 341Mr. Aditya Mathur, Founding Partner at MediateGuru, Email: [email protected] , Mobile No. +91 8447919954 [142] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 amendment increased the minimum years of imprisonment sentence for offence of rape against girl children of all three age categories. Under new Criminal law amendment, if the victim or minor girl is under the age of 12 years, the perpetrator will face minimum imprisonment sentence of 20 years which was mere 10 years before passing of this amendment343. The maximum amount of punishment available under the offence of rape is death penalty344. In the cases of gangrape where the age of the child is under the age of 12 years345, the minimum punishment to pass is life imprisonment sentence which was earlier before the Criminal Law amendment was mere 20 years while the maximum remains the same as it was and still is death penalty. In case where the age of the child upon which the rape has been committed falls under the age bracket of 12 to 16 years346, the offence of rape in such cases will be punishable with the imprisonment of minimum of 20 years which was earlier 10 years and the maximum punishment a person can get remains same as in such cases the maximum sentence to pass is life imprisonment. If a girl whose age is between 12 years and 16 years is gang raped347, the culprit will face minimum punishment of life imprisonment sentence. Repeat offenders of the said offence will be punished with the minimum punishment as life imprisonment or maximum punishment as death penalty348 under this Criminal Law Amendment.

The Criminal Law Amendment provided for time-bound investigation in cases of rape of girl children. The investigation case of offence of rape in matter of a child needed to be completed within two months349. Such cases of rape are to be tried by the fast track court in order to provide speedy disposal of the case and for providing the proper justice. The Criminal Law Amendment clearly dictates that any appeal if made in contradiction to the sentence passed by the trial court needs to be disposed of or decided within the period of six months350. Under this new amendment, accused or culprit has no entitlement to get anticipatory bail, in cases of rape of child with less than 16 years of age351.

III. PROVISION OF DEATH PENALTY IN FOREIGN COUNTRIES

342The Criminal Law (Amendment) Act, 2018 No. 22 of 2018. 343Section 376AB of Indian Penal Code, 1860 344Section 376A, Section 376AB, Section 376DB, Section 376E of Indian Penal Code, 1860 345Section 376DB of Indian Penal Code, 1860 346Section 376D of Indian Penal Code, 1860 347Section 376DA of Indian Penal Code, 1860 348Section 376E of Indian Penal Code, 1860 349Section 309 of Code of Criminal Procedure, 1973 350Section 374(4) of Code of Criminal Procedure, 1973 351Section 439 of Code of Criminal Procedure, 1973 [143] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 The offence of rape is not treaded normally anywhere in the world and almost every state which exists or any civilization that ever existed considered rape as a serious crime and gave punishments accordingly to the gravity of the crime. The punishments globally vary with changing demographics of the place such as:

a) Egypt- Criminal Code352 used to grant any perpetrator who committed the offense of rape on the victim, an option to marry the victim if he want to avoid the penalty incurred upon him by the virtue of this Code but this article faced criticism and after protests from NGO’s or activists working for women’s rights and human-rights, it was claimed by such protestors and activists that this article motivated people to commit rape and forced women to live with her rapists for her whole life whereas the rapists can go marry someone else too. In wake of the protests, Article 291 was repealed in 1999353. In 2011, Presidential Decree354, increased the gravity of penalties provided in the Criminal Code for various crimes committed against women which included offences such as rape, public sexual harassment, sexual assault, and kidnapping. The penalty given to the offender for kidnapping the women was increased to “aggravated imprisonment” for minimum 20 years which is equal to “Rigorous Imprisonment” under Indian Law, such penalty is provided under article 289355 and such penalty can be increased to life imprisonment or passing the sentence of death if the kidnapped commits sexual assault against the women he had kidnapped. Also, the punishment for rape which has been provided under Article 267356 of the Criminal Code has also been enhanced from “aggravated imprisonment” to punishment of life imprisonment or passing the sentence of death.Laws of Egypt or rather amendments in their laws clearly state their intention to punish the offenders which commits crime against the women but if we talk about Efficiency of these laws in deterring the people not to commit these offences. According to a poll conducted after amendments and stricting in laws357, Cairo which is the Capital of Egypt is considered as one of the most dangerous city for women.

b) United Arab Emirates- Article 354 to Article 357358 talks about the cases of Rape in United Arab Emirates. The Penal Code of UAE gives death penalty to the offender if he

352Article 291 of Criminal Code of Egypt 353 Presidential Decree No. 14 of 1999 354 Presidential Decree Promulgating Law No. 11 of 2011 355Criminal Code of Egypt, 1992, art 289. 356Article 267 of Criminal Code of Egypt 357Belinda Goldsmith, “EXCLUSIVE –Cairo named most dangerous megacity for women” Retrieved from https://af.reuters.com/article/africaTech/idAFL8N1L74J3 on 17/01/2020 358 Federal Law No. 3 / 1987 THE PENAL CODE [144] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 359 is found guilty of using coercion to have sexual intercourse with the female and in case where only attempt to penetrate is committed, the offender will be punished with the life imprisonment360 and in case if the said offence of rape results in the death of the victim, the offender will be awarded with the sentence of death361. Laws of the United Arab Emirates also shows their clear intention to punish the wrongdoers but the reality is much more horrifying as in order for a rape to be proved and made conviction UAE laws need either a confession from the rapist itself or need at least four adult males as the witness of such crime. One need to think here and imagine the series of circumstances under which modesty of a woman is being outraged as she is being raped and four adult males are present there watching and witnessing the happening of this offence in front of their eyes rather than helping her. In all cases of rape in the country there exists laws which makes extra marital sex illegal for a woman, in that case if a woman reports the offence of rape committed against her, she would most often likelyto find herselfunder the criminal investigation and actually get punished for reporting rape against her. This lead to the results in which the victims doesn’t report rape as they fearing that they will be found guilty for adultery and punished accordingly.

c) China – Republic of China provides that whoever rapes a woman using means of violence, coercion or any other means shall be subjected to punishment of fixed-term imprisonment of minimum three years but should not exceed than 10 years. Furthermore, if anyone has sexual intercourse whether it be consensual, with a female being under the age of 14 years, such act shall be deemed to be rape and heavier punishment will be given in accordance. It also provides for, if anyone rapes a woman or has sexual intercourse whether it be consensual with a girl being under the age of 14 years shall, in any of the following circumstances, shall be awarded with minimum imprisonment of not less than 10 years and such punishment can be increased to life imprisonment or even passing of death sentence in extreme cases362. Laws of China are somewhat like laws of India as they provide death punishment only in the cases when the offence of rape has been committed against the children. Effectiveness of such laws can be found by seeing the rape stats of the country, although the country does not maintain official records of rape

359Article 354 of Federal Law No. 3 / 1987 THE PENAL CODE 360Article 355 of Federal Law No. 3 / 1987 THE PENAL CODE 361Article 357 of Federal Law No. 3 / 1987 THE PENAL CODE 362Article 236 of Criminal Law of the People’s Republic of China [145] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 363 stats but the stats of US Department of State that in year of 2007, there were 31833 cases of rape. This stat however being very big in the number but if compared to the vast population of China, this number can be accounted as minimal which shows that the laws of the China are very much efficient in controlling the crimes of rape. d) Afghanistan - Rape is a crime in Afghanistan and rapist can be prosecuted legally for committing the crime, but reality is very much horrifying as the cases of the rape is not commonly and very rarely reported to the authorities because of the threats or risks that a female has to incur if they file complaint against her rapist. Victims of the rape firstly suffers from the horror of getting raped then she face fear of being subjected to violence as she become subjected to victim of honor killings by her family along with fear of being getting attacked by the proper judicial authorities of the country as they might get charged with the crime of adultery, a crime which is punishable by death sentence in the country. Also the victims are subjected to be forced by their families and societies to marry the person who raped her and such case happens more preferable if the woman becomes pregnant in result of the act of Rape.In 2013, Afghanistan got global attention when a story of a rape victim364 got out as she was raped and then when she reported the rape, she got jailed for committing the offence of adultery and in result she got pregnant and gave birth to a child while serving imprisonment. Due to this matter getting International attention and outrage of people in the country and all over the world, she was then pardoned by Afghanistan President Hamid Karzai.

IV. PROVISION FOR DEATH PENALTY IN INDIA FOR RAPE Before 2012, there were no case of Death penalty to be given in the case of Rape in India but after the Nirbhaya case365 in New Delhi on 16th Dec 2012 and after the huge public outcry for seeking death penalty for the rapist who raped the girl and then left her to die on a roadside. Supreme Court gave death punishment to the convicts of the Nirbhaya case which established a precedent and allowed High Courts to give death penalty to the rapists. Furthermore after Criminal Law Amendment366 of 2013, Legislation provided three more sections which provides death penalty for offence of rape to the rapist such as under Section 376A which provides for punishment where the victim as the result of rape dies or gets in persistent vegetative state, Section 376AB which provides for punishment for rape on woman

363Paxcely Marquez, “Rape in China” Retrieved from https://web.archive.org/web/20131016100422/http://www.uschina.usc.edu/w_usci/showarticle.aspx?articleID=1303 7&AspxAutoDetectCookieSupport=1 on 17/01/2020 364Nick Paton Walsh, “An Afghan Nightmare: Forced to marry your Rapist” Retrieved from https://edition.cnn.com/2015/04/07/asia/afghanistan-gulnaz-rape-marriage/ on 17/01/2020. 365Mukesh & Anr Vs State for NCT of Delhi & Ors on 5 May, 2017 Criminal Appeal Nos. 607-608 Of 2017 366Supra Note 1 [146] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 with age falling short of twelve years, Section 376DB which provides for punishment for offence of gang rape of a woman with age falling under twelve years of age, Section 376Eprovides for punishment of repeat offenders. Although no one except Nirbhaya367 convicts got the death penalty for offence of rape as of now and also the sentence of death has not been executed. This might be because the judiciary follows the rule that life imprisonment is rule whereas death penalty is an exception to it as India follow Reformative theory of Punishment, Courts focuses more on reforming the criminals to be a better person.

V. CONCLUSION There can be no possible end to this debate as death punishments has both its benefits and cons. On the one hand it can ensure justice to the rape victims, on the other hand it is violative of human rights of accused. On the one hand, it deters the perpetrators and can possibly save countless of lives of women but on the other hand, it has no conclusive proof of such deterrence. On the one hand, it control’s or limit the rape rates in the country to minimal whereas on the other hand, if wrongfully decided, can lead to loss of life of an innocent person. As stated above, there are various factors to be considered and every situation is wholly different from the previous one. At the end, the author would like to conclude with saying that their should be no scope for death penalty in India considering the reasons stated above, as the wrongful judgement given against one innocent can cause insufferable harm to the image and public’s trust on judiciary and can lead to massive protests all over India.

367Supra Note 24 [147] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

CONSTITUTION AS THE GUARDIAN OF RIGHTS OF ITS PEOPLE

SUBMITTED BY NITIN DHATARWAL

DETAILED CONTENT

1. INTRODUCTION AND RESEARCH METHODOLOGY 1.1 INTRODUCTION 1.2 RESEARCH METHODOLOGY 1.3 RESEARCH PROBLEM 1.4 HYPOTHESIS 1.5 OBJECTIVES 1.6 REVIEW OF LITERATURE 2. CONCEPTUAL UNDERSTANDING 3. CONCLUSION

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INTRODUCTION The discussion on the essential construction of the Constitution, lying lethargic in the documents of India's established history during the most recent decade of the twentieth century, has returned in the public domain. While setting up the National Commission to Review the Working of the Constitution (the Commission), the National Democratic Alliance government (framed by an alliance of 24 public and local level gatherings) expressed that the essential design of the Constitution would not be altered. Justice M.N. Venkatachalaiah, Chairman of the Commission, has accentuated on a few events that an investigation into the essential construction of the Constitution lay past the extent of the Commission's work. A few ideological groups - prominently the Congress (I) and the two Communist factions which are in the resistance - have clarified that the survey practice was the public authority's ploy to look for authenticity for its plan to receive extremist protected changes subsequently obliterating the essential construction of the archive. The idea of Rule of Law is that the state is administered, not by the ruler or the designated agents of individuals yet by the law. A district that cherishes the standard of law would be one wherein the Grundnorm of the country, or the fundamental and center law from which any remaining law determines its position is the preeminent authority of the state.368 The ruler or the delegates of the republic are represented by the laws determined out of the Grundnorm and their forces are restricted by the law. It is a composed report, the major rule that everyone must follow, which pronounced India to be a socialist, secular and democratic republic, having a semi government structure. It is a political archive which conveys state power among various organs and manages its activity in its impact on individuals. To accomplish the objective of nobility of the person with equity, freedom and balance the constitution ensures certain principal rights and accommodate its simple implementation through the Hindu court and the high court.

RESEARCH METHODOLOGY This research is all about how the constitution of the country works and acts as a main rule or law around which all other ordinary law of the land revolve .It provide the individual of country to work according to their wishes and in their comfort zone but by not violating the rights ,values or customs of other people of the country .Because they also enjoy or have equal amount of rights according to the constitution .And the constitution of the country keep a check that those rights do not get violated and to make a check the government of the country appoint the officials at different level to look into these issues and to have a record and knowledge that there is no violation of any one’s right because of an act committed by someone else .And if such things happen then according to the law or justice of the country .The person who has suffer something because of an act of someone else than that person has to written the thing to him and compensate for that thing. Parliament's power to correct the Constitution, especially the section on the basic privileges of residents, was tested as right on time as in 1951. After freedom, a few laws were ordered in the states with the point of improving area possession and tenure designs. This was with regards to the decision Congress gathering's constituent guarantee of actualizing the communist objectives of the Constitution [contained in Article 39 (b) and (c) of the Directive Principles of State Policy

368Kelsen’s Theory of Grundnorm [149] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 that necessary impartial dissemination of assets of creation among all residents and counteraction of centralization of abundance in the possession of a couple. Land owners - antagonistically influenced by these laws - requested of the courts.369 The courts struck down the land changes laws saying that they violated the crucial right to property ensured by the Constitution. Provoked by the troublesome decisions, Parliament put these laws in the Ninth Schedule of the Constitution through the First and Fourth alterations (1951 and 1952 separately), in this manner successfully eliminating them from the extent of legal audit.

Parliament added the Ninth Schedule to the Constitution through the absolute first alteration in 1951as a method for inoculating certain laws against legal survey.370 Under the arrangements of Article 31, which themselves were revised a few times later, laws set in the Ninth Schedule - relating to procurement of private property and remuneration payable for such obtaining - can't be tested in an official courtroom on the ground that they abused the essential privileges of residents. This defensive umbrella covers in excess of 250 laws passed by state councils with the point of directing the size of land property and canceling different occupancy frameworks. The Ninth Schedule was made with the essential target of forestalling the legal executive - which maintained the residents' entitlement to property on a few events - from wrecking the Congress party drove government's plan for a social revolution. Land owners again tested the protected corrections which set land changes laws in the Ninth Schedule under the steady gaze of the Supreme Court, saying that they abused Article 13 (2) of the Constitution. Article 13 (2) accommodates the insurance of the basic privileges of the citizen. Parliament and the state lawmaking bodies are obviously disallowed from making laws that may remove or condense the central rights ensured to the resident.371 They contended that any correction to the Constitution had the situation with a law as perceived by Article 13 (2). In 1952 (Sankar Prasad Singh Deo v. Union of India) and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court dismissed the two contentions and maintained the force of Parliament to alter any piece of the Constitution including what influences the principal privileges of residents. Essentially however, two contradicting decided in Sajjan Singh Rajasthan case raised questions whether the basic privileges of residents could turn into a toy of the lion's share party in Parliament.

RESEARCH PROBLEM The two principle of the law of the country are- supremacy of the law and equity before the law. This has consistently been the essential comprehension of the standard of law that propounds that the law rules over all individuals including the people directing the law. The legislators need to give reasons that can be supported under the law while practicing their forces to make and control the law. While the rule of matchless quality of law sets set up governing rules over the public authority on making and managing the law, the rule of balance under the steady gaze of the law looks to guarantee that the law is controlled and authorized in a fair way. It isn't sufficient to have a reasonable law yet the law should be applied in an only way also. In including this as a prerequisite for the standard of law, Dicey's conviction was that it was deficient to just remember the over two standards for the constitution of the country or in its different laws for the state to be one where the standards of rule of law are being followed. There should be an authorizing authority and Dicey accepted that this authority could be found in the courts. The courts are the authorities of the standard of law and they should be both unbiased and liberated from every single outside impact. In this manner the opportunity of the legal turns into a significant column to the standard of law.

HYPOTHESIS

369Constitution of India- Article 39 (b) and (c) – pg. no 21 370Constitution of India -Ninth schedule -pg. no-222 371Constitution of India -Article 13 (2)- pg. no-25 [150] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 The Constitution of India provide certain rights and benefits to the people of the country. So that during to time to emergency or because of any other reason the people of the country do not feel that there is a discrimination going on between them. The Supreme Court of Indian has additionally fortified this component through its different decisions, the first of them being, A D M Jabalpur v. Shivkanth Shukla. 372For this situation, the inquiry under the steady gaze of the court was 'regardless of whether there was any standard of law in India separated from Article 21'. This was with regards to suspension of requirement of Articles 14, 21 and 22 during the announcement of a crisis. The response to most of the seat was in negative for the topic of law. Notwithstanding, Justice H.R. Khanna disagreed from the greater part assessment and saw that: Most broadly on account of Kesavananda Bharati v. Territory of Kerala373 the Supreme Court held that the Rule of Law is a fundamental piece of the essential design of the constitution and as such can't be corrected by any Act of Parliament, accordingly showing how the law is better than any remaining authority of men. It is properly emphasized by the Supreme Court for the situation Union of India v. Raghubir Singh374 that it's anything but a matter of uncertainty that an extensive degree that administers the existences of individuals and manages the State capacities streams from the choice of the predominant courts. Most broadly on account of Maneka Gandhi v. Association of India375 the court guaranteed that activity of force in a discretionary way by the public authority would not encroach the privileges of individuals and in Kesavananda Bharati the court guaranteed that laws couldn't be made that basically conflict with the Rule of Law by saying that the fundamental construction couldn't be penetrated. OBJECTIVES The Constitution is the incomparable law and it assists with keeping up respectability in the general public and to advance solidarity among the residents to construct an incredible nation. The primary target of the Indian Constitution is to advance amicability all through the nation. It is important to keep everything under control in the public arena that is guaranteed through different arrangements of Fundamental Rights and Directive Principles of State Policy given by the Constitution of India. It contains three components, which is social, monetary, and political. Social equity implies that the Constitution needs to make a general public without separation on any grounds like position, statement of faith, sexual orientation, religion, etc. Economic Justice implies no segregation can be brought about by individuals based on their riches, pay, and financial status. Each individual should be paid similarly for an equivalent position and all individuals should get freedoms to procure for their living. Political Justice implies all individuals have an equivalent, free and reasonable right with no separation to take an interest in political opportunities. The term 'Equity' signifies no part of society has any extraordinary advantages and all individuals have given equivalent freedoms for everything with no segregations. The expression 'Liberty' signifies opportunity for individuals to pick their lifestyle, have political perspectives and conduct in the public arena. Freedom doesn't mean opportunity to do anything, an individual can do anything besides in the breaking point set by the law. The expression 'Fraternity ' signifies a sensation of fraternity and a passionate connection with the country and all individuals. Club assists with advancing respect and solidarity in the country.

REVIEW OF LITERATURE In this research paper the article which I choose is regarding the constitution as the grundnorm of the nation. Around which all the ordinary law of the land works. This article helps me in properly understanding the main role of constitution in our country and in this article, it is properly explained about the working of our constitution which is of great use in understanding the basic

372A D M Jabalpur v shivkanth Shukla, AIR 1956 SC 1207 Para154 373 Kesavananda bharti v State of Kerala, AIR 1973 SC 1461 374 Union of India v Raghubir singh 375Maneka Gandhi v Association of India ,1978 AIR 597 [151] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 function and role of constitution. The second article which I choose is about how the constitution acts as a main law which help in saving the rights and benefits of people in the society. So that the people of country do not feel discriminated in this article it is properly explained and it was beneficial for me in writing this research paper. This article provides a brief information about the certain rights and duties which people of country owed towards each other and they should be followed in that way.

CONCEPTUAL UNDERSTANDING The basic understanding about the rule of law in the country is that it is divided into different parts. So that everyone can perform their part of the duty at their respective levels. So that there is no miscommunication or biased decision at a particular level. It provides every individual of the country to use and apply their rights and carry or work on any profession or anything of their choice but which should not be illegal and should come under the rights which the constitution provides us. And by using one’s own right it should not violate rights or duties of another person. For settling of dispute inside the country or territory there are municipal or national law. They are domestic laws that governs the relationship of its subject within the state. Such laws include laws at central, state, territorial or local level. At different level of the nation’s law operate but within territorial boundaries of a country. These are those law in accordance with which the court of state decided matters. The municipal law is further divided into public and private law. As per the Constitution, Parliament and the state governing bodies in India have the ability to make laws inside their individual wards. This force isn't outright in nature. The Constitution vests in the legal executive, the ability to arbitrate upon the established legitimacy, all things considered. In the event that a law made by Parliament or the state governing bodies disregards any arrangement of the Constitution, the Supreme Court has the ability to proclaim such a law invalid or ultra vires. This check in any case, the establishing fathers needed the Constitution to be a versatile report instead of an inflexible system for administration. Thus, Parliament was contributed with the ability to alter the Constitution. Article 368 of the Constitution gives the feeling that Parliament's altering powers are outright and incorporate all pieces of the archive. Yet, the Supreme Court has gone about as a brake to the authoritative eagerness of Parliament since the time autonomy.

CONCLUSION The establishing fathers of India achieved what the remainder of the world however incomprehensible build up a country that would keep the apparent aim of the law and execute the Rule of Law. On the whole matters like the insurance of the privileges of individuals, equivalent treatment under the steady gaze of the law, assurance against exorbitant intervention, the Constitution of India has given enough components to guarantee that the Rule of Law is followed. Through its choices, the Courts have strived to build up these instruments and guarantee smooth equity conveyance to all residents. Issues, for example, obsolete enactment and stuffed courts are nevertheless little preventions and bodies, for example, the Law Commission of India pursue resolving these issues with the point of accomplishing a framework where there are no hindrances to the smooth activity of the Rule of Law. It very well might be said that the last word on the issue of the essential design of the Constitution has not been articulated by the Supreme Court-a situation that is probably not going to change sooner rather than later. While the possibility that there is such an incredible concept as an essential design to the Constitution is grounded its substance can't be totally decided with any proportion of absolution until a judgment of the Supreme Court explains it. By the by, the sovereign, vote based and mainstream character of the nation, rule of law, autonomy of the legal executive, crucial privileges of residents and so on are a portion of the fundamental highlights of the Constitution that have showed up on numerous occasions in the peak court's proclamations. One assurance that arose out of this tussle among Parliament and the legal executive is that all

[152] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 laws and established changes are presently dependent upon legal audit and laws that violate the fundamental design are probably going to be struck somewhere around the Supreme Court. Basically, Parliament's ability to change the Constitution isn't outright and the Supreme Court is the last mediator over and translator of every sacred revision. Initially, the Constitution ensured a resident, the key option to get hold and discard property under Article 19f. Under Article 31 he was unable to be denied of his property except if it was obtained by the State, under a law that decided the measure of remuneration he should get against such a securing. Property claimed by an individual or a firm could be procured by the State just for public purposes endless supply of remuneration controlled by the law. Article 31 has been altered multiple times - starting with the First change in 1951 - dynamically abridging this basic right. At long last, in 1978, Article 19f was excluded and Article 31 revoked by the Forty fourth amendment. All things being equal, Article 300A was presented in Part XII making the privilege to property just a legitimate right. This arrangement infers that the leader arm of the public authority (government workers and the police) couldn't meddle with the resident's entitlement to property. Nonetheless, Parliament and state assemblies had the ability to make laws influencing the residents' entitlement to property.

REFERENCES https://constitutionnet.org/vl/item/basic-structure-indian-constitution https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf https://indiankanoon.org/doc/257876/ https://indiankanoon.org/doc/1766147/ http://www.legalserviceindia.com/legal/article-2480-critical-analysis-of-the-concept-of-grundnorm.html

[153] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

Right to Privacy and it's Limitations under the Indian Constitution.

By:Shreeya Prabhakar Tambe.

I. Introduction:

Privacy is strength. It has been elucidated differently in different nations. In some countries Right to Privacy remains absent in their Constitutions. However, the High Courts have given landmark judgments on Right to Privacy in such nations. In India, the extent of Article 21 of the Constitution is quite wide and hence, the Right to Privacy has been incorporated under Article 21. It is said that for the Right to Life to exist, Right to Privacy is essential. So, the Right to Privacy came for attention in Kharak Singh vs. The State of U. P. & Others376 which was concerned with the validity of specific rules that permitted scrutiny of suspects. Article 12 of Universal Declaration of Human Rights, says that no one can be subjected to arbitrary intrusion with his privacy, honour or character. Every person shall have a right to protection of the law against such interference or attacks. With the recognition of the Right to Privacy as a fundamental right in Govind vs State of Madhya Pradesh & Another377 , Mathew, J. accepted the right to privacy as a creation of Art. 19(a), (d) and 2. However, right to privacy cannot be said to be a complete right. If we assume

376Kharak Singh vs The State Of U. P. & Others, December, 1963 AIR 1295, 1964 SCR (1) 332. 377 Govind vs State Of Madhya Pradesh & Another, March, 1975 AIR 1378, 1975 SCR (3) 946. [154] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 that the Right to Privacy is a fundamental right then there has to be certain restrictions to the said right. Individual’s privacy has been infringed everyday today in the modern world. With the introduction of new technology, individual’s privacy in put constantly in danger. In Justice Puttaswamy378, the Apex Court maintained the validity of the Aadhaar Act and this will be discussed further in this research paper. Past research has emphasised on the significance of right to Privacy in the lives of people. Some studies have found out in what sense can this right be used. As stated by Dr. Durga Das Basu, the Supreme Court has incorporated a liberal understanding and has read several rights in Article 21, to make ‘life’ more meaningful and worth living. Right to Privacy is one of such rights reckoned under Article 21 of the Constitution.379 The most important amongst basic rights are the requirement for personal freedom. An individual shall be able to make his own life choices for a stable life, and personal growth as Privacy is the foundation of individual progress. Next comes sentiments, meaning that a person needs to have some extent of physical and mental health. In our lives, we are prone to huge amount of stress and anxiety and emotional releases helps us combating these problems. Often, we get annoyed, frustrated, sad, and stressed and for that what helps is releasing such emotions without hesitation. This can be done with being alone and understanding oneself. If people are denied their privacy, they may become tensed, mentally unsound or even suicidal due to non-release of various emotions. Further, another important role is that of making personal choices and individual assessment which are extremely essential for personal growth. People need time for self- evaluation and creativity. Lastly, especially in modern cities lives of people are so occupied that for them, privacy becomes of utmost importance, and they need mental confrontations. Individuals need to spend some time alone in private or with their close people, loved ones, and friends. Privacy is crucial here to have psychological and physical peace. It was only after a few years that independence of mind was felt necessary by the court of law. Slowly the room for such rights under the Constitution felt needed, and it was only then realised that an individual should enjoy his right to be left by himself. Judge Cooley called this as a right "to be let alone".380 In the words of Michel Rosenfeld and Andras Sajo, Indian constitution does not consist of express independent existence of Right to Privacy. However, it has occupied vital character in

378 Justice K.S. Puttaswamy vs. Union of India,(2017) 10 SCC 1. 379Dr. Durga Das Basu,Introduction To The Constitution Of India, 21st Edition, LexisNexis. 380 Warren and Brandeis,“The Right to Privacy”, Harvard Law Review, Vol. IV, December 15, 1890, No. 5. [155] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 numerous judgements. Therefore, the cases striking down prohibitions on sodomy which affirmed broad autonomy rights were based on the Right to Privacy.381

II. Comparative Analysis between various nations:

The privilege of privacy helps men to have a comfortable boundary around themselves and removes the difficulties of enjoying their private life. No person likes unnecessary interference in their lives and likes to decide on their own as it when they would wish to intermingle with the world. Privacy limits the infringement of our interactions, mind and life. Hence, it can be said that privacy lets us have a balance between our basic rights and social life. Privacy is an essential human right which lets us have our space and lets us have the freedom to have our own thoughts and away from any sort of arbitrary control. This shows how important the concept of right to privacy is and how necessary it is for each and every human around us. We can see how the concept of right to privacy has been rooted in several countries since old times. The United States Constitution does not provide for a Right to privacy. However, in Griswold v Connecticut382, the United States Supreme Court held that the constitution must ensure that the right to privacy is not infringed. When we talk about European Union, under EU General Data Protection Regulation, privacy is said to have been given to the masses. It also says that information about people can be collected on when it is extremely necessary and not otherwise. China also, makes privacy rights available to the masses. In Israel, it is said that the right to privacy need not be defined as a separate legal right as the already existent laws do guarantee privacy to the masses. In Australia, Privacy has been termed important and infringement of the same is a crime. In India, the Apex Court, in Gobind v. State of Madhya Pradesh383, held that the right to privacy is a fundamental right incorporated under Article 21 and after a lot of unsuccessful attempts, citizens of India finally has the basic right every human should possess.

III. Evolution of Right to Privacy:

381Michel Rosenfeld and Andras Sajo, Oxford Handbook Of Comparative Constitutional Law, - First Edition, (2012). 382381 U.S. 479 (1965). 383 (1975) (2) SCC 14. [156] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

Author Westin, in his work, describes how the word ‘Privacy’ was previously known and used in England in the fifteenth century. Past research dictates that the settlers of Novel England had admiration for the concept of privacy, especially when it’s about someone’s personal life, family, relatives and also printed letters. Right to Privacy, in terms of independent legal entitlement was alleged for the first time in the 1960s. Later, in Griswold v Connecticut384, which is a famous case of that time, the United States Apex Court held that the right to privacy originates through different sectors of law of the land and that the constitution must make sure that the same is not infringed, The said case also barred the government and police from interfering in the lives of couples and families. It must be noted that the topic of Right to Privacy came up for discussion in India primarily in a debate of constituent assembly. The facts are that an amendment was stimulated by K.S. Karimuddin; however, it was still not as such added in the Constitution of India. In 1954, in M.P. Sharma v. Satish Chandra case385, it was held that privacy is not a right under the Indian Constitution. Basically, this case dealt with the power to search and seize documents from the Dalmia Group and subsequently it was held that right to privacy is not a right as it has not been included under the Constitution. There was always a need and longing felt for a private life and this debate arose ten years later before a six-judge bench of the Supreme Court in the case of Kharak Singh vs. The State of Uttar Pradesh & Others386. However, unfortunately, it was again held the same thing, the Supreme Court held that there is no fundamental Right to Privacy, although, the Court struck down the late-night visits on the basis that it disrupts an individual’s personal freedom. The dissented Justice Subba Rao, held that Right to Privacy has always been a vital part of individual freedom even though not added under the fundamental rights under the Constitution of India. A decade later, the Apex Court, in Gobind v. State of Madhya Pradesh387, had the same dilemma in front of it. It was in this case that right to privacy was held to be a fundamental right incorporated under Article 21. It was in this case that such an important right was given recognition under the Indian Constitution. After this case Right to privacy was never challenged. But in an earlier famous case, K.S. Puttaswamy v. Union of India388, the Supreme Court claimed superiority over the decisions of M.P. Sharma and Kharak Singh. This case yet again proved that right to privacy is a

384381 U.S. 479 (1965). 385AIR (1954) SCR 1077. 386 (1963) AIR 1295, (1964) SCR (1) 332. 387 (1975) (2) SCC 14. 388(2017) 10 SCC 1. [157] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 fundamental right. It is said that Privacy has negative aspects as well as positive aspects. The privacy rights mean the right to shield an individual’s individuality. It also says that the data about some person is totally that person’s business, and that can do whatever he/she wants to do with it; she enjoys the liberty to disclose it to other or do the opposite. Right to privacy, was mentioned in Naz Foundation v. Union of India389, wherein the case was in front of the Delhi High Court. Basically, the Court struck down Section 377 of the Indian Penal Code, 1860 as it was against sexual relations between same sex adults. It also prohibited the government or state official’s invasion in the rights of consenting persons. Navtej Singh Johar v. Union of India390, is a latest case where it was held by the Supreme Court that Section 377 of Indian Penal Code, cannot be illegal if it comprises of consensual sexual activity in private.

IV. The Supreme Court's Aadhaar Judgement and Right to Privacy:

The Aadhaar act, the government stated that the need of the hour insists that there must be collection of personal data of the people of India and after this, the government this act would be extremely useful, especially to poor people as with the help of the act, pupil of the nation can take advantage of various schemes. It means that huge number of people can now avail benefits in education, food, and such basic need. The government also promised that with the introduction of Aadhaar, evil like corruption could finally be eliminated. However, the Apex Court also stated how it will prove to be disastrous if such credible information is misused by private companies. The Supreme Court, in a five-member constitutional bench which was led by the Chief Justice, Dipak Misra held that no person can absence themselves from Aadhaar even if you have other identity proofs; which means that Aadhaar is compulsory for Income Tax Returns and also for wanting Permanent Account Number, which is also called as Pan Card. Also, now a days Aadhaar is no more needed for Bank Account KYC process. Earlier, many banks and e-wallets had made the Aadhaar linking mandatory. This is no more the case today as they are not allowed to access Aadhaar. Earlier even to do simple tasks like making payments or even to buy a SIM for your mobile, one needed Aadhaar from you. Today, that rule has changed as it has been ruled that Aadhaar would no more be needed for such services. Today, even colleges cannot access the Aadhaar of their students. It cannot be used even for entrance examinations except for availing services of government welfare organizations.

38960 Delhi Law Times 277. 390 (2018) 10 SCC 1. [158] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 However, children are an exception to this rule. The Supreme Court of India removed Section 57 of the Aadhaar Act on the reasoning that it is unconstitutional. It states that no private corporation can get hold of your Aadhaar details which will in turn protect the privacy rights of citizens. Supreme Court Justice Sikri said that Aadhaar’s infringement on privacy has to be as less as possible. It must be used properly, meaning when necessary, like for welfare schemes and so on.

V. Power to Search and Seizure:

The dilemma over right to privacy nation’s power of search and seizure has been discussed several times in the world and also in India. The Supreme Court ruled the triple test provision wherein any provision opposed to personal liberty would be turned down as was in another famous case Maneka Gandhi v. Union of India391 Certain canons for using the same were also delivered:

a) A procedure must be given.

b) It must be such as to survive the assessment of the fundamental rights depending upon the case in question.

c) It must also be verified in terms of right to equality under Article 14.

VI. Phone Tapping and Right to Privacy:

In Olmstead v. United States392, a wiretapping equipment was used by the police as a way of obtaining evidence. However, the complaint was not accepted by five of the nine justices because there had been no actual entry into the houses and nothing tangible had been taken. Hence, the search and seizure amendment did not apply. Even more important than the decision, however, was the dissent of Justice Brandeis, the co-author of the article The Right to Privacy in Harvard Law Review. In his view, this case indicated that the privacy of the man had been invaded, that is “the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.”

391AIR (1978) SCR (2) 621. 392277 U.S. 438 48 S. Ct. 564; 67 L. Ed. 785; 1923 U.S. LEXIS 2588; 24 A.L.R. 1238. [159] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Phone tapping and right to privacy has always been a topic of discussion due to recent growth in electronic usages. The Supreme Court, in R.M. Malkani v. State of Maharashtra393, held that Police is not supposed to use illegal methods to gain information from the public as it will be opposed to the Right to privacy. Phone tapping is an infringement of right to privacy and hence frowned upon when done illegally. In People’s Union for Civil Liberties v. Union of India394, Justice Kuldip Singh stated that each and every person has a right to have a telephonic talk without any sort of infringement. It was in this case that phone tapping amounts to violation of individual’s privacy as call conversations are supposed to be private. It was also held that the right to a private telephonic conversation is infringed many a times and that it is unfair and opposed to the right to privacy. In another case named Rayala M. Bhuvneshwari v. Nagapgomender Ralaya395, the Court spoke about the importance of trust in the holy sacrament of marriage. The facts of the case were that that the husband was recording the calls of his wife and the Court held that the it is an illegal act to tap someone’s phone without letting them know about it. It was also held that it was a violation of her right to privacy under article 21 of the Constitution and it cannot be said to be evidence even if it were true. The husband then demanded for a voice test and again, the Court held that that too would not be possible.

VII. Gender Priority on Privacy:

Gender priority in relation of right to privacy consists of the notion that each and every human being deserves the right to a private life. There can be no discrimination when it comes to privacy rights. Courts have always held that even a woman who could be known as a woman of easy virtue deserves the same kind of privacy as is enjoyed by the other. Males and females both have to be treated respectfully and decency. In one case named Harvinder Kaur v. Harmander Singh396, it was held by the High Court of Delhi that sexual activities constitute important part of the institution of marriage if not the whole of it. The wife was staying away from her husband due to some arrangement and it was held that it would be against her right to privacy to make her stay with her husband and ask her to have his child. Both US and England cases where referred in this particular case.

393AIR (1973) SC 157. 394AIR (1997) SC 568. 395AIR 2008 AP 98, 2008 (2) ALD 311, 2008 (1) ALT 613. 396AIR (1984) DEL 66. [160] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 VIII. Prisoner’s Privacy Rights:

Jail convicts are deprived of certain rights like moving freely across the city and so on but Article 21 of our constitution is still enjoyed by them. Just because they are prisoners does not mean they are not allowed to enjoy their Right to life and certain amount of privacy. Being in jail only takes away certain fundamental rights of a citizen but not all of them. Hence, under Article 21, a prisoner cannot be underprivileged of his life and personal liberty. This notion was discussed in depth in R. Rajagopal vs. State of T.N397. Here, the prisoner basically wrote an autobiography while he was in prison and he would then give it to his wife to publish the same. It contained information related to the connection between people in jail and several highly posted officials. However, he was unable to publish the same and thereafter he moved to the Court. The Court held that even prisoners have Privacy rights. This case is also famously known as Auto Shankar Case.

IX. Privacy in context of Sexual Identities:

In Naz Foundation v. Union of India398, a part of the case delt with the right to privacy and the Delhi High Court struck down Section 377 of the Indian Penal Code of 1860. Section 377 basically held that sexual relations between same sex adults is a crime. The Court held that when sexual activities take place between consenting adult, state cannot infringe their right to privacy. Hence, right to privacy is protected under Article 21 of the Indian Constitution and even same sex partners can enjoy this right. In another case Navtej Singh Johar v. Union of India399, the Apex Court held that Section 377 which was applied to the sexual activity between consenting adults in private is not unconstitutional.

X. Limitations to Right to Privacy:

397 (1995) AIR 264. 39860 Delhi Law Times 277. 399 (2018) 10 SCC 1. [161] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

It has been in several cases by the Supreme Court of India that Privacy rights always comes with certain degree of limitations which are only essential and rational. The limitations are for certain safety reasons. It has been seen at various instances that the right to privacy is sometimes opposed to police investigation methods. Several medical examination tests like narco-analysis, polygraph test and brain mapping tests are in conflict with the right to privacy of the people. Hence, the Apex Court held these rights were unconstitutional as its against the privacy rights of the prisoners. In one case Sharda v. Dharmpal400,the Supreme Court held that the right to privacy in India was not absolute and hence, in certain cases medical examinations can be held without any consent. The facts of the case were that a husband wanted to divorce his wife due to certain suspicions of mental illness and asked the court to conduct a medical examination so as to prove the same. The wife said that such tests are against the personal liberty under Article 21 of the Indian Constitution. The Supreme Court maintained that the matrimonial courts make her to endure medical test. Hence, statutory rights are an exception to the privacy rights although the tests must be adequately reasonable. If the test of “reasonableness” is too broad, then it would matter little that privacy is a fundamental right, since the government would have a free hand in going around it. If it is sufficiently narrow, one might even be able to make conclusions about what today’s judgment might mean for Aadhaar, among other government schemes that will now have to be tested against the fundamental right.

XI. Conflict between Right to Information and Right to Privacy:

The Right to Privacy and the Right to Information both form the basis of Human Rights and always said to be closely connected to each other or complementary rights to the growth of human beings. Both of these rights are equally important and must be protected for the best interests of mankind. Today, with the rise of technology, there rights have become extremely essential for all of us.

400AIR 2003 S.C. 3450. [162] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 As mentioned earlier in this research paper, in the case of R. Rajagopal v. State of T.N., the Supreme Court contended that privacy rights basically confer the right to be let alone. No information about a man can be published without his permission even if the information is true because doing this without consent would be against his right to privacy and that person could be sued and made to pay damages. In one case known as Mr. X v. Hospital Z401, the Court held that whenever there is a collision between right to information and right to privacy, the Court would apply that right which would advance public ethics and interests. Here, on one hand there was right to privacy as a part of right to life and other person’s right to lead a healthy life, being a fundamental right under Article 21, the right which would grant right to public safety.

XII. Conclusion:

The aim of this research paper was to give an overview of the concept of privacy, its limitations and related arguments. Various invasions in the privacy rights of people has also been discussed widely in this paper. The privacy rights existing in different parts of the world has also been mentioned and the evolution of Right to privacy has been studied in depth. Right to privacy is a fundamental, moral and a human right. It has always existed as a basic right under the constitutions of countries and some have also mentioned it separately. Privacy always has and always will be an essential right enjoyed by people until the very end of this world. It has come into existence on paper through various precedents. Right to privacy is a part of right to life and private liberty under Article 21 of Indian Constitution and it could be invaded in contracts, relationships, or even investigations. However, right to privacy is not a complete or an absolute right and there exists a few limitations to the same. Judges of the American Supreme Court have told the world as to how an individual’s privacy rights are essential for his/her happiness. Happiness and peacefulness need the existence of certain degree of freedom and liberty from any kind of intrusion in personal matters. In today’s would, lives of people are so occupied that for them privacy becomes of utmost importance and they need mental confrontations. Individuals need to spend some time alone in private or with their close people, loved ones and friends. Privacy is crucial here to have psychological and physical peace.

401AIR (1999) SC 495. [163] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

TITLE OF THE PAPER-“A COMPREHENSIVE ANALYSIS ON LEGALITY OF CRYPTOCURRENCY IN INDIA

By: SAMYAK GODHA.

Table of Contents

What is Cryptocurrency? ...... 165

Working of Blockchain Technology ...... 166

Position of Legality – Cryptocurrency in India ...... 169

[164] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

A COMPREHENSIVE ANALYSIS ON LEGALITY OF CRYPTOCURRENCY IN INDIA What is Cryptocurrency? Cryptocurrency is a type of digital money that is decentralised and based on blockchain technology. There are over 5,000 different cryptocurrencies in use. You might be familiar with the most common models, Bitcoin and Ethereum.While many people invest in cryptocurrencies like they would in other assets such as stocks or precious metals, you can use crypto to purchase daily products and services. Although cryptocurrency is a novel and exciting asset class, investing in it can be risky because you must conduct extensive research to fully comprehend how each framework operates.402Cryptocurrencies were created as a by-product of another innovation, which few people are aware of. Satoshi Nakamoto, the anonymous creator of Bitcoin, the world's first and most valuable cryptocurrency, never planned to create a currency.403A cryptocurrency is a digital, encrypted, and decentralised medium of exchange. There is no central authority that controls and retains the value of a cryptocurrency, unlike the US dollar or the Euro. Instead, these functions are spread around the internet among the users of a cryptocurrency.404 A digital currency might accurately be dismissed as a cryptocurrency. The idea behind cryptocurrency's value and protection, on the other hand, is rather abstract and esoteric. Some people are perplexed as to what makes cryptocurrency valuable and effective as a way of storing and exchanging value.405A cryptocurrency is a form of digital money that is not controlled by a government, is decentralised ("peer to peer"), and is based on open source software. Based on encryption technology, open-source software offers a forum for users to create their own private currency and make payments in it without having to deal with banks or central banks. Blockchain is the infrastructure that underpins cryptocurrency and, in essence, allows it to function. 406 In January 2021, the Indian government's Ministry of Electronics and Information Technology (MEITY) drafted the National Strategy on Blockchain, which defines Blockchain as a distributed

402 Kate Ashford, ‘What is Cryptocurrency’, Forbes Advisor, December, 2020. (last accessed 12th March 2021) https://www.forbes.com/advisor/investing/what-is-cryptocurrency/ 403 Ameer Rosic, ‘What is Cryptocurrency’, BlockGeeks, https://blockgeeks.com/guides/what-is-cryptocurrency/ 404Id. note 1. 405 https://corporatefinanceinstitute.com/resources/knowledge/other/cryptocurrency/ 406 Ridhima Saxena, India's Crypto Investors Weigh Options Ahead Of Impending Ban, Bloomberg Quint, February 14, 2021, https://www.bloombergquint.com/business/indias-crypto-investors-weigh-optionsahead-of-impending-ban [165] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 407 ledger technology suitable for decentralised and transactional data sharing. It's a technology that enables a new form of distributed software architecture capable of reaching consensus on shared states without the need for any central agency or participant to create online trust. The need for a central authority or third party to verify transactions over a peer-to-peer network is eliminated with this technology. The history of transactions stored at each node of the network, as well as the agreement of the participants, are used to verify transactions. There was a time when the whole planet ran on the barter system. Someone wanting to sell or swap their goods would need to find someone who was willing to accept such goods in exchange for the exact other goods they desired. This is referred to as the "double coincidence of desires." Consider a farmer who wishes to exchange his bushels of wheat for clothes. To trade, he will need to find a tailor who is also looking for wheat. This problem was solved by fiat money, which served as a store of value. People used to the barter system were probably perplexed as to why useless paper would be equally or more valuable than their products at the time of its conception and development. Cryptocurrency replaces fiat money in the same way that fiat money replaced the barter system. It establishes a new store of value that allows users to pay for products as well as other currencies. If cryptocurrency is liquid as compared to other fiat currencies, then these fiat currencies are liquid when compared to one another. However, some people might be perplexed as to why blockchain is valuable, just as barterers might have been perplexed as to why paper money is valuable. Any form of currency is important because it is recognised as a store of value at its heart. The greater the number of citizens who support this, the more valuable money becomes. Furthermore, greater acceptance leads to greater stability in the valuation of capital. Furthermore, both fiat money and cryptocurrencies address the problem of double coincidence of desires. In addition, cryptocurrency is based on the blockchain technology. This innovative technical idea improves the currency's protection and allows for the verification of currency transactions.And then, bitcoin can be divided indefinitely. Whereas the smallest sum that can be received in US Dollars is a penny – or $0.01 – you can receive 0.00000000000001 Bitcoin if necessary.408 Working of Blockchain Technology A blockchain is a decentralised, transparent ledger that stores transactions in code. In reality, it's similar to a chequebook that's spread through thousands of machines all over the world. Transactions are registered in "bytes," which are then connected to previous cryptocurrency transactions in a "chain." Everyone who uses a cryptocurrency has their own copy of this book

407 Devika Gadgil, ‘Cryptocurrency in India- To ban or not to ban?’, Mondaq, 30th March 2021. https://www.mondaq.com/india/fin-tech/1045376/cryptocurrency-in-india-to-ban-or-not-to-ban 408 Supra. [166] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 on a blockchain, which creates a single transaction record. - new transaction is logged by software when it occurs, and every copy of the blockchain is updated with the new information at the same time, ensuring that all documents are equal and accurate. Each transaction is validated using one of two key validation techniques to avoid fraud: proof of work or proof of stake. It's a technology that enables a new form of distributed software architecture capable of reaching consensus on shared states without the need for any central agency or participant to create online trust. The need for a central authority or third party to verify transactions over a peer-to-peer network is eliminated with this technology. The history of transactions stored at each node of the network, as well as the agreement of the participants, are used to verify transactions. Mining is the process of releasing new units of cryptocurrency into the universe in exchange for validating transactions. While it is technically possible for the average individual to mine cryptocurrency, in the proof of work system, it is becoming increasingly difficult. “As the Bitcoin network expands, it becomes more complex, necessitating more computing capacity. This used to be possible for the average user, but it is now prohibitively costly. To outcompete, there are far too many people who have perfected their facilities and technology.Cryptocurrencies that use proof of work take a lot of energy to mine. Bitcoin farms use 0.21 percent of the world's energy, according to estimates. That's around the same amount of electricity that Switzerland consumes in a year. Many Bitcoin miners use 60 percent to 80 percent of their earnings to cover energy expenses, according to estimates. Wallets for cryptocurrency may be applications or hardware. In the sense that they record and validate transactions, these wallets are smaller versions of "miners." They keep track of the value of your coins and tell you how many you have in total. When you deposit bitcoin into your wallet, for example, the wallet verifies the transaction against the mining network's ledgers to inform the network that the coins have arrived in your wallet.Every wallet, either software and hardware, has hash code-like addresses. There are a lot of letters and numbers in this string. You use this address to tell the network where to transfer the coins and where they will be deposited in the meantime when you deposit coins into your wallet. The whole network is almost instantly aware of the transaction. However, it is only proven after a certain period of time has passed. In the world of cryptocurrencies, confirmation is a crucial term. Cryptocurrencies, in a sense, are all about confirmation. A transaction is pending and can be forged as long as it is unconfirmed. A contract is finalised until it has been verified. It can no longer be forged, it can no longer be reversed, and it is now part of an everlasting database of past transactions known as the blockchain. Transactions can only be confirmed by miners. In a cryptocurrency network, this is their task. They take transactions, stamp them as legitimate, and

[167] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 409 then disseminate them across the network. Any node must add a transaction to its database after it has been validated by a miner. It has been incorporated into the blockchain. Miners are compensated with a cryptocurrency token, such as Bitcoins, for their efforts. We should take a closer look at the miner's operation since it is the single most significant aspect of the cryptocurrency framework. Everyone has the potential to be a miner. Since a decentralised network lacks the power to delegate this mission, a cryptocurrency must have a mechanism in place to prevent one ruling group from manipulating the system. Consider the scenario where someone generates thousands of peers and distributes forged transactions. The machine will instantly fail.

As a result, Satoshi established the rule that miners must put in some effort on their computers in order to be considered for this mission. In reality, they must find a hash – the result of a cryptographic function – that links the new block to the previous one. This is referred to as a Proof-of-Work.410 Cryptocurrencies are entries in decentralised consensus databases regarding tokens. Because the consensus-keeping process is secured by strong cryptography, they are known as C-R-Y-P-T-O- currencies. Cryptography is the foundation of cryptocurrency. They are protected not by people or trust, but by mathematics. It's more likely that an asteroid would collide with your home than that your bitcoin address would be compromised.We must distinguish between transactional and monetary properties when describing the properties of cryptocurrencies. Although most cryptocurrencies have similar characteristics, they are not set in stone. Whether or not you can make safe transactions with crypto depends on what you're trying to buy. In the United States, you can use a cryptocurrency debit card like BitPay to spend cryptocurrency at a store that doesn't recognise it directly. A person will need a cryptocurrency wallet if you want to pay anyone or a store that accepts cryptocurrency. A cryptocurrency wallet is a software application that communicates with the blockchain which enables users to submit and receive cryptocurrency.Some services make this more convenient by allowing you to enter a phone number or choose a contact from your phone. It's important to remember that transactions aren't instantaneous because they must be checked using proof of work or proof of stake. This could take anything from 10 minutes to two hours, depending on the cryptocurrency. Peer-to-peer networks and cryptocurrency exchanges like Coinbase and Bitfinex are where you can buy cryptocurrency. However, keep an eye out for rates, as some of these exchanges charge exorbitant fees for small crypto transactions. For example, Coinbase charges a 0.5 percent

409 Supra note 2. 410Id. [168] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 transaction fee plus a flat fee of $0.99 to $2.99, depending on the size of the transaction. Recently, the investing app Robinhood began offering the opportunity to buy a number of famous cryptocurrencies, including Bitcoin, Ethereum, and Dogecoin, without the fees that many major exchanges charge. Position of Legality – Cryptocurrency in India The Reserve Bank of India has released a series of cautionary or prohibitory circulars, demonstrating India's hesitation ("RBI"). In addition, an Inter-Ministerial Committee was created, which proposed two bills that were fundamentally opposed to one another. Money laundering, terror funding, hacking, and fraud are all high risks, according to the RBI. In contrast to previous RBI circulars and Inter-Ministerial Committee bills, the Hon'ble Supreme Court issued a landmark judgement in 2020 that examined and interpreted the issue, providing a pro- cryptocurrency perspective. It is important to comprehend the timeline of events in order to decide how they interact with what the future holds.411 According to the government's legislative agenda, the Centre aims to introduce legislation banning private cryptocurrencies like bitcoin and establishing a mechanism for a central bank- issued official digital currency. "Create a conducive structure for the development of the official digital currency to be issued by the Reserve Bank of India [RBI]," the law says.The bill, which is up for discussion in the current legislative session, aims to "prohibit all private cryptocurrencies in India, but it provides for some exceptions to support the underlying technology of cryptocurrency and its applications," according to the agenda. A government panel proposed banning all private cryptocurrencies in mid-2019, with those trading in digital currency facing up to ten years in prison and hefty penalties.412 Although the New Bill recognises a long-standing grey area in VC laws and encourages the adoption of digitalization, it proposes to outright ban private cryptocurrencies. To put this in context, it's worth noting that the Indian population has shown a strong interest in virtual currencies, with India accounting for between 2 and 10% of the global virtual currency market worth US$430 billion until recently.413 Given the large number of investors in the country, this is bound to cause some concern. The new bill should give them a six-month grace period to liquidate their properties.The RBI has repeatedly emphasised the potential for VCs to be used for terrorist funding, money laundering, and other purposes. However, if the New Bill prohibits the

411 https://www.thehindu.com/sci-tech/technology/india-proposes-law-to-ban-cryptocurrencies-create-official- digital-currency/article33703822.ece 412 Mehab Qureshi, ‘Sell Your Bitcoins Now – India May Soon make Cryptocurrency Illegal’, The Quint, 15th March 2021, https://www.thequint.com/tech-and-auto/sell-your-bitcoin-now-india-to-soon-make-cryptocurrency- illegal 413 Rajeev Kumar, Investing in Cryptocurrency?, February 15 2021. https://www.financialexpress.com/money/investing-in-cryptocurrency-risks-safety-legal-status-future-in-india-all- you-need-to-know/2195319/ [169] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 use of private cryptocurrencies, it could create an underground market where legitimate investors are forced to work in unregulated environments.414 Furthermore, the primary aim of enacting legislation is to create a technologically safer climate for dealing with VCs. However, because the state-owned cryptocurrency will be designed to perform the same functions as other cryptocurrencies, it will be subject to the same risks as other cryptocurrencies. As a result, even the introduction of a national digital currency may not have a significant impact.415

It's also worth noting that if there is only one digital currency, the RBI would have full control over it. There will also be concerns over whether or not international investors will be able to invest in the Indian digital currency, as well as how it will be governed. As a result, the looming possibility of foreign investors being able to invest in the Indian digital currency while Indian investors' ability to invest in foreign cryptocurrencies is largely limited, creates the potential for further complications. The introduction of a policy that recognises the benefits and disadvantages in a comprehensive manner is urgently needed.416 Although the New Bill recognises a legal issue in cryptocurrency laws and encourages the adoption of digitalization, it proposes to outright ban private cryptocurrencies. To put this in context, it's worth noting that the Indian public has shown a strong interest in virtual currencies. If the New Bill prohibits the use of private cryptocurrencies, it will create an underground market where legitimate investors are forced to work in unregulated environments. Furthermore, the primary aim of enacting legislation is to create a technologically safer climate for dealing with Currency. However, because the state-owned cryptocurrency will be designed to perform the same functions as other cryptocurrencies, it will be subject to the same risks as other cryptocurrencies. As a result, even the introduction of a national digital currency may not be enough to reduce the risk.It has been identified that there is a lack of clarification in India when it comes to cryptocurrency regulation. A well-structured and complex approach to cryptocurrency regulation is needed, with due respect for the interaction of law with its subjects – in this case, crypto-exchanges, investors, and, most importantly, the people working in the field. A law with such a far-reaching effect needs further thought.417 It is critical to recognise that cryptocurrency has gained worldwide traction. Bitcoin's value skyrocketed in 2020, prompting many new investors to express strong interest in it. Tesla's 1.5- billion-dollar investment in Bitcoin, as well as their announcement that it would be accepted as a

414 Aftab Ahmed, India to propose Crypto Ban, Thomson Reuters, March 15, 2021. https://www.reuters.com/article/uk-india-cryptocurrency-ban-idUSKBN2B60QP 415 Supra note 6. 416 Supra. 417 Adi Robertson, India will reportedly introduce bill to make owning cryptocurrency illegal, The Verge, March 15 2021. https://www.theverge.com/2021/3/15/22332677/india-cryptocurrency-trading-mining-possession-ban-law- report [170] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 form of payment, added to the momentum. Coinbase, a digital currency exchange headquartered in the United States, has announced its public offering. As a result, it's critical to consider whether a ban is the best way to prevent cryptocurrency from being misused, particularly given recent global developments in the field.418 By announcing a regulatory structure, the Indian government will be able to keep a close eye on the industry while allowing it to prosper in compliance with the rules. A full ban could prevent the country from adopting and accepting the cryptocurrency market's technology and opportunities.Most developed economies around the world are working to regulate cryptocurrencies in the hopes of capitalising on the creativity that comes with some of these innovations and making them profitable.If India can put itself strategically between China and the United States, it will benefit greatly from cryptocurrency regulation. Addressing the problem through constructive dialogue with all stakeholders will aid in the creation of long-term legislation, the resolution of government issues, and the promotion of exponential development.419 The planned ban could have consequences are causing concern among existing and potential cryptocurrency investors and exchanges, as well as affecting investor trust. The lack of legal status of crypto/virtual currencies under Indian laws has created much uncertainty in the past, and it is anticipated that the implementation of the Crypto Bill would add clarity to its legal status.Instead of outright banning cryptocurrencies, it has been proposed that the government should have restricted their trading by introducing supporting legislation such as strict KYC norms, reporting, and taxation, but given the recent announcement, this idea now appears to be a little late in the day.420

418 Steve Kovach, ‘Tesla buys $1.5 billion in bitcoin, plans to accept it as payment’, CNBC, February 8, 2021.https://www.cnbc.com/2021/02/08/tesla-buys-1point5-billion-in-bitcoin.html 419 Saikaran Kannan, ‘Don’t Miss the Cryptocurrency Boat’, India Today, February 26, 2021. https://www.indiatoday.in/news-analysis/story/don-t-miss-the-cryptocurrency-boat-experts-say-on-india-s-proposed- regulations-1773435-2021-02-26 420 Sima Jhingan, ‘the proposed Prohibition of Cryptocurrency’, Mondaq, February 16, 2021. https://www.mondaq.com/india/fin-tech/1036746/the-proposed-prohibition-of-cryptocurrency-in-india [171] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

Living Resources in the Exclusive Economic Zone

By- Samarth Bajaj

Contents Introduction ...... 173 Marine Living Resources of the Exclusive Economic Zone ...... 174 I. Conservation and management of Marine Living Resources ...... 174 II. Optimum Utilisation ...... 175 III. Total Allowable Catch ...... 176 IV. Harvesting Capacity and Surplus ...... 176 V. Restrictions ...... 177 VI. Terms and Conditions for Access ...... 177 VII. Are the Same Terms and Conditions Applicable to LL/GDS and the Developing States? 178

[172] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 VIII. Surveillance and Enforcement ...... 179 Sub-Regional Fisheries Commission (SRFC), ITLOS Case ...... 179 Conclusion ...... 180 Bibliography ...... 181

Introduction Living resources of the Sea within and beyond national jurisdiction has been one of the major subjects of debate of the UNCLOS421 till date. Even though, these resources are judged to be exhaustive the present fishery reserves will almost certainly feed some more generations to come422. The significance of fish derives from its protein factor alongside its potential to serve as fishmeal423. Whilst the question of regulations of the marine living resources(MLR) has been a concern of international law for some years, early codifications echoed exploitation interests rather than conservation and optimum management of MLR.424 Famous disputes such as the Bering Fur Seals arbitration425showed the intent and willingness of coastal States to project sovereignty from their territory towards the sea. This process was further represented in the Anglo-Norwegian Fisheries426 case. The concept of conservation and sustainability only took surge around the period of 1992 when the Convention on Biological Diversity (CBD) was adopted. Rapid developments in technology in the latter half of the twentieth century has made it simpler to catch and process fish on a large scale thereby, leading to a substantial increase in the intake of

421 United Nations Convention on the Law of the Sea 422Farin Mirvahabi, 'Conservation and Management of Fisheries in the Exclusive Economic Zone' (1978) 9 J Mar L & Com 225 423 Ibid 424Nele Matz-Lück, Johannes Fuchs, ‘ Chapter 22 Marine Living Resources’ Oxford Scholarly Authorities on International Law [OSAIL] (published 1 March 2015) 425Bering Sea Fur Seals (Great Britain v United States) (1898) 1 Moore 755 426Fisheries (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116. [173] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 427 fishes all around the world . Overfishing is now known as one of the most serious threats to marine ecosystems428. It was estimated in 2013 that 31.4% of the world’s fish resources were being exploited at unsustainable levels.429 Traditionally, fishes were perceived as a major source of food but today it is quite popular to see clearer environmental considerations being observed in international fisheries law and policy.430 In order to serve the present and the future, a refined conservation and utilization management of fisheries was deemed necessary. Therefore, the articles concerning a sound system for exploitation and utilization of the living resources were introduced in the UNCLOS. This paper shall seek to analyse the laws prescribed under UNCLOS with respect to living resources of the sea in Exclusive Economic Zone(EEZ) specifically mentioning Articles 61 and 62 of the Convention.

Marine Living Resources of the Exclusive Economic Zone The provisions of Part V of the UNCLOS are predominantly concerned with living resources.431 The coastal States enjoy exclusive absolute rights over living resources, on the regulatory level as well as the judicial level, but is also subjected to considerable limitations in exercise of these autonomous powers.432 Some writers have thereby argued that under UNCLOS or the Convention a coastal State possesses preferential rather than exclusive rights in its EEZ because it is bound by Article 62 to allocate to other States the difference between the total allowable catch(TAC) and its own harvesting capability.433 Now, the Convention inflicts two fundamental duties on the coastal States with respect to MLR in the EEZ. Firstly, the duty to ensure through proper conservation and management actions that the MLR in the EEZ is not endangered by over exploitation.434 And secondly the duty to promote optimum utilization of marine living resources in the EEZ.435

Conservation and management of Marine Living Resources

427James Harrison, ‘Chapter 7 Fishing and the Conservation of Marine Living Resources’ Oxford Scholarly Authorities on International Law [OSAIL] (published 21 September 2017) 428GESAMP, ‘A Sea of Troubles’, GESAMP Report and Studies No 70 (2001) 1 429Global Ocean Commission, ‘Improving Accountability and Performance in International Fisheries Management’, Policy Options Paper #9 (2013) 1. 430 Supra Note 7 431 Gemma Andreone, ‘Chapter 8, The Exclusive Economic Zone’ Oxford Scholarly Authorities on International Law [OSAIL] 432 Ibid 433Tommy T. B. Koh, ‘ THE EXCLUSIVE ECONOMIC ZONE’ Malaya Law Review , July 1988, Vol. 30, No. 1 (July 1988), pp. 1-33 (National University of Singapore (Faculty of Law)) 434 Article 61, para 2, UNCLOS 435 Article 62, para 1, UNCLOS [174] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 What is the need for conservation of living resources? As has been established earlier the need for determining sustainability of MLR is urgent and necessary. Over exploitation of the MLR will contribute tremendously to the destruction of the marine ecosystem. How do we then define conservation through the Convention? The term ‘endangered’ mentioned in Article 61, para 2 has not been articulated in the Convention and has been rather left to interpretation. It has been argued that the term refers to “reductions in abundance that amount to commercial extinction, or, more strictly, to reductions of such magnitude that a species is likely to become endangered unless protective action is taken436.” The term overexploitation thus should also be understood to ensure maximum sustainable yield(MSY) of the harvested species.437 The MSY can be calculated through pertinent scientific information by the coastal States. However, the scientific methods have been criticized because of the “factual obstacles inherent in determining cause and effect in respect of the use of living resources438”. Though, scientific information is one of the most important of the methods to ensure MSY it is not the only one.

Para 3 of Article 61 prescribes for “relevant environmental and economic factors” to determine the MSY. It can be argued that a certain amount of discretion has been provided to coastal States via legally providing for fulfilment of personal objectives (economic and social) by outweighing environmental considerations.439 This may be true but there are specified limitation of over-exploitation which must be remembered. It has also been noted that, “the ambiguous language and absence of specific or unqualified obligations make it difficult, if not impossible, to identify whether any obligations have been breached440.”

Optimum Utilisation

Tommy T.B. Koh in his exemplary article poses the question, ‘Why is the coastal State under a legal obligation to promote the optimum utilisation of the living resources in the EEZ?’ The answer to this question is very generic, human beings

436 WT Burke, ‘US Fishery Management and the New Law of the Sea’ (1982) 76 AJIL 24, 32. 437 Article 61(3), UNCLOS. 438 R Barnes, ‘The Convention on the Law of the Sea: An Effective Framework for Domestic Fisheries Conservation?’, in D Freestone et al (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 235, 242. 439 A Proelss and K Houghton, ‘Protecting Marine Species’, in R Rayfuse (ed.), Research Handbook on International Marine Environmental Law (Edward Elgar 2016) 235. 440 Supra Note 7 [175] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 require food for survival and healthy living and fish is one of the major sources of animal protein. Holt emphasized this point in his paper titled Marine Fisheries.441 Coming back to the foremost question of What exactly is optimum utilisation and whether is it equivalent to maximum utilisation? Optimum utilisation and maximum utilisation are two different genres of the same music. Maximum utilisation confers to the TAC of the fish stocks without reflecting any other factor while optimum utilisation is inclusive of biological, environmental, economic and social factors.442 Optimum utilisation aids in preventing environmental mishaps by providing sustained use of fish stocks and serves for a safety margin.

Total Allowable Catch

How shall coastal State establish the TAC or the best sustainable yield of its living sources in its EEZ? The Convention suggests various methods to provide assistance to the coastal State. The following are the two examples of environmental factors that should be taken into account while fixing the total permitted catch. The coastal state should make sure that the TAC of one species wouldn’t result in the reduction of the population of the dependent or the associated species below the desired level as there is a complex food web linking various species in the ocean.The TAC in recent years has been based upon as termed bay fisheries scientists “ virtual population analysis”.

Harvesting Capacity and Surplus

After ascertaining the TAC in its EEZ, the coastal State shall define its own harvesting capacity.443 If the coastal State possesses the capacity to harvest all of the TAC then it has the authority to harvest the entire catch of every specie in its EEZ. Though, if the capacity is lesser than the TAC then the coastal State is legally obliged to lend access to the surplus to other State s- It does seem as a modest requirement that nonetheless appears easily but legally thwarted by the coastal State .444 The

441 S.J. Holt & C. Vanderbuilt, "Marine Fisheries", in E.M. Borgese & N. Ginsburg (Editors), Ocean Yearbook, Vol. 2 (1980), at p. 2 442 Tommy T. B. Koh, ‘ THE EXCLUSIVE ECONOMIC ZONE’ Malaya Law Review , July 1988, Vol. 30, No. 1 (July 1988), pp. 1-33 (National University of Singapore (Faculty of Law)) 443 Article 62, para 2 , UNCLOS 444 Burke, U.S. Fishery Management and the New Law of the Sea, 76 Am. J. of Int'l L. 24, 28-29 (1982). [176] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 criteria for allocation of such surplus may not be a problem when only one State seeks access to the surplus.445 But when the surplus in not enough to satisfy the States seeking access to it then, ‘What shall be the criteria for such allocation?’ The first preference may be given to States which are defined by Articles 69 and 70 as has been specified in Article 62. Articles 69 and 70 infer rights of land-locked and geographically disadvantaged States. Thereafter, “the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks446”. These factors may not prove to be exhaustive. Koh interprets the article as creating a hierarchy within the States to appreciate and acknowledge the rights of the other States. He argues that the first place in the hierarchy is provided to land-locked and geographically disadvantaged States. The second place to developing States of the regions as provided in Article 62. Lastly, the third place to the habitually fishing categories or the States who have contributed in research and identification of fish stocks. He supports his argument from the emphasis provided to States classified under Articles 69 and 70. Thus, the other groupings of States do not enjoy a right, but a privilege.447

Restrictions

The coastal States whose economy to a great extent is dependent on the utilization of the living resources of its exclusive economic zone, the rights granted under Article 69 and 70 on land-locked and geographically disadvantaged States can’t be exercised against it as per article 71 of the Convention. Iceland is an example of it.

Terms and Conditions for Access

445 Supra Note 22 446 Article 62, para 3, UNCLOS 447The terms "right" and "privilege" are used in accordance with Professor Hohfeld's taxonomy. W.N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning ( 1946) [177] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021  The Payment of fees may be demanded by the coastal state. The amount and the manner in which the fee is calculated differs from one jurisdiction to another. In developing the Coastal States, the Conventions allow it to demand compensation in place of cash payments in the area of equipment, technology, and financing with respect to the fishing industry.  Article 62, para 4 (f) states that the State or States to which the surplus is allotted to be required by the Coastal State to undertake certain specified fisheries research programs.  As per Article 61, para 4 (i) The Coastal state can request the applicant state to enter into a joint venture or other cooperative arrangements to harvest the surplus.  As per Article 61, para 4 (j) - the coastal State can ask the applicant State to train the former's personnel and to transfer fisheries technology, including enhancing the coastal State's capacity to undertake fisheries research.

Are the Same Terms and Conditions Applicable to LL/GDS and the Developing States?

In the queue for access to the surplus to land-locked and geographically disadvantaged State Article 69 and 70 accords first place. The second place to developing states in the same subregion and region Article 62 para 3, accords second place. The third place accords the steps which have made sustainable efforts in identification and research of sticks in the zone and have habitually fished in the zone, that are probably all developed states. The question arises that whether similar terms and conditions for being allocated a part or the whole of the surplus, are relevant and applicable for all three categories of states or only the third. The same terms and conditions are relevant and applicable to all the three categories of states448. The rights of the land-locked and geographically disadvantaged States are to be exercised, "in conformity with the provisions of article 61 and 62, as per Articles 69 and 70. This conclusion puts the whole question of priority in the queue for surplus into new light because if the same terms and conditions are demanded by the coastal states for all three categories of states, the developing states and the land- locked and geographically disadvantaged States may find themselves in a position where they are unable to make use of their priority and therefore, the surplus will be

448 Supra Note 22 [178] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 allotted to the highest bidder. Such outcomes are in contrast with the idea of giving priority to the developing states and the land-locked and geographically disadvantaged States. However, there is no escape from the conclusion as the preferential access to surplus is given on terms more favorable than those applicable to States in the third category. The only solution lies in the hands of the Coastal states, deciding it as a substance of its regional and foreign policy.

Surveillance and Enforcement

Adopting conservation and management is not enough for a Coastal state. It shall also develop a capacity to make certain of compliance with its conservation and management laws and regulations. Unless and until it does so, there will be no punishment against the breach of its laws and regulations. There are three ways of carrying out Surveillance and Enforcement -  By means of aircraft  By means of ships  By positioning observers onboard fixing vessels. The ships patrolling EEZ will recognize the fishing vessels and determine their location. They will also verify if they are licensed to be in that zone and in that area or not and will observe their fishing activities. If necessary, they can board and inspect the fishing vessel; the inspection shall include the examination of the catch on deck, of nets in use, the fish processing, the storage facilities below deck, and its logbook entries449.

Sub-Regional Fisheries Commission (SRFC), ITLOS Case

The status of the regime of fisheries in the EEZ has been further clarified through the Advisory opinion made by the International Tribunal for the Law of the Sea (ITLOS) in Case No. 21.450 It was for the very first time that the full tribunal of the ITLOS entertained a request for an

449 Supra note 22 450 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS, Advisory Opinion of 2 April 2015. The Opinion and relevant materials for the proceedings are available at the website of the ITLOS (www.itlos.org/ en/ cases/ list-of-cases/ case-no-2 1 /). [179] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 advisory opinion. One of the questions that the SRFC posed to the Tribunal was, “What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?”451 Notably, the terms ‘shared stocks’ and ‘sustainable management’ are nowhere mentioned in the Convention. The Tribunal explained the term ‘shared stocks’ within the meaning of straddling stocks as per Article 63 of the Convention and ‘sustainable management’ as ‘conservation and development’. The tribunal acknowledged that the basic framework for conservation of the MLR is governed by Article 61. It founded that Article 61 and 62 of the Convention perceive certain obligations and “these obligations entail corresponding rights”. The Tribunal herein settles the dust largely by putting obligations and rights on a equal basis. Though, Article 56 of the Convention grants the coastal State sovereign rights in its EEZ it reminds the States that such exclusive rights are to be approached with legal obligations as mentioned in Article 61 and 62. Paras 208 and 209 of the Advisory opinion State the obligations and considerations to be taken into account for such obligations pursuant to Articles 61 and 62. The opinion essentially reiterates the Articles and additionally advocates for the precautionary approach when scientific evidence for conservation and management is deemed insufficient.452 In context of the foreign nationals fishing in the EEZ, the Tribunal observed that Article 62(4) of the Convention directly compels the foreign nationals fishing in the EEZ to comply with the laws and policies of the coastal State . If one may read Article 58(3) and Article 62(4) together, it clearly implies that the Convention imposes a duty upon the flag State to comply with laws and regulations of the coastal State’s EEZ. The opinion does have a lot of merits but still deficiencies exist. The important question which has been argued from the birth of the EEZ concerning the vagueness of the conservation and utilization provisions are left unanswered. The lack of express provisions in the Convention enables the parties to bypass the Convention laws with ease. Although, Articles 61 and 62 were dealt with specifications, the Tribunal did nothing new in terms of interpreting the laws for refinement and making the provisions’ status a bit more expressive, instead the provisions were reiterated from the Convention. The problems with insufficient scientific evidence, the concept of maximum sustainable yield, arrangements of coastal States with developing States are some of the major issues which till date remain unresolved.

Conclusion

451 Ibid, para 2. 452 Jianjun Gao, 'The ITLOS Advisory Opinion for the SRFC' (2015) 14 Chinese J Int'l L 735 [180] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

“The effectiveness of international law is determined by the degree to which States comply with it. Implementation and compliance can be either induced by incentives and assistance or enforced by the threat with and the application of sanctions453”. The vagueness of the duties of conservation and allocation of surplus in light of the provisions of the Convention and of State practice leads to the conclusion that the power of management and conservation of living resources in the EEZ is highly discretionary.454 Article 297(3) of the Convention confirms this status as coastal States are not obligated in any manner to submit to settlement of a dispute relating to their sovereign rights455 with respect to the MLR in the EEZ.456 The provisions which are made for land locked States and geographically disadvantaged States are hardly in the frame of things. Moreover, the allocation of surplus to foreign States merely corresponds to practice.457 The Convention overall provides for a general framework458 for regime on fisheries in the EEZ and presents a mere guideline. The reference given in the Articles concerning any generally recommended international standards is wide enough to cover a large variety of instruments adopted at the international level and the coastal State shall look beyond the Convention to govern their obligations of management and conserving of fisheries under their jurisdiction.459 Tanaka’s description of the system as “inadequate and inappropriate”460 provides a strong illustration of the deficiencies inherent in the Convention’s provisions with respect to MLR in the EEZ. The coastal States as has been portrayed above are the chiefs of the EEZ living resources. Every measure is subject to discretion and every obligation contained is a directive. The obligations contained in Articles 61 and 62 though offer for a number of measures, fail to strictly prescribe a standard set of norms. A State’s exclusion from compulsory dispute settlement proves to be the most significant discretion provided to the coastal States by the drafters.461

Bibliography

453 R Wolfrum, ‘Means of Ensuring Compliance with and Enforcement of International Environmental Law’ (1998) 272 Recueil des Cours 9. 454 Supra Note 11 455 Ibid 456 Article 297(3)(c), UNCLOS. Furthermore, under Annex V, Section 2 of the Convention a conciliation procedure is possible only in case of manifest violation of the duty of conservation or in the case of an refusal to determine the TAC. 457 Supra Note 11 458 Supra Note 7 459 Supra Note 7 460 Y. Tanaka, ‘The International Law of the Sea’ (Cambridge: Cambridge University Press, 2012), pp. 235-236. 461 AE Boyle, ‘Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks’ (1999) 14 IJMCL 1, 11. [181] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

 Farin Mirvahabi, 'Conservation and Management of Fisheries in the Exclusive Economic Zone' (1978).  Nele Matz-Lück, Johannes Fuchs, ‘ Chapter 22 Marine Living Resources’From: The Oxford Handbook of the Law of the Sea, Edited By: Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott, Tim Stephens  James Harrison, ‘Chapter 7 Fishing and the Conservation of Marine Living Resources’From: Saving the Oceans Through Law: The International Legal Framework for the Protection of the Marine Environment  GESAMP, ‘A Sea of Troubles’, GESAMP Report and Studies No 70 (2001) 1  Global Ocean Commission, ‘Improving Accountability and Performance in International Fisheries Management’, Policy Options Paper #9  Gemma Andreone, ‘Chapter 8, The Exclusive Economic Zone’ From: The Oxford Handbook of the Law of the Sea, Edited By: Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott, Tim Stephens.  Tommy T. B. Koh, ‘ THE EXCLUSIVE ECONOMIC ZONE’ Malaya Law Review , July 1988, Vol. 30, No. 1 (July 1988), pp. 1-33 (National University of Singapore (Faculty of Law)).  WT Burke, ‘US Fishery Management and the New Law of the Sea’ (1982) 76 AJIL 24, 32.  R Barnes, ‘The Convention on the Law of the Sea: An Effective Framework for Domestic Fisheries Conservation?’, in D Freestone et al (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 235, 242.  A Proelss and K Houghton, ‘Protecting Marine Species’, in R Rayfuse (ed.), Research Handbook on International Marine Environmental Law (Edward Elgar 2016).  S.J. Holt & C. Vanderbuilt, "Marine Fisheries", in E.M. Borgese & N. Ginsburg (Editors), Ocean Yearbook, Vol. 2 (1980).  Jianjun Gao, 'The ITLOS Advisory Opinion for the SRFC' (2015) 14 Chinese J Int'l L 735.  Y. Tanaka, ‘The International Law of the Sea’ (Cambridge: Cambridge University Press, 2012).

[182] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

HUMAN RIGHTS CRISES IN KASHMIR: AN

OVERVIEW.

By: Mehak Andrabi

ABSTRACT Since the partition of India and Pakistan in 1947, Kashmir has become a problem between these two nuclear countries. Kashmir since then has struggled for self determination which was promised by the UN by suggesting to conduct a free and fair plebiscite for Kashmiris to decide their future but both these countries even through negotiations failed conduct the same. Since then, anger has taken over among Kashmiris over the repeated human rights violations in Kashmir by security forces. This paper in brief highlights the human rights crises in Kashmir engaged by the armed forces in Kashmir. It covers major instances of such crises from the year 1947 to 2020. AN OVERVIEW The division of the Indian subcontinent in 1947, which resulted in the creation of the independent states of India and Pakistan, is at the root of the conflict in Kashmir. Hundreds of nominally autonomous "princely states" were incorporated into the two new nations as a result of the division. However, Maharaja Hari Singh, the ruler of Kashmir, refused to accede to either government, ostensibly in the hope that the state would be allowed to remain independent. Invasion by Pakistani tribesmen in August and September 1947, along with an uprising among Kashmiri Muslims in the state's western regions, prompted the maharaja to take the assistance of Indian Prime Minister Nehru, who agreed to send troops only if Kashmir formally assented to India. On 27 October1947, the Maharaja agreed to the accession of Kashmir to India provided that it was allowed to keep its own Constitution.462 Indian troops managed to stop Pakistani forces and driving them back to the state's western third, which was then annexed by Pakistan as "Azad" (free) Kashmir. An armed conflict involving Indian and Pakistani forces, which India brought to the attention of the United Nations Security Council on 1 January, 1948. On 20 January 1948, the Security Council, by means of Resolution 39, established the United Nations

462 Instrument of Accession, clause 7. [183] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Commission for India and Pakistan (UNCIP) to scrutinize the allegations made by the Governments of India and Pakistan and to facilitate in mediating the dispute.463 Phase I- 1950-1992 Political dissatisfaction with the central government's attempts to dominate politics in the state surged in the 1950s and 1960s. In 1964 the first militant group, the Jammu and Kashmir Liberation Front (JKLF), was formed to fight for independence. The Simla Accord was signed on July 2, 1972, by India and Pakistan, in which both countries agreed to respect the cease-fire line and to resolve their differences over Kashmir "peacefully" through negotiation and meetings to negotiate "a final settlement." Since then, the Simla Accord has acted as the basis for all bilateral talks on Kashmir.464 In 1986, then-Indian Prime Minister Rajiv Gandhi and Jammu and Kashmir Chief Minister Farooq Abdullah signed a new agreement, which was generally seen as a betrayal of Kashmiri interests in the province. Farooq Abdullah's National Conference faction was quickly tarnished by allegations of systemic misconduct. The Muslim United Front (MUF), a new opposition party with support from pro-independence leftists, Islamic fundamentalists, and many dissatisfied Kashmiri youth, was founded and ran in the state assembly elections in March 1987. In the aftermath of the poll, widespread fraud in the vote count and mass arrests of MUF candidates triggered widespread public disillusionment with state politics, driving many to back new insurgent groups.465 In July 1988 after the formal declaration of "armed struggle," by JKLF chief Amanullah Khan following bombing in various locations in Srinagar, the predominantly indigenous self-determination movement, launched by the Jammu Kashmir Liberation Front (JKLF), was characterized by a rebellion in the Kashmir valley. During that summer, after the violently rude elections of 1987, wide-ranging demonstrations for self-determination and agitation against the Indian rule took place and the 1989 parliamentary polls were widely boycotted. Following the polls, JKLF and other insurgent groups became bolder, detonating explosives at government offices, buses, and the homes of current and former state government leaders, and imposing a state-wide boycott of the November 1989 national parliamentary elections, many of whom publicly acknowledged that they obtained weapons and training in Pakistan. A month later, JKLF militants kidnapped Mufti Mohammad Sayeed's daughter, but rescued her after the

463 UN Security Council, Security Council resolution 39 (1948) [The India-Pakistan Question], 20 January 1948, S/RES/39 (1948), available at: https://www.refworld.org/docid/3b00f1f48.html [accessed 01 Feb. 2021] 464 Human Rights Watch (1999). Behind the Kashmir Conflict - Undermining the Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org. Available at: https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20char ged [Accessed 09 Feb. 2021]. 465 Human Rights Watch (1999). Behind the Kashmir Conflict - Undermining the Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org. Available at: https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20char ged [Accessed 09 Feb. 2021]. [184] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 government caved in to calls for the release of five arrested militants. This, along with a surge in widespread protests against the state and federal governments, prompted New Delhi to begin a major counter-insurgency campaign against the militants. Governor's rule under Jagmohan was proclaimed on January 19, 1990, after the state government resigned in protest, who initiated a ‘tough’ no-tolerance policy including continuous and complete civil curfews against the mass protests for self-determination, and marches against the escalating army atrocities. In 1990, Kashmir was put under continuous curfew for 175 days from January to May, in response to the killing of 60 mourners in the funeral of Mirwaiz Mohammad Farooq.466 On July 5, 1990 India introduced the Armed Forces (Jammu and Kashmir) Special power act (AFSPA)467 to control the armed organization's which arose from objections against Indian control over Kashmir during the 1980's.468 The act gave the army sweeping powers of arrest of civilians, and even to use lethal force on ‘unlawful assemblies’ on law and order grounds. Ultimately a vast variety of Indian security forces were stationed in Kashmir, alleging serious violations of human rights. Civil society and the media also quote the number of between 500,000 and 700,000 troops469 making Kashmir one of the world's largest militarized regions. Human rights abuses are claimed to include torture, death in detention, rape, forced disappearances and executions. The AFSPA allows the army to carry out arrests, searches, seizures, and destructions of weapons and ammunition in civilian areas in the assistance of civilian authorities in order to maintain law and order. Following the promulgation of AFSPA the Cordon and Search Operation, also known as a "crackdown," began in July 1990, and as well as indiscriminate arson attacks, allegedly to destroy secret weapons, became a near-daily occurrence.470 By1990, the Cordon and Search Operations (CASOs) had become a commonly feared and routine occurrence, with a wide variety of crimes, including mass sexual abuse and torture,

466 Bukhari, S. (2016). Why The 51-Day Curfew Will Change Nothing In Kashmir. [online] www.scoopwhoop.com. Available at: https://www.scoopwhoop.com/Why-51-Days-Of-Curfew-Is-Nothing-New-For-Kashmir/#.gn42opwp0 [Accessed 11 Feb. 2021]. 467 MHA (1990). THE ARMED FORCES (JAMMU AND KASHMIR) SPECIAL POWERS ACT, 1990. [online] https://mha.gov.in. Available at: https://mha.gov.in/sites/default/files/The%20Armed%20Forces%20%28Jammu%20and%20Kashmir%29%20Specia l%20Powers%20Act%2C%201990_0.pdf [Accessed 18 Feb. 2021]. 468 Former armed group leader Muhammad Yasin Malik narrates the emergence of Jammu and Kashmir National Liberation Front on 13 August 1996 and their decision to take up arms against Indian control of Kashmir. Muhammad Yasin Malik (2017). Amanullah Khan: the legend I knew. [online] Greater Kashmir. Available at: http://www.greaterkashmir.com/news/front-page/amanullah-khan-the-legend-iknew/247552.html. [Accessed 24 Feb. 2021]. 469Ashraf, A. (2016). “Do you need 700,000 soldiers to fight 150 militants?”: Kashmiri rights activist Khurram Parvez. [online] Scroll.in. Available at: https://scroll.in/article/812010/do-youneed-700000-soldiers-to-fight-150- militants-kashmiri-rights-activist-khurram-parvez [Accessed 24 Feb. 2021]. 470 Amnesty International (1995). Torture and deaths in custody in Jammu and Kashmir. [online] https://www.amnesty.org. Available at: https://www.amnesty.org/download/Documents/176000/asa200011995en.pdf [Accessed 24 Feb. 2021]. [185] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 unlawful arrests leading to subsequent disappearances, and custodial and extrajudicial killings. By the mid-1990s, the neighborhood crackdown had been established as a feared but all-too- common occurrence, with a wide range of crimes, including widespread sexual abuse and torture (for example, the Kunan Poshpora mass rapes and torture, 1991 and Operation Wular, 1993), as well as unlawful arrests leading to subsequent disappearances or custodial and extrajudicial killings.471 “The majority of the people who are tortured and killed in detention are young men picked up by the army or paramilitary forces during "crackdown" operations in villages or other areas to locate alleged militants,” according to the 1991 fact-finding delegation. The families of those arrested are often kept in the dark about why they are being held or where they are being detained.” These victims suffered a variety of horrific injuries, including rectal muscle tears, perforated abdomens, diaphragm and intestines, and permanent limb mutilation.472 Enforced disappearances were described by Amnesty International in 1993 as one of the most persistent types of human rights abuses. Other systematic human rights abuses since 1990 included "hundreds of extrajudicial killings, often in the form of staged "encounters," regular and brutal torture, including rape, and the incarceration of several thousands of political prisoners detained for months or years without being brought to trial while being denied the basic legal safeguards provided in international human rights standards," according to the report.473 It indicated that since 1990, thousands of people have been imprisoned without trial in the state under the Public Safety Act (PSA)474 and the Terrorist and Disruptive Activities Act (TADA), and that "many have died in captivity after torture, and the number of extrajudicial killings in Jammu and Kashmir has reached unprecedented levels; they are currently by far the highest in any Indian state." Hundreds of people are said to have died in custody in Jammu and Kashmir in recent years, and their bodies were often dumped in the open, with noticeable injuries.”475 Phase II- 1992- 2008 In 1990, rising anxiety among Pakistan and India following the escalation of the warfare in Kashmir raised fears of any other battle between the two countries. By the mid of 1992, diplomatic talks on settling the Kashmir crisis had come to a halt. Five former opposition figures were freed from jail in March 1992, largely as part of a government initiative to ready the state

471Ibid, Pg no.14. 472 Ibid, Pg no. 14-16 473 Amnesty International (1993). An Unnatural Fate: Disappearances and Impunity in the Indian States of Jammu and Kashmir and Punjab. [online] . Available at: https://www.amnesty.org/download/Documents/188000/asa200421993en.pdf [Accessed 4 Mar. 2021]. Page 5. 474 Under the PSA, a detainee may be held in administrative detention for a maximum of two years without a court order. At the detainee's request, an advisory board consisting of three judges may be assembled to review the detainee's case. The detainee may make this request only once. 475 Amnesty International (1993). An Unnatural Fate: Disappearances and Impunity in the Indian States of Jammu and Kashmir and Punjab. [online] . Available at: https://www.amnesty.org/download/Documents/188000/asa200421993en.pdf [Accessed 4 Mar. 2021]. [186] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 for elections. Since then, government officials have indicated that they are prepared to cooperate with insurgent groups "within the context of the Indian constitution."476 In August 1992, ‘Operation Tiger’ was launched, it became the primary in a chain of systemic counterinsurgency operations code-named ‘Shiva’, ‘Eagle’, and ‘Cobra’, and many others. Those had been locally called the “seize and kill” coverage.477 On January 6, 1993, Indian paramilitary forces rampaged through a neighborhood in the city of Sopore, killing at least 43 civilians in the conflict's single largest civilian massacre. The attack was allegedly in revenge for a militant attack that killed two soldiers. Security services "run amok,"478 according to a local police official on the scene, preventing police and fire fighters from intervening. According to army officials, those who died were killed in "crossfire." The BSF commandant and several other officers were suspended by the central government, and an investigation was launched. The findings of the investigation were not available at the time this article went to print.479 Phase III- 2008-2020 The government's assertion of a "return to normalcy" was broken in 2008, when Kashmiris took to the streets in large numbers to protest a plan to purchase and use forest land for the purpose of constructing a township for Hindu pilgrims on the heavily militarized Amarnath pilgrimage. Protests in the valley were met with large-scale Hindu nationalist mobilizations in the Jammu district, as well as blockading and brutal attacks on the valley's only road connection to mainland India, the national highway.480 In Kashmir, unarmed protesters were fired upon in several different incidents, resulting in the deaths of over 50 people and the escalation of demonstrations and funeral processions into fierce stone-throwing protests against armed forces troops, barricades, and infrastructure, mostly by teenage male youths. At this time, the teenage ‘stone pelter' emerged as a criminalized group, subjected to a cycle of unlawful and unrecorded arrests based on speculation and profiling, extended detentions, inhumane treatment, release, and re-arrest at the first instance of political

476 Human Rights Watch (1999). Behind the Kashmir Conflict - Background (Human Rights Watch Report, July 1999). [online] Hrw.org. Available at: https://www.hrw.org/reports/1999/kashmir/back.htm. [Accessed 17 Mar. 2021]. 477 Ibid 478 Reuters (1993). India Says Troops “Went Amok” in Kashmir (Published 1993). The New York Times. [online] 8 Jan. Available at: https://www.nytimes.com/1993/01/08/world/india-says-troops-went-amok-in-kashmir.html [Accessed 17 Mar. 2021]. 479 Human Rights Watch (1999). Behind the Kashmir Conflict - Undermining the Judiciary (Human Rights Watch Report, July 1999). [online] www.hrw.org. Available at: https://www.hrw.org/reports/1999/kashmir/judiciary.htm#:~:text=Detainees%20who%20are%20ultimately%20char ged [Accessed 17 Mar. 2021]. 480 Bhan, M. and Zia, A. (2018). Resisting Occupation in Kashmir: the Ethnography of Political Violence. Resisting Occupation in Kashmir: the Ethnography of Political Violence. [online] Available at: https://www.academia.edu/38089677/RESISTING_OCCUPATION_IN_KASHMIR_THE_ETHNOGRAPHY_OF_ POLITICAL_VIOLENCE [Accessed 19 Mar. 2021]. [187] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 unrest. Cycles of civilian killings, strikes, and street protests erupted throughout the valley, as well as in the Chenab and Pir Panjal regions, in the summer of 2009, in response to the rape and murder of Asiya and Neelofer Jan of Shopian by armed forces personnel,481 and again in 2010, initially in response to a staged encounter killing of three civilians in Macchil, Kupwara,482 and in 2013, in response to the hanging of Afzal Guru in Tihar Jail, New Delhi.483 Armed forces troops routinely used live ammunition and pellet shotguns to disrupt demonstrations and funeral processions, resulting in devastating permanent casualties, including mass blindness, subsequent shootings, funeral gatherings and protests. Following the assassination of militant leader Burhan Wani in July 2016, the era has been characterized by unparalleled periods of such aggression. Extrajudicial killings, injuries, arbitrary detentions, torture, sexual harassment, disappearances, arson and destruction of civilian buildings, restrictions on congregational and religious practices, media gags, and bans on communication and internet services, among other things, have all occurred in Kashmir in the last two years. More than 100 protesters were killed in the five-month-long street protests following Wani’s killing, triggering a new wave of popular anger against the Indian rule. People's human rights and civil liberties were curtailed as a result of curfews, strikes, and continued violence and re-militarization. Cell phones, laptop computers, and other mobile gadgets, in addition to social media messages, also were routinely inspected during sporadic stop and frisk searches. In the first ten months of 2017, 42 militant attacks were reported in the state of Jammu and Kashmir, killing 184 civilians, including 44 security forces. As security forces tried to suppress violent demonstrations, many protesters were killed or wounded.484 According to the APDP and JKCCS, a total of 4042 people were killed in Jammu and Kashmir between 2008 and 2018. There were 1067 people, 1898 militants, and 1077 veterans of the armed forces. In Indian-administered Kashmir, the year 2018 was the deadliest in the last decade, with at least 586 people killed in various incidents of violence, the highest number in the last decade. 160 men, 267 militants, and 159 officers of the Indian armed forces and Jammu and Kashmir police are among the 586 people killed in Indian-controlled Jammu and Kashmir. The 267 militants killed in clashes with security forces and police is the highest number in the last decade. In reality, militant killings have increased dramatically since 2016, with 145, 216, and 267 militants

481 Polgreen, L. (2009). 2 Killings Stoke Kashmiri Rage at Indian Force. The New York Times. [online] 15 Aug. Available at: http://www.nytimes.com/2009/08/16/world/asia/16kashmir.html?partner=rss&emc=rss [Accessed 19 Mar. 2021]. 482 Bukhari, P. (2010). Kashmir 2010: the Year of Killing Youth. [online] www.thenation.com. Available at: https://www.thenation.com/article/archive/kashmir-2010-year-killing-youth/ [Accessed 19 Mar. 2021]. 483 Afzal Guru: Kashmir Anger over Hanging. (2013). BBC News. [online] 11 Feb. Available at: https://www.bbc.com/news/world-asia-india-21406874 [Accessed 19 Mar. 2021].

484 Human Rights Watch (2018). World Report 2018: Rights Trends in India. [online] Human Rights Watch. Available at: https://www.hrw.org/world-report/2018/country-chapters/india [Accessed 19 Mar. 2021]. [188] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 485 killed in Indian-controlled Kashmir in 2016, 2017, and 2018. APDP and JKCCS reported 108 instances of internet blockade in Indian-controlled Jammu and Kashmir in 2018. As the horrific rape and murder of an eight-year-old girl from Kathua in January 2018 shows, sexual assault as a "weapon of war" appears to be widespread in Indian-controlled Jammu and Kashmir. Other charges of rape against CRPF personnel in Poonch were made in 2018, and Indian army personnel were detained by police for allegedly abducting a teenager in Poonch.486 The Office of the United Nations High Commissioner for Human Rights (OHCHR) released a 49-page report detailing human rights violations in Indian and Pakistani-controlled Kashmir. The research reports on human rights violations in India since July 2016, when violent demonstrations broke out in response to the government's killing of a militant leader. The report was immediately rejected by the government, which described it as "fallacious, tendentious, and inspired."487 According to the OHCHR survey, Indian security forces used disproportionate force in response to the frequently violent protests that started in 2016, killing at least 145 people and injuring hundreds more, according to civil society organizations. In the same time span, militant groups killed up to 20 civilians, according to the study.488 Unidentified gunmen assassinated prominent journalist Shujaat Bukhari, editor of the Rising Kashmir, outside the newspaper's office in Srinagar, just hours after the report was released.489 The UN stated, among other abuses, that pellet-firing shotguns were used against violent protesters, resulting in deaths and serious injuries. Between July 2016 and August 2017, 17 people were killed by pellet injuries, according to official government estimates. The chief minister of Jammu and Kashmir told the state legislature in January 2018 that pellet guns had wounded 6,221 civilians. The study shared concerns about human rights abuses going unpunished and a lack of access to justice. The Jammu and Kashmir Public Safety Act (PSA) and the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) have “created mechanisms that hinder the usual course of law, inhibit transparency, and jeopardize the right to redress for victims of human rights violations,”490

485 JKCCS (2018). 2018 deadliest year of the decade - APDP and JKCCS Annual Human Rights Review. [online] Jammu Kashmir Coalition of Civil Society (JKCCS). Available at: https://jkccs.net/2018-deadliest-year-of-the- decade-jkccs-annual-human-rights-review/ [Accessed 20 Mar. 2021]. 486 Ibid 487 Human Rights Watch (2018a). India: Act on UN Rights Report on Kashmir. [online] Human Rights Watch. Available at: https://www.hrw.org/news/2018/06/14/india-act-un-rights-report-kashmir [Accessed 20 Mar. 2021]. 488 OHCHR (2018). Office of the United Nations High Commissioner for Human Rights Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in. [online] . Available at: https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf [Accessed 20 Mar. 2021]. 489 Human Rights Watch (2018a). India: Act on UN Rights Report on Kashmir. [online] Human Rights Watch. Available at: https://www.hrw.org/news/2018/06/14/india-act-un-rights-report-kashmir [Accessed 20 Mar. 2021]. 490 OHCHR (2018). Office of the United Nations High Commissioner for Human Rights Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, [189] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 On February 14, 2019, over 40 Indian troops were killed in a terror attack on a security forces convoy in Pulwama district. Jaish-e-Mohammad, a Pakistan-based militant group, took responsibility for the attack. It triggered a military standoff between India and Pakistan, with at least four civilians killed in shelling along the contested territory de facto international boundary. Kashmiri students and businessmen in other parts of India were assaulted or beaten up in the aftermath of the attack, and some were forcefully evicted from rental accommodation and dorms.491 In July, the UN High Commissioner for Human Rights issued an update on its 2018 Kashmir report, expressing grave concern regarding violations by state security forces and militant groups in both Indian and Pakistani areas of Kashmir, and stating that neither government had taken any meaningful measures to resolve the issues posed in the previous report.492 On August 5, 2019, the government of India revoked the special autonomous status of the state. Former chief ministers, party officials, opposition activists, attorneys, and journalists were among those arrested without notice, and the internet and phones were shut down. Movement was heavily limited, and public meetings were banned. While the government argued that these measures were appropriate to deter deaths during violent demonstrations, there were also credible and severe reports of security forces beatings and torture. In September, a 15-year-old boy in Chandgam village, Pulwama, committed suicide hours after an alleged army beating. The army refuted the argument. Although some sanctions have since been lifted, hundreds of people remain imprisoned, and cell phone and internet access are still limited.493 The communication and internet blockade that started on August 5 has been India's longest to date, and it resulted in a series of significant abuses of the right to freedom of speech and peaceful assembly. From January 1 to August 4, 2019, the Indian government had shut down the internet in Jammu and Kashmir 54 times. Both landline and cell phone lines were also disconnected, in addition to the internet being closed.494 Hundreds of people remained in custody by November, despite the lifting of certain limits, and mobile phone and internet access were also limited. Independent trips to Kashmir were barred by the government for opposition leaders, foreign ambassadors, and

and General Human Rights Concerns in. [online] . Available at: https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf [Accessed 20 Mar. 2021]. 491 Sifton, J. (2019). Jammu and Kashmir in Context. [online] Human Rights Watch. Available at: https://www.hrw.org/news/2019/11/14/jammu-and-kashmir-context [Accessed 20 Mar. 2021]. 492 OHCHR (2019). Office of the United Nations High Commissioner for Human Rights Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan. [Online] . Available at: https://www.ohchr.org/Documents/Countries/PK/KashmirUpdateReport_8July2019.pdf [Accessed 20 Mar. 2021]. 493 Sifton, J. (2019). Jammu and Kashmir in Context. [online] Human Rights Watch. Available at: https://www.hrw.org/news/2019/11/14/jammu-and-kashmir-context [Accessed 20 Mar. 2021]. 494 Dhillon, A. (2020). India Supreme Court orders review of Kashmir internet shutdown. [Online] the Guardian. Available at: https://www.theguardian.com/world/2020/jan/10/kashmir-blackout-indias-supreme-court-orders-delhi- to-review-internet-shutdown [Accessed 20 Mar. 2021]. [190] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 international journalists. On 15 January 2020: Internet was restored in hospitals, government offices and schools, but access to social networks and personal home broadband connections remains banned. On 18 January 2020: Low-speed internet services (2G) were restored in 10 districts of Jammu & Kashmir and in two district of North Kashmir, with access to only 301 government-approved websites. By the end of 2020, Hundreds of people in Jammu and Kashmir still remained imprisoned without charge under the draconian Public Safety Act, which provides for imprisonment without trial for up to two years. In June, the government announced a new media policy in J&K that gives officials the authority to determine what constitutes "false news," "plagiarism," and "unethical or anti-national practices," as well as to punish media organizations, writers, and editors. The legislation includes ambiguous and overbroad clauses that may be abused, restricting and penalizing constitutionally protected expression excessively. Critics, whistleblowers, and human rights campaigners were also targeted by the government.495 Since August 2019, restrictions on access to communications networks, as well as other restrictions, have affected livelihoods, especially in the tourism-dependent Kashmir Valley. Since August 2019, the Kashmir Chamber of Commerce and Industries estimates that the lockdown to deter demonstrations has cost the economy over US$2.4 billion, for which no compensation has been given. Since the government introduced new restrictions to curb the spread of Covid-19 in March 2020, losses have nearly doubled. Access to the internet became vital for information, networking, schooling, and business during the pandemic. Despite the Supreme Court's declaration in January that internet access was a fundamental right, authorities only allowed slow-speed 2G mobile internet networks, prompting doctors to complain that the lack of internet was affecting the Covid-19 response.496

495 Human Rights Watch (2020). World Report 2021: Rights Trends in India. [online] Human Rights Watch. Available at: https://www.hrw.org/world-report/2021/country-chapters/india [Accessed 20 Mar. 2021]. 496 Ibid [191] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021

Right to private defence: A preventive right

By: Ratnesh Kumar Tiwari & Aman Singh

Abstract Before the evaluation of human’s civilization there is one rule which is applicable on society and that rule is known as might is right. But at somepoint, there is changes come to the society and might is right is not applicable on the society and the advancement of the society brought the institution of the state which was assigned for the job and role to protect each and every individual’s life liberty and property in the society. But at the some point has to be noted that how much the state is powerful and resourceful because it is not possible that every policeman to supervise and observe every activities of each individuals in the society and provide security for them and everywhere at every point of life in the society which necessitated the right of private defence. In the Latin term se defendendo means ‘self- defence’. Hari Singh Gour written the book penal law of India in which he written that the self-help is the first rule in criminal law. And also,Bentham in his book principles of penal lawwritten that “right of self-defence is absolutely necessary”. So, this paper deals with the laws relating to the right to private defence under Indian penal code.

Keywords: Private defence, Indian penal code, liberty, property, security

1. Introduction Section 96 to Section 106 of the Indian Penal Code deals with the laws relating to the right of private defence of person and property. The provisions contained in these sections give authority to a person to use necessary force against an assailant or wrong-doer for the purpose of protecting their own body and property as well as also to protect another’s body and property when immediate aid from the state machinery is not readily available; and in so doing he is not answerable in law for his deeds. The right of private defence is important for the protection of one’s life, liberty and property. It is a right inherent in a man. But the kind and amount of force is minutely regulated by the law. To use of force to protect their own property and to himself that is called the right to privatedefence. Approximately 150 years ago, during colonial period, an enthusiastic Macaulay proposed a right of private defenceand in his draft code with the ambitious project of encouraging a ‘manly spirit’ among the ‘natives’. The ideal Indian citizens would stand his ground in the face of danger and not hesitate to defend his own body or property. He or she would respond with defensive force to prevent certain crimes, even to the extent of causing death. In general, the right of private defence permits individuals to use defensive force which otherwise be illegal, to fend off attacks threatening certain important interests. Like the defence of the necessity is the right of the private defenceand the authorizes individuals are to take the law into their own hands.

2. Methodology The nature of the research paper is theoretical; hence the data has been collected through secondary sources, for example, reference books, internet, journals, etc. have been widely consulted to develop the plan of the research paper. The study employed a simple framework in identifying the contemporary definitional elements of “reasonable apprehension” and the role executed by the Supreme Court of India while exercising its criminal jurisdiction in the matters of concerning private defence of the body under the criminal laws of India. This paper will [192] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 examine that how the Indian judiciary changes the conventional adversarial model to carve out a greater space for itself in the trial. And this paper also examines the burden of proof which rests on the accused.

3. Private Defence: Meaning and Types The word ‘private defence’ that has been used in the Indian Penal Code, 1860, (IPC) has not been defined therein. Thus, it has been the prerogative of the judiciary to evolve a workable framework for the exercise of the right. In India, the right of private defence is the right to defend the person, or property of himself, or any other person against an act of another, in which if the private defence is not pleaded, would have to be amounted to a crime. This right is an exception of criminal liability. Some of the aspects of the right of private defence under the IPC are there is no right of self-defence can exist against an unarmed and unoffending individuals, the right is available against the aggressor only and it is only the person who is in imminent danger of his/her life or property, and available only when state is not available to help. Then the right of private defence is become a natural right which is evinced from circumstances rather than being a privilege. The most important principle is that the right of private defenceis requires that the force is used in the defenceand should be in necessary and reasonable in the circumstances. But, in the condition of disturbed and mental condition, this cannot be measured with golden scales. Whether the case of necessity is existing must be determined from the viewpoint of the accused and his act must be viewed in the light of the circumstances as they appear on such occasion. And there is Specific limitations are also provided for when the right cannot be validly exercised then the provision clearly specifies that the cases in which the right can extend to the causing of the death of the aggressor. The reasonable apprehension can only be justified if the accused had an honest belief that there was a danger and that such belief is reasonably warranted by the conduct of the aggressor and the surrounding the circumstances. Then it brings in an iota of an objective criterion for the establishing ‘reasonableness.’ And the imminence of the danger is also an important prerequisite for the valid exercise of the self-defence. And there should be a reasonable belief that the danger is imminent, and that force must be used to repel it.

4. Nature of the Right It is primary duty of a human being to protect himself. The right of self-defence must be nurtured in the citizens of every country. The right is recognized in every system of law and its extent varies in inverse ratio to the capacity of the state is to protect the life and property of the citizens of the state. It is the vital duty of the state to protect the life and property of every individuals who belongs to the particular state. One thing should be clear that there is no right of private defence when there is time to have recourse to the protection of the police authorities. The right is not dependent upon the actual criminality of the person resisted. It depends solely on the wrongful character of the act attempted and if the apprehension is real and reasonable, it makes no difference that it is mistaken. The Act done in exercise of this right is not an offence and does not, therefore, the give rise to any right of private defence in return.

5. Private Defence in India Jeremy Bentham, is an English Legal Luminary, once opined that, “This right of defence is absolutely necessary. Because The vigilance of the Magistrates can never make up for vigilance of everyone on his own behalf. The fear of the law can never restrain bad men so effectually as the fear of the sum to individual resistance. To take away this right and you become, in so doing, the accomplice of all the bad men.” This right is based on two principles, 1. It is available against the aggressor only, and 2. The right is available only when the defender entertains reasonable apprehension. The Right of private defence serves a social purpose and the right should be liberally construed.

[193] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Such a right is not only to restraining influence on corrupt characters but also toencourage manly spirit in a law-abiding citizen. The Right to private defence of a citizen, where one can practically take a law in his own hands to defend his own property and to defend himself, is clearly defined in Section 96 to Section 106 of the IPC (Indian Penal Code).

6. Important Sections-

6.1 Section 96 and its implications- It talks about thethings which are done in private defence – Nothing is an offence, which is done in the exercise of the right of private defence. Right of private defence cannot be said to be an offence of revenge. The right of self-defence under Section 96 is not, absolute but it is clearly qualified by Section 99 which says that the right in no case extends to the inflicting of more harm than it is necessary for the purpose of thedefence. It is well settled that in a free fight, no right of private defence is available to any party and everyone is responsible for his own acts. The right of private defence will completely absolve a person from all guilt even when the person causes the death of another person in the following situations, i.e. 1. If the deceased was the actual assailant, and 2. If the offence committed by the deceased, which occasioned the cause of the exercise of the right of private defence of body and property falls within anyone of the six or four categories enumerated in Sections 100 and 103 of the penal code.

6.2 Role of Section 97 in Indian Social Law- Section 97talks about the Right of private defence of the body and the Property: – Every person has a right, subject to the restrictions contained in Section 99, to defend- 1. His own body and the body of any other person, against any offence affecting to the human body. 2. The property, whether movable or immovable, of himself or any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or in which is an attempt to commit theft, robbery, mischief for criminal trespass. This Section limits the exercise of the right of private defence to the extent of absolute necessity. It must not be a more than what is necessary for defending the aggression. There must be a reasonable apprehension of danger that comes from the aggressor. Section 97 divides the right of private defence into two parts, i.e. the first part deals with the right of private defence of person, and the second part is talk about the right of private defenceof property. Section 99 lays down that the acts against which there is no right of private defence: – There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if it is done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by the law.

6.3 Social and Societal Implications of Section 99- Itlays down the conditions and limits within which the right of private defence can be exercised. The first two clauses provide that the right of private defence cannot be invoked against the public servant or a person acting in good faith in the exercise of his legal duty is provided that the act is not illegal. Similarly, clause three restricts the right of private defence that if there is time to seek help of public authorities. And the right must be exercised in the proportion to harm to be inflicted. It means that, there is no right of private defence: 1. Against the acts of a public servant; and 2. Against the acts of those who is acting under their authority or direction. 3. When there is enough time for recourse to public authorities; and

[194] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 4. The quantum of harm that may be caused shall in no case be in excess of harm that may be necessary for the purpose of defence.  Emperor vsMammun: In this case we see that the accused, five in number they went out on a moonlit night armed with clubs, and assaulted a man who was cutting rice in their field. The man received six distinct fractures of the skull-bones besides the others wounds and died on the spot. And after that the accused on being charged with murder and he pleaded right of private defence of their property.So in this case it was held that under section 99 there is no right of private defence is available because where there is a time to have recourse to the protection of the public authorities.  Public prosecute vsSuryanarayan: In this case there was a custom officers and they were found to have been smuggled from yemen into Indian territory in the course of search the smugglers attacked on the officers and injured them. And they argued that the officers had no power to search as there was no notification declaring yemen a foreign territory under the section 5 of the Indian tariff act. Then it was held that the officers had acted in a good faith and that the accused had no right of private defence.

6.4 Section100 of new era of social justice- It specifies when that the right of private defence of the body is toextend to causing death. The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, where to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions to the exercise of the right be of any of the descriptions hereinafter enumerated, namely: — 1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; 2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; 3. An assault with the intention of committing rape; 4. An assault with the intention of gratifying unnatural lust; 5. An assault with the intention of kidnapping or abducting; 6. An assault with the intention of wrongfully confining a person, under circumstances that may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. An act of throwing the acid or to attempting to throw acid.

To invoke the provisions of Section 100 of IPC, four conditions must exist: - a. The person exercising the right of private defenceis must be free from thefault in bringing about the encounter, b. There must be an impending peril to life or of great bodily harm, c. There must be no safe or reasonable mode of escape by back out, d. There must have been a necessity for taking life.

 Yogendra Moraji vs State: The supreme court through Sarkaria, J. discussed in detail that the extent and the limitations of the right of private defence of a body. One of the aspects is that emphasized by the court was that there must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by the inflicting death on the assailant. This aspect has create a quite confusion in the law as it indirectly suggests that the once should first try to see that the possibility of a retreat than to defend by using force which is contrary to the principle of that the law does not encourage cowardice on the part of one who is attacked. This retreat theory in fact is an acceptance of the English common law principle of the defence of the body or property under which the common law courts always insisted to look first as to

[195] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 whether the accused could prevent the commission of the crime against him by retreating or not.  Nandkishorelal case: In this case Accused was a Sikhs, and he abducted a Muslim married woman and converted her to Sikhism. After the abduction of a year her relatives of the woman’s husband came and demanded her to return from the accused. The latter he refused to comply and also the woman herself expressly stated her unwillingness to rejoin her Muslim husband. There after the husband’s relatives attempted to take her away by the force. then the accused resisted the attempt and in so doing one of them inflicted a blow on the head of the woman’s assailants, and then after resulted in the latter’s death. And then It was held that the right of the accused to defend the woman against her assailants extended under this section to the causing of death and they had, therefore, committed no offence. 6.5 Section101 prescribes that when the right extends to causing any harm other than death- If the offences be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the aggressor, but does extend, under the restrictions mentioned in the Section 99, to the voluntary causing to the assailant of any harm other than death.

6.6 Section102commencement and continuance- Section 102 deals with the commencement and continuance of the right of private defence of the body: The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or to threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of the danger to the body continues. The apprehension of danger must be reasonable, not arbitrary. For example, one cannot shoot one’s enemy from a long distance, even if he is armed with a dangerous weapon and it means to kill. This is because he has not attacked you and therefore there is no reasonable apprehension of attack. In other words, there is no attack then there is no right of private defence arises. The danger must be present and imminent.

6.7 Section103right of private defence of property extends to causing death-

The right of private defence of property is extends, under the restrictions is mentioned in Section 99 of the IPC, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, is the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely: 1. Robbery, 2. House-breaking by night, 3. Mischief by the fire committed on any building, tent or vessel, which building, tent of vessel is used as a human dwelling, or as a place for the custody of the property, Section 103 provides that the right of private defence to the property whereas Section 100 is meant for exercising the right of private defence to the body of a person. It justifies homicide in case of robbery, house breaking by night, arson and the theft, mischief or house trespass which cause apprehension or a grievous harm. If a person does not have possession over the property, then he cannot claim any right of private defence regarding such property. Right to dispossess or throw out the trespasser is not available to the true owner if the trespasser has been successful ina accomplishing his possession to his knowledge. This right can be only exercised against the certain criminal acts which are mentioned under this section.

6.8 Section104 – Offence

It tells us when such right extends to causing any harm other than death:- If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of

[196] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 private defence, be theft, mischief, or criminal trespass, is not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in the section 99, to the voluntary causing to the wrongdoer of any harm other than the death. This Section cannot be said to be the giving a concession to the accused to exceed to their right of private defence in any way. If anyone exceeds the right of private defence and then it causes death of the trespasser, he would be guilty under Section 304 of the IPC. This Section is corollary to Section 103 as Section 101 is a corollary to Section 100right of private defence of property. The Right of private defence of property commences when the reasonable apprehension of danger to the property commences. The right of private defence of property against the theft is continues till the offender has affected his retreat with the property or either the assistance of the public authorities is too obtained, or the property has been recovered. Then the right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint of as long as the fear of the instant death or of instant hurt or of the instant of personal restraint continues; 1. The right of private defence of property against criminal trespass or mischief continues if the offender continues in the commission of criminal trespass or mischief. 2. The right of private defence of property against housebreaking by night continues if the house-trespass which has been begun by such housebreaking continues.

6.9 Section106 risk of harm to innocent person-

If in the exercise of the right of private defence against an assault, in which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without the risk of harm to an innocent person to his right or private defence extends to the running of that risk.

7. Conclusion

Right of private defence is a good weapon for every citizen of Indian to defend, or to protect himself. This right is not for to take a revenge from anyone, nevertheless toward the threat and imminent danger of an attack. Some people misuse this right, then after it is very tough for the Courts to find out whether this right had been exercised in a good faith or not. The Supreme Court has stressed on the need to avoid a pedantic and microscopic scrutiny of the situation. The Apex Court has recognized the human element in play and by extension, has asked for due consideration to be given to all actions of the accused on the basis of the circumstances, and the emotional turmoil in the mind of the accused of the nature of the assault etc. It has further been reckoned in a number of cases that in the civil law rule of proceedings does not cover the rights of the accused in a criminal trial, and that a criminal court can find in the favour of an accused even when the plea of private defence has not been taken by the person. The initial burden of proving the circumstances which necessitated the exercise of the right of private defence falls on the accused but that burden can be discharged by the accused merely on the preponderance of possibilities rather than the proving them beyond reasonable doubt. The accused need not provide evidence and can rely on the cross-examination of evidence and witnesses of the prosecution to buttress his or her case. The prosecution is not bound by law to prove all injuries on the person of the accused and failure of the prosecution on this aspect would not lead to an automatic dismissal of their case. The right of private defence grants to the individual, in the case of extreme situations, the right to cause the death of another. As such as it can be, and in fact is, open to abuse. The sections which are dealing with the right of private defence (Ss. 96- 100) speak nothing about the situation where the individual provokes an assault so as to use it to kill the “aggressor” and this lacuna in the law has on occasion been used by unscrupulous individuals. There are two aspects which are consequently emerge: one would be that it cannot

[197] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 be denied that a clear, comprehensive statute on the issue would clarify the entire situation to a vast extent and the other would be that, with some exceptions, in the exercise of the right of private defence has been admirably regulated by the courts. While the Indian Penal Code does not clarify the terms which are used in the sections dealing with the right of private defence such as “reasonable apprehension” and “necessary forces” etc. (as has been done in other sections which specifically clarify the particular phrases they use), the courts have, through the extensive deliberation, formalized principles to regulate this right. It may further be argued that the wording of the sections need no further clarification than has already been done by the courts as it was the foresight of the legislature to grant such wide discretion to the courts that they may cover within their ambit, the entire gamut of the situations which might arise and meet the ends of the justice.

8. Limitation and FutureResearch Scope

The limitation of this work is represented by the difficulties in identifying the key area of social justice with lower class of society and using these to analyse effective opportunity at the macro level for the society. This study suggests that future researchers should criticallyexamine the key dimensions of social justice and legal opportunity to every class of society in order to enable effective analysis at both macro and micro levels.

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References

[1] http://www.legalserviceindia.com/article/l470-Private-Defence.html. [2] Bhattacharya, Prof. T, Indian Penal Code, 5th Edition, Central Law Agency, Allahabad [3] Gaur, k. D, Indian Penal Code, 3RD Edition, Universal Law Publishing Co., Delhi, [4] Tandon, Mahesh Prasad, Indian Penal Code, Allahabad Law Agency, Faridabad, 2006. [5] Gandhi, B. M, Indian Penal Code, 2ND Edition, Eastern Book Company, Lucknow, [6] www.legalsutra.com/…/right…private-defence/Criminal-Law-Right-of-Private-defence. [7] http://laws.puchd.ac.in/includes/theses/2010/20101012155857Summary%20%20Dharam [8] http://www.legalserviceindia.com/article/l470-Private-Defence.html. [9] Tara Singh v. State of MP 1980 Supp SCC 466: on facts, the High Court had ignored the evidence of defence witnesses which had substantiated the accused's plea of private defence [10] www.e-lawresources.co.uk/Public-and-private-defences.php. [11] http://www.legalserviceindia.com/article/l470-Private-Defence.html. [12] Fazalali SM (1975) Puran Singh &Ors vs State Of Punjab. [13] Hegde K (1971) Vidhya Singh vs State Of Madhya Pradesh. [14] Thomas K (2002) Moti Singh vs State Of Maharashtra. [15] Majmudar SB (1996) Wassan Singh vs The State Of Punjab. [16] Jagannatha SK (1988) Hare Krishna Singh vs State of Bihar. [17] www.indiankanoon.org/. [18] www.legalsutra.com/…/right…private-defence/Criminal-Law-Right-of-Private-defence. [19] http://www.legalserviceindia.com/article/l470-Private-Defence.html. [20] Krishnaiyer V (1973) ShivajiSahebraoBobade&Anr vs State Of Maharashtra. [21] Sen A (1988) LaxmanSahu vs State Of Orissa. AIR 1988 SC 83. [22] Chauhan B (2011) State Of M.P vs Ramesh And Anr. [23] Bhandari D (2010) Darshan Singh vs State Of Punjab &Anr.

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ISSUES RELATED TO CITIZENSHIP AMMENDMENT ACT 2019 : ANALYSIS

RESEARCH PAPER LEGAL METHOD

Submitted by Esha Dubey (Student of Vivekananda Institute of professional Studies)

VIVEKANADA SCHOOL OF LAW AND LEGAL STUDIES VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES DELHI 2021

ACKNOWLEDGEMENT I would like to offer my sincere gratitude to Dean Ma'am, Professor Dr. Rashmi Salpekar of Vivekananda School of Law and Legal Studies, Vivekananda Institute of Professional Studies for providing us with an opportunity to work for our better tomorrow through this institution. I would also like to thank the management , all the supervisors ,and the library staff. I sincerely thank our Legal Method faculty, Mrs Nipun Gupta Jain for her guidance, encouragement and consistent supervision to carry out this project smoothly and for being cooperative with us at every step. I extend my heartful thanks to all the faculty members for guiding us.

[200] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 I am also thankful to my parents for their cooperation and encouragement

[201] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 CONTENT

ACKNOWLEDGMENT ii LIST OF CASES iv ABBREVIATIONS v CONTENT vi DETAILED CONTENT vii

[202] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 LIST OF CASES

Air India Vs Nargesh Meerza [1978] 2 SCR 621 xiii Bachan Singh Vs State of Punjab [1980] SC 898 xiv D.S.Nakara Vs Union of India [1983] SC 130 xiv

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ABBREVIATIONS

Citizenship Amendment Act CAA National Registrar of Citizens NRC National Population Register NPR

[204] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 CONTENT

1. INTRODUCTION AND RESEARCH METHODOLOGY (vii-ix) 1.1 INTRODUCTION 1.2 RESEARCH METHODOLOGY 1.2.1 Research problem 1.2.2 Hypothesis 1.2.3 Objectives 1.2.4 Review of literature

2.CONCEPTUAL UNDERSTANDING (x-xiii) 2.1 HISTORY OF CITIZENSHIP LAWS IN INDIA 2.2 WAYS TO ACQUIRE CITIZENSHIP IN INDIA 2.3 WAYS IN WHICH CITIZENSHIP CAN BE LOST 2.4 CAA, NRC AND NPR

3.LEGAL ISSUES (xiii-xvii) 3.1 VIOLATION OF ARTICLE 14 AND SECULARISM

3.2 ISSUE RELATED TO NRC

3.3 ANTI-CAA PROTESTS

3.4 PROTESTS IN NORTH EAST INDIA

3.5 IMPACT OF IMPLEMENTATION OF CAA ON

FOREIGN RELATIONS OF INDIA

3.6 ROLE OF SUPREME COURT

4.ANALYSIS (xviii) 5. CONCLUSION (xix) 6.BIBLIOGRAPHY (xx)

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ISSUES RELATED TO CITIZENSHIP AMMENDMENT ACT 2019

1.INTRODUCTION AND RESEARCH METHODOLOGY 1.1 INTRODUCTION

Part-II of the constitution, article 5-11 deals with citizenship laws in India. The Indian Parliament has the power to regulate the right of citizenship by the law. “Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship”.497

The Citizenship Amendment act, 2019 or CAA was passed by the parliament of India on 11 December, 2019 and came into force from 10th January, 2020. This act amended the citizenship act of 1955 and the provision of granting citizenship to the refugees or illegal migrants from Afghanistan, Bangladesh and Pakistan of Hindu, Sikh, Buddhist, Jain, Parsi, or Christian community who entered into India on or before 31st December, 2014 and who has been exempted by the central government by or under clause (c) of sub-section (2) of section 3 of the Passport ( Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order was added to the Citizenship Amendment Act, 2019. This act grants citizenship to these immigrants after six years of stay instead of the previous eleven years. Nothing in which is mentioned in this section shall apply to tribal populated area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule of the Indian Constitution and the area covered under "The Inner Line" notified under the Bengal Eastern Frontier Regulation, 1873- Arunachal Pradesh, Nagaland, Mizoram and Manipur. This act has been in controversy for a long period of time as many believe that it is unconstitutional as it violates the principle of secularism and equality as it excludes Muslims, Jews, etc. from its ambit and violates the principle of secularism by distinguishing people on the basis of religion. Many people contend that it violates article 14 of the constitution .In the north east it has become a concern for Assamese people as they think it violates Assam Accord of 1985. There is also a lot of confusion among people about CAA, NRC and NPR due to which a lot of protests and riots happened during the introduction of the bill. A lot of unrest was created in India due to the common believe that the current government by excluding Muslims from the clause may cause trouble for the 19 lakh Muslims that were left out of the NRC. The constant

497 Part II: Citizenship' (2019) 24

[206] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 delay by the Supreme court in hearing the pleas related to CAA also caused apprehension among the citizens about the justice delivery system.

1.2 RESEARCH METHODOLOGY The researcher has primarily used primary and secondary sources to collect data and used oxford style of citation. This study is a doctrinal study. 1.2.1 Research Problem (i)Whether CAA is controversial and whether it is unconstitutional or not? (ii)Whether the implementation of CAA will have any effect inside Indian territories as well as on foreign relations (iii) How does CAA violates some provisions of the constitution like article 14 and secularism and discriminates on the basis of religion (iv) What is the role and view of supreme court in this matter 1.2.2 Hypothesis The CAA violates some provisions of the constitution like article 14 and secularism and discriminates on the basis of religion. It also excludes other religiously persecuted communities from Afghanistan, Bangladesh and Pakistan and from other countries too from its purview. 1.2.3 Objectives (i)To study about citizenship laws in India. (ii)To study the major differences between CAA, NRC and NPR which are very frequently confused with. (iii)To study the various controversies and issues surrounding the CAA. (iv)To study the impact of CAA on foreign relations and in the domestic sphere 1.2.4 Review Of Literature The researcher has mostly used online resources and articles (i)“Citizenship Amendment Bill: India’s new anti- Muslim law explained”- This article explains the features of the bill, it’s history and controversy. The researcher has used this article to understand the concept and features of CAA better. My project is different from this article as I have analysed the features of the bill and how it violates constitution. (ii)“By listing religions, Modi’s CAA broke Atal-Manmohan-left concord on persecuted minorities” by M.K. Venu- This article explains how the mention of religion in the bill broke peace between Atal, Manmohan and left. The researcher

[207] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 has used this article to gain more knowledge about CAA and it’s history and how it affects minorities. (iii)“All you need to know about citizenship trio: NRC, NPR and CAA” by Ayush Verma- This article explains the different features of NRC, NPR and CAA. The researcher has used this article to gain more knowledge about these three which are interconnected. The researcher after analysing the article has done a comparative study between these three to show how are these different. (iv)“Even without the NRC, here’s why CAA is unconstitutional” by Surhith Parthasarthy- This article explains the constitutional status of CAA. The researcher has used this article to know more about CAA and how it violates constitution. The researcher has analysed this article to see how it violates certain provisions of constitution. (v)“Assessing the anti-CAA protests” by Mohammed Ayoob- This article explains how CAA led to country wide protests and what happened in them. The researcher has used this article to gain knowledge about the events after the bill was introduced. The researcher then analysed this article and wrote about these protests and how religion was associated with it. (vi)“India’s protest could be a tipping point against authoritarianism” by Rana Ayyub- This article explains about the police brutality and authoritarianism that was followed during the anti-caa protests and how it may be a tipping point against authoritarianism. The researcher used this article to know more about the ground reality of these protests and how the authority cracked down on these protesters.

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2.CONCEPTUAL UNDERSTANDING

2.1 CITIZENSHIP LAWS IN INDIA

The Indian Constitution that was passed in 1950 guaranteed citizenship to all the inhabitants of the country at the beginning of the constitution, and made no distinction on the grounds of religion. The Citizenship Act was passed by the Indian government in 1955. The two different ways for foreigners to obtain citizenship were provided by the act. Revisions to the Citizenship Act of 1955 were prompted by political developments in the 1980s, especially those related to the violent Assam movement against all Bangladeshi migrants. After the Assam Accord was signed in1985, the Citizenship Act was first amended, in which Prime Minister Rajiv Gandhi's Indian government agreed to identify foreign nationals, exclude them from the electoral rolls, and evict them from the country.

In1992,2003,2005, and 2015, the Citizenship Act was further revised. In December2003, with far-reaching revisions of the Citizenship Act, the National Democratic Alliance government, headed by the Hindu nationalist Bharatiya Janata Party (BJP), passed the Citizenship (Amendment) Act, 2003. The definition of "illegal immigrants" was introduced to the Act, rendering them ineligible to qualify for citizenship (by registration or naturalisation) and declaring their children also as illegal immigrants. Illegal immigrants have been identified as citizens of other countries who have entered India without valid travel documents or who have remained in India for a period not exceeding that allowed by their travel documents. “They could be deported or detained”.498 The 2003 amendment also required the Government of India to create and maintain a National Citizens Registry. “According to M.K. Venu, Advani and Singh addressed the 2003 amendment on the basis of the belief that Muslim communities in Pakistan and Afghanistan who have suffered persecution must also be viewed with compassion”.499

498 ‘Citizenship Amendment Bill: India’s new anti-Muslim law explained’, BBC news, 11 December 2019, https://www.bbc.com/news/world-asia-india-50670393, ( accessed 10 March 2021) 499 M.K. Venu, ‘By listing religions, Modi’s CAA broke Atal-Manmohan-left concord on persecuted minorities’, The Wire, 29 December 2019, https://thewire.in/politics/by-listing-religions-modis-caa-broke-atal-manmohan-left- concord-on-persecuted-minorities, (accessed 8th March 2021) [209] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 2.2 WAYS TO ACQUIRE CITIZENSHIP IN INDIA There are four ways in which Indian citizenship can be acquired: birth, descent, registration and naturalisation. These provisions are listed under The Citizenship Act of 1955.

By Birth:

Any person born in India on or after 26.01.1950, but before 01.07.1987, regardless of the nationality of his or her parents, is an Indian citizen. Every person who is born in India between 01.07.1987 and 02.12.2004 is a citizen of India, because at the time of his/her birth either of his/her parents is a citizen of the country. Any person born in India on or after 3.12.2004 is a national of the country if both his or her parents are Indians or at least one parent is an Indian citizen and the other parent is not an illegal migrant at the time of birth of the child.

By Registration: Citizenship by registration may also be obtained. A person of Indian origin who, before applying for registration, was a resident of India for 7 years. A individual who is a resident of any country outside undivided India of Indian origin. A person who is married to an Indian citizen and who, before applying for registration, normally resides for 7 years. Minor children of people who have been citizens of India.

By Descent: A person born outside India on or after January 26,1950, if his or her father was a citizen of India by birth, is a citizen of India by descent. A person born outside India on or after 10 December1992, but before 3 December 2004 if, by birth, one of his/her parents was a citizen of India. If a person born outside India or after December3, 2004 is required to acquire citizenship, his/her parents must declare that he/she does not hold a passport from another country and that his/her birth has been registered at the Indian Consulate within one year of birth.

By Naturalisation: A individual can acquire citizenship by naturalisation if he or she is a resident of India for a period of 12 years (12 months prior to the date of application and 11 years in total) and fulfils all the requirements laid down in the third schedule of the Citizenship Act.

Dual citizenship or dual nationality is not provided for in the Act. It allows citizenship only for the person referred to in the above-mentioned clauses, i.e. by birth, descent, registration or naturalisation.

By incorporation of territory

[210] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 If territory is incorporated in India. 2.3 WAYS IN WHICH CITIZENSHIP CAN BE LOST There are also some ways by which a citizen can lose his/her citizenship in India:

Through Renunciation- Voluntary act

Through Termination- On acquiring of citizenship of another nation

Through Deprivation- In case of fraud or disloyal cases

The constitution of India only recognises single citizenship.

2.4 CAA , NRC AND NPR DISTINGUISHED

NRC- “To put it simply, NRC can be described as the National Register of People, a register that will have the list of all the country’s genuine citizens, even though it is currently only done in Assam, and as our leaders put it, there will soon be a national NRC”. 500

NPR- The NPR is a database which contains a list of all regular residents of the nation. The objective is to provide a detailed identity database of people who reside in the country. During the census stage of "house-listing," which takes place once every 10 years, it is created by house- to-house enumeration.

CAA- CAA stands for the Citizenship Amendment Act,2019. On December11,2019, the act was passed in parliament. Under this act, the Indian government plans to grant citizenship to religious minorities belonging to the Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities in Pakistan, Bangladesh and Afghanistan.

These three NRC, CAA and NPR are very frequently confused with but they are different from each other. Both NRC and NPR do not take religion into account whereas CAA does. NRC is currently conducted for only Assam whereas NPR is just a database which contains list of all regular residents of the nation whereas CAA is an act, by implementation of which illegal immigrants facing religious persecution except Muslim religion from Afghanistan, Pakistan, and Bangladesh will get citizenship if they came to India on or before 31st December, 2014.

500Ayush Verma, ‘All you need to know about citizenship trio: NRC, NPR, CAA’, ipleaders, 2020, https://blog.ipleaders.in/need-know-citizenship-trio-nrc-npr-caa/, (accessed 2 March 2021)

[211] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 3.LEGAL ISSUES 3.1 VIOLATION OF ARTICLE 14 AND SECULARISM Article 14 of the Indian constitution states that the state shall not deny to any person equality before the law or the equal protection before the laws within the territory of India. Due to article 14 there is an obligation on the government to treat everyone equally irrespective of religion, caste, place of birth etc. “This therefore means that any citizenship law that is predicated along religious lines would be ex-facie arbitrary and unreasonable.”501

The CAA also fails to include other religiously persecuted religions in Afghanistan, Bangladesh, Pakistan like Jews, Muslim minorities like Shias and Ahmediyas, even athiests or agonistics. The CAA only covering some religions and ignoring others violates the principle of secularism which is a fundamental part of our constitution.

There are also other countries where certain communities face religious persecution like Rohingyas from Myanmar, Sri Lankan Tamils from Sri Lanka and other religious communities from Nepal, Bhutan. The main contention here is that if the government wants to provide citizenship to illegal migrants on the basis of religious persecution then why the CAA failed to include these communities facing the same religious persecution in their home country. This raises serious questions on the secularism aspect of CAA.

Only those who entered India prior to 31 December 2014 are entitled under the CAA to seek citizenship in India. Those who have subsequently entered India have no such right, even though they may have faced religious persecution before or after that date in the countries concerned. The main contention here is that the main purpose of CAA was to provide humanitarian assistance to these religiously persecuted communities, if they come to India after 31st December, 2014 they will not get citizenship and the main purpose of CAA fails.

In Air India v Nargesh Meerza, [1978] 2 SCR 621, a state-owned company that is Air India required female attendants to retire under three circumstances: (1) upon reaching 35 years age, (2) if they get married, or (3) on their first pregnancy. These same rules were not applicable to the male attendants. The Court struck the rules down, holding that these requirements constituted official arbitrariness and hostile discrimination in violation of Article 14. In In the case of Bachan Singh v. State of Punjab 1980 SC 898 by explaining the new dimensions of Article 14, Justice PN Bhagwati had observed that Rule of law pervaded the entire fabric of the

501 Suhrith Parthasarthy, ‘Even without the NRC, here’s why CAA is unconstitutional’, The Quint, 24 January 2020 https://www.thequint.com/videos/news-videos/why-caa-is-unconstitutional-article-14-counters-to-government- arguments-supporting#read-more , ( accessed 2 March 2021)

[212] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 Indian Constitution and it excludes arbitrariness. According to PN Bhagwati whenever there is arbitrariness(personal whim) there is a denial of Rule of Law.

Similarly in the case of D.S. Nakara v. Union of India, Rule 34 of the Central Services rules was held to be violating Article 14 and thus unconstitutional. Under this rule, a classification was made between the pensioners who retired before a specific date and those who retired after that date. Such classification was held irrational by the Court and thus it was an infringement of Article 14 and as a result, was set aside.

“India is not a signatory to the 1951 UN Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees”.502 “However these instruments require contracting states to provide refugee status to those who have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and not solely on the basis of religious persecution”.503 “Contracting states have to apply these instruments without discrimination as to race, religion or country of origin.”504 If India was a signatory to these instruments then the CAA would have failed to these instruments.

3.2 ISSUE RELATED TO NRC

There is a contention that due to the NRC that was conducted in Assam, 19 lakh people were excluded from that list. The 19 lakh people consist of both Muslims as well as non Muslims, so there is a fear that if CAA is brought into effect the non muslims will be able to get citizenship whereas the Muslims will be stateless. “Under the usual rules of evidence, the burden of proving a fact is on the person who asserts that fact”.505 The burden of proof in this case lies on the foreigner who has been persecuted and not the government so the main argument here is that many Muslims might not be able to arrange all the relevant documents and might not be able to prove that they are the citizens of India rendering them helpless and stateless whereas the non muslims might get citizenship due to CAA which clearly violates the principle of equality and

502 Bhairav Acharya, ‘The future of asylum in India:four principles to appraise recent legislative proposals’ no. 9 NUJS L Rev., 2016, http://nujslawreview.org, (accessed 2 March )

503 Article 1, 1951 Convention.

504 Article 3, 1951 Convention.

505 Section 101, Indian Evidence Act, 1872.

[213] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 secularism.

3.3 ANTI CAA PROTEST The introduction of Citizenship Amendment Bill caused huge unrest in India. It led to huge anti CAA protest. “The continuous sit-in in Shaheen Bagh in New Delhi, Which has been replicated across the country, has become the model for these protests and stirred the imagination of the people”.506 Different communities supported each other and fought for something they felt was unconstitutional. There were many instances of violence too in these protests like the violence by the police in Jamia milia islamia and Aligarh muslim university. It is probably the first time in the history of independent India that protests were happening at such a large scale even Muslim women were actively seen in protests. Protesters gathered on the streets in large number, they made it a struggle for the security of the democratic spirit of the constitution and not just their rights as a religious minority. These protests turned very violent at later stage with arson, stone pelting and firing by several protestors causing a lot of unrest and emergency like situation in India. The image of India as a liberal democracy that tolerated dissent and secured citizens' rights to protest has been sullied by the excessive violence allegedly used against protestors, especially in the U.P., and reported by journalists. This has resulted in negative reports, especially in reputable international publications such as The New York Times and The Economist. The Hindu-Muslim divide, particularly in Delhi and U.P., may increase due to these continued sit-ins. This is expressed in anecdotal and impressionist media accounts that, with their mainly Muslim involvement, these protests may alienate large sections of the Hindus. While the anti- CAA protests have shown several promising signs that are likely to reinforce the democratic political culture of India, if the protesters form too tight a bond with a religious identity, there is a danger of communal polarisation.

506 Mohammed Ayoob, ‘Assessing the anti-CAA protests’, The Hindu, 28 January 2020, https://www.thehindu.com/opinion/op-ed/assessing-the-anti-caa-protests/article30668015.ece ( accessed 4 March 2021)

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3.4 PROTESTS IN NORTH EAST INDIA

The north east people have special concern regarding CAA, especially Assamese people who think it contradicts the Assam Accord of 1985, Which clearly states that illegal immigrants heading in from Bangladesh after 24 March, 1971 will be deported. The CAA excludes tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under "The Inner Line" notified under the Bengal Eastern Frontier Regulation, 1873- Arunachal Pradesh, Nagaland, Mizoram and Manipur. The main apprehension in the minds of the north east people especially Assamese people is that if CAA is implemented then due to the influx of migrants from Afghanistan, Pakistan and Bangladesh, their demography may get affected and the indigenous tribes may become minority in their home state. Due to all these apprehension large scale protests were organised in Assam by Students' body AASU and peasants' organisation KMSS.

3.5 IMPACT OF IMPLEMENTATION OF CAA ON FOREIGN RELATIONS OF INDIA

The important problem is that India is steadily moving towards global isolation and its trusted allies have often challenged India's constitutional commitment to the rights of minorities. “Many countries have openly expressed their concern about the recent developments in India and questioned whether the country would preserve its secular and heterogeneous character or whether it would adamant to link itself with some notorious “majoritarian states” of the world.”507 “The UN criticised the explicit discriminatory provisions of Citizenship Amendment Act 2019 in an unusual rough language but present dispensation appears that it is not inconvenient about unreceptive international climate against India.” 508

Along with UN, EU and middle east countries have also criticized the way CAA discriminates against Muslims. After the Lok Sabha passed the Bill, this discriminatory, divisive and anti- Muslim act has been strongly opposed by the United States. “The controversial citizenship law has been described by the American federal panel on international religious freedom as basically

507 Rana Ayyub ‘India’s protests could be tipping point of authoritarianism’, The Washington Post, 18 December 2019, https://www.washingtonpost.com/opinions/2019/12/18/indias-protests-could-be-tipping-point-against- authoritarianism/, (accessed 4 March 2021)

508 ‘UN Press Release’, United Nations media coverages and press releases, 2019, https://www.un.org/press/en/content/press-release, (accessed 6 March 2021)

[215] www.ijlra.com VOLUME I SSUE II |APRIL ISBN – 978-81-948082-1-3 2021 anti-Muslims and its dangerous turn in the wrong direction as it is directly against the rich history of multi-culturalism and secularism in India.”.

Even the UNHCR has condemned India on CAA. Jeremy Laurence, UNHCR spokesperson said that “We are concerned that India’s new Citizenship (Amendment) Act, 2019 is fundamentally discriminatory in nature”. India is also losing it’s global allies which may impact it’s foreign policy. In SAARC region also the relation with Nepal, Sri-Lanka and Bangladesh has been affected. The hostility with Pakistan also has been on an all time high.

3.6 ROLE OF SUPREME COURT

Around 143 pleas were filed in Supreme Court against the implementation of CAA claiming that it violates the right to equality, secularism and right to dignity enshrined in the constitution of India. The supreme court bench headed by CJI S.A. Bobde refused to put an interim stay on CAA. The CJI also gave a hint that importance will be given to the petitions concerning northeast region. Lawyers have argues about the unconstitutionality of this bill. Senior advocate K.V. Vishwanathan addressed the court, "The expansive powers granted to executive authorities to tag individuals as 'doubtful people' are the most urgent concern now. There are no instructions to assist these individuals until this is completed. It would lead to electoral rolls being gerrymandered”509. The supreme court was heavily criticized for delaying the hearing of pleas at a time when there was a dire need to hear these pleas for the speedy delivery of justice.

Seeing the situation at shaheen bagh the supreme court appointed two mediators senior advocate Sanjay Hegde and advocate Sadhana Ramachandran to talk to the protesters at Shaheen Bagh and convince all the portestors to change the venue of their agitation so that no public place is blocked and people can move freely.

509 Krishnadas Rajgopal, ‘Supreme court refuses to stay citizenship amendment act without hearing government’, 23 January 2020, https://www.thehindu.com/news/national/caa-petitions-sc-says-no-stay-without-hearing-centre-may- refer-pleas-to-larger-constitution-bench/article30622277.ece, ( accessed 10 March 2021)

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4. ANALYSIS

The Citizenship Amendment Act, 2019 or CAA is a very contentious bill introduced by the government of India coming into effect from 10th January, 2020. It amended the Citizenship Act, 1955. In this bill illegal immigrants who are Hindu, Jain, Christian, Parsis and Sikhs can get Indian Citizenship if they came to India on or before 31st December, 2014, instead of the usual eleven years that are required to get citizenship by naturalisation, these refugees can get it in six years. There are lot of controversies and issues related to CAA and its implementation. This project will cover these issues by first introducing the topic of CAA and giving a brief about the flaws in it. It will then also explain CAA, NRC and NPR and the difference between these and how these are different from each other and should not be confused with. This project will then further proceed to explain what are the controversies associated with CAA. It will explain how CAA violates some provisions of the constitution like article 14 and secularism and discriminates on the basis of religion. It also excludes other religiously persecuted communities from Afghanistan, Bangladesh and Pakistan and from other countries too from its purview. This project will also discuss how there is a fear that the Muslims left out of the NRC in Assam may become stateless if CAA is applied at pan India level. It will further discuss about the Inner line permit and why there is huge protests in north east India against CAA. It will then further discuss about how due to the implementation of CAA, foreign relations can be impacted and what is the role and view of supreme court in this matter.

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5. CONCLUSION

The preference of the CAA for non-Muslim immigrants is vaguely reminiscent of the partition- era Indian resistance to the return of Muslim refugees from Pakistan, although the circumstances in India then were definitely very different from what they are now. That does not mean, however, that it is correct constitutionally as it violates article 14 and the provision of secularism in the Indian constitution. As we have seen, it discriminates against other religious minority groups in Pakistan, Bangladesh and Afghanistan like Jews, Shias, Ahmadis. In its acceptance of religious persecution as the only basis for refuge, it is too myopic. The 31 December 2014 cut-off date is arbitrary. It is also an open question why Afghanistan was selected, even though it was not part of colonial India, whereas other neighbouring countries, such as Sri Lanka, Bhutan, Nepal and Myanmar, were omitted. There is a contention that the Muslims not included in the NRC may become stateless if CAA is implemented and the non muslims will get Indian citizenship through CAA. This argument is flawed as the CAA confers citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from the subject countries, who were “compelled to seek shelter in India due to religious persecution or fear of religious persecution” and who entered India before 31 December 2014.The burden of proof to prove that one is a citizen of India who faced religious persecution from the subject countries and came to India on or before 31st December, 2014 will be on the persons excluded from the list and not the government. The introduction of CAA sparked huge outrage across communal lines and led to huge protests, arson, riots and police brutality which caused huge unrest and emergency like situation in India. The giving of religious angle to the protests caused communal polarisation which affected the peace and harmony of the country. It severed the relations with neighbouring as well as other countries and the image of India as a secular and democratic country was tainted.

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BIBLIOGRAPHY

Primary resources: The Citizenship (Amendment) Act, 2019, The Gazette of India Notification of the The Citizenship (Amendment) Act, 2019, The Gazette of India The Citizenship (Amendment) Bill, 2019 as introduced in Lok Sabha. The Citizenship (Amendment) Bill, 2019 as passed in Lok Sabha. Secondary sources: 1.Hein Online 2.The Hindu 3.The Print 4. The quint 5. By listing religions, Modi’s CAA broke Atal-Mnmohan-left concord on persecuted minorities” by M.K. Venu 6. “Supreme court refuses to stay citizenship amendment act without hearing government” by Krishnadas Rajagopal

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