This article is written by Abhinav Rana, a student of USLLS, GGSIPU. The article discusses the Disaster Management Act, 2005 with respect to COVID-19.
Introduction
Recently, the World Health Organisation has declared COVID-19 as a Pandemic. It means it’s occurring over a huge geographical area and out of control. As the situation is getting worse, the Prime Minister of India, Shri Narendra Modi took active measures to protect the nation from this disease.
On March 24, 2020, Prime Minister Narendra Modi announced the nation-wide lockdown, from March 25, 2020, to April 14, 2020, and now the lockdown has been extended further till 3rd May 2020. The announcement was made due to COVID-19 and it is intended to enhance the concept of “social distancing” to prevent the spread of the disease.
The order was passed by the National Disaster Management Authority in the exercise of its power underSection 6(2)(i) ofDisaster Management Act, 2005, [Order no. 1-29/2020-PP (pt. II) dated 24.03.2020]. The order also stated that according to the Section 10(2)(I) of the Act, the Home Secretary in his capacity as Chairperson, National Executive Committee, issued guidelines to the departments of the government, State/ Union Territory to issue strict implementations.
The Centre has imposed a complete lockdown for 21 days. Under the Disaster Management Act, the Union Home Ministry has directed that all the districts and state borders should be sealed. No one should be seen across the cities or highways. For its implementation, district magistrates and police superintendents are responsible. The states have been asked to make the necessary arrangements of items such as food and shelter for poor people.
Significance of development of the Disaster Management Act
At the global level, there has been considerable concern about natural resources disasters. Even if there is substantial scientific and material progress, the loss of lives and property due to inevitable disasters has not decreased. In fact, the human and economic losses have increased. It was in this context that the United Nations General Assembly in 1989, declared the 1990-2000 decade as the International Decade for Natural Disaster Reduction with the aim of reducing the loss of life and property and to limit socioeconomic damage through international action, especially in developing countries.
In the past years, the government of India has shifted the approach to disaster management. The new approach is part of the conviction that development cannot be sustainable unless disaster mitigation is built into the development process. Another keystone of the approach is that mitigation should be interdisciplinary in all aspects of development sectors. The new policy is based on the opinion that mitigation investments are much more economical than spending on aid and rehabilitation.
The emergence of an organization is always through an evolutionary process. NDMA has also gone through the same phases. The Government of India, while identifying the importance of Disaster Management as a major concern, formed the High-Powered Committee in August 1999 and a National Committee after the disastrous Bhuj earthquake occurred in 2001, in Gujarat, for making recommendations on the preparation of Disaster Management plans and suggesting effective mitigation mechanisms.
The tenth, 5 years Plan document also had a detailed chapter on Disaster Management for the first time. The 12th Finance Commission was also instructed to evaluate the financial preparations for Disaster Management.
On 23rd December 2005, the Indian Government enacted the DM Act, 2005, which provided for the creation of the NDMA headed by the Prime Minister, and the SDMA, led by the respective CM of the different states, to lead and implement a holistic and integrated approach to disaster management in India.
Salient features of Disaster Management Act, 2005
The Disaster Management Act, 2005 came to force on 26th December 2005. It permits states to have their own legislation on disaster management. The Act comprises 11 Chapters and 79 Sections. It defines Disaster and disaster management in its own way. It provides an institutional mechanism for monitoring and implementation of the plans. It also ensures measures by various parts of the Government for the prevention and reduction of disasters.
The Act underSection 3 provides for the establishment of the National Disaster Management Authority (NDMA). UnderSection 14 of the said Act, the State governments shall create State Disaster Management Authorities andSection 25 talks about the constitution of District Disaster Management Authorities. The Act also provides for Disaster Response Fund and Disaster Mitigation Fund at national, state and district levels.
Since the enactment of the disaster management law in 2005, it has adopted a new multidisciplinary focus on disaster prevention and risk reduction and has moved away from a relief-centred regime.
The institutional structure under the Law required the creation of the National Disaster Management Authority and the state disaster management authorities as bodies responsible for disaster preparedness and risk reduction at the respective levels.
The Disaster Management Division of the Ministry of Internal Affairs maintained the responsibility for directing the disaster response overall.
And instructed the Ministries and Departments involved to prepare their own plans, in accordance with the National Plan.
The Act also contains provisions for financial procedures, such as the creation of funds, the National Disaster Mitigation Fund and similar funds at the state and district levels.
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National Disaster Management Authority
It is an apex statutory body created for disaster management in India. It was constituted on 27th September 2006. According to the Disaster Management Act, 2005 the PM acts as the chairperson of NDMA. He further appoints 9 members for the committee. The main function of NDMA is to make policies, plans, and guidelines for minimising the effect of disasters. It also gave guidelines on the minimum standard of reliefs such as to provide shelters, food, clothes and all the basic necessities. It also lay down special provisions for widows and orphans. This authority is assisted by the National Executive Committee.
National Executive Committee
The National Executive Committee is constituted under Section 8 of the DM Act, 2005 to assist the National Authority in the performance of its functions.
The Home Secretary is the former chairman.
The NEC has been tasked with acting as a department responsible for risk management, preparation of the National Plan, monitoring of the implementation of the National Policy and more.
State Disaster Management Authority
The State Disaster Management Authority is managed by the Chief Minister.
One of the members is elected as the Vice-Chairperson of the State Authority by the Chief Minister of that state.
Advisory Committee of experts may be made by state authority.
The State is responsible for the policies and plans for disaster management.
The State Authority shall provide guidelines for minimum standards of relief.
Functions of SDMA
Establish disaster management policies and plans for;
Establish a state disaster management policy;
Approved state plans in accordance with national plan guidelines;
Establish guidelines to be followed by state departments;
The Act maintains that the CM, in an emergency, would have the power to exercise all or some of the powers of the State Authority, but the exercise of such powers will be subject to ex post facto ratification by the State Authority.
District Disaster Management Authority
Section 25 of the DM Act provides for the constitution of DDMA for all districts in a state.
The District Magistrate / District Collector / Deputy Commissioner heads the Authority as Chairperson, in addition to an elected representative of the local authority as Co-Chairperson, except in the tribal areas where the Chief Executive Member of the District Council for the Autonomous District is designated as Co-Chairperson.
In addition, in the district, where Zila Parishad exists, its Chairperson will be the DDMA Co-Chairperson.
The District Authority is responsible for planning, coordinating and implementing disaster management and for taking the necessary measures for disaster management, as set out in the guidelines.
The District Authority also has the power to examine construction in any area of the district to apply safety standards and provide relief measures and respond to a disaster at the district level.
National Institute for Disaster Management
The National Institute for Disaster Management was established as a statutory body under the DM Act. It is responsible for planning and encouraging training and research in the area of disaster management, documentation and development of an information base at the national level related to disaster management, prevention procedures and measures to reduce it. Its main functions include:
Development of training material.
Formulate a comprehensive human resources plan.
Provide inputs to governments.
Develop educational materials for disaster management.
Promote awareness.
Disaster Management Act, 2005 w.r.t. COVID-19
India reported its first case of Coronavirus on 30th January 2020. Since that day the precautions were taken by our government. On 11th March 2020, the World Health Organization (WHO) declared COVID-19 as Pandemic. Our government has taken various steps to minimise the effect of this Novel Coronavirus disease. In January itself the Union Government invoked its power under the Disaster Management Act, 2005 to increase the preparedness of COVID-19 at the hospitals.
It enabled the states to use funds from the State Disaster Response Fund. In March, the Ministry of Health advised invokingSection 2 ofEpidemic Disease Act, 1897. On 24 March 2020, PM Narendra Modi called for a 21 days lockdown. As soon as the lockdown was imposed the Union Health Ministry gave a list of the penal provisions of Disaster Management Act, 2005 under which the person not abiding the government will be held liable [Order no. 40-3/2020-D dated ()24.03.2020].
Section 51 to 60 of the Disaster Management Act, 2005 provides for the offences relating to false claims, obstructions, warnings etc. The maximum punishment under these offences is up to two years with fine.
Section 188 ofIndian Penal Code, 1860 may also be invoked in case of disobedience to order duly promulgated by public servants. The violation of this said Section is punishable up to six months and/or a fine of Rs 1000.
Now, let’s discuss the above-mentioned Sections of the Disaster Management Act, 2005 in detail which are in direct relation to COVID-19.
Section 51: Whoever without the reasonable reason obstructs any officer or employee of the union or state government or a person authorised by National, State, District Authority in the discharge of his functions under this Act; or refuse to obey the guidelines of union or state government or a person authorised by National, State, District Executive Authority, Shall be convicted with a punishment which may extend to one year or with fine or with both, and also if such disobedience or refusal leads to the danger of the life of someone or imminent danger can be punished with imprisonment extended up to 2 years.
Section 52: Whoever makes any false claim which he knows is false or has a reason to believe to be false may be punished for imprisonment which may extend up to 2 years and with fine.
Section 53: Whoever being entrusted with money or material for providing relief during the time of the disaster, misappropriates or converts to his own use such money or material shall be liable for imprisonment which may extend up to two years and also with fine.
Section 54: Whoever makes or circulates any false information or warning as to disaster which leads to panic shall be liable for punishment which may extend to 1 year or with the fine.
Section 55: When an offence is committed under this Act by a department of government the head of the department shall be held guilty of the offence unless he proves that such act was done without his knowledge or that he took all precautions to avoid such offence.
If an offence is committed as mentioned in Sub-section (1) and it is proved that any officer other than the head of the department has been indulged in this offence shall be deemed guilty and shall be liable for the offence.
Section 56: Any officer upon whom the duty has been imposed by this Act refuses to perform his duty without the permission of his official superior or has other lawful excuse be liable for punishment which may extend to 1 year or with the fine.
Section 57: If any person disobeys any order made under Section 65 of the Disaster Management Act, 2005 he shall be liable for punishment which may extend to 1 year or with the fine.
Section 58: When an offence under this Act is committed by a company or corporate body, every person who at the time the offence is committed was responsible and was responsible for the company for the conduct of the company’s business, as well as the company will be found guilty of the misdemeanour and should be prosecuted and punished accordingly; in cases where a company has committed an offence under this law and it is proved that it was committed with the consent or collusion or if there is any negligence on the part of any director, manager, secretary or other officers the said director, manager, the secretary will also be found guilty of the offence and will be punished.
Section 59: No punishment of the offence made under Section 55,56 shall be made without the order by the central government or any other officer authorised or by the order of government.
Section 60: No court shall take cognisance of the offence under this Act except on a complaint made by:
(a) National, state authority, union or state government, district authority or any other authority authorised by the government;
(b) any person who has notified not less than least thirty days in the prescribed manner, of the alleged offence and their intention to lodge a complaint with the National Authority, the State Authority, the Central Government, the Central Government, the State Government, the District Authority or any other authorized authority or official as mentioned above.
Conclusion
The rate at which the cases of COVID-19 are increasing is a matter of high concern. We need to be ready with solutions and strategic planning to address the risk issues that may arise due to the rapid spread of a global disease that currently has no vaccine and no cure. So while concluding we can say that as the whole world is going through such a disaster we need to take preventive measures to be safe. The Government has taken the preventive measure and made necessary arrangements possible so that we can be safe in our homes.
The provisions of Epidemic Disease Act, 1897 has been enforced along with the provision ofEssential Commodities Act, 1955 and Disaster Management Act, 2005. Anyone disobeying the law and rules and regulations will be punished according to the provisions of Disaster Management Act, 2005 and Indian Penal Code, 1860. If we do not follow these guidelines, we will not only threaten our lives, but the lives of others will also be put at risk. At the same time, we need to spread awareness among the common masses and burst all the myths surrounding the coronavirus. We must remember prevention is better than cure.
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This article is written by Shubhangi Jain, a student from the School of Law, UPES Dehradun. This article deals with the Trade and Environment, International treaties on Climate change and their relation to trade.
Introduction
Around the world, scientists, political representatives, and civil societies have recognized climate change as a “threat multiplier”. It’s not only a major environmental problem but also a major development issue. The reason behind this is that climate change poses challenges that affect the entire world on various levels. Various reports have already shown that if the temperature continues to rise at such a significant rate then it is a threat not only to the ecosystem but the survival of humanity.
Intergovernmental Panel on Climate Change’s (IPCC) 4th Assessment Report, 2007 provided the most comprehensive analysis of the serious and potentially catastrophic effects of climate change, especially if the average global temperature increases beyond 2 degrees Celsius above the pre-Industrial Revolution level. The same was reiterated in the 5th Assessment Report released in 2014 which clearly underlined the dire changes taking place in oceans, glaciers, and ice-deposits on land and sea. It also summarizes the disastrous impacts of warming based on current projections of global greenhouse gas emissions.Climate change poses a threat to not only the environment but also Human Development. It is important to tackle the threat on both fronts. While tackling the latter, the most important issue is the linkage of climate change policies with Trade policies. The developed countries put forward the idea of using trade policies to tackle climate change but were soon shot down by being a mode of increasing “economic competitiveness”. The other main issue while tackling climate change and trade policy is Intellectual Property Rights. The developing countries have been pushing for access to the innovative technology at an affordable cost which will be a crucial element for mitigation of and adaptation to climate change.
This article will attempt to shed light on various International conventions related to trade and the environment and will also address the two main issues mentioned above.
Major International treaties on Climate change and their relation to trade.
It is now widely accepted that Climate change is not only an environmental issue but a development issue as well and if drastic measures are not taken to tackle the issue, the world will have to face catastrophic consequences.
Many discussions are taking place on the issue of various international forums. Many treaties have also been signed regarding the same. The major negotiating forum is UNFCCC (The United Nations Framework Convention on Climate Change). UNFCCC and its Kyoto Protocol are unique because this convention lays down various development principles of common but differentiated responsibilities. One of the major aspects is that although both developed and developing countries have obligations to take action to deal with climate change, the nature of their obligations is different.
Article 4.5 of UNFCCC on technology says that developed countries shall take steps that are practical to promote, facilitate and finance, as appropriate, the transfer or access to eco-friendly technologies particularly to developing countries to help them implement the provisions of the convention. It also mentions other parties and organizations who are in the position to assist may facilitate the transfer of such technologies.
Article 4.7 of UNFCCC says that the extent to that developing countries implement their commitments underneath the Convention can depend upon the effective implementation by developed countries of their commitments associated with monetary resources and technology transfer, and can take absolutely under consideration that economic and social development and financial condition demolition are the primary and paramount priorities of developing countries.
Under the Kyoto Protocol (which was established in 1997), solely developed country parties are obligated to form binding commitments to scale back their greenhouse emission emissions. The Kyoto Protocol has two mandate periods, the first commitment period of 2008 to 2012 and the second one starting from 2013. Specific and separate goals have been set for a commitment period.
The developing countries do not have to undertake legally binding emission reduction commitments under the Kyoto Protocol.
It is important to realize why the developed and developing countries have been treated differently when it comes to assuming responsibility under the UNFCCC and Kyoto Protocol. The main responsibility is put on developed countries because ultimately, they are the ones who caused the crisis while on the path of development. Moreover, they have a higher capacity level to resolve the crisis and therefore they have made the commitment of binding emission reduction targets and of assisting the developing countries with finance and technology. The developing countries are also obliged to collect data and undertake mitigation and adaptation measures, but it was agreed they are not required to undertake binding reduction commitments.
Some major countries withdrew from the protocol before the end of the first protocol but by 2012, the emissions of the industrialized countries had decreased by 20% from 1990 levels. This reduction was five times the targets of the remaining nations. However, over the same period, global emissions rose by around 38%.After the end of the first phase, the major weakness turned out to be no participation by the developing countries. Thus, a new agreement was signed, The Paris Climate Agreement of 2015.
The Paris Climate Agreement of 2015 is one of the most major climate change treaties with the participation of almost 197 nations. The Agreement’s objectives, as set out in Article 2, include strengthening the global response to climate change by sustainable development, inter alia:
limiting global average temperature increases to well below 2ºC above pre-industrial levels and striving to achieve a cap of 1.5ºC which would significantly reduce the impacts of climate change;
increasing the ability to adapt to climate change in a manner that does not threaten food production; and
Ensuring that consistent investment is made towards low greenhouse gas emissions and climate-resilient development.
It is important to study the UNFCCC for understanding the relationship between environment and trade. UNFCCC acts as a safeguard against trade protectionism. Article 3.5 of the convention clearly states that arbitrary or unjustifiable discrimination or a restriction on international trade should not be disguised as a measure to combat climate change. This article acts as a safeguard for developing countries who were worried that such trade measures could be used against their exports on climate grounds.
The trade and investment policy implications of the Paris Agreement are indirect because no direct implications are mentioned. One indirect implication could arise from the nature of the transaction that is introduced to successfully implement various NDCs: New opportunities for trade liberalization to fuel the global green economy. Another is inherent in what the agreement does not say: what sorts of unilateral actions are Parties free to take, given the lack of specific direction the Agreement provides to the Parties in terms of achieving their Nationally Determined Contributions (NDCs)?
The World Trade Organization is deeply connected with climate change. This section will focus on the connection between the two, the various issues that have come forward in the Committee on Trade and Environment, WTO. There are several rules in the WTO that have an implication on the relationship between trade and climate change, as well as measures relating to climate change that may be constrained by the rules of the WTO. The rules include those relating to tariffs, the non-discrimination principle, standards, subsidies, and intellectual property.
Goal and Rules of WTO to facilitate International Environmental Goals.
1. Sustainable development and environmental protection are the goals of the WTO
Sustainable development and protection and preservation of the environment are two objectives that are fundamental to WTO. These goals go hand in hand with WTO’s objective to reduce trade barriers and eliminate discriminatory treatment in international trade relations. WTO creates an obligation on member states to ensure proper trade incentives in order to promote eco-friendly technologies.
2. Trade liberalization
In order to achieve its goal of sustainable development and protection of the environment, WTO strives to liberalize the trade of environmental goods by providing a stable environment which enhances the possibility of innovation. It was in the 1992 Rio Summit, 2002 Johannesburg Summit, and the 2005 UN World Summit that the contribution of trade towards sustainable development and the environment was recognized.
3. WTO rules aimed towards protecting the environment
WTO’s goal of sustainable development along with environmental protection can also be seen in its rules. The fundamental principles of non-discrimination, transparency, and predictability provide the member states a framework to address environmental concerns. Some of the agreements which specifically highlight such principles are:
Agreement on Technical Barriers to Trade (ensures discriminatory technical regulations are not implemented).
The Agreement on Sanitary and Phytosanitary Measures (sets basic rules for food safety; animal and plant health).
GATT.
4. WTO has covered environmental measures in several cases.
The WTO Dispute Settlement Body has dealt with several disputes concerning environment-related trade measures. It has been affirmed of WTO jurisprudence that WTO rules do not take precedence over environmental concerns. Some of the cases worth mentioning are:
US — Shrimp (conservation of sea turtles).
Asbestos case (A member could ban the importation of Asbestos to protect its citizens and construction workers).
5. Support of WTO Institutions
The WTO also supports its environmental goals through specialized committees. Some of the major committees which facilitate sustainable development and environment are:
Committee on Trade and Environment (CTE) (a forum for dialogue on trade and the environment).
Technical Barriers to Trade Agreement (which deals with regulations, standards, testing and certification procedures).
WTO and PPM Issue
One of the major on-going debates in WTO is the issue of PPM. The PPM concept was first introduced by some Parties and non-governmental organizations (NGOs). The idea behind the concept was to introduce trade-related environmental measures with the possible use of “Process and Production Methods (PPMs). Through this, the products can be differentiated by the way the products were made and the environment effect arising from production.
The debate arose when the WTO’s policy of “like products” was brought into the picture with this concept. WTO’s non-discrimination policy under various articles of GATT (General Agreement on Tariffs and Trade) states that:
Article 1: The members shall not discriminate between “like products” from different nations in respect of levying duties and charges.
Article 3: the foreign products should be given national treatment equal to the nation’s own products.
Article 3(2): The imported products should not be subjected to charges of any kind in excess of those applied, directly or indirectly, to like domestic products.
The main issue that arose in connection with “like products” and PPM was whether the way in which a product is produced (production methods and non-product related processes) can be used as the basis of different treatments? Thus, environment-related trade measures become a parameter?
The various views on this debate are:
Developing countries: If two products should be treated in a similar way if their physical characteristics are similar. Products cannot be considered “unlike” based on the difference in production methods. Therefore, it would be a violation of the GATT articles to impose trade measures on a foreign product based on the ground that the production method is not environmentally friendly.
Secretary of WTO:A case by case approach should be followed when it comes to differentiating between “like products” and unfair trade practices in the name of the environment. He also stated that the US- Shrimp provides an interesting example of justifiable discrimination between products based on PPMs if such a question is not dealt with within the context of the articles of GATT. US-Shrimp was a dispute concerning the way fishermen harvested shrimp. The production method used for harvesting, like the use of fishing nets and shrimp trawl vessels was resulting in several incidental killings of sea turtles, as many times, turtles can be trapped and drowned by the nets used to harvest shrimp. With the aim of reducing the killing of turtles, the US imposed a ban on the import of shrimps harvested by such production methods which may lead to the killing of sea turtles. Exporters were required to demonstrate the use of TEDs (which limit the incidental catch of endangered sea turtles), or similar equipment when harvesting shrimp in order to avoid the ban. It was held by the Appellate Body that the measures taken by the US were connected to the policy of conservation of sea turtles and was not an arbitrary restrain on International Trade. Hence, the action was justified under Article XX(g)[ii]
The PPM debate was taken up within the WTO in the Committee on Trade and Environment (CTE) in the run-up to the WTO’s first Ministerial Conference in Singapore in December 1996.
The issue was highly criticized by the developing countries that are the Third World Network (TWN). The World Trade Organization, Trade and Environment Position paper of the Third World Network pointed out that the proposal of trade-related environmental measures (TREMs) would add another burden of adjustment to the already-burdened South. Trade restrictions based on PPM could result in the change of the non-discrimination principles of International Trade and could even result in unfair trade practices under the disguise of protecting the environment.
Therefore, the attempts by some groups and countries to legitimize the PPMs i.e the trade-related environmental measures failed and lay dormant for many years. However, the trade measures being increasingly linked with environmental issues, the PPM issue has come back to life in recent years.
IPR and Climate Change
Intellectual Property Rights is another issue when PPM has been quite widespread in the world organization. IPR is extremely vital for the event and transfer of environmentally friendly technology and product. Discussions within the Trade and surroundings Committee on these 2 problems have broken new ground since there was little understanding of however the foundations of the mercantilism system may have an effect on or be plagued by environmental policies in these areas.
TRIPS Agreement (Trade-related Aspects of belongings Rights) and climate change:
Article 7: The protection of IPR must facilitate the promotion of transfer and dissemination of technological innovation which mutually benefits the producers and the users of such technological knowledge. This should be in step with social and economic welfare and must maintain a balance of rights and obligations.
Article 8.2: appropriate measures in line with this agreement must be taken to prevent the abuse of intellectual property rights by the owners or to prevent unreasonable restraint on trade.
Article 66.2: creates a responsibility on developed country members to provide incentives in their territory to institutions and enterprises in order to promote technology transfer to least-developed country members to help them create a sound viable technological base.
India represented a paper that laid down the framework for discussing the Trips agreement in order to promote eco-friendly technologies. The paper was present at the WTO’s Committee on Trade and Environment in March 1996.
For environmentally beneficial technologies, to encourage their global use, India proposed three points:
Members may have to excuse technologies which are essential to safeguard or improve the environment from patentability in order to allow free production and use. A suitable amendment will have to be made to incorporate this exclusion because such exclusion is not compatible with TRIPS.
The present technologies which already have patent rights can be revoked by the members if this is often tired consonance with the Paris Convention and is subject to judicial review.
To encourage the use of eco-friendly technology, the members need to be allowed to reduce the patent protection from 20 years i.e the current minimum to about 10 years in order to provide easy and free access to eco-friendly technologies.
Despite the TRIPs agreement, not many steps have been taken by developed countries to aid developing countries in order to encourage trade of technology which is eco-friendly.
Conclusion
This paper has dealt with two major issues related to trade and environment; PPM and IPR. The developed and developing countries hold the opposite view on both issues. The debates come down to the two questions by both types of Countries:
The developing countries argue that they shouldn’t have to pay the price for the developed country’s mistakes. During their development stage, the developed countries harmed the environment the most and it’s their fault that the World is in this problem. So why should the Developing countries pay the price by halting their own development?
The developed countries argue that they shouldn’t be alone bearing the brunt of climate change. Developing countries should equally be held responsible.
Given the rising temperatures and climate change, it is very important for the nations to work towards the goal of sustainable development for all. The developed and developing countries need to come to a compromise so that the threat to the environment and human development can be neutralized.
This article is written by Philip Ashok Alex, a student from National Law University, Delhi. In this article, the author discusses the extension and restriction of a partner’s implied authority.
Introduction
Partnership is defined under S.4 of the Indian Partnership Act. It implies that business of the firm is to be carried on by all or any of them acting for all. A partner’s authority maybe express or implied. It is either given by words, spoken or written or is implied in cases where there is no express agreement. In that particular case, the law itself grants certain powers and does not allow the partners to carry out certain other functions. “Implied” denotes authority vested on the partner based on what is apparent from the position that he holds in the firm in relation to the business carried on by the firm.
In the general perception of law, each partner is considered to be an agent of the partnership and is expressed to be the praepositus negotiis societatis, who can bind all the other partners to his actions which are well within the scope and object of the partnership. Every partner is supposed to be an agent of the partnership, and his rights, powers, duties and obligations are all covered in a same manner as per the rules governing the agent. They hence hold a dual role – of that of a partner and that of an agent.
The Principle of Implied Authority in the Indian Partnership Act
Determination of Partnership
In the case of K.D. Kamath v C.I.T, the Supreme Court (see here) laid down 2 essential elements required to constitute a partnership:
(a) there must be an agreement to share the profits and the losses and
(b) the business was to be carried on by all partners or any one of them acting in the interests of all. This is an essential element in determining mutual agency which is said to be one of the most important tests in determining partnership in addition to that of sharing of profits and losses. The principle of agency is not coupled with the right to reasonable remuneration for the work done since it is done on behalf of the firm.
The prudent partner’s not having knowledge or disapproval of the same does not absolve them of their personal liability or from holding the firm liable. However, the firm will not be bound if the acts done by the partner under his implied authority was “outside the usual course of business of the firm”, even if it were to be a prudent decision ratified by all the partners of the firm. In short, the partner has the authority to do the usual but does not have it extended enough to do the unusual. And for the determination as to what is usual and what is unusual, the question is answered by the nature or kind of businesses carried on by the firm.
A Partner’s Implied Authority
Section 19 of the Indian Partnership Act (see here) defines ‘implied authority’ as the authority of a partner to bind the firm to his actions. While the first part of S.19 uses an affirmative rule in determining the implied authority of a partner, the latter provides a negative rule listing out all the functions that a partner is not permitted to do, and thereby draws a demarcation as to where the implied authority is extended and restricted. In order to determine implied authority, the act ought to be done in such a manner so as to imply an intention to bind the firm. The confirmation of whether it is an act in the usual course of business, the nature of the business and the practice of the persons engaged in it ought to be checked and analysed. Moreover, what constitutes the definition of “usual course of business” shall vary from time to time and hence to affix a straight-jacket definition to the same is not always viable for the purposes of this section.
For the purposes of implied authority and with an impending need to contain such authority, the courts have made a distinction between trading and non-trading partnerships. It was determined over a series of judgments that a business which involves the buying and selling of goods is a trading concern as it is absolutely necessary for the traders to borrow money and issue negotiable instruments, but not in the case of professionals, for instance, solicitors. In the case of non-trading businesses, there can be no implied authority to borrow money for the business. For instance, in cases where the money borrowed by a partner without the authority of the firm was used for the purposes of the firm, the firm becomes liable.
Extension Available and the Restriction Imposed on a Partner’s Implied Authority
What authority can be extended and what cannot be?
Section 18 of the Indian Partnership Act prescribes that “a partner is the agent of the firm for the purposes of the business of the firm”. There is an implied authority that has been vested on the partner to bind the firm until and unless there is a clause or a statement that proves otherwise. S.19(1) of the Partnership Act states that only the acts conducted by the partner in the usual course of business of the firm, binds the firm to the actions of the partner. Furthermore, S.20 suggests that the implied authority granted to the partners can be either be restricted or extended by virtue of a contract between the partners themselves. However, even with such a restriction in place, an act done by the partner on behalf of the firm binds the firm unless the person with whom the partner was dealing with is aware of the restriction of implied authority granted to the partner.
S.19(2) of the Partnership Act enumerates various matters such as submitting a dispute to arbitration, opening a bank account on behalf of the firm, transferring or acquiring immovable property on behalf of the firm, which a partner cannot do under the liberty of implied authority and this is in absence of any usage or custom to the contrary. Even though the list provided in S.19(2) is not exhaustive, it proves to be the only yardstick to measure and contain the implied authority of partners in the absence of any other statutory precedents. Though there are such restrictions that are prescribed by the legislation, any act done by the partner on behalf of the firm binds the firm, until and unless the third party is aware of the restrictions that have been imposed and does not know or believe that the person is not a partner.
What can the partner do and not do?
S.20 of the Partnership Act provides that “the partners in a firm may, by contract between the partners, extend or restrict the implied authority of any partner”. S.11 also recognises that the partners ought to be allowed as much freedom in regulating their relations in the firm inter se. The restriction and the extension of the implied authority of partners can be done with the consent of all the partners and should not be a decision made by one person or the majority, in isolation. With regards to any such limitations that are brought out by contracts regulating the authority amongst them, the third parties need not be affected by these until and unless (i) such a restriction was known to them or (ii) they neither believed nor knew that the person was a partner.
The implied authority and its extension ought to be seen in light of the intention of the doer to bind the firm to his/her actions. This intention however, has to be inferred from the facts and circumstances of the case. The intention of the partner at the time of his actions are to be checked and not the intention in any subsequent time. For instance, if a partner of the firm borrows money under his own name with a clear intention to utilise it for the business of the firm, this action does not fall within the ambit of “implied authority” even if it was ultimately used for the purposes of the firm.
S.22 prescribes the manner in which a partner of a firm is to act within the scope of their implied authority so as to bind the firm to their actions. Any act which is done on the behalf of the firm and executed in the firm name and with an express or implied intention to bind the firm, attracts the provisions of S.19. If it is done in the name of the firm, there is no difficulty in tracing the actions of the partner back to the frim. But in a case where the act was done with an implied intention to bind the firm, such intention as referred to, should be inferred from the facts and circumstances of the case.
Case Laws Defining the Scope of a Partner’s Implied Authority
In the case of Premabhai Hemabhai v T.H. Brown, (see here)it was ruled that the partner could bind the firm within the limits of the firm’s implied authority that has been extended. Similarly, in the case of Motilal Manucha v Unnao Commercial Bank Ltd., (see here) it was opined that even upon cancellation of the implied authority by the partner, the liability of the firm could still be determined as far as it was unknown to the notice of the third party who acted under the impression of the extended implied authority.
In the case of Mathura Nath v Bageshwari Rani, the firm dealt with the business of catching white elephants and also was involved in hiring elephants for similar purposes. When a partner of the firm entered into an agreement of a similar nature so as to hire elephants, it was ruled that the act done by the partner was of the kind of business as done by the firm. A partner has the implied authority vested on him to receive payment on behalf of the firm and give a valid discharge by issuing a receipt for the same.
However, in Dali Chand v Mathura Das (see here), it was ruled that the partner lacked the implied authority to get the credit of the firm to set off against his personal debts and give a discharge on behalf of the firm. In the 2005 case of SBI v Simko Engineering Works, it was ruled that unless contrary intention was proved, the implied authority of every partner is traced to be inherent. A partner who contests otherwise also has to prove that there is no inherent power of implied authority as per the contract or the partnership deed.
Within the Sphere of a Partner’s Implied Authority
When a contract is entered into by one of the firm’s partners, it is usually binding on the firm and the other partners when it is subsequently rectified by them or when the validity of such a contract is not denied by either of the partners. The acts done by a partner in excess to the implied authority granted to them can be ratified by the other partners, provided that the acts so done are legal.
Joint Venture
It has been generally accepted that the partner’s implied authority is not extended thus far so as to allow him to enter into a partnership with other persons in another business. There was a clear distinction drawn between engaging in a partnership and getting involved in a single transaction. The arrangement of mere buying and selling on behalf of the firm is thus allowed although entering into a separate partnership for another business does not fall within the sphere of this authority.
Legal Proceedings
It is within the sphere of the implied authority of a partner to defend an action that has been brought against the firm. He is also empowered to assign a lawyer for the same. There can be situations where there is a clause in a deed of partnership that specifies the extent to which the partner is allowed to act on behalf of the firm and also enumerates the actions for which the consent of the other partners is required so as to bind the firm.
Admission of Liability to Tax
In the case of Darpan Cinema v State of Gujarat, (see here) where the firm was facing the threat of having its cinema licence cancelled, an admission made by one of the partners of the liability of the firm to pay an amount due under the entertainment tax was held to be binding on the firm.
Partner Acting in Self-interest
The act done by a partner within the scope of his implied authority does not bind the firm if it has been done by him, for his own purposes and not for the firm, to the knowledge of the third party. Therefore, when a partner uses the funds of the firm to clear his personal debts and makes a payment in that regard, the firm is not bound and can recover back the money.
Negotiable Instruments
In this case, one member of the firm of bankers, ordinarily, draws, accepts or indorses a bill of exchange on behalf of the firm, and in requiring each member of the firm to sign that would not be viable practically. However, the drawing and acceptance of bills is not in the usual course of business of a solicitor and hence, the firm should be bound in no way whatsoever.
Conclusion
The underlying idea, from the above analysis of a partner’s implied authority within the scope of the Indian Partnership Act, is that there is no set of rules laid down for the determination of the same. Even though S.19 of the Act broadly defines “implied authority” and lays down restrictions on a partner’s implied authority, it is not exhaustive. However, with the help of various judgments and precedents, numerous parameters have been laid down so as to determine the implied authority of a partner. One such determinant is that the actions of the partner are to be done in the usual course of business of the firm. Therefore, we can conclude that the determination of a partner’s implied authority differs in various contexts and is contingent on multiple factors.
References
Statutes
Indian Partnership Act, 1932
Case Laws
Rajnikant H. Golwala v Natraj Theatre AIR 2000 Guj 80
K.D. Kamath v C.I.T (1971) 2 SCC 873
State Bank of India v SIMCO Engg. Works II (2005) BC 199 (P & H)
Kadiyala Seshagiri Rao v Kanneganti Dasaiah AIR 2000 AP 263
Janki Nath v Dholkar Mal (’35) A.P. 376, 156
Premabhai Hemabhai v T.H. Brown (1873) 10 Bom HCR 319
Motilal Manucha v Unnao Commercial Bank Ltd. AIR 1930 PC 338
Mathura Nath v Bageshwari Rani AIR 1928 Cal 57
Dali Chand v Mathura Das AIR 1968 Bom 428
Darpan Cinema v State of Gujarat (1994) 1 Guj LH 459
S.N. Soni v Taufiq Farooki AIR 1976 Dec 63
Sanganer Dal and Flour Mills v FCI AIR 1992 SC 481
M/s National Small Industries Corp. Ltd. v Punjab Printing and Metal Industries AIR 1979 Del 58
SBI v Simko Engineering Works (2005)
Foreign Case Laws
Cox v Hickman (1860) 28 HLC 68
Higgins v Beauchamp, (1914) 3 KB 1192
Bank of Australia v Berillat, (1847) 6 Moc PC 152 at Page 193
Wheatly v Smithers (1970) 2 KB 684
Hawksley v Outram (1892) 3 Ch 359 (CA)
Lindern Trawler Managers v W.H.J. Trawlers (A Firm) (1949) 83 LI L Rep 131
Tomlinson v Broadsmith (1896) 1 QB 386 (CA)
Kendal v Wood (1871) LR 6 Exch 243
Books:
Lindley on Partnership, 14th edition
Pollock, The Law of Partnership (15th edn., 1952) 31; Forster v Mackreth, (1867) 2 Ex 163.
L.C.B. Gower (Ed.), The Law of Partnership (15th edn., 1952) 31
Scamell (Ed.), Lindley on Partnership (12th edn., 1962) 168
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This article is written by Krusha Bhatt. She is an Assistant Lecturer at Jindal Global Law School, Sonipat.
Introduction
There are scores of hearsays with respect to the way Covid- 19 has leaked out as an international health emergency affecting millions of lives around the world and massively disturbing the global economy. The skepticism has led to raise allegations that China in preference to sharing the information about the coming pandemic, rather suppressed, censored and misrepresented the data. Had China taken precautionary measures earlier, the spread of the Coronavirus globally could have reduced by 95%, shows a study at the University of Southampton. This statistical data alone is capable of contemplating China’s mens rea. Furthermore, a conspiracy theory has also emerged injecting suspicion on whether China deliberately used the novel virus as a ‘bioweapon’. Hypothetically assuming all these contentions to be true, in addition to potential manifold footing accessible under the dimension of international law as we will see further, the act of China is in blatant violation of international customary principle, pacta sunt servanda, i.e. acting in good faith, as adopted under Art. 31 of the Vienna Convention on the Law of Treaties, 1980.
The path of legal consequences of the communist Chinese act can be found primarily under the shelter of World Health Organisation’s International Health Regulations, 2005 (IHR) as the epidemic relates to ‘public health’. A reference to the International Court of Justice can also be made for looking into the matter or seeking its advisory opinion. The US based political interest group, FreedomWatch has already approached the International Criminal Court under Art. 15 of the Rome Statute to open an investigation against People’s Republic of China for willful creation, release and proliferation of Covid- 19 as a crime against humanity.
With the given conjecture, this article tries to make an attempt to evaluate China’s conduct and connect the dots of allegations made against the demeanor of China with international law/ public international law in order to reveal whether China can be held responsible towards the international community. If the answer to the hypothesis is affirmative, this article will further examine the remedies available against the guilty conduct of China.
The Law of State Responsibility vis-à-vis Covid- 19
There is clearly no doubt about the legal personality of China in international law. As a ‘State’, China is indeed a subject of international law and therefore, can be held liable for any unlawful actions of its own. Health officials around the world and other States have heavily criticized Chinese government’s non- cooperative or rather secretive behavior in controlling the spread of Severe Acute Respiratory Syndrome (SARS) disease. State Responsibility being one of the fundamental principles of international law, requires the defaulting State paying for reparations for any obligations omitted as held in the famous cases of Spanish Zone of Morocco and Chorzow Factory Case. The text adopted by the International Law Commission (ILC) as established by the general Assembly under the umbrella of the United Nations on Responsibility of States for Internationally Wrongful Acts is a primary document talking about the responsibility of a State for a breach of international obligation. Under Art. 31, it further also provides for the legal consequences of an internationally wrongful act including reparation which may be in the way of compensation if the damage caused cannot be restored as per Art. 36. The spread of pandemic and the damage caused is so severe, restoration does not seem to be an option. The least the injured States can ask is to pay for reparations to make up for the damage caused socially and economically by China’s conduct.
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Obligation under IHR
The obligation we are talking here about is raised from the International Health Regulations of 2005 whose purpose and scope as mentioned under Art. 2 is to ‘prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’. IHR are adopted under the ambit of World Health Organisation to which China is a party and as per Article 7 of the regulations, any unexpected or unusual public health events such as Covid- 19 in the matter at hand, within a territory of a State i.e. China which may become an international public health concern must be notified to the WHO within 24 hours of the assessment of public health information as provided under Article 6.
As a general principle of international law, treaties are of binding nature and must be adhered to. And therefore, China was obliged to follow the norms agreed by it however it did not. Based on Chinese records, numerous media sources have reported that China encountered its first case of coronavirus as early as 17 November 2019 in the capital city of Province Hubei, Wuhan. However, China informed the regional office of WHO about a type of pneumonia of unknown cause on 31 December 2019 almost a month later. The first person, Dr. Li Wenliang who tried to blow the whistle about the Severe Acute Respiratory Syndrome (SARS) like diseases as early as 31 December 2019 and died later on, was reprimanded by the Public Security Bureau for ‘making false comments’ and ‘severely disturbing public order’. From the records, it can be whispered that China indeed was capable of notifying WHO earlier that it did, owing to the fact that a similar kind of disease had affected 26 countries in 2003.
Settlement of Dispute under IHR
As per Article 56 of the regulations any issues arising out of the interpretation and application of the terms between States, should be resolved through alternate dispute resolution mechanisms such as negotiation, mediation and conciliation first. If they fail to do so by those means, the dispute should be tried to resolve through arbitration by writing to the Director General. Considering the practical scenario, China is neither going to accept the existence of any dispute arising out of the terms of the regulations nor will it ever submit to any of the alternate dispute settlement mechanisms. Therefore, the probability of getting this concern resolved under the dispute settlement mechanism of IHR is extremely unlikely.
Invoking Jurisdiction of International Court of Justice (ICJ)
Article 75 of the WHO’s constitution can work as a base for invoking jurisdiction of the ICJ as it provides that, ‘Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.’ Here, the settlement of dispute by negotiation should not be treated as a prerequisite as ICJ, in its previous ruling in the matter of India v. Pakistan (Jadhav Case) waived off the protocol for arbitration for approaching the Court while interpreting Vienna Convention on Consular Relation. Another route for approaching ICJ’s jurisdiction is through its compulsory jurisdiction to resolve any legal dispute. In the absence of any special circumstances leading to any explicit legal dispute, invoking compulsory jurisdiction of ICJ is a challenging task as existence of any legal dispute is a prerequisite for summoning Article 36(2) of the statute. Under the ambit of Article 76, WHO can request ICJ to deliver an advisory opinion in the matter at hand as it has done before in the matter of Legality of the use by a State of Nuclear Weapons in Armed Conflict.
Conclusion
The primary task for the State(s) at the moment right now is definitely to look after the way the pandemic is spreading and to protect the interest of their citizens in the best way they can. However, once the dust of pandemic fades away then everyone will start to figure out a way to recover the injury and impairment caused. As the US has already started going after China, it will take only a few moments for the rest of the States to follow. Then, it will definitely be interesting to learn about how international law is capable of tackling situations like these.
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This article is written by Tejasvi Shukla, from National Law University, Shimla.
Introduction
With an increasing threat of COVID, the Government is advising every citizen to practice Social- Distancing where everybody is required to maintain a minimum distance of 1 meter (or 3 feet ) in order to curb the spreading of a pandemic. But the conditions inside the jail are raising serious concerns for Authorities because of overcrowdedness, thus exposing inmates to disease. Doctors and Health Experts are calling jails as Vulnerable ones amid an outbreak because of overcrowding and poor sanitization that can act as a career for spreading.
The norm of social distancing, which is the only way out to curb the transmission is now worrying jail authorities because of overcrowding inside the jails. The medical and Sanitization facilities inside jails are also very poor that again is a matter of grave concern. In order to save prisons from becoming hot-spot, authorities are required to take strict steps and must ensure at least 6 feet distance among the inmates.
Supreme Court Orders
On 16th March 2020, Hon’ble Supreme Court took Suo Moto Cognizance of the matter as overcrowding makes it impossible for inmates to follow the norm of social distancing, directed the states and UTs to submit replies and steps being taken to prevent spreading of the pandemic among prisoners and juveniles noting the high risk of transmission among them. Every state and Union Territory was directed to submit their replies by the 20th of March, 2020.
On 23rd of March, 2020, the Hon’ble supreme court directed States and Union Territories to set-up a Committee that would consider releasing all inmates with sentences up to 7 years or less. The Committee must work in consultation with the State Legal Service Commission. The bench also directed to stop the physical presence of undertrial prisoners before the courts and recoursing video conferencing for all such purposes, in order to avoid transmission. The Hon’ble Supreme Court has also ordered not to shift inmates to other jails except in case of decongestion and also ordered the authorities to shift sick prisoners to the hospital without any delay.
The Hon’ble Supreme Court has also ordered the states to make sure that the social-distancing is maintained among the inmates and stopped the physical presence of undertrials during the hearing. The undertrials must present before the court virtually taking the recourse of video conferencing in order to stop the disease from spreading.
The prisoner should be shifted to a nodal medical institution without any delay, if he shows symptoms of the disease, so that it may not spread among other inmates.
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Can Prisons Turn into Epicentre
In a recent release of the Human Rights Initiative it said that prisoners across the globe have been tested positive for COVID-19 including the global hotspots of the United States, United Kingdom, Italy, Iran, etc. The growing threat of spreading disease among inmates is a matter of great concern, and it indicates the improper condition of jails. The Prison statistics of India show various factors as a contributing one towards the growing threat for inmates.
Overcrowding
According to the World Prison Brief, India stands Fifth globally in terms of prisoners population after the United States of America, Russia, China and Brazil. According to the National Crime Record Bureau, occupancy percentage of Indian prisons from 2008 to 2018 stands near 117% i.e., Indian prisons are having 17% inmates than the actual capacity. The issue of overcrowding is highly alarming in some states like Uttar Pradesh, where the occupancy rate exceeds by 76.5 percent. The largest jail complex of South Asia, i. e. Tihar jail has an occupancy rate of 174.89 percent, which is again 74.89 percent more than the sanctioned capacity. The alarming situations of overcrowding inside the jails are adding a threat to the life of prisoners as it hinders the practice of Social Distancing, which may cause transmission of COVID.
The report from the National Crime Research Bureau suggests that Indian jails are having 4.5 lakhs of Prisoners against the sanctioned strength of 3.4 lakhs inmates. In some states situations are far worse, the occupancy in those states ranges more than 150%. For Instance, Uttar Pradesh has an occupancy rate of 176.5%, Delhi on 163% and Chattisgarh on 160%, they are running with 50% more prisoners than the actual figure. On the other hand, some states are having fewer prisoners than actual accommodation available as Tamil Nadu having a 60% occupancy rate.
The threat of transmission in states with overcrowded jails is now creating a new challenge before the authorities to release surplus inmates from jail in order to follow the norm of social distancing and curb the spreading of the disease.
Health and Sanitization
Apart from rampant overcrowding, health and sanitization problems inside the jail are also a possible threat for inmates present in prisons. The high death rate and non-availability of doctors and proper treatment in prison is a point of concern for transmission. Most of the doctors working in prisons are incapable and under trained, who need proper training. As of 2018, Indian jails were having 1914 doctors against the sanctioned strength of 3220 doctors, authorities have to call doctors from outside in order to fulfill the need. The figure shows a lack of doctors by 40% inside jails. Right now, Indian prisons are having one doctor out of 243 prisoners, while in some states like Jharkhand the condition is even worse, only one doctor out of 1375 inmates, followed by West Bengal and Uttar Pradesh with one doctor out of 923 and 727 respectively.
Total Expenditure allocated to spend on health as of 2018 was Rs. 76 crore against total expenditure of Rs. 1714 crore, 4 % of total expenditure allotted for prison functioning. Highest being Delhi spending 13.5% of total expenditure on health followed by West Bengal at 10.5% and Uttar Pradesh at 10%.
According to the All India Jail Reforms Committee of 1980-83, most of the cells lack flush latrines and they still use the bucket-type latrine. The ratio of latrine and urinals present are much lower than the required ratio. Overflow of latrines is also a major problem that invites flies and mosquitoes to breed there. In some cells inmates are provided only with pots for answering nature calls. A stinking smell pervades the atmosphere of cells.
The poor sanitation inside the jail causes various kinds of diseases among inmates including cholera, typhoid and other diseases. The condition is even worse for women, they have to suffer from the various urinal and reproductive problems due to dirty and less number of toilets in a jail complex.
Overcrowding due to undertrials
India ranked 15th out of 217 countries in undertrial incarceration. The Major point for overcrowding due to Undertrials being low case disposal rate. Indian prisons are having 2 undertrials per convict. Nearly 69% of inmates in Indian Prisons have not been convicted for their crime by the court.
Around 36% of undertrial inmates stay in jails for up to three months, 22% for three to six months and 17% stay for six to seven months. Contributing factors for a high number of undertrial range from a paucity of judges, ineffective legal representation and case overload with consequently longer trials. A quantitative analysis of these under trial inmates also show that most of our young illiterates who came from poor families. It was also found that most of them can not afford the bail fee.
Shallow Pockets
Some States and UTs spent between Rs. 20,000 to Rs. 35,000 annually per inmate that is far less than those of the other states, where Delhi and some other states spend around 81,000 on upkeep annually. The huge crunch in some states is also a reason behind the shabby condition of jails.
Utilization, too, remains unimpressive. This gap has driven the Supreme Court to consider that it may be “necessary to have the accounts audited to ascertain whether the money is being spent wisely and whether it is being utilized for the benefit of the prisoners or not”.
Short- Staffed
Most prisons in India have vacancies greater than 20%. There is a dearth of medical professionals too.
The Model Prison Manual, 2016, lays down that there shall be at least one medical officer for every 300 prisoners. In central prisons, there should always be one doctor available. Some states like Uttarakhand have all of its 10 posts lying vacant. The ratio of a medical officer to inmates stands around 1:243.
The current ratio of staff and prisoners is approximately 1:7. In the absence of adequate staff and because of the overcrowding of prisons, the upkeep of prisoners is much below the set standard. Sometimes prisoners are also forced to engage themselves in various work unwillingly without any pay.
Important Committees on Prison reform
From time to time, the government has formed various committees to examine the condition of prison and prisoners. The Committees examine and recommend measures for the education, health, development of skills, rehabilitation and social reintegration of prisoners.
All India Jail Reform Committee (1980-83)
The committee was formed by the government under the chairmanship of Justice A.N. Mulla in 1980. The committee was set-up with the objective to review the law, rules and regulations related to prisons. The report was submitted by the Mulla committee in 1983.
The committee had made several important recommendations-
The living conditions of prisoners should be made compatible with human dignity by improving the quality of sanitation, making adequate arrangements of food, accommodation and ventilation.
There should be proper training for jail staff and an All India Services be formed namely Indian Prisons & Correctional Services to induct qualified and talented personnel.
Separate accommodation be made or under trails to keep them away from convicts. The provision of speedy tail and liberalization of bail be adopted to reduce the overcrowding in jails.
Proper arrangements will be made for educating, developing skills, and training of prisoners.
The government should allocate proper funds and allocate resources properly.
Justice Krishna Iyer Committee on jail Reforms
Justice Krishna Iyer Committee was formed by the government in the year 1987, to examine and make recommendations in order to improve the situation of women prisoners. The committee submitted its report to the government in February 1988.
The major recommendations of the committee are as follows-
Necessary provisions are made in order to maintain the dignity of women inside the prisons and all required resources be made available in order to achieve the dignity of women.
Women are vulnerable to exploitation, so separate institutions are made for them and it should have women employees only.
Proper arrangements are made in prisons to save women offenders from psychosis and neurotic disorders.
Free legal aid is provided to women offenders in case they can not afford lawyers.
Conclusion
The release of Prison Inmates to avoid the transmission of the pandemic among them clearly shows the shabby and poor conditions in which prisoners are surviving. Various reports have suggested that Indian Prisons are running low in terms of capacity and in terms of other basic facilities. From time to time various committees formed to find out the lacking point and come up with the idea of resolving the problems but all in vain. The Constitution of India guarantees Right to Life to everyone which includes prisoners too, where the Right to live with Dignity is also guaranteed but after going through all the Data and Reports, it seems that Rights are reduced to Books only. This pandemic may prove to be a turning point in the field of prison reform if authorities have taken this as a call for change.
NationalPolicy on Prison Reforms and Correctional Administration, Bureau of Police Research & Development, Ministry of Home Affairs, Government of India, New Delhi. Available at https://www.bprd.nic.in.
Bureau of Police Research & Development, Ministry of Home Affairs, New Delhi. Implementation of the Recommendations of All-India Committee on Jail Reform (1980-83); Volume I; 2003; available at: https://www.mhal.nic.in.
Prisons in India: An overview of reforms and current situation, pp.31-53; available at https://www.rajprisons.nic.in.
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This article is written by Saket Sharma, a student of the School of Law, UPES Dehradun. This article deals with the feminist school of criminology.
Introduction
Women are always considered as nurturers. Women take care of the home, their husband and kids, women are homemakers and more passive; to think women can commit a violent crime was beyond the imagination of our traditional criminologists and historically the field of criminology excluded women from its studies. Criminology is the study of crime and criminal justice, but according to the feminist school of criminology, the main theory of criminality is centred towards the male subject, validated from the male subject and focused on male victimization.
Criminology has been a field that is male dominating and where primary subjects are male offenders. The feminist school of criminology, this school focus on criminology attempts to explain the criminal behaviour of women. The school developed in the 1970s but began gaining attraction from the last 30 years. This is a field which puts lights on biases of women’s issues as they pertain to criminality. Women according to this point of research do not commit crime as that of men nor they do violent crime as of their male counterparts.
It is important to understand these gender differences in delinquencies. It is so because it reduces or prevents criminal activity in society. We have to know what approach will help us in meeting our goals. When we are knowledgeable about the facts we will better dissect the problems, will be able to find a solution related to the problem and ultimately apply the right ones.
The Feminist School of Criminology is a school of criminology created in the mid-1960s as a response to the apparent general carelessness and separation of ladies in the conventional investigation of wrongdoing. Defenders declare that the man-centric control of the field of criminology has prompted the field to be naturally one-sided and androcentric. This, they contend, drives standard criminology to either sum up or disregard criminological requests pertinent to ladies with an end goal to help the male commanded status quo.
Criminology is the logical investigation of nature, degree, administration, causes, control, results, and anticipation of criminal conduct, both on the individual and social levels. Criminology is an interdisciplinary field in both behaviour and sociology, drawn particularly upon the exploration of sociologists, therapists, logicians, specialists, social anthropologists, and researchers of law.
The term criminology was instituted in 1885, by Italian law educator Raffaele Garofalo as ‘Criminologia’. Afterwards, French anthropologist Paul Topinard utilized the closely resembling French term ‘Criminologie’.
Feminist criminology today is worried about the exploitation of ladies. Different issues, for example, female wrongdoing, prostitution and sexual orientation imbalance in the law and criminal equity framework are likewise accepting consideration. Women’s rights look for the disposal of all types of sexual orientation imbalance. The objective isn’t to drive men out however to pull ladies in.
Women’s liberation is an arrangement of speculations about ladies’ mistreatment and an arrangement of systems to transform it. Recent debates in the criminology literature have focused on handling female offenders through the criminal justice system. There are two competing views. The hypothesis of chivalry or patriarchy echoes the perception that female prisoners are killed, arguing that at all stages of the male-dominated judicial process, women treat men more generously than men because men want to protect the weak.
There are multiple explanations for gender differences in sentencing, and not all feminists want the criminal justice system to treat women equally. It seems that women have not committed “great” crimes such as stock fraud and other white-collar crimes or bank robbery. Instead, they are admitted to the judicial system for different crimes.
Scope and emergence of feminist school
It is promptly obvious that guys do to sure confer much more offences, particularly those regarded critical to criminology than females do. This concentration has been partly because of the relationship of criminology with administrative and amendments frameworks. The field was created to a limited extent to help enhance comprehension of why individuals carry out wrongdoings with the goal that approaches could be sanctioned to decrease those violations.
Do ladies carry out fewer violations, as well as they perpetuate wrongdoings that are of less enthusiastic to those worried about open wellbeing? Consequently, ladies were to a great extent overlooked until the 1970s. Farrington and Morris (1983) found some factual evidence that women did get punished with lighter sentences, but female offenders were more likely to be first-time offenders and committed less serious offences. They stole fewer items, used less violence, and so on. For any offender, a priori history of the crime and the severity of the crime are the basic factors that determine the severity of the penalty.
Once these variables are entered into the equation, it can be concluded that under the same circumstances, there is no difference in the treatment of female offenders and men. Married women were treated leniently, on the other hand, unmarried women or women in unconventional relationships tend to be treated more severely, which confirms a sentencing model based on cultural needs to strengthen gender roles within the framework of heterosexual marriage or family life.
Kruttschnitt (1982) provided the bridge between economic independence, informal social control, and heavier female punishments. In a study on California’s population convictions in the 1970s, Kruttschnitt found that the sentence may vary depending on the degree to which a woman is financially dependent on others in daily life: the more she depends on her The less severe the character is. Therefore, it can be shown that the degree to which female offenders are subject to. Informal social control may lead to a lighter formal sentence.
Feminist Criminology Additionally, the Weberian esteem free way to deal with the investigation of criminology has neglected to perceive that the encounters of the analysts themselves shape and figure their particular ways to deal with their exploration. This has brought about an unreflective supposition that information and speculations about young boys and men would be generalizable to young girls and ladies.
Specialists and scholars have accepted that the investigation of male wrongdoing was the bland investigation of wrongdoing and that ladies who occupied with wrongdoing were a greater amount of an abnormality than a subject to be examined all by itself. At last, the feminist way to deal with criminology rose out of the investigation of this training.
It has been just over the most recent 30 years that feminist criminology has formed into a perceived viewpoint in criminology. Be that as it may, the term feminist criminology is to some degree deluding; it may smart to talk about feminist criminology. Feminist criminology includes an extensive variety of hypothetical points of view and systems that place the courses in which sex shapes involvement with the focal point of insightful request.
It concentrates on a wide scope of issues identified with ladies and wrongdoing, including hypothetical clarifications of wrongdoing, reactions to female culpable, programming in ladies’ penitentiaries, ladies as labourers in the field of remedies, and the unique needs of ladies detainees. The feminist idea isn’t a homogeneous approach; it fuses the liberal feminist concentrate on measure up to open doors for ladies, the Marxist feminist concentrate on class relations and private enterprise as the wellspring of ladies’ abuse, communist women’s activists’ mixing of male mastery with political and financial structures in the public arena as the wellspring of imbalance, and the radical feminist concentrate on man-centric control of ladies, to name the most surely understood branches.
Be that as it may, these feminist methodologies have in like manner their emphasis on the routes in which the gendered structure of society is identified with wrongdoing. Until the last 50% of the twentieth century, most criminological works concentrated on male wrongdoers and criminal equity framework reactions to male wrongdoing. The absence of regard for female culpable originated from the way that most wrongdoings were conferred by guys.
In any case, by the most recent too many years of the twentieth century, female detainment rates were soaring, prompting a surge in the examination on young ladies, ladies, wrongdoing, and the criminal equity framework. Numerous researchers point to the “war on drugs” and the government condemning changes of the 1980s as the essential clarifications of the substantial increment in female detainees and also of the development of feminist criminological grant.
Unmistakably, the war on medications and government changes are the main impetus behind the huge increment in the detainment of ladies. Be that as it may, the underlying foundations of feminist criminology originate before these progressions. They are rather found in second-wave women’s rights and also in the radical criminology of the 1960s and the 1970s.
Feminist criminology in the 21st century
Increasing across the board acknowledgement of feminist criminological, the grant has been an overwhelming undertaking. Given the way that the field of criminology has been overwhelmed by researchers, who are more married to standard speculations and research, approaches testing the standard point of view have met with despise or basically with lack of engagement. This has prompted significant trouble getting feminist grant distributed and also minimization of the work that has been distributed. For sure, there was not even a session on ladies and wrongdoing at the yearly American Criminology Society gatherings, until 1975.
Production in criminology diaries has additionally been troublesome, and much feminist grant was consigned to littler, and not extremely renowned, criminology diaries. In 1989, the diary Women and Criminal Justice was propelled, particularly committed to the production of insightful research on all parts of ladies’ and young ladies’ association in the criminal equity framework.
At that point, in 1995, Violence against Women was propelled to distribute peer-checked on the grant on sex-based viciousness and female casualties. Since the mid-1990s, an extensive variety of books about ladies, wrongdoing, and criminal equity have been distributed. In 2006, Sage Publications presented the principal issue of Feminist Criminology, the official production of the Division on Women and Crime of the American Society of Criminology.
This diary has taken a wide concentrate on the feminist grant, distributing peer-inspected articles on feminist criminological hypotheses, female culpable, exploitation of ladies, and the treatment of ladies and young ladies in the equity frameworks. In spite of the fact that advance in the production of the feminist grant has been made, it remains minimized to some degree in the general train. Not exclusively do standard diaries distribute, just restricted feminist grants, yet in addition course readings give inadequate thoughtfulness regarding feminist criminological hypothesis.
In this way, new ages of criminologists are instructed but then given close to nothing, if any data about feminist criminology. This is reflected in their examination and in addition in their educating and coaching of new researchers. The cycle along these lines stays self-sustaining, with new criminologists accepting inadequate training on feminist criminology (Renzetti, 1993).
Conclusion
Be that as it may, feminist criminology stays perfectly healthy. The Division on Women and Crime is one of the biggest areas of the American Society of Criminology, a few noteworthy distributors have book arrangements concentrating on ladies and wrongdoing, and new researchers keep on emerging. The Division on Women and Crime, which began with a little gathering of researchers in the mid-1980s, has now existed very nearly a fourth of a century, and feminist researchers have been perceived as Fellows by the American Society of Criminology.
Momentum Feminist Criminological Grant incorporates hypothesis building and hypothesis testing, and research on viciousness against ladies; ladies’ wrongdoing; and ladies in the criminal equity framework, both as guilty parties and labourers. The characterizing attributes of feminist criminology are the accentuation on how social structures influence men and ladies in an unexpected way. The feminist school argues that just because on the basis of gender, marital status, biological traits, hormonal imbalances, etc., women are, since time immemorial, are dealt leniently.
In addition, in criminal cases, women use defences such as prenatal depression as grounds for infanticide and other crimes. Relying on biological reasons to criminalize women enhances the social perception of biologically criminal women. Therefore, society ignores other causes, such as the social and economic causes of female criminal behaviour. Women as the symbol of love and caring are always treated as the loving figure who lacks masculinity and hence, can’t be seen as an offender in a strict sense as opposed to the male counterparts.
But with changing times, courts and jurists are changing the paradigm of female criminality and treating equally the female offenders as well, keeping them at the same pace as that of male offenders. Still, feminism is a topic of debate that will be stretched according to one’s intellect.
This article is written by Bhanvi Juvekar, a law student at Unitedworld School of Law, Karnavati University, Gandhinagar.
Introduction
Laws are made to regulate the activities of daily life in a way so that no wrong takes place. However, sometimes a special law is required for a specific set of problems arising in a special area of law.
Law is a diverse field. There are different branches of law such as tax law, labour law, employment law, technology law etc.
Why are these laws in place?
These laws are in place today because a need was realised to form laws, especially for a field. But even these bring problems of their own. In some cases, a party may benefit from a general law provision but suffer from a special law provision and vice-versa. That is where this maxim comes in.
Generalia specialibus non derogant is a Latin maxim. It is a maxim used for statutory interpretation.
Generalia stands from general;
Specialibus stands for special.
When interpreted, it means that general laws do not prevail over special laws or, the general does not detract from specifics. [1]
Justice Griffith said in R v Greenwood, [2]
“The maxim generalia specialibus non derogant means that, for the purposes of interpretation of two statutes in apparent conflict, the provisions of a general statute must yield to those of a special one.” [3]
When a law is questioned before the courts, the courts assume that the legislature enacted the law (under discussion) keeping in mind the welfare of society at heart. Thus, repealing a law is not favoured and is done only under exceptional circumstances. In case of conflict of interpretation of statutes, this maxim is applied.
This can be seen in Rogers v United States: [4]
“As a corollary from the doctrine that implied repeals are not favoured, it has come to be an established rule in the construction of statutes that a subsequent act, treating a subject in general terms and not expressly contradicting the provisions of a prior special statute, is not to be considered as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all….” [5]
The provisions of the special rule are preferred over general rule as they are meant to address that subject in greater detail. This may manifest as exceptions to the general rule as seen in:
Lalonde v Sun Life, [6] Justice Gonthier had used these words in his opinion:
“The principle is, therefore, that where there are provisions in a special Act and in a general Act on the same subject which are inconsistent, if the special Act gives a complete rule on the subject, the expression of the rule acts as an exception to the subject-matter of the rule from the general Act.”[7]
How is this Maxim important?
This maxim has been widely used in cases, where there is a conflict between general and special provisions of an act or different acts. It has helped our judiciary in the interpretation of statutes.
During interpretation of statutes when we are looking for context and purpose we use:
Noscitur a sociis;
Ejusdem Generis;
Generalis Specialibus non derogant.
Using this maxim along with other interpretation tools provides a better understanding of various statutes thus aiding in implementing the law in a better fashion and preventing repeal.
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Situations when Generalis Specialibus Non Derogant is used
This maxim is used in the interpretation of statutes. To decide which statute is valid in which case, there should be a conflict between an earlier and a later statute. Examples of this can be seen further in this assignment under the topic: Case Law.
There could be a question on the scope of the law in question. What is the scope of a special law and what is the scope of general law with respect to the problem?
Example: Suresh Nanda vs C.B.I [8]
There are 2 acts that provide for impounding of passports:
Criminal Procedure Code; [9]
Passports Act. [10]
In this case, the petitioner lost access to his license as the result of the procedures of a case in which he was the accused. His passport was seized by C.B.I., thus, he couldn’t travel.
In this case, there was a conflict between section 104 of CrPC and section 10(3) of the Passport Act.
The court decided that:
Since impounding of passports are governed by special legislation namely the passports act, normal CrPC provisions concerning impounding shall not be attracted, the courts or the police can at best seize a passport, but for impounding (which is far more enduring and continuous possession) passport authority would have to be approached– and the authority can take a decision on whether it would be impounded or not…[11]
In this case, the scope of the law under CrPC was defined by saying that the courts or the police cannot impound but can only seize a passport. As impounding a passport has far-reaching and permanent consequences, special law provisions will prevail to provide a better remedy to the petitioner.
Generalia Specialibus Non Derogant in case of Non-Obstante Clauses
In the case of the non-obstante clause (clauses in which notwithstanding is used), it is important to note the intention of the legislative body. The intention of the legislative body defines the aim with which that particular act was enacted.
In the case, KSL and Industries Limited (“KSL”) v. M/s Arihant Threads Limited (“Arihant”) and Others: [12]
The property of Arihant was to be auctioned as a result of an inability to pay the debt to IDBI bank. IDBI bank had an ex-parte order in this regard. But Arihant was unable to pay and the highest bidder for their property was KSL. Arihant opposed the selling of their property to KSL by filing this suit.
There was a conflict between Sick Industrial Companies (Special Provisions) Act, 1985 (“SICA”) and Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (“RDDBFI”).
Justice Thakker, in this case, said that since section 34 had an overriding clause of RDDBFI, it was supposed to be considered superior to SICA. This was based on the maxim- Generalis Specialibus non Derogant– the later general act did not repeal the erstwhile special act (in this case SICA).
But, Justice Altamas Kabir observed that in view of a specific exception to Section 34 (1) carved out in Section 34 (2) which states that the provisions of RDDBFI Act shall be in addition to and not in derogation of SICA, it is clear that the intention of the legislature was that SICA would prevail over RDDBFI. [13]
In this case, the interpretation rule(Generalis Specialibus non Derogant) was not followed.
The Supreme Court relied upon the observations made in LIC v. D.J Bahadur [14] wherein it has been held that in determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the perspective. [15] For certain purposes, an act may be general and for certain other purposes, it may be special. [16] Thus, to give justice to the purpose of SICA it was held as a specific law.
This judgement is important as it discouraged customary and mechanical application of this maxim and set a precedent where the objective of the law and its purpose in that particular case was given utmost importance.
Case Law
Following are the case laws where this maxim was applied:
Azad Transport Co. v. State of Bihar (2016)
Tax is a specialized field. VAT is a special provision and rules in CrPC are considered to be of a general nature. The government made law with respect to a particular field thus, the specific law gains superiority over general laws.
State of Gujarat v. Patel Ranjibhai [17]
Conflict arose with respect to section 33(6) and section 35 of the Bombay Sales Tax Act,1959. It was decided that with respect to unregistered dealers 33(6) will prevail over 35 as it was considered a special provision and dealt with their interests in a better manner.
Limitations of Generalis Specialibus non Derogant
The meaning of this activity implies that specific law is given superiority over general law enacted later.
In the case of General Manage Telecom v. M. Krishnan and Anr, [18] it was held that, if there is any claim regarding telephone bills then it is to be addressed under the Indian Telegraph Act, 1985 and not under the Consumer Protection Act. This is through the maxim of Generalis Specialibus non Derogant– by application of this maxim, the Consumer Protection Act is considered general law.
But, the application of this maxim negates the use of the principle:
Harmonious construction.
Principle of the election.
It is evident that more than one form of remedy exists for the same issue under two different acts. Thus, the courts should perform harmonious construction and principle of election.
Principle of election means that the remedy to be applied should be left to the discretion of the concerned/aggrieved individual when there is more than one remedy available.
Even if the remedies do not comply and are different to the point of inconsistency- the concerned person should choose which remedy he/she prefers. This is because each remedy is available and has been made available by the legislature for the welfare of aggrieved parties.
However, the mechanical application of this maxim denies a person a chance to choose and by implication, the special act is given superiority. This can give rise to unjust and dissatisfactory judgements.
Conclusion
Generalis Specialibus non Derogant means erstwhile special law is given superiority over later general law. This has been followed in many cases in India as well as the US and other countries such as Canada and the UK.
But, mechanically applying this maxim yields no good. It is important to note that:
Special law and general law are to be assigned to acts according to the case in question.
The intention of the legislature in enacting a specific law has to be taken into account.
The courts should always check first if the doctrine of harmonious construction and Principle of election can be applied or not before applying this maxim.
References
[1] https://en.wikipedia.org/wiki/Statutory_interpretation accessed on 12 April 2020
[2] R. v. Greenwood, [1992] 7 O.R. (3d) 1
[3]http://www.duhaime.org/LegalDictionary/G/GeneraliaSpecialibusNonDerogant.aspx accessed on 12 April 2020
[4] Rodgers v United States, (1902) U.S. 83 185
[5] Rodgers v United States, (1902) U.S. 83 185
[6] Lalonde v Sun Life, [1992] 3 SCR 261
[7] Justice Gonthier in Lalonde v Sun Life
[8] Suresh Nanda vs C.B.I [2008] SCC 3 674
[9] Criminal Procedure Code, 1973
[10] Passports Act, 1967
[11] Bharat Chugh, ‘Courts/Police cannot impound passports…Supreme Court holds’ (BHARAT CHUGH ON THE LAWS OF INDIA, February 8, 2013) https://advocatebharatchugh.wordpress.com/tag/passport-impound-how-to-release/ accessed on 14 April 2020
[12] [2014] 123 CLA 198 (SC)
[13] Satish Padhi & Vyapak Desai SUPREME COURT CLARIFIES: RECOVERY APPLICATION BY BANKS STAYED AGAINST SICK COMPANY (Dispute Resolution Hotline) http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/newsid/2695/html/1.html?no_cache=1 accessed on 14 April 2020
[14] (1981) 1 SCC 315
[15] Satish Padhi & Vyapak Desai SUPREME COURT CLARIFIES: RECOVERY APPLICATION BY BANKS STAYED AGAINST SICK COMPANY (Dispute Resolution Hotline) http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/newsid/2695/html/1.html?no_cache=1 accessed on 14 April 2020
[16] Ibid.
[17] 1979 AIR 1098
[18] MANU/SC/1579/2009: AIR 2010 SC 90
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This article is written by Debarpita Pande, a student from Maharashtra National Law University, Nagpur. In this article, the author explains the budget of 2020 with special reference to REIT.
Introduction
Real Estate Investment Trusts (REITs) have been a very popular investment vehicle for the investors lately. Though they were introduced in 2014 in India, the first REIT issue took place in April 2019 from the Embassy group.
Taxation of REITs – Then and now
Till this budget 2020, the REITs were enjoying incentives from the Government to develop a new investment asset class. However, the 2020 budget has posed major roadblocks in their smooth run.
REITs are allowed to invest in two ways in Indian legal landscape. They can invest either individually or through special purpose vehicles (SPVs). Also, REITs raise funds from unitholders to pool in assets.
Taxation structure before Budget 2020
Till the 2020 Union budget, these trusts had a single level of tax. This means that tax was deducted at source or the taxes paid by the SPVs. This means that till the present budget, the taxes on dividends paid by the REITs were exempt at the following levels:
Subject to special conditions, the asset holding SPVs were exempted from paying taxes on dividends distributed to REITs;
Similarly, the REITs were also exempted from paying taxes on dividends earned by SPVs;
Most importantly, from an investors’ point of view, the unitholders were also exempted from paying taxes on the dividends earned from REITs.
This model was akin to the global business trusts. However, this Union budget announced to levy taxes on the dividends distributed by the REITs in the hands of the unitholders, thus deviating from the practice followed by global business trusts.
Taxation structure after Budget 2020
The Budget proposed to amend section 10 (23FD) of the Income Tax Act, 1961, which allows tax exemption on dividends received by a unitholder from a business trust. Now, this was amended so that the dividend becomes taxable at the hands of the unitholders. However, the dividend received by a business from a business trust would not be taxed in the hands of the trust. It implies that this provision will deem to consider the dividend as an income in the hands of the unitholders.
How the changes in this budget may affect REITs?
When the burden of paying dividend distribution tax shifted to the hands of the investors, it made the REITs a less attractive investment option. This recent budget proposed to abolish dividend distribution tax at company’s end and made the individual investors liable to pay taxes on the received dividends according to their respective applicable rates. This move is less attractive for the investors from the taxation perspective.
Dividend Distribution Tax and the Investors
While the incidence of dividend distribution tax shifted from companies to investors, the section 80M of the Income Tax Act, 1961 was also proposed to be amended in the present budget. Section 80M of the Income Tax Act, 1961 is reintroduced so that the section will be used to deduct the dividends received from the domestic company on further distributions of dividends by the domestic companies.
Thus this amendment has done away with the exemption given to the investors who earned less than 10 lakhs as dividends. It meant that investors did not have to pay tax on the dividends received by him if the amount did not surpass 10 lakhs. However, this amendment does not recognise this exemption. This means that investors have to pay tax at the rate of 10% irrespective of the dividend amount received by them. While this amendment was proposed, the Finance Minister said that these changes will ‘increase the attractiveness of the Indian equity market and to provide relief to a large class of investors’. However, shifting the burden of DDT to the investors will be counterproductive.
This move of shifting the burden of dividend distribution taxes to the investors conflicts with the government’s efforts for encouraging REITs which in turn provides for tax stability to long-term infrastructure investors.
There are a number of Indian promoters who follows a shareholding pattern of that of a trust. This amendment may directly hit those promoters. The Indian promoters who receive dividends from domestic companies, will be taxed at the rate of 42.74% which is higher than the previous rate. On the other side, the investors who are non-residents, may enjoy lower tax rates as stipulated in the treaties in force.
This rate of tax on resident investors is higher than those of tax-efficient jurisdictions where the rate of tax ranges in between 5% to 15%. This anomaly between the resident and non-resident investors may dampen the interests of the Indian investors as those promoters holding shares through trusts would be adversely impacted.
One of the major grey areas of this new law regarding dividend distribution tax is that when an Indian Company receives a dividend from its foreign subsidiary. Before this, the Indian companies who were receiving dividends from foreign companies, were subjected to 15% tax when they distributed dividends to shareholders. Now, this amendment allows deduction in cases of dividends received from domestic company only on further distributions. No provision is there for cases where dividends are received by the domestic companies from their foreign subsidiaries. This results in extra drain of money in form of taxes and eventually reducing the profitability.
Impact of Waiver of Dividend Distribution tax on REITs
This provision in the Budget 2020 has a detrimental effect on REITs especially. According to SEBI (Real Estate Investment Trusts) Regulations, 2014, the REITs are mandated to pay out ‘90% of net distributable cash flows as dividends’ to unitholders. They are not allowed to hold on to surplus income for their growth of portfolio which are on the other hand allowed for the listed companies. Now, when these dividends are taxed at the hands of the investors, it surely reduces the yield for them and finally making them less attractive.
This move has been receiving a lot of criticisms. A renowned Partner and Leader of PwC, (see here) said that changes in DDT is an overall positive change which can prove to be beneficial for small shareholders and MNCs, however “one-piece which needs to be relooked at is the increase of tax for InviTs and REITs, especially since there was a separate carve-out from DDT to these players under the existing tax regime”.
As mentioned earlier, the dividends received by the REITs from the investee company were earlier tax exempted. The unitholders of those REITs are also not taxed. So when the tax exemption is withdrawn, it results in lesser yield for the unitholders. This move by the Government might prove to be detrimental when the country is in need for long term funds for development of infrastructure. If these exemptions still existed, then it would have likely attracted investors because they usually prefer to invest in long term projects only when there is proper consistency of policy decisions.
This move has also been well received by some. According to Kamal Singal, MD and CEO, Arvind Smart Spaces says that this waiver of dividend distribution tax and total exemption on income incurred by the sovereign funds in infrastructure will benefit and increase funding and growth in infrastructure sectors. However, he also recognises the ill effects of shifting the onus to the investors which in turn might dissuade them from investing in these sectors.
Effect of this move on Government projects and policies
The Government move to tax dividends in the hands of the unitholders may backfire its own policies and projects. This will jeopardise the fund-raising plans of developers who intended to monetise assets through REITs. REITs are such instruments through which funds are raised from the investors after pooling in assets and taxing the dividends given by such trusts in the hands of the investors can prove to be counterproductive.
In early February group of industrialists planned to approach the Finance Ministry regarding this change in the tax regime (see here). The group said that this uncertainty in the tax regime might hurt the investment attitude of the foreign investors. According to them, this move to shift the burden on investors will jeopardise the plan of raising about 100 billion USD through REITs and INVITs.
These changes will also impact Government’s plans to list some INVITs There are large Government-run infrastructure companies like National Highway Authority (NHAI), Power Trading Corporation, PowerGrid Corporation which may get affected by this move as they were planning to monetise their roads and transmission assets through INVITs.
Laws and guidelines for REITs were introduced long before in 2014. However, India saw its first REIT as late as April 2019. Even after getting introduced in 2014, it took around two years to set off properly after the Finance Bill of 2016. This was due to the fact that the then Finance Bill of 2016 made the local tax framework consonant with the global tax framework with a single level of taxation. So, when India deviates from this global framework, the entire stimulus for REITs will dampen.
Indian economy is presently capital starved. REITs is one of the major instruments to pull in capital but this opportunity can be lost in the darkness of the unstable taxation regime. This present budget will fail to provide any relief to the existing investors. This is not only hurting the present but also may continue to hurt in the future.
India REIT and INVIT market has managed to garner interest of some of the largest global institutional investors, pension funds as well as sovereign wealth funds. Big diverse entities like GIC Private Limited of Singapore, Blackstone Group LP, Brookfield Asset Management Inc., Canada Pension Plan Investment Board (CPPIB), and The Ontario Municipal Employees Retirement System (OMERS) have also shown interest in the Indian REIT markets either as significant investors or as sponsors. Recently, the sovereign wealth fund Abu Dhabi Investment Authority expressed interest and has been involved with Reliance Jio for its fibre to home assets which has been created into an INVIT At the same time, this budget may impact their investments with a long term view of around 10 to 15 years eventually hurting their sentiments and reliance on the Indian market. Investments are always made with a certain tax implication in mind and an unstable taxation structure is never a lucrative option for an investor. Investors tend to lose interest in that market leading to capital exportation with higher overseas issuances. In this scenario, the Government will have to bear a loss of securities transaction tax and other related taxes imposed on trading on units and these will cumulatively affect the Government exchequer. This entire phenomenon may lead to a mess in the Global Depository Receipt (GDR).
Conclusion
India’s second REIT, the Mindspace REIT has hit a roadblock due to this sudden change in the budget. This was supposed to raise Rs. ₹1,000 crore by the selling of new shares but has now become contingent on the revocation of this move by the Government. It has increased the apprehension of making the REITs less attractive to the investors.
The Finance Minister introduced this exemption to bypass the cascading effect of the taxes. This clarifies the stance of removing dividend distribution tax on direct equities however, it becomes unclear as to why it has not been explicitly removed from the pass-through instruments like REITs, INVITs or mutual funds. If this is not given immediate attention, then it might get crippled under the burden of cascading effect of taxes. While mutual funds have gained some popularity in India, REITs are too young to be crippled under this cascading effect of taxes.
Lastly, REITs have the potential to single-handedly fortify the Indian real estate sector. If this vital change is not rolled back then the dilapidated condition of the Indian real estate sector may overpower their potential of being the game-changer. To ensure an early recovery of the real estate sector in the country and to inject a significant boost in the economy, this issue should be addressed with immediate effect.
References
Aman Kapadia, ‘Budget 2020: InvITs, REITs Less Lucrative as Unitholders to Pay Tax on Dividends’ Bloomberg Quint (4 February 2020) < https://www.bloombergquint.com/business/budget-2020-invits-reits-less-lucrative-as-unitholders-to-pay-tax-on-dividends> accessed 11 March 2020.
‘No longer taxing: Abolition of DDT and its potential impact on Indian promoters’ Financial Express (4 February 2020) < https://www.financialexpress.com/opinion/no-longer-taxing-abolition-of-ddt-and-its-potential-impact-on-indian-promoters/1854772/> accessed 9 March 2020.
Lalatendu Mishra, ‘Taxing investor on dividends will hurt REIT, InvIT funding’ The Hindu (Mumbai, 3 February 2020) < https://www.thehindu.com/business/Industry/taxing-investor-on-dividends-will-hurt-reit-invit-funding/article30728767.ece> accessed 11 March 2020.
Vikas Vasal, ‘Taxation of dividends, back to classical system’ (Livemint, 5 march 2020) < https://www.livemint.com/news/india/taxation-of-dividends-back-to-classical-system-11583405930260.html> accessed 11 March 2020.
Aarati Krishnan, ‘Dividend tax change: Who gains, who loses’ The Hindu Businesslline (7 February 2020) < https://www.thehindubusinessline.com/opinion/columns/aarati-krishnan/dividend-tax-change-who-gains-who-loses/article30764201.ece> accessed 13 March 2020.
Cyril Amarchand Mangaldas, ‘Dividend Distribution Tax Abolishment: Here’s Something Lost in Translation, Bloomberg Quint (22 February 2020) < https://www.bloombergquint.com/law-and-policy/dividend-distribution-tax-abolishment-heres-something-lost-in-translation> accessed 13 March 2020.
Kailash Babar, ‘Global funds seek review of dividend tax on REITs, InvITs’ The Economic Times (6 February 2020) <https://economictimes.indiatimes.com/industry/banking/finance/global-funds-seek-review-of-dividend-tax-on-reits-invits/articleshow/73973563.cms?from=mdr> accessed 13 March 2020.
‘Govt proposal on DDT to adversely impact fund raising plans of NHAI, PowerGrid’ Financial Express (11 February, 2020) < https://www.financialexpress.com/economy/govt-proposal-on-ddt-to-adversely-impact-fund-raising-plans-of-nhai-powergrid/1864881/> accessed 11 March 2020.
Sobia Khan, ‘Proposed dividend distribution tax on InvITs, REITs may hit six planned trusts’ The Economic Times (3 March 2020) < https://economictimes.indiatimes.com/markets/stocks/news/proposed-dividend-distribution-tax-on-invits-reits-may-hit-six-planned-trusts/articleshow/74450652.cms?from=mdr> accessed 11 March 2020.
Bidya Sapam & Swaraj Singh Dhanjal, ‘Mindspace REIT hits a roadblock’ (Livemint, 13 Feb 2020) < https://www.livemint.com/companies/start-ups/mindspace-reit-hits-a-roadblock-11581617108068.html> accessed March 11, 2020.
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This article is written by Mourisha Karnan, a student from The Central Law College, Salem, Tamil Nadu. In this article, the author explains the importance and the duties of a medical practitioner in a crime investigation.
Introduction
For any criminal case to be proved beyond a reasonable doubt to the satisfaction of the courts of law, a thorough and methodical criminal investigation is the foremost requirement. Majority of such cases involve an element of assault or injury to a victim & one or more scene of occurrences/crimes. A fair investigation must include (besides interrogation of concerned persons & others) identification & collection of various physical evidences including biological ones and interconnecting them before presentation in the courts of law. Evidently, therefore, the gathering of evidences must begin from the scene of crime itself & that too at the earliest. It is furthermore easy to appreciate that the investigation into offences against human body will warrant a fair knowledge of structure, function & its anomalies of human body at some or other point to corroborate & relate chain of events.
Medical Experts at Scene of Crime
Criminal investigation in India is mostly conducted by police investigators. The existing criteria of their selection & on the job training do not lay emphasis on requisite medical jurisprudence. The investigators are one of the first persons to visit scene of crimes & to plan & decide upon further course of action. Due to growing need & demand for objective, methodical and scientific methods of investigation however, investigating officers have started asking & arranging for scene of crime visit by Forensic Scientists & others.
Presently, scene of crime investigation teams in India do not have a medical man (Medico-legal expert/Forensic Pathologist/General Medical Practitioner) as a member barring few exceptions. Not surprisingly, therefore investigations usually lack quality in terms of interpretation of complex medico-legal complexities.
Similarly, photographs of scene of crime, howsoever well intentions maybe, at the best serve as good alternative but cannot substitute for a medical man’s observation, having visited scene of crime. The dictum of “Eyes cannot see what mind does not know” explains the above statement very well. Selection of areas focused or angles of photography make a lot of difference to the perspective in which a photograph may be interpreted by different men. A medical man can be of great help in guiding even an expert photographer in medico-legal aspects to extract what really is intended to be.
Original Evidence if Altered/Disrespected?
Though most of the biological evidences in the form of blood, seminal fluid, vaginal smears, hair, viscera, tissues, pieces of skin, nails etc. are collected & preserved by doctors, but almost always away from scene of crime, when the body has been shifted & transported to mortuaries, usually many hours or even couple of days after the first visit by investigating officers to scene of crime.
For example in cases of poisoning, vomitus found at scene of crime is known to have maximum concentration of poison. Whereas viscera collected much after consumption of poison (usually after most of the gastric contents have either been vomited out or evacuated by gastric lavage) obviously contains far too less concentration. It is not surprising therefore, that in many of these cases viscera test negative for the poison in question.
It is ironical but an unfortunate fact that police insists to preserve viscera at autopsy, whereas no sincere effort is made to preserve vomitus from scene of incidence or over clothing or even first gastric lavage sample.
Background Information with Doctors
This is all the more noteworthy in the light of the above mentioned fact, that the doctors recording & documenting medico-legal reports (autopsy reports included) have practically nil background information on circumstances of the case in many parts of the country including Madhya Pradesh.
Various recommendations regarding mandatory furnishing of relevant history of the case, panchnama, copy of FIR, scene of crime report, photographs as & when feasible along with requisition for medico-legal examination are seldom respected & complied. It is not a rare sight to find mere mention of “reported to be a case of assault” or “cause of death is unknown” in the columns of history of the medico-legal reporting proforma.
Relevant History & Facts of the Case do help in Proper Interpretation by a Doctor
Medical science (like any other biological science) is an inexact science. In a living case, the physical clinical signs & symptoms may be interpreted differently forming multiple differential diagnoses, which may be narrowed down to a few after thorough laboratory & radiological investigations and proper history taking.
In postmortem cases though, in absence of a detailed & reliable background information (history by attendants, if any present, may be one-sided, biased & unreliable) and with very limited access to diagnostic & analytical aids (combined with inordinate delays in dispatching collected materials, long pendency of cases at Forensic Science Laboratories, poor infrastructural facilities, lack of properly trained staff at FSLs), the misinterpretation of findings may at times be unavoidable.
Lack of Interaction, Communication & Liasoning between Investigating Officer & Medical Expert
The introduction of various artefacts like those due to transportation, storage, decomposition etc. with passage of time make it very difficult to interpret the findings correctly particularly in the current scenario where very few investigating officers talk to doctors directly regarding all such cases.
Lack of Motivation & Proper Training of Doctors in Medico-Legal Work
Majority of doctors performing medico-legal work are poorly trained & non-specialists in Forensic Medicine. The undergraduate curriculum & thereafter internship program of MBBS students, is unable to lay adequate emphasis on this obligatory duty towards state. Moreover, the doctors are least inclined & motivated to perform such duty with conviction & sincerity that it demands. Rather, they are usually found trying to avoid & sometimes resist on being asked to do medico-legal work.
Lack of Professionalism in Medico-Legal Duties by Doctors
Medical evidence, like medical profession in general, has traditionally been enjoying respect & reliance it deserved in the courts of law. However, various court judgments have started casting serious aspersions on medical reports in more & more number of cases and passing strictures on medical practitioners, as poor & non-corroborative medical evidences lead to poor rates of conviction in criminal cases.
Analysis Report of Biological Evidence Collected Not Made Available to the Doctor For Interpretation & Final Opinion
In many states including Madhya Pradesh, the medical officers collecting biological evidences, do not get reports of analysis afterwards to enable him to form/modify/substantiate his opinion, if any expressed immediately after medical examination, in the light of facts or observations as noted in his medico-legal report. Neither police nor prosecutors pay any attention to this missing link. It is clearly evident, that no uniform or standard operative procedure/protocol is in place regarding medico-legal reporting services. It is in the above mentioned background, therefore that the concept of visit to scene of crime by medical expert deserves sincere discussions & deliberations in our country.
What is intended to be achieved by a Visit of a Doctor to Scene of Crime?
Provides an opportunity to gain first hand knowledge of vital circumstantial evidences needed to decipher postmortem findings to answers to queries regarding time, cause & (more importantly) manner of death, time, mechanism & nature of injuries.
Minimizes misinterpretation of facts due to introduction of artifacts due to passage of time.
Most important time to judiciously select biological evidences to be collected in order to achieve maximum utility of their analytical reports. Irrational collection of evidence overburdening police & FSL staff can be avoided.
Best opportunity for interaction & liaison between various experts involved in the case i.e. Investigating Officer, Forensic Scientist, Fingerprint/Ballistic/Handwriting Expert/ Photographer.
Always a learning experience to a medical man may help in driving away sense of “not quite belonging to the task” & misconceptions regarding working of criminal investigation system. Strength & limitations of all the parties involved in the team are made known to each other. Reinforces medical man’s confidence in himself by acknowledging his contribution to the joint exercise.
An opportunity to explain importance of early analysis of an evidence in a particular case, objectives of analysis, precautions in handling or transportation and place where the analysis may be undertaken (it is not very rare to note at a very late stage during investigation that a bone preserved for DNA test was sent to another laboratory or tissue for histopathology being sent to FSL only to be returned back after a while as the concerned laboratory did not entertain such samples).
Limitations & Roadblocks
Lack of motivation, incentives & proper training of doctors in dealing medico-legal cases.
Poor interdepartmental liasoning & cooperation (between police & health as the later may have a feeling that this is not their job).
Absence of uniform medico-legal work guideline or protocol.
Inertia on the part of the investigating officers.
Visit may come out to be journey to one of very difficult to reach, unhygienic/dirty places on earth.
Crime Scene Investigation Kit for Medical Personnel
Surgical knives with spare blades, forceps, scissors, blunt probes.
Prerequisites:
On receipt of a request for a visit to scene of crime, a doctor should depart/accompany the team punctually.
Formal written requisition may not be made available before visit, however the same may be made available afterwards on return.
It is always better if team members including members of scene of crime units, investigating officer & doctor assemble at a common place before departing for the scene preferably at control room or police station, where the IO briefs the team of the preliminaries.
On reaching the spot, the doctor must first of all identify himself to all concerned.
Must carry scene of crime kit with him.
An assistant preferably a medical man (may be postgraduate student, an intern or even a colleague) is always an asset to have at scene for helping taking down notes or help in dissection, if needed.
An enquiry should be made as to whether an experienced class IV employee has been arranged or not to assist in collection & labelling of evidences and small dissections/ cleaning of body, if needed. If not it is great to have one of the seasoned morgue attendants, provided he can be separated.
Services of an expert/ trained crime scene photographer or fingerprint expert should be requested, if feasible.
Do’s & Don’ts at Scene of Crime:
A doctor is not supposed to touch or alter anything until the same has been identified, documented & photographed. He has to ask/inform the IO before moving anything. He should not lead but follow the police around the scene.
The most detrimental effect of a medical man’s visit can be encountered when he jumps the gun shortly after reaching & inspecting the scene by pronouncing about cause, manner, time of death or the weapon causing certain injuries. A guarded opinion can however be given, if other possibilities can reasonably be ruled out.
One of the very first things that a doctor is supposed to do on reaching is to check for any clinical sign of life, howsoever the onlookers may think it to be a futile exercise & thereby be certain about death. If otherwise, immediately he must arrange a call for an ambulance, simultaneously doing whatever he can at the spot to resuscitate the person.
If the person’s death is so imminent as to be certain of him/her not reaching nearest hospital before death & the person happens to be able to communicate, dying declaration must be recorded.
He must enquire about Brief history about incidence if available, Prior manipulations/handlings (before his arrival), Original position/posture of the body, condition of clothing & surroundings.
Go through the photographs taken prior to his arrival if any & ensure snapping relevant parts/areas from medico-legal point of view.
Make a sketch of position & condition of body in relation to surroundings and depict relevant details for example injuries in assault cases, ligature material, knot, suspension point in hanging/strangulation cases etc. in body diagrams.
Take notes of points of identification in unidentified bodies.
Description of clothing & signs of struggle/assault, stains, fibers/hairs or foreign objects found therein.
General observations about the scene, any evidence of struggle.
Description of rigor mortis, hypostasis, signs of decomposition etc. for estimation of time since death.
Presence or absence of defence wounds in hands/forearms in assault cases.
Markings of weapons, bullets, cartridges or cartridge cases must be done for identification after exercising due care to preserve hair, fibers, stains or fingerprints.
Pattern, approximate quantum & position of blood over body parts, at the scene or weapons must be described.
Any materials or evidences which are likely to be distorted or lost during shifting/transporting body to mortuary should be collected e.g. loose fibers or hair with adhesive tape, combing of loose hair from pubic region and perianal or vaginal swabbing in sexual assault cases, nail scrapping if indicated, swabbing of hands in firearm cases, ligature material.
All the materials like clothing etc. may be left in situ to be preserved during detailed autopsy.
Presence of drag marks or shifting of body from some other place must be noted.
Autopsy at scene of crime itself should always be strongly resisted. Body should rather be transported to mortuary wrapped in a plastic sheet.
It is best if the pathologist who attends the scene is the one who conducts the autopsy, particularly in the more complex cases. This is not always feasible, particularly in a busy or understaffed department. However, the information gleaned at the scene should be passed on to the other pathologist prior to autopsy.
Disadvantages from Not Visiting the Scene of Crime
Fresh injuries may be added during transit to mortuary.
Injuries may be masked due to onset of decomposition.
Rigor mortis may get broken down during transit.
Clothing may get disarranged, fresh tears & blood stains may be introduced.
Addition of fresh trace elements, dirt, stains etc.
Retrospective Visit to the Scene:
In a situation where a medical person’s visit to scene could not be arranged before dead body had been shifted, the same exercise done afterwards is still likely to yield positive results. Visit enables to gain better understanding of nature of surroundings, which is mostly different from the account of other people’s description. The same knowledge goes on to help immensely during cross examination in courts of law as well.
Measures to Increase Practical Feasibility of Doctor’s Visit to Scene of Crime:
The rationale & protocol of a doctor’s visit to scene of crime need to be incorporated in a uniform medico-legal manual, which is the need of the hour.
The general awareness regarding utility/contribution of a doctor at scene of crime needs to be augmented amongst police investigators, judiciary & Forensic Scientists. Induction & on the job training programs of these functionaries needs to incorporate medico-legal aspects involved in different crimes for their sensitization.
The curriculum of undergraduate medical courses needs to lay more emphasis on doctor’s contribution to scene of crime visits in particular & devising better alternative teaching & training methodologies to empower medical graduates to handle medico-legal problems in the field in general.
A separate cadre for medico-legal services is needed at state/central level to meet the requirements of criminal investigation or law enforcement system in the country
A clear & strong message is needed to be handed over to doctors entrusted with medico-legal responsibilities that this is an obligatory duty towards state & society and any laxity, indifference or negligence simply cannot be tolerated
Better & more frequent interaction is needed between law enforcement agencies & medical professionals
Doctor’s visit to scene of crime should not be designed to become a perfunctory, routine or casual exercise. Rather it should be carried out only in cases where there is a likelihood of a worthy outcome or a doctor demands it. For example: this exercise can be done away with in cases of recovery of a dead body from water or death from poisoning (unless the case is suspicious as in case of CO poisoning).
Conclusion and Summary
Conventionally, presence of a doctor at scene of crime had been an exception rather than a routine event. Doctors with their background of medical/medico-legal knowledge (with proper motivation & sensitization) can contribute immensely to the quality of investigation in vast spectrum of criminal cases. Police apparently is too busy, not sure about rationale behind doctor’s presence at scene. Doctors, on the other hand, are reluctant and consider this job to be “alien to their profession” quite often than not visit of a doctor to a scene of crime certainly brings down level of uncertainty/ indetermination of medical opinion regarding cause, manner or mechanism of death.
Investigators usually doctors about their shaky, hesitant or over defensive approach in medico-legal matters. The same approach leads to a battery of usually irrational, over defensive evidence collection during autopsy causing undue delay in investigation and a waste of already constrained manpower & resources. Concept of visit of a doctor to scene of crime needs to be introduced not as a routine & obligatory exercise but to be undertaken only in selected cases which warrant such an exercise.
References
Horswell J. The practice of Crime Scene Investigation. Florida. CRC Press. 2004; 195-238
Polson CJ, Gee DJ, Knight B. The essentials of Forensic Medicine. London. Pergamon Press. 1985; 574-589
Rao N. K. G. Text book Forensic Medicine & Toxicology. 1st Edition. New Delhi. Jaypee Publishers. 2010; 21-22
Fateh A. Medico-legal investigation of gunshot wounds. Lippincott Company. 1976; 44-60
Nandy A. Principles of Forensic Medicine including Toxicology. 3rd Edition. Kolkata: New Central Book Agency (P) Limited. 2010; 303-312
Reddy KSN. The essentials of Forensic Medicine & Toxicology. 30th Edition. Hyderabad: K Suguna Devi. 2011; 16-18
Mathiharan K, Patnaik AK. Modi’s Medical Jurisprudence & & Toxicology. 23rd Edition. New Delhi: LexisNexis. 2006; 24
This article is written by Anubhab Banerjee, from the School of Law, Alliance University. This is an article on blockchains and blockchain-related technology contracts.
Introduction
Technological developments have led us to a new age. All our day-to-day activities today are in some way or the other associated with the internet. Be it professional work, or studying, everything has been facilitated with the presence of the internet. A drastic change in the technological world has been the introduction of the concept of blockchains. The use of blockchains and the technology associated with them has helped evolve a concept known as smart contracts.
This article will put forth credible information on blockchains as well as the smart contract which are formed with the help of these blockchains.
Blockchain technology
All of us would have heard about the sudden breaking in of bitcoins in all markets across the world. To break it down into simpler words, bitcoins are a denomination of currency which is non-traceable i.e. if a person transacts using bitcoins the source for such a transaction becomes anonymous and cannot be traced.
Bitcoins have their own advantages though there are certain regulatory disadvantages which they hold with them. Such disadvantages are mainly associated with the level of secrecy maintained in such transactions using bitcoins which makes it impossible even for governments to track them. Hence, this gives rise to a number of illegal activities which are conducted through their use. This is where bitcoins differ from blockchains. Blockchains are something to which we can associate high levels of traceability and security.
Blockchains are nothing but the technology which was responsible for keeping records with regards to bitcoins. Blockchains simply signify a chain of blocks. To help understand it better we should break down the words block and chain.
Block is the digital piece of information which is available online whereas chain signifies the database which is used to store such information.
These blocks i.e the digital pieces of information can be divided into three parts:
The blocks which store information related to data, time and the amount involved in a particular transaction performed online.
The blocks which store the information about the people who are participating in a transaction.
The block which stores such information which helps distinguish a particular transaction from others.
How do blockchains actually function?
Whenever the blocks, mentioned above, store new data about a transaction, such data is added to a blockchain. Though this whole process is broken down into 4 simple steps:
First of all, a transaction should occur i.e. a transaction has to take place to initiate the chain.
The transaction must then be verified, with other public records. This job is however left upon the computer in the blockchain network.
The transaction is then stored in a block. The details of the transaction, the receiver’s digital signature and the sender’s digital signature are all stored in the same block.
Once the verification process is completed for a block, it should be given a hashtag i.e. a unique identification code to identify the transaction.
After such information is uploaded on a blockchain, such information becomes available for public viewing.
Are blockchains secure?
The next question which arises in our mind is whether such blockchains are secure or not. To understand this we must go a little deeper into how the information is stored in a blockchain. So as soon as a transaction is completed and such data is uploaded under a block, such data is given a particular identification number as discussed already. So the data under every block is stored under a chronological order. As soon as a new transaction is updated it is added to the bottom of the list in its concerned block and the process continues for every new addition.
Here comes the part where blockchains can be considered to be one of the most secured means for the storage of such data. This is because when a transaction or its details get uploaded under a block the hashtag it gets cannot be changed. Once the data has been added at the end of a blockchain, it is very difficult to go back and alter the contents of the block. That’s because every block contains a unique hash for itself which also includes the hash for the previous block before it.
This is where the important part comes in. Imagine a hacker wants to hack your transaction on Amazon and wants to make you pay double of the amount you are required to for purchasing a particular product. For this, he has to alter the code for that particular transaction and in the process of doing so, the identification number for that concerned block will change, while the next block will have the same hash code as before, which makes it traceable instantly. So, if someone wants to do so, he shall have to change the hash codes for every block possible to make it untraceable, which is practically impossible. Such proof being generated instantly does not make the data immune to hacking but what it surely does is makes such activities easily traceable. Thus, hacking such information becomes a big risk for hackers.
Blockchain technology contracts
Now that we have an idea about what blockchains are and how they function, we shall unlock into the concept of blockchain technology contracts. These kinds of contracts are also known as smart contracts.
A smart contract is basically a code which represents self-executing contracts between a buyer and a seller. This code itself controls the execution of the contracts as well as the transactions involved. These smart contracts are trackable and irreversible.
The main purpose of smart contracts is to allow trusted transactions and agreements to be carried out between anonymous parties without the need for a central authority regulating such transactions. The whole concept of smart contracts can be better understood with the help of the following three points:
They are self-executing contracts with the terms and conditions related to such agreements already enlisted in the codes.
The inventor of a virtual currency known as ‘Bit Gold’, Nick Szabo defined smart contracts as computerized transaction protocols that execute terms of a contract.
The transactions executed with the help of smart contracts are traceable, transparent and irreversible.
The basic use of smart contracts is to help its users exchange money, property, shares, or anything of value in a transparent and conflict-free manner without requiring the services of a middle man i.e. a lawyer or a contract analyst, etc.
Click Above
Advantages of blockchain technology contracts
There are several advantages associated with the use of smart contracts. A few of those advantages are discussed below:
Accuracy
Recording the data associated with the terms and conditions of a smart contract is done in an extremely precise manner. As any omission shall result in transactional errors and thus, there is hardly any manual work involved in it.
Transparency
Smart contracts provide the terms and conditions associated with them in a very transparent manner. Any person who wishes to enter into such a contract is very well aware of its terms and conditions before agreeing to it.
Clear Communication
There is no communication or considerations involved between two parties who enter into such a smart contract. Thus, the terms and conditions associated with them have to be very clear to avoid any miscommunication in context with such contracts.
Speed
Speed is one of the main features of smart contracts as these contracts exist over the internet and can be entered into in a matter of seconds.
Security
The highest level of encryptions available are used for such kinds of contracts. Hence they are one of the most secured things available over the internet. The aspect of security with respect to blockchains has already been discussed earlier in this article and the same are the features with regards to smart contracts.
Efficiency
As already discussed smart contracts are a derivative of speed and accuracy. Thus, efficiency is a by-product of smart contracts. As already discussed there is no scope for error in such contracts and hence, they can be utilised to their full potential.
Paper Free
The whole world has started using environmentally sustainable ways for daily operations for quite some time now. As environmental damage is something which is out of repair. Thus, smart contracts are a green initiative towards a greener earth. Smart contracts indeed help reduce the huge amounts of paper that are wasted for the purpose of maintaining written records for contracts.
Storage and Backup
Another problem with contracts written on paper is its storage and traceability. As firstly these papers end up physically occupying space and at a time when they are required it may even become difficult to search for such documents if not arranged properly. Though, when we consider smart contracts storage, backup and traceability isn’t even a real issue. As all of these documents are available online in the form of blockchains.
Saving
Saving in terms of money is a huge bonus which comes with the use of smart contracts. As the costs which would have been required to be paid to the middlemen i.e. lawyers, contract analysts, etc. in the purpose of drafting a contract are reduced to zero.
Trust
The high level of transparency and security provided by the use of smart contracts eliminates the risk of any kind of manipulation of such data stored in the form of smart contracts.
Guaranteed Outcomes
This removes the unnecessary need for litigation or court proceeding because of any discrepancies in the performance of contracts. Smart contracts are structured in such a manner that by agreeing to the terms and conditions of such contract the parties commit themselves to bind by the rules and regulations associated with the performance of their obligations under such a contract.
Scope in the future
Smart contracts are a thing for the future. It is mostly because of the non-complicated procedures associated with them and the ease of use associated with them. Once, such smart contracts become fully operational throughout the world, it’s going to be the reason for disrupting several professionals and their flow of work across the globe. A few of those professionals would include people in the banking sector, insurance, telecommunication, art world, music and film, education and many more.
Right now smart contracts are regarded to be more of a technological development with a lesser amount of legal or regulatory involvement in them. Though, the benefits which are associated with the smart contract are soon going to become the reason for them comes into the big picture. They are something which would be more often than not preferred by most companies and MNCs around the world because of the advantages associated with them as have been discussed above.
The enhanced security and traceability with regards to blockchains associated with smart contracts have already been discussed earlier in this article. Once these companies start regular use of such smart contracts it would be highly convenient for them in handling matters associated with consumer complaints or employee issues. As people would firstly accept the pre-existing terms and conditions for such contracts, which would automatically make them ineligible to reap any benefits out of the transactions if any terms and conditions are not fulfilled. Thus, no liability for the performance of such smart contracts would lie on the companies associated with them.
Smart contracts are not just a thing for the future, as they are already being used in several areas. Though, it is to be seen on how their increased use is viewed by the Governments and other regulatory bodies. As they can be present everywhere from stock-markets to real-estate to agriculture to education and to most other places wherever there is the possibility of a transaction taking place and a contract is being entered upon.
Conclusion
The concept of blockchains is still quite nascent and it will take some time to develop itself and involve more and more people in its use. Smart contracts in today’s date do not have much of a legal context to it, but the legal aspects of small contracts should also be looked upon carefully as at the end of the day they are ‘contracts’. Smart contracts can be considered to be without any loopholes though such is not proved yet as no one has been able to challenge them as such. Maybe in the future people would even come out with certain loopholes which are present in them and that’s when its actual growth starts, with such challenges coming on its way.
This article is written byParul Chaturvedi, pursuing LLB from Dr. R.M.L Law College, Bangalore. It deals with the impact of lockdown in Indian Courts and how the hearing goes in the virtual Courts for urgent matters during the lockdown period.
Introduction
The Plague of the COVID-19 outbreak in India led to a decision by the honourable Prime minister to declare a 21-day national lockdown for controlling the spread of the novel corona virus. It was noticed by the Supreme Court and all the High Courts as well in other states and metros to vacate the place. The High Courts of other states restricted complete functioning and heard extremely urgent matters by benches consisting of one or two judges. A decision to “close down” the Supreme Court premises with immediate effect and hearing on urgent matters through video-conferencing and Skype by the Judges, lawyers, and advocates of the Apex Court. The big move by the Supreme Court on conducting virtual hearings through video-conferencing. It should be done at the residence or chambers of one of the judges.The other judges join on the Bench and hear the matters from their homes or offices. On discussion with the Chief Justice and other judges, the Supreme Court’s e-committees chairman Justice D.Y Chandrachud directed e-committees of 23 High Courts and agreed that e-filing will be implemented in all courts as well as in trial courts across the country for hearing of urgent cases through video-conferencing. The video recordings of urgent matters will be present on websites of the courts and will be accessible by people.
The Supreme Court Bar Association and Supreme Court Advocates-on-Record Association spent hours on hearing the matter.The bench heard three matters via videoconferencing, sticking to the social distancing protocol aimed towards deflating the coronavirus pandemic. The Supreme Court premises, inclusive of the chamber blocks, can be completely closed down with immediate effect. Hearings will take place without public presence and most effective through video-conferencing, and Skype or through other digital means. For urgent filing of matters, procedure needs to be followed with one web page justification displaying urgency and the judge will decide the urgency and if the judge declines, he will hear the concerned lawyer on phone in the course of specified times only. During the meeting, they could accumulate that the judges are inclined to address all problems being faced by lawyers in the Bar regarding urgent matters, stated SCBA and SCAORA, which additionally issued a separate direction to its members,
“An app called ‘Vidyo’ might be available for download in all Android and Apple-based smartphones. The stated app will operate in all smartphones, desktops, mobiles, laptops, netbooks, iPads, etc. that have cameras,” the SCAORA said. Earlier, at some point in the hearing on 23rd March 2020, the Apex Court docket decided to seal lawyers chambers in and around its premises and only one court hearing urgent matters through video-conferencing. The bench said that it was considering shutting down its functioning and thinking about hearing urgent matters through digital means.
Here, in this article, the author wants to present the current scenario during lockdown how the Supreme Court or virtual courts deal with the urgent matters on court cases and in what way the hearing goes on in the virtual court. What are the sections imposed in the country during the lockdown period and procedure to file the case in the court? A major question is, whether this will continue after the lockdown is lifted? Is the tracking of cases also related to judicial delays?
Lockdown and Emergency
Meaning of Lockdown- A lockdown is an emergency where the order is given by an authoritative power to prevent a person from leaving an area or building and to keep people in safe custody.
Emergency- A state of emergency is a governmental declaration that normally suspends a few regular functions of the executive, legislative and judicial powers, alerts residents to exchange their normal behaviours, or order authorities companies to enforce emergency preparedness plans. It could also be used as a motive for adjourning rights and freedoms, even though certain under the Constitution.
Lockdown has been put under order Disaster Management Act 2005
The National Disaster Management Authority (NDMA) has issued directions and guidelines to the Centre, as well as all State/Union Territory governments to take effective measures to prevent the spread of COVID-19 in India.
A lockdown primarily affects two of our Fundamental Rights:
The right to move freely throughout the territory of India
The right to practice any profession, or to carry on any occupation, trade or business. These rights are given under
This is clear that ‘reasonable restrictions’ can be imposed on these rights in the interests of the general public provided it is done by a duly enacted law.
Article 360 of the Indian Constitution: Financial Emergency
Article 360 states that if the President is content with a situation that has emerged due to financial stability or the credit of India or any place thereof is vulnerable, the President may declare a state of financial emergency.
That period of time when such decree is in operation, the executive authority of the Union enhance to the route of any State to look over such canons of financial propriety as may be specified in the directions, any such guidance may also include:
A provision requiring the reduction of salaries and allowances of all or any class of person serving a State or the Union.
A provision requiring all Money Bills or other Financial Bills to be reserved for the consideration of the President after they are passed by the legislature of the State.
A proclamation issued under Article 360 will remain in force for two months unless before the expiry of the period it is approved by both the Houses of the Parliament.
Once approved it remains in force till revoked by the President.
No emergency under Article 360 has been imposed so far.
Punishment and Penalties for Violating Lockdown
There are penalties under the Disaster Management Act for violations of any orders passed by the relevant authorities
Penalties: 2 years of jail term only be imposed after conviction by a court.
Detaining a person by police who violated an order relating to lockdown offences are bailable
UnderSection 51 of the Disaster Management Act (Obstruction).
It is an offence if you restrict a government servant from obeying their duties, directions issued by the Centre/State governments or the NDMA.
Any violation of the instructions, and the orders by State Governments/local administration to enforce them, like a place of worship, coordinating a social event, etc, will all be considered an offence under this.
Section 2of the Epidemic Diseases Act, 1897 has the powers to take all necessary measures to contain an epidemic.
Section 2A empowers the Centre to take measures for inspections and detention of ships. States have invoked Section 2 of the 1897 Act to enforce orders for prevention to combat the virus.
Penaty Upon Conviction:
Up to 1 year’s imprisonment + fine. If your actions lead to loss of lives, then up to 2 years imprisonment + fine.
Up to 1 month imprisonment plus fine of Rs 200.
If the disobedience causes danger to human life, health or safety it leads to 6 months imprisonment plus fine of Rs 1,000.
Any breach of the lockdown can also be penalized under Section 188 of the Indian Penal Code. This provision imprisons any person who infringes an order by a public servant to refrain from an act or to negotiate with their property in a way.
It also leads to search what orders relating to the lockdown have been issued by the State Government and District Magistrate.
It offers punishment to an individual who makes or circulates a false alarm or warning as to calamity or its severity or magnitude, mainly to panic. Such a man or woman shall be punished with imprisonment which may additionally extend to one year or with fine.
Urgent matters before Court
Suo moto case
Meaning: “Suomoto” is aLatin phrase that has its genesis in Ancient Rome‘s legal system and literally converts to “on its own motion”. Like in divorce cases, a judge can act suo moto. It is a decision by a court or a government entity that takes an action on its own accord and not from a party for a motion to move to the court or the entity to act.
The Supreme Court and other Courts looked on Suo moto cases to avoid overcrowding and lack of basic facilities in prisons during COVID-19. A notice circulated to the Director-General of prison, Chief-Secretary of all states and union territories on steps taken for avoidance of COVID-19.
Suo moto cognizance of COVID-19 under Article 226 and 227, “Taking suo moto cognizance in the preceding circumstances, under Article 226 & 227 of the Constitution of India, it is stated that in all matters pending before the court and its subordinate courts, at which point interim orders circulated on 16.03.2020 and expired or will expire, that extended till 15.05.2020 or until additional orders, except the orders passed by the Supreme Court of India in any specific matter, during the intermediate period”
The court has passed the interim orders by itself as well as by the subordinate courts for liberty to look for appropriate relief.
The court directed for the said order to be uploaded on the website of the Court and communicated to all the Standing Counsel, Civic Authorities, Delhi High Court Bar Association, all the other Bar Associations of Delhi, as well as to all District Courts subordinate courts.
By issuing directives under Article 142 of the Indian Constitution, The Supreme Court has the power to lay down his order to all subordinate courts in India. The present situation delays judicial independence but it is also a test of judicial sensitivity, vision and expertise. It is explained below in a table
Term
Meaning
Judicial Sensitivity
Courts are sensitive towards migrant workers and poor
Judicial Vision
Hearing of case with video conferencing support
Judicial Expertise
Addressing technical issues relating to the epidemic of coronavirus
Preferred cases
Bail application (Supreme Court stays single bench order to not list bail applications during lockdown),
Hearing in matters of migrant workers,
Suspension of sentence,
Sureties and bail,
Release order before jail,
Availability of protection kits for doctors, police personnel working at the frontline,
Border blockade for emergency medical cases,
Condition of children in child protection homes,
Nizammudin religious assembly case,
Planning to introduce emergency parole and special furlough in prison rules.
Special filing guidelines laid down in court
The stakeholders approach the Judicial Registrar through email by condoning the urgency of the complaint by listing the date and time suggested. When a Judicial Administrative officer notes that the matter is extremely urgent and needs an immediate hearing on that day then he can contact the duty judge and convey the urgent matter for a court trial.
It legalises all transactions by Governments authorities using electronic records and puts in physical records.
For e-filing, Justice Chandrachud confirmed free facilities of scanning and uploading documents to lawyers and litigants during the lockdown period
Hearing
It is done by providing cubicles or portacabins, equipped with cameras, desktops etc; for video conferencing. The e-filing system has been developed for trial courts in the Supreme Court’s committee in collaboration with NIC and this is being used by courts after lockdown. The virtual court for e-challans under the Motor Vehicles Act, it is also used for summary cases and in difficulty on using e-filing the software has been modified
Hearing done in the Supreme Court:
Only hear urgent matters,
Every day after 6 pm sanitization is done after lawyers and staff vacate the place,
Incase lawyers need adjournment of any case he has to write the request application,
Providing Video conferencing facility for lawyers and judges and special room provided for lawyers in premises for video conferencing,
Introducing an app for lawyers to do the hearing from their offices,
For Supreme Court’s reporter, smart TV installed in the press lounge to see the proceedings of the court, especially for a journalist,
Release of prisoners to avoid overcrowding and to minimize the risk of virus infection in prisons.
Hearing done in Bombay High Court
Only hearing for urgent matters cover Nagpur, Aurangabad and Goa benches
Least prior case will get an adjournment
Lawyers have to request to inform registry if they want their case to be treated urgently in the court list
Avoid unnecessary overcrowding lock-ups in court
Hearing done in Securities Appellate Tribunal
Hearing only urgent cases
Entry only of lawyers, Chartered Accountant and one representative of the litigants
For case postponement, lawyers have been asked to write for registry of tribunals before 9.30 am every day and placed on bench on same day
Change in working time 11.30 am to 4.30 pm for avoiding traffic rush
Hearing done in Delhi High Court
Only urgent cases on emergency needs
Listing done on High Court registry
Bail granting case also on priority list High Court direct this to District Courts
To avoid the personal appearance of convicts
Use of video conferencing in extremely urgent case
The Supreme Court issued directives to the centre to issue basic necessities and medical facilities to migrant workers in view of nationwide lockdown. Petition filed in Court:
The advocates filed the instant writ petitions in public interest for redressal of hardship of migrant workers in various parts of the country. The relocation of the migrant labourers to government shelter homes/accommodations and provide them basic amenities and medicines. The steps put forward by the Government of India for the relocation of migrant labourers to relief camps with required daily necessities, directions were given by the courts to the state Governments and union territories to go with the directions given by the central government.
Facts of the Case: The case related to blocking of National Highway by Karnataka leads to dismissal of access to health services in Mangalore for Keralites dwelling near the Karnataka border resulted in loss of lives after the 21-day national lockdown declared on March 24th.
Issue: The case related to blocking of National highways by Karnataka this lead to infringement of Right to life under Article 21 that blockade lead to fatal result in Kasaragod as people relying on hospitals
Judgment By High Court:
Under Article 21 of the Constitution of India, states cannot block interstate transport for crucial services. The state government has no right to hinder National Highways; it is an infringement of Right to life under Art 21 and afflicted Right to Freedom of Movement under Article 19(1)(d)of the Indian Constitution. The High Court was compelled to pass the order while the delay led to loss of lives of many. The Kerala HC directed the central govt to intervene in the matter that the barriers elevated by the Karnataka govt on national highways joining the state of Kerala will be removed without delay to ease the transport movements transporting persons for urgent medical treatment crosswise the border between the two states.
Judgment of Supreme Court:
The Supreme Court decided a bundle of petitions from the Karnataka government. The High Court conveyed the guidelines allowed to the High Court which held that Karnataka’s road barriers resulted in refusal of access to health services which resulted in infringement of Right to life under Article 21 and also affected Right to freedom of movement under Article 19(1)(d) of the Constitution of India. The court passed the order to the Union government on the reasoning that arterial roads that connect Mangalore in Karnataka to Kasaragod in Kerala are a portion of the National Highway network and it is the duty of the Central Govt to assure that roads are kept free of barriers. Also, the court observed that the guidelines issued by the Union Home Ministry under the Disaster Management Act had free emergency medical services from the extent of lockdown.
Supreme Court Order- The order of the Supreme Court to the juvenile justice boards (JJBs) to release all children asserted to be in conflict with law residing in observation homes on bail until there are open and valid reasons not to do so.
File Petition in Court:
This petition has been listed on suo motu because of the COVID-19 plague which is wide-ranging in the country. These are children in conflict with law kept in various types of homes. It said that children kept in shelter homes care at this time, these became the basic priority to look in these children under Juvenile Justice Care and Protection of Children Act, 2015, should be protected.
Instructions:
Issuing directions to the Child Welfare Committee (CWCs), the Apex Court said ‘aggressive steps have to be taken against the impact of the coronavirus outbreak and special online sittings or video sessions to be considered, that may be taken to ensure that the children living in such homes and open shelters are kept away from the risk of harm from coronavirus.
Ways of Judgement:
Video-conferences or online sittings can be held to prevent contact while speedy disposal of cases and the Juvenile Justice Boards should ensure that counselling services are provided for all children in observation homes.
About 600 Indians from different parts of the country and 2,000 foreign delegates attended a religious assembly in Delhi’s Nizamuddin West from March 1-15 where more than 200 tested were positive for Coronavirus. The several smaller assemblies of Muslim community reaching a peak in the big meeting at the headquarters of the organisation. The organisation shares a common wall with the Nizamuddin police station and is nearby the famous shrine of Khwaja Nizamuddin Auliya. The assembly was attended by preachers from several countries, including Saudi Arabia, Indonesia, Dubai, Uzbekistan and Malaysia.
Issues of the case:
The Markaz of the Tablighi Jamaat at Nizamuddin is accountable for the transmission of the coronavirus infection. The markaz is guilty and punishable under the relevant sections of the IPC. A religious fundamentalist exposes large sections of the population to disease and fatality.The organisers committed a serious crime. The Disaster Act and Epidemic Diseases Act was enforced in Delhi and no assembly of more than five people was allowed under Section 144.
FIR Registered:
A case was registered by the Delhi Police against Maulana Saad and other officials of Tablighi Jamaat for violating the restriction referring to religious assembly. Sections under the Epidemic Disease Act,1897 and Section 269, 270, 271 and 120-B of the Indian Penal Code (IPC) have been put into effect. In the FIR, it has been stated that the assembly failed to take safety measures for the prevention and treatment of COVID-19.Suo moto cognizance of the religious assembly of Delhi’s Nizamuddin area which has imperiled several corona positive cases
The state has to take all control standards and essential measures to carry out not only the instruction and quarantine guidelines issued by the central government, the state government to regulate the widespread of deadly novel Coronavirus.
Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc
The Supreme Court in the act of its jurisdiction authorizes such decree or make an order which is essential for performing complete justice in any cause or matter awaiting before it, and will be enforceable throughout the territory of India.
Subject to the provisions of any regulation made in this behalf via parliament,the Supreme Court with the complete territory of India. shall make an order for the secured attendance of any personand investigation or punishment of any contempt by itself.
Section 436A CrPC– Maximum period for which an undertrial prisoner can be detained
This section states that a person during the process of examination, enquiry and trial. In the Code, an offence shall sustain confinement for a period extending up to one-half of the maximum period of jail particular for that offence under that law, he shall be discharged or freed by the Court on his personal bond with or without sureties
Section 70(2) in The Code Of Criminal Procedure, 1973
(2) Every such warrant shall remain in power until it is cancelled by means of the Court which issued it, or until it is completed.
Section 97 in The Indian Penal Code– Right of private defence of the body and of property. Every person has a right, subject to the restrictions contained in Section 99, to defend:
Firstly- his personal body, and the body of any different person, towards any offence affecting the human body.
Secondly- the property, whether or not movable or immovable, of himself or of any different person, in opposition to any act which is any offence falling underneath the definition of theft, robbery, mischief or crook trespass, or which is an try to commit theft, robbery, mischief or crook trespass.
Section 164 in The Code Of Criminal Procedure, 1973
Recording of confessions and statements-Any Metropolitan Magistrate or Judicial Magistrate may, whether or not or no longer he has jurisdiction in the case, report any confession or assertion made to him in the route of any investigation below or any different regulation for the time being in force, or at any time afterwards earlier than the initiation of an inquiry or trial. Provided that no confession shall be recorded with the aid of a police officer on whom any power of a Magistrate has been conferred underneath any regulation for the time being in force.
Tracking of the cases in courts: A bigger Challenge
It is one of the core issues for judicial delays. The role of the Administrative system is to track the new and current cases during the appointment of judges in an assigned court. Cases that need debate, argument, discussion are adjourned to the next date and the number of pending cases remains unchanged. The biggest dilemma before the court is an increase in pending cases day by day like 500 cases pending before the constitution benches which are to be settled. If cases are pending in Supreme Court it impacts lower Courts and High Courts the case will go on delayed and result in bigger obstacles for lawyers on this court. It is a chain of cases the mere decision on followup cases on the Supreme Court indirectly impacts 40,000 related cases of lower courts. The Supreme Court operates only 185 days a year, remaining days it is closed which impacts the working of the other courts such as High Courts and Lower Courts the apex court consideration is cited in these courts. Small negligence by the Apex Court opens a room for arbitrary interpretations for lower courts.
Pendency of cases during Lockdown:
Leads to further adjournment of cases during lock down result in fraud or conspiracy to those related to scam or financial abuse get more time to play crooked with the evidence.
Some accused in jail pending bail proceedings need to spend longer time in custody .
Adjournment in non-urgent cases in favour of urgent case proceedings leads to delay injustice.
On reopening of court the new cases will appear immediately after being filed result in old and notice cases appear in rosters list this led to increase in judicial times
Advantages of Virtual Court during Lockdown
The filing of lawsuits online and the processes being implemented for legal notices to be issued digitally.
It compelled the Indian judicial system to adopt modern technology to reduce the cost of administrative resources involved in the appearance of jailed accused in the courts.
There is loss of revenue due to the slow functioning of the courts, estimated to be 0.5 percent of India’s GDP. The coming of technological enhancement in the judicial proceedings shall play significant roles in the Indian legal system.
Conclusion
The virtual courts video-conferencing for urgent matters during the lockdown and cutting down of administrative costs resources, backlog of cases reduced due to virtual hearing and adoption of modern technology by Indian courts. Despite several advantages, the challenges faced by Indian courts in lockdown situations is huge pendency in courts- about 60,000 matters in the Supreme Court docket and 87% in subordinate courts as per mentioned in news. The lockdown has affected the normal time taken to dispose of the matters. Appointments of Judges and filling vacancies to deal with caseload put up COVID-19. One advantage of virtual hearing is that it speeds up the process of Justice.
Secondly, venture the dedication of urgency, how to outline urgent matters that contain a violation of fundamental rights such as involving writ of habeas corpus. Any complaints towards the public authorities such as police officers to misuse his strength
Thirdly legal professionals in litigation and working in legal firms, concerned with no work or lay off which are subject to evaluation of the courtroom registers. According to preference of cases, the count comes up on the docket least they invite the judges. So, what are the nominal cases taken up by the Apex Court? So what is the precedence of the cases taken by the Supreme Court? Recently, Bar Council of India requested the Prime Minister in a written letter to address all state Chief Ministers to grant 20,000/- per month subsistence allowance to young lawyers during lockdown as relief for needy and who are not financially settled lawyers, it’s a good initiative taken by BCI. The Indian court system should adopt indispensable service models.
This article is written by Arush Mittal, a student currently pursuing B.A. LLB. (Hons) from Hidayatullah National Law University. This is an exhaustive article which deals with the current scenario of the coronavirus crisis and talks about the professions that are flourishing at this time.
Introduction
The outbreak of the novel coronavirus has brought the world in the midst of the biggest pandemics of the century. Coronavirus causes a severe acute respiratory disease that originated from the Wuhan province of China that has turned into a global pandemic.
A lot of businesses are being affected due to this mostly on the negative side but there are a few professions that are flourishing at the time of this crisis. Flourishing of these professions does not necessarily mean only making a profit out of their jobs, these professionals are helping out the infected people and are trying their level best to stop the virus from spreading.
Currently, India has reported thousands of positive cases and these cases are rising day by day. Professions such as data specialists, scientists, researchers, etc are flourishing. The main focus, however, is on the doctors, nurses, medical stores, grocery stores, military personnel, policemen as they have dedicated every second of their lives to save the common people from the deadly coronavirus.
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Professions which are flourishing in the time of Coronavirus Crisis
The coronavirus was first declared as an epidemic and then a pandemic by the World Health Organization (WHO) when it had spread to over 110 other countries. The demand in certain professions is increasing due to the spread of the deadly coronavirus. There have been reports by various organizations that say that a lot of companies have reported an increase in job posting for researchers, data specialists, healthcare professionals, etc.
Employers are hiring those employees who can perform activities such as communication, research, and medical assistance. The jobs related to the coronavirus crisis range from behind the scenes to the frontiers such as doctors and nurses. Some of the flourishing professions at the time of the coronavirus crisis are listed below:
Data Specialist
A data specialist transfers information on paper to electronic systems. Data specialists are mainly employed in corporate IT departments, but also work for government agencies or provide help to the healthcare departments. The main work of a data specialist is to analyze and verify data. It has been noticed that there is not just a need for people to help patients diagnosed with coronavirus but also to look at the statistics of those people who are even slightly related to this virus.
Data is playing a crucial role during the outbreak as it examines the estimated number of cases reported in the countries because it is not easy to find the exact number of cases. Companies are looking for those data specialists who can work from their homes to analyze this virus and reveal more about their data. This job basically requires people who can think rationally regarding the data while paying attention to every minute detail and are adaptable to changes as they would play a major role in analyzing the data related to the coronavirus which would help other professionals.
Scientists
Scientists have never refrained from working as they are the ones that can find the cure for this deadly coronavirus. There has been an unprecedented demographic challenge of keeping 1.3 billion people free from the infection and struggling with limited budgets that have been allocated to the scientists. The scientists of the country have deployed themselves overtime to provide small as well as big solutions. The solutions that the scientists have provided are predicting statistical trends, making models related to them, preparing testing kits and also making low-cost ventilators.
Few scientists are mass-producing masks and hand sanitizers and the others are working tirelessly towards finding a cure for the coronavirus. Due to this health emergency, a lot of scientists have asked the government for some measures that would enhance their research related to this virus. The scientists had made a statement requesting the government to keep research laboratories operational which are working intensely on finding a cure for the coronavirus. A lot of scientists are also attempting to create social awareness about this virus. They have asked the government for their support so that resources can be exploited in their favor.
Indian has been criticized for its poor mass testing capability owing to the scarcity of the testing kits. Scientists at the CSIR – Institute of Genomics and Interactive Biology (IGIB) found a solution that would help in the fast testing of the people. A team had prepared a paper strip based testing kit that would help in the detection of the coronavirus under an hour after the test. This test kit would cost less than 500 Rs. so the expensive machines which are currently used to test the virus can be done away with.
There have been scientists who are developing sequencing strategies so that a mass-barcode screening is possible. This would help the public health authorities manage the outbreak and design potential regions or targets for screening. Teams of scientists are also working to focus on how the virus reacts with ultrastructural tools. Scientists have also been working on rapid diagnostic tests which would take about three months.
Researchers
Researchers and various research centers have been researching intensely about the coronavirus. This profession is definitely flourishing at the coronavirus crisis. The government of India has launched a nationwide Research and Development (RnD) initiative to combat coronavirus, which neither has a medicine nor a vaccine. There has been a study that shows a unique mutation in the Indian genome which needs to be studied further for better understanding.
The International Centre for Genetic Engineering and Biotechnology (ICGEB), which is based in Delhi has performed intense research on the coronavirus from various geographical origins such as India, Italy, the US, Nepal, China for the identification of features related to the genome in the COVID-19 virus. Researchers have studied that the specific genetic and miRNA spectrum must be the basis of treatment management.
The Department of Science and Technology – Science and Engineering Board (DST-SERB) has announced several special research projects. The first set of 5 projects have been selected for further development into implementable technologies. These particular projects were selected after peer-review and assessment by a Special Expert Committee for COVID-19 projects. It is estimated that over 24,000 research papers have already appeared across the world in the last four months. These research papers have mostly been published in research journals and medicine research websites.
Doctors and Nurses
Doctors and nurses are the main heroes who are fighting the coronavirus by putting their lives in danger for their patients. A study has found that India has a shortage of an estimated 6,00,000 doctors and 20,00,000 nurses as for every 10,189 people, there is just one doctor and one nurse for every 483 people. This was revealed by the scientist who found that life-saving drugs cannot be accessed due to the lack of staff who are trained in the administration of antibiotics. The prescribed limit for the patient-doctor ratio is 1:1000. Doctors and nurses are trying their best to treat isolated patients and cure them. Healthcare workers have rightfully been dubbed as the frontline soldiers in the battle against coronavirus.
In Spite of the efforts of the doctors and nurses, there have been instances of healthcare workers being attacked by a few patients. Reports say that people have spat on the doctors and chased them away from their house. Some cases also reveal that patients directed abusive and vulgar language towards female nurses. This behavior is deplorable as these doctors and nurses are working day and night to help the patients from the deadly coronavirus and this is how the patients behave. Despite being injured, the doctors are not standing back. Zakiya Sayed, being part of such an incident said that this would not deter the doctors from doing their duties.
Medical Shops
The medical shops have flourished during the coronavirus crisis as the products are going out of stock because the common people are demanding a lot of medicinal products. Several countries across the continent like the US, UAE and other neighbouring nations in the SAARC have said that due to the shortage of drugs at a crisis like this, India should uplift the ban of various pharmaceutical products. The government had banned hydroxy-chloroquine and APIs thinking that it would increase the supply in domestic hospitals but that wasn’t the case.
Amid the coronavirus scare, the demand for surgical and N95 masks has increased manifold where they were being sold at a rate much higher than the actual cost. Surgical masks which are usually sold for 10 Rs. were being sold for more than 40 Rs. and the N95 masks which are usually sold for 150 Rs. were being sold for more than 500 Rs (this data has been taken from various news articles). The demand for the masks had increased up to ten times than the usual demand. The medical shops have flourished the most at the time of this crisis as they have made enormous profits exploiting the demand of the common people.
Sanitizers have started to disappear from the shelves of several medical stores and chemist shops. They are being sold at more than three times their original price. Sanitizers and masks were going out of stock which caused havoc among the people as they did not know what to do without these items. Even medicines have gone out of stock. People who go to the medical shops to buy life-saving drugs often return empty-handed. Even the distributors are out of stock, let alone be the retailers.
Grocery Stores
People have been told to remain at their homes while various shops have been shut down to minimize the spread of the COVID-19 virus. The Prime Minister of India, Narendra Modi called for a nationwide lockdown but the shops including ration shops dealing with the basic amenities such as food, fruits and vegetables, dairy, meat, and other animal products would remain open.
District authorities would help in the home delivery of such products to promote social distancing. Hoarding of essential items led to a huge profit for the grocery stores and a shortage of these essential items. It was ensured by the government that essential items that are available at the grocery stores would be made available to the public. This resulted in the flourishing of the grocery stores as these stores would keep running during this crisis.
Police and Military Personnel
The police have taken the matter in their hands to prevent people from socializing, therefore, minimizing the spread of the coronavirus. During the coronavirus crisis when the poor people did not have the basic amenities, the Lucknow Police distributed ration and food to those who were struggling to earn a single meal a day. Police have also been delivering medicine to the doorstep of old aged people.
In Chennai, a police officer wore a specially constructed helmet that looked like a microscopic image of the coronavirus to spread awareness about the spread of this deadly virus. As the number of coronavirus cases has been increasing, the Army is on a war-footing to set up more quarantine centers for their personnel and extend its medical infrastructure for the civilians. The Indian Army is prepared to extend its network of hospital and laboratory facilities to assist civil administration at COVID-19 hotspots. Additional training of the Army’s medical personnel at various hospitals to prepare them better for COVID-19 has also been taking place.
Conclusion
The surge of the novel coronavirus has caused major havoc in the country. There are various professionals who are trying to control the spread of this disease. The flourishing professions include professionals such as scientists, police and military personnel, data specialists, researchers, healthcare workers and it also includes the medical and grocery shops.
The government is doing everything it can do in its power to control the spread of this virus, the common people should adhere to these policies as it is being done only to protect them. The efforts of these professionals should not go into waste as they are risking their lives so we could have a better tomorrow.
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Indian and foreign filmmakers require various kinds of permissions and authorizations from the Indian Government in order to shoot films in various parts of the country based on the requirement of the script. A structured body like the Film Facilitation Office (FFO) has been set up by the Ministry of Information and Broadcasting in the National Film Development Corporation with a view to promote and facilitate film shootings in India. It acts as single window facilitation and clearance mechanism that eases filming in India.
The various kinds of permissions that are generally required are as follows:
Location related permissions: Based on the location of the shooting permissions from various authorities such as municipal authorities, police, authorized bodies are required for shooting in national parks, archaeological sites, public places, monuments, etc. Shooting films in sensitive areas of any state requires specific approvals. The permission of the Ministry of Home Affairs is required for shooting in Jammu & Kashmir or certain north eastern parts of India. Generally speaking the idea behind such approvals is to ensure that the concerned areas where shooting is sought to be done is not shown in a negative light thereby hurting sentiments of the people. These permissions can be processed by the Film Facilitation Office as a part of the application given by the filmmakers.
Filming with Governmental Authorities: In the event that the film requires to shoot with a Government Department or utilize their resources such as vehicles, uniforms etc. then special permits would also be required from the respective Government Departments.
Filming Animals/ Birds: If the script of the film requires filming with animals/ birds or filming of animals/birds then the filmmaker would require permission from Animal Welfare Board of India (AWBI). The AWBI may have bans/ restrictions to do shooting with or shooting of certain kinds of animals or birds.
Using drones to shoot: Using drones for photography and/or filming technology without appropriate permissions may lead to violations of privacy laws. Usage of drones has been regulated by the Civil Aviation Requirements issued by Directorate General of Civil Aviation. India recently introduced a policy for the importation and use of drones. Filmmakers need to ensure that they are adhering to the regulatory requirements of using drones in India for filming purposes so that they are not in violation of any law/ regulation which may be in force for the time being.
Immigration and importing: Foreign filmmakers need to ensure that they have appropriate visas for all of their personnel who will be shooting in India and relevant customs duties would have to be paid for the import of any kind of equipment that filmmakers may require for shooting their films in India. The FFO would be of great assistance for this process as well.
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Offences and violations to steer clear from by filmmakers while making and exhibiting films in India
Under the present Indian law context, the following need to be heeded by filmmakers so that they are not on the wrong side of the law:
Defamation: It is an offence under section 499 of the Indian Penal Code 1860. The contents of this offence include words spoken or written which are of such nature that they can harm the reputation of a person and that such words do not per se have any legal justification or excuse. The words are defamatory in nature, in other words, it would mean that when these words are used they expose another person to certain unhealthy and unappetizing emotions such as ridicule, hatred or obloquy thereby causing him to be avoided by other people in the society which may also have the likelihood of injuring his calling, profession or brand name in his business.
Obscenity: Morality, Obscenity and Censorship are precisely codified under the Indian penal code 1860 as offences under section 292-294. Basically as per the provisions of these sections collectively speaking the sale, letting to hire, distribution, public exhibition, circulation, import, export and advertisement of obscene are prohibited acts and are punishable with fine and imprisonment. The Indecent Representation of Women (Prohibition) Act 1986 prohibits the Indecent representation of women by making all acts as offences which portray women in an indecent manner. These acts are punishable with imprisonment and fine and they mainly include the written and pictorial Section 67 of the Information Technology Act 2000 makes the transmission and publication of obscene and corrupt content in electronic form a punishable offence. The Cable Television Networks (Regulation) Act 1995 is the law for prohibiting obscene content in programs being telecasted by channel on the television.
Hate Speech: This has been classified as an offence under the Indian Penal Code 1860. Section 153-A penalizes acts which promote enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and also doing acts which are prejudicial to maintenance of harmony. Section 295 A penalizes deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Section 505(2) penalizes making statements by any person which creates or promotes enmity, hatred or ill will between different classes of people in the society. Hence to summarize and put it in simpler words hate speech is nothing but a speech made by one or more persons against another person or group of persons which is of such nature that it not only disturbs or hurts the sentiments of the person against whom it is made but it in general creates and causes a sense of hatred against such group of persons thereby causing such person or group of persons to be looked down upon by other members of the society.
Sedition: Sedition is an offence under section 124 A of the Indian Penal Code 1860. It is quite similar to defamation and hate speech but however the prima facie difference to note here is that sedition refers to incitement of hatred against the Government of India in particular, whereas the other two offences talk about incitement of hatred among the general public and members of the society.
Anti Competitive Agreement: It is a type of agreement entered into between filmmakers and movie theatres. It is basically an arrangement entered into by virtue of an agreement wherein a filmmaker pre books all the screens of a multiplex theatre or a single screen theatre thereby disabling or reducing the exhibition of other films to such an extent they become commercially unsuccessful despite being good films such type of agreement is prohibited under the Competition Act 2002. A classic case for such a violation would be the case of Ajay Devgn dragging Yash Raj Films to the Competition Appellate Tribunal for challenging a tie in arrangement with single screen theatres thereby restricting his film to multiplexes.
Broad legal principles governing the Censorship of Films
The public exhibition of films is governed by the Cinematograph Act 1952 and the Cinematograph Rules 1983. There is a statutory body called the Central Board of Film Certification (CBFC). The broadcast of films on television including film songs, promos, music videos and music albums is governed by the Program and Advertising Code which is prescribed under the Cable Television Network Rules 1994.
The issue of censorship of films came up before the Supreme Court in 1969 in the case of K.A Abbas vs Union of India.[i] Over the years the Supreme Court and High Courts of various states have dealt with issues relating to censorship of films in India. The Delhi High Court in March 2011 summarized and explained the broad legal principles governing censorship in the case of Srishti School of Art, Design and Technology vs. Chairman, CBFC. [ii] They are as follows:
Obscenity must be judged from standards of reasonable, strong-minded, firm and courageous men.[iii]
If challenged, the burden is on the petitioner (Government) to prove obscenity.[iv]
The film has to be viewed as a whole before adjudging whether a particular scene or visual offends any of the guidelines.[v]
To determine whether a film endangers public order, the film must have proximate and direct nexus to endangering public order.[vi]
The courts do not ordinarily interfere with the decision of CBFC regarding certification unless found completely unreasonable.[vii]
Other general considerations
As revenue is generated and there is a flow of funds from one country to another there are tax implications and considerations as well which should form as an essential part of the film budget. Further, there are exchange control regulations that regulate and manage the way in which the funds are transferred across international borders. In order to attract foreign filmmakers, the Indian Government is working on granting tax rebates and subsidies.[viii]
Additionally, there are a few fiscal benefits which foreign and Indian filmmakers enjoy based on co-production treaties entered into by countries such as the United Kingdom, Spain, Italy, France, Korea, China, Thailand, Malta and New Zealand. The benefits vary depending upon the treaty that may be in force between India and the respective foreign country. The benefits include exemptions in import duties and taxes, permits to stay in the country for the entire filmmaking process until the film is released and various other kinds of fiscal benefits. The purpose of giving such benefits is mainly to attract foreign filmmakers to come to India and make films thereby promoting tourism, hospitality and economic development in the country.
While there are censorship regulations at present governing the exhibition of content in films and the content on Television but there isn’t any law or regulation governing the censorship of content available on the online streaming platforms such as Netflix, Amazon Prime Video etc. Among the various options to regulate the content on these online platforms some of the options that the Government is exploring includes a self-regulation code which will govern the content that is put on these platforms without government interference or a government monitored code that may require prior approval of the government before placing any content on the platform.[ix] The purpose of regulation of the content on these platforms is also to ensure that the content uploaded is not in violation of any law or regulation or also that it does not disturb any sentiments of any class of persons in the society. While certain laws such as the Indian Penal Code 1860 deals with the distribution of obscene content or crimes such as sedition and these may apply to the internet thereby may be applicable to the popular online streaming platforms such as Netflix or Amazon Prime Video as well but censorship laws under the Cinematograph Act 1952 may not extend to the Internet and thereby may not be applicable to these online streaming platforms.
To summarize and conclude Film productions from being an unorganized and unregulated sector has grown massively over the last couple of decades after getting regulated by various Government authorities thereby tapping into its real potential. While filming in a foreign country may seem a bit taxing, however filming in India has now become simpler and more attractive for foreign filmmakers and foreign film production houses with the introduction of the FFO, laws and regulations governing every aspect of film making from intellectual property rights till cinematography and various potential & existing fiscal benefits.
[iii] Observations of Justice Vivian Bose in Bhagwati Charan Shukla vs. Provincial Government, AIR 1947 Nag 1. Approved by Supreme Court in Ramesh v. Union of India, AIR 1988 SC 775, and cited with approval by Delhi High Court in Shrishti School of Art, Design and Technology vs. Chairman, CBFC W.P. (C) 6806 of 2010
[iv] Life Insurance Corporation of India vs. Prof. Manubhai D. Shah, (1992) 3 SCC 637
[v] . Director General, Directorate General of Doordarshan vs. Anand Patwardhan, AIR 2006 SC 3346
[vi] Rangarajan vs. P. Jagjivan Ram, 1989 SCC (2) 574
[vii] Bobby Art International vs. Om Pal Singh Hoon, 1996 4 SCC 1
This article is written by Khushi Sharma, currently pursuing B.A.LLB (Hons) from IIMT and School of Law, IP University. This is an exhaustive article which deals with industries which are getting more investments during COVID-19.
Introduction
COVID-19 being the most hyped-up issue in recent times has been in publication for almost four months globally and for almost two months in our Country. It has and still is enjoying the limelight to the fullest. All of us are mostly aware of what COVID-19 is, so I will not go into detail about what it is and rather focus on the impact which this crisis is having presently on investment in the industrial sector. This pandemic is not as light as people are supposedly taking it. It has been infecting people which has led to an adverse situation and an unthinkable circumstance for the society.
But on the contrary, Due to this virus, Indian investors are witnessing a full-blown bear market and the frontline BSE Sensex index has tanked 30% from its January peak. The earlier crash had seen the index lose 60% of its value. But in contrast, you will be amazed to hear that it has led to a good and a positive impact for some industries. Investments of such industries which I will talk about further in this article are being increased.
Though this virus is leaving negative impacts on the economy, people and of course corona beer, it is still making a good source of money for some industries at the same time. You will see, the investments of the industries that have been extremely moderate earlier are raised to a real hype and this is happening not only in our country but worldwide.
Industries which are getting more investments because of COVID-19 crisis
Now, we will understand in detail which industries are having increased investments and are being the actual primary suitors for the general public to resort to. Some of these industries are being noted below as follows:
Hospital
Hospitals are the only industries in business that will never run out of workload. In a way by helping millions inclusive of having a continuous increase in its investments. There has been a rapid increase in the investments of hospitals due to this pandemic. Many industries like Mercedes-Benz and Patanjali are investing in hospitals and helping in hospital equipment.
Hospitals are currently holding approximately and widely about more than four thousand citizens and not only holding but by also giving them all sanitations and required treatment for this virus. Every person, even those who have not been affected rushes there at the slightest symptom of COVID-19.
As you all know, it’s not only under this crisis that we see hospitals as the first place to go in need. This also happens in usual scenarios. In this present situation, people are becoming more and more conscious about their health and are ready to invest even more just for some consultation from these facilities. Just as we are talking about hospitals, we must not forget to appreciate the nurses and the doctors who have been working day and night to remove us from this crisis. Thus, according to my data, the hospital will be the primary and the most invested industry amongst all.
Pharmeticuals
Another important industry that never runs out of business is pharmaceuticals which work hand in hand with hospitals. Pharmaceutical industries might have investments at the same level as the hospitals. Rather than going to doctors and hospitals directly, people find it easier to just go to pharmacies and chemists and get medications for themselves.
The general increased investment in this area is because chemists and pharmacies are widely and easily accessible. This is also because they are more affordable for people rather than to approach hospitals, except in chronic and serious issues. Pharma stocks have seen a gradual increase in investment because of COVID-19.
The reason for increased investments in the present situation is because this can be treated only through ICU. The general public not only invests but is also keen to be informed about the researches and solutions which are in process for this virus. Moreover, due to this amid lockdown, people have been stocking medicines to a great extent. This is because people cannot get out of their houses so they have stacked up all the essential medicines.
Further, the government has been investing a lot in the treatment of patients and are investing in pharmaceuticals as well as hospitals. The department of Pharmacy has introduced schemes for pharma based growth almost worth Rs. 10,000 crores.
Diagnostics
Here comes another branch of the health industry that is diagnostics. Diagnostic centres are basically testing centres like centres for blood tests or for other types of body testings. Such centres also deliver reports of the test and make advisory comments which you have to get checked by a doctor. They are probably the most important centres in this crisis. Their work is to tell whether a person is infected with this virus or not. They conduct tests in order to find out the results. The investments in such industries have increased due to the fact that a lot of tests have been conducted on a regular basis.
The government has created various test centres in different areas and some private centres have also started conducting COVID-19 tests. This is at a great disadvantage as they are really expensive and people prefer government aid, which is why the government is investing in such centres. The people who are suspected of having this virus take this test once but the people who were tested positive of novel coronavirus have to take it various times to check whether they have been recovered by it or not which actually increases the investment in some way.
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Online Platforms
There has been a gradual increase seen in the online platform as it is the only refuge for everyone under lockdown. Every person resorts to online sources in one way or the other; either in a work form or an entertainment form. There has been an extreme rise in viewers of Youtube and I think a person of any age resorts to Youtube as it is the most widely used application.
Online usage has been also consumed by a huge level from the work aspect. Every person is working from home the only way of doing the same is through conferences or usage of the internet. This also increases the investment in these areas as extensive data is being used. The other online platform is none other Netflix, which is the home to millions right now. Coming back to investments, Netflix stands the most invested online platform because it is being used worldwide and by almost every person.
People are also investing in the online platform by showcasing their talents through different apps like Tik Tok and sharing their food recipes to Youtube and Instagram. Due to this increase in demand, their investments have become higher than the usual. With increasing workloads and even with the risk of being infected, the media has also been channelizing the current position of our country to its public on a daily basis.
The general public is more attracted to news and media instead of movies and series as some households are avoiding newspapers as it increases the risk of virus, the alternative for the general public stands the media and the news channels. As there is a full day coverage about this virus in the media; people can watch it anytime. There has been an increase in investment in the media industry due to this reason. It has also helped many small news channels to cover headlines and help the public in general.
Sanitary product manufacturers
Sanitary product manufacturers have been subjected to a Industries and manufacturers of sanitizers, masks, cleaning sprays, toilet papers and tissue papers were moderately invested industries earlier, but it has been hit with such extreme demand. Earlier, only a few people used to resort to sanitizers and masks but after the COVID-19 crisis, not even a single shop was seen with the stock of these.
Sanitizers and masks are hugely in demand, People went on buying them in numbers which left the other people who may actually need it without a proper supply, people started even selling fake sanitizers. Before this lockdown, people started stocking tissue papers and toilet papers and which left in lack of supply.
Online shopping sites
With this amid lockdown, the only source of purchasing things are shopping sites. As people do not go out of their houses, so the only option left with them is to purchase through online websites and applications. Though these apps and sites have set their priority to basic necessities and not on other things. Applications like Big Basket, Groffers, Amazon and Flipkart etc have seen an increase in investments. Due to this increase in demand, their investments have become higher than the usual.
Television
Another area which has seen an increased investment is the television industry, as all the family members are present in the houses and nobody has to go out, the television is the best leisure. The people who don’t have internet services, television still stand for their favourite past-time. As a huge public is watching T.V, the TRP (Television Rating Point) of the shows are actually increasing. As we all know the government has taken the initiative to start shows like Ramayana, Mahabharata and Shaktiman on Doordarshan. Due to the nostalgia one feels when watching these shows, Television has been subjected to a growing TRP.
Digitized payment alternatives
As we know this virus is very contagious and can spread through human contact very easily. Money still remains one of the very risky factors of spreading such viruses. People are realizing how highly dangerous it would be to transact via handing money. They have started adopting digitized money transactions.
There has been an increase in investment in applications like Paytm, Googlepay and Phonepe etc. As people are usually shopping online there is also an increase in using digital cards and the people are also not spending more and more on going out, so they have started saving money while increasing investments in the banks too.
Conclusion
These were the basic impacts which had on the investments of different industries. People have been scared because of this virus and are actually following the lockdown, due to which the best remaining alternative for past-times remains online platforms like Netflix, Youtube, and Instagram, etc. Another point is that the alternative for them to buy groceries and other essentials reach only to online shopping sites, due to which the demand of these industries have actually increased.
Media are channelizing the current information or news almost daily on a full day coverage which also increases the investment as more and more people are keenly interested in knowing as to what is the current status of our country. The most invested industry still stands to be hospitals in which the doctor and the nurses are actually working so hard to get the people out of this virus and recover them.
Pharmaceutical and hospitals work collectively, without pharmacies and people assisting it, the medications for the treatment would not be delivered and the process of recovery could not have taken place. The diagnostic centres also are very important for such a condition because they only inform people about their actual condition.
With the world running over face masks and sanitizers, some people are actually busy making them and giving them to people who actually need it. It is our time to return to all these services with our cooperation and standing together. We have to fight his crises together and also have to take care of our family.
This article is written by Bhanvi Juvekar, a law student at Unitedworld School of Law, Karnavati University, Gandhinagar.
Who are Pardanashin Women?
Pardanashin women are often confused with women who wear burkha. But this is a misconception. Pardanashin women are women, who have almost zero contact with the outside world. They live in their homes, they go from their father’s house to the house that they are married into. However, they never interact with the outside world. They only have relations with the men and women in their house, that too from behind a ‘purdah’ or ‘veil’.
This is known as secluded living. A Pardanashin woman is one who observes complete reclusion because of the custom of the particular community to which she belongs. [1]
The practice of ‘parda’ was seen as a benchmark of status. Women belonging to the elite class practised this custom in the 19th century in India. The practice of ‘parda’ was practised by many women in the Hindu and Muslim community.
In Satish Chandra vs. Kali Dasi [2]it was said that a woman of rank who lives in seclusion, shut in the Zenana, having no communication except behind the parda or screen with any male persons save a few near relations. [3]
Due to these customs over time, women practising this custom became completely dependable on the males of the house.
Because of this they:
Do not have the privilege to develop their own world view.
Remain inexperienced due to lack of interaction with other human beings.
Don’t have an education and are illiterate.
Cannot interact with anybody outside their household so they do not know what is going on in the world outside their own house.
Can be fooled easily as they cannot analyse a situation from many different angles: much like a small child who is dependent on his/her parents.
Because of the above-stated reasons, all affairs (legal or otherwise) of a pardanashin woman are managed by her husband or her other family members.
Pardanashin Women and the Indian Contract Law
Contract law in India is governed by the Indian Contract Act, 1872.
We enter into contracts every day- from buying groceries to buying a house. Although to enter into a contract and execute it safely, it very important to:
Understand the terms of the contract.
Comprehending the consequences of the concerned contract.
To understand personal stake/role in the said contract.
A Pardanashin woman is incapable of understanding and interpreting the contract after fulfilling the above three conditions.
Why is it so?
In the case- Ashok Kumar And Anr. vs Gaon Sabha, Ratauli And Ors. [4] it was observed as under:
It is not merely by reason of pardah itself that the law throws its protection around a pardanashin lady but by reason of hoe disabilities to which the life of a section of people living in seclusion gives rise to the disabilities and with which a pardanashin lady suffers. [5]
Because of her disabilities and inability to understand the terms of a contract a pardanashin woman can be easily influenced by anybody. She can be persuaded to sign a contract that is not in her favour and harms her. Anybody can use her disabilities against her for their own benefit.
The legislature understood this problem and detected a need to protect pardanashin women. They did this by protecting them under Contract law. [6]
She is protected by the provision for undue influence ( section 16) [7] that states:
A contract is said to be induced by “under influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
In particular and without prejudice to the generally of the foregoing principle, a person is deemed to be in a position to dominate the will of another:
Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
A pardanashin woman is susceptible to undue influence and therefore, the law throws around her a “Special cloak of protection” i.e. Where such a woman signs a sale, mortgage, gift or release, the person obtaining her signatures has to prove that the transaction was not only explained to her but also that she had understood the transaction and that there was no undue influence. [8]
The general practice of assuming that the person signing the contract has understood it is not followed in the case of a pardanashin woman. [9] The case of a pardanashin woman is considered exceptional and the other party has to prove that the pardanashin woman was not influenced and she fully understood the situation she was getting herself into just like any other reasonable person would.
Apart from other considerations applicable, if the document executed is not in the mother tongue of the executant, the law requires further that she understood the document and not merely heard its contents. [10]
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But, pardanashin term has been given a definite legal meaning. The only conditions when a woman can claim to be pardanashin are when:
She is illiterate;
She is ignorant as she has never set a foot in the outside world.
Considering the above two conditions, it is safe to conclude that any woman who is illiterate, ignorant, lacks experience and is incapable of understanding the terms of a contract can claim the protection given to pardanashin women under undue influence.
This has been stated in Laxmi Narain & Another v. Hubraja: [11]
Rules regarding transactions by a Pardanashin lady are equally applicable to an illiterate and ignorant woman, though she…may not be a Pardanashin. It is not by reason of the Pardah itself that the law throws its protection around a Pardanashin lady but by reason of those disabilities which a life of seclusion lived… [12]
It has also been stated in Ashok Kumar And Anr. vs Gaon Sabha, Ratauli And Ors: [13]
Where ignorance and illiteracy are proved to expose the woman concerned to the danger and risk of an unfair deal, it would be a perversion of the rule to deny in such case the protection, despite the helplessness of her state, merely on the ground that she is not a pardanashinlady. [14]
But this principle also applies to men as in Daya Shanker v. Bachi, [15] who by their physical or mental capacity are prone to easy influence and after inducement tends to enter into contract or transactions relating to purchasing and sale of the property. [16] The principle on which the protection by law is accorded to a pardanashin women is based on equity and good conscience. [17]
Since the other party has to prove that there was no undue influence, the burden of proof falls upon the other party.
In order to prove the other party has to establish that:
The terms of the contract were fully explained to her.
She fully understood the terms of the contract explained- just like any other reasonable person would.
She understood the pros and cons arising out of the contract and her role in it.
Her consent was free.
Both of these protections can be claimed only when somebody is completely pardanashin. Partial followers of this practice are not offered such protection. [18]
Case Laws
Case laws are being referred here in order to better understand judicial reviews in case of a contract with pardanashin women:
Ismail Mussajee v. Hajiz Boo, [19] it was held that a woman who goes to the court and gives evidence, settles rents with her tenants and collects rents and communicates in a matter of business with men other than the member of the family is not a pardanashin woman.
This case law shows that partial practice of the pardanashin custom is not given the advantage of claiming protection under the law.
Kalibaksh Singh v. Ram Gopal Singh [20] it was held by Privy Council that the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but also explained to, and was really understood by the grantor. In such cases, it must also be established that the deed was not signed under duress and also arose from the free and independent will of the grantor.
This case specifies what the other party has to prove in order to satisfy their duty of providing proof against the pardanashin woman.
Chidambaram Pillai v. Muthammas, [21] it was held that a pardanashin lady may not be illiterate. If she is fractional, excluded from social intercourse and communication outside void, she will fall in this category.
This case goes further to define the category of pardanashin women. It gives clarification by stating the necessary conditions for a woman to fall under the ambit of ‘pardanashin women’.
Conclusion
From the analysis of the situation of pardanashin women and studying various cases related to it, we can safely interpret that pardanashin women are prone to undue influence. They can be manipulated easily and can be taken advantage of.
In order to protect the interests of these women, the law provides them protection through the section of undue influence and places the burden of proof on the other party.
However, to ensure that no woman misuses these protections, the judiciary has in many cases defined the boundaries of the category-‘ pardanashin women’. They widened the scope of this category for all who are illiterate and unable to make their own decisions and also narrowed it so as to bar women who practice this custom only partially.
These methods protect the interest of pardanashin women and people who are illiterate and can be manipulated easily both.
[17] Tara Kumari v Chandra Mauleshwar Prasad Singh AIR 1931 PC 303. See also, https://blog.ipleaders.in/undue-influence-contract/ accessed on 15 April 2020.
This article is written by Rajat Chawda of the Institute of Law, Nirma University, Ahmedabad. In this article, the author tries to explain what smart contracts are and the pros and cons attached to it.
Introduction
In every contract, there are always three parties involved: two parties and the middleman i.e. the State. The role of the State is to keep a check whether the obligations under a contract are being or honoured or not. In case a party breaches an obligation of the contract, the other party has the right to approach the State and claim an appropriate remedy.
With the rapid development in technology, conventional institutions are also changing to make things effective and efficient. One such change is brought by smart contracts that try to eliminate the middleman and make the contract enforcement more effective and efficient digitally.
This post deals with how smart contracts make the life of an individual hassle-free, how smart contracts are created and in which situations they can be used and what are advantages and disadvantages attached to the smart contracts.
Smart contracts
What is Blockchain?
You must have definitely heard this buzzword when the bitcoin had bull-run in the crypto world whereby a single bitcoin cost was more than $10000 at that time. This is the same blockchain technology that provides the platform to make smart contracts.
A Blockchain is a shared and distributed ledger on which every transaction is recorded and linked together in an encrypted form only after being validated through a consensus-based protocol. A transaction is added to the blockchain only after validation, which ensures that it is the only version of the truth.
‘Immutability’ and ‘Transparency’ are the two benefits attached to blockchain technology which makes it more useful. The records are immutable because one cannot change the record once the transaction is made and it is transparent because every person related to that transaction has the same access to that transaction, mostly because in a blockchain, every block has its own hash identity which can easily be traced.
Definition of Smart Contracts
After explaining why smart contracts are revolutionary and beneficial and explaining the blockchain technology on which the whole idea of the smart contracts is based upon, what exactly is meant by a ‘smart contract’?
In one line, smart contracts are the lines of code that are stored on a blockchain ledger with certain predetermined terms and conditions. When these predetermined terms and conditions are fulfilled, the code stored will be automatically executed.
So a smart contract is an agreement between two people. Since the agreement is stored on the blockchain, it is available to the public and cannot be changed or tampered with. Blockchain processes the transaction which happens in a smart contract.
Think of a landlord, who at the beginning of every month calls his tenant to check whether he has paid the rent or not, all the companies which lose their efficiency because of the tiresome paperwork to be completed, a victim of a car accident whose insurance claim is delayed because of the communication gap between the hospital and the insurance company or, every time you have to contact your courier service to get an update on your package delivery. All of these are soon to be considered as problems of the past.
The rapid development of science and technology has impacted every aspect of human lives from the way of interacting with others to how we behave. Technology has made the work of human beings more effective and efficient. The smart contract is one such path-breaking development in technology with the use of blockchain which changes how contract enforcement works and people rely on contracts.
The founder of smart contract, Nick Szabo in 1996 described smart contract as numerically coded ‘promises’ which includes some protocols. If the other party fulfills these coded promises, the conditions will be fulfilled of the program and the contract will be performed.
A simple example of a smart contract can be a vending machine whereby the coded ‘promise’ to vendor the commodity in the machine. The protocol assigned is paying a certain amount of money to the machine, if the condition is fulfilled the vending machine will give out the commodity.
Hence there is no third party requirement in a smart contract. Since the entire thing is stored on a public database and the transaction processes only when the conditions are met, there is transparency and trust devoted to the system.
It is said that the smart contract negates the requirement of the middleman to enter into a contract. Smart contracts involve blockchain technology and programming. To resolve this issue parties usually hire a program developer which renders his service by encoding the contract as per the requirement of the parties. The program encoded is stored on a blockchain ledger and is controlled by the parties.
How Smart Contracts work?
Simple ‘If-else’ logic is used in smart contracts to work. There are predetermined conditions set in a smart contract, if a person fulfills these conditions the code will run automatically and complete the remaining part of the contract.
For example: You want to rent your apartment to someone but not below Rs 10000. To do this on the smart contract you create a Licensor-Licensee agreement with the help of a developer and put a condition of rent equivalent to Rs 10000 or above it. This smart contract is recorded in a ledger and anyone searching for a house will be able to see it. If the person pays rent of Rs 10000 or above it digitally, the code runs automatically as the condition is fulfilled and the parties enter into a contract.
Usage of Smart Contracts
Smart contracts are still at an early stage of mass acceptance and institutionalization but still, there are various sectors where they are being used. Some of the sectors where such smart contracts are used have been discussed below:
Healthcare
Blockchain can be used as a platform to record encrypted patient details with a private key which allows access to only specific individuals meaning restricted entry. The ledger can also be used to maintain general hospital management by managing compliances, quality of drugs used, testing results and managing healthcare supplies.
Blockchain could also ease the communication between hospital management and insurance companies as the hospital could automatically send the medical history and costs of treatment of a patient directly to the insurance company through blockchain and this could be used as proof of delivery.
Real Estate
Conventionally, renting an apartment includes the interference of middlemen through brokers or advertising agencies. A person also hires a person to check whether the tenant paid rent and followed through. Using smart contracts removes all these expenses as the cost is saved by using a ledger. A person has just to pay through digital currency to create one’s contract on it. Everyone sees, and there the goal is automatically accomplished to sell or rent the property. This can help to save costs of those dealing in real estate properties and add more to their revenue.
Automobile
We are leading towards an automated world whereby soon there will be automated cars and systems. The blockchain technology can be used by both the automobile industry and the insurance industry to share the real-time functioning of one’s automobile: speed, vehicle condition, etc. So that in cases of accident, the insurance company will have a complete case file already with them to find out the liability and the compensation to be paid to the victim. This will ease the work of all the parties: the victim, the automobile company which used to send the documents manually, and the insurance company.
Supply Chain
Proper functioning of the supply chain is very crucial for the growth of a business. The flow of goods and products from the initial stage to the final stage is part of the supply management. Smart contracts help to increase efficiency in the supply chain by providing a platform where everyone in the network can track the location of the product at any given time until it reaches the end customer. This reduces the chance of losing the package while delivering. Smart contracts have more advantage than conventional paper contracts as it reduces overhead costs, provides transparency, and saves time. Smart contracts are also more reliable, secure, efficient and trustworthy than paper contracts.
Management
Since the blockchain and ledger technology works on conditional based programming it provides a source of trust. While paying salaries to employees, the management is eased by setting a fixed date in the smart contract on which salary will be paid to an employee automatically hence there is no need for an appointment of a person to check whether payrolls are being given or not.
Also, since everything is automated and pre-decided, possibilities of discrepancies or biasedness are minimized while getting project clearances or passing orders.
Government
There is always a hue and cry that governmental elections are rigged and not transparent to the public at large, also there is the problem of low voter turnout because of the tiresome long cues, identity verification and filling of forms. Smart contracts resolve all these problems and make the process of election efficient and effective. This system provides more security and efficiency than the conventional system. Since every information of the voters and candidates will be encrypted on a ledger it cannot easily be tampered with. Because everything would be online, there will be no procedural lag in voting and the voters can vote even being at their home and hence increasing the voter turnout.
It should be noted that this list is not exhaustive and with the development in technology the usage of smart contracts is too widening.
Advantages
Throughout this post, we have covered how smart contracts are created, to what extent smart contracts can be used and in which field they are being used. This part will deal with the advantages involved with using smart contracts, which the conventional traditional contract lack. The following are the advantages attached to using the smart contracts:
Autonomy
Smart contracts cut the role of middlemen. Therefore, there is no role of any third party interference like a broker or lawyer to confirm the validity of a contract. Since, there is no involvement of the third party, there is no scope of manipulation by a third party. The execution of a smart contract is also automated, therefore chances of errors are less.
Trust
The documents of contracts are encrypted and shared on a ledger, no one can know the details of the contract other than the parties involved in a smart contract. Since smart contracts are shared on a ledger, therefore these contracts will never get lost.
Backup
In a smart contract, there are servers backing up the documents in a blockchain every document is duplicated many times over.
Safety
Smart contracts use cryptography means that the content of documents is kept encrypted. Therefore, for a layman, it will be hard to hack the system and access the documents encrypted.
Savings
Commission has to be paid to a third party and state institution while making a conventional contract. Since the middlemen have been removed from the transaction between two parties in a smart contract, extra costs involved are brought down. Therefore, a person does not need to pay fees to his lawyer or have to pay fees to a notary while entering into a smart contract and hence eases the burden on his pocket.
Speed
In a conventional contract, everything needs to be passed through the middleman and is performed through paperwork and is manually processed. While in a smart contract, everything is digital and automated using software codes. Therefore, it provides a hassle-free experience and saves hours of processing time.
Accuracy
It is in human nature to make mistakes, therefore when contracts are made manually in conventional ways errors are expected to exist. Since smart contracts are digitized and automated, the involvement of human error is reduced.
Disadvantages
Nothing is perfect in this world. It’s a myth if something claims that. The same is with the technology of smart contracts. Smart contracts are still at a developing stage whereby either people are not aware of their existence or hesitate to use this way of making contracts. Also, there are some industries where this technology still cannot be used yet. The following are some of the present disadvantages of using smart contracts.
Programming
It has been made clear that smart contracts negate the role of the middleman in a transaction and make the work of parties efficient and effective by saving costs and since it’s online, it is faster than the conventional paper contracts. Immutability and transparency are other benefits that promote the use of a smart contract. But to make these contracts online, the help of programmers is required who will encode these contracts into codes and make them available on the blockchain.
Since programmers are humans too, there are chances they might make mistakes sometimes while encoding the contract. Once the mistaken code is recorded on the blockchain, it takes time and pain to change the code again. Hence, the parties will lose their time and money because of the mistake of a programmer. There can also be bugs in the program, which can cause it to malfunction. Therefore, still a lot of development is required to make it flawless.
Regulation
Since smart contracts are new in the field, there is still a lot of work to be done regarding their regulations and enforcement. Data privacy and cyber laws are still developing and there is no proper legislation dealing with smart contracts and liability in case of damage being caused to a party or when the technology used is faulty.
For example, the legislation has to still work upon who will be liable if the code does not perform accordingly because of the mistake of a programmer or there is a malfunction in technology without the fault of anyone. The court system also needs to be trained and equipped well to deal with cases arising out of such things and the courts currently are not prepared to deal with such cases efficiently and effectively.
Illegal use
Since on blockchain transactions recorded are encrypted and can only be accessed by the persons who are related to that transaction. This benefit can be used by criminals to carry out their purpose of money laundering or for executing any other work. Illegal use of blockchain technology through cryptocurrency is not a new thing. People use it to launder money because it is encrypted and can only be accessed by the parties related to that transaction.
Since smart contracts have not been effectively legalized and regulated, there is a grey area regarding its legal usage till its clarified and declared by the authorities.
These are some of the disadvantages related to smart contracts that will probably be resolved in the near future with further developments in the technology.
Smart contract-based companies
After discussing what smart contracts are, how they are created, how they function, the pros and cons attached to its usual, the reader might be curious and excited to know what are the companies which are currently dealing with smart contracts and promoting it to become mainstream? Some of those companies are mentioned below:
Solulab: This is a startup located in Gujarat. The company was started by the ex-vice president of Goldman Sachs and ex-principal software architect of Citrix. Blockchain development is one of the things they specialize in.
Leeway Hertz: This is another startup dealing in blockchain technology for building enterprise-grade blockchain applications and developing blockchain solutions.
Future of Smart Contract: A Way Forward
It is no doubt that smart contracts have a lot of potential to be efficient and effective in how people make contracts. But it should be remembered that blockchain technology is still at a nascent stage and will take some time before smart contracts become a mainstream thing. Contract laws of almost every country are century-old and require revamp to include data protection and privacy laws into it.
It should be also understood that with the use of blockchain, decentralization occurs which is different from the conventional paperwork system where the state is always there to act as a regulatory body and punish the defaulters. But in the case of using smart contracts, this regulatory body will be absent because of the decentralization established by it and therefore, there will be a lack of deterrent force. But, these things will surely be addressed and resolved in the coming future and smart contracts will become mainstream.
This article is written by Tanmay Mangal, a student of Rajiv Gandhi National University of Law, Patiala, Punjab. This article explains the importance of interpreting a statute and critically analyses the Taxation statute.
Introduction
Government of India is divided into three branches i.e. Legislature, Executive and Judiciary. It is the function of the legislature to make the laws and that of the executive, to enforce those laws. Legislature derives its power of imposing taxes from Article 265 of the Constitution which states that “No tax can be levied or collected unless it has the authority of law”. It is through this article that the legislature acquires the right to impose tax and prescribe various conditions under which such tax is applicable.
Interpretation means to give meaning to some words which are ambiguous or unclear by looking into the intention of the legislature, purpose which the law fulfils or the mischief it eliminates which existed prior to enactment of that law. It is a common rule that words are to be given their direct and grammatical meaning. But in case there are any ambiguities then the help of interpretation is taken by understanding the context in which such words are used. Such meaning is given which solves the purpose of the law and which seems to be intention of the legislature. Practical applicability of laws is different from drafting & enforcing the law. It is the role of judiciary to interpret the laws made by the legislature. It is the function of Judiciary to apply the law made by the legislature on case to case basis.
The Legislature also has power to delegate its law-making power to the Executive for proper implementation of the laws. Such delegation of power is exercised in form of rules, regulations, circular, clarifications and notifications. In India, such power to issue above subordinate legislation is with Central Board of Indirect Tax and Customs (CBEC) in case of indirect tax and Central Board of Direct Tax (CBDT) in case of direct tax. But all these subordinate legislations are limited to powers given to the subordinate authorities through the principal statute and these subordinate legislations has the same legal and binding authority as if they are part of the parent statute.
Need & Importance of Interpretation
As the social, economic and political conditions of the society keeps on changing, interpretations of the laws also require change. Legislature is not equipped to meet such changing conditions and legislature cannot anticipate every situation which might occurred in real life. Thus, it is Courts which play the role and interpret the laws to adapt as per needs of the society.
Rule of Strict Interpretation
Strict rule of interpretation is one of the principles used to interpret fiscal and penal statutes. According to this rule, plain, clear and direct meaning is given to words which are used in common parlance by the general public to which such law is applicable. There can be no presumption by court with respect to particular meaning. Court cannot give particular meaning to a word which is not clear by making a presumption that particular meaning is the intention of the legislature. Court cannot under the guise of possible or likely intention of the legislature, give meaning to the words which are not clear and where contextual meaning cannot be made out.
Reasons for Applicability of Strict Rule on Taxation Statute
Tax is a forceful extraction of money from the assessee (taxpayer) by the sovereign authority in which the taxpayer is not entitled to any assured benefit. So, taxes place a monetary burden on the taxpayer and thus to some extent it is considered as penalty on the taxpayer which is imposed under the authority of law. Thus, unless the imposition of tax is clearly backed by law, no tax can be imposed.
Taxation statute is a fiscal statute which is enacted on the basis of trial and error method or on experimentation basis. It is not practicable for legislature to anticipate all the possible situations or conditions which may arose after the law is enacted. It is possible that the assessee might use some shortcomings in the law as a loophole and take advantage of it. As tax results in pecuniary burden so the benefit of doubt is given to assessee in case of any contradictions.
Strict rule is applicable to taxation statutes, so courts are bound to give clear and plain meaning to the words without delving into the consequences it can result in. There is no presumption of tax or intendment of the legislature to impose tax unless clearly and specifically provided. Thus, it is the legislature or subordinate authority to come forward and bring amendments and clarifications to rectify the loopholes.
Thus, direct meaning is given to words used in the statute and in case of two interpretations coming out than in that case that such interpretation is given, which is in favour of the taxpayer. Until and unless, clear words are used in the statute which imposes the liability on the taxpayer, there can be no burden to pay tax.
Rule of Interpretation applicable to Taxation Statute
Taxation statute is a fiscal statute which imposes the pecuniary burden on the taxpayer. So such statutes are construed strictly. Plain, clear and direct grammatical meaning is given. Where there are two possible outcomes then that interpretation is given which is in favour of assessee.
Any taxation statute involves three stages firstly, the subject on which tax is levied or imposed, secondly, the assessment of the liability of assessee and lastly, the recovery once the assessment is made. The first stage is where charging provisions of the act are involved. These charging provisions must be clearly provided in the statute. These charging provisions provide the extent and coverage of the subjects as to whom the tax is applicable. It also provides the outline in form of subjects which the legislature wants to cover under the law. Charging provisions are to be interpreted strictly as it results in financial burden. There cannot be any ambiguity and meaning which is clear, obvious, direct is given. Nothing can be inferred to substantiate the intention of the legislature or purpose for which the law was made. Once the revenue shows that particular subject is covered by law then tax is applicable for all those subjects. But if it fails to proof then no tax can be imposed by extending the meaning.
Principal of equity has no role to play in case of taxation law. It is because there is lot of deeming legal fiction involved in tax laws. Thus, whatever is written must be strictly followed without considering its justness. If the words are clear, then court has to give that meaning irrespective of consequences it resulted into or in other words even if such construction is unequitable, then also Court is bound due to legal fiction. Court cannot meet the deficiency by extending the provisions of the statute. It is duty of the legislature to rectify it through amendments.
In a Taxation statute, if a word has a clear meaning, then in that case, the court is bound to follow the clear meaning even if such meaning results in absurd results. It is in legislature’s domain to rectify such absurdity. In case of taxation statutes, Courts cannot extend the scope of law by giving meanings to word which are unclear or uncertain. This is based on the reason that if legislature had thought of such situation then it would have covered it by using appropriate description and words under the principal act or taxation authority would have issued some notification clarifying the same.
The case of State of Uttar Pradesh v. Kores India Ltd. (AIR 1977 SC 132) is relevant. In this case, the issue was pertaining to inclusion of carbon paper in the definition of word “paper”. It was held by the Hon’ble Supreme Court that in common parlance word paper is one which is used for writing, packaging and printing whereas carbon paper is used entirely for different purpose. Moreover, manufacturing process of carbon paper is entirely different and complicated from that of normal paper. So, Court held carbon paper will not be included in normal paper so as to make it subject to taxation. It was held that meaning of paper is quiet clear and there is no need to interpret it so as to extend its meaning to include carbon paper. Thus, Courts are not required to extend the meaning to cover the subjects which on the face cannot be included in common parlance. It is only when specifically provided by statute then only it becomes subject to tax.
The words used in the taxation law should be given meaning which is understood by general public in daily routine and one which is popular. Such meaning should be given to words which people to whom law is applicable are familiar with.
The second and third stage involved in any tax laws are assessment of the liability and recovery of dues respectively. These provisions are machinery provisions which provides for technicalities and procedure to be followed under the act to make it functional. These provisions are to be interpreted fairly and liberally to promote the intention of the legislature. In case of contradiction whereby two meaning are coming out then one which is reasonable, which will assist in fulfilling the intention of the legislature and solving the purpose for which law was enacted is preferred. They are to be interpreted in such a way so as to enforce and apply charging provisions smoothly.
In case of exemptions, strict rule does not apply rather liberal rule is applied. All the conditions under which exemptions are given must be clearly specified. Once the assessee has shown that all the conditions precedent required to claim exemptions are fulfilled then he is entitled to claim exemptions. Once the assessee falls within the category of exemptions, then such exemption should be allowed. It cannot be denied on the basis of assumed or likely intention of the authority making the law.
The doctrine of Substantial Compliance is based on the principle of equity which is also applicable to taxation laws. According to this doctrine, if the conditions for claiming exemptions are met substantially or only a few minor procedural requirements are not fulfilled which does not hamper the purpose for which such law was made then in that case substantial compliance can also entitles one to claim exemptions. Applicability of such doctrine is based on case to case basis as it results are different depending on facts of each case, extent of compliance, whether partial compliance fulfils the essence, object and purpose of the law.
Conclusion
As the tax laws are interpreted strictly, legislature must ensure that words used in the statute are clear and wide enough to cover all subjects which it intend to be taxed. Words and descriptions should be used with proper care and sophistication so as to avoid any ambiguity. While making the laws assistance of such experts should be taken who deal with such laws on daily basis as they are the ones who understand the intricacies and could help in drafting the law involving the intricacies and complexities. Experienced Chartered Accountants, Litigators and officers of tax department should be consulted and their experience should be considered while enacting the laws. If the tax laws are drafted with loopholes, then the purpose of that law is not fulfilled and the whole law collapses.
Imposition of tax is burden on the assessee so it should be interpreted strictly and no such construction should be made on the basis of presumptions and assumptions as to intention of the legislature. No addition or subtraction should be allowed in case of charging provisions in furtherance of fulfilling the purpose of the act or to meet intention of the legislature. Tax laws should be interpreted in manner so to maintain a balance between interest of both revenue department and the assessee.
Also, the role of Courts is not to apply the tax laws blindly and strictly but it should check whether the transactions of assessee amounts to evasion of tax, avoidance of tax or its just tax planning. If assessee deliberately makes the complex transactions so as to avoid taxes and thereby intends to game the system, then the Courts should adopt for reasonable and equitable construction in favour of revenue and to set examples for future jurisprudence of interpretation of taxation laws.
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This article is written by Yash Singhal from Vivekananda Institute of Professional Studies, New Delhi. The article elaborates on certain activities in which litigators can indulge themselves to utilise their free time when courts are closed.
Introduction
The spread of COVID-19 has sent a warning sign around the country to take precautionary measures against human interaction that is the cause of transmission of this virus. The social distancing concept to maintain a minimum distance of 1m between two human beings is advocated by the government to prevent the transmission.
The Indian Prime Minister addressed the nation to impose a nationwide lockdown for 21 days from 24th of March to 14th of April. This lockdown would be observed with restrictive movement outside the houses and all public places are to be shut down with immediate effect. The essential services could be procured or movement in an emergency is allowed. Every workplace being shut down, the authorities have adopted work from home principle to reduce the official work loss.
The courts have also accepted the health advisory issued by the government. All courts have ceased to operate physically with a Supreme Court notification to carry out the proceedings through video conferencing. The Supreme Court has also decided to just take up urgent matters during this period and postpone other less significant matters.
The closure of courts has impacted all people associated with them from court staff to all advocates and judges to even the general public who are awaiting justice. With the cases of transmission of virus at an increase in India, the possibility of the lockdown ending on the specified date looks bleak. Thus, all litigants have to search for sources to use their free time productively.
Productive use of free time by litigators
Litigators usually have a packed schedule that includes regular court visits to get justice for their clients. The litigators are required to analyse the cases in hand, prepare arguments and counter arguments to be used in their case and research about relevant case laws to substantiate the argument put forward by them. It all takes a lot of commitment and diligence on the part of the litigator to carry out all these tasks everyday. The productivity of the litigators are evident in their success rates.
The national lockdown has closed all the courts and thus affected the schedule of these litigators. There might be some litigators who would not be having much idea about ways to keep themselves busy while putting the free time into maximum productivity. It is understandably difficult for regular hardworking persons to stay within their homes but the current crisis has left no other option than to maintain distance from human contact while finding solutions to utilise the home time productively.
There is no exhaustive list of techniques to keep oneself busy during this period but some proposed sources for litigators to spend this free time productively include:
Learning new skills
Every individual is expected to learn new skills every time he/she is exposed to some unknown challenge. This is the dynamic quality which is associated with human beings in order to survive through a new challenge. No fixed number is attached as to how many skills an individual can learn in his/her lifetime and at what age they can be acquired. This has motivated people to pick up all the positive qualities in their way and achieve expertise in them. Once the expertise is achieved, the quality becomes a skill that can be used to earn monetary or non-monetary benefits.
Litigators may need a specific category of skills to excel in their careers. An adequate amount of time and practice is required to master these skills. This lockdown period provides these litigators with enough time to add some feathers to their hat. Some of the skills which might prove beneficial to litigators are provided below with a short brief on how it would be useful to them.
Why do litigators need Cross-Examination skills?
Every case, whether civil or criminal, involves cross-examination skills of the counsel to examine the witnesses and extract relevant information from them. The practice of cross-examination is within the statutory powers of the counsel to catch any false information of the witness under oath in the court.
The main reason behind cross-examination has been to detect any false information in the testimony of the witness which shall make the statements of that witness inadmissible in court. A court relies on the testimony of the witnesses to the case, to provide sufficient details for the court to analyse them and dispense justice.
The authenticity and credibility of the evidence is questioned by the opposite counsel to disqualify that evidence. Any litigator with the skills to cross-examine has the potential to discredit any false evidence provided by opposite counsel.
What are the advantages of negotiation skills for a litigator?
Every litigator is appointed by a client on the promise that their interest would be at the helm of the litigator’s duties. A court proceeding is concerned with two counsels putting forward their own sets of contentions, evidence, case laws to support both, until any of them is able to prove their side to be the ultimate truth beyond a reasonable doubt in a criminal case and preponderance of possibilities in a civil matter.
The prime focus of the counsel is to get the verdict of the case in its favour but might be forced to fall on the secondary option of negotiation to decrease the compensation (civil matter) or lower the term of punishment (criminal matter). The litigators are required to approach the negotiation with calmness rather than aggressively.
In a civil matter negotiation, the damages claimed can be increased or decreased by the ability of the litigator to negotiate. The criminal case negotiation would settle the matter peacefully with saving of time, money and other resources.
Why do litigators require communication skills?
A great deal of attention needs to be paid by legislators to improve their communication skills. The manner of communication within a court is formal with proper guidelines established under the Code of conduct of a court. The art of negotiation and Cross-Examination arise out of the ability to communicate conveniently in a manner suitable to the environment they are present in.
The understanding of the person with whom the communication is required to be established is the foremost concept followed by the objective of the conversation kept in mind. These two principles are significant in developing communication skills by a litigator. These skills of identification and clarity of communication do not come naturally to all, hence, the need to transform these skills is observed. The litigator must have the convincing capability to ensure that the judge takes note of the evidence presented by the counsel.
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What is the purpose to develop organisational skills by a litigator?
A litigator must be organised in a court with his/her files, dressing, argumentation and thought process. An organised counsel is favoured by the clients to represent them in court. Organisational skills would allow the litigator to have all the resources in his/her presence thus saving time of the judiciary. It is equated with a litigator’s work efficiency that leaves an imprint in the minds of its clients.
A well organised file with all documents in a particular order is visually attractive to the judge and also helps the litigator themselves to locate a document easily without wasting argumentation time. It works as an assurance to the client in the court about the litigator’s confidence in itself.
Learning new technology
Technology has reached every corner of our lives and it would be clear stupidity to not adopt this change. A smart individual is the one who is dynamic in nature and has the ability to adapt itself to those changes. Courts are also conducting proceedings through video conferencing amid the notification of the Central Government to shut all public offices.
The current generation of litigators are supposed to be tech savvy with adequate knowledge of technology to counter every crisis that they may encounter in future. Digitisation is the way forward for courts to settle pending cases over online video conferencing applications without causing inconvenience to the people to attend court proceedings.
Even in the present situation, courts do allow submission of online documents for convenience of people. The litigators with skills to operate technology do not have to travel to courts to submit those documents. Also, the scope of cyber law or the technology law has been growing since the inception of Information Technology Act, 2000. Litigators who have the knowledge of technology would be able to take advantage by taking up cases from these fields of law.
Information of emerging technology, study on ways to integrate law and technology, online legal documentation, assessing risk and its management are certain areas which are less explored currently and need a deep understanding of both technology and law which can be achieved by devoting this free time into learning a new technology. The advent of legal policy formation of every company registered online is a new field that employs legal professionals to guide on legal implications of the breach. The exhaustive research into the matter would provide more minute information to those interested in venturing into these careers.
Deliver online lectures for law students
The litigators with the experience of attending court proceedings can choose to conduct online video lectures for law students to watch them and learn the intricacies of argumentation in a court. The law students are suffering due to the shutting of their colleges/institutes/universities and cannot even opt for an internship with any legal professional. The litigators should take up the responsibilities of training the next generation of legal professionals to carry on the legacy. This would lead to collective benefit for the litigators and the law students.
Some litigators could make the exercise more productive through interactive sessions where law students could ask their queries. Litigators would have to extensively research about a particular topic to conduct these sessions. This would widen the horizon of litigator’s knowledge of law.
Organise paperwork
Every legal professional maintains a room which is full of thick files containing old case material. This room is only visited when the person wants a reference from his early cases but it takes quite a lot of time to locate the particular case paperwork. The emails of these professionals are filled with applications from everywhere to take up their matter.
Organising the old case material in that room or mails in the email is ignored by them due to lack of time. The current situation has been an opportunity for these professionals to organise all these old online and offline documents.
Apart from the legal paperwork, there are other issues which can be dealt with in this free time such as evaluating expenditure, calculating earnings, organising books, and keeping track of legal developments.
Conclusion
The nation has gone into a standstill during this period of national lockdown. The courts are closed and the litigators have to indulge in productive tasks to utilise their free time. They have enough time to learn a new skill, learn new technology, online tutoring law students and organising paperwork. These are certain suggestions which would help them to stay connected with their profession while achieving maximum utilisation of resources available.
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This article is written by Parul Chaturvedi pursuing LLB from Dr R.M.L Law College Bangalore. This is an exhaustive article which deals with an overview of the Juvenile Justice Act and rights of Juveniles and proceedings before the court jurisdictions.
Introduction
“There can be no more intense discovery of a society’s spirit than how it treats its youngsters.”
-Nelson Mandela
“With their inception, youth lawfulness has preceded the belief that the youngsters and juveniles, by dint of their relative immaturity, are less ready to control their desire, less ready to comprehend the reality of the offences and less ready to foresee the consequences of their action.”
– John Pitts
An apparent set of principles focused on reformation and rehabilitation has dominated academic and political discourse concerning the drafting of laws related to juvenile justice and children in conflict with the law. The Juvenile Justice Act of 1986 and its subsequent amendments can be considered in many ways a landmark in signifying changes in the thought process of lawmakers. At the turn of the 21st century, a need was felt to update the laws bearing in mind prescribed standards set by the UN Convention on the Rights of the Child, 1989. The UN Standard Minimum Rules for Administration of Juvenile Justice, 1985, as well as the UN Rules for Protection of Juveniles Deprived of their Liberty, 1990. The legislative exercise subsequently culminated into the Juvenile Justice (Care and Protection of Children) Act, 2000, along with the Juvenile Justice (Care and Protection of Children) Model Rules of 2000, are replaced by the Juvenile Justice (Care and Protection of Children) Model Rules of 2007. In the wake of the 2012 Delhi gangrape and murder case, one of the accused, who was a juvenile, was sentenced to three years in a reformation home as per the provisions of the juvenile justice Act, 2000. In light of the Supreme Court judgement upholding the constitutional validity of the Act, in December 2015, the Delhi High Court held itself to be bound by the provisions and refused to extend the sentence of the accused. This led to a widespread feeling of a failure of justice, with the masses protesting in unity with the victim’s family. Drawing much flak from various sections to correct the supposed gap in the previous act, the government delivered the juvenile justice (Care and Protection of Children) Bill, 2014, which was surpassed by the Parliament in its present shape on 22nd December 2015. It acquired the President’s assent on 31st December 2015, and came into impact on 15th January 2016, as the juvenile justice (Care and Protection of Children) Act, 2015.
Juvenile Justice is construed
A juvenile felon is an adolescent who has been convicted or has been found condemned for an offence that is punishable by law. Such a juvenile is known as Child in Conflict with Law (CCL) according to juvenile justice (Care and Protection of Children) Act, 2015. This meaning of ‘Juvenile’ is obscure and bears no solid importance and requires more further discussion. Further, the act done by a child under seven years old is found in strife with the law and not treated as an offence and isn’t culpable under any act and such a child is certifiably not a criminal according to Section 82 of Indian Penal Code. Thus, a child whose age is under seven years old can’t be known as a juvenile and is not convicted of any crime. The specific juvenile justice Body and its partners need to control the juvenile offences as well as wrongdoings. An offence is any conduct that is culpable under the separate lawful system and juvenile misconduct is any conduct done by juveniles which is anomalous to the society and not culpable under the Indian Penal Code. In the Indian juvenile justice system, no reprobate child(wrongdoing) is responsible to confront the legitimate procedures for their conduct reformation.
Juvenile Justice Care and Protection Act, 2015
The accompanying Act of Parliament obtained the consent from the President on 31st December 2015 and is thus circulated for general info. This is an Act to combine and amend the law associated to children which are positively asserted and found in conflict with the law and the child needs to provide care and security by taking into account their essential needs through legitimate consideration, assurance, advancement, treatment, social re-mix, by embracing a child cordial approach in the mediation and removal of issues to the most progressive growth of the child and for their restoration through procedures given, and organizations and bodies as mentioned in the recent amendment of juvenile justice Act 2015 Section 1(1)(2)(3)(4) it represents that:
This Act might be popularly known as the juvenile justice (Care and Protection of Children) Act, 2015.
It reaches out to the entire of India aside from the State of Jammu and Kashmir.
It will come into power on such date as the Central Government may, by notification in the Official Gazette, choose.
Notwithstanding anything contained in some other law for now in power, the social arrangements of this Act will apply to all issues concerning child’s needs care and security and youths in strife with law, including anxiety, confinement, arraignment, appropriate punishment or detainment, restoration and social re-incorporation of kids in a struggle with law.
Important definitions under the Act
In the Indian juvenile justice system, the ‘child in Conflict with Law’ is utilized in place of juveniles. In this way, the Child in Conflict with Law is smarter to be utilized as opposed to utilizing juveniles. The ideas conceived by the term’s ‘juveniles’ ‘child’ and ‘child in Conflict with Law’ have contrasts and similitudes. In this way, complete deserting the term ‘juvenile’ is unimaginable.
Below tables shows the similarities and contrasts of the three terms:
Similarities
Contrasts
1
Child
younger than 18 years.
A child born after birth referred to as a teen.
A child may be in Conflict in Law in needs of care and security.
2
Juvenile
younger than 18 years.
A juvenile has a lower age limit as per section 82 of Indian Penal Code, he must be over 7 years of age.
A child who faces legitimate procedures in the claim of an offence or wrongdoing.
3
Child in conflict with the law.
younger than 18 years.
A child who faces legal proceedings in the allegation for an offence.
Important Definitions
Section 2(13) of the juvenile justice act 2015 signifies a child who is in conflict with the law and asserted or found to have convicted an offence and not finished the 18 years of age on the date of the delegation of such an offence.
Section 2(35) characterizes the significance of a juvenile as “juveniles” and a child underneath the age of 18 years.
Juvenile Justice (Care and Protection of Children) Rules, 2016 are the primary rules. The constitution of India and UN Standard Minimum Rules for the Administration of juvenile justice, 1985 also known as the Beijing Rules are guiding fountains. United Nations Convention on the Rights of the Child, 1989 known as UNCRC is the source of all protection issues for children.
A juvenile is a child or young person who, under the governing legal systems, may be dealt with an offence in a manner that is different from an adult.
An offence is any behaviour (act or omission) that is punishable by law under the respective legal systems.
A juvenile offender is a child or young person who is alleged to have committed or who has been found to have committed an offence.
Depending upon the severity of crime like a crime committed atrociously and brutally, the juveniles between the ages of 16 to 18 years have the trial and the legal proceedings in adult courts.
Any child that is convicted of any crime will currently be sent for a preliminary evaluation for a time of a quarter of a year (3 months), earlier it is one month now extended to three months.
Another clause on fair trial is included, under which the evaluation or assessment period will investigate the special needs of the child, under the child-friendly atmosphere.
The child will not go through any form of disqualification or elimination in education or jobs due to being guilty of any crime under the Act.
The guilty records shall be ruined after the completion period of appeal, except in the case of atrocious crimes.
The time period to rethink the decision of adoption is changed from one to three months.
The aftercare of a child shall be unrestricted to one month in institutional care.
Receive financial aid more than one time after evacuating institutional care.
Priority for disabled children in interstate adoption.
Increase in the time period for left alone children kept under observation in child care facilities from 30 days to 60 days.
In the case of an inevitable situation, it will not be considered purposely or willfully giving up the child by biological parents.
Consultation and advice from experienced psychologists and medical specialists if an order passed against the child.
Training of special juvenile units in the police force.
NCPCR and SCPCR will be the nodal specialists to be liable for observing implementation, the exposure of the amended act, and to investigate cases that emerge out of the act.
The Justice Verma Committee was framed in 2013 to audit criminal laws and to make proposals considering the 16th December 2012 Delhi Gangrape case. The Committee got a scope of recommendations, including the proposal that the time of juvenile blamed for egregious wrongdoing must be characterized as one underneath 16 years old and the individuals who are 16 years or more should be treated as an adult in a courtroom and must not be presented with the Juvenile Justice Act 2000. On this particular issue, the board of trustees held a wide scope of consultations with the attorneys, women rights activists, child experts, psychologists and child rights activists. The report of the board of trustees mentioned that if a small child is old enough at 16 years, he committed a crime and was sentenced for a long term, at the time when he completes his term in jail he will turn to 30 years and this also points out the terrible condition of rehabilitation programs in Indian jails.
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General principles of care and protection of children
General standards to be followed in the organization of Act- The Central Government, the State Governments, the Board, and different offices, by and large, while executing the provisions of this Act will be guided by the accompanying basic principles, specifically:
Section 3 of the Juvenile Justice Act 2015 states the principles of care and protection of children:
Principle of the Best Interest of the Child- “Best interest of the child” signifies the reason for any choice taken with respect to the child, to guarantee satisfaction of his fundamental rights and needs, character, social prosperity and physical, enthusiastic and scholarly improvement.
The Principle of Presumption of Innocence- It will be regarded all through the procedure of justice and protection, from the underlying contact to elective consideration, including aftercare. Any unlawful behaviour of a child which is done for endurance, or is because of environmental or situational factors or is done under the control of adults, or peer groups.
Principle of Right to maintain privacy and Confidentiality- Each child has an option to the right of his protection and privacy by all methods and all through the legal procedure. No report of the juvenile will be distributed that may prompt the recognition of the juvenile but to the situations where the exposure of their distinguishing proof identity would cause protection of them.
Principle of equality and non-discrimination- That there shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. Every single suitable measure should be taken to ensure that the child is secured against all types of discrimination or punishment based on the status, activities, expressed opinions or convictions of the child’s parents, lawful guardians, or family members.
Principle of Participation- The child should be provided with an opportunity to being involved and the child who is capable of forming his or her own views has the right to express those views freely in all matters which is affecting the child’s growth and development, the views of the child is given due importance in accordance with the age and maturity of the child.
Principle of institutionalization- It is a measure of last resort, in certain circumstances the family is not capable of taking care of the well being of the child and when the child has no family to be cared for and there is no one to look after the child, the government must make alternative provisions.
Principle of Diversion- Diversion presents a few preferences when contrasted with the conventional criminal justice framework which can be excessively unbending, awkward, slow and inert to the necessities of children who are often first-time or non-genuine offenders. Police are the first point of contact between the juvenile and the juvenile justice Board or the court and as such the police think that it is not essential to proceed for the juvenile to the judicial bodies on the consideration that the rights of the child, protection of the society and the rights of the victims, they may divert the juvenile from the formal court processes based on the acts and rules.
Principles of Natural Justice- Every child should be treated fairly and equally, regardless of his or her race, ethnicity, colour, gender, language, religion, political or another opinion, national, ethnic or social origin, property, disability, and birth or another status. In certain cases, special services and protection will need to be instituted to ensure children’s rights are met equally.
Principle of Family Responsibility- Guardians or parents of a juvenile must be associated with the groundwork for the inquiry and trial and be available when it happens. They ought to be educated by police, investigators or judges that a conventional request will happen and that they are welcome to join in.
Principle of Dignity and worth- The treatment of the child will be predictable with the child’s feeling of pride and worth. Every single person is brought into the world free and equivalent in poise and rights. They are invested with reason and conscience and should act towards each other in a soul of fellowship (Article I of UN Declaration Human Rights). All children will be managed with respect due to their inherent dignity and human beings.
Principle of Safety- The state has a greater responsibility for ensuring the safety of every child in its care and protection, without resorting to restrictive measures and processes in the name of care and protection.
Principle of Positive Measures- The main theme of the principle is the promotion of the wellbeing of the juveniles. The characters and behaviours of the juveniles shall be corrected and reformed by following positive measures.
Principle of non-stigmatizing Semantics- The principle of non-stigmatizing semantics proposes not to utilize words that are utilized in ordinary criminal procedures, choices, and activities that may stigmatize the juveniles. The rule command to maintain a strategic distance from the utilization of antagonistic or accusatory words, for example, capture, remand, blame, charge sheet, preliminary, indictment, warrant, summons, conviction, detainee, reprobate, ignored, custody or prison.
Principle of non-waiver of Rights- The Constitution of India carefully precludes the waiver of rights. The equivalent is epitomized in the juvenile justice system in India. The legal rights enforced by the Juvenile Justice Act should not be postponed under any circumstances by any juvenile, competent authority and stakeholder working under the juvenile justice system. Also, further, the non-exercise of fundamental rights doesn’t add up to the waiver of the equivalent.
Principle of Repatriation and Restoration- States that it shall be ensured that a child shall not be separated from his or her parents against their will. However, the Board or the Court considers the separation is necessary for the best interests of the child in accordance with the law and procedures, such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
Principle of Fresh Start- The principle of fresh start promotes a new beginning for the juvenile in conflict with the law. This rule also instructs to destroy all past records of the juvenile within a stipulated period. They are ensured to erase all their past records.
Juvenile Justice Board
One of the most important and progressive features of the Act of 2000 was the foundation of juvenile justice Boards. Each board is inquired to decide the age of the child, the question of bail, and the subject of a commission of the offence, and pass proper orders. The composition of the board incorporates a principal magistrate and two social workers, in this way guaranteeing not only are legitimate complexities secured, however, the financial, psycho-social and familial conditions are also considered to be secured. The social workers engaged with the juvenile justice system are called correctional social workers globally.
Section 4(1) states that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government will comprise for each region, at least one juvenile justice Board for practising the forces and releasing its capacities identifying with youngsters in conflict with the law under this act and other section and acts can be provided in Chapter 3 section 4(1) to (7).
Apparently, children entering before the juvenile justice System are already addicted to face the grave dangers in their lives, yet their predicament is frequently overlooked. Police misuse is ordinary in certain purviews. Children grieve in the framework for quite a long time, either as inhabitants of decrepit detention facilities without access to schooling and education or as the subject of unlimited procedures that draw them away from training or work, bringing about a financial emergency for the child’s family. If so, in addition to the fact that we fail the child as a state, yet additionally when they come in conflict with the law.
Role of Social Workers
Social worker’s responsibility in the juvenile justice system is to implement the principle with the right counselling and opportunities to change an individual into a decent resident. Nonetheless, unnecessary deferrals in procedures, bringing a backlog of cases, an insufficient infrastructure, deferred justice they deal with them efficiently and promptly. Social workers can move in the direction of the reintegration of the juvenile inside society. The association with the justice System may cause disgrace and seclusion, and effect the minor’s future training and work possibilities. Social workers may work with the family, neighbourhood, and schools, empowering them to acknowledge the child and bolster him in remaking his life. Officials can urge schools to readmit juveniles and continue their schooling, forestalling drop-out rates. Admission to open schools may likewise be upheld where the juveniles can proceed with the guidelines by means of self-teaching and work at the same time to help himself and his family. Social workers should assist juveniles with securing positions and work with managers to enlist them. They also work with the family of juveniles and guide them to reshape their child’s future by making him a good member of society.
Wizner and Keller discussed the juvenile criminal justice system “It has neither given satisfactory assurance to society from juvenile crimes nor prevailing within rehabilitating young offenders.”
Limitations
It has been speculated that the institutional set-up required under the Juvenile Justice Act has not been built up completely and district-level institutions generally lack the infrastructure and staff to adequately execute it. This hampers the work of the rehabilitative and reformative programs leads to disappointment in accomplishing goals of restoration and reintegration work. There has been practically nil spotlight in organizing rehabilitative plans. Also, the role of the staff is not under satisfaction. There is a lack of coordination between staff and children. This leads to fewer opportunities for children to showcase their talent and skill and health issues of workers to implement certain roles and duties.
Procedure in relation to children in conflict with the law
A Child in Conflict with Law has a number of rights starting from the pickup up by the police up to the release from the juvenile justice Institutions.
Section 10 to 26 of juvenile justice Act 2015 defined procedure in relation to children in conflict with law in which some of them we discussed here:
Section 10- Apprehension of the person alleged to be in conflict with the law.
A child may be apprehended on the ground of committing an offence. At the time of apprehension, they have certain rights mentioned below.
They shall not be kept in the police lock-up or jail. Instead, they shall be kept in safe custody prior to the production before the Board.
In every police station, safe custody may be arranged by following the Principle of Child-Friendly Atmosphere.
Section 10(1) of the juvenile justice Act, 2015 states that “Provided that in no case, a child alleged to be in conflict with the law shall be placed in a police lockup or lodged in a jail”.
Section 8(3) juvenile justice Rules, 2016 mentions that the police officer apprehending a child alleged to conflict with the law.
Section 14 Inquiry by Board regarding a child in conflict with the law- this provision describes whether a child is produced before Board or he may fit in sections 17 and 18 of the act. It also categorizes the types of offence depending upon how it is committed below.
Petty offence– Section 2(45) “petty offences” includes the offences for which the maximum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment up to three years inquiry is disposed of by the Board through summary proceedings, according to the procedure endorsed under the Code of Criminal Procedure 1973.
Serious offence– Section 2 (54) “serious offences” includes the offences for which the punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force, is imprisonment between three to seven years; Enquiry is disposed of by the Board, by following the strategical procedure, for preliminary trial in summons cases under the Code of Criminal Procedure 1973.
Heinous offence– Section 2(33) includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more. Section 15– Preliminary assessment into heinous offences by Board it deals with inquiry (I) if a child beneath the age of sixteen years as on the date of commission of an offense will be discarded by the Board under proviso (e);(ii) for a child over the age of sixteen years as on the date of commission of an offense will be managed in the way recommended under section 15.
These are all culpable by law. The acts and rules recommend the rights and reformatory methodology of the juveniles and it has no obvious framework about juvenile crime. Antisocial behavior done by youngsters which harm society is called juvenile delinquents or misconduct. These misconducts create an atmosphere that provokes juveniles to commit crimes or violations. The expansion of juvenile misconduct will enhance juvenile violations. The decline of juvenile crime will lead to a decline in juvenile violations. The most probable cause of juvenile violations is misconduct.
Right at the time of apprehension
A child may be apprehended on the ground of committing an offence. At the time of apprehension, they have sure rights. They shall no longer be kept inside the police lock-up or jail. Instead, they shall be kept inside the secure custody prior to the production before the Board. In every police station, secure custody can be organized with the aid of following the Principle of Child-Friendly Atmosphere. Section 10 (1) of Justice Juvenile Act, 2015 states that “Provided that in no case, a child purported to be in a battle with law shall be located in a police lockup or lodged in a jail”. And Section 8(3) Justice Juvenile Rules, 2016 mentioned that the police officer apprehending a child supposed to be in conflict with law.
Procedure to be followed
Not send a child to a police officer lock-up and not delay the child being transferred to the Child Welfare Police Officer from the nearest police station. The police officer may under sub-section (2) of section 12 of the Act send the person apprehended to an observation home only for such period till he is produced before the Board i.e. within twenty-four hours of his being apprehended and appropriate orders are obtained as per rule 9 of these rule.
Do not handcuff, neither put a chain or fetter around the ankles of a child and do not exert any coercion or force.
Inform the child promptly and directly of the charges levelled against him through his parent or guardian and if a First Information Report (FIR) is registered, copy of the same shall be made available to the child or copy of the police report shall be given to the parent or guardian.
Provide appropriate medical assistance, assistance from an interpreter or a special educator, or any other assistance which the child may require.
Not compel the child to confess his guilt and he shall be interviewed only at the Special juvenile Police Unit or at child-friendly premises or at a child-friendly corner in the police station, which does not give the feel of a police station or of being under custodial interrogation. The parent or guardian may be present during the interview of the child by the police.
Not ask the child to sign any statement.
Inform the District Legal Services Authority for providing free legal aid to the children.
Principle of Right to maintain privacy and Confidentiality- Is applied when a crime is committed and child under trial in police custody inside the juvenile court
Further, Section 24(2) of the act mentions that the board shall order and direct the Police, or through children’s court that the relevant records of such conviction shall be destroyed after the expiry of the period of appeal from the registry or, as the case may be, a reasonable period as may be prescribed. Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of section 19, the relevant records of conviction of such child shall be retained by the Children Court.
No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published. Provided that for reasons to be recorded in writing, the Board or Committee holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child.
The Police shall not disclose any record of the child for the purpose of character certificate or otherwise in cases where the case has been closed or disposed of.
Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to two lakh rupees or both.
All reports related to the child and considered by the Committee or Board shall be treated as confidential: Provided that the committee or the board, as the case may be, may, if it so thinks fit, communicate the substance thereof to another Committee or Board or to the child or to the child’s parent or guardian, and may give such committee or the board or the child or parent or guardian, an opportunity or producing evidence as may be relevant to the matter stated in the report. (1) Notwithstanding anything contained in this Act, the victim shall not be denied access to their record, orders and relevant papers.
Section 24(5) POCSO, 2012 stresses for the police to make sure officers that the identity of the child is covered from the public media unless otherwise directed through the Special Court within the benefit of the child.
Child welfare committee
Section 27 to 30 of the 2015 act explain the Various aspects of Child Welfare Committee about the Child Welfare Committee and its Role:
Sec 27 (1): The State Government by notification in the Official Gazette in each district, set up at least one Child Welfare Committees to practice the powers and to release the obligations bestow on such Committees by comparing to youngsters needing care and security under this act and assure that training and sensitization of all individuals from the board of trustees is implemented within two months from the date of notification.
Composition: Committee consists of one chairperson, four members of state government in which one is women and others are an expert on children related matters.
Sec (9): The Committee will work as a Bench and will have the forces given by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, by and large, a judicial Magistrate of First Class.
Sec (10): The District Magistrate will be the complaints redressal expert for the Child Welfare Committee and anybody associated with the youngster may record an appeal before the District Magistrate, who will consider and pass suitable requests.
It implies that the Committee will meet at least 20 days in a month and will watch such guidelines and methodology with respect to the exchange of business at its meetings, as might be endorsed.
A visit to a current child care organization by the Committee, to check its working and prosperity of the child will be considered as a sitting of the Committee.
A child needing care and insurance might be delivered before an individual from the Committee for being set in a Children’s Home or fit individual when the Committee isn’t in the meeting.
In case of any difference of views among the individuals from the Committee at the hour of taking any choice, the assessment of the dominant party will win however where there is no such majority, the assessment of the Chairperson will win.
Subject to the arrangements of sub-section (1), the Committee may act, despite the nonattendance of any individual from the Committee, and no structure made by the Committee will be invalid by reason just of the nonappearance of any part during any phase of the procedure.
Given that there will be in any event three individuals present at the hour of definite removal of the case
(1) The Committee will have the position to discard cases for the consideration, security, treatment, improvement, and recovery of youngsters needing care and insurance, just as to accommodate their essential needs and assurance.
(2) Where a Committee has been comprised for any zone, such Committee will, despite anything contained in some other law until further notice in power, however spare as in any case explicitly given right now, the ability to manage all procedures under this Act associated with children needing care and security.
Functions and Responsibilities of Committee
Promoting awareness;
Conducting inquiry;
Directing the child welfare officers to conduct a social investigation;
Inquiry for fit persons taking care and security of children;
Handling placement of a child in foster care;
Taking care, insurance, proper recovery or reclamation of kids needing care and security, in light of the child’s individual consideration plan;
Conducting 2 inspection visits per month;
Making a move for the restoration of explicitly mishandled youngsters who are accounted for as kids needing care and assurance to the Committee by Special Juvenile Police Unit or neighborhood police, all things considered, under the Protection of Children from Sexual Offenses Act, 2012 (32 of 2012); and
Orphan and abandoned children are legally free for adoption.
Procedures to be followed for children who need care
Section 31 deals with production before the committee:
Production before Committee— (1) Any child needing care and security must be produced before the committee by any of the accompanying people— Any cop or special juvenile police unit or an assigned child welfare police officer or any official of the district child protection unit or controller designated under any work law in power. Any community worker, childline services or any deliberate or non-legislative association or any organization as might be perceived by the State Government. Child Welfare Officer or post-trial agent, any social specialist or a child protection specialist by the child himself or any medical attendant specialist or the board of a nursing home, clinic or maternity home.
Given that the juvenile will be created before the Committee with no loss of time yet inside a time of twenty-four hours barring the time important for the excursion.
(2) The State Government may make rules predictable with this Act, to accommodate the way of presenting the report to the Committee and the way of sending and entrusting the child to the child’s home or office or fit the individual, by and large, during the time of the request.
Procedure
A child needing care and security is to be present before the Child Welfare Committee inside 24 hours. To accommodate youngsters isolated from his/her family. By announcing it has been treated as a culpable offense. The Child Welfare Committee is to send the kid needing care and security to the suitable Child Care Institution and direct a Social Worker, Case Worker or the Child Welfare Officer to lead the social examination within 15 days. The Child Welfare Committees will meet at least 20 days in a month and the District Magistrate will direct a quarterly survey of the working of the Child Welfare Committee.
A youngster needing care and security will be set in a Children’s Home for care, treatment, guidance, preparing, advancement, and restoration. The Act accommodates Open Shelters for Children needing network support on the momentary reason for shielding them from misuse or getting them far from an actual existence in the city. The Child Welfare Committee could perceive an office to be a fit facility to incidentally assume the liability of a youngster. The Specialized Adoption Agency is to deal with the recovery of vagrants, deserted or gave up kids.
Rehabilitation and Social Reintegration
Section 40 to 55 deals with provision rehabilitation and social reintegration:
Sect (40)- Process of rehabilitation and social reintegration—
(1) The reclamation and social integration of a youngster will be the prime target of any Children’s Home, Specialized Adoption Agency or open safe house.
(2) The Children’s Home, Specialized Adoption Agency or an open safe house, all things considered, will make such strides as are viewed as vital for the rehabilitation and social re-integration of a youngster denied of his family condition briefly or for all time where such child is under their consideration and insurance.
(3) The Committee will have the forces to re-establish any youngster needing care and rehabilitation and social reintegration to his families, institution or fit individual, all things considered, subsequent to deciding the reasonableness of the guardians or institutions or fit individual to deal with the child, and give them appropriate bearings.
Clarification- For the motivations behind this segment, “restoration and safety of a child” means restoration to signify reclamation to like Parents, adoptive parents, foster parents’ guardian or fit person or a fit individual.
Section 39: States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse torture or any other form of cruel, inhuman or degrading treatment or punishment or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect, and dignity of the child.
Institutional personnel and training
Rule 29 Capacity-building for staff employed in women’s prisons shall enable them to address the special social reintegration requirements of women prisoners and manage safe and rehabilitative facilities. Capacity-building measures for women staff shall also include access to senior positions with key responsibility for the development of policies and strategies relating to the treatment and care of women prisoners.
The media and the public shall be informed about the reasons that lead to women’s entrapment in the criminal justice system and the most effective ways to respond to it, in order to enable women’s social reintegration, taking into account the best interests of their children.
Right to be Reformed
The juveniles who are alleged and found committed an offence shall be reformed by restorative justice, deserving rehabilitation and social reintegration than punitive and retributive punishments. Awarding punitive and retributive punishments to the children prevents society from moving on. Children are presumed innocent and immature to understand the consequences of crimes. Therefore, they must not take responsibility for criminalization. The traditional objective of criminal justice, retribution and repression must be given away.
Section 27 CrPC clearly mentions that the law is executed for the “treatment, training and rehabilitation of youthful offenders” who are juveniles. Whereas juveniles justice Rules 2016 is providing rules that allow the juveniles may get away from treatment, training, and rehabilitation, etc. These are contradictory concepts.
Case Law: The reformatory approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending communal conscience and to secure social justice.
The jurisdiction in the case of juveniles- Any offence not punishable with death or imprisonment for a life committed by any person who at the date when appears or is brought before the Court is under the age of sixteen years, maybe tried by the Court of a Chief Judicial Magistrate, or by any court specially empowered under the Children Act, 1960(60 of 1960), or any other law for the time being in force providing for the treatment, training, and rehabilitation of youthful offenders.
The juvenile who is addicted to alcohol or drugs which lead to behavioral change in a person shall be referred to an Integrated Rehabilitation Centre for Addicts or Similar centers maintained by the State Government for mentally ill persons for the period required for in-patient treatment of such juveniles. Section 34 and 35 of Juvenile Justice Rules 2016 defines the manner of health and medical facilities to be provided.
Efforts shall be made to provide juveniles, at all stages of the proceedings, with necessary assistance such as lodging, education or vocational training, employment or any other assistance, helpful and practical, in order to facilitate the rehabilitative process.
Rules relating to adoption
Meaning of Adoption
Section 2(2) of Juvenile Justice Act “adoption” signifies the procedure through which the adopted child is for all time isolated from his biological guardians and turns into the legitimate child of his adoptive parents with all the rights, benefits and duties that are joined to a biological child:
It was held by the Supreme Court in public interest litigation – The child has the right to love and affection. The first condition is to look for a legal guardian within the country for welfare and security of the child’s considered as of prime importance. Other legal requirements are a Marriage Certificate with recent photographs of couples, Income records. It had framed the guidelines governing intercountry adoptions for the benefit of the Government of India. A regulatory body, i.e., the Central Adoption Resource Agency was recommended and set up by the Government of India in the year 1989.
As indicated by section 56 of the Act vagrant, relinquished or given up child might be embraced, independent of the connection, religion, nation hindrance by the sets of equipped court.
Section 57 deals with the competency of Prospective adoptive parents must meet the legal adoption requirements of their country of residence and those of the country whose nationality the child holds. Theyought to be genuinely fit, financially stable, intellectually alert and profoundly energetic to embrace a child for giving them a decent childhood to him. If there should be a requirement of a couple-consent a single or separated couple can give the consent for adoption. A single male doesn’t have the right to adopt a young girl child.
Section 58: The Prospective Adoptive Parents (Indian PAPS) applied an application for adoption to a Specialized Adoption Agency (SAA). The authority checks proper House Safety Records (HSR)of the PAPs if finding them legally eligible, it mentioned if a child is legally free for adoption alongside a CSR (child study report)and MER(medical examination report). On acknowledgement, Specialized Adoption Agency will give the child in pre-adoption child care with proper documents along with an application applied in the court for getting the request for adoption, in this way by appropriate guidelines by the Authority.
Difference between Domestic and Intercountry case: Domestic adoption case is filed u/s 58(3) whereas in Intercountry it is filed u/s 59(7) or 60 of the Act
To encourage domestic adoption pre-adoption care is given to children. In the case of inter-country adoption, it is not mentioned. For intercountry adoption, the person or couple becoming the legal or permanent parent of a child of another country. Inter-country adoption is specifically regulated by the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption though no such obstruction is in Domestic Adoption in which the person or couple of the same country as the child belongs.
Follow up activity after request in inter-country adoption- Sec 59(11)The approval from organization, or Central Authority, or the concerned Government division, by and large, will confirm the progress reports of the child in the adoptive family and will be liable for making alternate option on account of any disturbance, by concerning with Authority and concerned Indian diplomatic mission, the way as given in the appropriation guidelines encircled by the Authority.
Fulfillment of the court- Sec-61 Adoption is for the welfare of the youngster; Due consideration is given as per age and understanding of a child.No payment or fees have to pay to any PAP and SAA. The appropriate proceedings will be held in camera and the case will be disposed of by the court within a time of two months from the date of recording.
The adoption process in the court is definitely not a general court proceeding in that the assembly is not litigant or arguing it is an application where the strict rule of Criminal.Procedure.Code (Crpc)and evidence act aren’t applicable. Adjournment must be explained as you need to dispose of the case within two months and the record of the case ought to be guarded in custody.
An investigation was done by the court the Petition filed must be documented according to requirements of the Child Adoption Resource Authority rules alongside the testimony of the Secretary of Specialized Adoption Agency and the Prospective Adoptive Parents. Annexure should be according to CARA rules nothing less nothing more. The case is filed within ten days of the NOC or Pre-adoption consideration.
Orders
Proposed adopters are permitted to take the child with them and in the application mentioned the details of the child taken for adoption- The Proposed adopters are proclaimed as the new parents of the said minor child having rights of parent’s privileges, benefits, and obligations.
Adoptive guardians should take the child out of the ward of the court where all legal proceedings are going on and take the child to their new home. The Municipal Corporation issued birth certificates to the minor child referencing the proposed adopters as guardians of the child.
Offences against Children
The Juvenile Justice Act of 2015 is far less behind in controlling the juveniles’ misconduct. By reviewing the juvenile justice Act 2015, there are sorts of offences.
Section 74 to 89 deals with offences against children.
The juvenile justice Act, 2015 remembers a different section for offenses against youngsters and a few of the offenses recorded right now so far not enough secured under some other law. These incorporate deal and obtainment of the child for any reason including unlawful appropriation.
Beating in a childcare home;
Giving children inebriating alcohol or opiate sedate or psychotropic substance;
Misuse of youngsters by militant or adult groups;
Offenses against handicapped kids; and
Grabbing and snatching kids.
Draft amendment in Rules
For the powerful execution of these plans, the Draft Rules will specify children’s cordial methodology to summarize and to keep a record of it. It is recommended that each police headquarters will have a child cordial room, and a special children’s room will be assigned in each Court complex. Notwithstanding the Draft Rules, forms have likewise been drafted to institutionalize and improve to execute plans. An aggregate of 49 Forms has been drafted which is more than twofold the forms in Model Rules, 2007. Separate individual consideration rules for kids needing care and insurance and those in a struggle with legal matters have been made, a draft structure for social foundation recording data report has been created to help the police in recording data about kids. Rules are designed for the regular audit of youngsters in the age group of 16-18 years for their wellbeing. A few different rules are identified with the occasional report by a post-trial supervisor, case checking sheet, Comprehensive psycho-social report, Rehabilitation card, and so on will go far in better understanding and execution of the Act and Rules surrounded thereunder.
The need for the legislation
The loopholes in the execution of different safeguarding plans for children needing care and assurance depend on the circumstantial investigation it believes. The broadened gaps due to misuse of laws and enactment need proper evaluation as we’re not done before. Juveniles security administrations at the region/city/state level, still to the huge educated child needing care and education are outside the wellbeing net, inadequate projects and subsidizing which bring Juveniles to be included in poor kids, a lopsided portion of irrelevant assets, no appropriate spotlight on institutional and non-institutional administrations, absence of coordination of projects/benefits, no opportune reclamation of kids with families, absence of qualified experts, absence of parallel linkages with Education, Health, Police, judiciary, Services for the handicapped, and so forth. Additionally featured explicit holes, for example, the absence of gauges in the institutional foundation in the workplace of Child Welfare Committees (CWC) and juvenile justice Boards (JJB), lacking offices for the viable working of Child Welfare Committee and Juvenile Justice Board, Inadequate under-qualified members in Child Welfare Committee and Juvenile Justice Boards. They are lacking behind in compelling observing and assessment of the juvenile justice system, no legitimate offices for home alone kids, abandoned children. Just a couple of children have profited through Non-Institutional Care choices like Adoption, Foster Care and Sponsorship and many who are deprived of all support.
Conclusion
According to a 2015–16 economic analysis, it is found that there is a sharp decrease in government school enrolments in provincial regions from 2007 to 2014. It stressed the need to build these numbers significantly to accomplish the Universalization of Education. However, considering such proposals, funds assigned to the Sarva Shiksha Abhiyan was raised by a minimum percent. There exists just a single welfare scheme identified with child labour scheme for the welfare of working children in needing care and security and that too saw a certain decline in funding.
It is appropriate to take note of those children needing care and security just as children in conflict with the law scarcely discover whether there any place in the budget allocation. An expansion in wrongdoings against juveniles and juveniles makes them much progressively powerless, henceforth the absence of consideration regarding child security is perturbing. Deficient financing for essential plans will undoubtedly negatively affect the reformative and rehabilitative methodology received by the acts of 2000 and 2015.
Juvenile Justice (Care and Protection) Act 2015 was passed in light of the failure of Child protection. Yet at the same time there exists a similar circumstance due to the absence of duty and commitment, coordination between different partners in Child Protection and due to the absence of experienced and logical social work experts in the usage of ICPS at state to grass-root level. Child protection should go under a single organization following with a positive, adequate and proficient hierarchical structure which should root till the village level.
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“This article is written by Yashovardhan Agarwal, currently pursuing B.A.L.L.B.(Hons.) from Hidayatullah National Law University. This is an exhaustive article which talks about what is culpable homicide and discusses in detail about several nuances related to it with the help of related case laws.”
Introduction
Homicide is a term which originates from the Latin term ‘Homo’ means human and ‘caedere’ means killing. The act of homicide is an act that has been a part of human life since day 1. Early men used to kill each other for food or creating dominance, the kings used to perform homicide to win territories and now people kill each other in the sway of jealousy, greed, etc.
Homicide is one of the most grievous act a person can commit as it is the highest order of bodily injury inflicted on a human being hence that’s why regulations regarding Homicide are really grave, for instance, culprits are usually sentenced to life imprisonment or the death penalty as these are the most extreme punishments given by the judiciary.
In India homicide is divided into two forms- Culpable Homicide (Section 299 of the Indian Penal Code) and Culpable Homicide amounting to murder (Section 300 of the Indian Penal Code). Both of these have a very minimal difference but these differences prove to be very crucial for the legal system as the delivery of a fair judgment is dependent on these differences.
In this article, we’ll be discussing the third type of Unlawful Homicide, ‘Culpable Homicide’. What is culpable homicide, what are the ingredients, difference between culpable homicide and murder, punishment regarding it and certain landmark cases to prove our contentions?
Lawful and Unlawful Homicide
A culprit in a case of Homicide cannot always be culpable. This derives the notion of lawful homicide where the accused had a valid reason to commit the crime. In these cases, the person will not tend to be tried by the law and can also be exempted from the charges.
These can include death caused in self-defence or by mistake of fact or there was a bonafide execution of the law etc. Hence Homicide can be lawful as well as unlawful. Lawful Homicide may include justifiable and excusable homicide. Unlawful Homicide may include death by rash and negligent act (Sec 304-A), suicide (Sec 309) or culpable homicide.
Culpable Homicide
As mentioned before culpable homicide is a type of unlawful homicide. Laws regarding culpable homicide are enshrined in the Indian Penal Code 1862 (IPC). According to which, there are two types of culpable homicides-
Culpable Homicide not amounting to Murder (Section 299 IPC)
It can be simply referred to as culpable homicide, this comes under the purview of Section 299 of The Indian Penal Code 1862 which states that:
An act done with the intention of causing death or causing such bodily injury which is likely to cause death or having the knowledge that he can likely by his act cause death, he’ll be committing the offense of culpable homicide.
Conditions
After bifurcating the definition, we get 3 conditions which have to be fulfilled to attract Section 299 of the Indian Penal Code these are-
The intention of causing death.
The intention of causing such bodily injury as is likely to cause death.
With the knowledge that he is likely by such an act to cause death.
Illustration
A not knowing that D has a tumour in his brain, hits him hard on the head with a cricket bat, with the intention of causing death or with the knowledge that death is likely to be caused.
D dies because of the bursting of the tumour.
A is liable for culpable homicide not amounting to murder.
Case Law
It was held in the case ofNara Singh Challan v. State of Orissa (1997) that Section 299 of the Indian Penal Code is the genus and Section 300 of the Indian Penal Code is the species. Hence, there are no independent sections regarding culpable homicide not amounting to murder it is the part of Section 300 of IPC which defines Murder.
Herein, the court observed that:
“For deciding the proper punishment which is proportionate to the current offense, IPC has divided culpable homicide into three degrees. First is the gravest form which is Murder it is defined under section 300 of IPC, the second is the culpable homicide of the second degree which is punishable under Section 304 part 1 of IPC and Third is the lowest degree of culpable homicide which is punishable under Section 304 part 2 of IPC.”
Culpable Homicide amounting to Murder
It can be simply referred to as Murder, this comes under the purview of Section 300 of the Indian Penal Code 1862 which states that:
Culpable homicide is murder, if the act is done with the intention of causing death or if it is done with the intention of causing such bodily injury as is likely to cause the death of the person or if the inflicted bodily injury is sufficient enough in the ordinary course of nature to cause death or if there is knowledge involved that the act done is so fatal that in all probability it can cause death or such bodily injury as is likely to cause death and commits such act without any excuse.
Conditions
After bifurcating the definition, we get 4 conditions which have to be fulfilled to attract Section 300 of the Indian Penal Code these are-
The intention of causing death.
The intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused.
With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
The person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Illustration
X knows that Z has a tumour in his brain and he hits him again and again with a bat on his head with the intention of causing death, and
Z dies subsequently.
X is liable for Murder.
Exceptions to Section 300 of the Indian Penal Code 1862
Culpable homicide amounts to murder when the act is done with the intention of causing death but in the cases mentioned below this principle doesn’t apply. The following acts can amount to culpable homicide not amounting to murder. Exceptions 1-5 in the (d) and (f) illustrations of section 300 of the IPC define conditions when culpable homicide is not amounting to murder, these are as follows-
It is not culpable homicide amounting to murder if it is committed by a person who gets deprived of the power of self-control and causes the death of someone because of a grave and sudden provocation.
It is not culpable homicide amounting to murder when the offender causes the death of someone while exercises his right of private defense of person and property in good faith
It is not culpable homicide amounting to murder if a public servant causes someone’s death while performing his duties and in good faith and he believes that his acts were lawful.
It is not culpable homicide amounting to murder if a person causes the death of someone commits it in a sudden fight in the heat of passion upon a sudden quarrel
It is not culpable homicide amounting to murder when a person suffers death with his own consent when he is above 18 years of age.
Essential Ingredients
Culpable Homicide not amounting to Murder
According to the definition provided under Section 299 of the Indian Penal Code, there are majorly 3 essential ingredients to prove that the person is liable for culpable homicide not amounting to murder. These are-
The intention of causing death.
The intention of causing such bodily injury as is likely to cause death.
With the knowledge that he is likely by such an act to cause death.
Culpable Homicide amounting to Murder
According to the definition provided under Section 300 of the Indian Penal Code, there are majorly 4 essential ingredients to prove that the person is liable for culpable homicide amounting to murder. These are-
The intention of causing death.
The intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused.
With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
The person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Culpable homicide by causing the death of a person other than the person whose death was intended
The notion of ‘culpable homicide by causing the death of a person other than the person whose death was intended’ is enshrined in Section 301 of the Indian Penal Code which states that:
A person commits culpable homicide when he causes the death of another person while trying to kill the other person. Here the intention of the person who killed or grievously hurt any other person whom he didn’t want to kill or hurt is not considered.
Illustration
Let’s consider, there was Mr A who was angry with Mr B as he took over his business.
He plans to kill Mr B. In order to achieve that he Buys a gun.
He spots Mr B on the street. He takes out his gun and shoots Mr B.
Accidentally the bullet deflects because of a pole and eventually kills Mr C.
Now according to the law, Mr A has committed culpable homicide.
It is also regarded as the principle of transferred intent or transferred knowledge or doctrine of the transfer of malice.
Through the perspective of Sec 299 and Sec 300 IPC
The law didn’t make any distinction between the cases where the person died whether his death was intentional and unintentional. According to Section 299 and Section 300 of the Indian Penal Code, there is nowhere mentioned that the intention to cause injury or death of someone or knowing the consequences of the act is with respect to a particular person only. Hence, a person who has shot someone intentionally but accidentally the bullet changes its direction killing another person, the person who fired the shot is equally liable for the death of the other person as he would have been for the person he intended to shoot.
Case Laws
This is not a new piece of legislation, it dates back to the British era. In the case of R. v Latimer (1886) a person got into a fight and in course of the fight, to beat the man he took out his belt and struck the belt but it rebounded and hit a lady, she was grievously injured. The court held,
The defendant is to be held liable for the injuries inflicted on the woman ignoring the fact that he had no intention to harm her. The mens rea has transferred to the woman from the man he was going to hit with his belt.
This piece of legislation is so confusing that some courts tend to forget that this type of law even exists, it is evident from the case ofRajbir Singh v. State of U.P..
Herein the Supreme Court came thrashing on the Allahabad High Court for not considering Section 301 of the Indian Penal Code in the present case.
In this case, a girl died of a bullet which was fired on another person. The High Court stated in its decision that there was mistake involved and there was no intention of the accused to kill the girl.
The supreme court held that the intention of the accused should be ignored in the present case. The court also held that the Allahabad High Court’s reasoning behind stating the act as an accident is not to be sustained as their reasoning was erroneous. Ultimately he was held liable for his actions.
Punishment
As we know there are two types of culpable homicide according to the Indian Penal Code 1862. Culpable homicide not amounting to murder (Section 299 IPC) and culpable homicide amounting to murder (Section 300 IPC). Hence there are two different provisions regarding the punishment for both the offences mentioned in the Indian Penal Code.
Section 304 of IPC
Section 304 of the Indian Penal Code provides punishment for culpable homicide not amounting to murder (Section 299 IPC), it states that whoever causes death with intention or causes such bodily injury as is likely to cause death or with the knowledge that death is likely to be caused because of the act, shall be liable for life imprisonment or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine (Section 304(1) IPC).
Secondly, whoever causes death without the intention of causing death or such bodily injury as is likely to cause death or doesn’t have the knowledge that his act could cause death shall be sentenced to imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine(Section 304(2)IPC).
If the act which causes death is done without the intention of causing death but with the knowledge that death is likely to be caused by such act, the person shall be sentenced to imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Case Law
In the case ofShanmugam v. State of T.N., it was held that offences under Section 304 can be considered as cognizable, non-bailable and triable by the Court of Sessions. In this, there arose a quarrel between the accused and the deceased In course of the quarrel the accused stabbed the deceased with a spear in the abdomen and the chest resulting in the death of the victim because of septicemia. The accused was sentenced to life imprisonment under part I of Section 304 of IPC.
If we see in this case that Exception 4 under Section 300 applies here. Hence, it would come under Section 299 of the IPC. Part 1 of Section 304 was attracted because it was clear from the facts that there was a clear intention to cause death or cause such bodily injury which is likely to cause death.
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Section 302 of IPC
Section 302 of the Indian Penal Code provides punishment for murder or culpable homicide amounting to murder (as stated in Section 300 of IPC), it states that whoever commits murder shall be liable for life imprisonment or death penalty and he shall also be liable for a fine too.
Death penalty under Section 302
However, death penalty can only be given in rarest of the rare case this was held in the case of Bachan Singh v. State of Punjab wherein it was observed that when the court can avail the recourse of life imprisonment then why the court has to go for such an inhumane punishment like death penalty. The Indian Judiciary has defined certain conditions in which death penalty could be used as a recourse these were laid down in the Machhi Singh And Others v. State Of Punjab which are as follows:
When the murder committed is extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner which awakens intense and extreme indignation of the community. For instance, setting someone’s house on fire with the intention to burn them alive;
The magnitude of the crime is at a large scale which means causing multiple deaths;
When death is caused because of the caste and creed of the person;
When the motives of the accused were cruelty or total depravity; and
When the murder victim is an innocent child, a helpless woman or person (due to old age or infirmity), a public figure, etc.
But it is still subjective to determine what is rarest of the rare and what is not. Hence it leaves an ambiguity that in what cases can the death penalty be applied and with recent developments in the Mukesh & Anr vs State For Nct Of Delhi & Ors (Nirbhaya case) where all the accused were sentenced to death penalty, made this topic the epicenter of several heated debates across the country, the major question raised is that like other countries why can’t India sort to abolish the death penalty when there is a recourse like life imprisonment present with the judiciary.
Illustrations
Section 299 IPC (Culpable Homicide not amounting to Murder)
A, dig a deep pit and cover it with grass and clay, with the intention of causing death or with the knowledge that death is likely to be caused. B thinking it as a hard ground tries to stand on it and dies. A is liable of Culpable Homicide not amounting to Murder.
A paid a truck driver to slam his truck on the car of C, he did it with the intention of causing death or with the knowledge that death is likely to be caused. C went to the market to buy groceries. The truck crashes with his car, C dies. A is liable of Culpable Homicide not amounting to Murder.
A not knowing that D has a tumour in his brain, hits him hard on the head with a cricket bat, with the intention of causing death or with the knowledge that death is likely to be caused. D dies because of the bursting of the tumour. A is liable of Culpable Homicide not amounting to Murder.
Section 300 IPC (Culpable Homicide amounting to Murder)
X shoots Z with a shotgun on the point-blank range with intention to cause death, and Z dies subsequently. X is liable of Murder.
X knows that Z has a tumour in his brain and he hits him again and again with a bat on his head with the intention of causing death, and Z dies subsequently. X is liable for Murder.
X starts firing a machine gun in a crowded mall with an intention of causing death, and subsequently killing 10 people. X is liable for Murder
Exceptions of Section 300 IPC
X on coming home finds that his wife is sleeping with A. He causes the death of A by stabbing him with a knife under grave and sudden provocation. X Is not liable under Section 300 of IPC.
X was attacked by thugs who had guns with them, X in private defence kills all the thugs with his licensed gun. X is not liable under Section 300 0f IPC.
X is a Police Officer, one day when he was on duty, he saw some robbers entering a house with weapons, X encounters the robbers and kills them assuming that they would harm the residents of the neighbourhood. X is not liable under Section 300 of IPC.
X and Y had a dirty fight, X in a fit of rage punches Y so hard on the stomach that Y starts bleeding internally and dies. X is not liable under section 300 of IPC.
A who’s an adult instigates B to jump from a ten-story building, B being under 18 and not being able to comprehend what A was up to does the same and Dies, here A is liable for Abetted Murder
Section 302 IPC
A with the intention of killing B shoots at him but the bullet deflects because of bad aim and kills C. A is liable of culpable homicide under article 301 of IPC.
A was driving his car, under the influence of alcohol he was driving at a speed of 150 kmph, he loses control and ramps the car on a footpath killing almost everyone sleeping there. A is liable for culpable homicide under article 301 of IPC.
Major differences between culpable homicide and murder
“All murders are culpable homicide but not all culpable homicides are murders” this is a very common phrase used to establish a difference between culpable homicide and murder. It talks about the point which I’ve already proved before that culpable homicide is the genus and murder is the species. The major difference between them is that murder is a more aggravated form of culpable homicide. In murder there is no presence of ambiguity that the act may or may not kill as it is present in culpable homicide, looking at Section 299 of the Indian Penal Code where there is clearly mentioned that:
“Act done with the intention of causing death or causing such bodily injury which is LIKELY to cause death or having the knowledge that he can LIKELY by his act can cause death, he’ll be committing the offense of culpable homicide”.
If you notice the multiple occurrences of the term “LIKELY” showcases that there is an element of ambiguity that the act of the accused may or may not kill the person, is present. Whereas, in the case of murder which is defined under Section 300 of the Indian Penal Code there is no such mention of words as “likely” which shows that there is no chance of ambiguity left on behalf of the accused, the accused is for sure that his act will defiantly cause death.
As mentioned by Sir James Stephen, it is extremely difficult to distinguish between Culpable Homicide and Murder as the end result of both is death. But there is a presence of difference though little it all boils up to a very subtle distinction of intention and knowledge involved in both the crimes. The actual difference lies in the degree of the act there is a very wide difference of degree of intention and knowledge among both the crimes.
Case Law
Through the case of Reg. v. Govinda, a clear distinction was drawn between culpable homicide and murder. According to the facts of the case, there was a quarrel between a husband and a wife in a fit of anger the husband knocked the wife. The wife became unconscious and the husband in order to wake the wife punched her with closed palms but unfortunately, the wife died because of internal bleeding in her brain. Herein, Melvil, J, held that the man was liable under Section 299 of IPC because clearly there was no intention to cause death and the act was not grave enough to cause death on the spot.
Most Intriguing Judgments Regarding Culpable Homicide
Some land-mark judgments regarding culpable homicide are, as follows:
Bhagwan Singh v. State of Uttarakhand
The decision regarding this case was given recently but the case dates back to 2007. Herein, 5 people were hurt and 2 of them succumbed to their injuries because of celebratory gunfire. The furious bench of the Supreme Court consisting C.J.I S.A. Bobde, BR Gavai and Surya Kant, JJ said:
There is a rise in the incidents because of celebratory firing as they are seen as a status symbol. A licensed gun that is to be used for protection should not be used in celebratory events as it can turn to be very fatal.
According to the evidence collected the accused held the gun towards the roof of the house unfortunately the bullets got deflected and injured. The accused pleaded not guilty as he had no intention to cause anyone’s death. The court noticed that the accused was carrying a loaded gun in public and he did not take proper care of his surroundings. He must’ve had an idea that the pellets could deflect and hurt someone.
The court held him guilty. The offense amounted to culpable homicide under Section 299 of IPC, punishable under Section 304 Part 2 of the IPC.
Ram Kumar v. State of Chhattisgarh
In this case, the appellant falls so madly in love with his sister-in-law that one day before her marriage he called her in a field and hit her head with an axe. The girl went running towards her house and then went to the police office to file an FIR. After that she was taken to the hospital but she died on the way. The court tried to dwell on the legal nature of the FIR as to whether the same was admissible as evidence of dying declaration.
The court relied onDharam Pal v. State of U.P.observed that an FIR can be considered as a dying declaration if the victim dies before appearing in front of the court.
The appellant, in this case, was punished by the District Court under section 302 of the Indian Penal Code (punishment for murder) but the accused filed a criminal appeal in the High Court against the judgment of the District Court, herein the court, after looking at the post mortem report which showed that if the girl would’ve reached the hospital early she could have been saved, he altered the conviction of the appellant and sentenced him under section 304 part I Indian Penal Code(Culpable Homicide not amounting to Murder).
Minister of Justice and Correctional Services v. Estate Stransham-Ford
It’s a South African case wherein a patient suffering from cancer went to the court to seek court permission to let the medical practitioner end his life and end his suffering. He was seeking it as his right enshrined in the Bill of Rights under the South African Constitution and also asked that the medical practitioner should not be charged with culpable homicide, the applicant was allowed by the court to let the medical practitioner go for assisted euthanasia. But unfortunately, he died 2 hours after the judgment. The High Court stated that it is not considered in common use, until and unless the state allows the individual.
Conclusion
In this article, we discussed what is culpable homicide. It means causing the death of someone by an act so fatal which can likely cause death. According to the Indian Penal Code, there are two types of culpable homicide. Culpable homicide not amounting to murder. (Sec 299 IPC), Culpable homicide amounting to murder. (Sec 300 IPC).
We discussed that punishment regarding culpable homicide is mentioned under Section 302 and Section 304 of the Indian Penal Code.
Punishment for culpable homicide amounting to murder (Sec 300) is given under Section 302 which is either death penalty or life imprisonment as well as fine. Punishment for culpable homicide not amounting to murder (Sec 299) is given under Section 304 which is either imprisonment for 10 years or fine or both. It can extend to life imprisonment if there was intention present.
There is one interesting section as well in the act which talks about a person killing another person by mistake while he was trying to kill another person, it is Section 301 of IPC. We learned about some very interesting cases regarding Culpable homicide, through the case of Bhagwan Singh we got to know about regulations regarding celebratory firing, we got to know the international status of validity of euthanasia through the South African Case of Minister Justice.
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