This article is written by Abhinav Anand, a student pursuing B.A.LL.B(Hons.) from DSNLU,Visakhapatnam. This article deals with the effects of not paying EMI during the COVID-19 lockdown. It also discusses the moratorium that is imposed by the RBI. It suggests changes in the policies to scale up the economy.
Introduction
The recent pandemic in the country has shocked everyone. The outbreak has adversely affected the lives of people. The social and economic status has been badly hit by the lockdown imposed to curb the menace of COVID-19. The Finance Minister after considering the fact that people are left with no financial sustenance imposed the moratorium of 3 months on every kind of loan from banks or non-banking financial corporations. The Finance Minister has also provided for the relief funds for the marginalised community of the country. The article critically analyses the after-effects of the imposition of moratorium. It also discusses the force majeure clause which is applicable in extraordinary situations. It concludes by suggesting changes in the system that could prevent the people from suffering from such a kind of pandemic in the future.
What would happen if you are not able to pay EMIs during covid lockdown?
A recent interview by Finance Minister
The Finance Minister Nirmala Sitaraman has addressed the RBI to allow the moratorium for few on all kinds of loans. The intention behind this move is to ensure that borrowers should not face economic problems. In the wake of the COVID-19 outbreak the country has been locked down. Due to lockdown all the businesses are shut down, so it will be tough for the borrowers to pay the equated monthly installments of the loans.
Moratorium
Moratorium is a period in which the bank allows its customers to defer from paying payments of the EMI of their loans. It is allowed to counter the extraordinary situation. The recent imposition of moratorium for 3 months is because of the lockdown imposed by the government due to COVID-19. The bank only allows relaxation of the envisaged time for payment of the EMI, it does not provide any kind of waiver. In the current situation, the moratorium imposed will be availed by the customer after the customer notifies the bank about his critical financial condition. The other method of availing the moratorium is when a customer bank account has no deposit for credit in the loan then the bank will consider that customer has availed the facility of the moratorium.
Exemption for three months
The RBI after considering the request of the Finance Minister has imposed the moratorium for three months on every kind of loan. The borrowers of the bank had to notify the bank that they wanted to avail of the facility of the moratorium. If the customer fails to notify the bank, then the bank can take money from the account of the borrower.
How will it affect the economy
If 50% or more borrowers opt for the moratorium, then the additional liquidity provided by the RBI would be less than the amount received by the bank through EMI and interest payment. In this case, the bank will be unable to lend money after three months and also the bank won’t be able to disperse the amount of fixed deposits. The situation can become worse if the entire banking sector will be under a liquidity crunch. The long term projects of private builders will stop. The situation will lead to unemployment on a large scale. The effect will be on the marginalised labourers who have already lost their jobs due to lockdown. The Bank will need a huge influx of money through bailout from the Government. If the influx of money is not done immediately it will make the situation worse. The economy of the country will collapse immediately. The developmental activities will come to a halt.
The move of RBI could possibly put the Non-Banking and Financial Corporations at higher risk. The high credit deposit ratio will adversely affect the lending capacity of the banking institution. The banks will be under a liquidity crunch because of no deposit of the loan amounts. The banking institution will rely on the Cash Reserve Ratio or they will move to RBI for the loans, this will increase the burden on RBI.
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Is Force Majeure applicable in the current situation?
According to the Cambridge Dictionary, the term “Force Majeure” means war, crime or earthquake that prevents the completion of the act mentioned in the legal agreement.
The recent lockdown is imposed to limit the spread of the COVID-19. The lockdown process has stopped performances of different kinds of works such as construction work, development of new establishments, production of new products. The situation is an unexpected event.
These are the conditions that must be fulfilled to call the event as a force majeure event:
The unexpected event occurred: the event occurred which is beyond the control of either of the parties to the agreement.
The parties to the event assumed that such an event would not occur: the non-performance of the party will not be excused if the event occurred is foreseeable and the party had prior knowledge that it might stop them from executing the same.
The parties have taken all the measures to perform the contractual obligations to the agreement or at least to mitigate the damages: the party seeking the clause of force majeure has to perform all the necessary conditions. The party has to inform the other party as soon as possible that the entrusted duty cannot be performed by them because of the unforeseen circumstances.
Further, in this case the force majeure clause frustrates the very intent of the agreement. It terminates any kind of contractual obligation on either of the parties due to the unforeseen circumstances. For instance,if any agreement becomes unlawful after any government notification then the force majeure clause will be applicable. For instance, any agreement becomes unlawful after any government notification then the force majeure clause will be applicable.
In Satyabrata Ghose vs. Mugneeram Bangur & Co, the Supreme Court had adverted Section 56 of the Indian Contract Act, 1872. The Supreme Court held that the word impossible in the section has not been used in its physical and literal impossibility. To avail the force majeure clause in any of the events, it is not necessary that mere literal impossibility doesn’t need to attract the force majeure. It is the mere impracticality of the event, given the parties to the agreement, if the objective of the agreement cannot be achieved by any event then also the force majeure can be invoked. Due to any untoward incident or unanticipated change which upsets the very foundation of the contract then the force majeure clause can be invoked.
In Naihati Jute Mills Ltd. vs. Hyaliram Jagannath, the Supreme Court referred to the English law on frustration and observed that a contract is not frustrated merely because the terms of the contract are altered. The contract becomes frustrated because the objective of the contract might not be achieved because of unforeseen circumstances.
In Philips P.R. Core, Inc vs. Tradax Petroleum Ltd., it was observed that the basic purpose of force majeure clause is, in general, to relieve a party from its contractual duties when its performance has been prevented by a force beyond its control or when the purpose of the contract is frustrated.
Effects of the crisis
Credit Pressure will rise in the company
The lockdown has disrupted businesses and hit the income of different establishments. The increased credit pressure is evident in many companies. The credit ratings have marked the growth negative. The intensifying pressure has been witnessed by the credit rating agency,CRISIL, which marked their growth negatively. The effective measures need to be taken otherwise the companies will not be able to revamp from the shock for a long time.
The rise in the number of bad loans
The recent move of RBI to grant moratorium will lead to a surge in bad loans of the mid-sized and small companies. The revenue returning problem will stop the mid-sized company from having cash inflow which in turn will hamper their growth. The public sector banks are already hit by the rising NPA so the existing condition will further make the situation worse.
By how much the bad loans will rise?
Before the virus outbreak, India’s economic growth was pegged at 4.7% in the 3rd Quarter of the fiscal year 2020. The RBI’s financial stability report projected the growth of gross NPA under the banking sector just below 10%.
What will happen if bad loans increase?
With the increase in large numbers of bad loans the bank will not be able to give the loans to other borrowers, this will lead to restriction to the expansion of the businesses across the country. The financial stability of the country will be at risk.
Will the Centre bailout funds to recapitalize funds?
The bank saddled with the high non-performing assets will most likely see the infusion of funds from the investors. The regulatory frame of the RBI will be relaxed to prevent the banks from Prompt Corrective Action. The Centre and RBI will devise a strategy to counter the measures of the COVID- 19 lockdown. The planned strategy needs to be implemented soon after the situation returns to normalcy. The government should adopt an aggressive approach and expedite the process of investment.
What are the methods to revive the economy?
These are the following methods adopted by the government to revive the economy:
The revocation of the high tax rate that increased recently. This will help the foreign portfolio investors to invest in the country.
The corporate tax rate must be reduced and the exemptions must be removed.
The restriction imposed on the listing companies of having 35% public holding must be removed.
The statutory liquidity ratio must be reduced and the state bank should lend instead of buying the government security debt.
The quality review of non-banking financial corporations should be done and the one which is in healthy condition must be provided with the incentives to help the economy.
The incentives must be provided to the housing and automobile sector to revive the demand. The removal of time-bound obligations will help to scale up the investments.
The restrictiction imposed on E- Commerce should be removed. The export-oriented sectors should be provided with the special credits and duty-free access.
The freight rates of railways must be reduced and the cross-subsidisation of fare must be reduced.
The Corporate Social Responsibility under Companies Act, 2013 should be removed.
The Essential Commodities Act must be revived and the Agriculture Produce Market Committee (APMC) to liberalise the farm sector.
The subsidies provided in the variety of sectors should be removed and the focus should be shifted towards the PM-KISAN(Prime Minister Kisan Samman Nidhi) and MGNREGA(Mahatma Gandhi National Rural Employment Guarantee Scheme).
The Food Corporation of India should be reformed and the trade of pulses, cereals, encourage trade in lentils, horticulture and animal husbandry.
The incentivisation of refrigerated storage should be done to keep the produce of farmers safe.
The strategic planning and new industrial policy will attract the company leaving other countries because of strict regulations.
The new tourism policy should be announced to attract tourism in the country.
The establishment of a Special Economic Zone in the country will create opportunities for the labourers.
The Public-Private-Partnership should be increased to complete the work in time and with accountability.
Conclusion
The steps taken by the government is commendable. But, when one analyses the situation in general, it shows many loopholes which must be bridged immediately. The aftereffect of the situation will be worse. The Indian Economy will suffer shocks and recession can also occur. The economists and many rating agencies have projected the GDP growth to be lower than the last year. The plight of migrant labourers who lost their jobs due to lockdown will further worsen their situation. The country needs a robust plan to scale up the economy on every front. The government should influx huge capital to ramp up the trajectory of the economy.
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This article is written by Rachit Garg from University of Petroleum and Energy Studies, Dehradun. This is an exhaustive article, aiming to give a brief introduction to the concept of International Law and its various aspects.
Introduction
Every society, irrespective of its population, makes a legal framework (law) under which it functions and develops. It is permissive in nature as it allows individuals to form legal relations with rights and duties and restrictive in nature as it punishes the wrong-doers. These laws are referred to as Municipal laws. The world today requires a framework through which interstate relations can be developed. International Laws fill the gap for this.
The term ‘International law’, also referred to as Laws of Nations was first coined by Jeramy Bentham in 1780. Every country is referred to as ‘state’ in International Law.
Meaning
The modern international law system is a product of only the past four hundred years bearing witness to the influence of various writers and jurists of sixteen to eighteenth century, who formulated some of its most fundamental principles.
International laws are a set of rules, agreements and treaties that are binding between countries. Countries come together to make binding rules that they believe will benefit the citizens. It is an independent system of law existing outside the legal framework of a particular state.
What is the aim of International law?
The existence of international law is the result of increased interstate engagement. It mainly aims to maintain international peace and security among different states. It also helps in:
promotion of friendly relations among the member states (members of the International community, for example, United Nations),
providing for basic humanitarian rights,
to solve International problems through international cooperation,
to refrain the state from using threat or force over the territory of any other state to provide for right to self-determination to people, and
to use peaceful methods to settle international disputes are few of its functions.
Who are the subjects of International Law?
It is referred to as entities who have a legal personality, with certain rights and duties under the international legal system.
State is considered to be the primary and original subject of international law. However, it also regulates the actions of other entities:
Individuals – Common people of any state are also believed to be the subject of international law.
International Organizations – It is an association of states, established by a treaty between two or more states. International Organizations too have a legal personality and are considered to be the subject of international law. For example, the United Nations.
Multinational Companies – They own and operate their corporate entities in at least one other country aside from the place where it was incorporated, therefore it is established in more than one nation.
All are considered to be subjects of international law and are enshrined with both rights and duties.
However, in the past, states were the only subjects of the international law but with the increase in the scope of the international law, many other entities like the one discussed above have been given international personality. So now the question arises, whether they may be treated as the subjects of international law and if they are given the international personality, what is the criteria determining their qualification to be the subject of the international law. So there are different theories for determining the same. The most prominent of them are:
Realist Theory
According to this theory, only the Nation/States are considered to be the subject of the international laws. It relies on the principle that it is for the nation/state that the concept of international law came into existence. These nations/states are distinct and separate entities, capable enough to have their own rights, obligations and duties, possessing the capability to maintain their rights under international law.
Prof. L. Oppenheim being the strong supporter of this theory believes that as the law of nations is primarily a law between the states, to that extent, subjects of the law should be nations only.
However, the theory has been criticized on the fact that it fails to explain the case of slaves and pirates as under international law, slaves have been conferred with some rights, while the pirates are treated as enemies of mankind.
Fictional Theory
Supporters of this theory suggest that the subjects of international law are the individuals only and that legal order is for the well-being of the individuals. They firmly believe that the Nation/state are nothing but aggregate of individuals as subjects.
Prof. Kelsen is the supporter of the theory and believes that the duties of the states are ultimately the duty of the individuals of the states and there is no difference between the international law and municipal law and have been made to be applicable on the individuals only.
Even if the theory of Kelsen appears logically sound, it is seen that the international law’s primary concern is with the rights and duties of the states.
Functional Theory
Both the Realist and the Fictional Theory take on an extreme course of opinion, but, according to Functional Theory, neither state nor individuals are the only subjects. They both are considered to be the subjects of modern International law as they both have recognized rights, duties and obligations. Along with them, several other entities, like African Union, have been accepted as subjects of international law.
In the present times, individuals have been conferred with certain rights and duties, for example, International Covenant on human rights. Moreover, it is agreed that international organisations are also the subjects of international law. The International Court of Justice held that the United Nation is an international person and is a subject of international law, capable of having rights and duties.
Referred to as ‘laws of nations’ in Latin, considered to be those set of rules part of those portions of law mutually governing a relationship between two nations and do not form part of a legal code or a statute.
Jus Inter Gentes
Referred to as ‘law between the peoples’, considered to be those agreements and treaties, mutually accepted by both countries.
Various Scholars on International Law
Various eminent scholars, international jurists, subject experts gave their interpreted definition of International law. Most popular among them are as follows:
According to Prof. L. Oppenheim, “Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by the civilized states in their intercourse with each other.”
As per Torsten Gihl, “The term International Law means the body of rules of law, which apply within the International Community or society of States.”
As per J.L. Brierly, “The Law of Nations or International Law may be defined as the body of rules and principles of action, which are binding upon civilized states in their relations with one another.”
Gray said, “International law or the Law of Nations is the name of a body of rules which according to their usual definitions regulate the conduct of states in their intercourse with each other.”
In Queen v. Keyn (1876), Lord Coleridge, C.J., defined International law as “The law of nations is that collection of usages which civilized States have agreed to observe in their dealings with one another.”
Is International Law really a law?
It is one of the most controversial questions that has been debated and on which jurist’s opinions hugely differ. One view considers International law not a true law, rather, a code of rule of conduct backed by morality. On the other hand, International law is considered to be a true law and is regarded as a law, similar to that of ordinary laws of a state, binding upon the citizens.
Austin’s View – International law is not a true law
According to Austin, law is the command of the sovereign punished by sanctions in case the command is violated by the individual. There must be a legislative authority enacting the rule of conduct and enforcing physical sanction. So based on what he said, it can be concluded that any rule which is not enacted by any superior or legislative authority, cannot be regarded as a law and moreover, if laws are violated, sanctions must be imposed. Based on that, it can be said that rules are only morally and ethically valid if they aren’t issued by any sovereign authority. If we apply this theory to International law, we will see there is no legislative power over the society, based on which Austin concluded that International laws are merely based on ethics and morality and are not true law.
Oppenheim’s View – International law
According to him, laws are nothing but a body of rules for human conduct within a community, which can be enforced by an external power if there’s a common consent of the community for the same. Based on what he said, we can conclude that, firstly, there must be a community, secondly, a body of rule of conduct governing the community must be there and thirdly, common consent among the community for the rules to be enforced power must be present. From this, we can conclude that it’s not necessary that rules should be enacted by a legislative authority within the community for them to be legally binding.
Types
International Law can be broadly divided into three types: Public International law, Private International law and Supranational Law.
Public International Law
It refers to rules and regulations governing international relations between different states and international institutions. It sets rules concerning all mankind: the environment, international business, the ocean, human rights, etc.
Public international laws apply to international organizations like the United Nation (UN) and the World Trade Organization (WTO).
Aspects of Public International Law:
Custom– consistent state practices relying on opinio Juris, that is, belief, that is to be carried out there is a legal obligation to do so.
standard behaviour globally accepted, jus cogens.
Legal Codes referred to as treaties.
For example, the Kyoto Protocol, a climate agreement, has many countries as signatories for reduction of their greenhouse gases emissions in order to protect the environment.
We can take Convention on the Rights of the Child, a convention, ensuring the protection of child rights in the signatory countries.
The Sovereignty of states
It’s the idea that the state is supreme and it can’t be a subject to other states’ rules and regulations. No state can be forced to sign a treaty. They are free to accept or decline to sign an international treaty or agreement.
Private International Law
It is also referred to as, ‘Conflict of laws’ and the phrase was first used by Ulrich Huber his book- ”De Conflictu Legum Diversarum in Diversis Imperiis” in 1689.
Private International Law establishes and deals with the relationship between citizens/private entities of different countries. People from different parts of the world are often interacting with each other forming legal relations.
For example, an American man and an Indian woman were married in India and now live in Los Angeles. In case they ever want a divorce, the rules of private international law will determine where they will be required to go, either to the US or to an Indian court to get divorced.
The same is applicable to business as well as. Globalization has led to business activities between various countries. For example, if you are defrauded by a foreign country’s personal/private entity or organisation, then the rules of private international law will apply if you want to sue.
Supranational Law
It refers to a situation in which a nation/state surrenders to a court of their choice their right to make certain judicial decisions, which will take priority over the decision made by the national courts. This distinguishes it from the Public International Law. For example, the supranational law is represented by the European Union (EU). All the courts within the member states of the EU are overruled by the European Court of Justice in accordance with EU laws.
Merits/Demerits of International Law
Merits
State’s Interest Protection
It can be said without a doubt that International laws have protected the interests of states, especially of those, which have no power to protect their own interests.
For example, the World Food Programme, a part of the UN, which is a subject of international law, is a large humanitarian agency which fights hunger worldwide and delivers food assistance in case of emergencies.
Human Being Welfare
It has played a vital role in the welfare of human beings.
For example, there are various international treaties for the promotion of fundamental human rights, justice and equality, like the Universal Declaration of Human Rights.
Unity and Strength
This law has brought unity among different nations/states as no one state can be separated from the other. Every state has become the need of the other one.
For example, the problem of global warming. Every country emits greenhouse gases which is further contributing to global warming and the impact of the same will be felt by all the countries. So, no country can combat global warming alone and will need international laws and cooperation to curb the problem.
Demerits
No Apparent Authority
There is no authority for the enforcement of the law. Only the International Court of Justice is present but it can’t settle certain matters. Moreover, once a decision is given by it, there is no such power or authority which can get it enforced.
No Legislative Machinery
As the international laws are based on treaties and conventions, they are interpreted by states according to their self-interests.
Lack of Effective Sanctions
There is no fear of sanctions, which has resulted in laws being violated frequently by the states.
Inability to Intervene
According to Article 2(7) of UNO Charter, UNO cannot interfere in the domestic matters of the states. It has been seen in such situations, international laws are ineffective and weak.
Conclusion
International law is a set of rules which are binding between countries and aims to ensure security and peace among various nations. The subject of question under international law isn’t only the Nation/state but can be an individual also. Moreover, it has emerged through a number of sources which are codified in Article 38 of the ICJ statute, according to which, customs, treaties and general principles are considered to be the source of International Law. International law is there to maintain world order and peace, settle various disputes among different nations/states and individuals and to provide fundamental rights. However, there are still various shortcomings due to which international relations are suffering.
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This article is written byParul Chaturvedipursuing LLB from Dr. R.M.L Law College Bangalore. It is an exhaustive article dealing with the procedure to file a complaint against a police officer in PCA, the roles and functions of PCA with the latest amendments and provisions.
Introduction
In every country, there is law and order to maintain peace and harmony for the proper regulation. Police are an essential part of society to make sure that there is no violence, killing, robbery, theft. They worked as a recognized agent for the government. During the time of emergency, like the present situation of lockdown and curfew the role of police is very significant to control any mishap to happen in the city to maintain proper law and order. Citizens are also dependent on the police at the time of need. The police are expected to be a collective and vital organization of society. Their power and function are crucial on one hand and difficult on the other. The dominance of different powers in the hands of police contributes to the opening of the door to human rights corruption and infringement. This article will communicate the powers and roles of the police. In case the police violate a human right, where can citizens complain? What are the provisions in CrPC? Where can one file a complaint against police if they illegally beat us?
Police atrocity is a serious problem. The crime committed by police remains one of the most serious and disruptive human rights violations in India. The excessive use of force by the police officers, including unjustified shootings, severe beatings, fatal, and rough treatment against criminals. The order from senior officials and politicians constitutes a major barrier to the police for escaping from their duty and encouraging them to commit human rights violations. They escape due punishment and are able to repeat their offences. Police officers cannot accept crimes committed by them they deny easily when exposed by the media or in news and in explanation they tend to show that the act was a mistake. Police violence occurs in all major cities nowadays and systems to deal and cope with misconduct had similar failure across all cities examined, complainants face enormous barriers in seeking administrative punishments or criminal prosecution of officers who have committed human rights violations.
Police powers are subject to two primary police roles. Their functions are maintaining proper law and order and investigation of illegal activities. The Police Act describes the police as a vehicle for crime prevention and detection. The Police define most of its powers from the Code of Criminal Procedure, 1973 and the Police Act, 1861. Some of the police powers are as follows. Police officers have the power to investigate the cognizable case of the Code of Criminal Procedure Act 1973.
There are two categories of offences
Cognizable offences – some examples are murder, rape, kidnapping, theft, dowry death
Non Cognizable offences – some examples are forgery, defamation, cheating, public nuisance
Power of Police to Investigate
The Investigation of Police starts when;
FIR is filed.
Evidence of the commission of a cognizable offence.
A competent magistrate shall order the police at any time.
The Police have the power
4.1 To prosecute both Cognizable and Non-Cognizable offences.
4.2 To test Cognizable offences without the orders of the Magistrate.
4.3 To wait for the delegation of a cognizable offence.
4.4 To probe under Section 157 without the filing of FIR.
4.5 And the right to compel witnesses to carry out an investigation.
4.6 To prosecute such a witness.
4.7 To conduct a medical examination and forensic test of rape victims.
Power of Police to Arrest
Police Power to prosecute arrests for both Cognizable and Non-cognizable offences.
A warrant required in case of non-cognizable offences.
No warrant required for arrest in case of cognizable offences.
Detention period increased by 15 days on order of the Magistrate.
In the absence of evidence, the accused is released by police.
Power of Preventive Arrest
The detained person is likely to commit an offence. Section 107 and Section 151 of CrPC grants police the power to detain preventively. The police can only arrest when there is no other way to avoid such an offence. By referring to the case, State Of M.P. & Anr vs Medha Patkar & Ors on 2 August, 2011 in the High Court of Jabalpur in appeals related to the building of Omkareshwar Dam on Narmada river in Madhya Pradesh in writ petition filed in High Court. The HC had issued directions for allotment of agricultural land in lieu of building dams for Rehabilitation and Resettlement policy. Certain landowners of Madhya Pradesh were protesting after being affected by the Sardar Sarovar Project. Even though they posed no threat to commit cognizable offences but nonetheless they were beaten and arrested. The Supreme Court held that this was an infringement of Article 21 of the Constitution. Section 151 addresses the grounds of the arrests. The Preventive arrest laws are given legal recognition under the Constitution of India and provisions cannot be said to be in violation ofArticle 21 andArticle 22.
Abuse of Powers of Police under Preventive Arrest
Section 107and Section 151 stated that if an individual is arrested he was not given the right to be heard for the next 6 days.
Case Study– In the case ofAhmed Noormohmed Bhatti v State of Gujarat, it was held that the instruction given to the detainees must also be followed in line with the cases of Preventive arrests.
Case Study-The court in the case of D K Basu v State of West Bengalgave these in the Article 21 & 22 the Custodial death and Custodial Violence of Power of Arrest mentioned in the guidelines. The Constitution Article 21 & 22 custodial death and abuse power of arrest requirements whether monetary compensation should be given for the stated violation of fundamental rights guaranteed under Articles 21 & 22. The court specified in paragraph 36 of the judgment. The conditions of arrest and declared monetary or pecuniary compensation. It shall be reasonable and indebted. The court also held that a provision is neither unfair nor unconstitutional due to the authority’s arbitrary power of it. There must be sufficient scrutiny in each case to decide whether the arrest is unconstitutional or not.
The important points in guidelines are as follows: –
Arrest or detention proceedings before the legislative provisions are enacted in that name as preventive measures: The identity of all those police officers who interrogate the arrested person shall be reported in a log document. The police officer should carry memos of arrest and it shall be prepared at the time of arrest and at least one witness shall certify these memorandum. The date, place of arrest and place of custody of an arrested person shall be informed by the police by telegraph via the District Legal Aid Organization and the police station of the region concerned within 8 to 12 hours of the arrest. A police checkroom should be given at all district and state headquarters where information on the arrest and the place of custody of the arrested person should be reported by the arrested officer within 12 hours of the arrest and shown on the conspicuous notice board in the police checkroom in paragraph 36
In addition to constitutional and statutory safeguards, these requirements do not, from time to time, detract from various other directions given by the courts in connection with safeguarding the arrested person’s rights and dignity.
Monetary or pecuniary compensation is adequate and even efficient and, at times, perhaps the only acceptable remedy for redressing the recognized violation by the public servants of a citizen’s fundamental right to life and the State is vicariously liable for its acts. The citizen’s argument is based on the concept of strict liability, and does not include the protection of sovereign immunity, and the person will seek the sum of compensation from the Government, which would have the battle to be paid by the wrongdoer.
Human Rights
The human rights commissions established under the Protection of Human Rights Act, 1993 (the Act) provide another means of holding the police accountable in cases of misconduct. The most important of these commissions is the National Human Rights Commission (NHRC), which was established on October 12, 1993.
Certain provisions in Human Rights which tell us about the basic rights of the person
International Commitments
One of the significant roles of the UN charter is to promote and encourage human rights and fundamental freedom include-
International Covenant on Economic, Social and Cultural Rights.
International Covenant on Civil and Political Rights.
Every person has the right to life, liberty, and security. The right is enshrined in Article 6of the International Covenant on Civil and Political Rights: it exemplifies that each individual has the inherent right to life. The right is protected by statute. For countries that have not abolished the death penalty, death sentences can only be imposed on the most serious offences for accordance with the law in effect at the time of the crime and not in contravention of the terms of this covenant and the convention on the prevention and punishment of the crime of genocide. This sentence should only be imposed in compliance with a final judgment passed down by a competent judge. Since loss of life constitutes the crime of murder, it is recognized that nothing shall be validated in this article. The convention on the rights of the child contains this right in Article 6 and also contained in Article 11of the International Convention on the Protection of the ‘Rights of All Migrant Workers and Members of Their Families’.
Every person has an inherent right to life; it shall be protected by the law. No one should be deprived of his freedom arbitrarily. Article 6 of the convention, paragraph 1 states that no one shall be unlawfully deprived of life and that that right shall be secured by law. It lays the foundation for the obligation of States parties to respect and safeguard the right to life, to give effect to it through legislative and other measures, and to provide effective remedies and reparations for all victims of the right to life violations.
No one shall be subjected to misery, suffering or inhuman or degrading treatment or punishment. A more efficient remedy for action in violation of fundamental rights was given for the right to equality before the law. It is mentioned in terrorism and human rights (2008) act that the human rights organizations actively functioning to the danger of international terrorism. Human rights groups, under international law, will take part under attempts to decide on a common concept of terrorism. A victim-centered approach will encourage them to extend human rights to a broader spectrum of issues, making their activism more applicable to those who suffer as a result of terrorism. The study explores how advocates could establish values that are more comprehensible. Others are human rights approaches to armed groups and national human rights institutions are of UDHR.
The arbitrary arrest, imprisonment or exile shall not be extended to everyone. Everyone shall have the right, in full equality, to a fair and public hearing by an independent and impartial tribunal, to determine his rights and obligations and to make any criminal charges against him. Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to the law in a public trial at which he has had all the guarantees necessary for his defence. No one shall be held guilty of any offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time the offence was committed.
No one shall be subjected to misery, inhuman or degrading treatment or punishment. No one shall be subject to medical or scientific experimentation without his free consent. Everyone has the right to liberty and security of person. No arbitrary arrest or detention. Equality of liberty. This has also secured the right to fair trial and equality before the courts. Under Article 7 UNHRC (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) there are standard minimum rules for the treatment of prisoners, declaration on the protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment; convention against torture and other cruel, inhuman or degrading treatment or punishment and code of conduct for law enforcement officials.
The reason behind the Police Brutality
Misconduct by law enforcement a serious problem. In the U.S. justice department, the civil rights division has examined shortcomings in accountability of police misconduct.
Problematic Police Officers
Also known as problem officers have significant records of misuse, have complaints from the public against them, and are subject to special monitoring, training and psychological counselling.
To prevent the intense risk of incurring violence or abuse in any future incident.
Police must be monitored- All officers who commit violence are thoroughly investigated and punished for using excessive forces that trigger crime.
Human rights Watch- Monitor and identify those police officers who break human rights law. They analyse police misconduct reports and mark a difference between an officer with a clean record and a good repo. Police officers who commit a mistake and an officer with a long history of complaints and a repute as a “problem.”
Police corruption- In fact, it accounts for a large percentage of complaints about harassment and civil litigation.
Factors affecting Police Brutality
Racism is a prime factor in US and in other countries black people suffer more as compared to white and in India also racism and casteism are prevailing in Indian police. The 2019 India Justice Report states that Muslims are scarcely represented in India’s police forces (excluding the state of Jammu and Kashmir) with data on their representation no longer being held since 2013
Ineffective training causes police brutality.
Weekly off days – Approximately 40% of police family members replied that the police officer (in their family) spends much less than enough time with the family. Just about 10 %of police staff family members indicated that police had spent enough time with the family.
A lack of female officers causes brutality. Reason for the need for greater inclusion of women in the police force, and for higher recruitment of women in the ranks of officers. Even in a scenario where, according to NFHS statistics, 99 % of sexual assault cases go unreported, the caseload for women in the police force in 16 of the selected states studied is relatively much higher. Hence, particularly in the case of women in the police force, the demand for fair representation emerges not just from the principle of diversity but also from the legal necessity of procedures to be followed when dealing with cases of crimes against women and children.
Reporting default report of police misconduct.
What action should be taken in case of police misconduct?
The first step is to report the police misconduct. It helps a victim to win a lawsuit against the officers who injured him. It also helps to show that a defendant in a criminal case is persuaded by officers to confess a crime. Many people don’t report to a police misconduct they have experienced, they are not sure how to go about it.
There are three ways of becoming a good eyewitness
First to know what kind of information is relevant in court. To catch the right details there is the online portal where you can lodged the complaint directly like in the U.S Police misconduct complaint form for lodging online complaints, in the U.K police complaint form for complaints against police misconduct. While in India a person has to directly approach the Police Complaint Authority of the state where the crime is committed. Describe in your own words by writing the whole incident that happened during that time and give a running commentary of the action. Write down everything you remember that happened right after the incident it’s good to know names and numbers
Police Misconduct Report
Submitted to an attorney in prospect of litigation. The Police Conduct Report gives answers to all questions, leave blank if you don’t know the answer but don’t guess, give proper answers about locations and distance. In the first information about yourself, kindly fill in your information like name, address etc. About the incident described the whole information about an incident i.e., location, time and any witness during an incident. For the media, witnesses and other witnesses it depends on how many police officers are involved in these incidents. Add extra pages i.e; 2 ,4, 5 depending on numbers of police involved. Detailed information about the victim, officer, Commanding officer, what led up to the incident, how the incident started, who initiate it, what led to disputes, information about official orders, what happened during the incident, property, wrongful searches or arrest and any injury to the victim by the police officer. This information needs to be furnished in both cases as if the victim wants to sue the police or else charged with a crime in the incident police illegally beats you up.
In case you don’t want to file an online complaint. send a report to the Regional Police review committee or Police Complaints Authority (PCA). They are a private community organization. Attach a copy of the Police Misconduct Report in the committee form and give a detailed account of the event. These reports will be useful in the future. It will be beneficial for the victim to present a previous report of an officer who has a history of abuse.
Following points should come in mind if a person suffers injury from Police and he approaches for his complaint
How can one find a criminal defence lawyer and any witness who is representing the victim?
Where to find a police misconduct lawyer to protect and serve you?
Whether to reveal everything before the police began threatening or hurting the victims? It is better to tell the police details about the incident before they harass you.
Who initiated the incident first? The victim or a police officer?
Any witness present during the incident.
Obstruction of justice or interfering with an office.
Complaining to appropriate authority India
Police Complaint Authority: The power of the Police Complaints Authority are as under:
Furnish information useful for the subject matter of inquiry and authority to give its opinion.
The opinion may be taken from the police officer in charge of the police force in the National Capital Territory of Delhi and, upon receipt of additional information from the police officer in charge of the police force in the territory of the Union, the facts of the opinion would be taken additionally by the authority.
Some of the cases directly inquired by authority on finishing of the inquiry, communicate its findings to the Commissioner of Police Delhi with a direction to:-
Register a First Information Report(FIR)and Initiate a departmental action based on such findings
Forwarding the evidence collected to the police.
The authority’s directives are binding, except for the government, where reasons are recorded in writing, the NCT of Delhi disagrees with the authority decision.
Duties of the Police Complaints Authority
The authority must investigate the allegations of ‘serious misconduct’. This is done either Suo Moto or on a complaint obtained from any of the following:
A victim or any other person on his/her behalf.
The National or the State Commission on Human Rights.
The police.
Any other source.
“Serious misconduct” here mean any act or omission of a police officer that leads to or amounts to death in police custody
The Supreme Court ruled on 22 September 2006 on the case trial “Prakash Singh & Ors Vs. Union of India & Ors”: Taking account of far-reaching changes that took place in the country after the Indian Police Act of 1861 had been enacted and the lack of any comprehensive national evaluations of the police system, following drastic changes in political policy after independence. The Indian Government, on 15th Nov 1977, appointed a Commission to investigate the role and efficiency of the police and as an enforcement agency. The enforcement agency is an institution to protect the rights of the citizens enshrined in the Constitution.
Related to this case the latest judgments by Ranjan Gogoi, Chief Justice of India while passing the order on the said I.A. On 16.1.2019, this Court referred
To the principles behind the judgment of this Court in Prakash Singh & Ors. vs. Union of India & Ors . Reference to Article 142 of the Constitution of India, the Selection and a minimum term of DGP is done by selecting a Director General of State Police by a State Government among the three highest officers in the department among Public Service Commission by the union on the basis of its service length, very good record and a wide range of experience for the heading of the public service. After selection, he shall have a minimum term of office of at least two years, irrespective of the date of his allowance/pension. The DGP can, however, by acting in consultation with the State Security Commission after any action taken against it in compliance with the rules of All India Services (Discipline and Appeal), or after having been convicted in a criminal or corrupting criminal law trial, be deprived of its obligations by the State Government or if it is otherwise unable to perform its duties. The court noted that different States had enacted their respective Police Acts and made further amendments to their respective Police Acts 1 (2006) 8 SCC 1 3 respectively. Consequently, all those amendments did not fully comply with the judgment laid down by this Court in Prakash Singh (Supra).This led to the filing of the writ petition (i.e. Writ Petition (Civil) No.286 of 2013 challenging the validity of the provisions of Police Acts enacted by different States. The Public Grievances Commission shall also be called the Police Complaints Authority. The Authority here shall determine the “Authority” for the purposes of taking part in the complaints against Delhi Police, until the Delhi Police Act, 1978 is replaced by the new Police Act.
These authorities are enacted by the directive of government under section 20-D(7) of the Karnataka Police Amendment Act,2012. The role of the state PCA to receive the complaints against police officials of the rank of Superintendent of Police and above rank.
Public Rights: Can file complaints against the Deputy Superintendent of Police, ranked below the grade of DPCAs.
These authorities have been structured by the direction of the Supreme Court to state governments to include a local mechanism to deal with a wide range of complaints against the police responsible for them. The aim is to bring over a positive change in the Police culture
The State Government’s composition shall represent the State Police Complaints Authority consisting of five individuals, namely:
Chairman is chosen from the panel of three retired High Court Judges on due consideration by the Chief Justice of the Karnataka High Court;
One member of a retired civil service officer equals the rank of Principal Secretary of Government and one member from the Civil Society.
One Civil Society member and the three persons nominated to be the Member of the Civil Society, chosen by the State Government from the panels of three names identified by the Selection Committee.
The three persons each represent:
Human Rights Commission.
Karnataka Public Service Commission.
Lokayukta.
Role of the State Government to appoint: The Chairman as a member of the Search Committee an officer equivalent to or above the rank of Deputy Secretary of State Government and Home Department as a Search Committee Convenor. Panel members serving humanitarian services in the fields of education, health, education of the poor, etc. and not participating in any political party or ideological group. One woman IPS Officer. An additional general of the Police appointed by the Government of the State as ex-officio officer and executive secretary of the Authority.
(2) Disqualification of member
An individual shall be disqualified for being named as a member of his:
An association with any AntiSocial or Anti-National party or body;
Being convicted and sentenced to imprisonment for an offence shall, in the opinion of the State Government, consider moral turpitude;
An undischarged insolvent individual of unsound mind declared by a competent court;
Any other disqualifications as may be prescribed.
(3) Any non-official member of the State Police Complaints Authority shall serve for a term of three years.
(4) The State Police Complaints Authority shall look into complaints against officers of the rank of Superintendent of Police and above, including Additional Superintendent of Police, and take cognizance of allegations of serious misconduct by the police officers which would include incidents involving:
Death
Grievous hurt
Rape in police custody
(5) “Misconduct” specified in this section, any deliberate violation or neglect by a police officer of any statute, rule, regulation applicable to the police that adversely affects the rights of any member of the public, except “serious misconduct” as specified in the definition (1).
(6) In Suo moto cases investigated by the State Police Complaints Authority inform the Director-General and the Inspector-General of the Police and advise him to give his views on the complaint during the inquiry. The State Police Complaints Authority takes into account the views and information given by the Director-General and Inspector-General of Police with material relating to the cases. Given the State Police Complaints Authority has no control over the complaint against police officers where, for this reason, a separate authority is established by some other Statute.
(7) On the conclusion of the inquiry, the State Police Complaints Authority shall forward its report to the disciplinary authority for punitive action against the accused officers if the charges are completely or partially proved.
(8) The State Police Complaints Authority shall also control, track and inspect the activity of the District Police Complaints Authorities. It shall compile and refer to the Government an annual report on the functioning of the State Police Complaints Authority and District Police Complaints Committees. Complaint Authorities and submit to the Government. The annual report includes:
The numbers and types of cases of “serious abuse” and “abuse” reported by the State Police Complaints Authority throughout the year;
The number and types of cases of “serious misconduct” referred by the complainants when they were unhappy with their complaint by the department;
The number and types of cases referred to above in which they provided advice or guidance;
The number and types of cases of “serious misconduct” referred to it by the complainants upon being dissatisfied by the departmental inquiry into his complaint ;
The number and types of cases referred to above in which advice or direction was issued by it to the police for further action;
All other relevant Administrative and financial matters may be recommended.
Important points highlights related to Section 20D
1) By notification in the Official Gazette, the Government on discussion with the State Police Complaints Authority comprises the District Police Complaints Authority under the chairmanship of the Regional Commissioner for the Region and three other members, namely:
(i) one former Civil Service member shall be an officer.
(ii) the member of the Civil Society shall be chosen by the Government of the State between a panel of three names appointed by the Selection Committee composed of three individuals, one each representing.
The Human Rights Commission;
Karnataka Public Service Commission;
Lokayukta.
One of the representatives shall be named by the State Government as Chairman of the Search Committee and an officer, not below the rank of Deputy Secretary to Government, Home Department, as the Committee’s convener. The persons in the panel shall be a responsible individual who has offered humanitarian service in the fields of education, health, the uplifting of the needy, etc. and who has not associated with any political party or ideological group.
(iii) The District Police Chief will be an ex-officio officer and the Authority’s executive secretary.
2) It will be the duty of the district police complaints authority to ensure that all its members and their staff are regularly trained, inter alia about:
technical and legal issues related to departmental inquiries;
specific forms of human rights violation;
appropriate handling of victims of police abuse.
3) The District Police Complaints Authority shall:
The right to investigate corruption or violation of power by or against police officers in and below the grade of Deputy Police Superintendent after allowing him a chance to be heard. The Authority shall have the power to investigate any case itself or order an investigation and submission of a report by any other body. The District Police Complaints Authority shall refer their complaints against the accused officers to the competent disciplinary authority for effective action;
If the complaint contains allegations against any police officer of or above the rank of Deputy Superintendent of Police the District Police Complaints Authority, shall forward the same to the State Complaints Authority, for further action;
Forward the reports of “serious crime” specifically obtained by it to the State Police Reports Authority for further action: provided that the District Police Complaints Authority has no jurisdiction over complaints against officers unless a separate authority is created for this reason by any other Statute.
4) Each District police Complaints Authority submit to the State police complaints Authority an annual report to the State police complaints Authority before the end of each calendar year, inter alia, containing:
(a) numbers and types of cases of “serious misconduct” and “misconduct” forwarded by it to the State Police Complaints Authority during the year;
(b) number and types of cases of “misconduct” referred to it by the complainants upon being dissatisfied by the departmental inquiry into his complaint ;
(c) number and types of cases referred to in clause (b) above in which advice or direction was issued by it to the police for further action;
(d) such other related administrative and financial matters as may be prescribed.
20E Powers of the State Police Complaints Authority and District Police Complaints Authority: The State Police Complaints Authority and District Police Complaints Authority shall, while examining any matter under this Act, have all the powers of a civil court in trying a suit and in particular, in respect of the following matters.
The Karnataka Police Amendment Act, 2016. Received the assent of the Governor on the Twenty-Sixth day of July, 2016) An Act further to amend the Karnataka Police Act, 1963: Important features:
This Act may be called the Karnataka Police (Amendment) Act,2016.
Amendment: Amendment of Section 20 D
Words Inserted – “Regional Commissioner of the Region”
Words replaced- “Deputy Commissioner of the concerned District”
Amendment: Amendment of iii in clause (i)
Words Inserted – “Joint Secretary’ to Government”
Words replaced – “Assistant Commissioner”
Amendment: Amendment of section 31
Words Inserted- (za) Regulating, controlling and monitoring of safety and security of children
Amendment: Amendment of Section 36A, ii and iii in clause a,b,c
Words Inserted- eunuchs
Words replaced- undesirable activities, persons
Steps were taken to improve the Police Complaints Authority to stop violation by Police
Police complaints authority to look for disciplinary power
First, in the absence of judicial powers, the authority will conduct inquiries against police officials and submit reports to the government for taking action.
Second to create awareness about the authority and powers organized by the authority and district legal services authority.
Need for the government to accord more powers to the authority.
Deputy commissioners receive complaints if non-serious misconduct against constables to the rank of deputy superintendents of Police.
The state authority accept complaints of all serious cases of misconduct like custodial death, rape inside police station against constables to the highest-ranked police officials.
The authority also has Suo Motu powers to register complaints based on media reports or information reaching through anonymous.
Bringing transparency in the system to ensure about authority was displayed in all police stations for public awareness.
The Karnataka Police Complaints Authority (KSPCA) became operational in 2016, to investigate complaints of police excesses and harassment more work like similar to call center that forwards complaints to various districts about 930 complaints received officers below the rank of Superintendent of Police
Earlier headed by in chairperson of A.S Parchchapure former High Court judge.
The complaint shall be rejected in case
Older complaint more than 12 months ago.
The complaint is insignificant and inconsiderable.
The complaint is frivolous or disagreeable or not made in good faith.
Not affected directly not to proceed further.
Incognito complaint.
The appropriate way to resolve your complaint e.g. court proceedings.
Documents needed to file a complaint
Medical report in case of injury in the police station.
Attached a photo of the injury.
Attached a copy of the complaint in case response from police after lodging the complaint.
Proof of daily diary entry.
File a complaint in case
A person died in police custody,
The rape happened in police custody,
Grabbing of land or house of the victim by a police officer,
Coercion, compulsion or blackmailing happen in the police station.
Procedure to file Complaint
Offline complaint filing process by writing application
The following should be mentioned while making a complaint against police-
Complainant Name
Complainant Address,
Complainant contact details,
The incident happens during time jot it down
The time period of the incident
Officer Name of whom against whom to file a complaint
The reason explaining the What is said at that point of time by Police Officer
Any witness at the point of incident
This paperwork sends it to the Police Control Authority officer.
Points to be noted
After lodging and filing a complaint no response came then contact to Police Control Authority
If no response came after lodging a complaint visit the RTI (Right to Information) office and describe the whole procedure to lodged the complaint again.
Ask the Police Control Authority about any action taken by them in your case if nothing is going to happen.
Visit concerned police station and file FIR if you are unsatisfied by the previous action taken
If the FIR doesn’t get noticed, go to senior officers of police if disappointed again then go to the magistrate and high court respectively in case of hearing. There is a procedure to file a complaint against the police. PCA will try to resolve your problem.
Judiciary
The courts represent one of the most relevant external police accountability systems. Although it is possible to file petitions for writing and prosecution in the public interest in higher courts, criminal proceedings can be launched in lower courts. A number of significant judgments have been passed by the higher courts, providing protections or guidelines for controlling police conduct during the arrest, questioning and other phases of the investigation, asking the government to pay compensation in cases of custodial abuse, making adverse comments to the police for discriminating in the handling of community and caste disputes and not.
Accessing Right to Information Act (RTI)
The Right to Information Act, 2005 (RTIA) brings a constitutional right into law. It is recognized as an important law which facilitates the fulfillment of all other fundamental human rights. It mandates accountability in governance, is seen as facilitating informed citizen participation and is essential for the functioning of democracy.
Complaint through Social Media
If a complaint gets through social media, through WhatsApp, Abhayam app, click, ireport. Most of the complaints received through Whatsapp. Police officials received complaints through WhatsApp given utmost priority and resolved in a short time. Only a few of the complaints can be registered for FIRs, others are fake. Cases related to offences to ganja trade and belt shops also received through WhatsApp and international complaints received through Whatsapp. Complaints through Facebook and email also received. The Abhayam app launched in Jan 2015 and cops received 7499 phone calls from across the state of these 55 calls considered as FIR registration reports received 404 complaints with videos and photos of which 390 complaints were called test calls. FIR registered only for 8 classes. Iclink submitted 1008 reports, 382 of which were deemed FIR, and 611 were dismissed.
Conclusion
Police themselves are aware that ordinary people are scared and reluctant about approaching them. With numerous policy studies and non-government findings exposing the true nature of crime non-reporting, it is crucial that more effective and systemic steps be taken by the Indian Police Complaint Authority to develop people-friendly forms of policing.
Given a long list of various modes of complaint and judgments supporting police reforms, the level of awareness was found to be dim about the landmark verdict of Prakash Singh vs Union of India, 2006, a critical document offering clear directions for reforms in India’s police system. Just around 14% of police reports have been heard. When police personnel were asked about the measures to be taken by the government to help them to do their job better, the most popular response was “increasing personnel and training” followed by “increasing facilities and services” given to police accompanied by working hours.
The coronavirus, the deadliest pandemics in the history, has resulted in countless changes in our daily life. The changes are also happening in the arena of Intellectual Property Rights. The medical innovations for vaccine or new and improved testing devices are facing on-going demands. On the parallel note, the demand for health care products, hygienic foods or safety tools is unbounded. Thus, the various intellectual property rights such as the patent applications for protecting the scientific innovations or the presence of quality products with reputed trade marks are on the move. Biswajit Sarkar IP in association with the US Consulate General, Kolkata and American Centre, will be using a webinar to discuss upon such questions of vital importance and will engage in a stimulating conversation discussing about the impact of the virus in the realm of IP.
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Every year on 26th April, the WIPO promote the World IP Day to raise awareness of IPR. To move ahead with the awareness of IPR , the American Consulate , Kolkata , American Centre and Biswajit Sarkar, IP Law Firm have initiated the online discussion with the IP Professionals from USA as well as India, to exchange the thoughts and observations related to existing IPR Systems in the Post COVID scenario.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
Just a stone away from the menacing COVID-19 and unstructured health legislation has unveiled blazing blemishes in India’s domestic laws, allied to health. This mustered the Epidemic Disease Act of 1897, a 123 year old colonial law to bulwark the bane of 21st century.
India has an inordinately dilapidated landscape for health policies without an integrated law to hold them together. Public health and sanitation is embedded under the state and local governments, with the centre having negligible say. With just eight states having legislation for public health, India wants a draughtsman to sketch an integrated health emergency law.
The neoteric happenings of COVID-19 coupled with large scale self-isolation, quarantine etc, has raised the question of violating an individual’s autonomy, dignity and liberty, although we allow these interventions for the government to act in the best interest of the population. But the extent of these powers are still to be formulated. This article will mainly be focusing on the legal framework of India to fight the health emergencies with COVID-19 and Epidemic Disease Act of 1897 being the focal points.
Epidemic Diseases Act, 1897: An overview
When there is a health emergency on heel, the primary resort available with the Indian government is this 123 year old colonial law, the Epidemic Disease Act of 1897. The history of this act traces back to 4th February 1897, when the city of Bombay was drenched in the bubonic plague. Thus, owed as the bible of epidemic management with four sections spread over three pages; this has been India’s rampart fighting diseases including malaria, cholera, flu etc. But, computing the ferocity of the COVID-19, this bygone legislation stands fragile.
For thriving in the domain of health, a country shall have competent laws which are updated with respect to the contemporary situations and thus be refurbished and comprehensive. This will help the country to customise their actions according to the health emergencies. The dearth of an updated law has made India resort to Sec. 144 of CrPC to manage its health emergency.
The act fails to elucidate, “Infectious”, “dangerous”, or “contagious diseases” and delegates the power to the state and local governments to take action of certain crude facet of quarantine of suspected individual, travel bans, inspection of ships and vessels etc. It’s meant to deal with ‘dangerous epidemics’, a term not interpreted by the law. Clause with respect to punishment under this act shall also be revisited as it demands for a fine of 200 INR and an imprisonment up to a period of one month.
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How powerful are the states?
The Epidemic Disease Act of 1897 provides higher stakes to the state and local governments over the centre. Also, the public health and sanitation are comprehended under the state list thus making them competent to make legislations in this particular domain. Haryana, Uttar Pradesh, Maharashtra, Delhi and Karnataka have invoked their powers to make legislations pertaining to this realm. The legislation includes using Non- Pharmaceutical Interventions otherwise known as NPIs to contain the spread of pandemics, this includes ways other than medical containment for example closing of educational institutions, prohibition of assembly of large crowds, closing of shops, religious places etc. The state authorities shall further delegate the power to officers like District Magistrate who will issue notices for lockdown. They can also impose strict restriction in containing spread of fake new relating to the pandemic and provide the offender with strict punishment.
But with all these, there isn’t any limit to the power that these authorities exercise, as it is said using immoderate power without lucidity can have a dismissive footprint. This act provides the state with intimidating powers which can be a noted ultimatum to the privacy of an individual. The state can misuse the provided power targeting certain individuals, mass quarantining etc. Thus it will spoil the innate essence of democracy.
Case study
The Indian constitution was made after continuous deliberations and discussions by eminent heads; they borrowed the best provisions from across the archipelago. These same methods can be adopted while drafting a law for health emergency. Here, we will be looking at examples from two countries that are of Spain and Australia.
Examining Australia, Article 51 of the Australian constitution provides for a system whereby their federal government will have the powers to quarantine when and where it is required. This makes them deal with quarantine and health emergencies with strict terms and conditions. Also to enhance the binding nature of the International Health Regulation (IHR) they have linked it with an agreement of National Health Security Act of their country. Apart from this they have established certain coordination entities to cater the needs when a pandemic sets on. This will hence provide with a transparency and also the surveillance department of the healthcare will provide its people knowledge about any notified diseases.
Now studying the parameters of Spain, they too have a well efficient system of pandemic management. In this system established through law whenever there is a health emergency all the private hospitals will be nationalised and will be set under the guidelines of the government of Spain.
The Stumbling Block
With the rampant outbreak of COVID-19, there were serious questions raised upon the laws dealing with health emergencies in India. This had brought into limelight some glaring gaps in the laws fighting pandemics or other major health emergencies in the country. Some of the prime pitfalls are as following:
The main stumbling block in India’s pandemic law is the federal structure of democracy whereby the power is delegated to the state governments, in making legislations on public health and sanitation, thus making the central government less powerful. Till date in India, not all states have formulated their rules and regulations pertaining to containing any pandemic and those who have made it are still pondering over its pros and cons.
Also, the act of 1897 which becomes the primary law of fighting pandemic in India does not as such deal with the surveillance of the suspect, vaccination, public health etc.
Another major challenge afflicting the act is that it does not impart or talk about the rights of health care workers. There are no properly written laws regarding the life insurance of health workers, their protection etc, which will cater as a default in the Indian health laws.
Next up is the privacy rights of the patients. There are no laws that separately deal with the privacy issues like the patient’s medical information etc that becomes a paramount concern.
The travel restrictions and closing down of the domestic flights during a pandemic is not in aligning with the parameters of International Health Regulations (Article 43).
This act does not mention anything about the duty or rights of an individual during a situation of widespread pandemic. Thereby ignoring the role of civil society in pandemic management.
Why an Integrated Law?
The need of the nation now is an integrated law to manage the health crisis of the country. India has certain acts like the Indian Ports Act, The Aircrafts Act, the Livestock Importation Act etc which will help it manage the situation of a pandemic but an integrated law will be a one window solution to the entire bone of contentions. The legislation shall bestow the government with both the trigger and the caveats to fight the tussle in an orderly manner. If there is an integrated law then there will be more transparency and comprehension.
The present law does not cater for an equal access to health facilities and has totally ignored the responsibility of the society in managing the pandemics. The new fangled integrated law shall find a balance between the state and its people and co operative mechanisms of pandemic management. Also, there is no mention about efficient lockdown rules, distribution of pre-requisites and medicines, proper isolation and centralised quarantine facilities etc. There is a high chance of misuse of power by the state authorities as there is no restriction on the usage of power by the primary law.
There were certain efforts made to improve the laws pertaining to health emergencies. Naming a few, the National Health Bill of 2009 which was discarded by the state as it felt this act will be an intrusion into their territory by the centre. Next one is the Public (Prevention, Control and Management of Epidemics, Bio-Terrorism and Disasters) Bill drafted in 2017, which is still tabled in the parliament, though even this has failed to include local government while managing pandemics.
The Plan of Action
The plan of action for fighting any pandemics in the future shall have a proper lesson learned from COVID-19. The law makers shall now consider revising the bygone Epidemic Disease Act of 1897 and look for a more comprehensive and updated law while dealing with health emergencies. If this does not happen then this glaring gap in the policy will become India’s Achilles’ heel.
We shall urge for an integrated law which shall be made with proper forethought and groundwork. This shall include the rights of health workers; address the issue of right to privacy of patients, a proper lockdown law other than sec 144 of CrPC, proper checks and balances with respect to the power of the state authorities etc.
The Disaster Management Act of 2005 was not designed to deal with health emergencies, there is no clause in this act defining health crisis to be a disaster, the curfews and lockdown that has been invoked was under this act which doesn’t even include health crisis in it. Thus we need a well defined law which will deal with situations pertaining to health emergencies.
Conclusion
The health emergency laws in India are now like the lacerated parts of an old cloth, what the nation entails is a tailor to stitch these ripped parts to a beautiful textile. India needs unified and refurbished laws to deal with its health emergencies. For thriving in the domain of health, a country shall have competent laws which are updated with respect to the contemporary situations and thus be refurbished and comprehensive. This will help the country to customise their actions according to the health emergencies and tackle the situations like that of the menacing COVID-19. Although we allow a lot of interventions of the government, in times of such pandemics in order to act in the best interest of the population. But the extents of these powers are still to be formulated and there shall be proper checks and balances in the power provided to the state governments in matters concerning the population as a whole. Limiting the excessive power granted to the state and making laws more accountable and comprehensive will lead to a better management of health crisis in the legal domain.
Further enhancing this will perceive the importance of civil society in the management of law, which is very much required as and when there is a lack of availability of a medicine then such pandemics can only be cured with following proper social distancing and other quarantine measures. And also emphasising on lockdown and curfew laws will help the government not to take an easy recourse on Section 144 of CrPC and various other robust laws in the country.
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This article is written by Ilashri Gaur, a law student pursuing B.A LLB (Hons.) from Teerthanker Mahaveer University. This article tells about the crisis which the industries are facing.
Introduction
At the beginning of 2020, we all are facing a pandemic situation. It is now clear that the coronavirus will not just have huge costs in terms of loss of lives and public health, but lead to huge economic suffering.
The novel coronavirus pandemic has stopped the economic activity, threatening to push the world into a recession and because of which most sectors are facing the impact.
The virus which has so far infected and killed a lot of people in India due to which the government has taken certain measures like sealing borders and restraining non-essential services, to stop the spread of the virus. This virus has affected both the demand and supply of the industries.
Industries least affected
But here are three sectors that have been remained safe from the effect of the virus yet:
Telecom
As the number of cases of COVID-19 all over the world are increasing, the government authorities and various other organizations in India are urging its citizens to stay at home and apply the formulae of social distancing. During lockdown revenue of telecommunication rose as compared to the previous year. The growth rate for the first two months of 2020 was the highest in the last 12 months.
The ongoing nationwide lockdown has not affected the functioning of the telecom tower in India. Telecom services are free from any obligation under the Disaster Management Act, 2005 which allows them to carry out an operation during the lockdown. But if people are not allowed to move around, the situation will change.
In rural areas, towers and telecom infrastructure are supported by electricity. The total telecom workforce including customer care, network operation centre and critical functions are reporting for work, while others are working from home. Work from home and social distancing is expected to boost data usage in-home broadband and mobile space in India.
It is also facing a big problem, a recent Act by the Supreme Court asked the carriers to pay the interest and penalties on the pending statutory dues.
Healthcare
India committed to spend nearly Rs 10,000 crore to encourage companies to manufacture pharmaceutical ingredients after the coronavirus outbreak disrupted the supply chain. The impact of coronavirus on Indian pharma has so far been limited due to existing stock. India depends on China for its raw materials and to other countries also for the other materials.
The government has also issued guidelines for testing to be carried out in private labs. The benefits from COVID-19 testing is likely to be offset by a decline in day-to-day walk-in business as well as the loss of business-to-business volumes due to lower elective procedures.
Insurance
The Insurance Regulatory Development Authority of India (IRDAI) has asked insurers to cover COVID-19 cases in their existing policies and ensure that they will fastly and efficiently attend to the coronavirus claims. Life insurers are selling more protection policies and there is less dependence on ULIP (unit-linked insurance plan).
The insurer is not recurrent as other financials. Even the general insurers are likely to have less impact from this pandemic. During this pandemic, there will be a benefit for health insurance as people will be more likely to buy these policies because of the current scenario. There’s a possibility of re-insurance also. Re-insurance is a form of insurance purchased by insurance companies in order to reduce risk.
The nature of the disease is such that there is an inherent tension between conserving lives which involves a large number of lockdowns, restrictions on travelling and social distancing and economic activity which is based upon the supply chains, trade, demand and consumption. Governments across the world have interceded to minimize the distress.
The welfare state is back. This is the most significant transformation in decades in global economic policymaking. The state should stick to its important function of the provision of basic public services and act as a regulator, and leave the rest to the market to determine. Now the government has to intervene in every element of the economy for all the poor, food and cash transfers to become a reality.
Big shifts in the stock market where shares are bought and sold, can affect the investment. There is a fear among the investors because the coronavirus will destroy economic growth and the government may not be able to reduce the effect for the same.
The travel industry has been badly damaged, due to the lockdown. The flights are cancelled and the business trips and tourist flights are also cancelled due to which a heavy loss has been suffered by the travelling agency.
Even the factories in China are slowing down due to this pandemic situation. Shops and car dealerships have all fallen in demand.
The oil prices had already been affected. Coronavirus has driven the price down.
Industries which are worst hit during the crisis
Those industries which are worst hitten by the pandemic are:
Aviation sector
The coronavirus pandemic has had a very bad impact on the aviation industry. Airline industries have been rushing to keep up liquidity and reduce capital expenditure to stay the worst impact on the global aviation industry. Due to this pandemic, the flights of business trips and the tourist’s tickets were cancelled due to which a heavy loss has been faced by the travelling agency.
The government of India is planning to reduce the loss of the aviation industry. The finance minister is considering a proposal that includes the temporary suspension of the taxes levied on the sectors. Such a situation has arised that the Emirates airline is facing a major loss. This is the world’s busiest airport for international travel which depends heavily on tourism and aviation. And the other airport operators and their stakeholders are already working to modify their operations in order to accommodate a fall in demand and largely reduce traffic. If the situation does not improve then the aviation industry will be the hardest hit, seeing a loss of $27.8 billion revenue. There is a chance that many of the travel and tourism agencies will have gone into recession.
Transport
Vehicles are one of the best modes of transportation. But due to this pandemic, a situation has come where all transportation out of the city has shut down. No boat leaves, no planes take off and no buses are moving. As coronavirus continues to spread the government has restricted travel. Due to social distancing, the government stopped public transportation as there is a lot of risk of infection in trains and buses. The potential of risk depends on how crowded the train and buses are and it can vary in different parts of the country.
Public transport is the backbone of local and national economics services and is to be maintained as long as possible. The western railways have suffered a loss of around 178 crore. Railway has converted coaches into isolation wards; these coaches are equipped as per the medical advisory issued. Export and import transportation are fully closed. The trains are allowed only for a specific purpose. Due to this, India’s growth is estimated to decline below 5% in financial year 2020 from 6.1% in financial year 2019.
Construction
Most of the Indian construction industry imports at least some components of construction from China. The largest imports related to the construction industry are iron and steel products, technical construction, electronic equipment, plastic and fibre elements, solar panels, etc. Heavy reliance on China for iron and steel products is a cause of concern for the industry. Due to production in China falling, there is an increase in the prices due to the increase in the cost and the profit margin is reducing in construction in India. Because of this pandemic all the construction is blocked and the market for transportation and highways continues to flourish.
Stock market
The stock market took a huge fall worldwide including in India. The Indian government has contacted various international governments for financial support to tackle the aftermath of this pandemic. Indian is less integrated with the Chinese supply as compared to other markets. The Sensex and Nifty also dropped. Economic imbalance which is caused by the virus leads to India’s fall and supply chain.
Oil
Global oil demand is expected to decline due to this pandemic. India, the world’s third-largest oil consumer is unable to take full advantage of global crude prices because of the downfall in the sale of petrol and diesel due to this lockdown. Sales of automobiles fuels have slumped by 80% in the cities and 60% in the rural area. Global energy transition is affecting the oil industry. Companies must balance the investment otherwise it will face a huge loss.
The coronavirus is affecting a huge range of energy markets including coal; gas and renewables but its impact on the oil market is serious. Russia and Saudi Arab are having conflicts related to the oil dealing. A major fall in the price of the oil the situation can arise that Saudi Arabia can go into recession due to this fall in the price of oil. Saudi Arab could never win a price war with Russia. Russia’s economy could live with an oil price of $25 a barrel for years compared with $91 for Saudi Arab according to the International Monetary Fund.
The president of the US has ordered his government to boost demand for US oil by adding off its oil reserve. Most estimates say the pandemic has reduced global oil demand by about 20 million barrels per day.
The oil market depends on the government as to how quickly the government takes such steps due to which we can overcome this outbreak. Small producers would close down and future investment would dry up prices.
Technologies
There are different ways that technologies are also affected by this pandemic:
This pandemic leads to full or partial control shutdowns of the factories and plants, some of them are used by the technology companies. For example, Apple experienced a shortage of its iPhone supply.
Due to this pandemic, the most important tech conference was cancelled. Several companies reschedule the event which they had planned for MWC (mobile world congress).
The outbreak of coronavirus has forced many big companies to work from home as this is the safest course of action during this pandemic. As these drawbacks become necessary to make clear for the enterprises to look for ways to smooth functioning for employees, one way will likely be virtual reality.
According to a survey, almost 49% of business respondents are looking to use virtual reality.
How the world recover from the loss after the pandemic?
The pandemic will change the world forever. The pandemic will strengthen the state and reinforce thinking of all peoples. All types of government will adopt all the necessary measures to manage the crises, and may well give up these new powers when the crisis is over. The thing which will not change is the fundamentally conflictive nature of world politics. The country all over the world will recover sooner or later but there will be a slow process in earning the profit and there will be more stability.
From this pandemic, we all know that every country is somehow interdependent on the other so to heal from this, every country has to work together to overcome such crises. More companies will demand to know more about their supply and will trade off efficiency for redundancy. The government will intercede and ask to consider strategic industries to have domestic backup plans and reserves. The profitability will fall but the stability will rise.
Conclusion
Due to this pandemic, a heavy loss is faced across many countries. As it causes a huge loss in different industries whether it is an aviation industry, transportation, infrastructure, stock market or oiling all are facing the aftermath of this pandemic. Even after the recovery from this virus, it will take time for the aviation industry to heal from the heavy losses which they are facing right now.
If the people follow the practice of social distancing then this pandemic can be finished soon so that the government again can focus on the financial and economic status of the country. Due to this pandemic, the private sector faced a huge loss and due to which there are chances that many people can lose their jobs.
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This article is written by Vaishali Jeswani, from HNLU, Raipur.
Introduction
What is a will? In legal Parlance, Will is a legal declaration in the form of a document and in certain cases oral in which the owner of the property/Asset/Shares or Something of value transfers it to somebody else or in other words makes the other person owner of the estate (property). Failure to prepare a will might leave your family and friends in trouble, other than the fact that you lose your right to distribute your estate on your terms and as per your wishes; issues arise in your family after you die intestate (without a will). The court and the state deal with your estate in the absence of a Will, which might not be so smooth.
In a world of predetermined notions, a person can prepare a will himself after adhering to the prescribed format and other requirements of the state or he can approach an attorney for the same. A person doesn’t need to approach an attorney; with the help of various softwares available at one’s fingerprints, it’s possible to get the task done by oneself.
It’s advised that a person reviews his/her will every two or three years, just in case some additions or alterations are required. Over some time after a person makes a will, he might acquire additional property or loses some, some family dispute arises or the beneficiaries predecease the person; under all such situations reviewing the will helps.
Testamentary will– It is the most popular type of will. It is written and signed by the testator and witnesses. The occurrence of any successful challenge is the least in this type of will.
Holographic will– Holograph, which generally means hand-written by the author. Such a will is signed by the testator but not witnesses. When there is no time left with the person to call for a witness, recourse to this type is taken. Absence of witness leads to challenges in such a case. Also, the authenticity of the will needs to be proved.
Mutual Will– Such a will is preferred by a married couple. When one person dies, the other spouse is bound by the deceased spouse’s wishes. This protects the interest of the deceased spouse and his children’s interest, in case a new spouse comes in. It need not be confused with a joint will.
Oral will– The testator in presence of witnesses speaks the will. It is the least recognized type and is troublesome for the relatives.
A living will– People often ignore the importance of a living will, it might not be very useful once the person dies but it takes care of the person himself when alive. It includes the way he and his affairs are to be dealt with in case he becomes incapable. For example, if he should be kept on a life support system or not. It does not deal with the distribution of Assets.
Why is will making important in the time of COVID-19? Coronavirus, an infectious disease caused by a new virus, with symptoms such as cough, fever, difficulty in breathing; which has taken a toll on the world is killing thousands of people every day. With such an eventuality around us, making a will becomes important. Will, as we already know deals with the estate after one dies. In these hard times, when the virus is evitable and there seems to be no definite cure of the deadly Coronavirus, it becomes essential for a person to think about his property and his family. A properly documented will helps your family settle disputes smoothly without intervention from the state. In the absence of the same, it will be dealt with by the state according to the laws of the state.
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Succession Laws in India
The succession laws tell how the property of a person is to be dealt with, how a person can transfer the property etc. It usually comes into picture when a person dies intestate. What category of persons are entitled to the benefit and what percentage of share they can get are the type of issues the law deals with. A will, on the other hand, is a legal declaration specifying the mode of disposal of property. It can be made during the lifetime of a person. There is no restriction on the number of times a will can be made, but only the last will is taken into account for the purpose. A will becomes enforceable only when the testator dies.
INDIAN SUCCESSION ACT, 1956 governs any Hindu, Sikh, Jain and Buddhist. Muslims are not included and are governed by Mohammedan laws. Christians, Parsi and Jews are governed by the Indian Succession Act, 1925.
WHO CAN MAKE A WILL– The Indian Succession Act provides that any person who is of sound mind provided that he is not a minor can make a will, a person who is deaf, dumb or blind can make a will as well but he needs to know the nature of the act being performed. A person who is ordinarily of unsound mind and rarely of sound mind may make a will when he is of sound mind, any person who is intoxicated or cannot understand what he is doing because of any other cause cannot make a will.
EXECUTION– The Testator of a will needs to sign the will or make some other person sign for him at his direction, two witnesses need to sign the will in both the cases in front of the testator. The signature or the mark shall appear to be validly given for the purpose. Soldiers on duty, marine at sea, airmen are exempted in this regard.
TYPE OF PROPERTY AND WHO CAN HOLD THE SAME– Any movable or immovable property can be disposed of in favour of a person who is capable of holding the property. Therefore, a minor, a corporation, a lunatic, a Hindu deity can be the beneficiary.
RESTRICTIONS– The Act also provides for certain restrictions in this regard-
If a person transfers his property to someone qualifying a particular description and who is not in existence at the time of the testator’s death, such a bequest is void. When a bequest is made in favour of a person not in existence, subject to a prior bequest in favour of a living person; the latter should be void.
No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong. For example, X fund is given to A for his life and after he died B for his life; and after B’s death to such of the sons of B as shall first attain the age of 25. A and B survive the testator. The son of B who shall first attain the age of 25 may be a son born after the death of the testator, and such son may not attain the age of 25 until more than 18 years have elapsed from the death of and B. The vesting of the fund may thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B’s death is void.
In case a will is made in favour of a class some of whom are not eligible as per the above mentioned rules, the same will be void for those people only and not the others.
As per the rules contained in section 113 and 114 of the act, if a will drafted in favour of such person or class of persons is considered as void; any bequest contained in the same will intended to take effect after the prior bequest, is also void.
REVOCATION– The revocation of a will can be possible by making a new will, by declaring the intention to revoke the will, by burning or tearing, by any other means which destroys the will. The old will lose its operation when a new will comes into the picture. In case, the will is lost it is presumed to be revoked; if the same was last seen with the testator and cannot be found after his death, it is presumed that it has been revoked by the testator.
CODICIL– A person has the choice to either make a new will or make smaller changes by way of a codicil. A codicil is a kind of instrument or way provided by the law to make changes in case the person does not wish to change the entire will. In cases where a person opts for a codicil, witness signature is necessary because these codicils have the power to change the will.
REGISTRATION– Registration of a will is optional and not compulsory. But it is advised to get it registered if the unregistered will get lost or damaged, there is no way it can be traced which again will give rise to various problems.
COMPONENTS– The will needs to be unambiguous and to the point.
If more than one property is there each one of it needs to be dealt with separately.
It needs to include details about the person, his married life, children.
Debts and taxes need to be mentioned and how they should be paid; what assets should be used for payment.
Name and powers of the executor or trustee should be mentioned to carry out tasks smoothly.
Mention of a guardian in case the person has a minor child is necessary too.
What happens when a person dies intestate?
When a person dies without making a will, he dies intestate. The property when left without any beneficiary is dealt with by the laws, the deceased person loses his right to give away the property as per his wishes. Thus, if a person wishes that his hard-earned property be distributed as per his desires; he better makes a will. Under the Indian Succession Act, both the Hindu man and woman get the right to transfer their property.
HINDU MALE– In case a Hindu Male dies without making a will, his property is transferred to class 1 heirs and in their absence, to class 2 heirs. If both class 1 and class 2 heirs are absent then to agnates and cognates of the deceased. Agnates are preferred over cognates; agnates are persons related through male either by blood or adoption. Cognates are person-related through females either by blood or adoption.
HINDU FEMALE– If a Hindu woman dies without making a will there’s a hierarchy which is followed. i.e. In absence of one another gets the estate;
The property goes to her children and husband.
To husbands’ heirs.
To her mother and father.
To Father’s heirs.
To Mothers heirs.
Conclusion
Will holds prominence in a person’s life, as the destiny of the hard-earned wealth of a person depends wholly on that single declaration. If he doesn’t make a will, he loses one of his most important rights and the desires he might be having in regards to his property distribution goes futile. There have been instances when the family of the deceased faces the state and the court when the will gets challenged by relatives in case it’s not properly drafted or not drafted at all. In a country like India, where a huge population resides; people seem to be ignorant when it comes to will-making. Now, when the whole world faces the pandemic COVID-19, which is spreading like fire in the forest and there seems to be no cure for now; we must know the importance of a will. All the lawyers and people aware about the subject shall urge the people around them to draft a will themselves or contact a lawyer for the purpose.
Contracts altogether forms are surrounded and are available in various manner but most frequently take the shape of various agreements for instance consulting services agreements, licenses, memorandum of understanding, purchase orders, partnership agreements. Given the extensive range of such contracts involved, it’s obligatory for all concerned parties to be involved in the negotiation and execution of contracts to know the risks involved and use prudent control strategies to mitigate them.
Parties enter into contracts either verbally or written and are often used to establish, create or expand the connection between two or more parties and term the circumstances of how each will cooperate within a given set of circumstances.
Explanation
Contractual Risks are anticipated to allocate obligations be it financial or otherwise for risk exposures to both the parties by one another. Contractual Risks can discharge the individual or association initially accountable for the risk by assigning it to one or more of the contract’s counterparties. In a contract, risk transfer is primarily arrived at through a combination of indemnification, limitation of liability, and waiver of subrogation clauses. It is suggested that contracts be organised toassign obligations for risk to the party that creates it and is best placed to alleviate its impact.
Indemnification: Indemnification clause compels one party being the Indemnitor to reimburse the other party being the indemnitee for the loss, damage, injuries, harm caused to him by the Indemnitor. This clause helps in mitigating risk and is closely tied to representation and warranties, which promises that specific things are done in a specific manner.
Waiver: A waiver clause is one wherein a party voluntarily surrenders its right. Through the presence of waiver clause, it ensured that a party does not accidentally or informingly waive its right in order to bring proceedings and recover damages in case of breach of contract by the other party.
If a risk has been identified, the next step should be the assessment of the risk so discovered and to evaluate its impact on your organisation financially and otherwise. There are 2 factors which should be considered while assessing risk i.e. its Probability and its Consequences. Taking an example for instance, Consequences of entering in an agreement or contract would be high in the initial period but shall gradually diminish once the potentials of an agreement or contract are pointed out and ample time is spent over those potentials.
Another important factor apart from Probability and Consequences is Risk Thresholds and how to discover these Thresholds for your organisation. Risk is an element which is present in every binding legal agreement or contract, but it is important to know how much risk is one willing to take either person in case of a private contract or risk which their organisation shall take while entering in a contract. After establishing risk of a contract or agreement, an individual or an organisation can decide if they wish to enter into such a contract or agreement depending if the risk is beyond or within their tolerance level.
A contract comes with opportunities as well as risks, hence contract management must have data analysis and prevention of risk. Without measures placed to identify and monitor contract risk, organisations will have to deal with disadvantages which would lead them to deal with extra costs which might lead to violations of various compliances and unwanted litigations.
A Risk Assessment is done to determine possible disasters, catastrophes and other unwanted situations Risk Assessment is a vital measure of risk management strategy which leads to the introduction of controlled processes to eradicate or diminish any probable risk-related concerns.
Risk Assessment may be different at an individual level than at an organisational level. At an individual level a simple process of recognizing aims and risks, observing its importance and forming tactics may just be sufficient to eradicate risk. But at an organisational level, more elaborate policies pointing out acceptable levels of risks, procedures thereby to be followed by the organisation and the allocation to its resources matters.
Establishment of Context is an important step in assessing risk as it curbs the range of perils. Risk assessment comes into the picture when there is valuation of risk. Now while evaluating risk, when mitigation and other alternative solutions are considered, it is known as Risk Assessment. Based on risk assessment, risk is controlled. This process in depth is called Risk Management.
Organisations can assess risks better if they have a risk assessment strategy. Having a risk assessment strategy shall help organisations to remain assertive while remaining compliant. Organisations can use various strategies to avoid unsolicited risk such as:
Capitalize in smart contract management software.
Focus on particular words, clauses and situations which a particular organisation deems as risk to alert users of sensitive data.
Usage of smart tools within contract management software to analyse contract data and assess any risk related with each contract.
Purpose of Risk Assessment
Risk assessment in contracts is required for the purpose of reducing the potential risk or threat which the parties to the contract might have to face and to help the parties to the contract handle the risk in a better and thorough manner.
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Elements to avoid risks in Contracts
The following elements must be present or if not present be created to adhere risk in contracts to a minimal level:
Establishment of Transparency– Any word which creates confusion or vagueness to a particular section, clause or part of contract must be avoided. Absence of Transparency leads to errors.
Simultaneous Reviewing of Contract– A contract should be reviewed a numerous number of times before its execution. A review begins when misunderstanding in contract or any part of it is being cleared. Once review has begun, it tends to clarify the misunderstandings which arise due to absence of transparency. A review is done so as to keep all parties to a contract on the same page. The continuous review brings out clarity to the negotiation process.
Qualify Risk Transfer: When risk transfer is considered, loss and how loss is insured is taken into consideration. Harvard University recommends to transfer risk in a few ways which are as follows:
Monetarily: To equalize responsibilities.
Indemnity Terms: Negotiate these terms which a person holds, harmlessly without any legal consequences.
Liability Terms: Protects an organisation from risk with soundness of liability.
Risk Neutralization: A risk shall neutralise when a contract as a whole is fair, convenient and performable to all parties to a contract. Risk Neutralisation is the end result of all the above mentioned clauses.
Case Law: Herbert vs HH Law
The case was pronounced by Justice Hoole in the Sheffield District Registry of High Court on 21st March 2018. The decision laid by the District Judge Bellamy was set aside. Ms Herbert being the Claimant/Respondent claimed damages for personal injuries caused to her along with substantial loss suffered by her due to road accident in 2015. Her vehicle was hit by a bus from behind. She entered into a Confidential Fee Agreement which stated that “if the claim is successful, she would pay HH law all basic charges, disbursements, success fee.” The agreement also stated that “if the success fee was set at maximum 100% but subjected to maximum 25% of the total amount of damages for pain suffering loss of amenity & damages for financial loss caused to her in the past due to the accident.”
When the matter first reached before Justice Ballamy, he made the following decisions that while assessing HH Law’s bill of cost with respect to Ms Herbert’s claim of personal injury, Justice Ballamy, reduced the success fee as mentioned under the Confidential Fee Agreement from 100% to 15%. Secondly, Justice Ballamy approved of cash payment in terms which treated payment of Ms Herbert’s Insurance premium as Solicitor’s disbursement. Lastly, Justice Ballamy declined to inquire further into the contentions of HH Law’s contention Herbert’s new attorney being JG Solicitors Ltd (JG) was filled with illegality and was unenforceable.
When the matter reached Justice Hoole in the Sheffield District Registry of High Court, he upheld the decisions made by Justice Ballamy for the reason being that the approval must be informed & HH law had not done enough to achieve the approval of Ms Herbert and thereby dismissed the notion that the requirement of approval was restricted to cases where client has been deluded by their counsel. Justice Hoole also upheld Justice Ballamy’s decision to reduce the success fee mentioned under the Confidential Fee Agreement to 15%.
Justice Hoole further held that the decision made by Justice Ballamy was not erred in any way whatsoever and thereby directed HH law to take up the matter with SRA as it fell within their ambit.
The above case clearly points out the importance of assessing risk in a contract before a person enters into it. Even the smallest of the smallest vagueness or disagreement can lead to chaos and thereby result in a high-risk rate.
Takeaways
Knowing how to assess risk is an important step in a risk management strategy. Once the risk has been identified, one should understand the probability and its consequence, apply the score and then determine risk thresholds which are acceptable. Risk can also be assessed by clear readings of contracts which is the very first and basic step towards assessing risk.
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This article has been written by Madhavi Raje and Smera Sarnath Sonker, students of Dr. Ram Manohar Lohiya National Law University, Lucknow.
Introduction
The Epidemic Disease Act came into force in India in 1897, back when India was still a British colony. The Act was introduced before the Council of the Governor-General of India in Calcutta by John Woodburn to ensure better protection and prevention from the deadly and dangerous epidemic disease. The Act still is in existence even after 123 years like many other acts drafted by the Britishers back in time for British India. It was brought with a specific objective, to contain the spread of a bubonic plague that stuck the city of Bombay. The Act is a brief culmination of 4 sections.
Section 2 highlights “Power to take special measures and prescribe regulations as to dangerous epidemic disease.”
Section 3 provides for penalty in case any person disobeys any regulation or order that is made under this Act or the Act shall be punishable under section 188 of the Indian Penal Code: the provision deals with the offence of ‘Disobedience to order duly promulgated by public servant.’
Section 4 ensures and provides protection and immunity to people who are working under this Act from any legal action.
The object of this article is to study how successful is the century old Act to deal in the current situation of a global pandemic which has shook the entire world- COVID-19 or as more commonly known as CoronaVirus. The spread of this disease is quick, swift and very secretive because of which the governments worldwide are facing huge problems to control the spread of this novel virus whose vaccine or efficient medications are still not available. Though we are having acts which are much older than the Epidemic Disease Act, like Indian Penal Code and Indian Evidence Act, which are serving us good but they have undergone many amendments over the years. With the current threat of coronavirus, it has become very important for us to find out the shortcomings of this Act and make it more appropriate to use in today’s time.
The Epidemics Act in India increases government’s control over the people in order to contain the spread of the virus. It allows government to take special measures to defeat the epidemic such as inspection of people travelling through railways or other means such as roadways, by air or by sea. Segregation of suspected or confirmed patients of the infectious disease in hospitals, public places, quarantine centres, isolation wards or other places.
Moreover, if the central government feels that any part of the country or country is susceptible to any infectious disease and existing laws are not sufficient to prevent the outbreak, they might form rules and regulations to prevent the same which may involve inspection of any ship or vessel leaving or arriving at any port. It further authorizes to impose penalty on anyone disobeying any order or regulation made under this Act, under section 188 of IPC, however this recently has been challenged in a petition to Supreme Court by Dr. Vikram Singh who is a former DGP of Uttar Pradesh stating that FIRs cannot be lodged under article 188 of IPC as this might institutionalize as well as normalized police brutality which are quite evident in frequent inhumane lathi charges amidst the lockdown.
In his petition he says, “these FIRs are anti-thesis to Code of Criminal Procedure, 1973 (CrPC), and thus violate the Rule of Law. Consequently, rights of persons under Article 14 and 21 are affected.” He further adds that in the plain words of Section 195 of CrPC no prosecution under section 188 of IPC can be taken into cognizance by any court. He further adds:
“Police action on an individual who is perhaps suffering from distress and lack of information as a result of the circumstances has ramifications which can extend beyond the corona virus lockdown, and cannot be good for a constitutional democracy.”
He further clarified that he is not promoting people to break lockdown he just wants a more humane treatment meted out by the authorities and to prevent misuse of power.
The last provision of the Act provides for legal protection of persons working under this Act by allowing no legal proceedings to run against them on their actions done under this Act.
Nevertheless, no law is essentially sacrosanct; they inherently have both merits and demerits or limitations as they were drafted by human beings who tend to make mistakes, this is the reason why amendments are very important to preserve the merits and eliminate the demerits with changing times.
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Limitations of the Act
This Act brought by Britishers in the of 19th century has many limitations. Its efficiency drops down steeply when put to use in today’s time. The biggest limitation of the Act being that it was made at a time when the demographic and the global situations were completely different. There are many features in this Act which indicate that this Act is not in consonance with the current time.
When this Act was enacted the major mode of long-distance travel was through waterways. This is why section 2A of the Act talks only about waterways as the most probable medium that might spread the virus and gives central government the power to take any measures or prescribe regulations to inspect any ship or vessel; however in the current times transport is not just limited to waterways we have other developed means as well such as airways and roadways both of them more or less are equally prone to be the medium of spread of the virus and therefore there is a need to incorporate them as well in the Act with waterways and allow the central government to prescribe regulations and take measures as required under the Act.
Section 2, of the Act gives immense power to the centre and the state while dealing with the outbreak. It gives the centre and state government the power to identify the suspect and segregate them so that they are not in contact with others. This helps in preventing the spread of the virus. The governments can further order ban on public gatherings, disinfection of places, evacuation of people from a virus prone place to a safer place. The government can further use it for forceful segregation of people and put restrictions on people’ freedom of speech, movement, profession and privacy guaranteed in ‘Fundamental Rights’ which has potential of being misused by the government officials. This is why some historians refer to it as a draconian law.
This Act talks about ‘dangerous epidemic disease’ but does not provide any definition for the same. It is not clear as what factors are necessary for an epidemic or a disease to be termed as a dangerous epidemic disease. Whether it is the case fatality ratio or the rate of spread of the virus or its severity or any other factor. There should be a proper scientific definition of terms used in the Act so that there is no scope for confusion.
Another lacuna in this Act that shows it is a outdated law and requires modification, is that it lays a lot of emphasis on tackling the outbreak through social vaccines like isolating people, which definitely helps in breaking the transmission chain. But recently we have gone through major technological advances, and scientific methods like developing vaccine and testing people play a crucial role in the times of outbreak. The Act should further make provision for those who cannot afford testing, this would in turn increase testing which is very important to prevent the virus from spreading.
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Analysis of laws of other countries
In the wake of Corona Virus which is a pandemic, countries around the globe are trying to contain the spread of the virus. For this they are implementing their respective epidemic acts and where necessary, even making new rules. For instance, in South Korea after confirmed cases of Middle East Respiratory Syndrome (MERS) in 2015 they reviewed their law which reinforced the power of Korean Centres for Disease Control and Prevention (KCDC) to command. Further, a legal basis to compensate for loss of patients with infectious diseases and fatalities was also prepared (Act No. 14316, Infectious Disease Control and Prevention Act).
Not just one, South Korea has several laws to deal with infectious diseases with a common aim to prevent and protect. It further provides a legislation which allows to get hold of private data of confirmed or potential patients without a warrant. One of the major reasons of flattening of curve for Corona Virus in South Korea is their intensive contact tracing. In USA, President Trump signed the CARES Act (The Coronavirus Aid, Relief, and Economic Security) which was passed in the wake of Covid-19 on 27th March, 2020 by Congress. “The CARES Act provides fast and direct economic assistance for American workers, families, and small businesses, and preserve jobs for our American industries” and a $2 trillion economic relief package to support it, to protect the people from impact of the pandemic on public health and economy.
In U.K. the new law i.e. the Coronavirus Act provides the recruitment of recently retired medical professionals to increase manpower. As well as, allowing medical students who are about to graduate to render their services, the further provide indemnity to clinical negligence for those medical professionals who are working outside the area of their expertise in desperate times, it also allows law enforcing officers to arrest, isolate and detain people who might be a threat to public health.
In China, massive and rigid lockdowns, heavy fines for breaking quarantine and social distancing might have improved the situation. We can further take clue from Singapore which has an elaborate Act for tackling such outbreaks, Article 58 of the Act grants extraordinary power in relation to emergency method, the clause 2 states “Any person who wilfully neglects or refuses to carry out or obstructs the execution of any emergency measure formulated and implemented under subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 6 months or to both.”
Suggestions
It is a very outdated Act and would requires major changes which can make it fit for use in today’s time. So, here are some suggestion for the amendments:
Recently, it has been seen how people having corona virus have been trying to hide themselves. Others who were tested positive for the virus and were isolated in the quarantine centres tried to escape the place. If this is not taken care of then the whole exercise of contact tracing, lockdowns and testing would succumb. This Act should put some responsibility on the citizens to report it to the health official if they think they or any other person is affected by the virus and should impose punishments and fines on those who knowingly hide suspects or infected persons.
Another section untouched by the Act is the spread of fabricated news in such times of outbreaks. Back, when the Act was made, technology was not so developed as it is today and therefore no one could even think about having cyber laws. But today, the whole world is driven by technology. With no doubt technology is a boon in such times, as we can easily communicate any new information about the virus in almost no time. But it has its ill-effects as well. In such times the markets of rumours also get hot. A lot of fake information about the virus or its spread or any misinformation about government policy or unproven remedies for the same, surface all over the internet. We have seen recently, how this led to panic buying or people consuming hydroxychloroquine without even consulting the doctor or gathering in large numbers and thus failing the whole purpose of lockdown. This should be a major concern and the Act should have stringent provisions to nip the spread of fake news in the bud.
While tackling with any epidemic, segregating and monitoring the affected people is very important. For this purpose, they are put in quarantine centres. Governments need to ensure that these quarantine centres are equipped with proper sanitation and medical services. Recently, the people who were kept at these isolation centres expressed their concerns about lack of basic sanitation and hygiene at these places. Most of the isolation centres were on the outskirts of the cities in some old building with clogged toilets, no proper ventilation, at some places there were no arrangements for food and water supply. If this remains the case then people might find it more tempting to escape the isolation centres or never get themselves tested. The Act should make provision for the government to ensure that these isolation centres have basic hygiene and sanitation and that they have proper food and water supply.
One of the major drawbacks of this Act is that it grants too much power to the governments which in turn can result to extreme brutality and human rights violation. Article 10 of the European Convention of Human Rights provides the right of freedom of expression and information, in current scenario of COVID-19 it is often evident that this as well as Article 19 and 21 of Constitution of India are violated. It should be checked that proportionate force is put to use to prevent any chaos and brutality.
Conclusion
This legislation is a colonial legislation like many other Indian legislations but the difference between Epidemic Act of 1897 and other acts is, the latter have undergone various amendments post-independence from time to time making them more inclusive with the changing times. The Epidemics Disease Act not only requires major changes in its present sections, but further requires new provisions to be added. Today, we see how government has to come up with new rules for tackling the problems like, movement of migrant workers or attacks on health care professionals or policemen or ensuring distribution of food grains to the poor. All of this clearly proves that this Act needs to be repealed and a more inclusive, suitable and humane Act needs to be formed, which can deal with an epidemic situation in present time. The 21st century is marked by major developments in science and technology and lifestyle changes, which should be considered while making changes in the current Act.
The Act should include specific and clear provisions to deal with outbreak of an epidemic. It should be self-sufficient and not vague as it is today.
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This article has been written by Priyesh Srivastava, an advocate in the High Court of Delhi.
Purpose of the ordinance
With the unimaginable outbreak of Covid-19 virus across the globe, doctors and health care workers have risen to occupy the position similar to that of military personnel during the times of war. During such health crisis, the medical professionals have shown their commitment to the world and have also received accolades from almost everyone (‘almost’ used intentionally!). In India, some medical professionals have faced stigmatization and ostracization, while some have also been targeted and attacked by miscreants. With no stringent law in place to tackle such incidents, the Union Cabinet in its meeting held on 22nd April, 2020 has recommended promulgation of an Ordinance to amend The Epidemic Diseases Act, 1897 (“the Act”) in order to protect healthcare service personnel and their property, including their living/working premises, against violence during epidemics. This Article progresses to discuss how the present Ordinance supplements the Act, and what legal/practical challenges lie ahead with such a law in place.
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Outlook of the ordinance and its comparison with the Act
Amendment of Section 1 of the Act- The omission of the words “except the territories, which immediately before the 1st of November, 1956, were comprised in Part B States” supplements the national reach of the Act, which was criticized earlier for having territorial boundaries.
Insertion of Section 1A (Definitions)- The Ordinance inserts the definitions of “act of violence”, “healthcare service personnel”, “property”, and incorporates by reference, definitions from Indian Ports Act, 1908, the Aircraft Act, 1934, and the Land Ports Authority of India Act, 2010. The inclusion of the ‘Definition’ clause, which was absent in the Act, goes on to reduce the vagueness and its misuse, and also helps in determining the scope of expressions used in the Ordinance.
Amendment of Section 2A of the Act- The Ordinance substitutes the following words –“the Central Government may take such measures, as it deems fit and prescribe regulations for the inspection of any bus or train or goods vehicle or ship or vessel or aircraft leaving or arriving at any land port or port or aerodrome, as the case may be, in the territories to which this Act extends and for such detention thereof, or of any person intending to travel therein, or arriving thereby, as maybe necessary” in place of the words starting from “the Central Government may” used in Section 2A of the Act. The inclusion of public transport services like the buses, trains, aircrafts and goods vehicle reflects the shift from the colonial idea of including only ships and vessels. It will allow the Central Government to inspect these transport services and also detect any person having symptoms of such a communicable disease in the future.
Insertion of Section 2B (Prohibition of violence against health care service personnel and damage to property)- This is a negative clause which mandatorily restricts a person from indulging in any act of violence against a healthcare service personnel, or cause any damage or loss to any property during an epidemic. Insertion of this section supplements the object and purpose of the Ordinance, in protection of the health care personnel during the times of an epidemic.
Amendment of Section 3 of the Act- This Amendment renumbers Section 3 of the Act, to Section 3(1), and adds sub-section (2) and (3) after that. Sub-section (2) of the Ordinance prescribes punishment of 3 months to 5 years imprisonment, along with a fine of Rs. 50,000 to Rs. 2 Lakh, if a person commits/abets violence against a healthcare service personnel or, damage or loss to any property. Sub-section (3) of the Ordinance, prescribes a punishment of 6 months to 7 years imprisonment, along with a fine of Rs. 1 Lakh to Rs. 5 Lakh, if grievous hurt is caused to a healthcare service personnel during such an act of violence. These two additional sub-sections supplement the stringent punishment of Section 3 of the Act. It goes on to protect the healthcare workers, and enables them contribute to their work and undertake their duty without any fear.
Insertion of Section 3A (Cognizance, investigation and trial of offences)- This section categorizes the offences committed under sub-section (2) and (3) of Section 3, as introduced by the Ordinance, to be cognizable and non-bailable; to be investigated by a police officer not below the rank of an Inspector; the investigation to be completed within 30 days from the date of the registration of the First Information Report (“F.I.R.”); and the proceedings to be held as expeditiously as possible, by examining witnesses days on end, to conclude the inquiry and trial within a period of 1 year, or within an additional period of 6 months (if necessary). This section supplements the stern nature of the offences committed, by not allowing the accused to plead bail as a matter of right, and allowing the police to arrest him without a warrant. It also amplifies the principle of speedy justice.
Insertion of Section 3B (Composition of certain offences)- This section provides for compounding of offences, with the permission of the Court, committed under sub-section (2) of Section 3, as introduced by the Ordinance.
Insertion of Section 3C ( Presumption as to certain offences)- This section raises a presumption against the person accused, unless proved to the contrary, of committing an offence under sub-section (3) of Section 3, as introduced by the Ordinance.
Insertion of Section 3D (Presumption of culpable mental health)- This section raises a presumption against culpable mental health of the accused, unless the contrary is proved, committing an offence under sub-section (3) of Section 3, as introduced by the Ordinance. It also highlights that a fact will be said to be proved, not by a mere preponderance of probability, but only when the court believes it to exist beyond reasonable doubt.
Insertion of Section 3E (Compensation for acts of violence)- This section obligates the accused to pay, by way of compensation, if convicted for committing an offence under sub-section (2) or (3) of Section 3, as introduced by the Ordinance. It overrides Section 3B, by ordering the convicted person to pay twice the amount of the fair market value, in case he damages any property. In case of failure, this section also allows the amount to be recovered as an arrear of land revenue of the accused, under the Revenue Recovery Act, 1890.
Challenges Ahead
NO DEFINITION OF ‘EPIDEMIC DISEASE’- In spite of the definition clause inserted by the Ordinance, it has failed to include the most basic definition, i.e., the definition of an ‘epidemic disease’. In the present scenario, the lockdown was announced by the Hon’ble Prime Minister in pursuance of an order by the Ministry of Home Affairs which categorized the outbreak of the epidemic, only after the World Health Organization declared the virus as a pandemic. Without any definition in place, it is difficult to categorize any virus as an ‘epidemic disease’. The Merriam Webster Dictionary defines ‘epidemic’ as “affecting or tending to affect a disproportionately large number of individuals within a population, community, or region at the same time.” Therefore, it would have been better to adapt a definition already in place, rather than not defining it at all.
THE SCOPE OF ‘DANGEROUS’- Section 2 and 2A of the Act empowers the State and the Central Government to pass necessary regulations, only when they are satisfied that any place is threatened within an outbreak of any dangerous epidemic disease. Even if the Government defines as to what constitutes an ‘epidemic disease’, it is still uncertain to categorize it as ‘dangerous’; whether it depends upon the magnitude of the problem, the severity of the problem, the age of the population affected or its potential to spread internationally, remains unclear.
NO SCOPE OF REGULATIONS- The regulations passed by States and the Central Government has been criticized by many as being oppressive and over-arching. The Uttar Pradesh Government’s regulation imposing a mandatory obligation on the employers to pay full wages to the employees during lockdown, seems a bit of stretch, as the non-fulfillment of such an obligation constitutes a criminal offence and holds that person liable under Section 3(1) of the Act.
PRIVACY ISSUES WITH INSPECTIONS- After the Supreme Court’s landmark judgment in the case of Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India, where the right to privacy has been categorized as a fundamental right, the power of inspection by the Government has been put to test. With the Center’s latest collection of personal data by the Arogya Setu application, or the tracing of aircraft and railway reservation data to track suspects, or with Kerala Government’s usage of telephonic call records, CCTV footage and mobile phone GPS; it all has raised concerns over the possible breach of personal data, unless the Government assures to follow due process of law by formulating guidelines to the extent of information to be collected and subsequently disclosed.
LACK OF HUMAN RIGHTS- The Ordinance highlights the powers of the Government, without specifying the rights of the people. It is silent on the ethical and human right principles of the people during such an epidemic. The action of stamping people on the hand, to make sure they don’t escape quarantine facilities, has resulted in a lot of debate and stigmatization, which has become a primary reason why many people are choosing to hide their symptoms, rather than getting tested. This action of the Government has led to fall in trust and confidence of the people, in general.
NO PROVISION FOR COGNIZANCE- Section 3(1) of the Act, as amended now by the Ordinance, is a deeming provision and deems that a person has committed an offence under Section 188 of the Indian Penal Code, 1860. Section 188 is read with Section 195 of the Code of Criminal Procedure, 1973, which allows the Magistrate to take cognizance only on a complaint in writing filed by the Public Servant. Now the Ordinance, by way of Section 3A only talks about cognizance of offences committed under sub-section (2) and (3), while being silent on the offence committed under (1). This will result into filing of numerous FIRs, as being done already, and goes on to create a conflict between the provisions of the Act and the procedure established by the Code of Criminal Procedure, 1973.
MISUSE OF PROTECTION AND WRONG IMPLEMENTATION– Though the police personnel have been commendable at the forefront to implement the lockdown and various other government regulations, there have been incidents where the police personnel have misused their position ranging from beating up people with a stick without any just cause, registration of unnecessary FIRs, to allowing a few privileged people to disobey the lockdown, and many more. Moreover, Section 4 of the Act gives the police personnel protection from any suit or criminal proceedings by anything done by them under the Act. This protection along with wrong implementation of the guidelines has resulted into unbridled display of power by the police personnel, which has not only defeated the purpose of the Act, but has also caused great misery to some during such harsh times of epidemic.
Conclusion
The Ordinance does justice to the object with which it is promulgated, however it leaves behind many lacunae to fill, which hopefully should be rectified when it is placed before the Parliament as per the provisions of Article 123(2) of the Constitution. It will be interesting to observe as to how the Parliament will bring about a balance between the powers of the Government and the rights of the citizens, so that the implementation of the Act is appropriate in cases of such an epidemic outbreak in the future.
Disclaimer– Views are personal and for informational purposes only. Kindly mail at priyeshsrivastava05@gmail.com for any clarifications.
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This article is written by Poulomi Sen, student of Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. In this article, she explains the concept of music sampling which poses a threat to Copyright.
Introduction
“Thou shall not steal” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed.
-Judge Kevin Thomas Duffy
In very recent times, we have come across certain remakes in Indian music industry embodying samples of the original song and refashioning the authentic songs which are being appreciated as well as criticized by many. Despite the huge popularity of such songs, there is an imposing threat to copyright infringers who without prior permission of the original song makers i.e. the sound recording artist, the lyricist, the music composer, incorporates the material part of the pre-existing song in their musical work. In case, a refashioned song is made available on a commercial platform without taking license from the original creators, the song maker can be held liable for infringing copyright primarily. Even the websites which provides a platform to the primary infringers and uploads their pirated works can be held liable as secondary copyright infringers. Though copyright infringement is per se illegal irrespective of the damage caused, it is quite evident that more the refashioned song gets popular, enabling extraction of huge commercial benefits, the probability of facing a lawsuit becomes high. This article intends to cover the copyright infringements resulting from refashioning songs by music sampling and making mashups and remakes.
Musical work under Indian Copyright Act, 1957
Section 2(p) defines musical work as:
“Musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music.”
Lyrics to a song are considered as literary works. In India, separate copyright subsists for musical work, lyrics and sound recording. In US, combined copyright is granted to the song makers, thereby reducing the transaction cost.
By virtue of Section 14(a), the copyright holder of musical work and literary works has the following exclusive right:
To reproduce the work;
To issue copies of the work to the public;
To perform the work in public;
To communicate the work to the public;
To make cinematograph film or sound recording in respect of the work;
There are various ways in which an original song can be refashioned:
By music sampling
By making mashups
By making remixes
Refashioning the authentic musical work without permission of the original underlying copyright owner results into:
Breach of copyright of the original sound recorder.
Breach of copyright of the original lyricist.
Breach of copyright of the original music composer.
Violation of the perpetual moral right of the underlying copyright owners.
Music Sampling
Music Sampling is the re-usage of a substantial portion of a pre-existing song by integrating that part of song in a new musical work. Samples may comprise rhythm, melody, speech, sounds, or entire bars of music, and maybe layered, equalized, sped up or slowed down, pitched, looped, or otherwise manipulated. It is done digitally by extracting a part of the pre-existing song using samplers and incorporated into another.
The term “substantial portion” has to be construed according to the facts of each case. In the case of musical works, the substantial part is not determined note by note, but whether the substance and elementary part of the original work has been incorporated.
UK case: Hawks & Son v Paramount
The use of 20 seconds of a 4-minute long piece of musical work was enough to constitute a substantial part, as the 20 seconds were acknowledged as a crucial and rudimentary part of the original song.
US case: Newton v Diamond & Others(2003)
“It was held that there was no infringement because the use of the flute sample was minimal and there were no substantial similarities between the two works or that the average person would recognize the appropriation.”
Sampling music without taking prior permission or license from the copyright owners of the original song violates their exclusive right of making any derivative work. Failure to obtain license enables the copyright holder to sue the infringer. In order to file a copyright infringement suit, the plaintiff has to prove the following points:
He is the owner of the musical work in dispute.
The defendant has incorporated a substantial part of his work.
Music Sampling Cases in UK and US
UK AND US deals with music sampling a bit differently. In the US, the doctrine of fair use can be applied. The defence of ‘fair use’ is very limited and can be used only in specific purposes which includes parody, criticism, news reporting, research, education and similar non-profit use.
In Acuff-Rose Music v. Campbell
The US Supreme Court reversed the decision of lower court stating that the use of pre-existing work in a new song could be ‘fair’ and what is fair has to be construed according to the facts of each case.
UK case of Produce Records Ltd vs BMG Entertainment Ltd
The usage of a 7.5-second sample of ‘Higher and Higher’, a track originally recorded by the Farm and owned by Produce Records, constituted infringement for being the substantial part of the song, when incorporated in their song ‘Macarena’ by veteran Latino duo Los Del Rio.
Bappi Lahiri dragged Truth Hurtz to US courts for incorporating a part of his musical work ‘Thoda resham lagta hai’ in his debut single ‘Addictive’ without taking license and without paying any royalties to Bappi Lahri. The federal court directed to remove the song from the shelves until the composer is acknowledged as the author of the musical work.
Music Sampling in India
Though there is no legal provision explicitly dealing with sampling of sound recording in Indian Copyright Act, 1957; Section 14 provides the owner of copyright certain exclusive rights in order to protect their entire work or a substantial part of the work. The owner of musical work, by virtue of Section 14(a), has exclusive right to make any adaptation of the work. Adaptation under Indian copyright Law is analogous to Section 106(2) of US Copyright Law, derivative work. Adaptation involves the making of a new work from a pre-existing work. Transcription of musical work or any act involving re-arrangement or alteration of an existing work will infringe the copyright holder’s exclusive right to make any adaptive work.
Mashups
A mashup is a piece of recorded music that is comprised entirely of samples taken from other recordings and remixed to create a single new track. A standard mashup encompasses sample from two or more pre-existing songs, involving different artists, integrated into one track by manipulation of elements like tempo and pitch of the vocals as well as the instruments. Mashups are exclusively made by combining pre-existing tracks whereas in remix, samples are combined with a new content.
In the case of Bridgeport v. Dimension, the court observed that it is possible for mashup artists to be guilty of copyright infringement even if one second sample of music is used.
Remixes
A song remix is done by making modifications in the original song by altering the pitch and rhythm and certain other technical elements of the vocals and instruments. In a nutshell, remix is an alternative version of the original song.
A legal notice was sent to Hindustan Coca-Cola Beverage Pvt. Ltd, Hindustan Coca Cola Holdings Pvt. Ltd, Viacom 18 Media Pvt. Ltd, and a compensation of 1 crore was claimed for infringing copyright by remixing the popular Sambalpuri song ‘Rangabati’ by adding English-Tamil rap and Orissa Anthem to it and telecasting it on MTV Coke Studio.
Violation of copyright due to refashioning pre-existing songs
In case, a musical work incorporating a sample of an existing work qualifies the test of originality, the copyright protection will not be extended to that unlawfully copied sample as that portion has no artistic merits of its own. Ultimately music sampling will result into copyright infringement due to the unauthorized inclusion of a substantial part as that particular part will be beyond the scope of copyright protection. On the other hand, some mashups and remixes completely violate copyright and lack the bare minimum original content in it. The work of mashup artist may be any time questioned by the original artists for the lack of originality in their work. Following standards of originality are laid down by various courts:
Countries laying down originality tests
Approached originality Tests
Standards of originality tests
UK
Sweat of the brow
Too low
US
Modicum of creativity
Too high
Canada (followed by India)
Non-trivial, non-mechanical application of labour skill and judgment.
Average/ medium
Refashioning any song by any of the modes discussed above without the grant of license by the original copyright holder will result in:
1) Primary or direct copyright infringement.
2) Secondary or indirect copyright infringement.
Primary Copyright infringement
Section 51(a)(i) of Indian copyright Act deals with primary copyright infringement. There are two ways of primary infringement:
Without taking license.
Taking license but acting beyond the rights conferred by the license.
Primary copyright infringement, due to music sampling, takes place because of violation of the following rights
Violation of 14(a) – Rights of the Copyright Owner
The owner of musical work, by virtue of Section 14(a), has exclusive right to make any adaptation of the work. Adaptation under Indian copyright Law is analogous to Section 106 of US Copyright Law, derivative work. Adaptation involves the making of a new work from a pre-existing work. Transcription of musical work or any act involving re-arrangement or alteration of an existing work will result into infringement of copyright holder’s exclusive right to make any adaptive work.
Violation of 14(e) – Rights of the Sound Recorder
Further, the communication of such musical work by making it available in a commercial platform will result in infringement of 14(e)(iii) rights of the original sound recorder. A sound recording artist, by virtue of Section 14(e) of Indian Copyright Act, 1957, has the following rights:
To make any other sound recording embodying it.
To sell or give on hire, or offer for sale or hire, any copy of the sound recording.
To communicate the sound recording to the public.
Violation of Copyright Holder’s Moral Right
By virtue of Section 22 of the Copyright Act, term of copyright in a published literary and musical work subsists until 60 years after the death of the copyright owner. But the moral rights which the copyright owner has by virtue of Section 57 are perpetual. Section 57 intends to protect a creator’s right of integrity and hence bars intentional distortion, mutilation, or other modification of a work if such distortion is likely to harm the author’s honour or reputation.
In case the new song incorporating samples of pre-existing songs is prejudicial to the honour and reputation of the original copyright holders, it will be violating their moral right.
In case modifications and alterations are done in the existing song is prejudicial to the honour and reputation of the original copyright holders, it will be violating their moral right.
Secondary infringement occurs only when prior direct infringement exists. The purpose is to hold all those infringers accountable for violating copyright of the original creator who indirectly contributes to the copyright infringement by extending substantial support and aiding the primary infringers to breach copyright. Section 51(a)(ii) and Section 51(b) deals with secondary liability.
Section 51(a)(ii) holds the person liable who facilitates copyright infringement by allowing a place (physical/virtual) to be used for communication of the copyrighted work provided that he had prior knowledge(constructive/actual) that his acts will result into copyright infringement.
Elements of Secondary Copyright Infringement:
The defendant must be permitting a place, which may be physical or virtual, which either belongs to the defendant or he has actual control over it
He is extending such support for commercial benefits
Communicating such pirated work to the public which is per se infringing the original copyright holder’s copyright
He must be having actual or constructive knowledge that his act of communicating the pirated work violates copyright of the original copyright holders.
Section 51(b) holds the person liable for secondary infringement when that person distributes or deals with the infringing copies of the copyrighted work.
Therefore, the websites uploading such pirated contents will be held accountable as secondary infringers for facilitating the primary infringers with the medium through which public gets access to such works and extracts commercial benefit due to communication of such works.
Many artists release their refashioned musical work on P2P networks without obtaining a license of the work. The rationale behind this is that P2P network maintains dynamic directory and does not store the contents of the work. The moment the users log out from the server, the content is no longer available and hence cannot be accessed. Based on the popularity gained on that platform, the artists obtain the license by paying royalty; they obtain a license and release it legitimately.
Legal usage of music samples
The fundamental purpose of copyright is to strike a balance between the interests of the copyright owner and the interests of copyright consumers.
Therefore to strike the balance, sampling of music can be made legal in case:
1) It comes under the exception of fair use or de minimis use.
2) License is taken from original copyright holders before using their piece of work.
Doctrine of fair use
Doctrine of fair use is a defence to copyright infringement that allows restricted use of copyrighted work without the owner’s permission. Fair use doctrine was fabricated in order to protect the right to freedom of expression for works which are precious and valuable to society. Section 52 of the Indian Copyright Act deals with fair use doctrine. According to Section 107 of the US Copyright Act, in order to take this defence, the defendant has to qualify a four-factor test:
(1) the “purpose and character of the use,”
(2) the “nature of the copyrighted work,”
(3) the “amount and substantiality of the portion used in relation to the copyrighted work as a whole” and,
(4) the “effect of the use upon the potential market for or value of the copyrighted work.”
Though no single factor of the fair use test is necessarily determinative, the “purpose and character of the use” of the infringer’s work normally weighs heavy in the judge’s decision. If the purpose is to make a genuine parody of satire of the original musical work, the alleged infringer can be excused.
This doctrine can never be easily applied as this doctrine has very narrow application and is construed according to the facts of each case. Moreover, the risk involved in taking of the defence of fair use is that once the defence fails, one will be liable for copyright infringement. If a composition is completely remodelled into a new work, such as a parody song, it can be considered to be a fair use and hence can be exempted from the liabilities. This doctrine is applicable where a work is created in order to comment and criticize a pre-existing work. However, this doctrine is not reliable in case where songs are refashioned and subsequently uploaded for commercial purposes.
Obtaining license
In order to refrain from any legal issues, a license should be obtained from the underlying copyright holders before remodeling the original musical work and the necessary royalties should be paid to them based on estimated revenue generated from the refashio.ned musical work. The consent of copyright holder in granting the license is very vital as his refusal to grant license will lead to copyright infringement.
Mechanical license can be taken for the purposes of distribution of the musical work
Attribution license under Creative Commons allows people to copy, distribute, display, and perform the copyrighted work and to create derivative works. Therefore, attribution license can be taken for making mashups and remix. But they have to make sure that all the copyright holding artists are getting proper credits.
For non-commercial purpose, Non-Commercial licenses can be obtained by which one is at the liberty to do anything with the song, but the song cannot be used for commercial purpose.
In the case of Gramophone Co. Of India Ltd. vs Super Cassette Industries Ltd.
The plaintiff offered the defendant a license fee for making audio cassettes incorporating the original sound recording of Ganapati Aarti. Despite the refusal of the defendant to grant license, he made the cassettes and was held liable for copyright infringement.
There is no provision mentioned in the Indian Copyright Act regarding licenses required to be taken for music sampling, making remixes and mashups as it is provided for cover versions. In cover versions, there is no need to take special permission from the artists to cover their song but to upload mashups and remixes there is need of doing so, as mashups, music sampling and remixes are adaptation of original musical work or works.
In India, lyricist and music composers are represented by Indian Performing Rights Society and a sound recording artist is recognized by Phonographic Performance Limited. Therefore their contact information can be acquired through the appropriate organization’s database.
In Bridgeport Music v Dimension Films, the court said, “Get a license or do not sample- we do not see this as stifling creativity in any significant way.”
Therefore to legally use a sample, an artist must acquire legal permission from the copyright holders, and obtain a license known as clearance from:
Original sound recording artist
Original lyricist
Original music composer.
In case a refashioned musical work is uploaded on commercial platforms like Sound cloud of YouTube without obtaining a license, the platforms can go to the extent of taking down such pirated works after giving prior ‘takedown’ notice.
Relief granted to copyright owners for copyright infringement
Statutory damages: Such monetary compensation is fixed by statute and is neither subject to the discretion of court nor depends on the actual loss suffered by the copyright owner.
Injunction: Court can direct the infringer to completely refrain from refashioning the original musical work.
Conclusion
Music sampling, making mashups and remixes can result in copyright infringement enabling the copyright holders to sue the primary as well as secondary infringers. To avoid this, before incorporating a sample of pre-recorded song into a new song, a clearance license should be obtained from the sound recorder, music composer and the lyricists and royalty fee should be paid to them. Also to avoid risk, while making remixes by modifying the original song, prior permission should be taken from the copyright holders of the original song.
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This article is written by Rohit Raj, a student currently pursuing B.A.L.L.B.(Hons.) from Lloyd Law College. This is an exhaustive article which deals with the Police action against the people who venture out during lockdown situations and deals with the legality and limitation of Police action.
“When you have Police officers who abuse citizens, you erode public confidence in law enforcement. That makes the job of good police officers unsafe.”
— Mary Frances Berry
Introduction
If you really want to hear about how Police are beating up people who venture out during lockdown with any reason and whether this action is legal and fair action or not then this article will help you in clearing down the concept of legality and actions of police during the lockdown.
In this whole article, we shall learn about the powers of Police during the lockdown and how it is being abused, rather than helping people out.
After dealing with the legality and different powers conferred to the police during the lockdown, several cases were dealt and analyzed to know the circumstances where people were denied access without any appropriate reason.
Powers of police during the lockdown
During the period of lockdown, People are not allowed to move freely in the locality and it is the duty of the police to ensure that people remain inside their houses. There is nothing new about lockdown, it keeps happening for various reasons in a country like India.
If we take the lockdown in the context “COVID-19” then, the Police during the coronavirus lockdown were instructed to provide a consistent service and help the community whenever they need help while performing the sovereign function. Police during the performance of sovereign function maintain an intrigued and interrogating mind while dealing with the people who were wandering outside the house due to any reason whether the reason is genuine or not.
Police were engaged in performing absolute functions as they have been empowered with many functions to make people stay in the house with the use of their allocated power. Police during lockdown can restrict any person from venturing out during lockdown time and can also use force on people and they can beat people who venture out in lockdown without any appropriate or proper reason and moving unnecessarily. The beating of people in these conditions is suitable till when it is in the limit and when it crosses the limit of exercising or using force, then it clearly indicates the misuse of sovereign power.
Power of police is also mentioned under the Code of Criminal Procedure and this can be seen during a lockdown of this coronavirus. Code of Criminal Procedure mentioned the power of the police. Police can book any individual who is found breaking and misusing the law which is applicable in this lockdown period.
Legality of action of police to beat up anyone who ventures out for any reason during a lockdown
Various cases across India where people were denied access without a proper reason
In India, there are a lot of cases where people were denied access without a proper cause and due to which people suffer in their day to day life. Before going to the case, the question arises of legality of Police action whether the action of the police is within the legal framework or not? Or we can say whether the police action is legal or not.
The action of the police is totally legal if they also use force but in a limit not extending limit like the police does in Kolkata. The sovereign function is totally legal and fair but to a certain limit and when that limit is being crossed in sovereign function then that act will be considered illegal.
If we look at the recent news related toIndia v. Pakistan (Kulbhusan Jadhav), then India requested for consular access but the Pakistani military court refused to grant consular access without giving any or proper reason for the refusal of the consular access. This clearly shows how people were denied their access without giving any proper reason and this example is taken as a help or as a reference how it is being done in the current scenario.
Mohini Jain v. State of Karnataka,a 1989 Supreme Court of India case, occurs when the Government of Karnataka issued a notification which permitted the charging of extra tuition fees from the students only who come through ‘Government seat quota’. And this decision was challenged by Mohini Jain who is a medical aspirant student and challenged before the Supreme court where the court raised a question that “whether right to education is guaranteed to the Indian citizen under the Constitution of India.” And in this case, the Supreme Court held that the right to education should be read as an integral part of the right to life which is guaranteed under Article 21 of the Indian Constitution.
Swapnil Tripathi v. Supreme Court of India,this is considered as a landmark case and in this case, a fourth-year law student filed a plea in the Supreme Court to make the court proceeding live in the interest of the public so that public especially law students and younger advocates can be benefited from the live telecast of court proceedings. The Supreme Court held that the ability to view live broadcast of proceedings of court which flowed from the right to access to justice in the constitution, but said that this right should not be absolutely provided certain guidelines and it is on the discretion of the court when the live broadcast of proceedings will be done.
These all both cases and also Kulbhushan Jadhav case shows how the denial of access was made without giving a proper reason that it should be denied on this basis. This absence of proper reason while denying the access shows the loophole of the Judiciary system. And this loophole is carried out by the Judiciary in its many judgments.
Abuse of powers
The question arises of legality whether the action of the police is within the legal framework or not? Government is not exceeding or performing any action exceeding the authority than they have been provided with. If we look for the provisions and what are the charges and punishment defined for venturing during lockdown without any proper reason then we came to know some of the provisions of law which book individuals under the provision of law.
Section 188 IPC,Violation of any order which is passed by the government in order of public interest.
Section 269 IPC,Negligently doing any act in order to spread the disease in the community.
Section 270 IPC, Doing any act maliciously knowing that it is more likely to be spread infection of any disease.
Section 271 IPC, knowingly disobeying the rules of the quarantine period and lockdown also leads to book individuals under this provision.
And, Police is only exercising their power as per the provisions which have been mentioned and act as per the order of legislative and Judiciary body. But on the other side of the same coin some policemen exercising extra power under the name of sovereign function.
Powers were conferred to the police not for suppressing people in this quarantine and lockdown period but to provide help and utmost support to the people so that they all can face this lockdown period easily without getting any harm. If we see the example of that Kolkata case during this coronavirus lockdown, then in that the police beat that person who is going to take milk only not for any other purpose and not creating any other mischief on the road but under the name of the sovereign function and beat that person so much that the people died there only which is so shameful for the police department.
Is the use of force justified?
After analysing the cases and legality of the police action in detail, now we are going to look over the violence created by the police during the lockdown and quarantine period and why the action of the police is considered as violent under the name of sovereign function.
During the lockdown time when any person for any reason is out of the house, then some police is showing his cruelty and all his anger on that person without knowing the specific reason behind his breaking of quarantine and their brutality sometimes leads to death of that person like the Kolkata case of the milkman. As for the clear picture, a zomato delivery boy was beaten with brutality for delivering the order in lockdown which is a clear misuse of their sovereign power and their act is totally against the sovereign function.
Police have to leave the people out for essential needs
During the lockdown period, all the shops were closed and also the people weren’t allowed to come out of their house and if they did so it would be in violation with the law and also be booked for punishment under many different provisions.
Essential goods are always necessary for all people to have it and at the time of duration, people need it to survive and as police were showing their brutal behaviour and beating up an individuals who comes out for the purpose of buying essential goods for their family so that they can eat and survive in this quarantine and lockdown time due to this people is being scared from the police action and lockdown them without even eating which finally paves way to death of person which is totally immoral and also not correct from the view of law. Police should leave the people out only for the essential needs so that they can fulfill their essential needs which is very much important to be fulfilled.
Police can do so that they can check the bill of the purchased commodities when they will return after buying and this way police can control the person coming out for unnecessary reasons during this quarantine period.
Duty to protect the citizens, not to abuse their powers
Police and police function is considered as a sovereign function and any act performed under sovereign function will not be considered wrong and the police will not be liable but the function should be fair and within the limit prescribed for discharging sovereign function.
Police is a part of the society and police has a responsibility as well as a duty towards the common people and duty to protect the citizens and serve the society not to suppress the common people and misuse their power and torture and make people their enemy.
Police have also been conferred with power under several provisions to serve the people and each individual in every circumstance whatever the situation is and in no condition police will be biased towards any particular person as per the noted provisions like – Article 14 (Right to Equality) means every person should be treated equally irrespective of gender, caste, colour, race, status etc.
Conclusion
Is it legal for police to beat the people who venture out with any reason during a lockdown? This topic in itself is showing both aspects i.e. Moral and legal. Actions of police and allowing them during lockdown to buy essential commodities respectively shows moral and legal values. The Police System from the very beginning is considered as a most important element of the society which helps in society regulation and security of each individual of the society with a formal prescribed way of handling and running the society.
According to my assumption, the power of police should be more exercised in the locality or society but with much greater control over the exercise of their sovereign power and discharge of sovereign function. As like everything has its two sides, Police has also two faces i.e. one who helps an individual and performs their duty in the interest of people and one who misuse their power to suppress the common people and always use coercion on people. Due to these, the whole police system is considered as corrupt and an enemy of people. So, to change the mindset of people, greater control over police was needed and if any police were using their discretion and violated some rules under the name of discharging sovereign function then that police should be booked for punishment under some provisions of law.
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 Constitutional Validity of the lockdown order by the Central Government.
Introduction
When the coronavirus cases in India had exceeded 600, a nation-wide lockdown was announced by the Prime Minister of India, Narendra Modi. This lockdown was announced on March 24, 2020, at 8 pm which would begin from March 25, 2020, till April 14, 2020. This 21-day lockdown was imposed to curtail the spread of the COVID-19 outbreak and promote the concept of self-isolation and social distancing.
The Central Government had said that the implementation of the 21-day lockdown was of prime importance as that is the nation’s only weapon against the deadly coronavirus. The application of the lockdown would at least contain the spread of this virus. Section 6(2)(i) of the Disaster Management Act, 2005 was invoked by the Ministry of Home Affairs that had restricted the movement of residents. The common people were not allowed to move outside their houses due to the implementation of this Act.
This Act also ordered a closure of factories, offices, and shops that were operational. Only shops that provided essential goods and services were allowed to function. Due to the absence of a vaccine and poor infrastructural quality, India does not have the capacity to handle this crisis. Even though this lockdown order may seem unprecedented, it is reasonable in nature and is the best way to battle the spread of the COVID-19 outbreak. This article analyzes the constitutional validity of the lockdown order that was passed by the Central Government.
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Powers of the central government
Article 256 of the Constitution of India states that the Central Government can give directions for the proper implementations of laws that are made by the parliament and the states have to follow such order. The Central Government has passed the lockdown order and under this Article, the states have to follow this order as it was made to prevent the spread of the coronavirus.
Article 275 of the Indian Constitution stipulates that the executive powers of the States should be performed in such a manner that it does not obstruct the executive powers of the Central Government.
Article 355 of the Constitution of India is an important piece of legislation that enforces a duty on the Union for the protection of states against any internal disturbances or external aggression. The coronavirus outbreak qualifies as an internal disturbance so this article is applicable in the lockdown order.
In 1978, the government of Morarji Desai had substituted ‘internal disturbance’ with ‘armed rebellion’ by the 44th Constitutional Amendment. This amendment was made in Article 352 of the Indian Constitution which permits the Central Government to declare an emergency. The coronavirus pandemic would indisputably be qualified as a situation of internal disturbance but since ‘armed rebellion’ was added in place of it, Article 352 cannot be invoked by the Central Government to declare an emergency.
Federalism is an important part of the basic structure of the Indian Constitution. It is an essential characteristic that forms a fundamental pillar of our government. There is a division of power between the Centre and the States which is enshrined in the three lists i.e. the Union List, State List and the Concurrent List that is mentioned in the Seventh Schedule of the Indian Constitution. Entry 6 of the State List talks about public health. This Entry gives States the power to give directions on the matter that concerns public health which falls within the jurisdiction of this Entry. In a similar way, Entry 81 of the Union List gives discretion to the Central Government to make laws on inter-state quarantine.
Instead of following the emergency provisions of the Constitution of India, the Central Government found a way to impose the lockdown by the application of these two constitutional frameworks.
Epidemic Diseases Act, 1897
The Epidemic Diseases Act, 1897 was a hurriedly drafted legislation that was enacted in order to curtail the spread of the bubonic plague that had spread in 1896, in Bombay. This plague had forced people to migrate out of the city. This Act just has just four provisions.
Section 2 of this Act says that temporary regulations can be made by the State Government if the Government is satisfied that an outbreak of a disease is of an epidemic nature. Such temporary regulations have to be followed by the people of the country as they were made in order to prevent the spread of such an outbreak. It also says, there should be segregation of people in the hospital to prevent the disease from spreading from one person to another.
Section 2A states that if the Central Government is satisfied that due to a pandemic or epidemic outbreak, an ordinary legal framework would not be able to run the legislature the Central Government may make certain rules and prescribe certain regulations to control the spread of such a disease.
Section 3 of this Act states that the person who does not follow the provisions made under Act would be deemed to have committed an offense. This offense is punishable by Section 188 of the Indian Penal Code, 1860, which is an offense for disobeying the directions given by a public servant.
Section 4 of this Act grants protection to the people who act under this Act. People who perform an act in good faith and are not held liable for these acts. States have invoked Section 2 of this Act so that they could ensure the minimization of the spread of the virus.
Disaster Management Act, 2005
The Disaster Management Act, 2005 provides those powers which the Epidemic Diseases Act, 1897 does not provide. The DMA is an administrative framework that allows the Central Government to make plans to reduce the impact, effects, and risks related to the virus. It also empowers it to declare that the country is under a disaster and there should be certain plans to stop that disaster. This Act covers each and every natural as well as man-made disasters which also includes the coronavirus. This Act also gives power to the Central Government to take action against those who do not abide by the laws and orders of this Act.
Till the lockdown order, many States had enacted the Epidemic Diseases Act, 1897 to prevent the spread of the coronavirus, then the lockdown order was passed under Section 6 and Section 10 of the Act. The DMA was passed so that the National Disaster Management Authority could be set up to provide a set of the framework under the Chairmanship of Narendra Modi, the Prime Minister of India. Not more than nine members are nominated by the Prime Minister in this Committee. Section 6 of the DMA empowers the Central Government to manage a disaster situation in India effectively.
The term disaster is defined in the DMA under Section 2(d) which includes the loss of life or human suffering from natural or man-made causes. The coronavirus outbreak can clearly be called a disaster under the DMA, this gives the Central Government powers and allows it to make rules to deal with the outbreak of the novel coronavirus. It also allows the Central Government to make plans and guidelines to manage this situation by taking the necessary steps needed for a functional response to this disaster.
According to Section 38 of this Act, the States are bound to follow the directions and decisions of the National Disaster Management Authority.
According to Section 51 of this Act, if any person does not follow the orders of the government and goes on to obstruct the laws, he has to face imprisonment for a term of one year.
Section 54 of this Act states that spreading of fake messages and false alarms would lead to a penalty for a year. People who spread fake messages on WhatsApp should pay attention to this Section. According to Section 61 of this Act, there can be no discrimination on the basis of caste, sex, religion or community while providing relief to the victims of such a virus.
Section 72 of this Act states that there would be an overriding effect of the provisions of this Act on the other laws which are inconsistent. All these acts are clearly applicable in the case of India and should be followed as prescribed by the law.
Constitutional validity of the COVID-19 lockdown
A question that arises in everyone’s mind who is a victim of the lockdown is whether this lockdown order is constitutionally valid or not. To this question, the answer is a straightforward yes. The lockdown is totally valid under various laws and acts that are enacted by the Central Government. Article 21 of the Indian Constitution states that no person is deprived of his personal liberty.
In the case of the State of Punjab v. M.S. Chawla, the Supreme Court had interpreted Article 21 of the Constitution of India in a broader sense where it is said that the Centre has the constitutional obligation for providing certain health facilities to the common people. The Centre has a full obligation to follow certain measures and declare a public health emergency under this Article. Though no emergency has been declared under this article, the government has the authority to do so and we can also be deprived of personal liberty without the declaration of an emergency. This provision is applicable in the current situation where the coronavirus pandemic has been resulting in the death of people in India.
This lockdown primarily affects the fundamental rights laid down in:
Article 19(1)(d) which protects the right of free movement within the territory of India.
Article 19(1)(g) that secures the right to carry out any occupation, trade or business and to practice any profession in this country.
The concept of reasonable restriction is mentioned in Article 19(5) and Article 19(6) of the Indian Constitution which makes it clear that such restrictions can be imposed on the rights provided in the given Articles of the fundamental rights in the interest of the general public. The guidelines issued for the lockdown order under the Disaster Management Act, 2005 totally qualifies as a reasonable restriction under two Articles of the Constitution of India namely, Article 19(5) and Article 19(6). In the case of Madras v. V.G. Rows, the test of reasonability regarding a restriction was laid down. It stated that for deciding the reasonableness of a restriction, some factors have to be considered. Such factors include – the underlying purpose of the restriction, disproportion of the restriction, the extent and urgency of such restriction and the prevailing conditions at that time.
The Supreme Court, in the case of Narendra Kumar v. Union of India had determined the reasonableness of a restriction. The Court had said that the restriction should not be more than the necessary reasonable restriction and it should be in the interest of the people. The restriction must also consider the background of the situation that has occurred. The reasonable restriction should remain ‘reasonable’ and not cross the line.
The Supreme Court, in the case of Bannari Amman Sugars Ltd. v. CTO, had further observed that a reasonable restriction which is imposed in the State cannot be called unreasonable just because it uses harsh measures for its application.
Conclusion
By declaring an early lockdown, by the provisions of the Disaster Management Act, 2005, India has taken a great step to fight the coronavirus outbreak. The best weapon for India at this crisis is social distancing and self-isolation of the people. By doing so, people minimize the chances of catching the virus and passing it on to another person. Some people might not like the idea of an all India lockdown but the bitter truth is that the lockdown is the best possible way to fight this pandemic as India does not have any cure for it. In my opinion, the 21-day lockdown should be increased so India does not enter the third phase of this pandemic which other countries have faced, and have proved to be fatal.
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This article is written byAnubhab Banerjee, currently pursuing BBA-LLB (Hons) from the School of Law, Alliance University. This is an article which deals with the rights and obligations of landlords and tenants across India during the difficult times posed due to the outbreak of COVID-19.
Introduction
The lockdown amid the fear of COVID-19 has had its effect on the economy as well. The fear created by this virus has penetrated into everybody’s life and has affected every aspect of the country and its citizens. The whole country has just a few essential services which are running at the moment and except that there has been a complete shutdown of the economy.
The situation has made it difficult for most people to meet our monetary targets. The effect of an uncertain income for most small and middle-sized businesses is obviously a growing concern amongst the population. Such monetary issues are giving rise to another issue i.e the payment of rent by tenants to their homeowners. As paying rent under the present circumstances is becoming an added burden on certain tenants.
This problem will definitely raise certain questions in the minds of tenants and landlords as well. Questions like ‘What if a tenant is not being able to make timely payments for his rent due to no earning under the present circumstances”, “What if a tenancy contract is ending during this period” and “What if a landlord doesn’t allow a tenant to enter the premises” would be raised.
The primary aim of this article is to answer such questions and suggest solutions on what can be done. This article will deal with the rights and obligations of landlords and tenants during the difficult times amid the COVID-19 outbreak.
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Rights of tenants during COVID crisis
Under the current circumstances tenants and landlords, be it commercial/regular, are in an unknown territory facing a complete or partial shutdown of business operation as a result of the restrictions and regulations having been put by the government on our day to day activities. Urbanisation can be considered as a factor which has led most of us to move to big cities in the expectation of a better life, a better job, better opportunities, etc.
With most of such population staying in rented houses or apartments, a huge question is getting raised concerning what these tenants are supposed to do if they are unable to pay rents to their landlords. As in what are their rights and obligations under the present circumstances. The following are certain instances with regards to such concerns:
The best way to resolve the issue of non-payment of rent under the present circumstances is to mutually reach an amicable settlement with the landlords with regards to payment of rent. In case the tenants are unable to cope up with their financial needs amid the lockdown, they need to talk it out with their landlords and ask for extensions in periods for such payments.
The tenants though, cannot be asked to leave the house/apartment without any formal notice by the landlord. A landlord needs to give a one month notice to a tenant for vacating the premises in case such is necessary. The law as well requires a landlord to give a 30-day notice to ask for the payment of rent from a tenant. The tenant on receiving such a notice can take up to three months to repay the amounts of rent which have been due. On the failure of which the landlord shall approach a court for taking legal action against the tenant with regards to non-payment.
In the case of commercial leases, it is to be seen if the tenants can make use of the ‘Force Majure’ clause. It mainly depends on the interpretation of the pandemic by the courts. If the courts interpret such a situation to be considered under the ‘Force Majure’ clause then it shall be considered to be a relief on the part of the tenants. As they can use the clause accordingly to get relief under the present circumstances. Though they shall have to make full payment for the period during which the payment had been skipped because of the pandemic.
Another major problem which has been arising with regards to tenants under the present circumstances is that if such tenants are doctors, nurses or any other medical staff associated with the treatment of the deadly virus, the ruthless landlords or communities in certain areas are not letting them enter their houses.
For any of the tenants across the country who are facing such issues, they should be well aware of their rights. Their rights in such a situation tell them that no one can lawfully stop them from entering their houses unless such an act is barred by law. Thus, if any of the medical professionals or staff associated with medical help are facing any such issues, they can simply post a complaint at their nearest police station against the people who have been harassing them. The rest would be taken care of by the government.
As the saying goes ‘Desperate times call for desperate measures’. The state governments and the central government have been acting promptly in dealing with such inhumane behaviour taking place against medical practitioners. Thus, the governments have promised to be strict against the violators, stating that such people are entitled to enter their houses without their landlord trying to throw them out of the house or interfering in their lives.
It is important for us to note here thatSection 3of the Epidemic Diseases Act, 1897 clearly states that any person who is found to be disobeying any regulation made under this Act shall be punishable underSection 188 of the Indian Penal Code, 1860. Further,Section 4 of the Act provides that any person who has been legally abiding by the instruction being provided during such a period shall not be subject to any suit filed against him for the purpose of following such instruction passed by the government.
Since the tenants under the present circumstances have been acting as per the instruction of the government, no legal suit can be filed against such people in the view of non-payment of rent. If a person has the means to pay then obviously such a person comes under the obligation to pay such rent, as or else it would be unfair towards the landlords.
Though during this period of time the tenant as well should take care of their moral obligations towards taking care of the landlord’s property and providing them with the required maintenance. Such should be a moral obligation on the tenant under the present circumstances.
Rights of landlords during COVID crisis
The landlords have a well recognised right under law to ask for fair remuneration for using premises under the present circumstances. Demanding rent on the part of the landlords cannot be considered to be illegal even under the present circumstances. Though it becomes one of their moral obligations to take care of their tenants under the present circumstances and give them some concessions if the tenants are not being able to make their ends meet and pay their rent amid the lockdown.As the incomes for most small and middle-sized businesses have come to a halt amid the lockdown. This has caused huge tension and confusion amongst the members of society. The following are a few rights and duties of the landlords under the present circumstances:
The landlords have a right to receive rent by filing a suit under theSpecific Relief Act, 1963. Though such suits can only be initiated on continuous non-payment of rent for at least a period of six months.
Though there are certain rights of the landlords which can be curtailed amid the present circumstances. Such rights may be associated with vacating the premises i.e. if a rental agreement ends during the period of lockdown and the landlord decides to throw the tenants out of his house due to the expiration of the tenancy contract between him and the tenant. In such a case the landlord cannot force the tenant to leave the house. As under the present circumstances, activities like shifting houses are completely prohibited by the government and can lead to severe legal action being taken against such people.
Thus, if a contract of tenancy between a landlord and a tenant ends under the present circumstances, the landlords are expected to be considerate and allow the tenants to stay until the situation normalises. Though such stay cannot be deemed to be free and the landlord has every right to receive equal remunerations for the period for which the tenant uses the premises amid the current circumstances.
The landlords in India under no circumstances are allowed to interfere in the private lives of the people. When we consider this along the line of landlords stopping their tenants who are working in the medical support system to contain the spread of the virus, then as well such landlords should be up for legal action being taken against them even under normal circumstances. Under the present extraordinary circumstances, such acts of interference in the private lives of the tenants i.e. who are medical practitioners, by the landlords are going to have even more severe legal consequences.
Though a certain example is being set around the country with landlords giving concessions to the tenants with regards to payment of rents and are trying to ease the payment procedure which eventually would help their tenants cope up with their financial needs amid the present conditions. As the relationship shared between tenants and landlords especially in India are not considered to be similar to just business transactions.
As for Indians, renting your house to someone means that you’re renting a piece of your life to a person and thus, people end up being in constant touch with their tenants with regards to their premises, which indeed helps develop a friendly relation amongst them.
Conclusion & Suggestions
The present circumstances call for all of us to act more responsibly than ever. We should all look towards the perspective of getting ahead of this virus as a whole, letting along our individual needs and wants. As if we can get through this virus with a minimum amount of casualties then it would be a great success for us as a nation. As even developed countries like the USA, Italy and Germany haven’t been able to cope up with this pandemic. The World Health Organization has as well applauded India’s efforts in trying to curb the virus by imposing a lockdown at such an early pace instead of giving the virus a span of three to four weeks which would have facilitated its spread.
The crisis which has arisen under the current circumstances was never expected. Thus, we as law-abiding citizens of the country should take care of our needs as well as that of others in these hard times. Extending our help though a few small deeds as mentioned in this article and through many others is actually an act of kindness which can be performed without taking much effort.
As a small act of kindness, today would have a huge impact on the future tomorrow, as such an act might end up saving a person’s life. Acting heartlessly under circumstances like this and forcing tenants to pay their rents or forcing them out of their houses is a deed to be considered cruel under the present circumstances.
After all, this is our country, we are the ones who need to fight this pandemic. Many countries like South Korea have done this the right way. We as responsible citizens need to follow the instructions given to us by the government and the World Health Organization. As there is always a ray of hope of the other side of things. There are better days to come with us overcoming this pandemic.
This article is written by Anam Khan from Hidayatullah National Law University. The article discusses the methods that are used at international level to settle disputes.
Introduction
This article is concerned with the various ways through which disputes are resolved in the international framework. There are binding as well as non-binding procedures available within the international order for the peaceful resolution of disputes and conflicts. Basically the techniques of conflict management fall into two categories- diplomatic procedures and adjudication. This article also talks about the landmark case of Kulbhushan Jadav, the peaceful settlement of the Farakka Barrage gunfire issue, the role of International court of Justice and the Naulilaa case. These cases along with other examples have been added for a better understanding of the topic.
Legal and Political Disputes
In order to understand the process of settlement of disputes in the International substructure, there is a prima facie need to understand the meaning of ‘disputes.’ The dispute has a wide range of interpretation and hence it becomes to give a precise definition of the same. In a rudimentary stage, it means a disagreement between two persons, on either a point of law or fact. The prerequisite of having a dispute is that the parties involved must show opposing views.
There are two grounds on which a disagreement can arise between two parties; political or legal. The distinction between the two is purely subjective. It is primarily the attitude of the states that decide whether a dispute is a legal or a political one. Owing to the involvement of the states, it becomes difficult to distinguish the two. For a dispute to be regarded as a legal one, States must desire to settle it on the basis of law, or else it becomes a political dispute.
However, the distinction between the two becomes extremely important because the procedure for settlement of disputes as laid down in International Law deals only with the legal disputes. In Nicaragua v. Honduras, a case concerning Border and Transborder Armed Action, the court clearly stated that it is only concerned with the legal aspects of disputes. If a case so arises involving both political and legal aspects, the court cannot concern itself merely with the political aspect. In an advisory opinion given in the Legality of the Threat or Use of Nuclear Weapons that the presence of a political aspect along with the legal aspect does not deprive the case of its a legal question. However, when a question arises whether the disputes of the State are legal or not, then such a question is solved in accordance with Article 36, para 6 of the Statue, that says the matter shall be settled by the decision of the court. Therefore in International Law ‘dispute’ must be taken in a restricted sense as it does not concern all forms of disputes but only legal disputes. In International Law, there have been two methods devised for settling legal disputes- amicable or pacific means of settlement, and coercive or compulsive means of settlement.
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Amicable Means (Pacific Means)
Historically International Law has been regarded as an international community to ensure the establishment and preservation of global peace and security. The basic objective of the creation of the League of Nations, 1919 and the United Nations 1945 has been the maintenance of international peace and security. Various multilateral treaties have been concluded that aim for the peaceful settlement of disputes. One of the most important ones is the Hague Convention, 1899 for the Peaceful Settlement of disputes. Article 2 para 3 of the UN Charter provides that all international disputes must be settled by the member by peaceful means while maintaining international peace, security, and ensuring justice is not endangered. The Charter under Article 33, Para 1 enumerates a number of means for the peaceful settlement of disputes. Negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies are among the few choices they have. The various peaceful methods of settlement can be broadly divided into two categories- extra-judicial and judicial method of settlement.
Extra-Judicial Peaceful Means
In the extra-judicial settlement, a dispute is settled by means of an agreement between the disputant parties. This method is also known as the political means or diplomatic measures.
Negotiation
This is regarded as the oldest and the simplest form of settling disputes. When the disputant parties settle the dispute themselves by discussion or by adjusting the disagreement, the process is called a negotiation. The dictionary meaning of negotiation defines it as a discussion aimed at reaching an agreement. Hence in a case of disagreement, the method of negotiation can be used to reach a state of peaceful agreement. This process of negotiation may be carried out by the Heads of the State, or by their representatives or by diplomatic agents. But the success of this method depends largely upon the degree of acceptability of claims of one party by the other. However, it has certain weaknesses too. On various occasions, it has been seen that it becomes difficult to come to a consensus.
Another striking fact is that when the disputant States are unequal, the ‘small state’ has to abide by the decisions of the ‘big state’. India and Sri Lanka had settled their boundary dispute in the year 1974 by the negotiation method. In 1976, India and Pakistan settled their pending boundary disputes in the Simla Conference through the negotiation method. The Farraka Barrage gunfire issue, between India and Bangladesh, was also settled with this method.
Good offices and Mediation
Mediation and Good offices come into picture when parties are not willing to go for the negotiation method or they fail to reach a state of settlement through a healthy negotiation. A third person assists them in resolving their legal matters. Such a third person may either be appointed by the parties themselves or by the Security Council. There have been many instances where the appointment has been made by the Security Council. McNaughton in 1949, in 1950 Dixon, in 1951 Graham, in 1957 Jarring were a few. It is also important to note that the third party is under no obligation to accept such appointments. The good offices by Robert Menzie- the PM of Australia- were rejected by India for the settlement of the Kashmir issue. The views of the third party acquire the character of ‘advice’ and they by no means have a binding force. There are two ways of settling a dispute by the third party: mediation and good offices.
MEDIATION
The third-party involved is known as the mediator. The mediator is always expected to be just and impartial. In the process of mediation, the mediator participates in the discussion, gives his views and suggestions in resolving the dispute. The mediator is usually known to settle the disputes as he may even help in signing the treaty embodying the settlement that is reached.
A famous example of mediation is when the Soviet Premier Kosygin settled the dispute between India and Pakistan by signing the Tashkent Agreement in 1966.
GOOD OFFICES
Where in mediation, the mediator is required to be present in the process, Good offices is basically the act through which the third party either arranges for a meeting between the disputant parties or he acts, in ways through which a peaceful settlement can be reached. It is important to note here that the third party is not directly involved in this process. When the parties have failed to come to terms through negotiation, it is the third party that provides for their good offices for the peaceful settlement of disputes. Once the disputant parties are brought under one roof the third party has no active role to play. Although Para 1 of Article 33 does not refer to good offices as a means of settlement of dispute but it may not be read in an exhaustive manner.
The Prime Minister of the United Kingdom, James Harold Wilson, had lent his good offices to India and Pakistan to reach an agreement in reference to the Kutch issue. In 1947, there was a dispute between the Republic of Indonesia and the Netherlands, wherein the Security Council rendered its good offices.
Conciliation
The process where a Commission or a Committee is appointed and the dispute is referred to them and it is required by them to find out about the facts and then to write a report for the settlement of the dispute, is called conciliation. Here an effort is made for a peaceful compromise, to sign an agreement but important to note that the proposals made by the commission are never binding on the parties to the dispute. This method is unique in its own way and completely differs from mediation, inquiry or arbitration. Here, proposals are made for the settlement after finding facts about the dispute but in mediation, the third party is part of the meetings with the parties in dispute. Also, it is not for the mediator to ascertain facts about the case, like in conciliation.
Such commissions or committees that provide for conciliation may either be permanent or ad hoc in nature. The idea of the Conciliation Commission was born in 1899 and 1907 Hague Conventions for the Pacific Settlement of Disputes. Several treaties after the end of the First World War were made through the Conciliation Commission. The General Assembly under Article 10 and 14 and the Security Council under Article 34 has the power to appoint a commission to settle disputes.
Among the various treaties that have been signed through the Conciliation Commission the most important ones are:
Pacific Settlement (1948)
Pact of Bogota (1948)
The Vienna Convention on Protection of the Ozone layer
Earlier the Secretary-General was required to present the list of persons nominated by the member states for the inclusion in the panel for conciliation. The States, however, did not show an encouraging or positive. So, at present, the process of conciliation is mainly utilized by the States. In 1952, the Belgo-Danish Commission and the 1956 Greco-Italian Conciliation Commission were the key examples of the appointment of a conciliation commission for the settlement of disputes with reference to International Law.
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Inquiry
One of the most common obstacles that prevent the successful settlement of disputes in International Law is the ascertainment of the facts, as it has been observed for the years that different views are put forward by the disputant parties. A majority of International disputes get stuck because of the unwillingness and inability of the parties to agree to the facts.
The dictionary meaning of the term ‘inquiry’ suggests that it is an act of asking for information. Similarly, for the settlement of disputes in International Law, a Commission is to be appointed, consisting of honest and impartial investigators, so that they can verify the facts of the issue. The sole function of the Commission is known to be the ascertainment of issues. This procedure for the settlement of international disputes was born at the Hague Conference 1899. It was said that the States who were not willing to end their disputes by agreement might use the process of inquiry.
It consisted of a ‘special agreement’ between the parties in dispute. The ‘special agreement’ was truly special as it enjoyed a wide range of powers, ranging from examination of the facts, mode of investigation and examination, the time frame for the formation of a Commission, the place where the Commission will sit, the language that is to be used. And the extent of the powers of the Commission. Article 11 states that Hague was chosen to be the place where the Commission would sit if the ‘special agreement’ chose to remain silent on the place of the meeting.
Towards the end of the First World War, the trend for settling International disputes was seen to shift to the process of Conciliation. States chose to invoke Conciliation rather than to sit for inquiry. In 1967, a United Nations Register of Experts was established by the General Assembly. Its function was primarily fact-finding, wherein the names of the persons whose services could be used by the States were mentioned in accordance with the fact-finding for the agreement required for the peaceful settlement of the dispute.
By the United Nations
Peaceful means of settlement of disputes is one of the principles of the United Nations provided under para 3 of Article 2 of the Charter. The General Assembly and Security Council are the two organs of the United Nations that have been empowered to discharge functions regarding the same.
General Assembly
Despite the fact that the Assembly has not been empowered to settle the disputes using any specific means, it holds a wide range of powers to discuss the same under Article 11 para 2 and may make recommendations under Article 14 to the parties in dispute which may help them to arrive at peaceful and friendly conclusions. Thus, in simpler words, it can be said that the Assembly holds the ‘general’ power for the peaceful settlement of international disputes.
There have been various instances where the Assembly has suggested for the peaceful settlement of disputes. In 1974, the Assembly called upon the Member States to make full use and seek improved implementation provided for in the Charter of the United Nations for the exclusively peaceful settlement of any dispute or any situation.
Manila Declaration
In 1982, the Committee successfully drafted a declaration that was to be adopted by the assembly. The same declaration was known as the Manila Declaration. The declaration mentioned that the States shall seek any peaceful way of settlement of a dispute in good faith and a spirit of cooperation. It also mentioned that the States had absolute liberty to make full use of the United Nations.
Declaration on Prevention and Removal of dispute
This declaration was drafted by the special committee, which was said to threaten International Peace and Security. This declaration is said to have been approved by the Assembly in the same year. Some of the important provisions of the declaration are as follows:
Foreign Ministers level meetings to be held sometimes by the Security Council.
The appointment of a Secretary-General as a rapporteur in a specific dispute must be considered by the Council.
Fact-finding or good offices should happen at an early stage.
In order to prevent a dispute, the Secretary-General must consider approaching the States concerned.
This declaration is said to be the first instrument that deals with the prevention of international disputes and promotes international peace, harmony, and security.
Fact-finding Activities
In 1990 the Special Committee was asked to give priority to the impending questions on maintaining international peace and security. For this purpose, the fact-finding activities were to be primarily considered. In 1991, a declaration on the fact-finding committee was adopted by the General Assembly. It had a major role in strengthening the role of the United Nations in the maintenance of international peace and security and also to promote the settlement of disputes through peaceful means. The fact-finding mission was either taken by the Security Council, the Assembly, and the Secretary-General. Secretary-general was expected to use the find finding activities at an early stage for an easier and more peaceful contribution in matters of dispute.
He was required to prepare a list of the experts in various fields who could carry out the fact-finding activities.
Hand-book on the peaceful settlement of disputes
Again with the help of Special Committee’s recommendations to the Secretary-General to prepare a hand-book on peaceful settlement of disputes and also to provide special powers, functions, and duties to the Assembly, the Council, and the Secretary. An elaborate draft handbook is said to have been drafted by 1992.
2. Security Council
Chapter VI of the Charter provides the various modes by which the Council settles the disputes peacefully.
Judicial Settlement
Judicial settlement is the process of solving a dispute by the ‘international tribunal’ in accordance with the rules set by the International Law. Here it is important to understand the expression ‘international tribunal.’ A tribunal acquires an international status because of its jurisdiction. At the present day, the International Court of Justice, although not the only tribunal but it is indeed the most important tribunal around the globe. There are ad hoc tribunals and mixed commission also. It is important to note that the International Tribunal is different from the Municipal Tribunal. As the name suggests, International Tribunal applies International Law and similarly Municipal Laws are applied by Municipal Tribunal.To what extent can International Laws be applied by the Municipal tribunal depends entirely on the relationship between the fields of law. Arbitration and settlement of disputes by International Law have become two very important modes of settlement of disputes today.
Arbitration
Arbitration is the process of using the help, advice and recommendation of a third party called arbitrator to settle disputes. The International Law Commission defines it as ‘a procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of a voluntarily accepted undertaking’. Owing to its tendency to blend civil law procedure and common law procedure, International arbitration is sometimes also referred to as a hybrid form of international dispute resolution. The International Court of Justice in the case of Qatar v. Bahrain, stated that the word arbitration for the purpose of international law, usually refers to ‘the settlement of disputes between states by judges of their own choice’.
An agreement was concluded between India and Pakistan to refer the Kutch dispute to an arbitral tribunal. Consent of the parties is also obtained before a dispute comes into existence. There are four main characteristics of arbitration:
A tribunal is constructed to hear a particular case only and its composition is also majorly determined by the parties to the dispute.
An arbitral tribunal does not determine its own jurisdiction but has to decide the dispute as submitted by the parties.
It is required to make its award with reference to the rules adopted for that purpose or by rules which are otherwise binding.
The parties are known to have control over the procedure to be followed.
The best-known rules of arbitration include those of the International Chamber of Commerce (“ICC”), the London Court of International Arbitration (“LCIA”), the International Centre for Dispute Resolution of the American Arbitration Association (“ICDR”), and the rules of the Singapore International Arbitration Centre (“SIAC”) and the Hong Kong International Arbitration Centre (“HKIAC”). Although the award in the Kutch case was vehemently criticised on the ground that it has political overtones, it was accepted by India.
International Court of Justice
The headquarters of the International Court of Justice is situated in Hague, Netherlands. It was founded on 26th June, 1945 San Francisco. Originally the purpose of Article 34, para 1 was to exclude individuals from bringing claims against States before the Permanent Court of Justice. However a proposal was made in 1929 to the Committee of jurists that Article 34 must be amended. However, presently although they still do not have access to the Court in contentious cases they can seek advisory opinion.
The Permanent Court of International Justice is known to be the predecessor of the ICJ. Which means before the creation of the International Court of Justice, disputes of the parties were to be settled by the Permanent Court of International Justice. Its jurisdiction depends entirely on the willingness of the parties involved. This along with arbitration is commonly known as the judicial way of settling a dispute. Consent of the parties is a prerequisite for the cases to be heard in the ICJ. While the judges of the court are appointed by the General Assembly and the Security Council of the United Nations, the arbitrators are appointed by the parties themselves. There are three ways by which the International Court of Justice resolves the cases are that brought before it:
Parties can settle their dispute by themselves and cases can be withdrawn by the state or the court can give the verdict.
International Court of Justice uses International Laws are it’s guiding light.
Writing by experts is also referred to.
ICJ’s primary function is known to be resolving disputes between sovereign states. Only States can be parties to the dispute that is brought before it. The International Court of Justice has recently decided the Kulbhushan Jadav case. India and Pakistan were the parties to the dispute in this case. Jadhav was a retired Indian Navy Officer and was sentenced to death by the Pakistani Military Court. The charges that were pressed against him were of terrorism and espionage. In a major win for India, after a 4 year long battle from being arrested on 3rd March, 2016, he finally sought relief after the suspension orders of his hanging were delivered by ICJ in 2019.
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Compulsive or coercive means
The meaning of the words, compulsive and coercive itself suggests that these are non-peaceful means of settling a dispute. This method may sometimes also involve force and pressure to resolve the issue raised. Force in this method does not indicate to the extent of armed forces but methods that are short of war.
Retortion
Retortion is based on the principle of tit for tat and is also a synonym for retaliation or to say it is the technical term. It is an act done by one state in a manner similar to what was done earlier by another state. Such acts done by the States are not illegal but are permitted under International Law. It is an effective tool of law enforcement although the method of implementation may seem unfriendly. There are numerous cases where retortion has been used as a means to settle disputes. The classic example for a better understanding is if citizens are treated unfairly in another State, the former may also make similar rigorous rules in respect of citizens of the latter state. The very purpose of retortion is retaliation. It is employed not to secure redress. The legitimate use of retortion has been affected to a large extent by the UN Charter. In retortion those actions cannot be legitimately taken which are likely to endanger international peace and security, such if taken are treated as illegal.
Reprisals
If the problem is not solved by Retorsion the States have the right to resort to Reprisal. In retaliation, the state can initiate such a proceeding where the problem may be resolved. However, reprisal is one such method that can only be resorted against a State when it has indulged in some illegal or inappropriate activity. The method and process of reprisals were clearly defined in the Naulilaa case, (Germany v. Portugal).
For example, Israel has resorted to reprisal many times against Lebanon. It has bombarded those regions of Lebanon where Arab terrorists attacked the territories of Israel. The members of the UN cannot indulge in reprisals of such a type which endangers international peace and security. It is commonly accepted that Reprisal becomes justified and legal when the other country has committed an international tort or violates the norms of International law. In the provocative action and reprisal, there must be an adequate proportion that is in proportion to the violation, the damage should be caused. The reprisal is valid only when demand for reparation was made and this was not fulfilled.
Embargo
Embargo is of Spanish origin. It is also a kind of Reprisal. Ordinarily it means detention. But in International it has a technical meaning of detention of ships in port. If the ship belongs to a State which has committed an international tort or has committed some other international wrong and is available in the territorial waters of the State against which tort or wrong has been committed then such vessels can be restrained from traveling through that area as a matter of right by the other State. The purpose of such an embargo is to compel another state to settle the dispute. In reprisals also vessels of one state may be detained by another state. If the vessel is detainted for the purpose of seeking redressal, embargo is deemed as a form of reprisal. But if the detention is for any other purpose then it is not regarded as reprisals. Embargo may be applied individually or collectively under the authority of the United Nations. Maintaining international peace and security still remains the most important prerequisite.
Pacific Blockade
A pacific blockade is a blockade used for the purpose of bringing pressure exercised by a great power to bear on a weaker state without actual action. When the coast of a state is blocked by another state for the process of preventing ingress of vessels of all nations by use of warships and other means in order to exercise economic and political pressure on that state, the act is specifically called a blockade. Requirements for a pacific blockade are similar to those that are needed for a normal blockade during a wartime. It has been regarded as an aggressive means for the settlement of international disputes because it consists in temporary suspension of commerce of the offending state by closing of access to the coasts. The numerous cases of blockade that have occured during the nineteenth century have established the admissibility of pacific blockade for the settlement of political as well as legal international differences. At present while blockade is illegal when it is applied by the state individually, collective blockade applied under the authority of the security council to settle the dispute is lawful.
Intervention
Intervention by state in the affairs of another state is a recourse to the settlement of disputes. It is important to note that after the establishment of the United Nations a state has been substantially prevented from taking compulsive actions to settle international disputes. Any measure that is likely to threaten or endanger international peace and security has become illegal. Thus, the compulsive measures are lawful as long as they are able to maintain international peace. Intervention is therefore regarded as unlawful and is not justified.
Conclusion
In a nutshell, it is important to understand that in the long march of man from cave to computer and his journey from age of stones to the modern world, the central idea has always been that of order and security. Efforts and attempts have always been made so that any form of chaos is minimised and peace is promoted. Law has proved itself to be that element which binds the members of the society. It is fair to say that international law has always considered its fundamental purpose to be the maintenance of peace. Peaceful as well as compulsive means are used under International Law for the peaceful settlement of disputes. This article includes recent cases and other examples for a detailed understanding.
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The tell-tale signs of something being amiss with a vision is when instead of it being sufficient in its own glory to enrapture masses, it needs the help of adornments to make it stand-apart while making use of layers of hypocritical virtue-signalling to cover up its sinister tracks. Similar is the case with the Prevention of Atrocities against SC/ST Act of 1989 which while trying to larp onto the fact that there exists a long history of oppression against the people belonging to scheduled castes and tribes, ends up in the territory of reverse-casteism, under the garb of social action.
To discuss the background of the contention, the aims and objectives of the Prevention of Atrocities against SC/ST Act needs to be looked into. The Act tries to define and address discriminatory and dehumanizing acts against the members of historically wronged SC/ST communities and tries to come up with solutions to mitigate the aforementioned practices. To sum it up, the main objective of the Act is to control and try to undo the damage done to those particular communities by the virtue of being on the receiving end of multitude of social stigmas over centuries.
The problem with the Act isn’t the vision itself, but the manner of drafting of the legislation and the misuse of the Act, thanks to such drafting. To check the misuse of this Act and control the influx of fake cases, on March 20th of 2018, a judgment by Justice (now retired) A.K. Goel diluted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989, to grant anticipatory bail to accused persons and directed that the police should conduct a preliminary enquiry on whether complaint under the 1989 law is “frivolous or motivated” before registering a case. What followed was widespread protests around the country that had political backing in quite a few places and soon enough, all hell broke loose and the usage of violence in the protest was commonplace.
To control the damage done, the government had to come out with new amendments to the act that negated the effect of the verdict and with that, the provision of anticipatory bail was stuck off and the position of the act was restored back to what it originally was. Very recently, on 10th of February, 2020, the Supreme Court upheld the constitutional validity of the Act.
The problems with the act are manifold but the discussion shall be streamlined onto two main propositions. Firstly, there exists a jurisprudential question of what comes under the ambit of ‘constitutional validity’? Does examining the constitutional validity of an act only refer to checking whether the act upholds its legal value as mentioned under the constitution or does it also extend to conforming to the actual ideas enshrined in the constitution, as were viewed by the founding fathers of the state? Secondly, the way the legislation has been drafted, opens it to be debated upon in light of it violating the natural laws of equity and good conscience.
Talking about the jurisprudential colloquy, what needs to be introspected upon, in this scenario, is the definition of ‘Constitutional Validity’. A legal person would obviously swear by his knowledge of the law and shall claim that examining the constitutionality of any act would involve cross-examining the act with the constitution by tallying every clause of the act with the pre-existing provisions of law mentioned under the constitution. But then, the problem here is that the visions and ideas enshrined in the constitution aren’t being taken into account in the process of affirming constitutional validity.
A good jurist shall not look only at the body of the law and make lumpen decisions off of it, rather, he would try to interpret the true spirit of the law and understand the actual legislative intent enshrined in the law. Philosophers of law never viewed the discipline as a static, normative study of rules governing human behaviour, rather they have always treated it as an empirical journey into a living, breathing eco-system of human customs, behaviour patterns, aspirations and social pathology. To uphold the spirit of law, this is exactly how the constitutional validity of any act should be determined; the vision enshrined in the Indian constitution needs to be looked into, along with cross-examining the legalities.
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What makes the consideration of the vision of the constitution so important in this scenario is the fact that the great men of honor who drafted the constitution, though advocated the judicious use of affirmative action for the upliftment of the historically wronged communities, what it didn’t advocate was the systematic violation of the being of the people belonging to general category for the fulfilment of this objective. The Indian Constitution follows the Aristotalian principles of equals being treated as equals and unequals being treated unequally for the sake of attaining true equity in society, but nowhere does it mention that the general classes shall be deprived of their rights in order to attain such equity. It would perhaps cause great pain to the drafters of the constitution to see an act like this being used as a tyrannical tool of oppression against people of particular castes under the garb of affirmative action.
The government in the amendments that it brought to nullify the 2018 verdict said, the SC-STs continue to face the same social stigma, poverty and humiliation to which they have been subjected for centuries. What is very apparent is that there is an assumption on the part of the government regarding the condition of the people belonging to these classes which hasn’t really been supported by any ground evidence. Again, what is appalling about the assumption is the fact that assuming someone’s social and economic standing solely on the basis of the caste they belong to, is dehumanizing and patronizing.
It is as if the act has become the devil that it wanted to annihilate, all along the way, in the sense that the communities which were earlier forced to remain impoverished and lead a lowly life, are now being assumed to be poor and stigmatized merely because they belong to a certain caste. What is more degrading for a person belonging to a scheduled caste community who broke out of the shackles of ostracization that his ancestors were historically bound by and wrote his own fate, than to be assumed poor by the virtue of his caste?
Secondly, the act needs to be discussed in the ambit of the natural laws. In the context of natural laws, no authority holds more value than that of Saint Thomas Aquinas. According to Aquinas, law is “nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” Each of these elements – reason, the common good, authority and promulgation – places significant limitations on what can rightly be “law”. Aquinas believed that man-made laws can be deemed laws only when they are in line with natural laws and any such law going against natural laws is nothing but a ‘perversion of law’.
In his works, he talks about how man-made laws need to qualify a certain threshold of morality in order for them to qualify as a ‘good law’ wherein, a ‘good law’ is that which follows the principles of good conscience and equity. The SC/ST act is one such law that clearly qualifies to be termed as a ‘tyrannical’ and ‘perverted’ law, not in the sense of the objectives that it wants to achieve but in the sense of it being used to incriminate innocent people. It is violative of the natural laws in the way that the law seems to be prejudiced towards the SC/STs in a way that harms the interest of other classes and thus, the aspect of ‘good conscience’ is nowhere to be seen in the law. Talking about equity, it has always been about empowering the disadvantaged classes in ways that help them to compare with the privileged and has never been about bringing down the standards of the privileged classes in order to match that of the downtrodden.
To sum things up in the best possible way, it isn’t the constitution that the SC/ST Act is violative of, rather, it’s the conscience of the constitution that the Act vehemently violates. Let not the Act, that was intended to act like God’s grace for the downtrodden be used as a cruel whip against the innocent, in the garb of social action because justice becomes tyranny when it is so lopsided and biased that it completely oversees the plight of the innocent.
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This article is written by Vandana Shrivastava, student of B.A.L.L.B. (Hons.) at the Institute of Law, Nirma University, Ahmedabad. This article highlights several issues which would arise due to the COVID-19 pandemic in India, and the ways to deal with them.
Introduction
The pandemic has had a disastrous effect on all affected nations. India, of all, was already in a compromising situation with its unfavourable economic condition recently. Since such an event was unprecedented, all planning has gone into deep waters.
Final year law students await their graduation, while still being doubtful about it. Some law schools have the privilege of teaching their students by online platforms such as google classroom. For others, it is a wait until the lockdown is lifted.
Lawyers and legal firms, who are the real players in the field, can make the most out of the current situation in the upcoming time. In lieu of worrying about lost business due to the mandatory social distancing, the focus should be on figuring out a way to make the best use of the events that are happening currently. This article will cast a light upon the opportunities that lawyers could grab hold of, amid COVID-19.
How can lawyers deal with COVID-19?
In the current times of distress, everyone is homebound and there is not much to do. With the internet at one’s disposal, thorough research could still be done. Discussed below are several legal issues which are going to arise as a result of COVID-19. The Sections or Acts dealing in those topics are mentioned along with the disputes. The lawyers and law firms can deal with all these issues by studying these topics and being ready for them beforehand.
When a real problem will occur, it would be slightly different from straight problems. Prior preparation helps in understanding the problem better, and to make essential changes which the emergent situation requires.
Legal Issues arising out of COVID-19 and the ways to deal with them
Issues Related to Criminal Law
Unlawful Assembly
Prior to the placement of lockdown, the State had imposed unlawful assembly in the country to avoid mass gathering as a precautionary measure for containment of the spread of COVID-19. Mischievous elements of the society did not follow the orders, which led to the endangerment of the lives of many. As a matter of fact, non-abidance of the law led to the spread of the pandemic in the country.
Disobedience of quarantine
The State had ordered all the persons in the territory of India to stay under home quarantine and to step out only to grab essential items. Despite elaborated instructions, there is heavy defiance of the quarantine. Several instances of people gathering in groups and organising social gatherings have come up. Defiance of quarantine poses a criminal liability under Section 188 of the Indian Penal Code, 1860 (IPC). Section 3 of the Epidemic Diseases Act, 1897 read with Section 199 of the IPC makes the defiance to obey quarantine a criminal offence.
Similar to organising an unlawful assembly, disobedience of quarantine puts the lives of people at risk. Right now, when the danger is grave enough to spread to all persons, who come in contact with the infected person, the threat posed is even greater in nature.
Negligence
Both of the above-mentioned acts are acts of negligence. If someone steps out even to buy or to collect essential commodities, non-compliance with social distancing would also amount to negligence. Coming in physical contact with anyone could be dangerous to all those people who participate in such contact. Negligence which endangers the lives of others is an offence under Section 269 of the IPC.
A deliberate act done towards touching someone could also be categorised as malignant. If such an act is not consensual, it would amount to trespass against a person.
Medical Negligence
The novel coronavirus is strong enough to infect a person when such a person comes in contact with an infected person for a short moment. Doctors have to treat normal patients besides treating the ones diagnosed with COVID-19. In the event of doing so, they might unintentionally transfer the virus to another patient due to non-maintenance of good hygiene. Or doctors might treat patients erroneously, due to overworking themselves.
If any activity by the doctor endangers lives or leads to someone’s death, they would become criminally liable under Section 304A of the IPC unless the Bolam test suggests otherwise.
Sale of adulterated drugs
Frauds are selling drugs to people claiming such drugs to be a cure for COVID-19. Such claims are false, and the drugs might even affect the health of those taking such drugs. People who manufacture and sell such drugs knowingly become criminally liable under Section 274 and Section 275 of the IPC.
Such acts are bound to happen in recent times. Therefore, the sections so mentioned shall be studied and researched well upon.
The contracts made prior to the entry of COVID-19 in India, which had to be performed in the lockdown period stand unperformed for various factors. Some of those may be justified, but there would be certain unreasonable ones too. Contracts are solely used for business purposes. They are used in our daily lives as well. A breach of contract is defined under Section 39 of the Indian Contract Act, 1872 and the refusal to perform one’s part of the contract.
One of the examples of breach of contract is unlawful eviction notices to tenants recently. Doctors in various regions have complained about being slapped with eviction notices from their landlords for endangering the lives of those around them. Issuance of such notices, if they are not in accordance with the rental agreement of the parties would make the landlords liable to pay compensation. Not just doctors, civilians who work for essential service sectors would also experience similar acts.
The defence of Force Majeure could be taken by both the parties in such cases. Force Majeure means is an unforeseeable event that has caused a hindrance in the performance of a contract. Herein, two major questions arise:
Are the parties to a contract at fault for the frustration of the contract?
Or is the State imposed lockdown responsible for breach of contracts or the pandemic of COVID-19?
To determine the second question, the doctrine of proximate cause would have to be applied. The doctrine of proximate cause states that the most efficient cause behind the happening of an event would be the only one which matters and will be applied to the performance/non-performance of the contract.
Insurance Claims
Life/Health Insurance
Successors of patients who die of COVID-19 would be entitled to receive their life insurance if the terms of insurance include death due to an unforeseeable disease or a similar general provision. Similarly, the ones who were/are diagnosed and they survive after the treatment would claim their health insurance.
A virus has spread on such a large scale for the first time in centuries. With the number of cases rising each day, many such insurance claims would arise. If insurance companies began to pay every insurance claim, they would go bankrupt. Therefore, there are going to be certain legal battles, and legal representatives would be required for both sides.
Marine Insurance
Ships transport large quantities of cargo due to their carrying capacity. Currently, there is unattended cargo throughout the ports in the country because of the travel ban. Such loss would arise from marine insurance claims and again, it would be subjective. Insurance companies may or may not grant such claims.
Marine insurance claims, especially, are so expensive that insurance companies insure themselves from a bigger insurance company for such insurances, so that if they ever had to pay a marine insurance claim, they would still survive.
Employees’ Insurance
Current losses to businesses will cost many employees with their jobs. For events like this, there are employee cash benefit schemes, specially designed for those employees, who lose their job with no-fault. To aid these employees, they receive unemployment cash benefits which help them earn money for survival until they land on a new job.
Any dispute relating to insurances is governed under The Insurance Act, 1938, which relates to the general provisions of insurance.
Unconstitutional Acts
Violation of the Right to Privacy
It is essential to remain cautious to protect oneself. Currently, the State is empowered to do every act which is in consonance with the right to life provided under Article 21 of theIndian Constitution, for the sake of saving the lives of its countrymen.
Circulation of personal data of people under mandatory quarantine, or of the ones diagnosed with COVID-19 would amount to a violation of the right to privacy, which is an integral part of the right to life. Any unwanted interference with anyone’s personal or family life, which is unreasonable in nature would amount to a violation of the privacy of such a person.
Racism against North-Eastern Indians
Citizens of India, who have North-Eastern origin are subjected to bullying and harassment by people. Harassment in itself is a crime. When it is combined with racism, it also infringes the fundamental right against racism in India. Some of those people are not permitted to go inside grocery stores in various regions of the country. This act also amounts to infringement of the right to life, as food is essential for survival.
Article 15 of the Indian Constitution explicitly disregards discrimination among people of any manner, whatsoever. Racism is one of the several discriminations mentioned in the article.
Is the situation boon or a bane for lawyers?
Any law firm or a lawyer needs an incentive to work and survive in the field. To maintain expenditure, there has to be a source of remuneration. Due to a travel ban and lockdown in all the regions of the country, the supply chain is disturbed. It has dropped stock values to the core and is causing a financial crisis. The clients of law firms are businesses. Businesses and law firms are codependent on each other for survival.
Problems relating to capitalism due to COVID-19 are discussed in the article above. With the disruption of almost everything in the economic sector, there is a multitude of legal opportunities available to lawyers and legal firms. Those opportunities are not limited to market. Civilians are going to seek help from lawyers when the lockdown gets lifted.
Once the endangerment of human life due to COVID-19 is over, markets and lives of people will go back to normal. For all the lost time, there has to be some legal remedy. All matters pertaining to the law would be dealt with in respective Courts by legal representation. That’s when law firms and lawyers will start earning.
Foregoing reasons establish that COVID-19 is a bane for legal professionals as of now. Potentially, there is a supposedly enlarged legal representation and consultancy platform than ever. To make the most out of it, lawyers need to utilise their time in productive activities.
Conclusion
The title of the article asks for the ways to ‘deal’ with COVID-19. The foremost way of achieving the same is by ‘taking due care’ whilst taking any decision or analysing any situation. Of all occupations, the legal profession is going to have its booming period after normalcy is restored. Cases relating to contract law are most important to be dealt with because they are open to the court’s interpretation. Logical conclusions shall be derived from now onwards.
With efficient planning and sharpening skills for an upcoming series of cases, lawyers can serve big and earn bigger by providing their services. Certainly, it is not going to be an easy affair as novel incidents are bound to take place too. Being prepared for the same in advance will help a lawyer to stay ahead of others. Therefore, time shall not be wasted at any cost.
People must realise that they should not wait for the restoration of normalcy. It will only be achieved through combined efforts. Everyone must do their individual part and encourage others to do theirs. If the same is done, every sector will emerge better than they ever did.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Prakhar Rathi, pursuing B.A.LLB (Hons) from the Department of Law, Aligarh Muslim University. This is an exhaustive article which deals with the place of Individuals under International Law.
Introduction
In the Twentieth century and especially after World War II, the evolutionary growth and development of the International legal system has caused a significant increase in the importance of Humanitarian values in the process of development of International Laws. One of the most essential objectives of the International community is the protection of the freedom and dignity of all and to stop any all sorts of violence. The Aim and objectives of the Universal Declaration of Human Rights and UN Charter have considered respect for Fundamental and Human rights as their priorities which is reflective under its various provisions and articles and is an essential part of jus cogens.
Individuals in International Law
Individual, in a legal sense, is a broader term and in international law, individuals include human beings, foundations, and legal commercial enterprises. Though not all individuals have the same rights, it is considered in a broader sense. Before 1945, international law could recognize individuals as a subject but still didn’t provide rights and duties as a direct individual. In an overview, International law did not consider Individuals other than in an abstract sense for centuries and the reason was that international laws are laws between states, and individuals are the citizens of states, therefore, individuals were seen as objects rather than subjects. They were not considered competent to have rights and duties under international law. However, after the first and second World wars, the international community contemplated the need and possibility of recognizing an individual’s legal responsibility under international law and to make them subjects of international law in some respect. Even today, individuals are seen as only partial subjects of international law as states still remain the dominant subject of international law.
Legal Positivism and Individuals
For a long time, Legal positivism has provided the usual theory for comprehending international law. The positivist definition of international law is mainly grounded typically on a subject-based differentiation between international and municipal rules and regulations. Positivism views international laws as a set of rules with the states as its subjects. Municipal law is generally perceived as concerning individuals who are subjects of a single state.
Before positivism, there was no any sort of theoretical insistence that the rules of the international laws applied only to states. William Blackstone has reflected the common sentiment of the middle eighteenth century.’ For Blackstone, both individuals and states were proper subjects of international laws. He drew no dividing line which later came to be called public and private international law. Blackstone distinguished his law of nations from other sorts of law because of its sources and not on the general basis of its subjects. He saw the rules of the international laws or law of nations as universal, sourcing either from natural justice or from the practice of states. Municipal rules, however, emanated from a single state.
In 1789, Jeremy Bentham coined the term international law and defined the international laws which relate to “the mutual transactions between sovereign states as such and concluded that states are the sole subject of the international laws.” The assumption to categorize rules solely on the basis of the subjects to be governed is logical enough, it plainly was wrong for Bentham to assume that international law so defined was similar to the traditional law of nations.
Two early nineteenth-century positivists viewed that the individual was an improper subject of international law. Joseph Story created private international law to parallel Bentham’s public international law with Public international law supposed to affect international matters of states, while private international law dealt with international matters between individuals. John Austin emphasized that because public international law claimed to regulate the matters between sovereign states which as sovereigns are independent and could not be regulated by any outside authority, international law was just a sort of positive morality and not really a law.
Legal positivism had transformed eighteenth-century law of nations into public and private international law, a law common to individuals and states with former being supposed to apply to states while the latter to individuals. The positivist definition of international laws had an enormous impact on the modern perceptions concerning both the individual and international law. With so few exceptions, the theory rejects the notion that individuals are proper subjects of public international law.
There are many views on the extent and nature of the position of the individual in international law. Opinions vary from completely rejecting the individual as the international subject to the recognition of the individual as the only subject of international law. The assertion of the individual as the subject of the international law emerged at the end of the nineteenth century and after World War II, it gained substantial weight. There are many reasons asserting the individual as the international personality which are mainly based on consideration like the primacy of international law over native/domestic laws, direct regulation by the international law over individual’s rights and duties, progressive evolution of the international legal order, nature of international law, increasing incorporation of humanitarian principles and notions.
French scholar, George Scelle, in his view, considered a state as a fiction and individual human being as the only real subject of international law. There were several criticisms regarding this view including Wolfgang Friedmann who commented that it could be understood in a moral and figurative way rather than practical and legal sense. Humphrey Waldock also criticized by saying that this view abandons the law for philosophy.
Opinions regarding the individual under international law are divided. Hersch Lauterpacht is the one who has linked international law with the need and recognition of individual legal personality in human rights and humanitarian aspects. He argues that the conventional position of the individual has changed by certain developments which result in strengthening the individuals to safeguard their rights before international tribunals and imposing obligations directly under international law. While taking into account the lacking of the rules that would permit the exercise of individual’s international personality and the deciding role of state action in formulating the rights and duties for the individuals, recognizes that like other rule, Individuals are the object of the law of nations and he makes the assertions this fact that individuals are the object of international law does not mean that they are not the direct subject thereof. Also, he does speak about the exceptions which gives confirmation to the general rule.
Hans Kelsen is also sympathetic to individual personality under international law. Though he recognizes the general rule about the state being the subject of international law, he speaks about general exceptions that are limited to the possibility that the individuals can be held liable under international law for a violation of a rule of conduct imposed by international law itself. Regarding the acceptance of the position of an individual under international law, Wolfgang Friedmann has made an evaluation of the opinions of scholars which is helpful in taking up their real essence of the issue, he said that Lauterpacht and Jesup, one of the greatest advocates of an active position of the individual in the international law were well aware of the strict legal sense, the individual limits cannot be a subject of the law of nations except within very specific and definite limits and for special purposes. So they have drawn a distinction between the individual, as the subject matter of enforceable claims on the international level and the individual as the beneficiary of a system of international law, in which states are the subjects and sole actors but in which they are directed to take action on behalf of the individual.
These authors believe in the monistic doctrine of international law, but the scholars who don’t believe in the monism of international laws are more sceptical about the individual as the subject of international laws. Oppenheim rejects this proposition stating since the laws of nations are the laws of states only, so in that respect only states are the sole subject of the international laws. Waldock and Friedmann also rejected the proposition after acknowledging the progressive development in international law in favor of individuals and their rights. Brownlie disfavors the individuals as the subject of the international laws by saying that it would mean to acknowledge the rights which don’t exist.
Schwarzenberger, a non-monist says that the individual personality is merely a question of facts and not of principle. He considers the creation of rules of any character between permissible states by an agreement, therefore allowing the states to have unlimited discretion and neither public policy nor jus cogens. Myres McDougal states that main power comes from nation-states so other participants should act through state or state policies while Rosalyn Higgins proposes to abandon the concept of the subject of international law altogether.
Role of Individuals
Traditionally, individual responsibility was not recognized under international law except in limited cases like piracy, which has very long been recognized under customary international law as an international crime. International Law gives jurisdiction to states to prosecute pirates, but it cannot be asserted that International law imposes an absolute obligation on states to refrain from piracy. It was only in the Twentieth century and especially after World War II, the evolutionary growth and development of the International legal system has caused a significant increase in the importance of Humanitarian values in the process of development of International Laws.
The advisory opinion given by the Permanent Court of Justice (PCIJ) in the case of Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials who have Passed into the Polish Service, against the Polish Railways Administration), Advisory Opinion, (1928) PCIJ Series B no 15, ICGJ 282 (PCIJ 1928), 3rd March 1928, Permanent Court of International Justice where the court held that an exception to the general traditional rule that individuals are not subjects of International Law can subsist only where the intention of parties was to only adopt a treaty which creates for rights and obligations for the individuals which are capable enough of being enforced by municipal courts. The PCIJ also emphasized that such intention must have been expressed and not inferred from the treaty as it is an exception to a general rule. It is taken as that the court had contemplated the possibility of a treaty creating an exception to the general rule which maintains that individuals are not subjects of International Law. Abass argues that the bold and undaunting step taken by the PCIJ in the Danzig case has contributed to International Law tilting towards recognizing individuals under International Law, even though it started first in Criminal law before extending to human rights.
The General Assembly of the United Nations in 1946 allowed them to become part of the International Law. Bearing individual responsibility, the Assembly also stated in 1946 that genocide was a crime under International Law which was also reaffirmed in the Genocide Convention, 1948. This position was also reiterated by article 3 of the Draft Code of Crimes against Peace and Security of Mankind which grants individual responsibility for crimes and punishment according to the gravity of the crime.
After the Second World War, International law became also bothered with individuals in the field of human rights and the fundamental freedoms. The Charter of the U.N started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples. In the Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, the court held that international rights and duties are an integral part and basis of being an international personality. It was also held that the United Nations Organization was the subject of international law, where it is able to sue for the vindication of its interests. After which, several conventions have ended up to define fundamental freedoms and human rights which individuals and peoples are entitled to and to ensure their respect and protection. These conventions also include the International Covenant on Civil and Political Rights of 1966 and the International Covenant on Economic, Social and Cultural Rights of 1966.
Individual responsibility was also grounded with regard to the grave breaches of the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977, which deals with armed conflicts (International Humanitarian Law). It also leads to two specific international war crimes tribunals being established, one for the former Yugoslavia in 1993 and another for Rwanda in 1994, to prosecute the persons responsible for the grave and major violations of International Humanitarian Law, committed in the territory of each of these countries. The Rome Statute of the International Criminal Court was adopted in 1998 at the United Nations Diplomatic Conference. The Statute granting the limited jurisdiction of the Court to the most serious crimes of concern of the international community as a whole, which are the crime of genocide, the crime of aggression, crimes against humanity and war crimes.
Although, as a general rule, individuals lack standing to assert violations of the above treaties in the absence of the protest by the national state, a wide range of other treaties have allowed the individuals to have direct access to international courts and tribunals. Some of those treaties are the American Convention on Human Rights of 1969, the European Convention on Human Rights of 1950, the International Convention on the Elimination of All Forms of Racial Discrimination of 1966, and also the Optional Protocol to the International Covenant on Civil and Political Rights of 1966.
In summary, it would not be wrong to say that the role of individuals has significantly increased and they are being recognized as participants and subjects of this law. This has occurred mainly through the evolution of and Humanitarian and Human rights laws coming together with the evolution of the Traditional International Law. Individuals now have a sort of legal personality under International Law; they are granted with certain rights and certain obligations directly under International Law. International Law is now applicable to relations of States with individuals and to certain interrelations between individuals themselves where such relations involve matters of international concern.
The issue of direct applicability of International Law to individuals
This issue about the direct applicability of International Law on Individuals has a substantial role for answering whether an Individual is a subject of International law. Arguments for the side that International law directly govern individuals have been monistic doctrine and the overall structure of treaty obligations made for the preservations of Human rights which shows the superiority of international law in comparison to domestic law and also the aim and objective of such treaties is to safeguard the individual rather than to protect the states. Though U.N Convention against torture, Human rights treaties have the objective to protect individual human beings and to develop common enforcement mechanisms for this motive, the human rights treaties make rights and further impose obligations on states, which is also clear from their general obligations.
The analysis of these obligations shows that these instruments do not have direct governance over the individuals. Further, they also give freedom to the state to choose the means by which they will guarantee the individuals to exercise their rights guaranteed in these instruments including the freedom to decide whether to allow the applicability of these instruments directly. Only if the constitutional legislation of the concerned state recognizes the primacy of international treaties over domestic law and therefore permits their direct governance over individuals then only these international human rights instruments can directly govern individual rights but if there is no such clause in the constitution of the state, individuals cannot be directly governed by these institutions. Both of these cases show that there is no predetermination by international law whether international rules can directly affect individuals. Basically, the decisive point is the domestic law of the state and the status of these instruments falls within the hands of the domestic legislator.
Even in those legal systems which recognize the direct applicability of treaties in domestic legal order, this phenomenon exists in the virtue of domestic law and not of international law. Lauterpacht confirms that the rules of international law providing the rights for individuals are not directly applicable. He says that indeed international laws are the background of these rights as duty to grant is imposed on states by international law. So, these rights are in conformity with international laws but it should be remembered that it could not have been enforceable before national courts if states have not created them with their municipal laws. The treaty which confers the rights on individuals might impact them only if the direct applicability of the international treaty is possible within the domestic legal order of the State concerned.
Some arguments which say international human rights treaties directly provide the rights for individuals, the language of some instruments, are invoked. The substantive provisions of the European Convention of Human Rights, and the American Convention on Human Rights, the Covenant on Civil and Political Rights, does not describe the obligations of States, but the rights of individuals. This circumstance does not make the instruments mentioned self-governing if they are not made so according to the domestic law of States. Another group of human rights instruments, including the Genocide Convention; Convention on Elimination of All forms of Racial Discrimination; Convention Against Torture; the Covenant on Economic, Social and Cultural Rights; and the Convention on the Rights of the Child, use different language in their substantive provisions. They do not mention immediately the rights of individuals, but the obligations of States to respect and to ensure these rights. No conclusion can be made on that basis that these two groups of documents differ from each other due to the nature, reach and objective of the obligations. All of these instruments create obligations and rights also for States. The latter reserves the freedom to regulate how these instruments will reach individual human beings.
Current status of the place of individuals in International Law
After the overview of these trends, some of the conclusions are. First, it is normally accepted that the capacity of states and individuals are of a different character and degree. Secondly, It is also conceded by the majority even by them who consider individuals as international persons that individual capacity is based on a treaty which requires the consent of states and it only exists for some exceptional and special cases. There are many instances which shows that individual legal capacity is alleged to be the background of the individual’s international personality such as:
The international Law rules can be directly applied to the legal relationships and conducts of the individual.
Rights and duties of individual under international law.
Along with private transnational corporations, individuals can participate in international law-making.
Individual being competent to stand before judicial and quasi-judicial international institutions for protection of his rights.
Under some conditions, in some breach cases of international law, trail can be started against individuals by international law and they can be held liable, by the international judicial Courts, irrespective of the state’s will and its domestic law.
Conclusion
It is quite evident now thatInternational law recognizes the rights and obligation of individuals. It can be concluded that while states have proper international legal personality, individuals possess a limited locus standi in International law. However, it is also true that the individual has over a number of decades evolved from an illegitimate child to a well-accepted family member in International law which shows the extent of the transformation of the legal order. It has significantly helped in raising concern and values of Humanitarian grounds.
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Even after we wrote an entire encyclopedia of how to do business development during COVID (Part 1 & Part 2), some people are still saying it is too hard and they can’t do it, and that they are not getting any clients.
I understand that some of the strategies listed above might take some time to come to fruition.
What if you are in a hurry? What if you are looking for an easier way out?
No worries.
That’s why I am writing this email today.
I am going to tell you 3 simple things you can do today and get work immediately. Read on.
“I miss you”
Have you connected with your childhood buddies, your school or college mates recently? If not, this is the right time to do it.
They love you. They know you. They trust you.
Maybe you are not in touch for a very long time. No harm. Get in touch now. They have more free time during lockdown to speak.
It is likely that they also need someone to prepare their tax statements, create their partnership deeds or write their wills.
You can be the one helping them out in need. A camaraderie already exists with old friends. All you have to do is reach out to them and let them know that you are a “lawyer”. Tell them some exciting stories of the matters you do. Add them to Linkedin, Facebook and Twitter and then begin posting more about the kind of legal work you do.
They will notice.
They will refer. They will call you for advice.
Their childhood friend has finally donned the black coat and the band and wields the power to scream and shout in front of the judge (just kidding!). Why will they not take advantage of the same?
You can always charge them a preferential price.
Doubtful whether you can charge fees from your friends? Trust me, they know that you charge fees for your services. If they value their own profession, they would value yours too. There would be potential freeloaders. Help them out in small matters, but do not take up substantial responsibility without payment.
Btw, doing some free work for friends helps to spread your name.
My tax returns are filed by one of my college besties who specialized in that niche. I don’t expect him to render his services for free at all. I always pay him his due.
Your friends will too.
****
Starting from Aarushi Talwar case to 2G spectrum case…
From Sheena Bohra murder case to Gurmeet Ram Rahim case…
Adv. Tanveer Ahmed Mir has had a glorious career as a criminal litigation lawyer for over 21 years. How about knowing the ins and outs of a murder trial from such an illustrated lawyer? Don’t miss out on this for anything. Click the Play button to watch the video now.
****
“I trust you”
Are you a member of Iskcon or a part of the Chinmaya Mission or maybe a certain church? Or perhaps, any other religious group that I do not know of? Have you got a few friends and acquaintances through that network?
Or, let’s say, you take an active part in your local political party.
You visit the weekend meetings, attend processions or hoist flags on the Independence Day.
What about your party comrades? I am sure you have got a huge network through your political affiliation if you have any.
Can that bring forth reliable and paying clients to you? Definitely. If you play your cards right.
But please understand that the approach is a little different in this case. These are not business clubs where people flock with a preset intent to gain “business”. These are like physical social media networks where the primary agenda is to discuss and further the original cause. The members are not there to discuss business, mind it.
The approach should be to just let them know that you are a lawyer and be ready to help them with their problems. Educate them, help them with pertinent information and advice.
You just cannot afford to come away as a money-seeking lawyer. You are a comrade first and a business owner second. If you take this approach to social, political and religious communities, you can get a lot of business from such networks!
If you belong to any such close-knit community or group, the members know you, trust you and feel safe to work with you on important matters. And guess what, they live a worldly life that involves a lot of legal formalities and complications.
They would seek the help of the lawyer they trust when they need help.
“I serve you”
Last but not least are those that sell their products and services to you. You are a consumer to them but the question is, why are they not a consumer to you?
For example, the physician who looks after the well-being of your whole family, the accountant who does your taxes, both personal and corporate, the financial advisor who helps you with your money matters, etc.
You know, all these people need a lawyer in their lives, from time to time, right? So, are you their lawyer?
Yes? Great job.
No? Why not!
This is the best symbiotic relationship that you can get in to get instant access to a vast client pool without even trying.
Just like if your friend falls sick and asks for a recommendation, you would refer your family physician. Similarly, if someone related to your family physician ever requires the services of a lawyer, your family physician would refer you to them.
How can you make that happen?
Word-of-mouth marketing at work!
In this case, you have to be a little crafty about your promotion though. You can be a little forward about your profession.
Since you are already engaged in a business relationship, there’s nothing wrong with you trying to reverse the roles a bit.
However, don’t be too pushy about it. Don’t be that guy who talks about his latest antics in court while his blood pressure is being checked.
Any idea how many wealthy individuals your life insurance agent knows and can connect you with? Probably a lot of them.
How many people can the banker that you bank with influence? People tend to trust bankers with important financial and legal matters. They talk to their bankers about their problems.
Will your banker recommend your name and pass on your phone number next time he comes across a wealthy client in distress over a property matter or some taxation issue?
Does the guy who cut your hair regularly in the local Salon know that you are a lawyer and damn awesome at that? If someone was discussing a legal problem in the salon while waiting for a haircut will he mention that they should probably have a chat with you?
This is a powerful thing. Do not underestimate the network effect of the people who are interacting with you every day.
“It’s so awkward. How do I start talking about my work to all these people?”
These three client pools are waiting for you to pounce on them this very moment. Just pick up the phone and start talking.
Start by asking about their well being, have a great conversation, and share what you are upto as well. Writing an article regarding what to do if your employer forces a pay cut on you? Talk about it.
Add them on social media, and then start posting thoughtful posts about the problems many of them or their close ones may be facing.
Is it necessary that landlords have to forego rent during a lockdown?
What if I miss paying my loan EMIs in the upcoming months?
What if I have accumulated too much credit card debt?
What if I paid for a flat but possession is getting delayed? Can I get compensation for delay?
People have many legal questions right now. About COVID. About other things. Help them with credible, high-quality advice, for free, on social media, and people will begin to look upto you as an awesome lawyer.
They will reach out when they have issues.
Got in touch with your existing clients?
While doing all these things do not forget to call your existing clients.
It is most likely that they would have some legal work at the moment and they are sitting on it. They may even have undiagnosed legal problems or risks that are just about to materialize.
They may not know enough about the importance of urgency of such issues.
If you call them and start talking to them about their business, about their current situation, about what is going to come in the future, It is highly likely that such issues and problems will come up in discussions and come to the fore.
Additionally, if you keep your clients abreast of expected legal and policy developments, it is highly likely that your client will realise the necessity of some kind of legal services which may be required right now or may add to your future pipeline.
The easiest thing for you to do right now to generate a lot more work is to simply call up your past clients especially businesses and chat about what’s going on in their lives and businesses.
No need to believe us, just try out and see.
The moment you start asking them about what’s going on in their business or in their life they will start telling you about umpteen problems and complications that have been developing over the last few weeks.
Force Majeure. Breach of contract. Domestic violence. Affairs gone sour during the lockdown. People being fired unjustly, or salary being held up without explanation or forced pay cuts being imposed.
Startups coming up with new ideas to deal with the emergency and requiring help with various usual services.
Legal notice from counterparties. Notice from the Tax Department. confusion over bank loans and finance agreements that need restructuring. Lack of clarity about which contracts make get breached or set aside or frustrated due to ongoing crisis.
It is all happening right now. Nobody is sitting idle.
People need legal help today as much as they needed it before. Probably a little more.
But if you do not get in touch with your clients and start helping them now, If you do not start talking to them about what’s next, you might miss out on the action.
This is apart from all the money you could generate right now.
Make a list of your most important clients and spend at least four to five hours a day calling them and having long conversations with them, especially if you are sitting idle without much work on your plate.
Thank me later.
Getting clients is one thing …but can you do justice to them?
I understand that the strategy I am suggesting may generate a lot of new kind of work that you have never done before or are not very familiar with.
Maybe you are a criminal lawyer. you may say, and justifiably so, that in the current situation there is not much to do. The police is not really arresting or booking people.
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I will not go into details here.
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This article is written by Janvi Babbar, from Bharti Vidyapeeth University.
Introduction
To understand the delay in the criminal justice system, it is important to first understand the nature of crime and most importantly penal laws because criminal law is based on penal laws. The main question is why are penal laws made? Personal safety[i], Security of liberty and property, is of the utmost importance to every individual. Maintenance of peace and order is essential in any society for human beings to live peacefully without any injury to their lives, limbs and property.
This is possible only in states where penal law is effective and strong enough to deal with violators of law. Any state, whatever might be its ideology or form of government, in order to be designated as a state, should certainly have an efficient system of penal laws in order to discharge its primary function of keeping peace in the land by maintaining law and order. The instrument by which this paramount duty is laid by the government is undoubtedly the penal law of the land. The penal law is an effective instrument of social control. Its approach is condemnatory and as it authorises the state to inflict punishment. If the state needs to criminalise a certain kind of conduct is to declare that it should not be done, by instituting a punishment.
Nevertheless, those who still perform crime after being aware of the punishment, then the penal law comes into play by punishing the accused based on statutes. The punishment of the accused is determined based on both law as well as facts of the matter. It, therefore, defines and punishes ‘acts’ or ‘omissions’ that are perceived as:
Attacks on public order, internal or external;
Abuse or obstruction of public authority;
Act injurious to public in general;
Attacks upon the person of individuals, or upon rights annexed to their persons; or
Attacks on the property of individuals or rights connected with or similar to that of property rights.
Foundation of criminal justice system
Law enforcement agencies, usually the police;
Courts and accompanying prosecution and defence advocates; and
Agencies of detaining and supervising offenders, such as prisoners and prohibition agencies[ii].
These distinct fields operate together as the principle means of maintaining the rules of law in the society, so that people have faith in the criminal justice system of India. The basic principle on which the criminal justice system works is based on assurance of fair trial. The main objective of criminal trial is to provide the aggrieved with absolute justice, so that individuals of the society do not question the law and order of their country.
Present situation of justice system in India
As per the law minister Shri. Ravi Prasad, in a written statement claims that there are 43 lakh pending cases in 25 High courts. Out of which 18.75 lakh are civil matters and 12.15 lakh are criminal matters. 8 lakh cases are over a decade old, 26.76 lakh cases less than 5 years old, 8.44 cases are pending more than 5 years but less than 10 years, 8.35 lakh cases are pending from over 10 years. There are 1,58,669 lakh cases pending in the Supreme Court of India. Therefore, a total of 3.5 crore cases are pending in the Indian courts.[iii]
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Main reasons for the increase in the number of cases:
Public awareness about the legal provisions, through media, social networking etc.;
Increases in literacy rate;
Public interest litigation;
Right to information Act (RTI), and
Increased percentage of crime against women.
How politics influence crime in India?
In the recent assembly elections, Delhi elected 43 MLAs facing criminal cases[iv], 26 of them won against the runner up with a “clean background”. 13 out of the 43 have criminal cases against women, out of 13 had a matter related to rape. If these kinds of candidates, who already have criminal history but still participate in elections and win the elections. This will certainly affect the law and order and the citizens will be less likely to have faith in the justice system. This may even cause an increased number of criminal cases.
Primordial reasons of delay in the criminal justice system according to statute
The criminal law in India is based on the principle that even through wrong acquittal[v] should be avoided but there should not be any wrongful conviction of an innocent person. Hence, the accused is given multiple opportunities to defend themselves.
In some cases police fails to register an FIR[vi] and collect evidence from the crime scene this also delays the trial process.
The statutes such as Code of Criminal procedure, constitution of India, Supreme Court rules, etc. have a number of remedies, to defend the accused and prevent the infringement of fundamental right which is Art.21 (right to liberty) stated in the constitution of India. This article also assures speedy trial[vii]. As, the defendant can file a review petition in the court if he is not satisfied with the order passed, if that gets dismissed he can change the jurisdiction of the court, by moving the jurisdiction of a higher court.
If the review petition[viii] gets canceled in the High court then the defendant can move to the jurisdiction of the Supreme court by exercising the power of Art. 32 by filing a SLP (special leave petition) under Art. 136[ix], even if the SLP gets dismissed which happens almost in 80% of the cases, then also the defendant can file a review petition in the SC. Lastly, if the review petition gets rejected, then the defendant can file a curative petition[x] under the Supreme Court rules Act, 2013. All these provisions are mentioned in the statute to give a fair chance to the accused person, so that he may defend himself. In certain cases, such as when a death sentence is awarded to an accused person. Then that accused person can even exercise the power of Art.72 (power of president to grant pardons) and Art. 161 (power of a governor of a state of union territory to grant pardons or to suspend, remit, or commute sentence in certain cases) of the constitution of India[xi]. Hence, all the aforesaid processes are time consuming and need a number of hearings and all the required evidence to pass an order.
Other important reasons for delay in criminal justice system
India has a low judge: people ratio, as there are 20 judges per 10 lakh people and number of cases pending are 3.5 crore. One of the prima facie reasons that we are not able to contain the ever-growing pendency of cases is due to the shortage of high court judges. At present 399 posts, or 37% of sanctioned judge strength, are vacant. “The existing vacancies need to be filled immediately. However, despite best efforts put in by all the stakeholders, it has not been possible to appoint judges to bring the working judge-strength anywhere close to the sanctioned judge- strength,” Wrote by ex-CJI of India Shri Ranjan Gogoi[xii].
The HC’s remaining justices take long vacations. This causes inefficiency in the justice system. Young budding lawyers don’t look up to judiciary as a career because judges are paid low and young lawyers find litigation as a more fulfilling and promising career. The disposal rate of cases has stayed between 55% to 59% in The Supreme Court of India, 28% at The High Courts, and 40% in the subordinate courts.
There are not sufficient numbers of courts.
Indian judiciary has insufficient resources both centre and state, budget allocation for judiciary is just 0.1%-0.2%.
There is too much litigation from the government side, most of the time the government side fails to prove their point.
Low judicial equality courts.
Less skilled judges at the lower courts.
Due to all the aforesaid factors there is delay in the criminal justice system in India.
Suggestions for an efficient justice system in India
The vacancies of judges should be filled.
More skilled judges should be recruited for the district courts.
Judges should be paid well.
Judges of the High Court should get less vacations to maintain the efficiency of the justice system.
Young lawyers should also consider judiciary as a career.
Budget allocation for the judiciary should be increased.
For speedy trial, the compounding method can be applied to few provisions mentioned u/s 321 Code of Criminal Procedure, 1973.
Conclusion
Towards the end, the research put in the paper suggests that law students and lawyers should also consider judiciary as a career. The salary of judges should be increased. The budget allocation for the judiciary should be increased. High court judges should spend less time on vacations.
Police should work more efficiently by registering an FIR on time, starting with investigation on time so that no evidence gets destroyed. The criminal offences which come u/s 321 of the code of criminal procedure should be solved by compounding method, if the parties are ready for a settlement because in this case the accused admits his/her offence. These methods will definitely increase the efficiency of the criminal justice system in India. As, delays in criminal cases are ugly pox marks on our justice system. Therefore, they should be removed by taking suitable actions.
Hence, justice delayed is justice denied; but equally, justice hurried is justice buried.
