Ukraine War effect on oil price and impact on India

Reading time: 4 minutes

The day of war between Russia and Ukraine began on February 24, 2022. Because of the continual threat from modern Ukraine, President Putin claimed that Russia could not feel safe, secure, or evolved. Russian tanks and troops marched in, annexed Crimea and its allies, and attacked airports and military headquarters. Ukraine was fleeing their homes with booms at the same time. Many industries and activities were impacted as a result of this. The oil industry is one that has been impacted. Oil prices are soaring because the US has hinted at a restriction on buying Russian energy while it looks to other countries to boost supplies. The Russian invasion of Ukraine not only disrupted global crude supplies, but also led to US and European sanctions. Following tensions between Russia, the world’s second-largest oil producer, and Ukraine, oil prices have risen in recent months due to supply concerns. Oil prices continued to rise, temporarily topping $110 per barrel, as Russia’s war against Ukraine raged on. The majority of the research According to the report, rising gasoline and diesel prices derived from crude oil will prompt cost-conscious consumers to switch to electric vehicles more quickly, boosting investment in competing clean technologies such as hydrogen. However, as fossil fuel companies hurry to cash in, these high prices will spur increased drilling of oil and gas around the world, laying the seeds for the boom to turn into a bust. This will restore oil’s abundance and affordability. $110 increase in oi pricing the price of trading oil rises by 15% as a result of this. As a result of all of this, other countries are reluctant to buy Russian oil. However, Russia is still able to find a market for the majority of its manufacturing by offering discounts of $15-20 per order. Oil prices have an excessive impact in OECD countries. Vehicle ownership per capita is higher in developed countries. As a result, oil consumption in OECD transportation accounts for a higher proportion of total oil consumption than in non-OECD countries; it is also more mature and slower-growing. As a result, economic conditions and policies affecting goods and people transportation have a substantial impact on overall oil consumption in OECD countries. Many OECD countries have increased fuel taxes and programs to enhance new car fuel economy and encourage biofuel use. Even in periods of great economic expansion, this tends to restrain the rise of oil use. Furthermore, OECD economies tend to have larger service sectors than manufacturing ones. As a result, rapid economic growth in these countries may have a different influence on oil consumption than it does in non-OECD countries. The harsh reality is that we are still reliant on Russian gas and oil, and forcing European companies to stop doing business with Russia would have massive implications throughout Europe, including Ukraine, as well as globally. The market turbulence is fueling fears that the cost of many common commodities, such as food, gasoline, and heating, would continue to rise at their quickest rate in 30 years. After Saudi Arabia, Russia is the world’s second-largest crude oil producer, supplying almost a third of Europe’s needs. Last week, the price of Brent crude increased by more than a fifth, owing to concerns about a decline in Russian supplies. Even if Western governments do not impose sanctions on Russian exports, Russia’s invasion of Ukraine will impede global energy commodity movement. That may be interpreted as an acknowledgement of Russia’s importance in the world supply of key commodities, particularly natural gas, which Russia supplies around 40% of Europe’s annual consumption. Even if the US, Europe, and other allies such as Japan and South Korea decide not to impose sanctions on Russia’s energy exports, private corporations will almost certainly do so on their behalf. Even without sanctions, the dangers of doing business with Russia will become too great for many corporations to bear. The G-7 foreign ministers have issued a statement on Ukraine-Russia, which concludes with the following remarks:

We’re also keeping a careful eye on global oil and gas market conditions, particularly in light of Russia’s continued military aggression against Ukraine. We support constant and constructive dialogue and cooperation among major energy producers and consumers in pursuit of our common goal of global energy supply stability, and we stand ready to intervene if necessary to address possible disruptions.

S&P Global Dated explains Brent is a price reference in physical terms and daily spot deals, as well as a bellwether for the oil markets. Brent is used by national oil firms in their official selling prices every month, governments use it to handle taxes and royalties, and it is at the center of floating spot pricing, global tender contracts, long-term strategy planning, and shorter-term product cracks. Brent is an important component of controlling price exposure in other commodity markets, such as LNG and pipeline gas, and changes in Brent futures provide insight into the overall health of the global economy. Physical forwards and weekly contract-for-difference (CFD) swaps let market participants manage their price risk and physical exposure to light, sweet oil in global markets, while Brent futures provide quick and easy access for hedging or investment.

Uniform Civil Code

Reading time : 8 minutes

Table of Contents

Introduction
Development of Uniform Civil Code in Colonial Times
Post-colonial era
Uniform civil code through Constituent assembly debates
Article 44
HINDU CODE Bill
Shah Bano Case
Personal laws and Article 13
UCC and Gender Equality
UCC in Goa
Conclusion

Introduction

India is a diverse country. From north to south and east to west the diversity is very prevalent. With 6 major religions and a number of castes and sub-casts. Ours is the most diverse country on the planet. Each religion stems from different roots and ancient scriptures. These customs and usages have been ever evolving and, in the process, have taken form of laws. These laws are termed as personal laws. The Hindus, the Mohammedans, the Christians, the Parsis all possessing their own personal laws dealing with the issues arising within their communities. Apart from the broader religious distinctions in personal laws the laws also differ from caste to caste and even from one geographical territory to another. There is no one set of rules governing all even though all live in one country. That’s the Unity in Diversity Nehru talked about in his book. ^[[1]]

Talking about preserving the Diversity in India the Supreme court of India in Navtej Singh Johar v. UOI ^[[2]] said ‘vision is to accommodate all differences of culture, ideology and orientation’.

Even when we talk about protecting this diversity, the Uniform civil code has always been a point of contention right from the constitution of this nation, in fact even before that. The Uniform Civil Code seeks to bring all personal laws under one common framework governing all these diverse religious and cultural communities. Hence creating “one rule for all”. It was the vision of the Framers of the constitution to eventually establish a common code for all in the pursuit of achieving oneness and integrity ^[[3]]. But it’s been 75 years since the inception of this Republic and the Uniform Civil Code (hereinafter referred to as UCC) still remains a vision to be sought. With the election manifesto of the current government promising the implementation of UCC across India and many state Chief ministers too talking about working towards the same the discussion on this topic cannot be any more relevant.

But before we come to the current scenario lets look into the history and development of UCC in this country.

Development of Uniform Civil Code in Colonial Times

The debate over the UCC dates back to the 19^th Century when India was a British colony and the administration legal, legislative and executive was managed by the colonizers. The Lex Loci report of 1840 though talked about the unification and codification of Indian laws relating to crimes, evidence and contracts, it deliberately kept out of its realm the personal laws. Some attribute this to the British policy of Divide and rule. Some attribute it to the fear of backlash from the orthodox religious communities taking lessons from the Mutiny of 1857. The Queens Proclamation of 1858 declared nonintervention in matters of religious beliefs in British India.

Still the Crown did not completely abstain itself from legislating on religious matters. As stated earlier there were discrepancies even within the religious laws for example the Shudras allowed widow remarriage contrary to Hindu law. There was conflict in customs governing communities like Jats and Dravidians. The Hindu Widow Remarriage Act 1856, The Married Women’s Property Act 1923 and the Hindu Inheritance (removal of disabilities) Act 1937 may be seen as some of the instances where the British Raj tried to bring reforms in the personal laws.

Even the sharia law was enforced for Muslims across the country as there were differences as to the local laws as many of the converts still continued to abide by their local customs and usages. All of this created a lot of issues in delivering justice. In 1866 the Judicial committee of the Privy Council placed the Shariat over all the local customary laws. In the following years the High courts of Calcutta (1882) and Allahabad (1900) disallowed the use of customs. However, the Judicial Committee of 1913 decided that customary laws play an important role in Muslim law and hence allowed them.

It also needs to be noted that only the Hindu and more so the Muslim communities were feared in the sense of legislating on them. The Indian Christian Marriage Act 1872 brought major reforms and procedural changes in regard to Christian marriages.

Post-colonial era

As seen above even after a number of legislations there still existed large scale discrepancies in personal laws. The B.N Rau committee which was set up to study the need for common Hindu laws concluded that it was time to move towards a Uniform Civil Code in order to get past the discrepancies and unequal treatment of women. This committee only focused on Hindu laws.

Implementation of common code was also the intention of the constitutional framers and thus Article 44 was inserted in the Constitution.

Uniform civil code through Constituent assembly debates ^[[4]]

There was a lot of contention over the UCC in the constituent assembly. There was a division over whether or not to include UCC in the Fundamental Rights Chapter. There was backlash pre-dominantly from the Muslim members.

Kazi Kamaruddin argued that local laws and customs are very significant part of Muslim personal law and there was not a single Muslim who wanted change in the personal laws. So, the state should not interfere.

Hasrat Mohani contended that the Muslims derived their personal laws from the holy Quran and they are interpreted therein. No human agency has ever interfered in these personal laws. Any interference will lead to a significant backlash from the Muslim community.

Naziruddin Ahmed was of the view that there was no doubt that there would be a common civil code in this country. But the state should not be in a hurry. What the Britishers couldn’t do in 175 years what even the Muslim rules did not do over 500 years the state should not at once. That the state should work with caution and all the communities that are to effected by any such legislation should be comprehensively consulted. Another member called the article tyrannous to the minorities.

In support of the article KM Munshi (Bombay General) argued that the submission that it would be tyrannous to the minorities is farfetched and unreasonable. He also stated that many modern Islamic nations do not recognize the local customs of minorities. He also submitted that “When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs; for generations since they became converts, they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Where were the rights of minority then?”

He also said that if there is no Civil code it would be disadvantageous not only to the minority but also to the majority. Hindus have different schools of thoughts Mitakshara,, Dayabhaga etc all with different sets of rules. How come in a unified nation a same religion be governed by different laws. Addressing the opposition of Hindus to the Civil Code Munshi said “They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India”.

DR. B. R. Ambedkar while addressing the issue whether it was desirable or possible to have a common code stated that there was already a uniform criminal code in Indian Penal Code, there is Transfer of Property Act and Indian Contract act for certain civil matters and various other examples proving that there is a Uniform Code in the country except for the matters of marriage and succession. That only a little corner was left untouched and Article 35 [ UCC was Article 35 in the original draft] was intended to bring about that change. He too like Munshi reiterated that many Muslim communities were already governed by Hindu derived laws due to their conversion and it was only recently after Shariat was made mandatory that they came to be governed by it. He stated that “Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindus, law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by article 35, I am quite certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community”.

But Ambedkar also clarified that the article was not a compulsion on the state to enact a Uniform Code as soon as the constituent comes into being, rather it was more of an advisory. So, the citizens should not be apprehensive that the parliament will immediately proceed to implement a code found objectionable by them.

B.N. Rau the advisor to the Constituent Assembly stated that the Directive Principles were intended as moral precepts for the authorities of the state and that they have at least an educative value.

The issue whether to include UCC in Fundamental rights was settled by a 5:4 majority. The fundamental rights sub- committee led by Sardar Vallabhai Patel held it to be of less importance than freedom of religion and outside the scope of Fundamental Rights.

Article 44

Article 44 included in Part 4 of the Constitution states that – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India

The very fact that it was included under Directive Principles of state policy and not under Fundamental Rights highlights its advisory nature and lack of enforceability. Article 37 makes it very clear that none of the directive principles will be enforceable by any court, but the principles are fundamental in governance of the country and it shall be the duty of the state to apply these in making laws.

DATA REGULATION IN INDIA

Reading time : 8 minutes

INTRODUCTION:

There isn’t a single facet of life that the pandemic hasn’t impacted. Be it healthcare, education, food, research and development, art, societal standards, or other fields. Data regulation is one of them. With everyone at home, digitalization spread like a wildfire all over the world, especially in India. From youngsters to elderly citizens, the consumption of social media platforms swelled for entrainment, education, business, e-commerce, information, etc. thus a handy exposure of themselves and their personal data to various governments- not just Indian, various institutions and organizations- also not just Indian. Ever wondered how a Google search and speech recognition access to various applications results in similar adverts appearing on numerous other platforms, applications and websites? Ever wondered why most social media platforms are free? Conceivably, they aren’t. The users and their data are the products. Hence the question- how crucial is data protection? To answer this, the amendments made in the IT Act in 2008 were not sufficient. India needs a more classified, integrated, thorough regulation to protect and regulate data and hence the birth of the Data Protection Bill(PDP), 2019.

DEFINITIONS AND MEANING:

What is data?

A compilation of all facts and statistics used either for reference or analysis. Data can be classified into various kinds. For the purpose of our topic, the area of concern is around personal data, Sensitive Personal Data Information(SPDI), Anonymity and Pseudonymity. Personal data relates directly or indirectly or in combination with other ordinary data that shows a connection with/to a natural person. SPDI is a person’s personal information relating to passwords, biometric information, financial information like bank accounts, credit cards, debit cards, and other payment instrument details, physical, physiological, physical and mental health conditions, sexual orientation, and medical information. Information readily accessible through the Right to Information Act, 2005 does not fall under SDPI ambit.

What is data protection?

Any law, set of laws, statute, rule, code of practice that legalizes control over personal data, SPDI, and any data relating to a person thus ensuring privacy of personal data. The General Data Protection Regulation(GDPR)[1] in its recitals mentions the applicability of such protection only to natural persons and not include legal persons like organizations, companies, undertakings, etc.

Data protection is often overlapped with data security, information security and cyber security. Data security is the process through which theft, unauthorized access, leak, or corruption is paralysed. With Information security, there are two basic points of difference. Data protection has narrower approach and includes only personal data and SDPI whereas information security protects all kinds of data whether physical or digital and rules for data are stringent because threat has significant gravity. Cyber security protects only digital data. Section 403, Indian Penal Code[2] includes cybercrime as theft. Surprisingly cyberattacks are controlled by “ethical hacking”(white-hat hacking) and in identifying the systemic flaws that unethical hackers(black- hat hackers) may exploit.

What is data privacy?

Ability to determine when and an individual’s personal data is to be collected, processed, and shared is called data privacy. The consent is the determining factor of data privacy and must of such activities should be given expressly(Rules 5(1) and 6(1), Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 (Privacy Rules))[3]. In India, such consent of minors is absent.

What is a data breach? Who can do it?

Release of personal or confidential data in an unsecured environment without permission, accidentally or deliberately, is data breach. Accidental breaches may attract lesser punishments, a deliberate data breach(cyber-attack) is a high-grade crime. When platforms seek consent to collect, process and share your personal information but fail to provide adequate safeguards to protect it, the probability of data breach increases.

Data Minimization, Data Redundancy, Data Storage and Data Retention.

To ensure data security, personal data is only accessed and processed for as long as it is required for the scope and purpose and this is called data minimization. This usually helps to keep a track record of employees of a company or students of a university. When such data is retained while abiding to the law of practice, it is called data retention. The software or hardware used to store data is called data storage. Repetitive storage of data that occupy unnecessary space is called data redundancy. Data redundancy poses threat to data security as unprotected data storage can be easily attacked.

Data Outsourcing and Data Sharing.

Data can be outsourced and shared. In sharing data, all the parties are personal information controllers. Whereas in outsourcing data, one party is a controller and one is a processor. This is often done to save financial costs. To combat the threat of the data breach in outsourcing data, data localization is encouraged where data is stored within the geographical boundaries of that country. Information giants and social media platforms such as Facebook, Goggle, Microsoft have data storage facilities all over the world that provide storage at cheap costs with maximum analytical and processing power. Data driven companies like Uber Alibaba, Airbnb possess no real property. All their business I run by analyzing customer patterns and interest. These companies rea seen with double standards as only regulate information in certain countries.

INTERNATIONAL PROVISIONS:

GDPR:

GDPR has its roots in Article 8(1)[4], EU Charter of Fundamental Rights. The law aims to simplify international business in EU while enhancing individuals’ right to control personal data. It provides room for flexibility to the member states albeit its binding nature and sets a benchmark of principles for other nations. Being a set of the most comprehensive data regulations provisions, it is mostly subject-centric and enumerated under Chapter 3. The principles of the lawful regulation as authorized by data fiduciaries only through express consent including minor, categorization of personal data, and identification privacy are mentioned in Chapter 2, data transfer to third countries in Chapter 5 and Independent supervisory authorities to protect an individual’s right in Chapter 6.

The USA:

There is no one, comprehensive federal legislation governing the acquisition and use of personal data in the United States. It is governed by a system of federal and state laws and regulations that occasionally overlap.

Self-regulatory rules and frameworks are regarded “best practices” by government agencies and industry associations.

The UK:

The already existing Data Protection Act(DPA), 1998 was updated to comply with the GDPR principles and named DPA, 2018, after Brexit to facilitate the free flow of business and information in Europe. Its provisions too are subject-centric and impose restrictions and penalties on infringing subjects’ rights, mandates registration with the Information Commissioner and emphasizes on accountability. The significant differences between the DPA, 2018 and the 1998:

Identification of right to erasure arising from an individual’s right to privacy and increased exemptions.
1. Implementation of and adherence GDPR audit principles.
Russia:

Similar provisions to those in GDPR and the Data Protection Directive can be found in the Russian Federal Law “On Personal Data(OPD).”

The OPD Law was amended in July 2014 by the Russian Federal law “On revisions to relevant legislative acts of the Russian Federation for clarification of personal data processing information and telecommunication networks”(the “Data Localization Law”) and approved in 2015 that gave people the right to be delisted from search engines(the “Delisting Law”).

China:

There is no one comprehensive data protection law. Personal information protection and data security requirements, instead are part of a complex framework that are found in various laws and regulations. The Personal Information Protection Law(PIPL), the Cybersecurity Law(CSL), and the Data Security Law(DSL) are the three primary pillars of the PRC’s personal data protection framework.

The PIPL covers public and private sector and has extraterritorial application for:processing of PRC residents’ data within the PRC;

and processing of PRC residents’ data outside the PRC for the following reasons: delivering products or services to PRC residents, analytics or evaluation of PRC residents’ behavior or any other reason as required by law or regulation.

CONSTITUTIONAL PROVISIONS IN INDIA:

The Information Technology Act, 2000:

The Original IT Act did not have provisions relating to data regulation. As amended by the Information Technology (Amendment) Act 2008, it applies to companies in and outside of India that process personal data in India or a computer, computer system, or computer network based in India. If the computer, computer system, or computer network implicated in the offense or contravention is located in India, the IT Act applies to offenses or contraventions committed outside of India as stated under Section 1(2) and Section 75 of the said act. Section 72A provides for punishments on data breach applicable to body Corporate.

Article 21, Constitution on India:

Article 21 of the Indian Constitution recognizes the “Right to Privacy” as a fundamental right. In the historic case of Justice K.S. Puttaswamy(Retd) vs. Union of India, 2017, a constitutional bench of the Supreme Court declared “privacy” to be a basic right. The establishment of the PDP Bill and the upholding of the Basic National Regime were inspired by the necessity to preserve Indians’ privacy.

Justice B.N. Srikrishna Committee 2017:

As the result of the Committee’s report. PDP Bill, 2018 was proposed legislation. In 2019, Parliament significantly updated the Bill and was called PDP Bill, 2019. The suggestions were:

Technology agnosticism- Must be adaptable in order to keep up with evolving technology and compliance standards.
1. Holistic application – Must apply to both commercial and public sector companies with differentiating requirements carved out for governmental aspirations.
2. Informed consent – To be real, such expression must be well-informed and meaningful.
3. Data minimization – Processed data should be minimum and essential for the purposes for which it is sought, as well as for additional complementary objectives.
4. Controller accountability – The data controller is responsible for any data processing, whether carried out by itself or by third companies.
5. Structured enforcement- Enforcement by a high-powered statutory authority with acceptable decentralized enforcement measures.
6. Deterrent penalties- Penalties for unlawful processing must be sufficiently severe.
Personal Data Protection Bill, 2019:

The objective of this Bill is to protect individuals’ privacy to their Personal Data and to establish a National Data Protection Authority of India for the said purposes. Prior, was the Draft Data Bill, 2017 concentrated on the consent, two separate categories of data intermediaries- data controller and data processor, and appeal for Data Privacy and Protection Authority. In 2013, Privacy (Protection Bill), 2013 was proposed which highlighted the difference between Personal Data and SDPI, Privacy Commissioner, the establishment of self-regulating authorities by industries, protection of all types of data including bodily information and surveillance, based on the recommendations of A. P. Shah Committee.

IT Rules 2021:

Issued under Section 43A of the IT Amendment Act, 2008 regulates:

Collecting, receiving, possessing, storing, dealing, retaining, using, transferring, and disclosing SPDI.
1. SPDI handling security practices and procedures (Section 8, Privacy Rules).
2. Data subjects’ rights of evaluation and updating SPDI and withdrawal of consent for SPDI processing (Privacy Rules, Sections 5(6) and 5(7)).
CERT-IN:

Computer Emergency Response Team is a designated national nodal agency by the IT Amendment Act, 2008 that responds to and records cyber security incidents, forecasts alerts, and warnings, issues guidelines relating to information security practice, etc.

Digital India Initiative:

A Government of India initiative to make government services available to residents electronically by improving online infrastructure and increasing internet connectivity. And to empower the country digitally in the field of technology. The Digital India Mission is primarily concerned with three issues providing digital infrastructure as a useful resource for all citizens, on-demand governance and services, to ensure that every citizen has access to the internet.

CRITICAL ANALYSIS: PERSONAL DATA PROTECTION BILL, 2019

Principles: Follows the recommendations of the Justice B.N. Srikrishna. Committee, 2017.
Provisions:
1. Promote consent framework, purpose limitation, storage limitation, and data minimization.
2. Impose obligations on data fiduciaries to collect only that data that is required for a specific purpose and with the express consent of the data principal.
3. Grant individuals rights to obtain personal data, correct inaccurate data, erase data, update data, and port data to other fiduciaries.
4. Impose obligations on data fiduciaries to collect only that data that is required. to specify a provision relating to “social media intermediary” whose actions have significant impact on electoral democracy, state security, public order, or India’s sovereignty and integrity, and empower the Central Government to protect the interests of data principals, prevent any misuse of personal data, ensure compliance with the provisions of the proposed legislation, and promote awareness about data protection;
5. Empower the Authority to specify the “code of practice” to promote good data protection practices and facilitate compliance with the obligations under this legislation.
6. Empower the Central Government to exempt any government agency from the proposed Legislation’s application.
7. Empower the Authority to exempt any government agency from the proposed Legislation’s application; to empower the Authority to exempt any government agency from the proposed Legislations.
8. Designate an “Adjudicating Officer” to decide on the penalties and the compensation under its provisions;
9. Create an “Appellate Tribunal” to hear and decide any appeals from the Authority’s and Adjudicating Officer’s orders under paragraphs 54, 63 and 64.
10. Levy “fines and punishments” for violating of its clauses.

Application of its provision:
- Body corporate- A body corporate is defined under Section 43A of the Act as a company, partnership firm, sole proprietorship or other association of individuals engaged in commercial or professional activities.
- Government- the government and its institutions though regulated. Have certain exemptions.
  - Aadhar Card- The Unique Identification Authority of India (UIDAI) has launched Virtual ID, which intends to protect Aadhaar privacy by removing the need to share and maintain Aadhaar numbers. At the time of authentication, an Aadhaar bearer may use Virtual ID instead of his or her Aadhaar number.

The UIDAI has asked for a blanket exemption under the PDP Bill claiming that its functions under the Aadhar Act and duplicity of law. It was Aadhar that first stimulated the debate of Data Protection as it is mandated in various key services. Following similar path, many other authorities may seek such exemption.

Aadhaar Data Breach Cases:

Three Gujarat-based websites were discovered to be exposing the beneficiaries’ Aadhaar numbers on their websites.
1. Due to a technical malfunction, the Jharkhand Directorate of Social Security’s website released Aadhaar information for 1.6 million people in the state.
2. Pegasus: Pegasus spyware is thought to have affected people from approximately 45 countries, including Indian officials, journalists, and activists. It can access all of a user’s saved data, and once Pegasus has infiltrated a user’s mobile device or personal data server, it will have complete control over the device’s functionality and can remotely control the user’s whole system. The Union government declined the Supreme Court information citing “national security” as the cause which the SC denied and stated that “The state cannot withhold a secret from the court merely on the basis of ‘national security,’ and expect the judiciary to remain a “silent spectator,[5]” The Supreme Court agreed to appoint an impartial investigation team to look into the allegations.
Exemption to Privacy:

Clause 35 of the law makes it easier for the government to employ surveillance authorities. The ramifications of the criteria indicated like “public order” and “state security” in the clauses are ambiguous. The country’s national security jurisprudence has yet to evolve, and the word “public order” has such a broad meaning that it might be applied to any purpose the government sees appropriate. This section also allows for widespread surveillance of persons in order to “prevent any cognizable offence.”

Furthermore, unlike Section 42 of 2018, the new law does not include any conditions of necessity or proportionality in terms of government access to data, effectively circumventing the Supreme Court order.

The Pegasus spyware has prompted concerns about the Indian government’s ability to withhold material in the interest of national security. As a result, the Pegasus violations are an example of illegal and unconstitutional spying.

Sectorial application:

Data regulation and protection finds its traces in many other central enactments. Such sectorial division in the proposed bill will help reduce repugnancy and make functioning of authorities efficient. Some are:

BANKING- In October 2018, the Reserve Bank issued a set of basic cyber security rules for principal(Urban) cooperative banks(UCBs), as well as the establishment of a Security Operations Center(SOC). It has even laid down rules for online transaction application and setting guidelines for protection of both, personal as well as sensitive personal data.
1. INSURANCE- In addition to the general framework under the IT Act, the Insurance Regulatory and Development Authority of India(IRDAI)[6] has prescribed an additional framework for the protection of policyholder information and data. Inter alia, Insurance intermediaries, such as brokers, individual agents, corporate agents, third party administrators(TPAs), surveyors, loss assessors, and web aggregators are required to (i)treat all information provided clients as absolutely confidential to themselves and the insurer(s) to whom the business is being offered; and (ii)take appropriate steps to maintain the security of confidential documents in their possession, such as limiting access to such information, executing confidentiality undertakings, and so on.
2. HEALTH- The 2018 draft of the Digital Information Security in Healthcare Act(DISHA)[7] aims to protect information about a person’s physical, physiological, and mental health, sexual orientation, medical records and history, and biometric data. The Central Government announced the National Digital Health Mission(“NDHM”)[8], and the Ministry of Health and Family Welfare(“MOHFW”)[9] published a blueprint in late 2019 recommending the creation of a National Digital Health Ecosystem(“Ecosystem”) that allows for digital health system interoperability at the patient, hospital, and ancillary healthcare provider level.
3. ELECTIONS- With rise of social media, the Umesh Sinha Committee[10] proposed revising Section 126, Representatives of People’s Act(RPA), 1951 to impose ‘campaign silence period’ on all media, urged star campaigners to refrain from evaluating press conferences or giving interviews on election issues during this time, ban display of any election matter television or similar mean 48 hours preceding the conclusion of ballet, intermediaries such as social media corporations, commit to processes to ensure that their platforms are not used to sabotage free and fair polls, communication system through which the EC could alert the platform to potential infractions and should report to the Commission on the steps they’ve taken to avoid misuse of their platforms, including producing publicly accessible action taken reports.
4. E-COMMERCE AND MARKETING- A comprehensive examination of the two recently adopted laws, the Consumer Protection Act of 2019[11] and the Consumer Protection(E-commerce) Rules of 2020[12], as well as a literature review, support the analysis of 290 online customers who answered the research questions and met the research goals. The new rules are ostensibly strong enough to defend and safeguard online customers’ rights while also boosting India’s e-commerce development. Customers’ trust is influenced by laws controlling consumer rights protection in e-commerce, in addition to elements such as security, privacy, warranty, customer service, and website information. With a strong legal framework and consumer protection measures in place, the future of e-commerce is bright. The established Email Marketing Compliance guidelines prohibit the sharing of user information(SPDI) with other businesses without the explicit consent of the user.
5. TELECOMMUNICATION – The Telegraph Act and Rules[13], which contain measures prohibiting and punishing illegal communication interception. Furthermore, licences issued under this Act oblige telecom service providers(TSPs) to take steps to protect their customers’ privacy and the confidentiality of their communications.

The Telecom Regulatory Authority of India(TRAI)[14] has issued a number of privacy-related directives to TSPs. Customers have a right to redress under the Consumer Protection Act if their privacy is violated.

AUTOMOBILE – Navigation and speech recognition capabilities are now available in automobiles thanks to technological advancements. The data is stored by the vehicle businesses, which allows them to analyse consumer demand based on behavioural patterns. Though no such specific mention is made in any statutes, given the dynamic and ever-growing breadth of data dependency of data-driven businesses, it would be prudent to include automobile industry in the ambit of the proposed bill.
- ARTIFICIAL INTELLIGENCE- The use of artificial intelligence has improved the accuracy of consumer focus. While industry has become more intrusive, governments have begun to provision rules that set some boundaries. The electorate cares about privacy, therefore many industries consider how to use data to obtain information while staying inside regulatory guidelines. In AI, the medical industry is the most vulnerable to data breaches.
- DIGITALISATION OF CENSUS- Digitalisation of census is now inevitable. However, adequate safeguards need to be taken in order to protect personal data. Exposure of one’s financial data and health records is an infringement of the basic fundamental right of life. Formation data regulator for census and data processing will not only benefit the public at large but also help the government to study demography and constitute policies while securing personal data.
Criticism and shortcoming–

“35. Where the Central Government is satisfied that it is necessary or expedient,— (i) in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order; or (ii) for preventing incitement to the commission of any cognizable offence relating to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, it may, by order, for reasons to be recorded in writing, direct that all or any of the provisions of this Act shall not apply to any agency of the Government in respect of processing of such personal data, as may be specified in the order subject to such procedure, safeguards and oversight mechanism to be followed by the agency, as may be prescribed. Explanation.—For the purposes of this section,— (i) the term “cognizable offence” means the offence as defined in clause (c) of section 2 of the Code of Criminal Procedure, 1973; (ii) the expression “processing of such personal data” includes sharing by or sharing with such agency of the Government by any data fiduciary, data processor or data principal.”[15]

Section 35 of the PDP Bill 2019 is contentious as it invokes the “sovereignty and integrity of India,” “public order,” “friendly relations with foreign states,” and “security of the state” to give the Central government the power to suspend any or all of the provisions for government agencies. Reasonable restriction to be imposed on Right to Privacy should not Deprive one from enjoying it due to state intervention. While it protects Indians’ personal data by providing them data primary rights, it also gives the central government exemptions that are in violation of the norms of personal data processing. Without the explicit consent of the data principals, the government can process even sensitive personal data when necessary. The rules referring to “data localisation” are one of the more contentious concerns in the law Bill. The phrase, which can apply to any constraints on cross-border data transmission has mostly come to relate to the need to physically locate data within the country.

COMPARATIVE STUDY:

Having comprehensively articulated the GDPR, in the world of globalization and cloud computing, the restriction, financial burden for updating, regulation, compensation by companies has made 66% of the 366 Global IT Companies reconsider their business strategies in Europe[16]. Not only does it impose a cost compliance burden on the companies but also deprives states to attract global market for data processing. The right to be forgotten carries a high risk of abuse.

In US, the lack of a comprehensive data protection regulation in the US laws has been a major point of contention. Recent events have painted a bleak picture of data protection: the Cambridge Analytica case[17] which entailed the capture of up to 87 million Facebook users’ personally identifying information. The information was reportedly utilized to try to sway voter sentiment, electronic spying charges, and so on. Personal information can be collected and used in the United States as long as the subject is informed of the collection and use. However, it has been deemed insufficient in crucial regulatory areas. It has been criticized for being overly strict and imposing several requirements on data processing organizations.

In the United Kingdom, the training or expert guidance required for the dynamic nature of technology-driven companies may be required to ensure compliance.

In India, data protection is crucial because of the large number of consumers. According to the Internet and Mobile Association of India (IAMAI)‘s Digital in India report 2019, India has nearly 504 million active web users and its online market is second to China. Learning with the stringent and uninviting GDPR provisions, the liberalization of a rule imposing provision like help attract Information Giants to set up company headquarters in India and promote data localization, generate revenue and employment. India has the ability to analyze these pitfalls of various acts and formulate a comprehensive and acceptable global approach.

WAY FORWARD:

Set up Tribunal- to adjudicate cases relating data breach, breach of rights of data subject as guaranteed in the act, and conflict among various competitive organizations.
1. DRAI- the Data Regulation Authority of India has numerous functions that includes setting guidelines, regulating rules governing intermediaries, duties and rights of data subjects, supervision on the data intermediaries, and enforcement of the provisions of the act.
2. Privacy Commission- to enforce data subjects’ right on their infringement and to recommend changes in provisions along which are in line with the dynamic nature of society, rights and technology.
3. Social media intermediary- to include a provision relating to “social media intermediaries” whose actions have a significant impact on electoral democracy, state security, public order, or India’s sovereignty and integrity, and to empower the Central Government to designate the said intermediary as a significant data fiduciary in consultation with the Authority;
4. Reforming surveillance through CCTV and drones related laws, entering into more detailed and up-to-date mutual legal assistance treaties,
5. Enabling development of digital infrastructure, promoting entrepreneurship and formation of Indian cloud such as ESDS[18] that provide data security and localisation, revenue and employment.
6. Creating appropriate data-sharing policies that preserve privacy and other third- party rights, while enabling data to be used for socially useful purposes.
7. Minor consent- in line with GDPR, minors’ consent is of grave importance in the world of digitalization.
8. Blockchain technology- The GDPR fails the recognize the features of Blockchain technology and its financial importance in the coming future. GDPR’s centralized security system does not include a blockchain decentralized security system. The anonymity and pseudonymity of data storage in blockchain provide for higher privacy by using public-private encryption keys. Having introduced a tax on cryptocurrency in Budget 2022, India should focus on including provisions in the proposed PDP Bill.
9. Cookies- Provisions for cookies as they are used to study user behaviour. Tracking cookies trace activities without authorization and threaten privacy. Marketing cookies too keep a track of your likes, dislikes, searches without authorization, and hence the relevant adverts while using other websites or social media platforms.

Data is a crucial asset in the digital era that should not be left unregulated. In this scenario, India’s time for a strong data protection regime has arrived. The Personal Data Protection Bill, 2019, needs to be amended as soon as possible. It has to be rewritten to ensure that it emphasizes user privacy while focusing on user rights. To enforce these rights, a privacy commission would need to be established. The government would also have to protect citizens’ privacy while bolstering their access to information. Furthermore, technical advancements in the recent two to three years must be addressed, since they have the potential to render the law obsolete.

CONCLUSION:

The Personal Data Protection Bill, 2019 has certain reservations which on correction has the ability set up a precedent for upcoming data regulation in other countries. India’s ability to lead the world into the digital economy by leveraging its existing capabilities in information technology, demographic dividend, and need for empowerment through data-driven access to services and advantages. Data regulation is the need of the hour and the in the era of the globalization to protect one’s data exposure and privacy. This can be done so by learning from the mistakes of the already enforced data Regulation act in various technology driven countries. With Right to Privacy being a Fundamental Right, the need of Personal Data Protection Act becomes even more vital much as it is inevitable.

[1] General Data Protection Regulation (GDPR) – Official Legal Text (gdpr-info.eu)

[2] Section 403- Dishonest misappropriation of property, India Penal Code 1860.

[3] Government of India (meity.gov.in)

[4] text_en.pdf (europa.eu)

[5] Manohar Lal Sharma v. Union of India, 2021 SCC, SC 985

[6] IRDAI Welcomes You

[7] R_4179_1521627488625_0.pdf (nhp.gov.in)

[8] National Digital Health Mission: NHDM Objectives, Features, Eligibility & Application (godigit.com)

[9] MoHFW | Home

[10] Report of the Committee on Section 126 of the Representation of the People Act, 1951. – Press Releases 2019 – Election Commission of India (eci.gov.in)

[11] AA2019__35consumer.pdf (indiacode.nic.in)

[12] Consumer Protection (E-Commerce) Rules, 2020 | Department of Consumer Affairs | Ministry of Consumer Affairs Food and Public Distribution | Government of India

[13] Microsoft Word – Vol.1 Part-1 _3_ _31-52_.doc (wb.gov.in)

[14] Home | Telecom Regulatory Authority of India | Government of India (trai.gov.in)

[15] Personal Data Protection Bill, 2019, s. 35

[16] Ovum Research Report, 2019

[17] Cambridge Analytica case, [2019] EWHC 954 (Ch)

[18] ESDS – Managed Cloud Data Center in India

Author: Ruchika Jain, D.E.S. Navalmal Firodia Law College, Pune

Editor: Kanishka Vaish, Senior Editor, LexLife India

Marital Rape: A justification to rape?

Reading time : 8 minutes

“Even in a marriage, howsoever elevated we may take the expectation of a sexual relationship, you cannot claim the right to have sexual intercourse with a partner.”

– Justice C Hari Shankar

Is it essential to bring the marital connection under the precise definition of “rape”?

This line of reasoning claims that because rape is a serious crime with long prison sentences, raising the allegation during a marriage conflict would have a significant negative impact.

Every citizen of India enjoys the basic right to equality and the right to life, as stated in the Indian Constitution. This means that every person of our country has the right to a life of equality and dignity, free from discrimination, abuse, or any other type of violation of these rights. However, the essential notion behind these fundamental rights is exploited shamelessly and on a huge scale, especially when it comes to gender-based crimes or minority crimes, due to the predominantly patriarchal confines of Indian marriage laws.

The Delhi High Court is currently hearing final arguments in a series of public interest litigations challenging Section 375 of the IPC “marital rape exception” clause. While the legal nuances of the subject are vast, the social and emotional impact of the subject may be seen in judicial proceedings as well as media conversations, particularly on social media. The fact that the case is in court has prompted a social media debate in India about “men’s rights” and the impact of false accusations on “men and marriage.” The dispute centres on Exception 2 to Section 375 of the Indian Penal Code, which provides that any sexual act conducted by a man on his wife is not raped if the wife is not a minor. This exemption is found in Section 375, which defines different actions as rape if they are carried out against a woman’s permission, by force, deception, or coercion, or on a woman who is incapable of giving consent. Marital rape is a controversial topic that is difficult to quantify anywhere, but especially in India, where the majority of sexual assault is considered to occur within families and remains unreported. According to the latest National Family Health Survey conducted by the Indian government, around 30% of Indian women aged 18 to 49 had suffered domestic abuse. According to a poll of 724,115 women, the average Indian woman is 17 times more likely to experience sexual assault from her spouse than from anybody else. The struggle to make marital rape illegal has been going on for decades, but it gained traction in 2012 after a savage gang rape on a New Delhi bus stunned the globe. Because her name could not be publicly publicized as a victim of sexual abuse under Indian law, the victim, who died of her injuries, became known as “Nirbhaya” – the fearless one. Her case prompted changes to India’s rape laws, including a broader definition of rape and longer prison penalties for those found guilty.

The Indian Penal Code (IPC) continues to specify that a husband is free from prosecution for rape on his wife, subject to the wife’s age. In India, where the husband has ultimate dominance and legal recognition over the rights of the wife, this is a clear example of the present standard being outdated and strongly skewed against women. Sexual intercourse between a man and his wife, if the wife is not under the age of fifteen, is not rape, according to the second exemption of section 375 of the IPC. In addition, the age provision was inserted into the IPC only after several cases of child brides dying as a result of premature intercourse with their husbands. Legal issues should be discussed in addition to the apparent ones of “social discord” and “damage to marriage and family institutions.” The most crucial point before the court is how “consent” can be defined, especially in marriages when there is “implied consent” and “expectation of conjugal sexual interaction.” The justices also pointed out that there is a discrepancy between the “right to have sex” and the “reasonable expectation of sex,” but that the concept of consent within a marital relationship must be taken into account. If someone is married, is there “inherent consent”? The court also voiced concern that the “right to say no” could be considered a part of the fundamental right to privacy and dignity.

The issues are also Articles 14 and 19 of the Constitution are violated by the fact that an unmarried woman can prosecute a man for sexual intercourse while a married woman cannot. The issue of “expectation of a conjugal relationship,” on the other hand, as well as the societal construct of “marriage,” which is founded on implicit physical, sexual, and emotional companionship, must be addressed. There’s also the question of a woman’s autonomy and whether modern democracy can continue to rely on 17th-century legal norms that saw women as “property of the husband,” with no decision-making ability or autonomy.

The Court will also have to decide how to characterize a husband’s rape against his wife. Rape by a “relative” or a “person in a position of power and trust” is now regarded as a far more serious crime, with heavier punishments. Rape of a woman by the same individual on many occasions is also deemed an aggravated offense, carrying a higher penalty than a single event.

Also read: ALTERNATIVE DISPUTE RESOLUTION AND ITS SIGNIFICANCE

If the “marriage exception” is eliminated, the court will have to evaluate whether rape by a husband would also be subject to the stiffer punishments under the law, because proving the offense in a relationship where regular sexual intercourse occurs is more difficult unless there is proof of serious injury. The legal implications of removing the “marriage exception” from other IPC offenses must also be considered by the court. If the victim is one’s wife, might they be charged with “attempted rape” under Section 511 of the IPC? How would evidence of an “attempt” be considered in a relationship where there is a sexual interaction? One point the court has addressed is whether eliminating the “marriage exception” will “create a new offense — i.e., will the court have to define the law surrounding what types of sexual acts or behaviour would be considered “marital rape”? A key premise of Indian law is the separation of powers between the legislative and the judiciary. This means that courts cannot “create legislation” where legislative provisions already exist. The Court will also have to assess the limits of judicial intervention in this case, especially since the federal government has not committed to altering the marriage exemption.

The case of Phulmoni Dasi (also known as Queen-Empress vs. Hari Mohan Maiti) in 1881 was one of the most horrible examples of marital rape. This case deserves special attention because it drew a lot of attention from legislators and the general public. According to the facts, Phulmoni Devi, an eleven-year-old child bride, died of heavy bleeding when her husband, Hari Mohan, in his mid-thirties, attempted to consummate their marriage despite her being eleven years old. Even though the post-mortem report identified a ruptured cervix as the cause of death, the husband was acquitted of rape since the laws on rape excluded marital rape fully from the scope of the criminal code.

Current rape rules allowed a man to have sexual relations with his wife without her consent as long as she was over the age of ten at the time. Concerns about the age of consent for child brides were raised following the case of Phulmoni Dasi. With an amendment to the Age of Consent Act of 1861, the colonial government raised the age of consent from ten to twelve years in both married and extra-marital circumstances, to protect female minors from future immature cohabitation and prostitution. When the Amendment Act of 1925 was passed, a distinction was made between the age of consent for extramarital and marital rape, i.e. fourteen and thirteen years, respectively, even though the significance of this modification was weakened because the sentence for the husband was just two years. Furthermore, the said exception for married women aged fifteen to eighteen persisted until 2018, when the Supreme Court of India issued a landmark ruling declaring that a man commits rape if he engages in any form of sexual intercourse with his wife if she is between the ages of fifteen and eighteen. This was the first time that the legal definition of rape was extended to include a sexual attack on a girl under the age of eighteen by a male, even if he is her husband. This, however, does not provide any protection to any woman over the age of 18 who may be subjected to marital rape by her husband, and such cases are common throughout the country and often go unnoticed or dismissed because no law provides for any type of penalty or punishment for marital rape of a woman over the age of 18. Furthermore, the Verma Committee, which was established on December 23, 2012, in the aftermath of the infamous Nirbhaya case, recognized this feature of marital rape. The previous Chief Justice of the Supreme Court, Justice J.S. Verma, led a three-member committee. The main goal of this group was to propose changes to India’s criminal legislation that would allow for faster trials and harsher punishments for criminals accused of sexual attacks against women. The Verma Committee’s recommendations also included the complete and total criminalization of marital rape, arguing that the right to life encompasses the right to a dignified life for all individuals and that marital rape completely violates this basic right and grossly indignifies the woman. While recommending that marital rape be criminalized, the Committee noted that women in India face frequent incidents of discrimination and violence in the home and at work, and that several special and protective statutes have been enacted to protect women from such unwelcome incidents. Moreover, while criminal penalties have been established for the protection of women, no laws explicitly prohibit a man from raping his legally married wife except in the following circumstances: Any form of sexual activity or sexual act committed by a man with his wife while the wife is under the age of 15, as defined by section 375 of the Indian Penal Code, 1860. Any kind of sexual intercourse between a husband and his wife when they are separated, as defined by section 376B of the Indian Penal Code, 1860. As a result, the state’s reluctance to acknowledge the rights of a wife who is a woman and, more crucially, a living person who deserves to live a dignified and secure existence is reflected in the clear lack of any statute criminalizing marital rape in its entirety. The Indian Constitution protects a number of fundamental rights, including the right to life and the right to privacy, but it fails to recognize that the right to life also includes the right to live a dignified life and that marital rape violates the basic principle that underpins this fundamental right. Currently, the only civil remedies for married women in India against non-consensual sex are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the Indian Penal Code, which deal with cruelty against a wife by a husband or husband’s relatives. Several countries throughout the world are enacting strict anti-marital rape legislation and recognizing it as a criminal offense. Countries such as Denmark, Sweden, Poland, Norway, and the Czech Republic have already criminalized marital rape, while others are still attempting to do so due to the complexities of such a move, as well as the potential negative consequences for marital relationships and the repercussions of wrongful accusations. Most proponents of present marital rape legislation argue that criminalizing the crime will give women an unfair advantage, resulting in a high number of false allegations being filed against males. However, it cannot be argued that India’s current rape statute, which exempts the husband, is completely in violation of Articles 14 and 21 of the Indian Constitution. Marital rape is not only unequal, but it also violates a woman’s right to a dignified existence. When a woman marries, she never relinquishes her fundamental rights. As a result, any law that violates the Constitution’s emphasized clauses must be repealed entirely. In a marriage, “implied consent” cannot be regarded as “irrevocable consent,” and a woman must have the ability to say “No.” There is no justification for elevating the “marital connection” and denying a married woman the right to prosecute her husband, even if she has the right to prosecute everyone else.

Author: Roop Ahluwalia, NMIMS Hyderabad

Editor: Kanishka Vaish, Senior Editor, LexLife India

UKRAINE CRISIS AND ITS IMPACT ON INDIA

Reading time : 8 minutes

Ukraine Crisis: An overview

The world-shocking Russian military invasion on Ukraine (February 24) reached a critical juncture on Saturday (February 26), with Russian tanks closing in on the besieged capital Kyiv, even as the death toll rises and thousands of local civilians evacuate.

Since Ukraine’s pro-Russian president, Viktor Yanukovych, was overthrown in 2014 after months of protests to overthrow his government, President Putin has regularly accused the country of being taken over by extremists. However, Ukraine has not shifted to the right; rather, it has shifted to the west, which Putin hopes to reverse. When Moscow pressured Ukraine’s president not to sign a 2013 association treaty with the EU, protests erupted. In 2014, Russia retaliated by taking Crimea’s southern area and sparking a rebellion in the east, backing separatists fighting Ukrainian forces in an eight-year war that has claimed 14,000 lives. Ukraine has stated its desire to join the European Union and the NATO military alliance, but the Kremlin would not allow it. Russia began amassing large numbers of troops near Ukraine’s borders in late 2021. President Putin has denied plans for an invasion, but he has since abrogated the 2015 Minsk peace agreement for the east and recognised rebel-controlled territories as independent. He accused NATO of endangering “our historic future as a nation” as he sent in the troops. The proclaimed goal of Russia is for Ukraine to be liberated from persecution and “cleansed of Nazis.” Mr Putin has spoken of bringing to justice “those who committed multiple horrific crimes against people” under this false narrative of a fascist-run Ukraine since 2014. He has denied attempting to conquer Ukraine and has refuted a UK charge that he was planning to install a pro-Kremlin puppet before the war, but he has also stated that there will be no invasion. According to one unconfirmed intelligence report, he wants to divide the country in half. The writer celebrated a new world order in which Russia was recovering its pre-1991 Soviet unity, gathering the so-called world of Russians, Belarusians, and Little Russians (Ukrainians), in an editorial published on February 26 and then deleted by state news outlet Ria-Novosti. President Putin penned a long post last year portraying Russians and Ukrainians as “one people,” and he has referred to the Soviet Union’s demise in December 1991 as the “disintegration of historical Russia.” In Belarus, a puppet has worked out thanks to long-time authoritarian leader Alexander Lukashenko, but Ukraine is a different story. Although Russia’s Baltic neighbours face no immediate threat, NATO has reinforced their defences just in case.

Ukrainians are living in fear as shells and bombs rain down on their towns, forcing more than two million people to flee to neighbouring nations. Poland, Hungary, Romania, Moldova, and Slovakia are grappling with a massive influx of refugees, with the EU warning that at least another five million could be displaced. It is, however, a pivotal moment that has the potential to shatter Europe’s post-World War II security structure. Days after threatening the West with “consequences the likes of which you have never seen” if it stands in his way, Russia’s Putin has put his nuclear forces on high alert.

The world has been astonished by Russian President Vladimir Putin’s ruthless use of military force to alter the political geography of central Europe, and the consequences of this action are complex and multi-layered. The immediate impact is on Ukraine’s urban population of 41 million people, and television images of Russian munitions destroying military assets resemble the lethal convulsions seen in Iraq, Syria, and Afghanistan over the last two decades. The civilian casualties are heart-breaking and reminiscent of Europe’s deadly history, which until February 24 believed that such military action was a common element of a horrific past now consigned to history. Despite some ferocious opposition, the anguish and tragedy currently unfolding is a forerunner to the fall of Kyiv, Ukraine’s capital. It also appears inevitable that President Putin would impose a political framework aimed at keeping a demilitarised Ukraine neutral, NATO membership out of the question, and Kyiv dependent to Moscow. A Ukraine model based on the Finland agreement may arise, but the majority of Ukrainians will be dissatisfied and tortured. A violent and bloody civil war is a distinct possibility if they opt to fight Russian aggression. But, for the time being, Ukraine is on its own, and no other country is likely to send troops to help Kyiv. This is the doubtful reality of early twentieth century geopolitics, and a post-Ukraine global framework is forming, with multiple contradictions between aspiration and reality, mediated by the compulsions of political pragmatism – all of this in flux, against the backdrop of a Covid-scarred global economy with its tangled web of dependencies.

The Russian military’s invasion and eventual fall of Kyiv will be a watershed moment in global geopolitics, and the world is now fumbling for the contours of the post-Ukraine world order. A Sino-Russian axis opposing the US and its allies is on the cards, however given their reliance on Russian gas, various European countries have differing views on how to deal with Moscow over its invasion of Ukraine. India is in a similar situation, having developed a special relationship with Moscow over many years. The US had co-opted China as a junior partner to restrain the former USSR during the second phase of the Cold War, while Moscow had invested in Delhi through a ‘friendship’ pact. The latter connection grew into a major military inventory relationship, with India’s most important outcome being the establishment of Bangladesh. The United States’ pivot to Russia over Ukraine will have a number of consequences for India. Its vote against India in the UN Security Council may create immediate regret in Washington, but the implications of the incursion on the Indo-Pacific as a strategic zone for the US would be far more significant. Given President Joe Biden’s political importance for Ukraine, the priority of China as an ongoing problem for the US and its allies may be lowered. As a result, the US focus and related effort will be on energising an ambivalent NATO to cope with Russia and the accelerated Sino-Russian dyad, as it is highly improbable that he will go before the American voter as the President who lost both Afghanistan and Ukraine.

In the post-Ukraine setting, India will have to assess its own security and geopolitical problems, as well as manage its relations with an assertive China, which may seek to mediate the India-Russia relationship and Moscow’s standing as a military inventory supplier.

Impact of Ukraine Crisis on India

Markets have been jolted by the Russia-Ukraine conflict, which has heightened uncertainty at a time when the global economy appeared to be on the mend. With the unwind of QE, the markets expected the Federal Reserve to raise rates many times. With this war, this optimism has been shattered. India’s direct impact will be restricted to the extent of trade between the two countries. Russia’s part of India’s total commerce is only about 1%, so it wouldn’t make much of a difference. In fact, a big portion of the imports are tied to defence, and the government can work out methods to keep the accords going. The indirect impact—through the markets—is, nevertheless, a major source of concern.

Inflation is the initial point of interaction. Since the rhetorical attack began in early February, commodity prices have begun to rise. The impact of the battle on crude oil is probably the most evident, but it has also pushed up prices of metals, gas, and edible oils at a time when it was believed that prices would stabilise this year following a bull run in 2021. Since late December, manufacturers in India have been progressively raising prices and passing on higher input costs. With this new wave of price hikes, the pressure will escalate all over the place. Since November, the Indian government has refrained from raising fuel prices, citing the upcoming state elections as a reason.

The rupee is the second source of concern. Currency markets around the world have been extremely volatile since the start of the war. Currency depreciation has resulted from a mixture of war and sanctions, and the rupee has not been spared. This comes at a time when the current account balance has shifted to the negative, and a higher CAD is projected as oil prices rise.

Third, because of the increased demand for dollars, bond yields have become more volatile. Yields have been decreasing on predictions that the Fed will not raise rates in these circumstances. However, signs that this will persist as inflationary fears grow even more pronounced are driving rates up. As a result, daily bond yield volatility has kept investors guessing. However, in India, the path is clear: upwards. Following the credit policy, it was expected that the RBI would refrain from raising interest rates this year. The 10-year bond reverted to 6.7 percent because of this.

Also read: RIGHT TO BE FORGOTTEN: A REMEDY TO CYBERBULLYING

Markets have been worried as state elections near their conclusion and the global price of crude moves closer to $120. Add in the possibility that the government would just postpone the LIC IPO, and it’s clear that financing the deficit will be difficult. The 10-year bond now carries a yield of 6.85 percent. These yo-yo oscillations are likely to continue until more clarity on the severity of the Ukraine crisis emerges.

Fourth, those doing business with Russia are concerned about the payment issue. Exporters are in a bind as a result of Russia’s exclusion from SWIFT. To make matters worse, shipping companies are hesitant to transport products to Russia. As counterparties to these transactions, all entities in other countries are affected in an attempt to harm Russia. India can agree to a rupee-rouble arrangement at the government level but receiving roubles for exports may not be as appealing to private companies.

Impact on various other sectors of Indian Economy:

Steel and aluminium prices, which have recently risen from already high levels (Russia provides nearly 6% of world primary aluminium output), will continue to rise. While this would benefit domestic primary steelmakers and aluminium smelters by increasing realisations, it would have a negative impact on the construction, real estate, and automobile industries.
The higher prices can be passed on to urea producers who utilise it as a feedstock. However, if the war continues, domestic urea availability could become a problem for the agricultural industry, as about 8% of the requirement is imported from Russia and Ukraine.
For diamond polishers, persistent trade interruption can raise the cost of rough diamonds, putting a strain on their profit margins. Alrosa, Russia’s largest diamond miner, produces approximately 30% of the world’s rough diamonds, which saw a 21 percent increase in price in 2021.
Sanctions tied to trade and banking might affect industries that get critical raw materials like crude sunflower oil and rough diamonds, according to CRISIL. Sunflower oil accounts for over 10% of India’s edible oil consumption, with 90% of it coming from Russia and Ukraine. An extended battle might disrupt supplies to domestic oil mills, which normally keep some inventories on hand and have few options for changing their sourcing on short notice.
The persistent semiconductor shortfall is unlikely to provide relief to the automotive industry. This is due to the fact that Russia and Ukraine supply over 75% of the neon gas used in semiconductor manufacturing operations such as etching circuit patterns into silicon wafers to create chips.
A prolonged conflict, as well as sanctions against Russia, would stifle semiconductor output even more. According to the rating agency, import dependence on palladium and platinum, which are used in catalytic converters, and nickel, which is used as a cathode in lithium-ion batteries, is not so significant and so may not have a major impact on the vehicle sector.
Consumers could also expect a significant increase in the price of animal protein, such as poultry, dairy products, and seafood. Amul, the world’s largest dairy company, hiked retail milk prices by 4% in all Indian markets on March 1st. “Due to growing energy, packaging, logistics, and cattle feeding expenses, this price increase is necessary. As a result, the overall cost of operation and milk production has increased “Amul stated in a press release. Mother Dairy has also announced a price increase of Rs 2 effective March 6th.
The ongoing conflicts between Russia and Ukraine are expected to have an influence on domestic wheat and sunflower oil prices. Both countries produce considerable amounts of wheat. India is self-sufficient in wheat but import some high-quality grain. Furthermore, the drop in Russian and Ukrainian wheat prices on the international market will provide an amazing opportunity for Indian exporters, raising domestic prices significantly. Sunflower oil prices have surged by around 5% to 10% in the global market. For consumers who have been paying historically high prices for nearly two years, the Russia-Ukraine conflict has dashed any thoughts of relief from high cooking oil prices. This surge in price of basic amenities like cooking oil would be a heavy dent on pockets of lower and middle class people of the country.
According to a Reuters storey, the Indian Drug Manufacturers’ Association (IDMA) has stated that the disagreement will raise the price of raw materials generated from benzene or other petroleum products, forcing pharma exporters to seek buyers abroad. However, executives at Indian pharmaceutical giants Torrent Pharmaceuticals and Zydus Lifesciences said the Ukraine war had little or no influence on sales. Pharmaceuticals accounted for 30% of India’s overall exports to Ukraine between April and December last year, totalling $173.3 million, according to the research. Russia, on the other hand, spent $386 million on pharmaceuticals during the same time.
Due to feed scarcity, chicken prices have surged exponentially and likely to further surge by 40-50% during late March. Tea exports, which are referred to as chai in both Russian and Ukrainian, may also meet difficulties. Russia is one of India’s largest tea importers, accounting for 18% of the country’s tea exports. Since Iran shipments are facing issue due to payment problems, it has resulted in shorter export volumes making Russia a key nation for Indian tea export.
The war like situation between Russia and Ukraine are projected to put pressure on India’s agriculture industry resulting in raised costs and limited availability of potash, a vital component used in fertiliser industry. Belarus and Russia are currently the world’s leading suppliers of potash. India is a large importer of potash, which is utilised in fertiliser industry. Russia, Ukraine, and Belarus account for ten percent to twelve percent of India’s total fertiliser imports. With already-high prices, the government’s subsidy expenditure, which would be necessary to maintain an acceptable retail price for farmers, will skyrocket.

While there is no immediate threat to the Indian economy driven mostly by domestic demand, all of these market reverberations will have a secondary influence on the economy. Demand and consumption will undoubtedly be hampered by higher prices. High inflation will also put pressure on the MPC to reconsider its policy position, as it cannot be dismissed as temporary. Inflation will rise as interest rates rise, and the currency will remain volatile.

The global economy is about to be sent on yet another uncertain route by an armed battle on Europe’s border, after being pummelling by the epidemic, supply chain chokeholds, and price jumps.

Even before the Kremlin ordered Russian troops into Ukraine’s separatist zone, tensions were high. President Biden’s threat of punitive measures in return, as well as the possibility of Russian reprisal, had already drove down stock returns and pushed up petrol costs.

An open attack by Russian forces may result in dizzying price increases in oil and food, fuel inflation fears, and frighten investors, putting global investment and economy at risk.

Whatever the effects, they will be significantly less serious than the coronavirus’s early economic shutdowns in 2020. With a population of 146 million people and a massive nuclear arsenal, Russia is a transcontinental behemoth as well as a major source of the oil, gas, and raw materials that keep the world’s factories operating. Russia is a modest player in the global economy, compared to China, which is a manufacturing powerhouse with sophisticated supply lines.

Everyone is now waiting to see where Russian President Vladimir Putin will put an end to the offensive. Is it going to end with these two enclaves, Donetsk and Luhansk, that the Russia-aligned separatists’ control? The land claimed by these two breakaway republics as their region is larger than the west perceives it to be. Is Putin going to consider the region as a whole, or will operations expand much beyond that? Extending this operation into western Ukraine, where the people would fiercely resist Russia, makes no sense. We must wait and see what happens in eastern Ukraine, which could provide Russia with a straight land route to Crimea. The consequences of increased sanctions will be determined by what Putin does. Then we’ll have to wait and watch how the West reacts, as well as the implications for global trade, investment, energy supply, and, most importantly, India.

On a political level, if relations between Russia and the United States, as well as Russia and the West, deteriorate, India’s relations with Russia become more problematic. Then there’s the strain from India’s relations with Russia, as well as the pressure from India’s relations with the United States. We’ve had this before, starting in 2014, and we’ve been able to maintain our two relationships separate. As a result, it will be a continuous political struggle.

According to conventional thought, China will lead the global GDP ladder in the coming decade, with the United States a close second and India a distant third. This gives India a ‘swing’ position in the developing geopolitical arithmetic, and both Washington and Beijing will be adjusting their long-term strategies in response. However, India’s reputation as a liberal democracy devoted to the normative concept would be crucial, even if Delhi was forced to remain silent over Russia’s invasion of Ukraine.

Author: Ravina Raj, NMIMS Hyderabad

Editor: Kanishka Vaish, Senior Editor, LexLife India

War- A threat to Flora & Fauna

Reading time : 8 minutes

When a war breaks out, our biggest concern is loss of human life, market crash, loss of property, fall of the government, sanctions, international relations. Among all of this, we all forget that besides humans and their creations, there is a major loss of animals and the environment, which we often term as “collateral damage”. This is not something unexpected, due to the prominent anthropocentric approach which our civilization tends to have and is also evident in every initiative which we take. This concern has recently come to the limelight because of the Ukraine-Russia war going on. We are all seeing the constant news feed on the destruction the war has caused to Ukraine, and the focus is again on humans- living beings who can speak and understand, and can take care of themselves, and minimal to no attention is being given to those living beings who cannot take care of themselves and cannot even understand the concept of war.

But what is happening in the current war is not something new, this is something which has been happening since time immemorial, animals and the environment has been taken for a granted for, and in some cases, have been used in an unfair manner for our own selfish reasons. There was a mass destruction to the environment, in fact, World War was one of the most damaging to the environment. Due to endless trenches and bunkers, grasslands and soil was greatly harmed, constant bombing caused noise and air pollution, the only agenda which the war had was maximum benefit to us, and no care or thought was put towards the environment. The gruesome details of World War I, is a stain on the so called “humanity” of our race. During the time of World War I, dogs were used as companions to stay with dying soldiers, used as suicide bombers, many animals have lost lives as collateral damage during war times. Around sixteen million animals lost their lives, or as we proudly say served during the war, this included horses, dogs, whales, donkeys and many more.,

We all can see the drastic and long term after effects which the war caused, we are now struggling to keep our natural resources alive, we have big organization, headed by the intellectual humans of the society, and the government of many countries, trying to figure out ways to save and sustain what is left of the natural resources and amid all this, we have repeated the history yet again.

The Ukraine-Russia war is impacting our flora and fauna in way we cannot even contemplate right now, because the after effects of these kind of wartime incidents is felt after a long time, after the war is over and attention of the world has been shifted to a newer issue, because the long term damage caused by the war unfurls gradually.

The main action of the war is happening in the urban areas of Kyiv. Kharkiv and Mariupol, where most of military establishments and industrial facilities are there. Some radioactive waste repositories have come under fire from Russian planes as well, which will not only have an immediate destructive impact, but will also leave a long trail of polluted and unhealthy environment. An important and serious future issue which this war will raise are transboundary disputes over control of resource, since the war is and will have serious impact on the resources and there will be a shortage, and Ukraine will try and capitalize on not only its own resources but also its neighboring regions.

Also read: RAISING THE LEGAL AGE OF MARRIAGE: AN ANALYSIS

Something which makes this issue of grave concern is also the fact that Ukraine is the home to multiple industrial sites, and was ranked low in environmental index and was criticized for its air quality, biodiversity production and the ecosystem health, and now this war has not only crushed the previous efforts by Ukraine but has also further aggravated the problem. The Donbas region of eastern Ukraine, has been considered as the pollution center of the country due to various industrial sectors in it. Scientist around the world have also warned that this war can also cause a man-made disaster worse than Chernobyl, since this region also has a site where a nuclear test was conducted in the 1970s.

The natural habitat of animals is the nature and forest, which has already been taken by us through our constant drive for progress, and now this war has taken the last of what was left for the animals. So many rescue animal shelters have been hit badly, although various organization across the globe are trying to send support, but the help is not enough. Staying back and taking care of animals is becoming dangerous day by day, because of which many people have also abandoned their domesticated pets and have let them fend for themselves, in such a bad situation. Also, people who are trying to take their animals with them are facing a lot of issues since the restriction and rules are very strict, and various nations have been asked to relax the rules in war times, still there is a big issue and rules and situation is unclear for people wanting to cross the border along with their pets.

Even though the rescue and shelter organizations there are trying their best to help the animals, but they are overcrowded, and there is an acute shortage or storage and supply. If the present situation continues then the death of animals by starvation and lack of proper care and medical treatment, which has already started will become a common thing. The animals are in grave distress and cannot understand as to why their owner have left them on the wrong side of the border and their worst fear, which is to be abandoned has come true.

Not only the domestic animals but the animals in zoo are also in grave danger, and it is more difficult for the authorities to evacuate or accommodate them elsewhere, since all of them are wild animals, and their evacuation will take some time, since lot of formalities and new rules and the logistics to move bog animals like giraffe and elephant will be required, and since very less attention is being given to this issue and negligible resources and manpower have been allotted and hence it is taking even more time, but the distress of animals is just increasing. In Kharkiv, Eastern Ukraine, the Feldman Ecopark Zoo got damaged during fighting, and animals were not only hurt but are also killed brutally. The Zoo keepers in the other region are watching in horror since the only wall between the zoo and the Russian army is them, and they have no outside resources or help to protect and sustain the animals, the government has already left the sanctuary’s, parks, zoo and shelter to do something on their own.

Some zookeepers to avoid the horror of Kharkiv have tried to move as many animals as possible to safer places, and have tried to stock up on food and water, and some are also growing vegetables on their own land, to ensure some kind of availability of fresh food for the animals. But to keep a situation under control which involves animals who have no idea what is happening around them and why they are under attack, the zoo keepers have to at times take desperate measures, big animals like elephants are being kept on sedative so that they remain calm and can sleep at night, amid the constant shelling and firing. During the Syrian war, around 300 animals were trapped in a zoo were and later around only 13 were left, animals died of starvation, bombing and diseases, since they were trapped in the zoo, and the people of the zoo and some other welfare organizations are desperately trying to avoid the same situation and keep hope, but future of the animals is grim. Even more miserable situation happened during the Iraq war where people killed the animals of the zoo for food.

Even though so many past incidents have happened both to flora and fauna, but us “intellectual and superior” humans still haven’t learnt our lesson, we are still not taking the issue seriously even though so many past incidents have happened, which is enough evidence for the other nations, Russia and Ukraine as well, to keep aside our own selfish drives and wants and needs for some time, and do something about it. Just because the damage to flora and fauna might not affect us right now or is not hampering our life directly, there will be many repercussions of our actions today in future, instead of repenting in future, and push the burden of our sins on our future generation, we should realize the horrific damage we have been doing and trying and minimize the damage, if not compensate it completely.

War is never the last resort, there is always a way out, a better and less destructive one, where we are not harming innocent living beings.

Author: Pragya Narain

Editor: Kanishka Vaish, Senior Editor, LexLife India

ALTERNATIVE DISPUTE RESOLUTION AND ITS SIGNIFICANCE

Reading time : 8 minutes

INTRODUCTION

The Judicial system in India has strived to underpin the concept of ‘Justice delayed is justice denied.’ However currently, in India, about 3 crore cases are pending at different levels of courts. As per several reports, there are only 19 judges per 10 lakh people whereas the adequate ratio is 50 judges per 10 lakh people. Factors like corruption, incompetence, lack of judges and low quality of judiciary have contributed to a rise in the number of cases pending before the court.

With all these factors adversely affecting the judicial system, the subsistence of a speedy justice dispensing system is next to impossible. The right to a speedy trial is enshrined under Article 21 of the constitution.

Fast tracks courts have helped in settling millions of cases but still, the issue is far from being resolved.

Therefore, in an attempt to abate this burden of pending cases, the Alternative Dispute Resolution Mechanism also known as the ADR mechanism was introduced by the courts to provide speedy justice.

WHAT IS THE NEED FOR ADR MECHANISMS?

After the amendment of Section 89, of ‘The Code of Civil Procedure’ in 1999, the alternative dispute resolution (ADR) mechanisms namely arbitration, conciliation, mediation and pre-trial/judicial settlement methods including settlements in Lok Adalat were introduced.

Under section 89, the code of civil procedure lays down,

(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for—

(a) Arbitration;

(b) Conciliation;

(d) Mediation.

Thus, the aforementioned ADR mechanisms are useful to lift the burden of cases on the judiciary and to provide quick justice to the parties without having to follow the rather expensive and formal court proceedings.

WHAT ARE THE OBJECTIVES OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS?

According to Section 89 of CPC, it is clear that the court must refer a dispute to any one of the ADR mechanisms if it appears to the court that there exists a possibility of settlement. The objectives of ADR mechanisms are as follows:

To resolve disputes outside the court premises.
To promote quick settlements.
To save time and costs associated with a court proceeding.
To allow the parties to be able to find solutions themselves.

WHAT DISPUTES CAN BE SETTLED THROUGH ADR?

After the establishment of ADR mechanisms, the question arose as to which types of disputes can be referred for alternative dispute resolution.

For this purpose, the Supreme Court laid down guidelines about the kind of cases that would be eligible for ADR in Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. and Ors,

Relationship disputes-

Disputes relating to matrimonial causes, maintenance, custody of children;
Disputes relating to partition/division among family members/co-partners/co-owners;
Disputes relating to a partnership among partners.
Disputes between neighbours (relating to encroachments, nuisance etc.;
Disputes between employers and employees;
Disputes among members of societies/associations/Apartment owners Associations;

Contracts and trade-related disputes-

Disputes arising out of contracts (including all money claims);
Disputes relating to specific performance;
Disputes between suppliers and customers;
Disputes between bankers and customers;
Disputes between developers/builders and customers;
Disputes between landlords and tenants/licensor and licensees;
Disputes between an insurer and insured;

Tortious liability disputes-

claims for compensation in motor accidents/other accidents;

All consumer disputes-

Including disputes where a trader/ supplier/ manufacturer/ service provider is keen to maintain his business/ professional reputation and credibility or product popularity.

WHAT DISPUTES CANNOT BE SETTLED THROUGH ADR?

The following nature of disputes are generally not considered to be suitable for the ADR process:

(i) Representative suits under Order 1 Rule 8 CPC which involve public interest or interest of numerous persons who are not parties before the court. (In fact, even a compromise in such a suit is a difficult process requiring notice to the persons interested in the suit, before its acceptance).

(ii) Disputes relating to election to public offices (as contrasted from disputes between two groups trying to get control over the management of societies, clubs, associations etc.).

(iii) Cases –

involving grant of authority by the court after enquiry, for example, suits for grant of probate or letters of administration.
involving serious and specific allegations of fraud, fabrication of documents, forgery, impersonation, coercion etc.
involving prosecution for criminal offences.
requiring protection of courts, for example, claims against minors, deities and mentally challenged and suits for declaration of title against the government.

The four methods of alternative dispute resolution introduced in section 89 of CPC are explained hereafter:

1. ARBITRATION

Arbitration is one of the modes of ADR mentioned in Section 89 of CPC and defined under Section 2 (1)(a) of Arbitration and Conciliation Act 1996.

It is a process in which the parties choose a neutral third party known as the arbitrator to hear both sides and makes a decision. The arbitration proceedings take place outside the court but they are similar to a hearing wherein testimony and evidence may be presented by both parties. The decision made by an arbitrator after carefully examining both sides of the case is called an ‘award’ and is legally binding.

The provisions of the arbitration process are provided in The Arbitration and Conciliation Act 1996.

Which types of disputes are referred to for Arbitration?

Usually, all civil and Quasi civil court disputes involving private rights disputes can be arbitrated.

Rule 4 (ii) of Alternative Dispute Resolution Rules 2006 provides-

—that, where there is no relationship between the parties which requires to be preserved, it may be in the interest of the parties to seek reference of the matter of arbitration as envisaged in clause (a) of sub-section (1) of section 89;

Following are the nature of disputes that can be arbitrated: –

Disputes involving

contract interpretation and performance,
construction projects,
partnership differences,
real estate securities,
personal injury,
product liabilities,
professional liability,
intellectual property rights,
joint ventures,
insurance claim and
Banking & non-Banking transaction disputes

fall within the jurisdiction of Arbitration.

Disputes that cannot be arbitrated: –

Disputes involving

criminal offences,
Conjugal rights/matrimonial issues,
Guardianship,
Motor vehicle accident conversation,
testamentary issues under succession act,
issues falling under Indian Trust Act
tax-related matters

do not fall within the jurisdiction of Arbitration.

RECENT JUDGEMENTS ON ARBITRATION:

1. Kerala State Electricity Board and Anr. v. Kurien E. Kathilal

Referring the parties to arbitration has serious civil consequences procedurally and substantively. When there was no arbitration agreement between the parties, without a joint memo or a joint application of the parties, the High Court ought not to have referred the parties to arbitration, the Supreme Court held in this case.

2. M/S Emaar MGF Land Limited & Anr. v. Aftab Singh

Upholding the NCDRC’s decision, the supreme court ruled that an Arbitration Clause in a Buyer’s Agreement cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

2. JUDICIAL SETTLEMENT/ LOK ADALAT

Judicial settlement is another ADR mechanism provided under section 89 of CPC. It is a process in which the parties in dispute reach a final settlement by way of compromise and such settlement is made under the supervision of a suitable institution or person to which the court has referred the dispute. Such institution or person/s are considered to be the Lok Adalat. The provisions for such proceedings are provided under the Legal Service Authority Act, 1987.

Which types of disputes are referred for judicial settlement?

Rule 4 (iv) of Alternative Dispute Resolution Rules 2006 provides-

that, where parties are interested in a final settlement which may lead to a compromise, it will be in the interests of the parties to seek reference of the matter to the Lok Adalat or to judicial settlement as envisaged in clause (c) of sub-section (1) of section 89;

Following are the categories of disputes that can be referred to Lok Adalat:

Disputes involving-

civil cases,
matrimonial disputes,
MACT cases,
Mutation of land cases,
Compoundable criminal offences,
Family disputes,
Encroachment on forest lands,
Land acquisition disputes and
Cases that are not sub-judice

are mainly referred for Lok Adalat or judicial settlement.

CASE LAW- Balakrishna v. Member secretary Lok Adalat Jamkhandi, Bagalkot district

In this case, the petitioner claimed that the case was decided in his absence in the Lok Adalat. Subsequently, the court held that Lok Adalat can only decide the cases with the consent of both parties and an award cannot be passed by the Lok Adalat on merit. Lok Adalat cannot write a judgment after considering the pleadings of the parties. The basic purpose for approaching the Lok Adalat is to negotiate the matter between the parties and settle the same amicably with the consent of both parties. If any one of the parties is not present, Lok Adalat cannot decide the matter, as has been done in this case.

3. CONCILIATION

Conciliation is also an ADR mechanism that was introduced in section 89 of CPC. In this mechanism, an impartial third party also known as a conciliator is appointed to facilitate communication between parties and formulate or reformulate the terms of the settlement. Conciliation is very similar to arbitration yet different in the fact that the final decision is not legally binding on the parties. The Arbitration and Conciliation Act 1996, does not provide a proper definition of conciliation.

Which types of disputes are referred to for Conciliation?

Rule 4 (iii) of Alternative Dispute Resolution Rules 2006 provides-

that, where there is a relationship between the parties which requires to be preserved, it may be in the interest of parties to seek reference of the matter to conciliation or mediation, as envisaged in clause (b) or (d) of sub-section (1) of section 89.

Also, the companies Act 2013, lays down the types of disputes that can be referred for mediation/ conciliation:

Under Section 442 of the Companies Act, 2013, disputes pending with the Central Government, NCLT or the NCLAT can be referred to mediation or conciliation.
Any matter which is pending before the Central Government, Tribunal or Appellate Tribunal under the Companies Act, 2013 can be referred for mediation either by the parties themselves or Suo moto by the Central Government.

CASE LAWS

Haresh Dayaram Thakur v. State of Maharashtra and Ors

The Bombay High Court ordered the over a flat to be taken up by conciliation and with the consent of the parties appointed Mr H Suresh as a conciliator between the parties. The parties agreed on the binding nature of the conciliation award and thereby, the proceedings were initiated. At the last session, the conciliator settled the matter in the favour of the petitioner, allotting the possession of the flat to the petitioner on the condition that the petitioner would give up all claims on an ancestral flat at R K Nagar.

The appellant challenged this settlement order of the conciliator in the High Court but the court rejected the plea on the grounds that the parties had agreed on the binding nature of the award and, thereby no remedy shall be available to them in respect of it. This decision of the High Court was challenged by the appellant in the Supreme Court.

2. Mysore Cements Ltd. v. Svedala Barmac Ltd

It was said that Section 73 of the Act speaks of the Settlement Agreement.

In the present case, we do not find there any such formulation and reformulation by the Conciliator, under sub-section (1)

Sub-section (2), if the parties reach a settlement agreement of the dispute on the possible terms of settlement formulated, they may draw up and sign a written settlement agreement. As per Sub-section (3) when the parties sign the Settlement Agreement, it shall be final and binding on the parties and persons claiming under them respectively. Under Sub-section (4), the Conciliator shall authenticate the Settlement Agreement and furnish a copy thereof to each of the parties.

From the undisputed facts and looking at the records, it is clear that all the requirements of Section 73 are not complied with.

4.MEDIATION

Mediation is an ADR mechanism provided in section 89 of CPC along with arbitration, conciliation and judicial settlements.

It is a process through which a mediator is appointed either by the court or by the parties at dispute, and such a mediator facilitates discussion between parties either directly or by communicating with each other through the mediator. Mediation process resembles conciliation to a great extent but holds its difference in the fact that a mediator can only facilitate communication between the parties and cannot formulate or reformulate the terms of settlements, unlike a conciliator.

Which types of disputes can be mediated?

Rule 4 (iii) of Alternative Dispute Resolution Rules 2006 provides-

that, where there is a relationship between the parties which requires to be preserved, it may be in the interest of parties to seek reference of the matter to conciliation or mediation, as envisaged in clause (b) or (d) of sub-section (1) of section 89.

According to the Companies (Mediation and Conciliation) Rules, 2016, the following disputes cannot be referred to mediation or conciliation, namely:

matters involving serious and specific allegations of fraud, fabrication of documents forgery, impersonation, coercion etc.
cases involving prosecution for criminal and non-compoundable offences.
disputes which involve public interest or interest of numerous persons who are not parties before the Central Government or the Tribunal or the Appellate Tribunal as the case may be.
matters relating to proceedings in respect of inspection or investigation
or the matters which relate to defaults or offences for which applications for compounding have been made by one or more parties.

RECENT DISPUTES THAT HAVE BEEN MEDIATED: –

1. Dispute between Mukesh and Anil Dhiru Bhai Ambani

One of the most famous cases settled through mediation in recent times is the one between Mukesh Ambani and Dhiru Bhai Ambaniover the takeover of South African Telecom Major MTN. This was a rather complex case that was successfully settled through mediation.

2. Glenmark Pharmaceuticals Limited v. Merck Sharp and Dohme Corporation and Anr 2015

In this case, a complicated patent dispute between the drug manufacturing companies Glenmark Pharmaceuticals and Merck Sharp and Dohme was resolved through mediation.

3. Perry Kansagra v. Smriti Madan Kansagra

The court referred this matrimonial and custody-related case for mediation after the parties expressed their will to attempt to reconcile their marriage. It was held that the daughter was happy to live with her mother and pay timely visitation to her father and grandparents.

COMPARISON BETWEEN ARBITRATION, CONCILIATION, MEDIATION AND LOK ADALAT

ARBITRATION	CONCILIATION	MEDIATION	LOK ADALAT
Arbitration is a quasi-judicial adjudicatory process.	Conciliation is a non-adjudicatory process.	Mediation is a non-adjudicatory process.	Lok Adalat is a non-adjudicatory process if it is established under sec 19 of Legal Services Authority Act,1987 and it is an adjudicatory and conciliatory process when it is established under sec 22 B of the said act.
Arbitrator is a neutral third party usually chosen by the parties to dispute.	Conciliator is a neutral third party.	Mediator also is a neutral third party.	Presiding officer is a neutral third party.
The procedure and decision in arbitration are governed, restricted and controlled by the provisions of the Arbitration & Conciliation Act, 1996.	As per Section 74 of the Arbitration and Conciliation Act, 1996 the agreement is enforceable as it is a decree of the court in case of conciliation.	The referral court applies the principles of Order XXIII Rule 3, CPC for passing decree/order in terms of the agreement.	The award of Lok Adalat is considered as a decree of the Civil Court and is executable as per Section 21 of the Legal Services Authorities Act, 1987.
An arbitrator decides the case and passes an award.	A conciliator facilitates communication between parties and formulates or reformulates the terms of settlement.	A mediator can only facilitate communication between the parties to arrive at a mutually agreeable settlement.	The function of a presiding officer is persuasive.
Award is appealable on specified grounds.	Not appealable.	Not appealable.	Award not appealable.
The award is binding on both parties.	The agreement made through negotiation is not binding.	The agreement between the parties is not binding.	The award is binding on both parties.
The dispute is confidential.	The dispute is confidential.	The dispute is confidential.	The dispute is not confidential.
No opportunity for parties to communicate directly.	Parties communicate and negotiate in order to arrive at a mutual settlement.	Parties communicate and negotiate to draw a mutual settlement.	Limited scope for negotiation.
Does not involve payment of court fees.	Does not involve payment of court fees.	In case of court annexed mediation, the court fee already paid is refundable as per the Rules.	No court fee is payable when a matter is filed in a Lok Adalat.
Active participation or personal appearance of parties is not always required.	Conciliation involves active participation of parties to dispute.	In mediation, parties are actively and directly involved.	Parties are not actively and directly involved in case of Lok Adalat
Consent of parties to dispute is required.	To refer a case for conciliation the consent of the parties is mandatory.	In case of mediation, the consent of the parties is not mandatory for referring a case to mediation.	The consent of the parties is not mandatory to refer a case to Lok Adalat.

SIGNIFICANCE OF ADR MECHANISMS OVER LITIGATION?

The ADR mechanisms were introduced to lessen the burden of pending cases before the court. However, these mechanisms have several advantages which make them a good choice over litigation; Opting for ADR over a suit is cost-effective as it eliminates all the court fees and attorney charges. Also, ADR mechanisms provide faster resolutions. Court cases may take years but ADR can help in arriving at a decision in just a few sessions. In general,the legal system is adversarial which means it puts one side against the other and can worsen the relationships. On the other hand, ADR mechanisms like conciliation and mediation aim to promote communication between parties and finalize settlements agreeable to both parties. The formal setting of a court proceeding makes the parties uncomfortable and nervous whereas ADR processes are usually less formal as compared to a court proceeding. This ensures a sense of comfort and flexibility to the parties wherein both parties get to speak their side of the situation. Another benefit of opting for ADR processes is that they tend to follow simpler discovery and evidence rules which make the process quicker and easier. Finally, if the parties are unable to arrive at a solution through mediation, conciliation or Lok Adalat, the option to pursue litigation is always available.

REFERENCES-

Arbitration and Conciliation Act- http://www.bareactslive.com/ACA/ACT004.HTM

[1] Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. & Ors – Civil Appeal No.6000 of 2010

[2] Kerala State Electricity Board and Anr. v. Kurien E. Kathilal – Civil Appeal Nos.3164-3165 of 2017

[3] M/S Emaar MGF Land Limited & Anr. v. Aftab Singh – 2018 SCC Online SC 2771

[4] Haresh Dayaram Thakur v. State of Maharashtra and Ors, – AIR 2000 SC 2281

[5] Mysore Cements Ltd vs Svedala Barmac Ltd -12 March 2003, Civil Appeal 2321 of 2003

[6] Balakrishna v. Member secretary Lok Adalat Jamkhandi, Bagalkot district

Click to access plkdworkshopiv.pdf

https://www.barandbench.com/columns/50-landmark-decisions-on-arbitration-law-in-india-2018-2019-part-i

https://viamediationcentre.org/readnews/MTAyMQ==/What-kinds-of-matters-disputes-can-be-referred-to-mediation-conciliation-under-the-Companies-Mediation-and-Conciliation-Rules-2016

http://rcbajpai.com/doc/WhatDisputescanbesettledbyArbitration.pdf

https://bangaloremirror.indiatimes.com/opinion/others/talkinglegal-disputes-that-can-be-mediated/articleshow/70882410.cms

Author: Mehvish Mateen Patel, Chhatrapati Shivaji Maharaj University, Panvel.

Editor: Kanishka Vaish, Senior Editor, LexLife India

SEXUAL HARASSMENT AT THE WORKPLACE WITH SPECIAL REFERENCE TO VISHAKHA GUIDELINES

Reading time : 5 minutes

ABSTRACT

With time, opportunities for women in both educational and employment sector have increased. Now, thousands of women strive to work and earn for themselves without being dependent on their family or husbands. However, do these women also get a safe and secure environment to work? It is still a question at many places. One of the main reason due to which females choose not to work is sexual harassment that takes place on daily basis with them at the corporations by other employees or the employer himself. It is very important that as a nation, we work towards providing a secured workplace to the females so that they do not have to compromise over their skills and their future because of such reasons. Protection of women would also help in boosting the gender equality in the country and would also help in development of the nation.

Sexual harassment at workplace is addition to the violence meted out on women in day-to-day life. It is discriminatory and violative actions that abrogates the rights of women, given to them by the Constitution. Women are given right to equality that is enshrined under Article 14 and 15 of the Constitution. Also, they have been provided with right to live with dignity under article 21 of the Indian Constitution. India signed CEDAW (Convention on the Elimination of Discrimination Against Women) on July 9, 1993 to help in prevention of violence against the women. After the brutal gangrape of Bhanwari Devi, a social worker from Rajasthan in 1997, a petition was filed in the apex court of India for the first time, to enforce the fundamental rights of the working women. After the landmark case, Vishaka and Ors. Vs. State of Rajasthan, Vishaka Guidelines was enacted. Apart from this there were other acts such as- Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as POSH Act) which were enacted by the Indian law. This paper critically analysis the sexual harassment that takes place with women at the workplace and the vishaka guidelines that were setup to prevent the same.

KEYWORDS

Sexual harassment, vishaka guidelines, women rights, workplace

INTRODUCTION

Almost around fifty percent of the population of the India comprises of the women which are now visible in various sectors. The professions which were earlier considered to be only for men also witnesses the rising number of women in the same profession. This positive change in the country also faced certain horrifying and unwanted cases too relation to assault and sexual harassment usually carried by men against women. Women were considered to be an object over which mental and physical torture was done not only at home but at their workplace too. It is a problem happening worldwide, be it a developed or a developing state. The issue causes a negative impact on both men and women however, it is more prevalent in females.

Many law reforms, prohibition and prevention acts have come across the globe and various enactments have been done even by the United Nations, still the problem exists to prevail. Women, since ages, are considered to be most vulnerable group and that is why they go through various types of crimes including human trafficking, female foeticide, sexual harassment, stalking and also one of the most heinous crimes known as rape.

Sexual harassment is an unwelcome behaviour. It is not an involuntary act and sometimes occur when a consent is given to certain offensive and objectionable behaviours. It depends upon the victim subjected to the behaviour of the other person and how she perceives the same. For example- sex-oriented comment or some kind of derogatory joke. [2]

WHAT CONSTITUTES SEXUAL HARASSMENT?

There are two broad categories under which sexual harassment at workplace falls in. These categories are as follow-

Hostile work environment- it defines a workplace where the actions and behaviour of other employee disrupts the work of the victim or due to which the victim is not comfortable enough to carry out the work. The subjected person does not feel like coming to work and sometimes they eventually leave the place due to the actions of the other person.

Quid pro quo- the literal meaning of the term quid pro quo is “a favour or advantage in return something”. If a supervisor or an employer asks for a sexual favour in return of a job offer or refuses to increase the salary or denies to give it on refusal of the sexual favour, these circumstances are said to be quid pro quo.

Inappropriate physical or verbal conduct- unwanted physical touches such as, unwanted massages, squeezes etc, that makes the other person uncomfortable or verbally passing any intrusive comment about one or making sensual noises upon one’s clothes falls under inappropriate conduct which could also account to be sexual harassment.

Inappropriate digital conduct- sending explicit videos or link to such content over the social media or any other digital platform, explicit photographs of oneself to an unwilling recipient also constitutes to be a sexual harassment which takes place through the networks of the internet and is one of the major issues prevailing in today’s time. [3]

HISTORICAL BACKGROUND OF VISHAKA GUIDELINES

THE BHANWARI DEVI CASE

FACTS OF THE CASE

Bhanwari Devi, a Dalit government employee, used to spread awareness regarding hygiene and education and she also used to run campaigns relating to dowry and child marriage. During the course of her employment, she was trying to stop a child marriage taking place and was trying to save the young girl who was being forced to get married by her parents. The marriage involved certain politicians and influential people due to which Bhanwari Devi failed to stop the occurrence of the marriage. She tried to resist and also carried out a rally regarding the child marriage that was taking place.

A group of people gangraped Bhanwari Devi while she was with her husband. They attacked her out of revenge of the campaigns and rallies she organized to stop the child marriage. She tried to file criminal suit against the attackers but her complaint firstly was lodged by the police after fifty-two hours and was not taken seriously as it was against influential people.

JUDGEMENT AND AFTERMATH

As the case proceeded to Rajasthan High Court, the court acquitted all the attackers on the various grounds one of which was that a women cannot be raped in front of her husband and that a head of the panchayat cannot be indulged in such actions. Later on, the Rajasthan High Court convicted the attackers for assault and awarded them the punishment way lesser in comparison to the punishment give to a rapist.

This judgement gave a start to various rallies and protest by the general people and women safety organisations. These protestors were beaten by the police and many attempts were made to stop the people from protesting. On the other hand, people were not ready to stop and were determined to pressurize the government and other authorities to give justice to Bhanwari Devi.[4]

Vishaka and Ors. v. State of Rajasthan[5]

FACTS OF THE CASE

A collection of non-profit organisations dedicated to women’s protection filed a plea before India’s Supreme Court, asking for justice for Bhanwari Devi and, as a result, the proper penalty for the men involved in gang rape. They filed a public interest lawsuit called Vishaka, alleging that Bhanwari Devi’s fundamental rights had been infringed. They also wanted a new set of guidelines for women’s safety.

The NGOs also brought up the issue of women’s safety at work in their PIL, citing the fact that Bhanwari Devi’s employer refused to accept responsibility, despite the fact that the reason she was raped was related to the work she was obliged to do as part of her job. As a result, the PIL set out to create a new set of recommendations for women’s workplace safety.

JUDGEMENT

Sexual harassment violates the fundamental rights guaranteed by Article 14, Article 15, Article 19(1)(g), and Article 21 of the Indian Constitution, according to a three-judge bench.

The Vishaka guidelines were established by the court to protect women at work and to provide a safer working environment for women.

THE VISHAKA GUIDELINES[6]

Duty of the Employer or other responsible persons in workplaces and other institutions

It essentially defines the responsibility of the employer or other responsible persons in the workplace or other institutions to prevent or deter the commission of acts of sexual harassment and to provide procedures for the resolution, settlement, or prosecution of such acts by taking all the necessary steps.

Definitions

Sexual harassment is defined as any unwelcome sexually determined behaviour (whether directly or indirectly) that includes:

a) physical contact and advances

b) a demand or request for sexual favours

c) sexually coloured remarks

d) showing pornography

e) any other unwelcome physical verbal or non-verbal conduct of sexual nature

Preventive Steps

Sexual harassment should be avoided by all employers or those in charge of work places, whether in the public or private sector. They should take the following steps, without regard to the generality of this obligation:

A clear prohibition of sexual harassment at work, as stated above, should be announced, publicised, and widely distributed.
Government and public sector organisations should incorporate laws preventing sexual harassment in their conduct and discipline policies, as well as suitable consequences for the perpetrator.
In the case of private employers, steps should be taken to include the aforementioned prohibitions in the industrial employment (standing orders) act of 1946’s standing orders.
Appropriate work circumstances in terms of work, leisure, health, and cleanliness shall be given to ensure that there is no hostile environment toward women at work and that no employee woman has reasonable grounds to believe she is disadvantaged in her job.

Also read: CONTROL MECHANISM IN ADMINISTRATIVE LAW. AN ANALYTICAL AND THEORETICAL OVERVIEW CONCERNING EPIDEMIC DISEASE ACT OF 1897.

Criminal Proceedings

If the behaviour amounts to a specified offence under the IPC or any other law, the employer must take proper legal action by filing a complaint with the appropriate authority. It should, in particular, ensure that victims or witnesses are not traumatised or discriminated against when dealing with sexual harassment accusations.

Disciplinary Actions

Workplaces where such behaviours, as defined above, are considered to be a misconduct and does not receive support from other people at the same place, the employer should take appropriate disciplinary action in line with those rules.[7]

Complaint Mechanism

Whether or not such conduct is illegal or in violation of the employer’s service rules, an appropriate complaint procedure should be established in the employer’s organisation to address the victim’s complaint.[8]

Complaint Committee

Whether these conducts are considered to be illegal under the law or rules of the company, some type of complaint mechanism should be established in every organisation to provide both men and women a safe working environment. These committee should be headed by a woman or some NGO or any other authority which is familiar with this issue.

Worker’s Initiative

Workers should be given the freedom to raise their voice and bring up the matter of sexual harassment in work meetings and in employer-employee meetings. Following this, some serious actions should be taken by the organisation to prevent the same and help the victim too.

Awareness

Working women should be made aware of their rights and also about these guidelines made by the government for their protection.[9]

POST-VISHAKA SCENARIO IN INDIA

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 was the most significant step following the Vishaka decision. This legislation was passed in April 2013 as India’s first law addressing the protection of women at work from sexual harassment. The following are some of the act’s key features:

This Act aims to provide a safe and secure working environment for all women, regardless of their age or job status.
In India, this Act applied to both the organised and unorganised industries. All government bodies, private and public sector organisations, non-governmental organisations, commercial, vocational, educational, entertainment, industrial, financial, and other organisations, as well as hospitals, were covered by the Act.
The term “sexual harassment” was defined in this Act in accordance with the Supreme Court’s definition in the Vishaka case.
This act also included, “Presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment, threat of detrimental treatment in employment, threat about current or future employment, interference with work or creating an intimidating, offensive, or hostile work environment, or humiliating treatment likely to affect the lady employee’s health or safety could also amount to sexual harassment”, in the definition of sexual harassment.
Since sexual harassment might not often occur in the primary place of employment, the Act also established the concept of a “extended workplace.” As a result, the Act defined “workplace” as any location visited by an employee as a result of or in the course of employment, including transportation supplied by the employer for the purpose of commuting to and from the workplace.
The Act mandated the formation of an Internal Complaints Committee (ICC) at each and every office or branch of a company with ten or more employees in order to offer a place for filing allegations and expedite the resolution of sexual harassment complaints.
It also called for the government to set up a local complaints committee (LCC) at the district level to examine and remedy sexual harassment accusations from the unorganised sector or from establishments where the ICC has not been formed because they have fewer than ten employees.

Apart from the above act, the Criminal Law Amendment Act, 2013 amended several provisions of the Indian Penal Code, 1860 to include several offences such as outraging a woman’s modesty, assault or use of criminal force with intent to disrobe, stalking, and voyeurism, thus creating an exclusive disclaimer to deal with the issue of sexual harassment.[10]

CONCLUSION

“A murder usually destroys the physical aspect of a human being, while harassing a woman degrades her deteriorates her reputation in a society like India.” India has developed since ages and have accommodated its female population at various sectors of the society. Be it education or workplaces, the ratio of women as to men have increased and women have started to participate actively in various fields of occupation. With this development, one more issue that needs to be attended by the lawmakers is of sexual harassment that takes place at various workplaces which not only decreases the number of working women but also affects the reputation of company and the women too. Providing a safe and secured working environment to women helps in upgrading their basic human rights of equality and living a dignified life. For this, various workshops, seminars and other awareness activities should take place in workplaces as well as in general too so that women are made aware of their rights and the remedies available to them. Also, employers as well as employees should also be made aware of the guidelines established in organizations to prevent any kind of misconduct and the punishment it could attract. The committees already working at several companies should be evaluated and regulated regularly to upgrade the working and preventing any mishap. Hence, the companies and the government should work hand in hand to combat this issue and eradicating it from the society.

[1] Calculation of Remuneration, available at https://accountlearning.blogspot.com/2011/10/calculation-of-liquidators-remuneration.html ( Visited on March 20, 2022 03.04pm)

[2] Sexual Harassment of Women at Workplace available at

http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html ( visited on March 20, 2022)

[3] What Constitutes Workplace Sexual Harassment? Available at

https://leadgrowdevelop.com/what-constitutes-workplace-sexual-harassment/#:~:text=%20The%20EEOC%20outlines%20two%20main%20categories%20of,job%20advances%20or%20opportunities%3F%20Do%20they…%20More%20 ( visited on March 20, 2022)

[4] The Vishaka Guidelines: A step against Sexual Harrasment available at https://blog.ipleaders.in/vishaka-guidelines/ ( visited on March 19, 2022)

[5] Vishaka v. State of Rajsthan, available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan ( visited on March 20, 2022)

[6] Sexual harassment and Vishakha guidelines: All you need to know available at https://www.firstpost.com/india/sexual-harassment-and-vishakha-guidelines-all-you-need-to-know-1241649.html ( visited on March 20, 2022)

[7] Vishaka v. State of Rajsthan available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=“Vishakha%20guidelines”%201%20Duty%20of%20the%20Employer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)

[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html  ( visited on March 20, 2022)

[9] Vishaka v. State of Rajsthan available at

https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=%E2%80%9CVishakha%20guidelines%E2%80%9D%201%20Duty%20of%20the%20Emplo yer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)

[10] Sexual harassment at workplace: Developments post Vishaka Judgement available at

https://www.gktoday.in/topic/sexual-harassment-at-workplace-developments-post-vishaka-judgement/ ( visited on March 20, 2022)

Author:KASHISH BANSAL, SYMBIOSIS LAW SCHOOL, NOIDA

Editor: Kanishka Vaish, Senior Editor, LexLife India

NEED FOR THE CRIMINALISATION OF MARITAL RAPES IN INDIA

Reading time : 5 minutes

Rape is a kind of sexual assault in which sexual intercourse or other forms of sexual penetration are performed on a person without their consent. The integral part is a lack of consent and the act may be carried out through abuse of authority, physical force, or against an individual who is unable to give assent, coercion, such as someone who is unconscious or is below the legal age of consent. Marital abuse is a form of domestic violence and sexual abuse. Marital rape which is also known as spousal rape, the undesired intercourse with one’s spouse without spouse’s consent. undesired intercourse refers to any type of penetration (whether anal, vaginal, or oral) that is done against her will or without her agreement.

Despite the fact that several nations have already criminalized marital rape, India is one of 36 countries where it is still not punishable. In a landmark case in the United Kingdom, R v. R[1], a husband contested his ‘conviction for attempted rape’ on the grounds that marriage conferred irreversible permission. His argument was rejected, and the court found him guilty because the exemption to marital rape is a “legal doctrine under common law.” The court decided that the connection between the parties is irrelevant for a person to be punished for rape. Only when the woman is under the age of 15 is forced sex in marriage considered a crime under Section 375 of the Indian Penal Code (IPC). As a result, marital rape is not a crime under the IPC. This is founded on the belief that after marriage, a woman has no right to decline sex with her husband. This grants men the right to be sexually dominating over their spouses. This is a clear violation of human rights norms, and gives husbands power to rape their wives.” The underlying cause for marital rape is the misconception associated with marriage itself. In India the grassroot level of understanding marriage is quite different in sense that it’s not the mere obligation which exits between the two spouses but it’s considered to be the union of the two individuals and one of the most sacred relationships. Moreover, this ideology pertinent to marriage lefts a woman with no choice rather to submit herself which she thinks is the obligation which one has to fulfill to become a dutiful wife. As per the Indian government’s latest National Family Health Survey [2], about 30% Indian women aged 18-49 reported having experienced spousal violence. As per the data in terms of sexual violence, the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else, according to the survey of 724,115 women.

Thus, in India, marital rape is not a crime and is solely included by the concept of domestic violence as specified by the Protection of Women from Domestic Violence Act, 2005. The Domestic Violence Act is a civil legislation that exclusively gives the woman civil remedies.

Kinds Marital Rape

Legal analysts have recognized three types of marital rape as often occurring in society[3].

Battering rapes: In battering rapes, women are subjected to both physical and sexual abuse in the relationship, and they are subjected to this violence in a variety of ways. Some are beaten during the sexual violence, or the rape may occur after a physically violent event in which the husband attempts to make amends and coerces his wife to have sex against her will. This category includes the vast majority of victims of marital rape.
Force-only rape: In force-only rape, men use just the amount of force required to persuade their wives; beating is not common in this kind of rape. Typically, the assaults occur after the partner has declined sexual intercourse.
Sadistic or obsessive rape: Other women have been subjected to what has been labelled as sadistic or obsessive rape; these assaults frequently entail torture and/or deviant sexual practices and thus are physically brutal.

Legal Position in India[4]

The IPC defines rape under sec. 375 as:

A man is considered to commit rape if, with the exceptions listed below, he has sexual intercourse with a woman under any of the six conditions listed below:

• Against her will.

• With or without her consent, when she is under sixteen years of age.

• Without her consent.

• With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

• With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

• With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Rape of a judicially separated wife was made a crime by Section 376-A of the IPC, 1860, which was introduced in 1983. It was based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972, and the Law Commission of India. Thus, non-consensual intercourse with a wife between the ages of 12 and 15 years. However, the punishment is either a fine or jail for a maximum of two years, or both, which is far less severe than the sentence for rape outside of marriage. Otherwise, unless they are living apart under a decree of separation, a man is not accountable for any sexual act that he violently conducts on his wife (excluding sodomy), despite the fact that the wife may be subjected to significant sexual humiliation.

Civil Law Aspect

Committing a Marital rape in India is not a crime but partially is protected under civil law. According to the Protection of Women from Domestic Violence Act, 2005, any act, omission, or commission or conduct by the respondent that causes physical abuse, sexual abuse, verbal abuse, or psychological abuse to the aggrieved person, or threatens to do so, constitutes domestic violence; this includes physical harm, sexual harm, mental harm, or economic harm. The law defines sexual abuse as any act of a sexual nature that humiliates, degrades, or otherwise violates the dignity of woman.

As a result, marital rape is an act that violates a woman’s dignity and humiliates and abuses her. Domestic violence includes sexual intercourse without the consent of the wife. hence it provides legal recourse to a wife for marital rape. It provides legal recourse to a wife for marital rape. As a result, this Act does nothing to deter violence itself, but only provides a way to remove themselves from a potentially dangerous situation.

Constitutional Law Aspect

In India, marital rape isn’t criminalized, but it violates Indian Constitutional Articles 14 and 21. In accordance with Article 14 of the Indian Constitution, no state shall deny equality before the law to anyone within its borders or deny equal protection of the law. In spite of the Constitution’s guarantee of equality for all, Indian criminal law discriminates against women who are raped by their own husbands. In the Indian Penal Code, section 375 has been interpreted as providing an exception for women over 15 years of age that violates article 14 of the Constitution.

The Supreme Court held in Budhan Choudhary v. State of Bihar [5] that any classification under Article 14 of the Indian Constitution must pass a reasonableness test that can only be passed if the classification is rationally related to the purpose of the act.

However, Exception 2 frustrates the purpose of Section 375. The purpose of this law is to protect women and punish those who rape them. This objective cannot be served by exempting husbands from punishment. Essentially, this Exception encourages husbands to forcefully enter into sexual relations with their wives, since they are aware that their acts won’t be penalized by the law. The Exception fails to satisfy the test of reasonableness because it does not have a rational connection with the underlying objective of the Act, and violates Article 14 of the Indian Constitution. A woman’s right to privacy and sanctity is violated by acts of sexual violence, apart from being a dehumanizing act. Supreme Court confirmed the right to privacy as a constitutional right in the case of K.S. Puttuswamy (Retd.) v. Union of India.[6] Unless there are contrary rulings stating that marital association adversely affects the individual’s right to privacy, the above rulings do not make distinctions between married and unmarried women. Thus, according to Article 21 of the Constitution, rape is an interdiction of fundamental rights, regardless of the fact that the victim was married to the perpetrator.

Legality of cryptocurrency

Reading time : 8 minutes

Abstract

The revolution in the digital field has been quite significant in the past decade with the introduction of the digitalization process in every field and the field of currency has been no exception. In the era where everything is going virtual, a form of currency that is virtual has come into existence famously known as cryptocurrency. In the past few years, the growth of cryptocurrency has been astonishing, not only public but also big corporations and even countries have shown their interest in this field. The new currency may be very revolutionary but with this comes a question about how safe it is and it has been seen in the past that cryptocurrencies such as bitcoin, Ethereum, and others have been particularly been used for illegal work and also been used in availing illegal services, as the blockchain technology makes it difficult or nearly impossible for investigative agencies to track it which has been exploited by the people and also using crypto as a source of exchange and currency poses as a threat for people as it is not issued by the government which makes it even more necessary to look into the legality of these currencies without any adverse effect on people who trade in it as without working on the legal framework of how cryptocurrency would work or be accepted legally it is always going to be a risky and non-trustworthy form of currency and people might get cheated because of how vulnerable they will be without any clear answer on the legality of these currencies

Introduction

The concept of cryptocurrency was first introduced to the world in the year 2009 with the introduction of bitcoin by a group of anonymous people or an individual by the name of Satoshi Nakamoto it indented to make this currency out of government in the year 2009 with the introduction of bitcoin by a group of anonymous people or an individual by the name of Satoshi Nakamoto it indented to make this currency out of government control and to make it convenient for people to make them exchange it across the countries without any problem.

Cryptography is used in this which makes it impossible for people to counterfeit the currency which is one of the biggest problems that is faced by people as they might end up having counterfeit currency. The use of cryptocurrencies has been more in demand because it had made online transaction very easy and hassle free, also no third party is involved which makes its trade possible without any additional fees. It has been using the blockchain technology for trading on various crypto exchanges. Crypto exchanges are not the only way to acquire these currencies but it can be obtained by using Mining technique too which makes it possible for people to obtain it by mining at their own homes on their mining rig with just the cost of electricity with so much hype around the cryptocurrencies in the past few years comes a question about its trustworthiness is always there as there is no agency that regulates and also it lacks any kind of redressal system which can make traders vulnerable to theft and other kinds of frauds. Looking at the current situation of crypto market and its high boom it can be noted that it is necessary to provide clarity on the legality of virtual currency and governments all around the world need to discuss the legality of crypto as a lot of money has been invested in virtual currency in past few years and without any legal framework it is not very safe for people to invest in it. Particularly in India in the past few years a lot of intermediaries have been seen which help people easily trade in cryptos like coin DCX, Wazir X and people have been really unaware of the legality of virtual currencies and government has a very unclear stand on cryptocurrencies. In the past many such instances have happened in which people were cheated but due to lack of legal framework a solution is still to be found

Legal History of cryptocurrency in India

After the introduction of cryptocurrencies in 2009, the concept of virtual currency was not acknowledged by the government of India or the Reserve Bank of India for 4 years, and for the first time in 2013 a comment by the Reserve Bank of India was made in a press release where it was told that Virtual currency as a mode of transaction or payment was not authorized by the central bank or any other monetary authority The entities in question are said to have secured no regulatory approvals, registrations, or authorizations in order to conduct such activities. In 2017 again the Reserve Bank of India further told and cautioned people about the legal, financial and operational threats that they might be exposing themselves to and further said that Reserve Bank of India has not provided any entity with a license to trade in cryptocurrency or any existing virtual currency and people who might be dealing in them are doing it at their at own risk

Till 2017 it can be said that the dealings in virtual currency was not advised by the government but it was still legal to deal in cryptocurrencies as till this point it was never mentioned that it is illegal to deal with cryptocurrencies by any authority, so it can be said that till 2017 dealing in crypto was legal in India and just the potential risks were addressed by the government and government did not put any barrier to trade in cryptos and never mentioned that it is illegal to trade in cryptos like bitcoin or any other virtual currency.

Further in 2017 it was stated by the Reserve Bank of India said that it reiterates the statement it made in 2013 and after in the wake of growing interest of people in the virtual currency market as the valuation of a lot of virtual currencies and a huge growth initial coin offerings to public

Even after this statement, it can be assumed that no such official barrier or restriction was put on the trading of the cryptocurrency only the threats it imposed were established and addressed by the government of India. In 2018 the finance minister of India said that India does not accept cryptocurrency as a legal tender and will make sure it eliminates all the wrong practices that happen through cryptocurrencies, people misinterpreted this statement and thought that that crypto currency is illegal in India but in reality, it only talked about controlling and eliminating the illegitimate activities that were being carried out nowhere it was mentioned that it is illegal to trade in cryptocurrency.

On 5th April 2018 a circular was released by the reserve bank of India where it acknowledges the rapid change in the payment industry as printing of metallic money was getting costly and it made central banks around the world talk on the topic of cryptocurrency as if it is a viable option but with this came a concern of consumer protection, and also it increased the chances of money laundering. Citing the security risk it poses RBI said that entities that are associated with RBI shall not entertain nor provide any services to any individual or entity that deals in cryptocurrencies or any virtual currency and for the entities who are already involved in providing services of this kind should exit this within a specified period of time. From this again it can be said that no comment on its legality has been made only caution has been stated till now although RBI put a restriction on banks and other institution to trade or deal in cryptocurrencies. On January of 2020 RBI said that it has not banned the trade of cryptocurrencies but only cautioned and banned entities like banks from dealing in cryptocurrencies.

Supreme court of India in march of 2020 in its judgement turned the ban on crypto by RBI and said banning it was unconstitutional which meant that supreme court had legalized the usage of cryptocurrencies and its dealings in India.

Legal risks associated with crypto

Since cryptocurrencies are regulated by a blockchain technology and cryptography it is not possible to track or trace the people who are doing transactions it keeps their identity anonymous which leads to a lot of illegal activities like purchase of drugs, weapons and other contrabands and since no one can trace the people who are using it to purchase such commodities, drug dealers have been using crypto as an exchange medium for selling drugs and a huge increase in buying of drugs such as fentanyl, cocaine etc. Has been seen in past few years in US and other countries.
Financial frauds and data theft gas been one of the biggest risks associated with cryptocurrencies it is estimated that over 14 billion dollars were stolen in cryptocurrencies in 2021 alone and since laws don’t address cryptocurrency and failure to have any redressal mechanism makes it impossible for people to do anything about it.

Since the world has gone virtual data theft has been one of the biggest problems even though cryptocurrencies claim to keep your data safe and keep anonymity but data pf over a million people including emails and their ledgers have been stolen which puts privacy of people and safety of their data in question

Money laundering has been a serious concern for the law enforcement agencies as in

2021 8.6 billion dollars were laundered which was also 30 percent more than in 2020 since it is difficult to track owners of the crypto it provides a blanket on the criminals who do these things

Current scenario in India

While presenting the budget for the financial year 2022-23 finance minister Nirmala Sitaraman said that any income that is made from trade of cryptocurrencies or exchange of any digital assets will be taxed at 30 percent. Further it was mentioned that consultation on what is legal in regards with crypto are underway. It was specified by finance secretary T.V Somnathan that it will never become a legal tender however, government of India and reserve bank has proposed and planned to launch its own digital currency by the year 2024 which will use the block chain technology and would also be a legal tender and regulated by the Reserve Bank of India and it will be considered as a legal tender and other virtual currency like Ethereum, bitcoin will not be considered legal tender however it was also said by Somnathan that people can by digital assets such as cryptocurrency but it would not be authorized or considered legal tender by government of India or RBI. In present times it is not illegal to trade in cryptocurrencies but at the same time it is also not a legal tender further he said that if people who are investing in these currencies

may face loss and government would not be responsible for such things as it is already stated that it is not authorized by the government and people investing in it might do it at their own risk.

Somnathan said that it is not illegal to trade in cryptocurrencies.

From 1st of April 2022, it is decided that a tax of 30 percent on trade of cryptocurrencies or on exchange of any digital assets it was mentioned that it is the sovereign right to charge tax on it also the finance secretary gave reasoning behind the imposition of 30 percent tax by saying that

there already was a tax of 30 percent on speculative transaction and crypto is considered as a speculative transaction hence 30 percent tax on trading of crypto is justified.

International scenario

Recently EL Salvador became one of the first country to declare cryptocurrency as legal tender and leaglised the use of cryptocurrency in all ways just like any normal currency besides dollar government of Salvador has introduced Chivo wallet which can convert crypto in dollars if a vendor doesn’t accept crypto payments. To increase the public use of cryptocurrency it is also planning to incentivize the people who use cryptocurrency as a payment method by giving them an incentive of equivalent to 30 dollars in their wallets
Switzerland has also shown a progressive stance towards adopting virtual currency and it

is legal to trade in crypto in Switzerland and also in some situations it is also accepted as mode of payment. Swiss consider cryptocurrencies to be assets and charges tax on it.in 2020 blockchain act was passed by Swiss parliament which defined the legalities of crypto exchanges in the country and the country provides license to operate crypto exchange in the country. Switzerland has made it clear that it would keep working in adapting regulations for cryptocurrencies while controlling the illegal use of cryptocurrency

United states do not consider cryptocurrencies to be a legal tender but at the same time trading in cryptocurrency is not illegal in USA even the crypto exchanges are legal in the country and they have to register with Financial Crimes Enforcement Network and it is under regulation of Bank Secrecy Act it is also taxed by the authorities and considered to be securities by US SEC and all securities laws are applied to the crypto wallets and the exchanges
China banned the use of cryptocurrencies in its region and also banned the crypto exchanges that had existed in the country in June 2021 China put a ban on domestic crypto mining and exchanges. Exchanges are illegal in the country and it is uncertain that in future if it will undo its ban on cryptocurrency

Australia declared that cryptocurrencies will be illegal in the country from 2017 onwards and specifically mentioned that bitcoins and other currencies with similar nature would be treated as a property under capital gains tax further it also legalized crypto exchanges which requires it to be registered with the concerned authorities

Japan is also one of the countries where trade in cryptocurrencies is considered to be legal and crypto exchanges are considered to be legal while virtual assets are counted as property it is considered as most progressive in terms with crypto regulations. The exchanges need to be registered with its financial services agencies and it is also taxed by the government of Japan

Conclusion

There is still a very long way to go in the field of virtual assets and currencies. It can be said that cryptocurrencies in India are currently operating in a legal grey area. While the government continues to discourage people to invest in such type of currencies by highlighting the risk it poses but also at the same time it is not illegal to invest in virtual currencies and no such ban has been issued by the government of India and any future regulation is awaited, currently it is taxed at 30 percent rate of interest which further explains that it is not illegal to trade in crypto at this moment. As the environment around the world is changing the Reserve Bank of India is planning to bring its own digital currency by 2023 which will be one step further in the field of digital currencies. It is expected by the government to look at the scenario all around the world and also bring laws to regulate the currency as it would keep the illegal activities that happen from these currencies also in check. In conclusion it is observed that cryptocurrencies are not illegal and it is not a crime to have or trade in it even the agencies have just cautioned the users by telling the risks and not done anything that criminalizes it. There is still a lot unclear in regards with future its legality until government clears its stand on this issue and make relevant laws for it or regulations for it, currently it is not illegal to invest in crypto is what can be said but at the same time it is not a legal tender

Literature review

1 https://www.livemint.com/news/india/is-cryptocurrency-legal-tender-in-india-what-we-know-so-far-10-points-11643806115501.html 2 Turpin, J. B. (2014). Bitcoin: The Economic Case for a Global, Virtual Currency Operating in an Unexplored Legal Framework. Indiana Journal of Global Legal Studies, 21(1), 335–368. https://doi.org/10.2979/indjglolegstu.21.1.335 3 https://freemanlaw.com/legal-issues-surrounding-cryptocurrency/

4 https://www.tookitaki.ai/news-views/moneylaundering-via-cryptocurrencies/ 5 https://complyadvantage.com/insights/cryptocurrency-

regulations-around-world/ 6 https://www.livemint.com/news/world/el-salvador-becomes-first-country-to-use-bitcoin-as-legal-tender- 11631144769412.html 8 https://coinsutra.com/future-of-bitcoin-cryptocurrency-india/ 9

https://www.investopedia.com/terms/c/cryptocurrency.asp

Author: Anand Priy Singh, NMIMS Hyderabad

Editor: Kanishka Vaish, Senior Editor, LexLife India

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INTRODUCTION:

DEFINITIONS AND MEANING:

What is data?

INTERNATIONAL PROVISIONS:

CONSTITUTIONAL PROVISIONS IN INDIA:

CRITICAL ANALYSIS: PERSONAL DATA PROTECTION BILL, 2019

COMPARATIVE STUDY:

WAY FORWARD:

CONCLUSION:

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Following are the nature of disputes that can be arbitrated: –

RECENT JUDGEMENTS ON ARBITRATION:

2. JUDICIAL SETTLEMENT/ LOK ADALAT

3. CONCILIATION

CASE LAWS

4.MEDIATION

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[2] Sexual Harassment of Women at Workplace available at

[3] What Constitutes Workplace Sexual Harassment? Available at

[4] The Vishaka Guidelines: A step against Sexual Harrasment available at https://blog.ipleaders.in/vishaka-guidelines/ ( visited on March 19, 2022)

[5] Vishaka v. State of Rajsthan, available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan ( visited on March 20, 2022)

[6] Sexual harassment and Vishakha guidelines: All you need to know available at https://www.firstpost.com/india/sexual-harassment-and-vishakha-guidelines-all-you-need-to-know-1241649.html ( visited on March 20, 2022)

[7] Vishaka v. State of Rajsthan available at https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/#:~:text=“Vishakha%20guidelines”%201%20Duty%20of%20the%20Employer%20or,2%20Definition%3A%203%20Preventive%20Steps%3A%20More%20items…%20 ( visited on March 20, 2022)

[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html&nbsp; ( visited on March 20, 2022)

[9] Vishaka v. State of Rajsthan available at

[10] Sexual harassment at workplace: Developments post Vishaka Judgement available at

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Introduction

Legal History of cryptocurrency in India

Legal risks associated with crypto

Current scenario in India

International scenario

Conclusion

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[8] Sexual Harassment of Women at Workplace available at http://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html ( visited on March 20, 2022)