Marital Rape: A Question of Sexual Autonomy of Married Women

Reading time : 6 minutes

INTRODUCTION

Marriage is organised in certain societies for procreation, according to an Oxford University report. In these cases, the parties may or may not consent to marriage; hence, if consent is not necessary for marriage, it is not required for intercourse. Furthermore, in cultures where the tradition of paying a bride price is popular, the payment is considered as granting the male the right to sexually control his wife. [1]

So, although traditionally, the home is considered a safe space for women from gendered violence, however, this belief is far from reality. The phrase “marital rape” refers to sexual intercourse between a married couple without the wife’s consent. It could have been obtained by use or threat of force, a fear of danger to her or another person she cares about, or any other harm inferred based on previous attacks, making a woman believe that if she resists, the force will be used against her or that the husband is entitled to the sexual intercourse because they are married. [2] The Declaration on Elimination of Violence against Women, 1993 (DEVW) states that nations should “Widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape”. [3]

Experts say the ramifications of marital rape can be severe, based on the victims’ experiences. Unlike other types of rape, victims are compelled to live with their attackers and are frequently financially reliant on them. Women who are raped by their husbands in nations with low percentages of female labor participation and education have no way out of the marriage and few legal or institutional options. Single women who have been raped in some countries are forced to marry their attackers as a method of rectifying the offence. [4] Males can also be victims of marital rape, although it is rarely publicized. According to one research, between 13 and 16 percent of men are assaulted by married or cohabiting partners at some point in their lives. [5]

Despite this, marital rape is a type of gendered violence that has avoided both criminal law and human rights recognition in about a third of the world’s countries. This legal opacity gives men who sexually abuse or rape their spouses or intimate partners legal immunity, legitimizing this kind of violence against women. This is a human rights issue that has to be addressed on both a legal and social level.[6]

HISTORY

Several explanations have been advanced regarding men’s historical criminal immunity for marital rape, most of which have their origins in British colonial laws and attitudes. First, the implied consent theory suggested that when women marry, they relinquish their right to refuse sexual intercourse with their husbands. A second approach, based on the oneness of the person, proposed that after marriage, a woman was subsumed into the person of her husband, rendering marital rape impossible. A third perspective portrayed wives as the property of their husbands, with property damage implying that the crime was perpetrated against the victim’s husband rather than the victim herself. As a result, a husband could not rape his wife since she was his property, implying that husbands had the right to rape their wives without consequence. Other arguments included the complexity of proving non-consensual sexual activity in a marital relationship, the alleged proclivity of women to make false claims about being raped to gain an advantage in divorce proceedings, the importance of maintaining the integrity of the institution of marriage, the argument that marital rape is less grave than other kinds of rape, and the argument that women have other legal avenues like domestic violence laws to leave a toxic marriage. [7]

With the recognition of the human rights of women and the emergence of the feminist movement in the nineteenth century, these beliefs began to be questioned. Suffragists such as Lucy Stone challenged the taboo of discussing sex in public by contending that a woman’s freedom to regulate marital intercourse was a necessary component of equality. The Soviet Union was the first country to make marital rape illegal (1922). By the 1960s and 1970s, most Western nations had made marital rape a criminal offence, either by removing legislative exclusions from the definition of rape or by expressly defining it as such. [8]

INTERNATIONAL LAW

Convention on the Elimination of Discrimination Against Women (CEDAW):

Women of all ages are susceptible to violence within familial relationships, which is reinforced by custom and social attitudes, including rape. The persisting, primarily male, notion that consent is not required after marriage fosters the occurrence of marital rape. Acts that cause bodily, emotional, or sexual injury to women are considered discrimination against women, according to CEDAW’s General Recommendation 19 (GR-19). “The right to the greatest quality achievable of bodily and mental health” is also included in GR-19’s definition of “human rights and basic freedoms.” The GR-19 goes on to say that the impact of abuse on women’s physical and mental integrity prevents them from exercising their human rights and basic freedoms equally. Additionally, this recommendation was altered by the General Recommendation 35 (GR-35), which stated that marital rape is rape based on a lack of free consent since there are usually coercive methods involved. The fact that GR-35 recognizes the ingredients of marital rape emphasizes the impact of its non-recognition on women’s basic liberties. [9]

India is required to adopt all relevant steps, including statutory provisions, to amend or abolish existing legislation, traditions, and systems that discriminate against women as a signatory under Article 2(f). To alter conventional ideas of consent, new law or revisions to IPC are both required and adequate. According to an examination of CEDAW’s regulations, India is in breach of international human rights standards forbidding gender inequality and rape. Since rape committed by the victim’s partner has been justified solely on the basis of her marital status, thus denying her the rights guaranteed to unmarried women, the deliberate exclusion of marital rape from the IPC fits within the CEDAW definition of being discriminatory.

Despite the fact that India has not ratified the Optional Protocol to CEDAW, which institutes a body to oversee State Parties’ compliance with the Convention. India has stopped the committee from taking any action against it by refusing to acknowledge it as an institution, even if activities that violate CEDAW occur within its authority. Although individuals cannot contact the committee with their problems, India still has a responsibility to defend and develop the human rights of women, regardless of their marital status. [10]

Since GR-35 generates liability for acts and omissions of state and non-state actors arising from violations of Article 2 of CEDAW, which mentions the undertaking of State Parties to undertake measures to end discrimination, India will have to face consequences for its state and non-state actors. In terms of state obligations, if a state fails to create or amend laws to ensure that they are not discriminatory against women, or if its organs or agents perform acts or omissions that are discriminatory against women, it must impose appropriate sanctions and compensate the harmed person. And if a state fails to do so, it will be considered a violation of human rights. [11]

Other International Human Rights instruments:

In addition to CEDAW, India’s failure to recognize marital rape as a crime breaches international human rights documents such as the International Covenant on Civil and Political Rights (ICCPR), Universal Declaration of Human Rights (UDHR), Beijing Declaration, and Declaration on the Elimination of Violence Against Women (DEVAW).

According to Article 26 of the ICCPR, domestic legislation must provide equal and effective protection against discrimination on any basis, including any other status of a person not previously stated in the provision, such as race or sex. Because India is a signatory to the Covenant, it is prohibited from violating any of the Covenant’s fundamental rights, as stated in Article 5. [12]

All human beings are free and equal in dignity and rights, according to Article 1 of the UDHR, and humans are entitled to a social and international framework in which the declaration’s rights and freedoms can be fully acknowledged, according to Article 28 of the UDHR. As a result, India is obligated to promote the right to bodily autonomy of married women since it is a signatory to the instrument. [13]

India’s laws are in violation of not just international human rights standards, but also ideals established during the Beijing World Conference on Women. To the extent that objections to CEDAW are minimized and the Optional Protocol is signed, the Beijing Declaration invites governments across the world to ensure universal ratification and full implementation of CEDAW. Countries were also asked to repeal discriminatory legislative elements, such as penal codes, as a matter of priority in this proclamation.[14]

The Declaration on the Elimination of Violence Against Women (DEVAW) talks about using the principle of due diligence in ensuring the elimination of violence against women in Article 4(c) and Article 4(d) says that states should adopt legal punishments in domestic legislation to penalize injustices faced by women. As a result, it is a widely accepted notion that violence against women should be addressed in whatever effective way possible, including through domestic legal change.[15]

POSITION OF INDIAN LAW

Section 375 of the Indian Penal Code defines rape as “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the seven following descriptions.” Thus, there are 7 situations where sexual intercourse would be considered rape under Indian law and 2 exceptions where it would not be considered rape. The second exception to the section states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.[16] This means that if a wife is above 15, sexual intercourse which would be considered rape otherwise, would not be considered rape simply due to her being married to her rapist.

Fundamental rights aspect:

  • Right to equality: Equality before the law and equal protection of the law are guaranteed under Article 14 of the constitution. Despite the fact that the country’s constitution allows for it, the country’s rape laws discriminate against married women. Women are protected against rape by the law, which divides them into two categories. The woman has the right to be protected under this statute only if she is unmarried, and she must be under the age of 15 if she is married. As a result, it seems to take away a married woman’s right to be free from her husband’s sexual exploitation. In Budhan Choudhary v. State of Bihar[17], the Supreme Court declared that “when a classification is formed under Article 14 of the Constitution, a test of reasonability is applied, which is passed only if there is a reasonable link between the classification and the goal it seeks to achieve.” [18]
  • Right to Privacy: Although the Indian Constitution makes no explicit mention of the right to privacy, the Supreme Court has recognized that a right to privacy as a fundamentally guaranteed right under the scope of Article 21 in a string of landmark judgments such as Neera Mathur v. LIC [19], Kharak Singh v. State of Uttar Pradesh [20], Govind v. State of Madhya Pradesh [21], and others. Article 21 of the Constitution guarantees the right to privacy, which includes the right to protection and sexual safety is harmed by any sort of forceful sex. It is argued that allowing marital exclusion to rapists compromises a married woman’s right to protection by forcing her into a sexual relationship that she does not desire. In addition to physical privacy, the right to decisional privacy, the right to personal autonomy, and the right not to be harassed are all part of the right to privacy. Any forced sexual cohabitation is a breach of all these rights. [22]
  • Right To Bodily Self-Determination: Similar to the right to privacy, this right does not find a particular mention in the constitution, however, it is considered a part of the ambit of article 21. This right gives every citizen of the country bodily autonomy as well as conscience, and an individual should be the only one who has a final word in issues regarding their body, sexual expression, and self-assurance. The law of the land takes away such a personal, intrinsic, and intimate decision-making right of married women by disregarding their consent and will. [23]
  • Right to live with dignity: Article 21 encompasses the right to live with human dignity and all that entails way more than the necessities of life since having the bare minimum needs met does not ensure a fulfilling life. The right to live with human dignity is one of the most basic components of the right to life since it determines a person’s quality of life. In a series of instances, the Supreme Court has ruled that rape violates the victim’s right to life and the right to live with dignity. The Chairman, Railway Board v. Chandrima Das is one such case, in which the Court stated that rape is not only a criminal offence but also a transgression against society as a whole. In this way, the marital exception concept infringes on a spouse’s right to a dignified life. Any law that compromises women’s right to dignity and empowers husbands to force their wives into sexual intercourse against their consent is unconstitutional. [24]

The Supreme Court of India has repeatedly concluded in several judgments in recent years that the law gives substantial rights to women, including the ability to resist unwelcome sexual approaches by men. The Supreme Court addressed the subject of marital rape in its historic decision in Independent Thought vs. Union of India & Anr.[25], in which the Court considered whether sexual intercourse between a man and his wife aged fifteen to eighteen constitutes rape or not. The supreme court noted in its decision that the marital rape exception provision establishes an unnecessary and artificial distinction between a married girl child and an unmarried girl child that has no logical relevance with the goal sought. The demarcation violates Article 14 of the Constitution’s right to equal protection, as well as the constitutional ideology and morals enshrined in Articles 15(3) and 21 of the Constitution, which deal with special protection for women and children, as well as the right to life and personal liberty, respectively. This contributes to the perpetuation of prejudices and biases against married women, such as the notion that marriage implies consent by default and that women lose their physical autonomy when they marry. [26]

RECENT EVENTS

As of now, women can approach the court under IPC section 498 a or Protection of Women from Domestic Violence Act, 2005. Additionally, the marital rape of an adult wife who is legally or informally separated from her husband is a crime punishable by two to seven years in jail. Other married women who are subjected to “sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of woman” by their husbands may seek financial compensation from their husbands, including allowances and child custody, under the Protection of Women from Domestic Violence Act. [27]

Currently, the Delhi High Court is hearing a PIL (RIT Foundation v Union of India)challenging the second exception of section 375. In 2015, the NGO RIT Foundation filed a PIL with the Delhi High Court, questioning the legitimacy of the “marriage exception.” The All-India Democratic Women’s Association (AIDWA) and three individual petitioners, filed petitions after the Supreme Court ruled in 2017 that the said exception does not apply if the wife is under the age of 18. The Central Government argued in an affidavit filed in 2016 that criminalizing “marital rape” would “destabilize the institution of marriage and become a weapon for harassing husbands.” In a fresh document submitted on January 20, 2022, the Center asserted that consultations on this “contentious subject” are now underway, particularly in light of the 2013 Justice JS Verma committee findings. [28] A two-judge bench comprising of Justices Rajiv Shakdher and C Harishankar is currently hearing the case.

The petitioner NGOs as well as the Men’s Welfare Trust, a “men’s rights” organization that opposes the petition, have presented their arguments. At the moment, the Center has requested that the Court give it more time to make its position explicit, claiming that it is “undertaking a comprehensive exercise” of holding consultations on criminal code revisions and that the Court should give time to complete the assessment. [29] 

The pertinent question is about how consent is viewed or described in a situation where there is “implied consent” and “expectation of conjugal sexual relationship”. There is also a difference between a right and a reasonable expectation of sexual intercourse. When a party assumes that they have the right to sex due to their reasonable expectation of the same, that’s when a problem arises. The court is also analyzing the argument of “inherent and irrevocable consent” due to marital relationships and the right to say no or sexual autonomy.

Another contention is whether the difference of rape within and outside a marital relationship qualifies as “intelligible differentia” under article 14. Petitioners contend that there is no reasonable justification to elevate the “marital relationship” and restrict a married woman’s ability to prosecute her husband if her rights were violated. On the other side, the government and men’s rights organizations say that the institution of marriage indeed accounts for a reasonable distinction and that demarcating sexual assault within a marriage as a serious crime of “rape” would harm society and marriage. Few other contentions regarding the collection of evidence, the possibility of false cases, impact of false cases, whether this would create a new offence or not, legal lacuna, the scope of judicial interference, logistical issues, and ethical issues are being discussed. [30]Bottom of Form

CONCLUSION

Although India has come a long way in terms of women’s rights, issues like marital rape always seem to tear apart the illusion of a ‘progressive’ India and reveal that misogyny, patriarchy, and sexism still have a stronghold on our society. The debate may on the surface be about marital rape but in reality, it makes us shed light on the condition of women under the institution of marriage and how law still hasn’t been able to alleviate the position of women within the family unit. If an institution will be destroyed by granting a person the right to say no to unwanted sexual intercourse, then the institution itself is rotten. However, seeing how this discourse is being picked up by the entire country on various platforms, there seems to be a glimmer of hope from the judiciary and citizens of India. 

REFERENCES

  1. The Indian Penal Code, 1960
  2. The Constitution of India
  3. Torres, M. & Yllo, Kersti. Marital Rape: Consent, Marriage and Social Change in Global Perspective. (2016). https://www.researchgate.net/publication/329399602_Marital_Rape_Consent_Marriage_and_Social_Change_in_Global_Perspective
  4. Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020. https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/
  5. OHCHR. Declaration on the Elimination of Violence against Women. (OHCHR, Geneva,1993). https://www.ohchr.org/en/professionalinterest/pages/violenceagainstwomen.aspx
  6. Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/
  7. Tjaden, P., & Thoennes, N. Prevalence and consequences of male-to-female and female-to-male intimate partner violence as measured by the National Violence Against Women Survey. Violence Against Women. 6(2), 142–161. (2000). https://doi.org/10.1177/10778010022181769
  8. Melanie Randall & Vasanthi Venkatesh. “Right to No: Crime of Marital Rape, Women’s Human Rights, and International Law”.  Volume 41, Issue 1, Article 3. Brooklyn Journal of International Law (2015). https://www.researchgate.net/publication/299595006_The_Right_to_No_The_Crime_of_Marital_Rape_Women’s_Human_Rights_and_International_Law/link/570178c908ae650a64f8c304/download
  9. Prof. Jennifer Koshan. “The Legal Treatment of Marital Rape and Women’s Equality: An Analysis of The Canadian Experience”. The Equality Effect. (September, 2010). http://theequalityeffect.org/pdfs/maritalrapecanadexperience.pdf
  10. OHCHR. Convention on the Elimination of All Forms of Discrimination against Women. (OHCHR, New York, 1979). https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx
  11. Vaibhavi Patel. “Marital Rape in India: An International Human Rights Law Violation”. Berkeley Journal of International Law. (January 11, 2021). https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation
  12. OHCHR. International Covenant on Civil and Political Rights. (OHCHR, Geneva, March, 1976). https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  13. United Nations. Universal Declaration of Human Rights. (UN, New York, December 1948). https://www.un.org/en/about-us/universal-declaration-of-human-rights
  14. United Nations. Fourth World Conference on Women. Beijing Declaration. (UN, Beijing, September, 1995). https://www.un.org/womenwatch/daw/beijing/platform/declar.htm
  15. Legal Services India. http://www.legalservicesindia.com/article/2369/Marital-Rape.html (last visited on 18th February, 2022)
  16. Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

[1] Torres, M. & Yllo, Kersti. Marital Rape: Consent, Marriage and Social Change in Global Perspective. (2016). https://www.researchgate.net/publication/329399602_Marital_Rape_Consent_Marriage_and_Social_Change_in_Global_Perspective

[2] Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020. https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/

[3] OHCHR. Declaration on the Elimination of Violence against Women. (OHCHR, Geneva,1993). https://www.ohchr.org/en/professionalinterest/pages/violenceagainstwomen.aspx

[4] Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/

[5] Tjaden, P., & Thoennes, N. Prevalence and consequences of male-to-female and female-to-male intimate partner violence as measured by the National Violence Against Women Survey. Violence Against Women. 6(2), 142–161. (2000). https://doi.org/10.1177/10778010022181769

[6]  Melanie Randall & Vasanthi Venkatesh. “Right to No: Crime of Marital Rape, Women’s Human Rights, and International Law”.  Volume 41, Issue 1, Article 3. Brooklyn Journal of International Law (2015). https://www.researchgate.net/publication/299595006_The_Right_to_No_The_Crime_of_Marital_Rape_Women’s_Human_Rights_and_International_Law/link/570178c908ae650a64f8c304/download

[7] Prof. Jennifer Koshan. “The Legal Treatment of Marital Rape and Women’s Equality: An Analysis of The Canadian Experience”. The Equality Effect. (September 2010). http://theequalityeffect.org/pdfs/maritalrapecanadexperience.pdf

[8]  Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/

[9] OHCHR. Convention on the Elimination of All Forms of Discrimination against Women. (OHCHR, New York, 1979). https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

[10] OHCHR. Convention on the Elimination of All Forms of Discrimination against Women. (OHCHR, New York, 1979). https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

[11] Vaibhavi Patel. “Marital Rape in India: An International Human Rights Law Violation”. Berkeley Journal of International Law. (January 11, 2021). https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation

[12]OHCHR. International Covenant on Civil and Political Rights. (OHCHR, Geneva, March 1976). https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[13] United Nations. Universal Declaration of Human Rights. (UN, New York, December 1948). https://www.un.org/en/about-us/universal-declaration-of-human-rights

[14] United Nations. Fourth World Conference on Women. Beijing Declaration. (UN, Beijing, September 1995). https://www.un.org/womenwatch/daw/beijing/platform/declar.htm

[15] Vaibhavi Patel. “Marital Rape in India: An International Human Rights Law Violation”. Berkeley Journal of International Law. (January 11, 2021). https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation

[16] The Indian Penal Code, 1960, s. 375

[17] 1955 AIR 191

[18] Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020.https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/

[19] 1992 AIR 392

[20] 1955 AIR 191

[21] 1975 AIR 1378

[22] Legal Services India. http://www.legalservicesindia.com/article/2369/Marital-Rape.html (last visited on 18th February, 2022)

[23] Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020.https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/

[24] Legal Services India. http://www.legalservicesindia.com/article/2369/Marital-Rape.html (last visited on 18th February, 2022)

[25] AIR 2017 SC 4904

[26] Abhinav Mehrotra and Konina Mandal. “Marital rape: finding the right to say no”. The Leaflet. (July 22, 2021). https://www.theleaflet.in/marital-rape-finding-the-right-to-say-no/

[27] Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/

[28] Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

[29] Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

[30] Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

Author: SONALI AHUJA, IPU

Editor: Kanishka VaishSenior Editor, LexLife India

RISING DEMAND FOR LEGAL TECH START-UPS

Reading time : 6 minutes

INTRODUCTION

A startup is usually a company such a small business, a partnership or an organization designed to rapidly develop scalable business model. Often startup companies deploy technologies, such as internet e-commerce, computers,  telecommunications or robotics.

These startups always have a purpose to bring technologies products or services to market some of the biggest and best known companies on the planet today, including Google, Apple and Facebook, are examples of companies that were once tech startups. Technology in legal field has given the rise to legal tech startups and these startups are those companies which use technology and software as their method to provide all legal related work through their online platform. Legal tech is quickly moving from the traditional sector to becoming a significant sector in the mainstream legal industry. The technology is the significant reason for the formation of legal tech startup in India.

LEGAL TECH CONCEPT

Legal tech basically stands for “LEGAL TECHNOLOGY “, refers to the use of technology and software to provide legal services and support the legal industries. Legal tech presents an opportunity for the legal profession to try and improve their overall efficiency and to adapt to a more agile working environment and in doing so reduce costs and increase access to justice. The further motive of these legal startups is to replace the traditional ways of procedural work which was followed by lawyers & other legal professionals with the budding tech driven things as the result of modern technology it has benefitted the common public and lawyers to do their job more accurately and efficiently.

LEGAL TECH IN INDIA

India’s first legal firm is prarambh (Announced by Cyrillic Amarchand mangaldas) in 2019 known as first step to boost legal innovation in India. This initiative was started mainly to help young students to get effective solutions to help them prosper in their legal careers. It also helped legal technology companies growth in Indian legal market.

India’s legal technology industry has been gaining momentum.  As various Indian legal technology companies have been flourishing in not just India but also in other countries Abroad.  It shows growth of legal tech in India especially considering that the world is amidst the COVID pandemic.

LEADING LEGAL TECH STARTUPS IN INDIA

In India, the legal system is now getting taken over by various technological advancements. There are some of the leading Indian legal-tech startups that have taken the Indian legal market by storms.

  1. BLOG IPLEADERS:- This is one of the leading legal tech startups in India from delivering upto date legal content to offering various courses, this startup is booming. They also provide online diploma , have  many online legal programs. A lawyer or a law student can start their internship with BLOG IPLEADERS they have a good record for all the students about legal tech startups and how to work as a technology lawyer.
  • PRESOLV360:- This is a Mumbai based tech start-up, enabled platform specializing in online dispute resolutions. This legal tech startup settlement system in India by creating a prompt, technology backed mechanism that allows people to effectively manage and resolve their disputes online in a viable, economical and effective way.
  • LEGAL KART:- Legal kart tech start-up is also one of the leading legal tech start-up in India providing many opportunities to the technology lawyers with various legal internships and legal support.
  • VOLODY:-  Volody is on cloud enterprise software product company having contract Lifecycle management. It provides great opportunities to all the tech lawyers to work with them. Users can draft negotiate, approach, and attest to their different legal agreements under one roof.
  • MIKE LEGAL:- This is a trade mark management legal tech startup in India that automates intellectual property management of owners. It comes with the following legal tech tools:-

   . MIKE TM SEARCH is related to a exhausted trademark search which is to be done by technology lawyers in fraction of time.

 . TM WATCH stands for trademark watch services which means startup’s  trademark is protected from unauthorized user.

. MIKE TM MANAGER has to manageintellectualproperty portfolio deadlines. In such case the manager will work as legal assistant.

  . MIKE LIIGATOR is an AI powered case law tool, which helps lawyers to conduct a case research easily.

  • LEGAL MIND:- Legal mind is another legal tech startup in India in the legal research, legal AI, and predictive analytics segment. The tool comes with an Analytics feature that allows users to forecast the decisions and actions of parties and judges.
  • QUANT LEGAL TECH:- Quant legal tech startup in India that offers enterprises and law firms solutions to optimize their compliance contract and due diligence activities.

LEGAL TECH CAREER OPPORTUNITIES

Legal tech is a vital field because technology is an important part of this modern world as technology is changing the world today. Largest companies in the world today are tech companies.  Naturally,  opportunity for lawyers and other professionals are drastically increasing in this sector.

Tech companies offering better package, perks and  work environment. Many of the exciting startups are technological advancement. Every known industry like Media and Press, telecom, FMCG (fast moving consumer goods), food, retail,

 farming, defense, education and anything else can image is being or is about to be distributed by technology companies. In this time when everything is going digital, there are innumerable laws regulations that govern from operations, contracts and transactions. Companies are increasingly in desperate need of professionals who understand these laws and regulations, and even the government policies behind them, so that they can protect their significant business interests extract maximum advantage in the market place.

LEGAL TECH START-UPS SUPPORTING DIFFERENT GROUPS

LAW STUDENT:- Now all the law students across the world getting various legal courses online to improve their efficiency to work better as legal officer. They have a lot of choices to work in any legal tech startup in which they want.

PROFESSORS:- Professors can also join various training courses according to their requirements which will help them into legal researches. It will helped them to improve their teaching skills and they can get updates on legal points.

ADVOCATES As advocates have to spent a lot of time in database research for their cases but this could be more easier with these legal tech opportunities.

CORPORATES:- It is obvious that CORPORATES are most benefiting from legal tech startups out of these because they required a lot complex data management and AI (artificial intelligence) to manage huge amounts of data so it is reducing their burden.

JUDGES:- Technology law is also benefiting judges because the court records can be stored on their servers and there is no risk of loss of files/data. And it is also simple to update any data with tech law.

THIS IS HOW THESE GROUPS ARE BENEFITING FROM LEGAL TECH STARTUPS.

DEMAND OF LEGAL TECH STARTUPS DURING THIS PANDEMIC

Pandemic is another reason for a surge in the demand for legal tech services as this Pandemic confined people to their home, because the unprecedented outbreak of coronavirus has affected the economy globally. As social distancing was the only way to curb the spread of the disease in the society. Most people seeking online solutions to their physical problems. People under the influence of legal distress were looking for instant legal consultation. These legal distress property disputes, disputes related to divorce and financial issues, etc.

Such legal startups are also challenging the notion that like legal advice come heavy price tag. The Pandemic has transformed the way of law professionals & attorneys work. It has transformed the law businesses.  Technology has not just remained to the top legal firms but also small legal firms and interestingly legal tech startups have also invested in the same. Pandemic has played major role and has provided a significant opportunity to legal industry to improve and move towards digital transformation and the industry has rationalized itself for better.

WHAT SHOULD LEARN TO BECOME AN OUTSTANDING TECHNOLOGY LAWYER

  1. TECHNOLOGY CONTRACT DRAFTING AND NEGOTIATION is a very basic skill that all lawyers, no matter in which area they eventually specialize, will be expected to have. Apart from drafting contract negotiation is also considered to be a very important and valuable legal skill.
  • MANAGING THE IP PORTFOLIO Intellectual property portfolio management oversees a collection of IP right in order to better protect them.

IP PORTFOLIO is included of:-

  • Copyright for marketing materials Copyright can be guaranteed for intellectual property while filling a copyright tech lawyers specify legal right of the owner of intellectual property. This means that the original creators of products and anyone they give authorization to are the only ones with the exclusive right to reproduce the work.
  • Trademark for the business name and logo all the startups have registered their trademark for the business and logo it gives a complete rights to the owner to claim triple amount of money with the fees of a lawyer from an integer. A trademark which is not registered can not be infringed.
  • Patent protection for a product, especially when business markets a single, main product patent is a kind intellectual property there are three types of patent Utility, Design and Plant.
  • RISK ASSESSMENT AND MANAGEMENT is the macro level process of assessing, analyzing, prioritizing and making a strategy to mitigate threats to an organization’s assets and earning. The help to create awareness of hazards and risk.
  • KNOWLEDGE OF EARNING TECHNOLOGIES among various technological developments, emerging technologies such as artificial intelligence (AI), Cyber security, Block chain, Internet of things (IOT) are impacting businesses and citizens across the globe.
  • POLICY MAKING AND IMPLEMENTATION are both central parts of the strategic planning process. Whereas policy formulation stands at the top and  build up the framework, implementation is a direct consequence of the decisions so to speak of the output of policy formulation.
  • DATA PRIVACY AND PROTECTION a single company may possess the personal information of millions of customers ‘ data that if needs to keep private so that customers identifies stay so safe and protected as possible, and the company’s reputation remains untarnished.
  • DISPUTE RESOLUTION generally refers to several different processes used to resolve disputes between parties, including negotiation, mediation, arbitration, collaborative law, and litigation.
  • LEGAL RESEARCH istheprocessofidentifyingandretrievinginformationnecessarytosupportlegal decision making. It involves tasks such as: finding primary sources of law, or primary authority, in a given jurisdiction (cases, statutes, regulations, etc).
  • E SIGNATURE AND VERIFICATION is an online electronic signature service this current scheme of in-person physical presence, paper document based identity & address verification and issuance of hardware cryptographic tokens does not scale to a billion people.

TRANSPARENCY IN LEGAL FIELD WITH TECHNOLOGY

The word TRANSPARENCY refers to clarity of the things which has done. In today’s world where technology is playing a great role in all the fields including legal field and helping to increase transparency in legal field. This is really true that lawyers sometimes want to charge more to their clients buy all the works done by them is online and trustworthy the online legal tech work has also given an opportunity to the people to choose lawyers & legal workers according to their choice. They can get legal advice easily at anytime without visiting court rooms physically because with technology these all the requirements are being fulfilled faster in the virtual mode including drafting, consulting, billing, document management and etc. Now it is not a burden to keep all the records together and safe it shows reduction into risks or burden of papers.

This is how technology helping legal tech field to develop a better transparency.

CONCLUSION

As above have mentioned the increasing trends of technology work process, and increasing demands of technology lawyer’s work by all the legal tech startups is just going beyond traditional law practice. These startups also exercising the goal to expand the quality services and to provide legal support to people. If a lawyer wants to work with these startups then a lawyer needs to be well-known about the technology and use of technology. These startups increasing their  strength day by day with increasing technology.

Author: SHALINI AFROJ, DES NAVALMAL FIRODIYA LAW COLLEGE, PUNE

Editor: Kanishka VaishSenior Editor, LexLife India


Mediation bill

Reading time : 8 minutes

Introduction

According to National Judicial Data Grid (NJDG) over 30 million (3 crore) cases are pending in the courts of India. This highlights the fact that litigation in India is long, and a strenuous process and the aggrieved parties wait for a long time to receive justice. To facilitate people better in the legal process the government is bringing mediation as an Alternative Dispute Redressal (ADR). Introduced in December 2021, the mediation bill seeks to promote and facilitate mediation for resolution of disputes between the aggrieved parties in less time.

What is Mediation?

Mediation is an Alternative Dispute Resolution (ADR) method in which the aggrieved parties settle disputes without having to go the courts for justice. It is a structured, voluntary and interactive negotiation process where a neutral third-party uses specialised communication and negotiation techniques to help the two parties get their previously stated objectives. The mediator also helps by offering creative solutions and assisting in final draft settlement. If a resolution is reached a mediation agreement is formed. The agreement may be written or oral. The legal binding of the agreement depends on the jurisdiction of the area.

The mediation process is generally considered more fast, inexpensive and procedurally simple than formal litigation.

History of Mediation in India

The concept of mediation as an Alternative Dispute Resolution (ADR) is deep rooted withing our country’s history. The traces of mediation can be found from centuries before the British took over India. Back then informal panchayats were used to settle disputes between the aggrieved parties. Usually, the maharaja or the elder of the village were the head of the panchayats and executed the orders. Till date this, in some tribes of India, disputes are settrled through an informal panchayat which is headed by Panchas or Pancha Parmeshwars, as a neutral third party.

Mediation first came to legally recognised as a legal Alternative Dispute Resolution (ADR) in 1947 through the Industrial dispute act. Mediation gained popularity when the Legal Service Authority Act gave statutory status to Lok Adalat, in 1987. Giving statutory status to Lok Adalat encouraged people to try different approach for legal remedy, other than litigation. Mediation became the more chosen Alternative Dispute Resolution (ADR) than any other for of ARDs available.

The recognition of mediation as an ADR can also be attributed to the 1999 amendment of Civil Procedure Code (CPC). section 89 of the Civil Procedure Code (CPC), 1908, which was amended in the CPC, 1999, allowed courts to refer to ARDs to settle pending disputes.

Moreover, CIVIL PROCEDURE ALTERNATIVE DISPUTE RESOLUTION AND MEDIATION RULES, 2003 laid down the rules for settling disputes through ARDs. Rule 5(f)(III) made mediation mandatory through the Civil procedure-mediation law, 2003. This allowed courts to refer cases for mediation, if there was an element of settlement, even if the parties were not on- board, for mediation.

The 2003 amendment of the CPC regarding the Alternative Dispute Redressal (ADR) was challenged by a group of lawyers. Following this incident, The Malimath committee and the 129th law reform talked about the conditions of the formal litigation system and suggested the use of Alternative Dispute Redressal (ADR) to lessen the burden on courts and for fast and inexpensive legal relief.

Since then, there have been several contributions by The Supreme Court judges to encourage people to use mediation to seek legal remedies. In 2005, a Permanent Mediation Centre was inaugurated at the Tis Hazari court complex and judicial mediation was started at the Karkardooma court complex. Two mediation centres were also inaugurated, one at the Karkardooma court complex in Delhi and another at the Patiala court in 2015.

Salient features of the mediation bill, 2021

  • Section 2 of the Mediation bill defines ‘Domestic Mediation’ as
    • All the parties habitually reside or have business or are incorporated in India
    • The Mediation Settlement Agreement provides that the Mediation act, 2021 would be applied to the mediation
  • Section 3(c) of the bill defines international mediation as
  • An individual who resides in any country, besides India
  • The government of a foreign country
  • An association or body of individuals whose place of business is outside India
  • Body corporate including limited liability partnership of any nature, with its place of business outside India
  • Section 6 of the bill proposes that the parties of a civil or commercial dispute must try to settle the dispute through pre-litigation mediation before approaching the courts.
  • The courts and tribunals are given additional powers to refer parties to a meditator and grant interim relief.
  • Potential mediatory will have to disclose any conflict of interest that they may have with any of the parties. Furthermore, the parties are allowed to terminate any mediator of their position if they have given a false information on conflict of interest
  • Section 29(2) of the bill allows the aggrieved party to approach the court or a tribunal in the event of a fraud, corruption, and impersonation
  • The bill proposes establishment of a Mediation Council of India to promote rules and regulations of domestic and international mediation. The members of the council can be retired judges of high court or supreme court and eminent persons and academicians in the field of mediation, and key government officials.
  • Section 23(1)(iii) of the bill makes mediation an effective tool of privacy as the documents produced during the mediation will not be admissible in the courts or tribunals
  • Chapter 10 of the Bill recognises community mediation as a resolution mechanism for community-related disputes that are likely to affect the peace and harmony among families or people of any area or locality. A three-mediator panel can be constituted and notified by the concerned authority, which can include persons of high integrity and standing in the community or representatives of welfare associations.
  • The bill also proposes to amend certain key legislations, including the Indian contract act, to streamline the implementation of mediation.
  • Chapter 7 of the bill regulates online mediation, which include pre-litigation mediation conducted via a computer/cell phone network. All the mediations that take place online will be governed by the provisions of the Information Technology Act, 2000 (IT act, 2000)
  • Section 44 of the bill aims to settle disputes which may affect peace and harmony of a family or a community, through community mediation.
  • Section 20 of the bill stipulates a time period of 90 day for the completion of the mediation between the aggrieved parties, from the start. Addition time period of 90 day may be granted with the consent of all the parties.
  • Section 21 of the bill defines ‘Mediation Settlement Agreement’. It means an agreement or interim agreement between either all the parties or some of the parties that solves either all the disputes or at least, some of it existing disputes, which is authenticated by the mediator
  • Part I and Part III of the bill has incorporated provisions for both domestic and international mediations respectively. Moreover, section 28 and section 50 of the bill have recognised a Mediation Settlement Agreement for both domestic and international mediation, as final binding between the aggrieved parties i.e. The dispute between the aggrieved parties would be considered finished after the Mediation Settlement Agreement has been singed by all the parties and has been authenticated by the mediator.
  • The Draft Bill provides that a Mediated Settlement Agreement can be enforced in accordance with the provisions of the Code of Civil Procedure, 1908. For an international Mediation Settlement Agreement, as per Section 51 of the Draft Bill, the parties applying for enforcement shall approach the respective High Court with the Settlement Agreement or an attested copy of the same along with any other evidence that may be required to prove that the Settlement Agreement is covered under the Singapore Convention.
  • Section 29(2) of the bill lays down 4 grounds to challenge domestic Mediated Settlement Agreement
    • Fraud
    • Corruption
    • Gross Impropriety
    • Impersonation
  • Section 52(2) of the bill lays down the grounds for challenging an internationally Mediated Settlement Agreement
    • It is in violation of public policy of India
    • The subject matter of the dispute is not capable of being handled under the Mediation law of India
    • The Mediation Settlement Agreement was inducted by fraud or corruption

Need for the Mediation Bill

Mediation bill would help the India judicial system in more than one way. The government has been looking for a way to strengthen Alternative Dispute Resolution (ADR) that would help in resolving the disputes in an expedited manner and to take away some burden of the overworked courts of the Indian judiciary. Mediation is already a part of some of the India law such as the Industrial dispute act, the consumer protection act and such, all have different rules and regulations regarding mediation. Thus, it was necessary to ascertain the present statutory framework on mediation. Moreover, India is already a signatory of the Singapore convention (The Singapore Convention ultimately aims to facilitate international trade by rendering mediation an efficient and entrusted method for resolving disputes, alongside arbitration and litigation) So, it is expected from India to enact a law regarding mediation to keep up with the standards of mediation at an international level.

Advantage of the Mediation bill

  • Mediation is a faster process than the traditional litigation. Mediation use a neutral third party that settles the disputes between the aggrieved parties through negotiations and settlements.
  • Mediation finds legitimacy in specific laws like consumer protection law, civil procedure code etc. However, mediation has been proven helpful in these fields, over the years, the government has realised the need for mediation to have standalone law in the book of the Indian constitution.
  • Pre-litigation provided in the bill is a remarkable feature as parties can settle the disputes without having the need to go to the courts. And the parties can decide about the continuation of the mediation anytime.
  • The present backlog of cases in Chennai stands at 1,64,912, as per the National Judicial Data Grid (NJDG). Reports also show that mediation has reduced the pendency of the cases, significantly. From April 2005 to July 2021 more than 25% of the case total cases, that were send for mediation, have been settled.
  • The bill also provides relief to parties of commercial mediation settlements arrived through international mediation as they can be enforced in India since, India is also a part of the Singapore convention now.

Disadvantages of the Mediation bill

While the Mediation bill is certainly a step forward in the right direction in terms of recognising mediation as a viable option for alternative dispute remedy, there surely are some loopholes/ disadvantages that still need to be addressed.

  • The bill does not talk about the minimum required criteria for one to become a mediator.
  • Mandatory per-litigation mediation might disturb the essence of mediation if the parties are not willing to mediate at all.
  • The Draft Bill provides that a domestic mediated settlement agreement may be challenged on the ground of ‘gross impropriety’, without defining the term properly.
  • The penalties of non-compliance of a Mediated Settlement Agreement have not been mentioned under the Draft Bill.
  • The requirement in Section 18 of the Draft Bill that the mediator shall communicate ‘the view of each party to the other to the extent agreed to by them’ could give rise to possible conflict of interest, besides striking at the root of the requirement of confidentiality of the mediation process.
  • The draft does not mention the provisions that would govern the international mediation that takes place in India but relates to non-commercial disputes that have arisen under a foreign law, such mediation not being covered by either Part I or Part III of the bill.
  • Community mediation, which is mentioned in the bill, might not be a geat idea as the parties might become a victim of caste and gender discrimination by the village panchayats.
  • The Bill has failed to recognize the layers attached to confidentiality in mediation and has thereby omitted to include some of the important points mentioned (points related to confidentiality) under the Civil Procedure Mediation Rules.

Conclusion

Until now, the government had made minimal attempts in strengthening the Alternative Dispute Resolution (ADRs). By making a standalone law on mediation, the government is finally recognising the effectiveness of mediation is resolving a dispute.

According to the National Judicial Data Grid (NJDG) more than 4 crore cases (civil and criminal) are pending in the Indian courts. Out of which about 77% of the cases are more than a year old. The backlog of cases in the courts are slowly damaging the integrity of our judicial system.

 By giving mediation a standalone law, the government is encouraging people to try to settle their disputes outside of the courts and to only seek help of the courts when no resolution can be made between the aggrieved parties. This will greatly benefit the courts in reducing the backlogging of the court cases and will help the courts function much more efficiently and quickly.

The bill, at large, is a step in the right direction. However, there are some aspects of the bill that need more clarity and some provision that need to be added in the bill to make is more viable to people. The government also needs to clarify on which entities will be recognized by the Council as mediation service providers. The bill will help sever people better after some minor adjustments and will surely help is delivering justice in an efficient manner.

Author: Shashank Roy, NMIMS SOL, Bangalore

Editor: Kanishka VaishSenior Editor, LexLife India

DOMESTIC VIOLENCE

Reading time : 8 minutes

INTRODUCTION:

The major concern of domestic violence is arguably one of the largest fitness and development troubles in our country. Understanding the definition of domestic violence will assist us to take extra powerful moves in opposition to many symptoms of abuse. In a few cases, the offender won’t also be conscious that he’s committing domestic violence to the opposite person. Victims, on the other hand, won’t take motion in opposition to the abuser if they’re unaware that the conduct they’re experiencing is home/domestic violence.[1]

 It is likewise essential that the victim’s friends, family and circle of relatives can assist higher once they recognize what home violence seems like. Domestic violence has existed in our society for a very long time, but the lack of proper codified laws never supported the voices of the victims of domestic violence. Therefore, human beings need to recognize the definition of home violence and the numerous bureaucracies it could take. The definition of domestic violence acknowledges that every person may be a victim, no matter socio-financial background, schooling level, race, age, sexual orientation, religion, or gender. Regardless of women or men , every individual faces domestic violence; the only difference is that some of the victims of this abuse come forward to speak and some suffer silently. Domestic violence changed as soon as it was known as violence in opposition to girls.

CAUSES OF DOMESTIC VIOLENCE:

There could be several causes for the occurrence of Domestic violence. Domestic violence in opposition to girls is a result of one or extra of the subsequent motives:

  1. Dowry
  2. Unable to have youngsters
  3. Unable to provide beginning to male youngsters
  4. Behavioural troubles
  5. Patriarch Long-time period society.

Domestic violence is defined as a pattern of coercive and assaultive behaviour which includes physical, sexual, verbal and psychological attacks that an adult-use against their intimate partners. Domestic violence is a universal violent social statement. It includes actual abuse or the threat of abuse which could be even emotional, physical or economic. When we are still a minor, we have been provided with this stereotype that if we are a girl, we have to return home within the provided time and if we are a boy, we have no such meaningless restrictions. Many stereotypes still exist in Indian families, and somehow no matter how modern India becomes in terms of establishing big multinational companies, the concept and the practice of domestic violence still exists in the societies of our country.

It is the utmost requirement to provide proper counselling to break these stereotypes and impart girl child and women with education, enlighten them about self-defence combats and provide them with the knowledge that there are laws to provide them relief, protect them from such harm. An unmarried daughter is better than an unhappy married daughter. Just the way we say that corruption starts from home, similarly these stereotypes begin from none other than our homes themselves.[2]

Dowry is one of the major motives for not unusual place home violence. The Dowry Prohibition Act changed into delivered in 1961. However, because the variety of dowry deaths increased, the regulation has become a paper-Mache tiger. Second, girls can’t supply beginning offspring. Since historical times, the closing pious motive of a lady’s lifestyle has been to create a brand new lifestyle, reproduction. These infertile girls are refrained from through society and are regularly known as cursed. Social strain is increasing, mainly due to mental and emotional abuse. However, in a few cases, the motive of violence may be very unreasonable. B. A male toddler can’t be a father. Indian guys’ obsession with youngsters continues to this day. This is clear from the variety of lady fetuses and lady infanticides. Further, there are troubles with a husband or in-regulation conduct which include short-temper and alcoholism. Finally, and possibly the maximum essential factor is the patriarchal society. The concept of fellows being advanced to girls has existed from time immemorial. This is what we’re nonetheless combating today.            Women had been regularly dealt with as a way of pride for guys and now no longer as people with dignity. The patriarchy is so deep-rooted that regardless of crossing 70 years of Independence, we nonetheless haven`t been capable of satisfying the primary essential rights of girls.

CATEGORIES OF DOMESTIC VIOLENCE:

Domestic Violence exists in several forms. Sometimes there could be possibilities of mental and sometimes the scenario could be of physical abuse. Somehow research was made on the term ‘domestic violence and types of violence were categorised with the impacts of domestic violence on the victim. As obvious from the definition, Domestic violence can take any individual of the subsequent bureaucracy:

  1. Physical abuse: Acts which, with the resource of the usage of its nature, purpose bodily injuries or impairs the health or development of a person portions to physical abuse. It includes acts like punching, hitting, hair-pulling, use of weapons, causing miscarriage without ladies’ consent. Being assaulted for denial to having sex, or be it any personal reason, possibly alcohol consumption or short temper, many women have faced physical abuse and even today we shall find victims of physical abuse in almost 70% of families in our society.
  1. Sexual abuse: Any act of sexual nature which results in humiliation, degradation or violation of the dignity of woman portions to sexual abuse. Consent of a woman is the most required necessity to have sexual intercourse. It has appeared as one of the invisible forms of domestic violence. Usually, it can be withinside the form of marital rape or incest. Marital rape isn’t an offence in India. However, a husband forcing himself upon the partner portions to cruelty and springs beneath the purview of violence closer to ladies. Women do not talk about sexual abuse to anyone; especially married women, there is this stereotype that upon their opening up to someone they trust, there could be reputation damage, or may occur unfavourably circumstance.
  1. Verbal abuse: The concept of verbal abuse includes insults, humiliation, name-calling, which has a relatively higher chance of converting into physical abuse. Abuse not only exists physically or mentally but also verbally. On facing verbal abuse, the aggrieved person suffers mentally and there are possibilities of depression.
  1. Psychological and Emotional Abuse: Acts that leave a deep terrible impact on the victim’s psyche. The existence of emotional abuse and psychological abuse has the equivalent impact on the victims in the same way physical abuse creates. Blackmailing or depriving someone’s emotions, not respecting them or probably providing the silent treatment leads to psychological or emotional abuse.
  1. Economic abuse: consists of exclusion of ladies from all economic decision-making, unequal pay and denial of property rights. As in line with the regulation, it is the deprivation of all or any economic or economic assets to which the aggrieved person is entitled to.

LAWS RELATED TO DOMESTIC VIOLENCE IN INDIA:

The term ‘domestic violence’ didn’t exist in any legal provisions till the year 2005; a step in its direction was taken with the adoption of Section 498A and 304B of The Indian Penal Code. The enactment of 498A made cruelty towards women a non-bailable criminal offence, punishable with up to a minimum of five years of prison.[3] Laws related to Domestic violence in India are:

  1. PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE ACT, 2005
  2. Section 498A of THE INDIAN PENAL CODE
  3. DOWRY PROHIBITION ACT,1961

Amendment to the Indian Criminal Code in 1983, a unique segment 498A changed into delivered to the Indian Criminal Code, which makes home violence a crook offence.

 The 2005 Act of The Protection of Women from Domestic Violence especially addresses the pitfalls of real home violence or bodily, internal, emotional, sexual or verbal abuse, and dowry or belongings intrusions. It offers the lady the right to stay in her “marital marriage”, she can’t be expelled from her home due to the fact she legally stocks it together with her husband. Violators of this regulation are both allowed to indemnify girls financially or have obtained an injunction to maintain them far from plaintiffs.

The Indian Criminal Code of 1860, in addition to Section 364 of the Indian Criminal Code on Women’s Modest Wrath, Section 304 and Section 313 of the Indian Criminal Code on Dowry Death, is referred to as the rules and regulations/laws to safeguard women from violence.  There are numerous sections. The preferred concept is that human beings accept as true that girls are the best sufferers of home violence and guys are perpetrators. This is a myth.

  • Need for strict criminal laws to regulate Domestic Violence:

The adoption of Section 498A in the Indian Penal Code, 1983 stated that domestic violence is considered to be a criminal offence. This segment discusses the abuse of a married woman through the manner of a husband or his relatives. There is currently, unfortunately, no single law within the Indian Constitution that could deal strictly with all the unique forms of “domestic violence”. In the region, this form of law is urgently required. Sections 498-A and Domestic Violence Act 2005 were moreover misused because of a constrained definition of marital cruelty.

While there are a few flaws within the Act and there can nonetheless be plenty to be preferred for enforcement, the insurance itself does seem very realistic. Yes, statistics that men often face violence is essential. Yes, the better implementation of the Act is essential. This is attributed to the dowry deaths of women who have been killed because of domestic and sexual abuse. The Act seeks to provide women who’re struggling with domestic abuse with streamlined processes, which has been a big element of success, with the right of entry to civilian and quasi-criminal remedies.[4]

DOMESTIC VIOLENCE AGAINST MEN:

Women are not the handiest victims of domestic violence person men moreover are bothered by it but it becomes difficult to find out that men are victims and now no longer abusers. As our mind is ready that it’s a male dominating society and they may be the abuser, women are the weaker segment of the society and they may be the patient’s handiest.

There are masses of provisions and acts in India which may be made to guard women and now many of the women take advantage of it. Men moreover go through highbrow cruelty similar to physical cruelty but each they may be ashamed to per-cent about the violence they may be coping with or feared that nobody will accept as true with them and as a substitute human beings are going to make fun of them. It isn’t easy for men to be at the front and tell human beings about the violence they may be dealing with because of their respective partners.

India is a patriarchal society and it’s no longer an unusual notion that men are the abuser and they suppress the women to maintain their control over her but it isn’t the handiest truth. If we take a look at the alternative side of the scenario then we are capable of seeing that even men are the victims of violence

Men can be patient, why it’s difficult for us to be given the truth, we continuously talk about equality of rights but are we truly equal, why we are blind at the same time as the hassle entails see that men moreover need help and jail justice. Violence becomes a now no longer unusual place where individuals who very own dominating nature suppress the weaker associate; it could be men or women. It is an immoderate time to prevent gender bias and take a step to stop the violent act regardless of who is the victim. India has the stereotype that violence can occur only with the female gender and not the male gender, men are considered to be muscular and strong and generally have the image of doing domestic violence rather than suffering from violence, we can see there is no provision to prevent or secure the men from domestic violence by their intimate partner. It isn’t that women are safe from the tight hold of domestic violence, even after the establishment of laws to safeguard the safety of women against this violence, many women yet face violence every day and are somehow silenced because of what society would say, but besides this, even the men of our same society choose to keep silence when faced violence by their wives due to the same thinking of what the society would say. We all must know the law protects us and the law sees all of us as unbiased. Due to the lack of provision for men against domestic violence, men choose to suffer in silence.

Conclusion:

Domestic abuse is neither contemporary nor evolving with exchange within the society. The Government of India has taken various crucial steps to face and terminate the problem of Domestic Violence. Section 498A, Section 304B has been inserted into the Indian Penal Code. But the provisions were now no longer sufficient to decrease the menace. The Protection of Women from Domestic Violence Act is a valuable piece of law in its entirety. In the final analysis, its weaknesses now no longer remove the big advantage the Act can supply to women. The protection of women’s rights is a mundane approach. It moreover applies, even though in a restricted sense (male children are exempt from their jurisdiction), to child sex abuse, at a time even as the crime is rife.[5] 

Domestic violence has hindered the development of women as a class of human beings in all additives of lifestyles. Apart from the physical injuries sustained, house violence leaves a huge horrible impact on the psyche and personality. Many survivors undergo a couple of counselling intervals to head again to regular lives. Despite having a crook framework in areas to decrease domestic violence, women continue to suffer. Between January and May 2021, over 3 hundred domestic violence complaints were filed with the National Commission for Women. The figure is a very high-quality estimate of about 2000. The immoderate numbers can be perceived from additives.

Positively, more women are getting a reputation closer to domestic violence through the manner of trying to find crook help. The time phase of the pandemic was quite ironic. It brought some families close to each other, while it also torn some married couples apart leading to painful and unhappy life, the amount of divorce cases files in India post-pandemic were relatively high than that of the pre-pandemic, and the grounds of such divorce were either maintenance or domestic violence, sexual abuse or physical abuse by the husband. However, it is moreover that the crime fee remains immoderate. In a horrible phrase, the immoderate numbers can be signalling a volatile rise in violence considering the pandemic lockdown and work-from-homes nonetheless continuing. In each of the cases, the criminal tips have proved to be inefficient. Therefore, it is the need of the hour to make our criminal tips stringent to guard the nation’s women. Last but most importantly, women want to be sensitized about the importance of financial independence and the crook framework that is available to help them.


[1] Article on Domestic Violence: Author

  1. Martin Tucker
  2. Kevin King
  3. Gray Jordan

[2] “How To Find Domestic Violence Helplines And Counseling In India”

https://www.naaree.com/domestic-violence-helplines-india/amp/

[3] “LAWS AGAINST DOMESTIC VIOLENCE IN INDIA | SoOLEGAL

https://www.soolegal.com/roar/laws-against-domestic-violence-in-india-1

[4] “Domestic Violence and Connected Laws Indian Women Should Know Of” 

https://www.shethepeople.tv/law-and-her/domestic-violence-and-connected-laws-indian-women-should-know-of/amp/

[5]Youtube video on Domestic violence

Author: Shaheen Khatoon, Indian Institute of Legal Studies, N.B.U

Editor: Kanishka VaishSenior Editor, LexLife India

MARITAL RAPE: PRACTICE OR IGNORANCE?

Reading time : 8 minutes

(Mother called her daughter after a month of her marriage)

Mother: Hello!

Priya: Hey! mom

Mother: How are you, my lovely daughter?  How’s everything at your place? Are you happy? Oh my god! I’m so excited to know everything. Ok ok, you can speak now. I’m quiet. Tell me. Priya: (remained silent)

Mother: Why are you not responding? Is everything all right?

Priya: Mom, (she paused for a moment)

Mother: Yes, what happened?

Priya (drew in a long breath and spoke), “I’m just not sure what to do anymore.”

Mother: What to do anymore? What are you saying?

Priya: Jatin has raped me, mom, (she started crying)

Mother: Have you lost your mind? He is your husband,” she huffed

Priya: Yes mom, I know he is my husband but my consent was not taken. He forced me to have sexual intercourse with him, against my will and it’s rape.

Mother: (Flabbergastingly), What are you talking about? Are you going to file an FIR? It happens in a relationship. Please try to understand

Priya: Mom, I have not lost my mind and I don’t care about anything. I’ll file an FIR against him. Yes, I’m his wife but he has no right to touch me without my consent.

Mother: I’m just worried about what will happen next and how that will impact the whole family.”

Priya: Do you still care about his family? Mom, I’m your child and you have to support me. I’m coming back home tomorrow.

Mother: Daughter, I’m there for you. I’ll support you. We will file an FIR against him, Don’t worry, and please stop crying.

( Call got disconnected after a while)

ABSTRACT: Pati (husband) is regarded as ‘Parmeshwara’ (God) in Indian civilizations, with ultimate authority over his wife. When her husband returns home from a day’s work, it is her responsibility to delight him. As a result, consent plays no part during sexual intercourse. Being raised in a patriarchal environment, girls are taught to revere males, follow them, that they are stronger than you, you should not compare yourself, you are inferior, and so on, who begin to assert their autonomy over females, oppress her, mistreat him, molest her, etcetera. Flabbergastingly, As per the National Crime Records Bureau’s Crimes, 2019 report[1], every 19 minutes, a woman is raped in India. According to the World Health Organization, over 30% of women have been subjected to physical or sexual abuse by their spouses. However, statistics related to marital rape are not available because 95% of cases go unreported. The objective of adding a conversation with an article was to understand the plight of a woman, who has been raped by her husband and, her family members denied the fact with some ridiculous logic or did not support her. This research work is aimed at the different aspects of marital rape in India, as well as the legislation in other nations that address marital rape as a heinous offence. Even though marital rape is not a crime in India, intense debates are taking place in the Delhi High Court to criminalize it. ,

Concept of ‘Rape’ and ‘Marital Rape’:-  Rape is expounded under Section 375 of Indian Penal Code, 1860[2] which states that a man is said to commit rape if he penetrates his penis, any object, or any part of a body other than the penis into the vagina, urethra, or anus of a woman, or puts his mouth into the vagina, urethra, or anus of a woman, or makes her do so with him or any other person, under the circumstances described below:

  • Against her will.
  • In the lack of her consent.
  • With her consent when it has been obtained by placing her or any other person linked to her in fear of death or injury.
  • With consent acquired under the mistaken belief that the guy was the person to whom she was legally married.
  • When consent is provided due to insanity or intoxication with any stupefying or unwholesome drug.
  • When the female is a minor, whether or not consent is provided.
  • When she is unable to give her permission.

Marital rape is specified in Exception 2 of Section 375, which provides that sexual intercourse or sexual acts between a husband and wife is not rape unless the wife is under the age of 15. It shields the husband from rape charges.“Treating wife’s body as something owing to husband and committing a sexual act against her will is nothing but marital rape.” [3]After entering into marital relations, a wife is believed to provide unwavering consent to have intercourse with her husband. Recently, a bench of Justices A. Muhamed Mustaque and Kauser Edappagath, Kerela High Court passed an order recognizing Marital Rape as a form of cruelty and a ground for divorce[4]. Marital rape is a violation of Articles 14 and 21 of the Indian Constitution. Article 14 provides equal rights to men and women whereas Exception 2 of Section 375 IPC, 1860, creates two classes of women depending on their marital status and safeguards men from actions committed against their wifes. In accordance with the Article 21 of the Indian Constitution, every person has a right to live his life with dignity and also ensures liberty, bodily integrity, privacy of a person, marital rape is the infringment of artcle 21[5]. Supreme Court held that sexual harassment of a woman at work would be a violation of her fundamental rights to gender equality as well as the right to life and liberty guaranteed by Articles 14, 15, 19, and 21 of the Indian Constitution[6]. In the case of State of Karnataka v. Krishnappa[7] Supreme Court held that apart from being a demeaning act, sexual assault violates a female’s right to privacy and sanctity and also non-consensual sexual intercourse constitutes physical and sexual violence. Section 498A of the Indian Penal Code, 1860, prohibits sexual harassment against wives. This section specifies cruelty to married women by her husband and his family, as well as the 2005 Protection of Women from Domestic Violence Act (PWDV). It covers different types of abuse against women, including physical, sexual, mental, and emotional assault, but these clauses does not make marital rape an offence. In thr case of Independent Thought v. Union of India, 2017 SCC 1222, The Supreme Court partially overturned Exception 2 of Section 375 of the Indian Penal Code, 1860, which prohibited marital rape for minor under the age of 18.

 History of Marital Rape in India

Forceful and non-consensual sexual intercourse was not always considered as marital rape because relationsip between a husband and wife was pious and the interference of third party into it was discouraged. Also, women were considered as property of their husband with which they could do as they pleased under common law. It was contemplated that marriage gives autonomy to a husband to have sexual intercouse with her either consensual or non-consensual. The implied-consent hypothesis holds that a married couple has consented to sexual intercourse with each other and it prohibited prosecution of spouse for rape. Rape laws were enacted in accordance with the Indian Penal Code, 1860, which came into effect during the early British Raj period. However, amendments are made in rape laws with the passage of time. The exception of Section 375 was derived, in part, from the ‘Doctrine of Coverture,’ which asserted that a woman’s legal rights and obligations transfer to her husband at marriage, since husband and wife are considered one person in the eyes of the law.  husband acts as her wingman and protector, and her decisions are also influenced by her husband. Sir Mathew Hale addressed in his book “History of the Pleas of the Crown” that the husband cannot be held accountable for rape committed by himself against his legitimate wife since the woman has surrendered herself up to her husband in this manner by mutual consent and contract, which she cannot renounce. These views were eventually questioned by the general public, and it was discovered that a man cannot be an absolute master over his wife; these ideologies were incompatible with contemporary and civilised culture. The doctrine of coverture was repealed in the late nineteenth century. In 2013, The UN Committee on the Elimination of Discrimination Against Women (CEDAW) proposed that marital rape be criminalized in India.[8] The Justice Verma Committee was formed to suggest changes to the Criminal Law that would allow for faster trials and harsher punishment for people accused of sexual assault against women. On January 23, 2013, the Committee submitted its report. It was suggested that the exception of Section 375, Indian Penal Code, 1860 should be deleted. It was suggested that any non-consensual sexual penetration should be included in the definition of rape. It is also immaterial what the relationship between the accused and the victim is.[9]  The 167th Parliamentary Standing Committee Report on Home Affairs on the Criminal Law (Amendment) Bill, 2012 (“Parliamentary Standing Committee’s Report”) It was established that aggrieved women might seek redress in court for cruelty and sexual assault under any legislation other than marital rape. If the marital rape is prosecuted, it would stress the entire family system, and the Committee may wind up doing more harm than good.”

Causes and Consequences of Marital Rape in India

Dowry, dominance, dissonance between partners, illiteracy, and other factors are key causes of marital rape. Men consider their autonomy over their spouses and compel them to engage in sexual intercourse. A man’s ego suffers when a woman retaliates. When animosity between the couples intensifies, the husband may attempt to assert himself by forcing himself on the wife. Marital rape is also a consequence of domestic violence. When a man’s wife does something wrong, he would use rape and sexual assault as a weapon to punish her. Nowadays, drug-facilitated sexual assault is more common in household settings, when a spouse becomes comatose after consuming alcoholic beverages or other narcotics and forces his wife to indulge in sexual activities. Sexual violence has been linked to childhood environment that are physically confrontational, emotionally rude and dismissive, and marked by conflict for inadequate resources. For example, sexually aggressive conduct in young males has been connected to witnessing familial violence as well as having emotionally distant and callous fathers.[10] Men raised in households with strong patriarchal systems are also more susceptible to become violent, rape and use sexual coercion against women, and harass their intimate relationships than men raised in more egalitarian environments.They have extreme self-hatred in addition to low self-esteem. They perceive themselves as failures, so when their wives reject them in bed, it reminds them of their own shortcomings, which irritates them. Marital rapes may become more prevalent in societies that embrace toxic masculinity or individuals who are hypermasculine. A 1990 researcher revealed that “macho” males were more inclined to believe in “wifely obligations” and that deploying force in such situations is permissible.

Marital rape occurs regularly, causing abused women health issues, agony, and grief. Children in families where marital rape occurs frequently endure from the psychological impacts of witnessing violence, which can damage their mothers’ capacity to care for them. Depression, anxiety, emotional discomfort, and suicidal thoughts are among mental health consequences of marital rape and other types of abuse by spouses. Because it is socially acceptable, marital rape is one of the most under-reported violent crimes. Some battered women are scared to disclose the abuse because they rely financially on their husbands for their sustenance and the maintenance of their children. Others are reluctant to stand up for fear of being humiliated. Women who have been raped by their spouses go through a lot of agony, embarrassment, and anguish. Marital rape causes public health issues such as poor mother and infant health, re-infections with Sexually Transmitted Infections (STIs), and long-term HIV infection risk. Individuals are unable to take control of their own sexual and reproductive health as a consequence of marital rape. When men refuse to use contraception, forced sex and the accompanying sexually transmitted illnesses can cause mother and child medical problems.

Marital rape laws in other countries:-

As of 2019, marital rape had been criminalized in 150 nations, either as a result of a court ruling or as a result of anti-rape initiatives. The rationale for the non-criminalization of marital rape in other nations was a derivation of the Latin term ‘rapere’, which meant ‘to steal’ or ‘carry off’. It was further construed that it is impossible to steal anything which belongs to you. Likewise, a husband, cannot rape his wife since he ‘owns’ her. Lord Matthew Hale, a British jurist, observed in 1736 that “the husband cannot be guilty of a rape perpetrated by himself against his legitimate wife, for by their joint consent and contract the wife has surrendered up herself in this manner to her husband, which she cannot withdraw.”[11] India including China, Afghanistan, Algeria are such 36 countries that have not yet been recognized and criminalised. In a landmark case in the United Kingdom, R v. R, a husband defended 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 fiction under common law.” The court ruled that a person’s connection to the other party is immaterial in determining whether or not he or she should be penalised for rape. Countries’ attitudes about marital rape have shifted due to a variety of factors, including the recognition of women’s human rights and the global development of the institution of marriage, in which women today have more autonomy and respect than ever before.

History and Recent argumentation concerning marital rape:-

Previously, in the case of Sakshi v Union of India [1999 (6) SCC 591], petitioner Shakshi filed a petition to alter the different provisions of the Indian Penal Code, 1860 concerning’sexual abuse’ against women and suggested that the exemption of marital rape be removed. His petition was denied on the grounds that removing the exemption for marital rape would be an undesirable intrusion into the marital relationship. Various other petitions were filed by the NGOs, All India Democratic Women’s Association (AIDWA) as well as individual petitioners. The Central Government argued in an affidavit filed in 2016 that criminalizing “marital rape” would “destabilize the institution of marriage and become a weapon for husband harassment.” Dr. Shashi Tharoor also introduced a private bill in the Lok Sabha Bill No. 255/2018 titled ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018, it was suggested in a bill to amend Exception 2 of Section 375 of IPC, 1860 and to criminalize marital rape and broaden the ambit of a woman’s permission to participate in sexual intercourse or sexual actions, even within the context of a marriage. The Delhi High Court has been evaluating petitions challenging Exception 2 of Section 375 of the Indian Penal Code, 1860. The petitioner NGOs contended that the exemption for marital rape violated Articles 14 and 21 of the Indian constitution. Rebecca John, Amicus Curiae, submitted that expectations of sexual relations in marriage do not constitute irreversible consent by the woman to have sexual intercourse and that no other legislation, including Section 498A of the Indian Penal Code, 1860, can be invoked as a remedy for marital rape.

Senior Advocate Colin Gonsalves, representing the petitioner, appeared before a bench of Justice Rajiv Shakdher and Justice C Hari Shankar stated that marital rape is one of the most heinous forms of domestic violence which are neither reported nor analyzed. Men Welfare Trust, on the other hand, contended that the exemption for marital rape is predicated on the intelligible differentia of marriage and that reviewing it would place an undue burden on the judiciary. Wives would seize the opportunity, and fraudulent complaints would be publicised.

Conclusion

Marital rape has persisted in culture for as long as marriage has been. However, it has not been recognised, and if it has been acknowledged, it was rejected by people. Not only perpetrators, but even victims, were reticent on the issue. The exception of marital rape has caused a lot of controversy these days. Laws must be modified with the passage of time in order for society to function properly and to ensure absolute justice to its citizens. The causes of marital rape are complicated and must be investigated. People are concerned that false cases of marital rape will be reported and innocent men would be imprisoned, but the facts and evidence of the case can be properly scrutinised and justice will prevail. The removal of the exclusion would have a number of consequences, including what would be considered’marital rape.’ What actions would be considered an attempt to constitute marital rape? It is high time for the Indian criminal justice system to be changed, and new laws to be enacted.


[1] https://ncrb.gov.in/en  You visited this page on 2/2/22.

[2] https://indiacode.nic.in/handle/123456789/2263?sam_handle=123456789/1362, IPC, 160 Section 375.

[3]https://www.thenewsminute.com/Landmark-judgment-kerala-hc-recognises-marital-rape-ground-divorce

[4] https://www.hindustantimes.com/cities/delhi-news/marital-rape

[5] Suchita Srivastava & Anr vs Chandigarh Administration on 28 August, 2009

[6] VISHAKA & ORS. V STATE OF RAJASTHAN & ORS (1997) 6 SCC 241

[7] State Of Karnataka vs Krishnappa on 23 November, 1993, ILR 1994 KAR 89, 1993 (4) KarLJ 680

[8] https://www.refworld.org/publisher,CEDAW,,PER,,,0.html, Last Updated: Monday, 14 February 2022, 19:35 GMT

[9] https://www.mha.gov.in/MHA1/Par2017/pdfs/par2020-pdfs/rs-11032020/1959.pdf

[10] Types of Sexual Violence”. Rape, Abuse & Incest National Network.

[11]  https://blog.oup.com/2017/11/marital-rape-global-context/

Author: Roshni Agarwal, Amity Law School, Noida

Editor: Kanishka VaishSenior Editor, LexLife India

 THE NEVER ENDING DEBATE: Rape is the only crime where the victim becomes the accused

Reading time : 8 minutes

Freda Adler a prominent criminologist and educator once said, “Rape is the only crime where the victim becomes the accused.” In a recent study cited by Thomas Reuters Foundation last year, India is considered to be one of the dangerous places to be a woman leaving behind war zone areas of Afghanistan and Syria. Rape is considered to be the most heinous crime which a human can ever commit, a crime against individuals, a crime against society, a crime against human’s dignity, one that reduces a man to an animal.

National Crime Records Bureau (NCRB) has some horrifying statistics to share according to which every 20 minutes woman is raped somewhere in India. Not only that, crimes against women have increased by 7.1% nationwide since 2010, and child rape cases have increased by 336% in the last 10 years. India has recorded an average of 80 murders and 77 rape cases daily in 2020, National Crime Records Bureau (NCRB) report revealed.

Marital rape is a sensitive as well as a delicate topic where most sexual violence is believed to occur within families but often get unreported. In India, section 375 of Indian penal code defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.” Followed by an exemption which clearly mentions that sexual intercourse by a man with his own wife, who is above the age of 18, is not sexual assault? The Indian Penal Code talks about marriage as a union of a man and woman, where it is believed to have an implied consent otherwise. The exemption aforesaid discriminates against married women to gain their right over dignity. This differentiation is directly violating the reasonable classification of Article 14 of Indian Constitution reads as under, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Decriminalising marital rape is a clear infringement of law, morality and human dignity. In a country, where a woman gets raped every 20 minutes and the likelihood of an Indian married woman suffering sexual violence is 17 times more, the need for an active legislation continues to prevail in the society. Even though in the recent past, having witnessed heinous crimes like Nirbhaya case, Hyderabad rape case, Unnao rape case and many more, there persists an urgent need for the judicial system to recognise marital rape as a criminal offence and not just a part of domestic violence. The only remedy available to such victims is civil remedy under Domestic Violence Act, 2005. Regardless of the identity of the rapist, they must be punished whether they are strangers or supposedly known relatives or even the husband. A woman who is raped by her own husband has to live and sleep with her rapist under the same roof with no protection rather humiliation from our judicial system.

As this situation seems to have taken deep roots in India, other countries decided to work upon their law and justice. Prior to 1992, forced sexual activity within marriage wasn’t illegal. The case of R v. R which was heard in the House of Lords, 1991 changed the future of UK law to the extent that it was possible for a man to rape his wife. The courts ruled that even in a marriage any non-consensual activity is rape. According to UK law, for the act of marital rape to be prosecuted, the prosecution must prove that

  • Penetration of the anus, mouth or vagina occurred
  • Act was intentional
  • No existence of consent was present

The punishment can range from 4-14 years, depending upon the aggregated facts and circumstantial evidence. The factors which can prove the case of marital rape are betrayal of trust, vulnerability of the victim, intimidation by the accused, children were present at the time of the alleged offence, attempt to threaten the victim, etc.

Canada overturned this exception in 1983, followed by South Africa in 1993, Australia enacted laws that criminalised marital rape.

Victims of rape suffer from various harms including physical and psychological harm. The data revealed by NCVS says that about 25% of rape victims are physically injured like black eyes, broken bones, etc. victims also suffer through medical discrepancies like sexually transmitted diseases and unwanted pregnancies. Psychological factors include anxiety, fear,

The combination of emotional and psychological factors to rape and sexual violence is called Rape Trauma Syndrome (RTS). In the case of Mhd. Iqbal v. state of Jharkhand, the court held that rape cannot be just treated as a sexual crime but also a crime of aggression and dominance. Rape victims suffer from social stigma, which leads to have a devastating effect on the victims resulting in low self-esteem and low self-confidence. As stated by court, rape is a shameless violation of a women’s’ integrity and dignity.

A similar case of such matter, i.e. Ravi @ Ram Chandra v. State of Rajasthan, the Supreme Court held that if appropriate punishment isn’t awarded then the court will be failing in its duty to provide justice only against the individual victim but also the society to which the accused and victim belongs.

The notion of marital rape is supposed to not being able to apply in Indian context due to various factors like illiteracy, poverty, beliefs, and values of the society which treats marriage as a sacrament. Former union minister for women and child development, Manteca Gandhi, in a parliamentary session held in 2016 said there cannot exist a law against marital law because marriage is a sacrament and even if there was, it would not change as none would complain.

In a recent case RIT foundation v. Union of India, the two judge bench is proceeding towards the constitutionality of the exemption provided in section 375 of IPC. The judicial system of continuous denial towards marital rape is rooted to our history, where women were viewed as their husband’s property irrespective of their wish, demand or needs. When Indian Penal Code was constituted and written, it was considered that a married woman was not an independent legal entity rather a chattel of her husband. While with the upcoming change in time and era, many laws have changed in the past few years but the concept of marital rape is still ignored.

The catastrophic effect showed on wives is an act of brutality and cruelty in order to exercise their power over woman, and in case of marital rape, the husband tries to assert his power and control over his wife. Males who lack appropriate resources, values and dignity to hold a respectful position in the society are the ones who use violence and hostile behaviour to cater their needs, ego and lust to uplift their self-esteem. Some believe that husbands have a right over their wife in each and every way whether physical or intimate, whether unemployed or poorly educated who dominate their wives by violence are doing nothing wrong since women are their husband’s chattel.

In case the justice system of our country fails to accept the validity and constitutionality of marital rape, it doesn’t mean that victims are suffering but also the country is supporting the ideology of male dominance and patriarchy. The system appears to be a victim of denying the opportunity to women to live a life full of respect and dignity. It is time that we start honouring the women of our country to join the 150 countries in criminalising the concept of marital rape.

Indian penal code was amended in 2013, many various clauses were added like consent, age, acid attacks but the government chose to stay away from touching the concept of marital rape. Recently, a private bill was introduced by congress MP Shashi Tharoor which sought to criminalise marital rape. The private bill was called women’s sexual, reproductive, and menstrual rights bill, 2018. However, the bill lapsed due to lack of support required to pass the bill in the lower house from the elected government. Criminalising an offence performs an expression of motive towards the betterment of the country. Although, criminalising would not necessarily have an effect of ground, but it would definitely express the disapproval of law and justice towards the brutality that has been prevailing in India since history.

Here I ask for a strong legal system supporting the victims of rape, amendments not just by domestic violence act under cruelty, but also extracting the exemption provided in section 375 of IPC, the undesired leverage provided to people who believe that wives are a property that owned just because they are married to them. Indian justice system affords to award an individual status to wife and husband in a marriage to protect the integrity. Furthermore, it is required that judiciary and legislation shall take cognisance of this concept and bring about a change within the purview of rape laws by eradicating Section 375 (exception 2) of IPC, 1860.

Author: Harshita Dixit

Editor: Kanishka VaishSenior Editor, LexLife India

Cryptocurrency: A bright future or just a fad?

Reading time : 8 minutes

When we say crypto, what do we mean by it? The first thought that comes to our mind is, it’s something related to the internet or digital. Crypto, the word itself suggests something which is concealed or a secret. A cryptocurrency is a digital or virtual currency that uses cryptography to secure, produce and manage its transactions. In contrast to ancient currencies, that were issued by central banks, cryptocurrency has no central financial authority, in operation independently of a financial organization. At present, money transactions from one person to a different person undergo through monetary establishments like banks. The invention of cryptocurrency allowed user-to-user transactions without the requirement of intercessor establishments. Through cryptocurrency, users can directly send money to alternative users. Bitcoin is the 1st cryptocurrency that came to public notice in 2009. Amazingly, no one is aware of who made-up Bitcoin. We tend to solely recognize them by their screen name – Satoshi Nakamoto. If given a thought, Satoshi can be one person, a bunch of programmers, or if you think a few weirder theories, a time-traveling alien or secret government team. Satoshi revealed a 9-page document in 2008, detailing how the Bitcoin system worked. Months later, in 2009, the software system itself was released. Following this, several alternative cryptocurrencies, like Ethereum, Ripple, Litecoin exist within the market.

Cryptocurrencies are often exchanged for alternative currencies, products, and services. This bitcoin is made using blockchain technology. There are a restricted number of coins, and each bitcoin contains a distinctive code. Each dealing of the coin is kept as a block and all the transactions for the actual coins are connected in form of a chain, therefore the name Blockchain Technology. All these details are obtainable in an exceedingly public ledger, that anyone can check for each coin, and thus can be grasped the transactions of its exchange. Unlike bank transactions, Crypto transactions are utterly anonymous. Someone will solely apprehend the addresses of crypto on which the payment has been sent and received. However, to whom these addresses belong, can’t be known. This obscurity feature offers security against fraud. Banks do charge us a section of the money we tend to send or receive. With cryptocurrency, middlemen like banks are going to be eliminated, thence there’ll be no loss to us in monetary transactions. Also, the fee for crypto transactions is comparatively low as compared to alternative digital transactions like credit cards and alternative modes.

With the distinctive developments and advancements within the technology sector in India, particularly throughout the challenges exhibited by the speedy unfold of COVID-19, the fintech sector has shown promising results. There has been a growth of interest, fueled for the most part by curiosity and recognition, amongst the citizens of India in cryptocurrency like Bitcoin, Ripple, Dogecoin, etc., supporting the fact that an oversized range of individuals has started to invest an apparent part of their time and money in these virtual currencies. In India, the apex monetary authority i.e., the Reserve Bank of India (“RBI”), recognized cryptocurrency, specifically outlined as a sort of digital/ virtual currency created through a series of written computer codes utilizing cryptography /encryption and is therefore freed from any central supplying authority intrinsically. Cryptocurrency is power-assisted through blockchain technology, that establishes a person-to-person issuing system that utilizes non-public and public keys permitting authentication and cryptography for secure and safe transactions.

Being an untouched, unregulated market with a possibility of over a trillion bucks, India conjointly witnessed an enormous surge of cryptocurrency exchanges. Witnessing the increasing quality of the utilization of cryptocurrency within a brief span of a year and therefore the potential revenue loss to the government of India, the regulators and authorities noticed and as a consequence, in 2013 the RBI issued an announcement, warning the general public against dealing in virtual/digital currencies. In November 2017, the government of India established a high-level Inter-Ministerial Committee to report on numerous problems associated with the utilization of virtual currency, and later, in July 2019, this Committee conferred its report suggesting a blanket ban on personal cryptocurrencies in India. The threat of revenue loss was therefore eminent to RBI, that it’s attention-grabbing to notice that even before the submission of the report from the Inter-Ministerial Committee, in April 2018 the RBI had issued a circular limiting all industrial and co-operative banks, little finance banks, payment banks, and NBFC from not solely dealing in virtual/digital currencies themselves however conjointly instructing them to prevent providing services to all or any entities that cope with virtual/digital currencies. This stalled the rise of the crypto trade in India, as exchanges needed banking services for causation and receiving money.

The banking service is important for the conversion into cryptocurrency and successively for paying salaries, vendors, workplace area, etc. However, things prevailing around cryptocurrencies and their usage utterly modified on 4th March 2020, once the Hon’ble Supreme Court of India, in an exceedingly well-conceived judgment quashed the sooner ban imposed by the RBI. The Hon’ble Supreme Court of India mainly examined the matter from the angle of Article 19(1)(g) of the Indian Constitution, which talks regarding the liberty to follow any profession or to hold on to any occupation, trade, or business, and the school of thought of proportionality. The Apex Court noted that all regulators and governments of different countries are unanimous about their opinion that although virtual currencies haven’t acquired the status of the medium of exchange, they show digital representations which are valuable and capable of functioning as a medium of exchange, unit of account and/or store valuable. While the court recognized the RBI’s power to require pre-emptive action, it commands that the proportionality of such a measure wasn’t there within the case, since there wasn’t any damage/loss suffered directly or indirectly, by RBI’s regulated entities because of VC commercialism. Therefore, among different reasons, on the grounds of proportionality, the impugned Circular dated 06-04-2018 was put aside.

The Government of India was considering the introduction of a replacement bill titled “Cryptocurrency and Regulation of Official Digital Currency Bill, 2021” (“New Bill”) that was analogous in spirit to its earlier versions. However, the New Bill seeks to ban personal cryptocurrencies in India with some exceptions, to encourage the underlying technology and commercialism of cryptocurrency however expedited among a framework for the creation of an official digital currency that can be issued by the RBI. The New Bill has approached the issue of the dearth of cryptocurrency laws and suggests forbidding all the personal cryptocurrencies in their completeness. The categorization within the New Bill’s suggestion arises since the RBI continues to be within the grey concerning that variety of cryptocurrencies will fall into the horizon of personal cryptocurrency. If the New Bill imposes an entire ban on personal cryptocurrencies, it shall lead the cryptocurrency investors to speculate and deal in cryptocurrency in an exceedingly unregulated market.

Further, the aim of introducing a law associated with cryptocurrency is to ease the method of mercantilism and holding, in an exceedingly safer technological setting. However, even with the introduction of state-owned cryptocurrency that shall be monitored by the RBI, the danger in investment and holding of cryptocurrency shall stay constant. Towards the end of March 2021, consistent with the most recent amendments to the Schedule III of the Companies Act, 2013, the government of India educated that from the start of the new financial year, corporations must be compelled to disclose their investments in cryptocurrencies. In easy words, corporations currently ought to disclose profit or loss on transactions involving cryptocurrency, the quantity of holding, and details concerning the deposits or advances from any individual trade or investment in cryptocurrency. This move has been greatly appreciated by the individuals dealing in the crypto sector, as this may open the door for all Indian corporations to possess Crypto on their balance sheets.

Till recent there was no comprehensive legislation coping with the scope and uses of cryptocurrency in India, however, there are bound notices and orders issued by the involved authorities in 2018, the Reserve Bank of India (RBI) prohibited banks and any regulated financial establishments from “dealing with or subsiding virtual currencies”. On 14 January 2018, RBI confirmed that it had not issued any licenses or authorizations to any entity or company to control a scheme or deal however had issued warnings regarding dealing in virtual currencies and introduced a demand for corporations to unwind or exit their positions. It additionally confirmed that new prohibitory rules were planned. The sweeping regulation prohibited the trade of cryptocurrencies on domestic exchanges and gave existing exchanges till 6 July 2018, to wind down.

The RBI in its circular in 2018 prohibited the exertion and flow of cryptocurrency in India. The circular introduced by the RBI, generally restricted or obligated a ban for the public on the application of cryptocurrency by all banks across the territories of India. The utilization and flow of crypto across the state gave a blow to the share markets in addition to the investors. Thenceforth the Supreme Court of India taking suo-moto cognizance during this matter, upraised the ban from the implementation of Cryptocurrencies in India with a landmark judgment in ‘Web and Mobile Association of India vs. Reserve Bank of India,’ the Apex court stated that the affirmative RBI has been given the ability to authorize and regulate the financial economy of the country. However, the ban on the flow and use of cryptocurrency in India as per the notice issued within the public by the RBI wasn’t proportional and a rational call. The Apex court by the victimization of the doctrine of quotient reached on to the present judgment in conclusion and therefore upraised the ban from the employment of crypto-based currencies in India. Later within the Parliament, during the recent session, it was indicated that a brand-new comprehensive bill specifically, the Cryptocurrency and Regulation of official Digital Currency Bill, 2021, have some chances that this bill will probably be mentioned over a tea within the Parliament session.

 As we’ve understood that cryptocurrencies are supported by Blockchain technology and if the Blockchain itself could be a grey area of privacy, your privacy is at the stake. Then the currency exchange won’t be said as secured, that’s why the notice issued by RBI, prohibited cryptocurrencies in India to avoid losses of the state from the potential concern of money laundering, tax evasion, and the act of terrorism funding for that matter. India has recognized cryptocurrencies as a legitimate asset, based on the reasoning, that may be drawn from the said facts and current eventualities around the world. Addressing the matters of cryptocurrency in India, it is noticeable that there’s a lack of clarity regarding cryptocurrency regulation in the country. Well-structured, clear rules addressing crypto mercantilism exchanges, blockchain technology, investors, and the individuals, used in such sector ought to be created on priority if the globe of cryptocurrency is here to remain and demands additional attention.

It was fascinating to notice that the Draft National Strategy on Blockchain, 2021, revealed by the Ministry of Electronics and Information Technology, highlighted the advantages of cryptocurrency. Therefore, forbidding a virtual currency that has created a sway in several countries, won’t be the best move to do for the development of our nation. The government must take an efficient step towards the positive regulation and social control of cryptocurrency as the way forward to earn the confidence of investors and the public in developing the country. It had been declared by the Union Minister of Finance, Smt. Nirmala Sitharaman on 16th March 2021 that there shall not be an entire ban on cryptocurrency – “we will allow a certain amount of window for people to experiment on the blockchain, bitcoins, and cryptocurrency.”

Due to the dramatic rise in its popularity among the plenty, it’s gaining wide acceptance as a payment methodology. Whereas traveling the planet, there’ll be no hurdle of exchanging our currencies with native currencies. Cryptocurrency will be a decent alternative for countries that have weak economies. A weak economy leads to the fall of currency worth, and they need to pay extra money to different countries for trade, services, etc. However, if they use cryptocurrency as an alternate currency, they’ll avoid this case to some extent. In public ledgers, containing data relating to transactions, personal data is hidden. Thus, any information of the persons who did the dealing, cannot enter into the public domain. Due to this, cryptocurrencies are being exploited for felonious activities like drug dealings, etc. There is no regulative body, that is a bonus of cryptocurrencies because it permits decentralized transactions, however, it’s additionally a drawback. If you lost your virtual coins, no one might retrieve them for you. There’s no accountable authority. Crypto transactions are irreversible. Funds sent to the wrong address cannot be derived back, leading to the loss of all the transferred money.  If the memory device within which cryptocurrencies are held on gets broken or lost, then the lost Bitcoins can’t be recovered by any means.

The Government of India declared the Union budget for 2022–23 earlier, with the Minister of Finance, Smt. Nirmala Sitharaman’s conveyance much-needed clarity for innumerable crypto investors in India. The government has imposed a 30 percent tax rate on all financial gain generated through crypto mercantilism whereas additionally planning to introduce the Digital Rupee in 2022–23. The Digital Rupee, which is meant to be India’s first central bank Digital Currency (CBDC) project, is going to be a digital monetary unit – one that may be utterly regulated and monitored by the central government. However, if you’re unsure what CBDCs mean, CoinSwitch, Kuber brings the much-needed clarity thereon. Such currencies sometimes have the complete faith and backing of the supplying authority. Hence, the Reserve Bank of India can stay as the sponsor of the Digital Rupee, even as it is.

The Finance Ministry, in these laws, has planned a 30 percent tax on the exchange of all virtual assets, as well as for cryptocurrencies and non-fungible tokens. It is additionally highlighted those losses on these crypto-assets can’t be offset to a later date. This implies that any loss encountered throughout the trading of those assets won’t depart with different financial gain sources which it’ll be carried on to consequent years. Gifts in the form of virtual currencies also are susceptible to be taxed, with the recipient bearing the liability for any such deductions. Further elaborating on the taxation model for such virtual currencies, the Minister of Finance stated that every crypto transfer higher than a precise financial threshold is going to be responsible for a tenth TDS deduction, which can facilitate the authorities keep track of the movement of such currencies within the economy. Many have seen these moves as a confirmation of the government’s acceptance of digital currencies. Others additionally say that this move reinforces the government’s stance to forbid personal crypto as tender whereas providing voters with an edict various to constant.

 Ashish Singhal, the Chief executive officer of CoinSwitch, Kuber, one of the largest crypto platforms in India, has welcomed the government’s call to introduce such a CBDC within the Indian economy to accelerate conversion. Many other relevant stakeholders have also favored the government’s approach towards cryptocurrencies. “The budget finally answers important questions on how crypto assets will be taxed. It talks about launching CBDC that will accelerate digitization. Improving digital payments will introduce more digital-savvy Indians to explore new forms of investing & wealth creation,” “We hope to work with the government to help bring crypto-asset taxation at par with other asset classes and participate in the central government’s vision to promote economic growth.” tweeted Ashish Singhal.[1]

Ahead of the Budget, several outstanding stakeholders demanded a lot of clarity on cryptocurrencies, as well as relating to their corresponding taxation and GST rules. With these developments, it’s clear that the government doesn’t intend to “ban” cryptocurrencies shortly. Such recognition of virtual assets within the national Budget and therefore the imposition of clear tax rules have created optimism among investors concerning their investments. For most crypto investors out there, the introduction of a 30 percent tax rate is welcomed, even though it’s beyond alternative asset classes like stocks or bonds. when recorded uncertainty, concerning the fate of virtual currencies, the mere undeniable fact that cryptocurrencies are here to remain could be a relief to several. The Budget affirms India’s conviction to forge a progressive and technology-driven future. Though this is often not equivalent to giving cryptocurrencies the status of a tender, the acceptance of cryptocurrencies is an enormous move. The leading crypto platforms like CoinSwitch, Kuber are quite hospitable of this accommodative stance. The government has certainly reciprocated with an extended approach in its stance towards crypto within the last year. Several hope that this positive outlook toward cryptocurrencies can still mean good things for cryptocurrencies and their numerous applications: Web3, dApps, Defi, and others.

With governments of various countries having different attitudes towards considering cryptocurrency as a tender, folks unaware of its mechanism consider it to be a risky investment. The worth of cryptocurrency is extremely volatile as a result its value depends on its demand. For instance, if one thousand members wish to shop for bitcoins, their worth will increase. And at an equivalent time, if one thousand members sell their bitcoins to invest in another cryptocurrency for instance Ethereum, the worth of bitcoin might decrease. Cryptocurrencies are still within the initial stages and the technology is continually evolving. So, if cryptocurrencies are evolved in such a way that the loopholes are resolved, they will contend with the formal monetary establishments. The current variety of distinctive active users of cryptocurrency wallets is calculable to be between 2.9 million and 5.8 million.

Vanuatu, a Pacific Island Nation, placed within the South Pacific Ocean became the primary nation to just accept Bitcoin in Exchange as payment for its citizenship program. Keeping in mind, the decentralized storage and security, it’s attainable to mention with no hesitation that blockchain technology is futurist and revolutionary with the superior skill to enhance and develop new systems in numerous fields. It is extremely unlikely that the demand for cryptocurrency can beat the demand for normal currency, because of the high risk concerned. However, the point should be noted that each coin features a distinctive code and thus all the transactions of each coin are going to be recorded. It is often a beautiful conception to eliminate opaqueness within the economy. Also, with the blockchain, it’s exciting to visualize what its next huge accomplishment might be!


[1] https://twitter.com/ashish343?lang=en

Author: Prachi Garg, Reva University

Editor: Kanishka VaishSenior Editor, LexLife India

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

Reading time : 8 minutes

ABSTRACT

This paper explains the subordinate authority and the function of delegated power by the legislative body. Delegating power and ensuring that it is not exercised in an abusive or ultra-vires manner. The control mechanism is discussed in the paper, which is mainly of three types (1) Parliamentary or Legislative Control, (2) Judicial Control, and (3) Executive or Procedural Control. Here parliamentary control is exercised by the legislation itself, that committee are established to look upon the working of the executive. Judicial control looks at whether the rules that are so drafted are not ultra-vires in nature to the main act and enabling act and lastly, procedural control talks about the procedures for making rules is exclusively mentioned in the law and the executive must follow the procedures. The main three components under procedure control are to consult with the expert authority, the publication of the delegated rule or ordinance, and lastly the laying off of the rules by the executive to the parliament. Main committees for legislative control and the stages on which legislative control is carried out by the legislation. Lastly, the important cases which carve out the existence and working of delegated legislation in India.

Keywords – Delegation, control, procedural, Standard operating procedure, Epidemic Disease Act of 1897.

1. A theoretical approach to control mechanism. An introduction.

As we know that delegated means to transfer some power to other entities, i.e., in this scenario parliament is transferring some powers to the executive so that the flow of work is much more fluid and affects the people at ground level whether positively or negatively. Here, the executive acts as the main component as executive control working of the entire nation regarding several areas such as Public Welfare Department, Income Tax department, etc. In both levels, whether it is at the state level or central level, these administrative agencies aim to provide a better workflow and better supervisory guidance.

Here, in spite of having all these functions, there should be some control either procedural or structural so that the executive doesn’t act over its delegatory powers. As it is not stated in the constitution specifically that when delegating power there should be some control, but giving rulemaking power should be attached with some procedures with talks about control of that power and hence when some law dictates or delegates rulemaking power to executive then the law itself contains procedure or rules that direct the control and working procedure for the delegated law.[1]

Here, the Control mechanism is not by parliamentary law but in some of the cases, higher administrative authorities control the working procedures of the small administrative authorities. Courts by exercising can control the working of administrative authorities and tribunals such as writs of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto and can also exercise by orders such as order of injunction and declaratory injunctions which by the way ensures that natural justice is followed and it keeps a good control on administrative functions.[2]

1.1 – Types of Control Mechanism

There are three types of control –

1. Parliamentary or Legislative Control.

2. Judicial Control

3. Executive or Procedural Control

1.1.1 – Parliamentary Control – Under the Parliamentary control, Parliaments looks upon the working and functions of the executive and it is the inherent function given in constitution and it is controlled and looked upon the initial stage and direct stage. Here at the initial stage when delegating powers it is looked upon by the parliament how much power should be delegated and secondly in the second stage after the rules which are prepared by the central government should be laid off before the parliament for further inspection.

1.1.2 – Judicial Control – Here as the name suggests that the rules so made by the executive are under the ambit of the law and do not violate any articles regarding fundamental rights and other necessary articles in the constitution of India. It is the duty of the judiciary to remove the law which is violative in nature or ultra vires in nature.

1.1.3 – Procedural control of Executive control – In this, the procedures for making rules are exclusively mentioned in the law and it is mandatory for the executive to follow the procedures. The main three components under procedure control are to consult with the expert authority, the publication of the delegated rule or ordinance, and lastly the laying off the rules by the executive to the parliament.

2.  Some important factors responsible for the growth of delegated legislation in India.

2.1 – Firstly, the most obvious factor would be the flexibility of the executive towards every governmental agency and as we know parliament can’t control each and everything on its own as there will be an enormous workforce and it can’t be controlled by a single entity and also the process of amendment is a cumbersome and lengthy process instead here parliament make rules after analyzing the situation and delegating it to the executive.

 2.2 – Secondly, would be the technicality of the subject, it is not possible for the parliament to look upon that technical subject matters hence it transfers powers to someone who is expert in that area, for example, to deal with the areas of drugs, energy, etc.

2.3 – Thirdly, In an emergency situation it is not possible for the parliament to come up with a solution to cope with the situation, then in this type of situation delegated legislation comes into the picture, and also executive is given more powers in this scenario and the best example of this would be Sec 2 of the Epidemic Disease act[3], which gives power to central gov to frame out rules in case of a pandemic emergency.

2.4 – Fourthly, the activities arising in the states are arising at alarming rates such as in the areas of drugs, petroleum, engineering, etc, it is very difficult for one entity to look upon all of this, hence parliament made policies and delegates the power to the executive to make laws accordingly.

2.5 – Also, it saves a lot more time for parliament as the executive can draft and make laws accordingly much faster and more accurately by analyzing the situation for the same and making laws accordingly.

3. Theoretical approach to Parliamentary Control (Stages for the passing of SOP)

Under the Parliamentary control, Parliament looks upon the working and functions of the executive and it is the inherent function given in constitution and it is controlled and looked upon the initial stage and direct stage. Here at the initial stage when delegating power it is looked upon by the parliament how much power should be delegated and secondly in the second stage after the rules which are prepared by the central government should be laid off before the parliament for further inspection.

In this, it is under the state legislature that to take a look upon the rules created by the executive and whether it is violating its rulemaking power and acting in an ultra-vires manner and in this scenario, the state legislature possesses the power to penalize the agency so responsible by taking away the power to make law regarding that subject matter or investigating the agency for frauds or in the worst scenario abolishing or reorganizing the agency.[4]

In India, parliamentary control is carried out in two main stages. 1. Initial Stage 2. Direct Stage and Indirect Stage[5]

3.1Direct Stage – It is the starting phase where the legislative is making laws and looking and analyzing the law how much rule-making power is needed to delegate to the executive to work properly and in a fluid manner and whether the power delegated is not violative in nature and in the purview of the law. It is the first and the foremost initial level of Parliamentary control.

In Second stage it is divided into two parts, Direct and Indirect Control.

3.2Direct Control – It is the stage where the executive after drafting the rules has to lay off before the parliament for its inspection process. And here laying is of three types[6]

3.2.1Simple Laying – It is the weakest form of laying, here as soon as the layoff is given it is passed by the parliament. Here, we can say that it is only laid off to inform the parliament about the rules and regulations.

3.2.2Laying as to negative resolution – Here also the regulations come into force after the laid off and the process of acceptance is not time taking but there is time period only after that it will come into effect it can be void if a negative resolution is passed by the parliament. That is the reason it is called negative resolution.

3.2.3Laying as to affirmative resolution – Here, it is passed by the resolution of the parties of the parliament and until that time it shall cease to have no effect at all. After passing the resolution, it needs to be accompanied by an affirmative resolution by the parliament, afterwhile it will come into effect.

The two main test here is the Test of Mandatory and Directory, in case of mandatory, if the law itself says the procedure to draft in the format mentioned then it should be strictly followed by the executive. In the case of the Directory, here it is first approved by the parliament and then enforced as such in the public law.

3.3Indirect Control – Here to look upon the working of the executive committees are made for specific areas and their purpose is to look upon the rules made are in the purview of the law and enacted as stated in the law, to look upon the retrospective effect of the rules, that it is in the purview of the natural justice and it safeguards the public interest and the expenditure so use is from the specified fund which is allotted for this purpose.

4. Theoretical approach to Judiciary Control. (Role of judiciary in respect of execution)

Here as the name suggests that the rules so made by the executive are under the ambit of the law and do not violate any articles regarding fundamental rights and other necessary articles in the constitution of India. It is the duty of the judiciary to remove the law which is violative in nature or ultra vires in nature.

4.1Parent Act is ultra-vires to the constitution – This control is not exclusively but partially covered under Sec 13(3) (a)[7] of the constitution of India which mentions no rules or law should be made with violated the components mentioned in Part 3 of the constitution or violate any fundamental right and also should not be ultra-vires to the constitution of India and also to the law from where that rule is derived. Here, when the ultra vires power is exercised then the court looks upon the agency on which the power is distributed that is the main and discretionary agency, not the lower agency as it is obvious that these lower agencies work under the supervision of the principal agency and then gives proper jurisdiction and gives the order for the same. Further, the legislative power and its distribution should not violate List 1, 2, and 3 of the 7th Schedule, that it is not following retrospective effect under Article 20 and also no the violation of commerce clause which is stated under Article 301 of the constitution

In the situation where there is a question regarding the question of law and question of fact, then it is in the hands of the judiciary and it becomes essential in this scenario that a judicial review should be taken as this type of issue can’t be corrected by the amendments but rather court should provide orders to confine powers and it does not violate the laws and rights conferred by the constitution of India.

4.2Delegated legislation is itself ultra-vires to the constitution – Here the question arises on the delegation power itself where this power should be delegated to the executive. The enabling act may be safe but the delegation itself may be infringing the constitution of India. In the case of Dwarka Prasad Laxmi Narain v State of U.P.[8], talks about the order and provisions of the U.P. coal Control Order 1953, here Sec 3(2) of the Essential Applies Act 1946, was found to be ultra-vires as it is infringing the Article (19((1)(g) of the constitution.

5. Theoretical approach to Executive control or Procedural Control

Procedural control of Executive control – In this, the procedures for making rules are exclusively mentioned in the law and the executive must follow the procedures. The main three components under procedure control are to consult with the expert authority, the publication of the delegated rule or ordinance, and lastly the laying off the rules by the executive to the parliament. The main parameters for the executive control here are the intention of the legislature behind making the law, the main scheme of the act and its main intention and procedure, and the main language used in the law, main properties the language is trying to mention and lastly, it should be in the purview of the public welfare.

5.1 – Prior publication of Rules and ordinances – Here the executive must publish the rules and regulations conferring from the parent law and it is also deemed to be necessary under Sec 23 of the General Clauses Act 1897, that the concerned authority shall publish in the public interest and if any objections regarding that are given it should also be taken in consideration by the authority and should be finalized and republish the same.

5.2Prior consultation which may be affected by the delegated legislation – In India, there are no such general laws that state that consultation should be taken by the parties who are affected by the proposed rule and the process which was involved during lawmaking. Here, in some laws, it formerly states that firstly to consult and take the considerations for the same and after then frame the rules and regulations. In some statues, there are also provisions that state that no hearing or consultation can be claimed by anyone as a matter of right and in the sense of natural justice, when the administration is working in other functions or discharging other liabilities then the same cannot be challenged on the ground that the concept or principle of natural justice was not considered by the executive or parliament. Also. This Hon’ble Supreme Court of India stated that the principles of natural justice will not apply in the cases of legislative action or plenary action and here the proceeding or the process of hearing can’t be carried out by the court.

6. Important cases related to the Control Mechanism of Delegated legislation in India.

6.1 – Avinder Singh v. the State of Punjab, AIR 1979 SC 321[9] – In this, Justice Krishna Iyer emphasized the necessity of parliamentary control and mentioned that it should be continued and should be considered as a constitutional necessity. He further added as we know the legislature has control over the executive as it is his agents, so it is the function of its legislature if it seems or observes that some powers regarding rulemaking need to be transferred and it is not only the right but also the obligation on the legislature that it looks upon the working of the executive and whether the power is utilized as stated in the law. It is the delegatory responsibility of the parliament to supervise, control, and exercise its power so that there will not be any cases regarding ultra vires or abusive use of power by the executive. The parliamentary control is divided basically into two stages – 1. Pre-enactment control 2. Post-enactment control provides safeguards against abusive use of power.

6.2 Atlas Cycle Industries Ltd. V. State of Haryana, AIR 1979 SC[10] – The main issue here is that where the rules that provide delegated legislation are mandatory rules and shall be followed or just directory in nature. Here, the court held that the use of shall is not conclusive in nature and here the intention of the legislature is not given importance when comes to the rules of delegated legislation. Further, it was added that it is not possible for the legislature to look upon and control the executive as a single entity as an executive is a merge of several subjects, areas of workings and productions, so in this scenario, several separate scrutiny committees should be formed so that it can control the working of the executive more fluently. The main function of these committees would be –

6.2.1 – The rules that are framed by the executive are according to the parent act or enabling act and necessary obligations and procedures are followed.

6.2.2 – To look upon the specific rules that need to be dealt with more specifically and where it can be a more appropriate way of dealing with that rule.

6.2.3 – To ensure the rules are not exercised in a retrospective manner, and lastly these committees also help to discharge some workforce from the legislature.

6.3Indian Express Newspapers (Bom) P. Ltd v. Union of India[11] – In this case, the question was regarding the grounds on which subordinate legislation can be questioned and it was outlined in this case. Here, the court observed that subordinate legislation should not be treated as the principal legislation and it doesn’t carry that much power which is enjoyed by a full-fledged competent legislative authority. Subordinate legislation can be questioned on many grounds as the legislation thinks fit. The grounds here can be that the rules which are framed out of the parent act or enabling act, whether it is ultra-vires in nature and also whether it is contrary to some another statute. This is done because subordinate legislation is the yield of the plenary legislation and it should exercise under the control of the principal legislation. The further questionable ground would be on the basis that whether it is reasonable or not and also whether it is manifestly arbitrary.

7. Conclusion

Delegated legislation shows how some powers are transferred from the legislative to the executive so that it ensures fluid working of the legislation as the single entity can’t perform every aspect of the state and central government on its own. Transferring of powers also comes up with the control mechanism, that it is not used in ultra-vires or in an abusive manner and should not contravene with the enabling or parent act or the other act. The three main control mechanism in India is Judicial control, Procedural Control, and Legislative control. Under the Parliamentary control, Parliament looks upon the working and functions of the executive and it is the inherent function given in constitution and it is controlled and looked upon the initial stage and direct stage. Here at the initial stage when delegating power it is looked upon by the parliament how much power should be delegated and secondly in the second stage after the rules which are prepared by the central government should be laid off before the parliament for further inspection. Here in the case of judicial control that the rules so made by the executive are under the ambit of the law and do not violate any articles regarding fundamental rights and other necessary articles in the constitution of India. In the case of procedural control, procedures for making rules are exclusively mentioned in the law and it is mandatory for the executive to follow the procedures. The main three components under procedure control are to consult with the expert authority, the publication of the delegated rule or ordinance, and lastly the laying off the rules by the executive to the parliament.


[1] Sayjal Deshpande, Control Mechanism Of Administrative Rule-Making Power, Legal Bites, (Dec 23, 2019), https://www.legalbites.in/control-mechanism-of-administrative-rule-making-power/#:~:text=Control%20Mechanism%20Of%20Administrative%20Rule%2DMaking%20Power%20%7C%20Overview&text=Administrative%20rulemaking%20is%20the%20functions,provide%20legislative%20supervision%20and%20guidance.

[2] Author, what is the control mechanism of administrative law, Academic Law Research, Blogger, (December 21, 2012), http://aclawresearch.blogspot.com/2012/12/what-is-control-mechanism-of.html

[3] The Epidemic Disease ACT, 1897, Act No 3 of 1897, Act of Parliament, 1897 (India)

[4] Legislative Controls of Administrative Rule Making Author(s): Orrin L. Helstad, William W. Boyer and Jr.

[5] Diva Rai, Delegated Legislation and its control, Ipleaders, (June 24, 2019), https://blog.ipleaders.in/delegated-legislation/

[6] Hemant More, Parliamentary control over delegated legislation, The fact factor, (October 27, 2019), https://thefactfactor.com/facts/law/civil_law/administrative-law/parliamentary-control/4309/

[7] The Constitution of India, 1950, Act of parliament, 1950, (India)

[8] Dwarka Prasad Laxmi Narain v State of U.P, (11 Jan, 1954), 1954 AIR 224, 1954 SCR 803

[9] Avinder Singh v/s State of Punjab, (1979) AIR 1979 SC 321

[10] Atlas Cycle Industries Ltd. v/s State of Haryana, (1979) AIR 1979 SC

[11] Indian Express Newspapers (Bom) P. Ltd v/s Union of India, (6 December 1984), 1986 AIR 515, 1985 SCR (2) 287

Author: Ravi Ranjan, School of law, University of Petroleum and Energy Studies.

Editor: Kanishka VaishSenior Editor, LexLife India

Farm Laws, 2020: An Assault on the Constitutional Principle of Federalism

Reading time : 8 minutes

Abstract

Background: Amidst the Covid-19 Pandemic, the Govt. of India, in the guise of introducing agricultural reforms enacted three Farm Laws. Amongst farmer’s protests, several State Governments also protested against the same on the ground that the Parliament, in enacting the Farm Laws, had overstepped its legislative domain.

Objective: The objective of this paper is to determine whether or not the enactment of the Farm Laws, 2020, by the Parliament, infringed the Constitutional Principle of Federalism by violating the scheme of distribution of legislative powers as provided under Art. 246 r/w Seventh Schedule of the Constitution of India.

Research Methodology: The study undertaken herein is doctrinal research based on data gathered from articles, blogs, research papers, case laws, Govt. reports and academic-books. Reliance has also been placed on statutory and constitutional provisions to substantiate the research.

Addition to Existing Knowledge and Conclusion: The author, after an analysis of the Farm Laws vis-à-vis doctrine of pith & substance, doctrine of colorable legislation and in lieu of established judicial precedents, has established that the Parliament lacked the legislative competence to enact the said Laws under the Seventh Schedule of the Constitution Therefore, it is stated that the Farm Laws undermined the Federal Structure upon which the Indian Constitution is based.

Keywords: Colorable Legislation; Farm Laws, 2020; Federalism; Legislative Competence; Pith & Substance.

Introduction

In India, agricultural markets are primarily regulated by the State Agricultural Produce Marketing Committee legislations, the chief objective of which is to ensure fair trade between buyers and sellers for effective price discovery of agricultural produce. However, the Standing Committee on Agriculture in its Report (2018-19) had submitted that the APMC laws were not implemented in their true sense and thus, there was urgent need for agricultural reforms.[1]

Based upon the same, the President of India, in 2020, under Art. 123 of the Constitution of India, promulgated three Ordinances namely, 1) The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020; 2) The Farmers’ (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020; 3) The Essential Commodities (Amendment) Ordinance, 2020. Subsequently, the Central Minister of Agriculture and Farmers’ Welfare introduced two bills replacing the above-mentioned ordinances which consequently received the President’s assent.

The three laws (‘Farm Laws’) so enacted, aimed to increase the availability of buyers for agricultural produce, by allowing them to trade freely without any license or stock limit, so that an increase in competition among them results in better prices. While it appears that the Farm Laws do not suffer from any fault, several State Governments have raised their objection w.r.t the Parliament’s legislative competence to enact the said laws. Thus, the author, in this paper analyses the constitutional validity of the Farm Laws vis-à-vis the Parliament’s legislative competence while also seeking to establish as to whether or not the enactment of the Farm Laws, being outside the Parliament’s scope of powers, violate the Constitutional Principle of Federalism.

Firstly, let’s understand the Constitutional provision(s) dealing with legislative competence of the Legislature and distribution of legislative powers between the Centre and States.

I.        Scheme of Distribution of Legislative Powers Under the Indian Constitution

Art. 246 of the Constitution of India, clearly demarcates the legislative powers/fields of the Parliament and the State Legislatures, within which they have to operate.[2] Art. 246(1) expressly states that the Parliament has the exclusive power to enact laws w.r.t any matter enumerated in List I (‘Union List’) under the Seventh Schedule. Art. 246(3) provides that the State Legislatures are vested with the exclusive powers to make laws w.r.t the subjects enumerated in List II (‘State List’). Lastly, Art. 246(2) provides that both the Parliament and the State Legislatures have the power to make laws w.r.t the subjects enumerated under List III (‘Concurrent List’).[3]

Since, the author seeks to analyse the constitutional validity of the Farm Laws, reference has to be made to “State of A.P. v. McDowell & Co.”,[4] wherein it was held that, to determine the constitutional validity of the impugned law, it will have to be tested on 2 main grounds namely, “legislative competence and violation of fundamental rights or any other Constitutional provisions”. In the context of the present issue, it’s only the first ground which is relevant.

In this paper, the author, by relying upon Constitutional provisions, principles and judicial precedents, analyses whether or not the Parliament, by enacting the Farm Laws has violated the scheme of distribution of legislative powers under the Constitution thereby, infringing the principle of Federalism.

II.      Challenge to Parliament’s Legislative Competence to enact the Farm Laws, 2020 under the Union List

The Union List under the Seventh Schedule of the Constitution of India consists of ninety-seven items, w.r.t which, only the Parliament has the exclusive powers to enact laws.[5] W.r.t the present issue, it is to be noted that under the Union List, there are a total of 4 entries which use/mention the word agriculture. These are Entries 82 – “Taxes on income other than agricultural income”, 86 – “Taxes on the capital value of assets, exclusive of agricultural land, of individuals and companies, taxes on capital of companies”, 87 – “Estate duty in respect of property other than agricultural land” and 88 – “Duties in respect of succession to property other than agricultural land”.

Upon a close analysis of all the above-mentioned Entries, it can be observed that the Parliament’s exclusive powers to enact laws w.r.t the same has been restricted when it comes to agricultural sector. This is evident by the usage of words like “other than” and “exclusive of”.[6]

Therefore, the author hereby submits that, the Parliament, under the Union List, has no actual legislative competence to enact the Farm Laws which deal with the subject of agriculture, as the same has been kept outside its scope.

III. Challenge to Parliament’s Legislative Competence to enact the Farm Laws, 2020 under the State List

The State Legislatures have the sole prerogative to enact laws w.r.t all of the sixty-six items enumerated under the State List under the Seventh Schedule of the Constitution.[7] Before delving into the Parliament’s legislative competence to enact the Farm Laws, 2020 under the State List, it is important to note herein that the distribution of legislative powers enumerated under Art. 246 must be strictly enforced and neither the Parliament nor the State Legislatures can encroach upon the domain reserved for the other.[8]

There are however, certain exceptions wherein the Parliament can enact laws w.r.t the items contained in the State List.[9] These exceptions are: Parliament’s power to enact laws dealing with a State subject: “(a) in the national interest,[10] or (b) while the proclamation of an emergency is in operation,[11] or (c) if two or more States agree that it is desirable to take the Parliament’s aid to enact a single legislation w.r.t a State subject,[12] or (d) for the whole of India or any territory contained therein, in furtherance of giving effect to international treaties/agreements,[13] or (e) if there is a Proclamation to that effect, in case of failure of constitutional machinery in the States.[14]” It is worthwhile to mention that, the enactment of the Farm Laws is not in furtherance of any of the above-mentioned exceptions and thus, the Parliament didn’t have the legislative competence to enact the Farm Laws even under the State List.

Regarding the State List entries, it is to be noted that ‘Agriculture’ is a State Subject as enumerated under Entry 14 of the State List and thus, only the State Legislatures have the exclusive power to legislate upon the same.

Besides Entry 14 of State List, Entries 18 (land…transfer and alienation of agricultural land, land improvement and agricultural loans…), 28 (markets and fairs), 30 (money-lending…relief of agricultural indebtedness), 45 (land revenue…and the maintenance of land records…), 47 (duties in respect of succession to agricultural land) and 48 (estate duty in respect of agricultural land), clearly establish the intention of the framers of the Constitution that “Agriculture” is exclusively a State subject which is beyond the domain of legislative powers of the Parliament. The same has been contended in the Writ-Petitions filed by Bharatiya Kisan Party[15] and D.P. Dhakad[16] against the Union of India and Ors. and Union of India Through Secretary, Ministry of Agriculture and Farmers’ Welfare and Ors., respectively, wherein the constitutionality of the Farm Laws was challenged.[17]

Pursuant to the above Entries and the subject matter contained therein, it can be said that the Parliament, by enacting the Farm laws that essentially deals with agriculture which is a State subject, has impinged upon the legislative domain reserved for the State Legislatures and therefore, the same are ultra vires.

Reference has been made to the Report of Expert Committee and Inter Ministerial Task Force, constituted by the Ministry of Agriculture in 2000, wherein they had to review the present system of marketing and accordingly make recommendations. W.r.t these recommendations the State Governments had clearly expressed that, “reforms in the agricultural marketing sector… In view of liberalization of trade and emergence of global markets, it was necessary to promote development of a competitive marketing infrastructure in the country and to bring about professionalism in the management of existing market yards and market fee structure…”[18]

W.r.t the views expressed by the State Governments, as provided above, reliance has to be placed on “ITC Ltd. vs. Agricultural Produce Market Committee”,[19] wherein the Supreme Court while dealing with a conflict between a Parliamentary law i.e. the Tobacco Board Act, 1975 (defended under Entry 52 of the Union List) and Bihar’s APMC Act (defended under Entry 28 read along with Entry 66 of the State List), had upheld the State Legislature’s exclusive power to legislate on matters dealing with agriculture. The majority Bench also observed that constitution of market areas, market yards and regulation of use of facilities within such areas or yards by levying market fee is a matter of local interest and the State Legislatures are wholly competent to legislate w.r.t the same under the State List.

Therefore, keeping in mind that the views expressed by the State Governments are consistent with the Court’s observation, it can be concluded that the Parliament by enacting the Farm Laws, has encroached upon the legislative domain reserved for the State Legislatures.

Moreover, it has been held in “Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd.”[20] that the usage of the term ‘exclusive’ under Art. 246(3) essentially denotes that, within the legislative fields contained in the State List, the State Legislatures’ authority to enact laws is as plenary and ample as the Parliament’s. Therefore, since, ‘Agriculture’ and ‘Markets’ are State subjects under List II and the Farm Laws, in principle and content deal with the same, only the State Legislatures are competent to enact laws regarding the same.

IV.            Farm Laws, 2020 – Ultra-Vires under the Concurrent List

Clause (2) of Art. 246 of the Constitution empowers both the Parliament and State Legislatures to legislate w.r.t any of the 47 matters enumerated in the Concurrent List, but this power is subject to Parliament’s exclusive legislative power under Clause (1), and notwithstanding anything contained in Clause (3).[21]

Under the Concurrent List, the usage of the term ‘Agriculture’ can be traced to Entries 6 – “transfer of property other than agricultural land…” and 7 – “contracts including partnership, …but not including contracts relating to agricultural land”, both of which, akin to those contained in the Union List, exclude the matters relating to ‘Agriculture’. Thus, it is to be noted that neither the Parliament nor the State Legislatures can resort to the above-mentioned entries to enact laws regarding the same. However, ‘Agriculture’ being a State-subject, empowers the State legislature to enact laws regarding the same.

Moreover, reference has to be made to Entry 41 of the Concurrent List which empowers both the Parliament and the State Legislatures to enact laws on the subject of “custody, management and disposal of property (including agricultural land) declared by law to be evacuee property”. However, in the present case, the three Farm laws that are in question, do not relate to agricultural land and therefore, Entry 41 of List III, also cannot be resorted to by the Parliament to have enacted by the Farm Laws, 2020.

On that note, it is pertinent to note that the Centre has not resorted to any of the above-mentioned entries but has instead relied upon Entry 33 of the Concurrent List to justify its legislative action of enacting the Farm Laws.

Entry 33 of the Concurrent List reads as follows:

Trade and commerce in, and the production, supply and distribution of — (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute.

At this point, it important to analyse the Farm Laws by applying two important principles of interpretation i.e., the doctrine of pith and substance and doctrine of colourable legislation.

IV.I     Analysis of the Farm Laws, 2020 through the Lens of Doctrine of Pith and Substance & Doctrine of Colorable Legislation.

The doctrine of pith and substance is applied in cases where the legislative competence of a Legislature w.r.t a particular law, is challenged w.r.t entries in different Legislatives Lists, because a law dealing with a subject in one List within the competence of the enacting Legislature also incidentally touches upon a subject contained in a different legislative list which isn’t within the legislative competence of the concerned Legislature.[22] In such category of cases, the true character and the nature of the impugned legislation have to be ascertained for which the legislation as a whole, its object, scope and the effect of its provisions have to be taken into consideration following which it is to be determined that under which list does the true nature and character of the impugned law falls.[23]

In furtherance of the doctrine of pith and substance, the doctrine of colorable legislation essentially states that, “if a statute doesn’t fall within the lawful jurisdiction of a legislature in its pith and substance and transgresses into the realm of another Legislature but is made to appear in its presentation and shape as if the law were intra-vires, it would amount to a colorable legislation”.[24] It is to be noted that this doctrine is only relevant when the legislative competence of a Legislature is in question[25] and it bars a legislature from legislating on an object outside its legislative powers under the disguise/pretense of exercising its own powers.[26]

In the present case, analyzing the Farm Laws through the lens of the above-mentioned doctrines in order to ascertain as to whether or not the Parliament had the legislative competence to enact the impugned laws under the Concurrent List, reference has to be made to the Statement of Objects and Reasons of Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (‘Promotion and Facilitation Act’) which states that it is an Act “to provide for a parallel system for the purchase or sale of farmers’ produce outside the existing system of market yards of the State APMC”. Further, it defines farmer as, “a person engaged in the production of the farmers’ produce…”[27] and farmers’ produce as “(i) foodstuffs including cereals like wheat, rice… and raw jute”.[28]

The Parliament has incorporated terms such as ‘farmers’ and ‘farmers produce’ instead of ‘agriculturalist’ and ‘agricultural produce’, as used under Section 2(2)[29] & Section 2(1)[30] of the State Agricultural Produce Marketing (Development and Regulation) Model Act, 2003 (‘2003 Model Act’) and Section 2(4)[31] & Section 2(3)[32] of the Model State/UT Agricultural Produce and Livestock Marketing (Promotion and Facilitation) Act, 2017 (‘2017 Model Act’) respectively.

In addition to the above, Section 3 of the Promotion and Facilitation Act, 2020 has to be referred which talks about the farmer’s freedom to conduct trade and commerce in a trade area. It is pertinent to note herein, that the usage of the phrase trade and commerce essentially refers to the basic act of buying and selling agricultural produce, which again, both under the 2003 Model Act & 2017 Model Act has been referred to as ‘marketing of the agricultural produce’ {Section 2(31)} and ‘marketing’ {Section 2(26)}, respectively.

Further, reference has to be made to Section 6 of the Promotion and Facilitation Act, 2020 which expressly prohibits States from levying market fee/cess, which is in complete contravention to the law laid down under ITC Ltd. vs. Agricultural Produce Market Committee”.[33] It is worthwhile to mention herein that the Hon’ble Supreme Court in “K.C. Gajapati Narayan Deo vs. State of Orissa”[34]  has held that the State Legislature is certainly competent to enact laws dealing with imposition of taxes on agricultural income and that such a law was not a colourable piece of legislation.

Also, in “State of Rajasthan v. G. Chawla”,[35] it was held that “it is equally well settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given.” Relying upon the same, it can be stated that since ‘Markets’ is a State Subject, levying market fee being an ancillary matter is something that only the State Legislatures can legislate upon. This clearly establishes an intrusion into the legislative field reserved for the States.

Reliance is also placed on Thakur Amar Singhji vs. State of Rajasthan”,[36] wherein it was held that the name given to a legislation cannot be regarded as a conclusive record about the subject matter of the Act. Therefore, although the title of the Farm Laws has been wittily worded to give the impression that they deal with trade and commerce, the name of the Act bearing the phrase trade and commerce cannot be used to describe the subject matter of the legislation.

Moreover, the author emphasizes the Statement of Objects and Reasons of the Farmers’ (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 which states that the objective of the Act is “to promote national framework on farming agreements and to empower the farmers to engage in the sale of farming produce”. It is to be noted that despite the terms used in the Statement of Objects and Reasons of the said Act, the essence of the legislation remains that it provides for a farming agreement for the purpose of purchase and sale of agricultural produce.

Therefore, it can be stated that although the usage of the nuanced words indicate that the impugned legislations deal with Trade and Commerce, which is a Concurrent subject, the pith and substance of these laws are – ‘agricultural produce’, ‘harvest of an agriculturalist’, ‘purchase and sale of agricultural produce’, and ‘marketing of agricultural produce’. Since, the pith and substance of the Farm Laws, by virtue of Entry 14 of the State List, fall under the State Legislatures’ exclusive domain, the Parliament has resorted to colorable devices to show that the laws are more connected to Entry 33 of the Concurrent List and deal with essential commodities and trade and commerce.

IV.II       Doctrine of Pith & Substance & Doctrine of Colorable Legislation Vis-A-Vis the Indian Judiciary

The Hon’ble Supreme Court has often reiterated that “where the Parliament’s legislative competence to enact a law is challenged, the question that is to be asked is whether it relates to any of the entries in the State List and if it doesn’t, then no further question need be asked and Parliament’s legislative competence must be upheld.”[37]

In “State of Rajasthan vs. G. Chawla”,[38] a legislation enacted by the State Legislature under List II, which restricted the use of sound amplifiers, was challenged on the grounds that the State Legislature was not competent to do so as the matter fell within List I. It was held by the Hon’ble Supreme Court that the impugned legislation, in its pith and substance dealt with public health and sanitation and was therefore, not invalid, even though it incidentally encroached[39] upon the Union subject of broadcasting or communication. Thus, by relying upon the same, it can be stated that in the present case, the Parliament by relying upon Entry 33 of List III will still not be competent to enact the Farm laws as these laws, in pith and substance clearly deal with agriculture and agricultural matters which is a State subject.

Lastly, it is to be noted that as already established above, the Parliament has color quoted certain terms and phrases to disguise the Farm Laws as falling under Entry 33 of List III when it actually belongs in Entry 14 of the List II. Therefore, every piece of legislation dealing with agriculture comes under the exclusive legislative competence of the State Legislatures by virtue of Entry 14 r/w Entries 18, 28, 30, 45, 47 & 48 of the State List. Thus, the Farm Laws clearly transgress into the legislative field reserved exclusively for the State Legislatures and hence, the Central Legislature has acted outside of the scope of its legislative competence to enact the same.

V.  Parliament’s Strike on the Constitutional Principle of Federalism

The Indian Constitution, is based on the principle of Federalism implying that it provides for a simple demarcation of the fields under which the Central and the State Legislatures are eligible to legislate.[40] It is obvious that, “the entries in the Constitutional Lists play a significant role in examining the legislative field taking its source of power from Art. 246 of the Constitution”.[41] But in case of an encroachment of the legislative fields, the scheme of distribution of powers would stand violated thereby, violating the principle of Federalism.

In “Keshavananda Bharati vs. State of Kerala”,[42] it was held that the federal scheme of the Indian Constitution is one of its fundamental frameworks. Moreover, “the fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-à-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, the States are supreme. The Centre cannot tamper with their powers…”.[43]

 In case of overlapping entries between List II and List III, the State List subject shall prevail.[44] Since, in the present case, the Parliament has not incidentally encroached upon but has instead transgressed into the legislative field reserved for the States, it has violated the federal scheme of the Constitution.

Therefore, the essence of federalism in the context of the present issue is that the exclusive authority of a legislature cannot be infringed by another. However, the Parliament by enacting the Farm Laws dealing with ‘Agriculture’, has impinged upon a legislative field exclusively reserved for the State Legislatures. Thus, a violation of the distribution of legislative powers which is one of the most important features of a Federal Constitution, automatically infringes the Federal Scheme of our Constitution, thereby, violating the basic structure of the Constitution.[45]

Conclusion

After a detailed analysis of all the Entries contained in the Union, State and the Concurrent Lists, as provided under the Seventh Schedule, it can be concluded that the enactment of the Farm Laws, 2020 violates the scheme of distribution of legislative powers provided under Art. 246. Firstly, the author has established that the Parliament lacked the legislative competence to enact the Farm Laws not only under the Union List but also the State List.

The issue, arises as the Centre claims to have enacted the Farm Laws under Entry 33 of the Concurrent List. However, it is worthwhile to mention that after analysing the scope, object and the effect of the provisions, it can be said that the Farm Laws, in pith and substance clearly deal with the subject of ‘Agriculture’, which is a State Subject. The said laws use certain nuanced terms and phrases giving the impression that they have been enacted in furtherance of a Concurrent subject, while in fact, they actually deal with a State-subject. Therefore, it is in fact, a colourable legislation.

Moreover, to conclude, it is stated that the Parliament, by enacting the Farm Laws has exceeded the scope of the legislative powers and has intentionally transgressed into the legislative field allotted to the State Legislatures by the Constitution. Such an encroachment violates the federal scheme of the Constitution of India and thereby, violating the basic structure of the Constitution.


[1] Directorate of Marketing and Inspection, “Final Report of the Committee of State Ministers, in-charge of Agriculture Marketing to Promote Reforms” (Ministry of Agriculture, 2013).

[2] State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571.

[3] Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd., (2007) 6 SCC 236.

[4] (1996) 3 SCC 709.

[5] Govt. of A.P. v. J.B. Educational Society, (2005) 3 SCC 212.

[6] Bishwajit Bhattacharyya, “How Parliament overstepped itself in bringing the three Farm Laws” The Wire, 21 January 2021, available at <https://thewire.in/agriculture/how-the-parliament-overstepped-in-bringing-the-three-farm-laws&gt; (last visited on 7 February, 2022).

[7] Kerala SEB v. Indian Aluminium Co. Ltd., (1976) 1 SCC 466.

[8] Poonam Sonwani, “Distribution of Legislative Powers under the Indian Constitution” 7 IOSR-JHSS 39-40 (2016).

[9] Uday Raj Rai, Constitutional Law I 394-397 (EBC Publishing (P) Ltd., 1st edn., 2016).

[10] The Constitution of India, art. 249.

[11] The Constitution of India, art. 250.

[12] The Constitution of India, art 252.

[13] The Constitution of India, art 253.

[14] The Constitution of India, art. 356.

[15] LiveLaw, available at: https://www.livelaw.in/pdf_upload/pdf_upload-382414.pdf (last visited on 8 February, 2022).

[16] LiveLaw, available at: https://www.livelaw.in/top-stories/new-agriculture-reform-laws-allow-big-investors-to-poor-farmers-with-liability-clauses-beyond-their-understanding-mp-farmers-leader-moves-sc-163942 (last visited 8 February, 2022).

[17] Rakesh Vaishnav and Others v. Union of India, (2021) SCC OnLine 18.

[18] Press Information Bureau, Government of India, “Task Force Set up to suggest measures”, available at: https://archive.pib.gov.in/archive/releases98/lyr2002/rsep2002/27092002/r270920028.html (last visited on 8 February, 2022).

[19] (2002) 9 SCC 232.

[20] (2007) 6 SCC 236.

[21] Ibid.

[22] E.V. Chennaiah v. State of A.P., (2005) 1 SCC 394; Attorney General for Canada v. Attorney General for British Columbia, (1930) AC 111 (PC); Russell v. R., (1882) 7 AC 829 (PC).

[23] Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., (1947) SCC OnLine 6.

[24] V.N. Shukla, Constitution of India 806-807 (EBC Publishing (P) Ltd., 13th edn., 2017).

[25] B.R. Shankaranarayana v. State of Mysore, AIR 1966 SC 1571.

[26] Attorney General of Alberta v. Attorney General of Canada and Others, (1938) SCC OnLine PC 43.

[27] Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (Act No. 21of 2020), s. 2(b).

[28] Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (Act No. 21of 2020), s. 2(c).

[29] “Agriculturist means a person who is a resident of the notified area of the market and who is engaged in production of agricultural produce by himself or by hired labour or otherwise, but does not include any market functionary.”

[30] “Agricultural Produce” means all produce and commodities, whether processed or unprocessed, of agriculture, horticulture, apiculture, sericulture, livestock and products of livestock, fleeces (raw wool) and skins of animals, forest produce etc. as are specified in the schedule or declared by the Government by notification from time to time and also includes a mixture of two or more than two such products.”

[31] “a person who is engaged in production of agricultural produce including rearing of livestock by himself or by hired labor or otherwise, including tenant; “Agriculturist” also includes association of farmers, by whatever name called, registered under any law for the time being in force and is engaged in aggregation of member farmers’ produce including livestock…”

[32] “Include all produce, whether processed or not, of agriculture, horticulture, apiculture, forest excluding trees grown on private land, specified in the schedule.”

[33] Supra note 19.

[34] AIR 1953 SC 375.

[35] AIR 1959 SC 544.

[36] (1955) 2 SC 781.

[37] Union of India v. Shri Harbhajan Singh Dhillon, (1971) 2 SCC 779.

[38] Supra note 35.

[39] State of Bombay v. F.N. Balsara, AIR 1951 SC 318.

[40] Mamta Rao, Constitutional Law 775 (EBC Publishing (P) Ltd., 2nd edn., 2021).

[41] Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority, (2011) 3 SCC 139.

[42] (1973) 4 SCC 225.

[43] S.R. Bommai v. Union of India, (1994) 3 SCC 1.

[44] Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45.

[45] Shreehari Aney & Abhay Anturkar, “Recasting of the Federal Structure of the Indian Constitution”, The SCC OnLine Blog, 2 April 2021 available at: <https://www.scconline.com/blog/post/2021/04/02/indian-constitution/&gt; (last visited on 16 February, 2022).

Author: Nikunj Agarwal, Symbiosis Law School, Pune

Editor: Kanishka VaishSenior Editor, LexLife India

NEET PG 2021 ISSUE AND WHY DOCTORS ARE PROTESTING?

Reading time : 8 minutes

INTRODUCTION.

Thousands of resident doctors have taken to the streets to protest. Several protests have taken place in Delhi over the previous several weeks. A protest march was held near Delhi’s Safdarjung Hospital. Another protest march was held from the Maulana Azad Medical College to the Supreme Court. Several further marches were held to the house of the union health minister. During these events, we witnessed a clash between the police and the protesters. People on both sides claimed that people on their side had been hurt, and the police detained numerous doctors. Around 4000 doctors have been held at Delhi’s Sarojini Nagar police station. Many doctors have also gone to social media in recent months to express their dissatisfaction with the numerous postponements of counselling dates. They took to Twitter with the hashtag # ExpediteNeetPGCounselling2021 and demanded an ‘urgent decision’ to set the dates. Nowadays, it is quite common in protests. The conflict between the police and the protestors, as well as the police’s terrible treatment of the protestors. This protest was initiated by the Federation of Resident Doctors’ Association. However, following the police raid, doctors from AIIMS and the Federation of All India Medical Association have now joined this protest. As a form of protest, the organisation has requested that all resident doctors, including those working in emergency services, quit from their positions. It has been occurring since the end of November. Many resident doctors have started to refuse to work.

The most important question here is why are the resident doctors protesting. What is the true cause behind this? And what are their demands?

NEET BACKGROUND.

The entire issue starts from the NEET PG counselling delay.

Until 2016, the national-level admission test for medical institutions was the All-India Pre-Medical Test (AIPMT). This was the admission test for a range of undergraduate medical programmes. However, in 2013, the government launched NEET, which sought to become the single national medical entrance test, with which one may get admission to any of the country’s medical/dental institutions. Initially, various petitions were filed against the NEET examination in order to prevent it from taking place. By 2017, however, the NEET test has superseded the AIPMT and other medical admission examinations in India. There were only a few other entry tests, such as the AIIMS and JIPMER. By 2019, these exclusions had also been replaced, and the then-Union Health Minister, Harsh Vardhan, stated that, beginning in 2020, all medical institutions in India will have a single admission exam: NEET. The NEET, like the common law entrance test (clat) for law, is now the admission exam for medicine. There are two NEETs: NEET-UG and NEET-PG. If a student intends to study undergraduate medical courses, such as MBBS, after passing 12th grade, he must sit the NEET- UG test. If a student has completed his graduation and wants to pursue postgraduate studies, such as MD (Doctor of Medicine), he must take NEET-PG for NEET Postgraduation. The obligation for conducting the NEET–UG was formerly held by CBSE, but in 2019, this responsibility was transferred to NTA (NATIONAL TESTING AGENCY), a government agency founded expressly for this purpose, to carry out various tests and recruitments. However, the National board of examination in medical sciences, an autonomous agency under the Ministry of Health and Family Welfare, oversees conducting NEET-PG.

WHY ARE RESIDENT DOCTORS PARTICIPATING IN THESE PROTESTS?

WHO ARE THESE RESIDENT DOCTORS?

When one does graduate medical courses like MBBS, a part of it is theoretical. A part of it is the practical training. It happens on the ground. Think of it as medical internship. These doctors usually reside on campus, that’s where the term ‘Resident doctors’ comes from. In our country friends the resident doctors are very burdened. According to health ministry data from June 2018, there is only one state-run hospital for every 55000 people, and only one government allopathic doctor for every 11000 people. Because there are so few doctors in India, these resident doctors fill in the gaps.

The supreme court issued an order in 1922 that simplified the working hours of junior resident doctors. It established a daily work restriction of 12 hours and at least one weekly off-day on a rotating basis. However, despite this directive, it is not fully executed. Even now, resident doctors must work extremely long hours. Sometimes they labour 15 hours, sometimes 18 hours, and sometimes they must work 20 hours in a day. In order to express their worries to the government about bad working conditions, they created the “I am overworked” campaign in 2019. Last year, when we thought about the country’s corona warriors by banging plates and clapping, who were the corona warriors, the frontline workers? Most of them were resident doctors. Because most senior doctors do not work on the front lines.

DELAY IN NEET-PG COUNSELLING 2021.

NEET-PG EXAM

According to the standard procedure, this exam is held in January each year, and the admission process begins in March-April. However, due to the corona pandemic, the Centre postponed the exam from May to September, with the results being announced at the end of September. Now, in January 2022, the date for conducting the next year’s NEET will be announced soon, but the admission process for last year’s candidates has not yet begun.

Why? Because the case has been blocked in the courts. Numerous judicial lawsuits concerning the revised reservation requirements were filed, causing the counselling to be postponed from the original date of October 25, 2021. The Centre then informed the Supreme Court on November 25, 2021, that it would be reviewing the Rs 8 lakh annual income criterion for EWS applicants, after the highest court questioned the reasons behind the Centre arriving at this amount. However, the Centre also noted that the review process would take about 4 weeks, implying that the counselling would be postponed for that length of time.

Typically, 50% of the seats for admission fall under the ALL INDIA QUOTA COUNSELLING and 50% fall under the STATE QUOTA COUNSELLING. That is, people from across India can apply for 50% of the seats, while the remaining 50% is reserved for candidates from the state. Only residents of that state are eligible to apply for such positions. There are many sorts of reservations in the ALL-INDIA QUOTA; before 2020, there were three categories of reserved seats. SC, ST, AND PWD, however the BJP administration announced in July 2021 that there would be two additional reservations in the ALL INDIA QUOTA.

Quotas in NEET-PG Counselling:

NEET-PG seats are given based on the candidates’ preferences, subject to availability and reservation. There are reserved seats in the all-India quota for SC, ST, non-creamy OBC, and PWD applicants. There is also a quota for EWS. According to the new reservation criteria announced for NEET PG admission beginning in the 2021-22 academic year, the 50 percent all-India quota of seats would be allotted based on a 27 percent reservation for OBC (non-creamy), a 15 percent reservation for SC, a 10 percent reservation for EWS, a 7.5 percent reservation for ST, and a 5 percent reservation for PWD candidates.

Meanwhile, the state quotas, which are administered by the individual state medical councils, are subject to the state’s reservation rules.

ALL INDIA QUOTA (AIO) SCHEME:

“The AIQ was enacted in 1986 in response to Supreme Court (SC) directives to give domicile-free merit-based chances for students from any state to study at a medical institution in another state. It accounts for 15% of UG seats and 50% of PG seats in government medical institutions. The remaining places at state medical/dental institutions are reserved for students who live in their respective states. In Abhay Nath v University of Delhi and Others, which was held in January 2007, the Supreme Court ordered that 15% reservation for Scheduled Castes and 7.5 percent reservation for Scheduled Tribes be included in the AIQ in January 2007. Until 2007, there was no reservation for medical admission inside the All-India Quota. The AIQ was enacted in 1986 in response to Supreme Court (SC) directives to give domicile-free merit-based chances for students from any state to study at a medical institution in another state. It accounts for 15% of UG seats and 50% of PG seats in government medical institutions. The remaining places at state medical/dental institutions are reserved for students who live in their respective states. In Abhay Nath v University of Delhi and Others, the Supreme Court ruled in January 2007 that 15% reservation for Scheduled Castes and 7.5 percent reservation for Scheduled Tribes be included in the AIQ.”[1]

So far, how has the reservation policy been implemented?

Until 2007, there was no reservation for medical admission inside the All-India Quota. “In Abhay Nath v University of Delhi and Others, the Supreme Court mandated that 15% reservation for Scheduled Castes and 7.5 percent reservation for Scheduled Tribes be included in the AIQ on January 31, 2007.” [2]This, however, did not apply to AIQ seats in State medical and dentistry universities. “The 10% EWS quota mandated by the Constitution (One Hundred and Third Amendment) Act of 2019 has also been introduced in central educational institutions, but not in the National Eligibility-cum-Entrance Test (NEET) AIQ for state institutions. Following this ruling, the Reservation for OBC and EWS categories under the AIQ will be available in medical institutions beginning with the current academic year.” [3]This decision will benefit thousands of students in the areas listed.

“The Central Educational Institutions (Quota in Admission) Act of 2007 established a 27 percent reservation for OBC students in central government institutions. While state government medical and dental institutions offer OBCs with quota in seats outside the All-India Quota, this advantage has not yet been extended to seats awarded under the AIQ at these state colleges. The 10% EWS quota mandated by the Constitution (One Hundred and Third Amendment) Act of 2019 has also been enforced in central educational institutions, but not in the NEET AIQ for state universities.”[4]

What has changed now?

“Reservation within the AIQ for OBC and EWS groups will be available in medical institutions. According to a report stated by the Health Ministry, this will help around 1,500 OBC students in MBBS and 2,500 OBC students in postgraduate studies, as well as approximately 550 and 1,000 EWS students.”[5]

“According to a study by the All-India Federation of Other Backward Classes Employees’ Welfare, roughly 40,800 seats have been given under the AIQ in institutions sponsored by state governments between 2017 and 2020. As a result, up to 10,900 OBC students would have been denied admission under the OBC quota.”[6]

RETURNING TO THE ISSUE, despite raising the number of reservation seats, the government did not add extra seats as compensation. The quantity of available seats remained constant. Undergraduate and postgraduate medical/dental courses are included in the new restrictions. Two groups of doctors petitioned the Supreme Court in opposition to the new reservations. The hearings for the lawsuit began, and it was revealed during the proceedings that the government has set the top ceiling for eligibility at an income of 800,000 rupees per year for the quota for the EWS, the reservation for the economically weaker sections.

Consider this: Can a household earning 66000 rupees per month be considered “economically weak?” Can they be included in the category of the economically disadvantaged? Only 6.45 percent of our country’s 130 million population pays RTI to the government, and fewer than 3 percent of inhabitants pay income tax in the country. The minimal tax slab in 2011-12 was 160000 rupees, according to the laws. Why am I making a comparison to 2011-2012? Because the statistics of just 3% paying income tax dates from 2011-2012. It meant that if your total taxable income in a year was less than 160000 rupees, you didn’t have to pay income tax. And 97 percent of the population fell into this category. So, the 10% of EWS, or poor individuals, also come into this group, as do those who are not in the top 97 percent. What sort of reservation has 97 percent of the individuals who fulfil the description?

The petitioners at the Supreme Court said that it made no sense. The Supreme Court requests a response from the administration.

During the hearing in October 2021, the Supreme Court requested the government to explain the logic behind the Rs. 800,000 maximum limits. The information that they used to arrive at the figure. The panel further stated that the OBC limit is Rs.800,000 as well. However, because OBCs are socially disadvantaged, imposing the same limit on the EWS would be inappropriate. It’s incomprehensible. Because a lower-caste, economically disadvantaged man is at a greater disadvantage than an upper-caste, economically disadvantaged man. As a result of their castes.

CONCLUSION

According to the court, the government is using the same restriction to make unequal equal.

This isn’t a murder mystery that will take weeks or months to solve, but the lawyer defending the government is taking his time, and the Supreme Court is taking its time to rule. On the 25th of November 2021, the government of India declares that the ceiling of Rs. 800,000 will be revised in four weeks.

This four-week wait has now become nearly a year for these 50000 doctors. Their one year is gone. Because their exams were scheduled for January, and they were meant to be admitted by April. However, they were unable to obtain entry until recently. The protesting resident doctors’ desire is simply that the case be expedited so that their counselling may take place and they can begin attending medical school as soon as possible.

But what exactly do we get to see? The cops are treating them violently, and they are standing there in riot gear, as if they are terrorists rather than doctors.

Thankfully, no one has begun suggesting that the “genuine doctors” are working in their clinics and that these are “fake doctors” who are demonstrating, as we observed during the farmer demonstration, where these trolls used to spread these tales.

The hazardous phenomenon in this country is the attempt to discredit protesters by labelling them anti-national.

Protests were viewed as a battle for one’s rights a decade ago. Protesters were treated with dignity. The demonstrators’ demands were valid at the time. And are the demonstrations we witness today’s demands similarly valid? 

The covid third wave has hit the nation when doctors are on there protest , impacting to our nation health growth, what difference do their protests make to us? The medical community has supported us a lot, we are sawing from last 2 years.

By 2030, India will have to produce more than 20 lakh doctors to reduce the burden of existing doctors who are already working more than 100 hours/week. Knowing this shortfall, if the covid coming wave goes out of control, who will be responsible for this huge mess?

We need some way out because if 2022 becomes like the last two years, just because of carelessness, and protests of resident doctors, then there won’t be anything more unfortunate. Just like we need our soldiers and farmers to grow this nation. In the same way, all the medical doctors are the backbone of our nation and we should not stop them from serving the people and India.

BIBLIOGRAPHY

[1] The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

2The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

3The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

4The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

5The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

6The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.


[1] The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

[2] The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

[3] The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

[4] The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

[5] The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

[6] The All-India Quota for NEET, and OBC, EWS reservation, The Indian EXPRESS, August 7, 2021.

Author: MOHIT SHARMA, SYMBIOSIS INTERNATIONAL UNIVERSITY

Editor: Kanishka VaishSenior Editor, LexLife India