Cryptocurrency v/s Law in India

Recently there has been news about the arrest of 1100 people associated with a money laundering case in china.[1] They used cryptocurrency to launder the money acquired through illegal activities. This is just one example; cryptocurrency has more or less dominated the news for some time now. There had been news of individuals becoming millionaires within weeks.[2] People around the world are excited about this new form of currency and are eager to learn about it. Big business magnates like Elon Musk are regularly tweeting about their favorite cryptocurrency. Online hacker group called ‘Anonymous’ have also entered by releasing video, openly threatening Elon Musk for his irresponsible tweets that dramatically impacts the crypto market.[3] Nowadays netizens are showing their support online for one and sometimes shading on another cryptocurrency. However, there is no doubt that people are enthusiastic about cryptocurrencies. In this article we will understand what cryptocurrency is and what has been its journey in India.

Understanding Crypto

The most basic definition of cryptocurrency (also called crypto) is that it is a digital currency that uses cryptography to secure the transactions.[4] The motive behind cryptography is that there should be no counterfeiting or double spending. It is different from fiat money (Conventional Money) as it is generally decentralized. Before the cryptocurrency as we know it today, there were few attempts to make a digital currency which would use cryptography and would use a decentralized ledger system. A phenomenon came to the world of finance in the form of a person named Satoshi Nakamoto, when he published his paper titled “Bitcoin – A Peer to Peer Electronic Cash System” in the year 2008.  He appeared out of nowhere in 2008 and disappeared just as abruptly three years later, after establishing the world’s first cryptocurrency ‘BITCOIN’.  Bitcoin has a limited supply to make sure the steady appreciation of value. It was initially designed to function as a mode of exchange on the internet where anonymity of its users remains intact. Since that time many more cryptocurrencies have been developed which are collectively called ‘Altcoins’. As of January 2021 there are more than 4000 cryptocurrencies in existence.[5] The enthusiasm around this new type of currency has provoked many countries to bring about the reform in their markets so that cryptocurrencies can be efficiently regulated. Many countries like the USA and Japan have welcomed it and are working towards improving the technology but some like china are skeptical and fear its potential to be used as a terrorist financing tool.[6] But, almost all the central authorities have consensus on the need to understand the technology and find out the way to utilize the technology embedded in it.

Technology behind Cryptocurrency

The cryptocurrency is based on the blockchain technology. A blockchain is a continuously growing list of records, called blocks, which are linked and secured using cryptography.[7] It is “an open, distributed ledger that can record transactions between two parties efficiently and in a verifiable and permanent way”.  A distributed ledger is essential to keep the crypto decentralized as using this system any individual can facilitate the transactions between any other two people and get a fee in the form of crypto for that. This fee for transaction is very low and hence it is a better alternative to the central banks which has comparatively larger fee for the similar job. There are multiple ways to acquire crypto. One way is to facilitate the transaction and get fee for your service but there are other ways to get it like, one can mine those using computers by solving complex mathematical problems, which can be done by using many programs available online. Other way to get crypto is to purchase it using fiat money. The acquired crypto can then be traded or sent to another person as a payment for any transactions. Crypto uses peer-to-peer system which means that one can send or receive money from anyone at anytime, no matter which part of the world they both live in without any external intervention. All the records of the transactions are maintained in a public ledger which uses blockchain technology and thus provides security as well as transparency.

Drawbacks

There are many advantages of crypto like it can make it easier to transfer funds between two individuals without any need for a third party like a bank or credit card company and it uses minimal processing fees for transactions thus allowing them to avoid high fees of banks but, it has many problems that need to be recognized before solving them. Firstly, the semi-autonomous nature of it makes it easier to be used for illegal activities like money laundering and tax evasion. Secondly, since the crypto is a digital currency and are not actually backed up in any database, a crypto balance can be lost completely if the hard drive in which it is stored gets lost or destroyed. It is also susceptible to drastic fluctuation and thus has a huge risk when investing in any particular crypto. Due to these reasons according to many economists crypto are nothing more than a short-lived fad or speculative bubble which will fall eventually.[8] The mining of Bitcoin uses a lot of electrical power which is bad for the environment. No matter how many miners, it still takes 10 minutes to mine one bitcoin. At 600 seconds (10 minutes), all else being equal, it will take 72,000 GW (or 72 Terawatts) of power to mine a bitcoin using the average power usage provided by ASIC miners.[9]

Considering all these issues many countries have banned its use and many have resorted to developing their own centralized digital currency. In India also cryptocurrency has gone through many phases to reach where it is today with more than $1.5 Billion invested by Indians in crypto.[10]

Cryptocurrencies’ legal battle in India

India with the population as large as it has plays key role in any kind of technological revolution and it is no different with digital currency. As of January 2021, around 45% Indians have access to telecoms and Internet services.[11] This kind of Internet penetration is indicative of a potential market for crypto in the country. Bitcoin and other cryptocurrencies have been operational in the country for years now. As early as 2012, which were still initial days for Bitcoin, small-scale Bitcoin transactions were operational in the country. When in 2013, Bitcoin was gaining popularity internationally and few businesses started accepting Bitcoin as payment in India a vintage era pizza shop called “Kolonial” in the Worli, Mumbai became the first restaurant in India to accept Bitcoin payments.[12] Soon after that cryptocurrency exchanges began to spring up within the country. People were very enthusiastic about this new kind of currency. Apart from these online exchanges there were also a number of Over the Counter (OTC) crypto shops and Bitcoin ATMs in numerous major cities in the country.[13] All of this has brought the crypto to the levels which it is today.

But, probably one of the two most important events that led to the widespread adoption of cryptocurrency in India was when on November 8, 2016, Prime Minister Narendra Modi announced for the demonetization of almost 86% of the country’s paper currency.[14] This demonetization was a shock for the entire subcontinent of India. Individuals with large cash holdings started looking for ways to continue holding such wealth without substantial tax cuts. One of the ways was to buy substantially large amount of Bitcoin and then sell it at a later date. This helped them to effectively avoid considerable amount of taxes which would have been inevitable had they tried to circulate their wealth through the banking system. The demonetization also ignited a conversation against the mainstream financial system in the country. People were questioning the ambiguity of the fact that in the span of just 24 hours more than 80 percent of the country’s paper currency in circulation had been rendered valueless, just by a single proclamation of the government. People started speculating that “fiat” money isn’t exactly real money as it isn’t backed up by anything and thus they started seeking for an alternative currency model.

Numerous Indians, particularly those in the 45% section with access to the Internet started to take up Bitcoin and other cryptocurrencies. The 2016 demonetization may have ignited the selection of cryptocurrency over conventional money among an extensive segment of the populace, but the development of the market in the country was hampered due to several reasons.[15] In spite of its large population, India just contributes 2% of the global crypto market capitalization.[16] Such a little job played by an enormous economy like India can be ascribed to the high crypto cost and the government crackdown led by the Reserve Bank of India (RBI). The level of prices of cryptos is higher than the global average. RBI has consistently warned citizens about the risks associated with the crypto and the government has not exactly banned it but it surely hasn’t endorsed it.

RBI’s crackdown

India being an untapped market with immense capability for the crypto market to flourish, it has seen massive surge of cryptocurrency exchanges. Due to the massive popularity of crypto market, its usage within a year of its introduction, and potential revenue loss, the government of India and other regulators and authorities started eyeing it with caution and in 2013 RBI issued a press release, cautioning the people about the risks related to Bitcoin and Altcoins.[17]

Inter-Ministerial committee of 2017

In 2017 the government formed an Inter-Ministerial committee(IMC) to report on various issues relating to cryptocurrency.

The IMC identified several problems with non-official digital currencies in its 2019 report. It came to the conclusion that they need to be banned. Some of the main issues they found were the threat of financial and economic instability due to its decentralized system, risks of fraud and price manipulation, potential to be used for criminal activities and massive energy consumption.[18] Considering all these problems, IMC came up with the Banning of Cryptocurrency & Regulation of Official Digital Currency Bill, 2019 (hereinafter draft bill).

According to Draft Bill’s section 2(1)(a),

“Cryptocurrency, by whatever name called, means any information or code or number or token not being part of any Official Digital Currency, generated through cryptographic means or otherwise, providing a digital representation of value which is exchanged with or without consideration, with the promise or representation of having inherent value in any business activity which may involve risk of loss or an expectation of profits or income, or functions as a store of value or a unit of account and includes its use in any financial transaction or investment, but not limited to, investment schemes”[19]

This definition not only covers all the virtual currencies of any kind. This means that the ‘frequent flyer rewards’ of Indigo or the Paytm’s ‘first points’ and any other digital representation of value that has the capability to be exchanged also comes under the ambit of its definition. The widespread ban on all types of digital currency was a disproportionate measure since the committee’s report with respect to the protection of consumers mainly pertained to cryptos.

As a result of employing a broad definition, the Draft Bill prohibits the mining, generation, holding, sale, dealing in, issue, transfer, disposal or use of all VCs other than the official digital currency in the territory of India.[20]

In April 2018 the RBI had advised all entities regulated by it not to deal in cryptocurrencies or provide services for facilitating any person or entity in dealing with or settling them.[21] In 2018, the finance ministry also issued a statement, stating “the government does not consider cryptocurrencies as legal tender or coin and will take all measures to eliminate the use of these crypto-assets in financing illegitimate activities or a part of the payment system.”[22] This put the entire Indian cryptocurrency trading industry in turmoil as the exchanges needed the banks for carrying on the function of sending and receiving the money which would then be converted into cryptocurrency and for the payment of salaries of employees, office space and other things that comes along with it.

Although, after all the commotion, a ray of sunshine finally shined on March 4, 2020, in the form of the Supreme Court of India as it passed a decision in a very thorough judgment quashing the earlier ban imposed by the RBI for being unconstitutional in Internet and Mobile Association v. RBI.[23]

 

Internet and Mobile Association v. RBI

The crypto-trading entities moved the Supreme Court against the circular of RBI that banned the financial institutions from providing services to businesses dealing in crypto trade and exchange. In the following case the circular was struck down by SC. The Supreme Court held that cryptocurrency is capable of being accepted as valid payment for the purchase of goods and services, and payment systems can be regulated by the RBI.[24]

The SC made observations on the role of RBI in the economy. It recognized the objective of RBI to maintain the price stability. Court held that the RBI was well within its rights issuing the concerned circular as it was doing it to protect the interest of the public, depositors and the banking policy itself. SC went on to say that irrespective of any activity not forming the part of the credit system or payment system, RBI can regulate or even prohibit it if it can potentially pose a threat to the financial system of the country. Court dismissed the contention that there had been an excessive use of power by RBI since the circular was only issued to protect the public at large.

One of the main contentions before the court was that the circular had hampered the constitutional right of people to carry on any trade or profession and thus was violative of the Article 19(1)(g). The court upheld this contention but it differentiated among the three categories of individuals. Firstly, those who trade in crypto as a hobby, then, those who engage in crypto trading as their occupation and lastly ‘the cryptocurrency exchanges’. The individuals in the first group can’t base their claims on Article 19(1)(g) as it only covers occupation, profession or business.[25] The individuals in the second group can also not claim that the circular completely shut their businesses, as they could still use the currencies they already have in their respective wallets to make payments for the purchase of things to those who are prepared to accept the same, in India or anywhere else in the world. Thus, it is only the people in the third category that truly suffered due to the circular because they had no other means to survive due to the disconnection of banking channels.

Although the RBI was well within its rights to issue the said circular, the circular was struck down due to the lack of “proportional damage” suffered by RBI regulated entities in dealing with businesses operating in cryptocurrencies. It was noted that the RBI did not explore the availability of alternative and less intrusive measures such as regulating crypto trading and exchanges before issuing the circular.

This particular judgment turned out to be the other most important event with respect to the development of crypto market in India. It restored confidence in the public’s mind and has cleared the way for further investments and technological advancement in the field.

Recent Developments

The Indian government has introduced a new bill titled “Cryptocurrency and Regulation of Official Digital Currency Bill, 2021” which is very much similar to its predecessor i.e. draft bill, 2019. Finance Minister Nirmala Sitharaman has said that the inter-ministerial committee (IMC) has suggested a ban on private cryptocurrencies in India, like Bitcoin, in India. The same committee has also stressed on the introduction of an official digital currency that will be appropriately regulated by the Reserve Bank of India.[26]

The RBI has cautioned the general public on the matter of possible misuse of private cryptocurrencies time and again. However, if the New Bill imposes a complete ban on cryptocurrencies then the crypto traders will just move to an un-monitored platform for trading. The real reason for introducing a law related to virtual currency/ cryptocurrency is to simplify the process of trading and holding in a safer technological environment instead of banning it completely. The bill also has provision of introducing a state-owned cryptocurrency which will be regulated by the central bank. Even after the introduction of state-owned cryptocurrency regulated by the RBI, the risk factor involved in investment and holding of cryptocurrency shall remain the same.

An RBI regulated digital currency or the Central Bank Digital Currency (hereinafter CBDC), if introduced, has both advantages and disadvantages in its impact on the monetary policy and financial stability. A CBDC can result in lower transaction costs and increase technology efficiency by removing the need for intermediaries like banks. It will create an attractive ecosystem that will encourage economic growth and digital innovation. On the other hand, it being a virtual currency is also subject to price volatility and speculations. This can result in competition for commercial banks and may lead to banks increasing their deposit rates. The CBDC has geographical limitation wherein it is only accepted in the issuing country and poses other infrastructural challenges.

Moreover, even with the introduction of state-owned cryptocurrency which shall be regulated by the RBI, the risk factor involved in investment and holding of cryptocurrency shall remain the same.

MCA’s notification  

In the last week of March 2021, through the latest amendments to the Schedule III of the Companies Act, 2013, the Government of India has mandated that the companies have to now disclose profit or loss on transactions involving cryptocurrency/ virtual currency, the amount of holding, and details of deposits or advances from any person for the purpose of trading or investing in cryptocurrency/ virtual currency.

The notification reads:

“Where the Company has traded or invested in Crypto currency or Virtual Currency during the financial year, the following shall be disclosed:-

  •  profit or loss on transactions involving crypto currency or virtual currency
  • amount of currency held as at the reporting date,
  • deposits or advances from any person for the purpose of trading or investing in crypto currency/virtual currency,”[27]

This amended schedule although have to approved by the parliament will come into force from April 1, 2021.[28] This particular step has been welcomed by the people dealing in the crypto sector, as it is understood the same would open the door for all Indian companies to have Crypto on their balance sheets and thus recognizing the crypto transactions.

Problems with cryptocurrency in India’s context

Cryptocurrencies in Indian context portrays few limitations. They are as follows:

  1. Lack of regulatory body: Indian government is pursuing a wait and watch policy towards cryptocurrencies; whereas other nations of the world have already responded to the use of cryptocurrency. There are no regulatory bodies to look after the transaction of cryptocurrencies. This has led to increased chances of fraud, threat to investor protection, monitoring of the movement of money in the economy. Reserve bank of India along with other central banks of the world was unable to track the activities of cryptocurrencies.
  2. Safety and Security: One of the most concerning problem with the cryptocurrency is that it is susceptible to be used for money laundering and for terror financing and providing a platform for criminal to convert the black money into white.[29] It has also become a common place for hackers.[30] This has brought tiredness among the population to a larger extent as it brings lesser security and lack of reliability.
  3. KYC delay: An investor who signs up for a cryptocurrency transaction have to go under the KYC standards which may require some time for the approval by the respective wallets. This approval time taken could take a few days time. In such cases there is a possibility of the investors to lose the chance of making profit as the value of the currency would be fluctuating sharply.
  4. Risky: Due to large number of cryptocurrencies in the market it is very difficult to choose which crypto to invest in. The reason for the same is that not all crypto will fetch good returns. Guesswork becomes the key player and thus the risk factor comes in.
  5.  Taxing problem: Although the profits from crypto are taxable as long-term capital gains and short-term capital gains depending upon the duration of holding, the Income Tax rules are not clear enough about the taxation cryptocurrency.
  6. Price Volatility: Cryptocurrency is a highly volatile market as the pricing strategy depends upon demand and supplies along with speculation.

Way Forward

Cryptocurrency is probably going to be future of financial transactions. As a country we should think about the ways to embrace this technological advancement in its early stages and innovate it for using in other field as well. The government also said that it will explore the use of blockchain technology proactively for assuring in the digital economy considering that the 2017 Inter-Ministerial committee’s report along with the draft bill had highlighted the positive aspect of the distributed ledger technology and suggested for its various applications, especially in the financial services, for its use in India, including banks and other financial firm.Now, the government surely does have a difficult task which is to provide an environment for it to flourish and at the same time making sure that it is not used for any terrorist activity and other illegal activities. This is a chance for India to dominate this new market by utilizing its large populace and internet renaissance that it had in the recent years. There sure is a need for regulation in this market and it will be a difficult but achievable task. Some independent crypto exchange companies like ‘CoinSwitch Kuber’ is already helping by completing a thorough KYC check before registering anyone.[31]

Conclusion

It is true that there is still a lack of clarity with respect to the crypto regulation in India but India has a reputation of being a technological friendly nation and thus entire world is looking for India’s next move. One thing is clear that banning it is not going to be such a great idea and instead, the government should look for ways to bring about a reformation in Indian market to regulate cryptocurrency efficiently. There should also be experiments with crypto technology in other places like elections, health infrastructure, etc. Many countries are adopting crypto after making appropriate reforms. After El Salvador, Paraguay is about to bring a legislation to give bitcoin the status of legal tender.[32]Approximately 25 years ago internet also disrupted the world and revolutionized the technological world. Today we are witnessing another revolution unfolding right before our eyes. We can either choose to take advantage of it by utilizing it in businesses and helping it grow to be more secure and efficient or we can choose to wait for someone to develop the technology and then just adopt it. Either way it is clear that crypto as a conventional currency is the future that is not so distant and India can help a lot in ensuring that it happens sooner.

Author: Aman Raj, Vivekananda Institute of Professional Studies, Pitampura, New Delhi.


[1]  Chinese Police Arrest 1,100 People for Money Laundering With Cryptocurrencies, available at: https://www.wsj.com/articles/chinese-police-arrest-1-100-people-for-money-laundering-with-cryptocurrencies-11623332776 (last visited on June 25, 2021)

[2]  This 25-year-old says he’s a millionaire after investing early in ether and Bitcoin, available at: https://www.cnbc.com/2021/05/21/how-crypto-investor-bought-btc-eth-early-used-defi.html (last visited on June 20, 2021)

[3]  WATCH: Tesla CEO Elon Musk threatened over crypto tweets by hacker group Anonymous, available at: https://www.dnaindia.com/technology/report-watch-tesla-ceo-elon-musk-threatened-over-crypto-tweets-by-hacker-group-anonymous-viral-video-2893855 (last visited on June 25, 2021)

[4]  Andy Greenberg, “Crypto Currency” Forbes, August 31 2014

[5]  The 10 Most Important Cryptocurrencies Other Than Bitcoin, available at: https://www.investopedia.com/tech/most-important-cryptocurrencies-other-than-bitcoin/ (last visited on June 13, 2021)

[6]  23 Approved Cryptocurrency Exchanges in Japan — Number Rises Despite Pandemic, available at: https://news.bitcoin.com/cryptocurrency-exchanges-japan/ (last visited on June 13, 2021)

[7]  The great chain of being sure about things, available at: https://www.economist.com/briefing/2015/10/31/the-great-chain-of-being-sure-about-things (last visited on June 26, 2021)

[8]  The Future of Bitcoin, Available at: https://economics.rabobank.com/publications/2021/april/the-future-of-bitcoin/ (last visited on June 26, 2021)

[9]  How Much Power It Takes to Create a Bitcoin, available at: https://www.thebalance.com/how-much-power-does-the-bitcoin-network-use-391280 (last visited on June 26, 2021)

[10]  Interview Artur Schaback, Co-Founder and Chief Operating Officer of Paxful, News18, June 3, 2021

[11]  Internet penetration rate in India 2007-2021, available at: https://www.statista.com/statistics/792074/india-internet-penetration-rate/  (last visited on 26 June 2021)

[12]  On the Bitcoin bandwagon, available at: https://www.thehindu.com/life-and-style/food/pay-with-bitcoin-and-get-free-biryani-at-this-chennai-restaurant/article21832095.ece (last visited on June 25, 2021)

[13]  Shailak Jani, The Growth of Cryptocurrency in India: Its Challenges & Potential Impacts on Legislation(2018),( 10.13140/RG.2.2.14220.36486)

[14]  Why India wiped out 86% of its cash overnight, available at: https://www.bbc.com/news/world-asia-india-37974423 (last visited on 26 June 2021)

[15]  Karan Kashyap, “India’s Demonetization Is Causing Bitcoin To Surge Inside The Country” Forbes, December 12, 2016

[16]  Shailak Jani, The Growth of Cryptocurrency in India: Its Challenges & Potential Impacts on Legislation(2018),( 10.13140/RG.2.2.14220.36486)

[17]  Press Release: 2013-2014/1261, https://www.rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=30247

[18]  Department of Economic Affairs, Ministry of Finance, “Report of the Committee to propose specific actions to be taken in relation to Virtual Currencies” (February 2019)

[19]  Banning of Cryptocurrency & Regulation of Official Digital Currency Bill, 2019, s. 2(1)(a)

[20]  Ibid., s. 7

[21]  DBR.No.BP.BC.104/08.13.102/2017- 18, https://rbidocs.rbi.org.in/rdocs/Notification/PDFs/NOTI15465B741A10B0E45E896C62A9C83AB938F.PDF

[22]  Are your crypto investments legal? Here’s everything you need to know, Available at: https://economictimes.indiatimes.com/markets/forex/forex-news/are-your-crypto-investments-legal-heres-everything-you-need-to-know/articleshow/82259869.cms (last visited on June 21, 2021)

[23]  Internet and Mobile Association of India V. Reserve Bank of India, Writ Petition (Civil) No.528 of 2018

[24]  Ibid.

[25]  The Constitution of India, art. 19

[26]  Govt committee recommends ban all cryptocurrencies, except those issued by state: FM, Available at: https://www.livemint.com/market/cryptocurrency/govt-committee-says-ban-all-cryptocurrencies-except-those-issued-by-state-fm-11612866715432.html (last visited on June 20, 2021)

[27]  GOVERNMENT OF INDIA, MINISTRY OF CORPORATE AFFAIRS, Notification, URL: https://mca.gov.in/Ministry/pdf/ScheduleIIIAmendmentNotification_24032021.pdf

[28]  Latest Amendments in Schedule III of Companies Act, w.e.f from 1st April 2021, Available at:

https://incorpadvisory.in/blog/amendments-in-schedule-iii-of-companies-act/ (last visited on June 26, 2021)

[29]  Bitcoin Money Laundering: How Criminals Use Crypto, Available at:

https://www.elliptic.co/blog/bitcoin-money-laundering (last visited on June 21, 2021)

[30]  Yes, Blockchain Can Be Hacked: 3 Ways It Can Be Done, Available at: https://www.epiqglobal.com/en-us/thinking/blog/blockchain-can-be-hacked (last visited on June 22, 2021)

[31]  Are your crypto investments legal? Here’s everything you need to know, Available at: https://economictimes.indiatimes.com/markets/forex/forex-news/are-your-crypto-investments-legal-heres-everything-you-need-to-know/articleshow/82259869.cms (last visited on June 21, 2021)

[32]  Paraguay becomes second country to propose a bill to make Bitcoin legal tender, Available at:

https://www.indiatoday.in/technology/news/story/paraguay-becomes-second-country-to-propose-a-bill-to-make-bitcoin-legal-tender-1819142-2021-06-25 (last visited on June 26, 2021)

The Story of COVID-19 and Indian Democracy

Photo by Anna Shvets on Pexels.com

According to the recent reports, India ranks 2nd in terms of the total no. of Covid-19 cases in the world, with the current all-time high 4,00,000 of fresh cases each day Now we must cross examine that what went wrong with the Indian management? How did we all end up here and can our democracy pull through this catastrophic virus? So embark as we together unravel the Story of Covid-19 and Indian Democracy.

Let’s begin this journey from 8 pm on 24th  March, 2020. A nationwide Lockdown in India was imposed. The Indian Prime Minister addresses it’s sovereign state and draws a parallel between The Mahabharata and the Lakshmana Rekha to advice the citizens to stay at home for the next 21 days. The so called world’s strictest lockdown has been imposed. But the fate of the lockdown in the monarchy of India Democracy was known way before it was imposed. It was practically impossible to has a population of 135 crores without violating the fundamentals of democracy.

The biggest persuasion to the failure of Lockdown was the widespread Individualism in our country. Although it has had its pros in the form of higher economic growth rate by giving rewards to Non-conformism, it wasn’t meant to handle a pandemic for it included the handicap of Parochial Altruism (Narrow scope of welfare for others). This made taking a collective and coordinated decision (or even response to a decision) almost impossible as it focused on Individual gains rather than societal gain. On the contrary, Lockdown proved to be more successful in authoritarian regimes such as China where collectivism prospered.

Migrant Crisis

After lockdown was imposed, what followed it was a complete chaos. There was a shutting down of factories and all public places which lead to huge unemployment of thousands of daily waged workers they faced acute shortages in terms of money, shelter and clothes. The labourers took on their journey to reach their native villages, which served as a transmitter for the disease. In utter helplessness, multitude of migrants gathered near bus and railway stations and some even preferred to go on foot to their respective homes. Flying rumors about travel facilities being arranged by the government, without any prior notice fueled their migration. Not all made it back home, many died due to depression, anxiety, starvation, police brutality and road and rail accidents.

The opposition and the ruling majority started with the years old mudslinging (a very important feature of contemporary Democracy).

Provisions were made by the ruling party but their implementation remained an issue. The stock of food grains was there to sustain the labourers for at least an year but their distribution through the One Nation, One Ration Card system (which was implemented in few cities) remained an area of concern.

Lack of Center and State Coordination was also highlighted through this crisis. On 27th March, the home ministry’s directive was issued by ordering the states to contain the migration. It also gave the states the authority to use the National Disaster Response Fund to provide the basic necessities (like shelter and food) to the laborers. Still, Regional Friction remained a problem. While there were some states that chose to use a region specific approach rather than a uniform National one, there were others too that followed the Central order to such an extent that it lead to severe cops savagery, violating the Human Rights of all those people affected.

Although Financial aid was assured, over 90% of labourers who reached out in the month of April reported that they have not been provided with any financial assistance from the government. In Tamil Nadu 97% were not paid during lockdown and in Punjab, 84% had less than Rs100 remaining.

Social Ostracism (Procedure under Athenian Democracy, where any citizen could be expelled from Athens, used here to refer to social exclusion) of migrants remained a problem as they were considered sources of transmission of infection. No one wanted to be near them. Diminishing Income and Societal Discrimination took a huge Psychological toll on the migrants and thus deprived them of their equal status in the society.

Online Algorithms

The Corona Virus has changed the trajectory of our lives.Almost everything you can think of has taken the big leap of faith from Offline to Online. Online teaching has started via apps such as google meet, Discord, Zoom, and et-cetera. Our lives are no longer governed by us, but by these Big Data Algorithms. We unknowingly give them this permission when we click on “agree to the terms” after installing any application.

Major concerns have been raised regarding the stealing of data through Chinese apps like Zoom. There are two Major fronts: Lack of distribution and transparency of Information to a third party without the consent of the user.

To quote the General Data Protection Regulation, “consent for collecting personal data must be freely given, and that if there is an imbalance of power between the parties, it cannot be a free choice and that any consent obtained is invalid.”

Following this a school in Sweden was fined $20,000 for using facial biometrics fot the tracking of 22 students. One might argue that the parents had given the consent but consent (in this situation) is not a valid legal proof due to the clear imbalance between the controller (School authorities) and the subject (students).

The same reasoning can be put in the current online domain. Any invitation to a teleconference can be stated as an imbalance of power as there is no realistic option to reject.
Due to these very reasons tech giants like SpaceX, Google and Governments of Taiwan, United States of America and the Australian Defence force have banned the usage of such apps (ZOOM) as a precautionary measure.

Even the Indian Government has banned 59 mobile apps which are a viable threat to the Sovereignty and Territorial Integrity of India.

It is also said that Human Liberty is the Soul of any democracy. It reflects the, “Free Will” which is the greatest source of authority. But is this will truly free? Isn’t it affected by these algorithms that dictate our actions and it’s responses?

It was rightly said by Yuval Noah Harari in a book of his, 21 lessons for the 21st Century that, “When the Biotech Revolution merges with the Infotech revolution, it will definitely produce Big Data Algorithms that can monitor and understand my feelings much better than I ever can, and then Authority will probably shift from Humans to Computers.”

This is the veracity of our lives, we are still living in a Utopian Society considering that we make choices of our own. All the choices are fed to us by these algorithms, and we barely respond to it the way it wants us too.

India Country Profile


After using the data brought forward by the Global Monitor of Covid-19’s Impact on Human rights and democracy, to summarize India’s performance with respect to Covid-19.

General Analysis-

Not imposing an Emergency by the state was a wise step as it has been reserved by the constitution of India to be only used if the territorial sovereignty of India is under question due to acts of hostility such as a War. (Article 352, Constitution of India)

The response can be categorized as a Neutral one, owing to the Social polarization that already exists in the present status quo. In order to portray a better understanding and understand the nuanced aspects of Covid 19 and its impact on the democratic rights, we shall focus more on the rights that were compromised due to Covid response set by the Government of India and World Governments in general.

Covid Impact:
This right was considerably restricted due to the challenges that were faced due to the pandemic.

This is evident from the following cases:

  1. Gatherings of the public was banned in the 1st Phase of the Lockdown
  2. Using this very narrative of Spread of the virus, Delhi police dispersed a multi month sit in protest on the citizenship laws imposed in the state.
  3. Kerala’s Government issued an alert extending the enforcement of Covid-19 and public gathering protocols till July, 2021. No more than 10 people are allowed in a public gathering in the state till date.
  4. Opposition parties such as the United Democratic front had to halt their protests against the government policies due to increase in covid cases in Kerala.
  5. The Ministry of Health and Family Welfare issued standardized operating procedures to be followed during the festive seasons with respect to the social gatherings and containment zones in particular.

    1. Operating procedures were also issued on preventive measures in the market which majorly included:

      1. Self Regulations by the Market associations
      2. Liability of owners for maintaining physical distancing and crowd management
      3. Penalties for non-adherence to guidelines.

Social Rights and Equality

In a country like India, It is desirable that there is increased intergroup homogeneity and decreased friction among such groups. Social barriers have existed well before covid times and the pandemic has only led to its heightening.

  1. Due to increased Islamophobia, there were reports about Muslims not being allowed to enter into hospitals or any other public spaces
  2. Domestic violence and mental traumas linked with Covid-19 were on the rise. The call centers operated by the Social Justice Department received numerous distress calls.
  3. Domestic workers and casual laborers suffered the worst due to the Lockdowns that were imposed. Prime Minister Narendra Modi delivered a call for unity stating that Covid Virus does not discriminate between races, religion and gender.
  4. The Ministry of Health and Family Welfare issued many notifications and guides helping the youth to avoid the stigmas and prevent discrimination associated with the pandemic

Isolationormativity Linked With Pandemic

Through the means of this paper, I would like to promote the concept of a term called Isolationormativity as suggested by Matteo Winkler, a professor at HEC Paris. In one of his articles in Forbes, he talks about coining this new term which encompasses the aspects of normative ethics or moral philosophy along with a Public health terminology, Isolation.

Normative ethics focusses on classification of things as morally right or wrong whereas isolation, according to WHO disease Control Priorities Handbook refers to “a key precaution to reduce pandemic threats in the absence of antivirals, antibiotics and vaccines.”

Man is by nature a social animal and putting him behind a roof and four walls can not only have serious mental implications but can also cause the heightening of the prevalent social issues thereby disturbing the existing status quo. For instance, asking someone to stay at home during the pandemic may prove to be a necessary safety precaution, but is it morally the correct thing to do. Well, in some cases it isn’t.

A simple example to substantiate my cause is that of India and other Asian countries where exploitation of the LGTBQ+ is on the rise as they are subjected to extreme torture and exploitation by their toxic family members. During the first four phases of the COVID-19-related lockdown, Indian women filed more domestic violence complaints than recorded in a similar period in the last 10 years.

To put it in the words of Matteo Winkler, Some homes are safe spaces, but not all home spaces are safe.

Isolation alone cannot be sufficient in handling the pandemic as it heightens the existing gaps in our society. Example the phrase, Wash your hands focusses on the immediate necessity of the action (I.e. washing your hands with soap or hydro alcoholic gel) but doesn’t reflect the marginalization of around 9% of the world population (around 666 million people) who have no access to such sources of water.

This is one of the most common issues faced in refugee camps in remote areas like Syria, Lebanon, and Africa where alcohol and other dangerous substitutes are used as clean water is not readily available. Thereby a more realistic version of this phrase would be to say Wash your hands… if you have access to water which, around 29 % of the world population doesn’t.

Hence these stringent emergency measures have become the new normal intensifying the Social imbalance in our society.

These two examples prove that Morality and isolation need not always go hand in hand. So the question arises, should the state (Governments in this case) intervene to decide the ethics that will govern our actions?

The answer to this is not a simple one as it varies depending on the geopolitical and socioeconomic setup of various states. Excessive government involvement in well-established democracies like India, United States of America may prove to be beneficial as long as basic ideals of the constitution are not violated. What makes it easy to judge such violations is the long history of hit and trial that these countries have had with Democracy.

But the same might not be true in countries like Zimbabwe, which are still at their initial stages of imbibing these democratic ideals. Excessive involvement might only lead to inefficient utilization of the scarce resources and further marginalization of the already deprived sections of the society.

Conclusion

The nations satisfactory performance with respect to rights such as Freedom of Movement, Personal Integrity and Security, Basic Welfare, Effective Parliament, judicial Independence, Civil Society Participation, and Local Democracy helped contain the adverse effects of the Pandemic.

In the words of the Union Health Minister, Mr. Harsh Vardhan, “India’s pre-emptive, proactive and graded approach ensured a plateaued graph of COVID-19 cases and a significant number of unoccupied beds in the health facilities at any point in time.

It is often said that the best way to judge any Democracy is to see the result it produces and the challenges it overcomes. These challenges have existed for a long time and have only evolved with the incoming wave of Covid-19.

Author: Kshitij Raj.

Analysis: Right to Recall

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The right to vote is perhaps the simple most right. As such, it is known to every citizen. And yet, the inherent value of this right still remains unexplored and unknown.

Right to Recall (RTR) confers the electorate a right of recall that can be initiated by any elector within a particular constituency through a recall petition signed by not less than one-fourth of the total number of electors. It is found in many contemporary constitutions. Canada and the US also allow the right to recall on the grounds of misfeasance and misconduct.

With a view to strengthening the functioning of a democratic system of government, the intrinsic value of the right to vote in terms of its nature and ambit is required to be constitutionally explored, understood, and appreciated. This would, in turn, prompt the citizens to go to the polling booth and not just to vote but exercise their right to elect their representatives in the light of their judgment. The right to vote could be usefully invoked and applied in making various political arrangements truly functional and thereby provide impetus to the democratic system of governance. The masses are required to be encouraged to participate and exercise their right to vote in the first instance. This indeed was the message of the President of India to the nation on the eve of 65th Republic Day when he said that “each one of us is a voter and has a responsibility. We cannot let India down. It is time for introspection and action. Fractured government can prove catastrophic, cautioned the President, for such a regime is “held hostage to whimsical opportunists. With the increasing participation of citizens, the possibility of a ‘fractured’ mandate is considerably reduced, because, notwithstanding illiteracy coupled with poverty of the large section of our population, their collective vision of a relatively good government they would like to have cannot be faulted

The Right to Recall is not a modern-day concept. Ancient Athenians had a social custom under their unique democracy. In the sixth month of their 10-month calendar, all the people were asked in their assembly whether they wish to hold an ostracism. If the majority wanted it, ostracism was held after some time. Citizens wrote down names of those they wished to be ostracized on shards of pottery. Shards were deposited in a container, and after counting them, whoever had the largest pile of the pieces was banned from the city for ten years. The modern-day right to recall concept is a direct successor of such methods. Canada’s Legislative Assembly of British Columbia has this provision since 1995. In the USA, states of Alaska, Georgia, Kansas, Minnesota, Montana, Rhode Island, and Washington have it. Venezuela, the Philippines, and Switzerland also have a law to recall. In India, the concept has its roots in Vedic times when the lack of effective governance was a cause for the removal of a king.

Recall around the world

There are few examples of a successful recall process where recall was introduced as a populist movement. US constitution does not make provisions for the recall of us senators, representatives to Congress, or the president or vice-president of the country. However, in some states, recall efforts against state legislators come up once in a while. The recall device began in us in the municipality of Los Angeles in 1903. There are some partly successful recall efforts in California, where only four recall petitions qualified for the ballot among 107 recall efforts initiated from 1911 to 1995.

In Canada also, support has been growing for the recall measures. The popularity of the recalled instrument is not in question. The Reform Party of Canada has recalled as a part of its political agenda, and the recall bills were introduced in parliament through a private member’s bill (Marquis 1993).

In Uganda, the constitution itself provides the right of recall to its citizens. Electorates of any constituency and any interest groups (referred to in article 78) have the right to recall their MP from office before the expiry of the term of parliament on any of the following grounds: Physical or mental incapacity, rendering that member incapable of performing the functions of the office; or Misconduct or misbehavior likely to bring hatred, ridicule, contempt or disrepute to the office; or Persistent deserting of the electorate without reasonable cause. The process, in Uganda, requires a petition writing setting out the grounds relied on and signed by at least two-thirds of the registered voters of the constituency or the interest group and the petition to be submitted to the speaker.

 In Guyana, the national assembly recently passed recall legislation. It will enable representatives of parliamentary parties to ask the speaker of the national assembly to declare a seat vacant because the party has lost confidence in a party member. This recall power is not with the electorate but with the parties in Guyana. This legislation was aimed at addressing the issue of crossing the floor or defection. In Switzerland, the provisions for recall currently exist but are seldom used. Venezuela, where the president is elected directly and may be subject to recall, is unique in applying the system very broadly. Countries like Sweden, New Zealand, Zambia, and Germany are also reported to have started debating the recall process of incompetent and corrupt elected members as an essential democratic tool for ensuring accountability among the people’s elected representatives of the recall should not be mishandled. An infallible mechanism without any loopholes, with complicated rather than stringent measures, can add to its significance. Overuse and misuse of the recall process cannot be permitted at any cost.

The need for recall in India

The debate over recall of elected representatives has a long history in the Indian democracy; the matter was discussed in detail in the Constituent Assembly. Several members thought that the Right to Recall must accompany the Right to Elect. The voters must be provided with a remedy ‘if things go wrong.’ However, Dr. B R Ambedkar did not accept this amendment. Some Constituent Assembly members argued that the ‘Recall’ provision would help strengthen the democratic system. Others felt that it would be improper to provide a Recall provision at the infancy of the Indian democracy. 

Humanists such as MN Roy and politicians such as Jayaprakash Narayan have spoken extensively on introducing the right to recall in our electoral system. When Somnath Chatterjee was Lok Sabha Speaker, he also sought to install the right to recall to ensure accountability. Constitution (Amendment) Bill about Voters’ right to recall elected representatives was introduced in Lok Sabha by C K Chandrappan in 1974. Atal Bihari Vajpayee had supported this, but the bill did not pass. BJP MP Varun Gandhi introduced a private member bill, The Representation of the People (Amendment) Bill, 2016 in Lok Sabha. With the increasing impulse of manipulating democracy for the benefit of specific individuals or political outfits, the urgency of having and enforcing the right to recall must be felt with all its seriousness. If the people have the power to elect their representatives, they should also have the power to dismiss them when they engage in misdeeds or fail to fulfill their duties.

It seems that the world’s largest democracy is still hesitant in maturing into a participatory democracy by ignoring the need to introduce the right to recall provision which first appeared in the government agenda in 1977 when the Janata Party was in rule. It was again discussed passionately during the tenure of the National Front government in 1989. Sardar Vallabhai Patel expressed his opinion during this debate by saying, “If there are any stray instances or some black sheep who has lost the confidence of their Constituency still want to continue to represent the Constituency in the House, for some such bad instances we should not disfigure our Constituency. We should leave it as it is, to the good sense of the members concerned”.

Scope for Misuse of RTR

The right to recall would enable the electorate to exercise control over their representatives who do not pay enough attention to their constituents. Recall as a direct democracy mechanism, the critics of direct democracy point out it weakens representative democracy by undermining the role and importance of elected representatives. Since it is unlikely that any democratic system will ever be purely direct, weakening elected representatives harms the democratic system. It is also argued that direct democracy disciplines the behavior of elected representatives, ensuring that they fully consider the likely views of voters when making decisions on their behalf. The other side of the argument is that there would be many potential cases of abuse of this power. Special interest groups can misuse it with money power, and genuine politicians may become victims of this power; even the prime minister and other ministers may be threatened under the sword of recall. A possible recall election may pose a threat to the independence of elected members and can lead to an ” excess of democracy. The likely financial and administrative burden of holding recall vote also may be a matter of issue.

Nevertheless, the recall process enables to re-engage citizens with politics and democracy. MP’s accountable to constituents for performance and the integrity of their conduct activities on behalf of the people. The electorate recognizes the legitimacy of their representation. However, legitimacy cannot be taken for granted, and the principle of accountability cannot be an abstraction. The accountability of elected representatives must convey functional reciprocity. They are accountable to their electorates for their performance in office. There has to be an effective procedural and institutional mechanism for realizing accountability through effective electoral sanction and systematic monitoring process, reporting procedures to inform constituents, standards and enforceable code of conduct, Etc. There is a distinction between horizontal and vertical accountability. Horizontal accountability is effectuated by regulatory and other supervisory bodies composed of officials acting on behalf of the public. The public itself mandates vertical accountability through various mechanisms, including elections, complaint procedures, legal redress, the activities of civil society, organizations, etc. The public sphere is typically a combination of both horizontal and vertical that ensures effective accountability.

Various experiment of RTR

In India, provision for recall of legislators does not exist anywhere other than in Chhattisgarh and Madhya Pradesh. Section 47 (recall of president) of the Chhattisgarh Nagar Palika Act, 1961, provides for the holding of elections to recall elected presidents for non – performance. The recall process starts when three-quarters of the total number of elected representatives within the urban bodies (corporators/councilors) write to the district collector and demand recall. After verifying the circumstances, the district collector can report to the state government. Once the report has been considered, the state government can recommend that the state election commission conduct an election to recall the presidents. The right to recall a legislator is a direct democratic method for removing an elected representative from office for his / her non – performance or misuse of the position. It must be noted that the panchayat raj acts aimed to establish a system of direct democracy by increasing decentralization and empowering village legislative bodies for the development of villages. The initiative, referendum, and recall are the most common tools of direct democracy. However, these instruments are noticeable by their absence in the panchayat raj systems. When we start putting into practice these mechanisms, as demonstrated by the recall polls in Chhattisgarh, we can institutionalize direct democracy and ensure accountability for the elective representative of the people.

In Chhattisgarh, there was a two-year moratorium on the use of the recall provision under the act. The urban municipal body should have completed at least two years of existence before initiating such a recall process against the presidents. Soon after this period of moratorium, the recall process began in January 2007 to respond to reported underperformance. Two of the three presidents recalled are from Congress, and the third was an independent candidate. As per Section 47, three-quarters of the councilors initiated the process by writing to the district collector stating that they had lost confidence in the presidents and requested their office removal.

In 2001, Madhya Pradesh amended its Panchayat Raj Act and gave voters the right to recall their non-performing elected representatives. The 17-year-old incident of Palavika Patel, the former president of Anuppur municipality in Madhya Pradesh, India, and Gray Davis, former governor of California, USA, are two distinct fall-outs of participatory democracy. In 2002, voters of extremely poor Anuppur; and, in 2003, voters of extremely rich California exercised a similar constitutional right, the right to recall an elected representative for non-performance. Patel and Davis were removed from their positions. California’s legislation making has inspired 18 other states in the USA to have adopted the measure. Nevertheless, Madhya Pradesh’s local governance system could not excite India’s legislators in more than one-and-a-half decades.

The right to recall is very crucial in today’s circumstances. The California recall election, the second in the history of the USA due to cuts in the education budget and general economic mismanagement or the impeachment proceedings against President Donald Trump due to subversion of democratic ethics are the illustrations of how a mature republic should function. Why shouldn’t India, a more than seven decades old democracy, have a right to recall those who ruined its economy, its social fabric and are subverting the democratic institutions at their whims? Unfortunately, India is witnessing a constant rise in unethical and irresponsible behavior on the elected legislators. Numerous instances could demonstrate the said proposition. The role of the representatives in the decision-making is becoming marginalized with each passing day. The largest democracy is not the most effective one. It can be corrected only by putting ‘Right to recall’ in place as an accountability tool par excellence.

CONCLUSION

The right to vote should eventually include the ambit of the right to recall. it will be based on a simple axiomatic premise that the ‘right to do’ inheres the ‘right to undo.’ It would, in turn, accentuate the process of systemic change at least with two evident advantages. The current system is seriously flawed because voters have to wait for five years for electoral sanction to remove a person from office even if he shirks accountability. The right to recall can be an effective method by which accountability is ensured in a democratic state. Recall elections will undoubtedly send a solid message to delinquent legislators. It would make representative more accountable on a continual, day-to-day basis, leaving little time and space for them to have recourse to manipulative practices, say, for massive wealth through corrupt means.

Author: Mohammed Raihan, Christ University.

COVID-19 And its Impact on Healthcare Sector in India

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Unless you are someone who only travels in personal helicopters you cannot expect yourself to be safe from the vulnerability of the effect of COVID 19.

Death is unavoidable; everybody will die at some point; however, death due to a lack of oxygen and inadequate drugs is unjustifiable. Hundreds of children, adults, and women are dying every day as a result of government failure. The government was so focused on winning elections that it neglected to construct oxygen plants for its people. Number of sites is showing us that India is doing better than other countries. They are showing us the death rate is much more in other countries but these people did not deserved to die. They could have been saved with better implementation of policies. Their families and friends deserved to be holding their hands when they were taking their last breaths. They deserved to see their faces for the last time but they only got to see a body rapped in a plastic like a grocery.

Government statistics showing us the recovery rates, the less number of death rates but the social media posts are telling us different story. Social media is reminding us again and again to not to fall for the manipulated data. It is showing us the cry for help of mother, father, brother, sister, son, daughter, journalist, mentor, all loved, all cherished, and many now lost.

WHO explains that SARS-CoV-2 spreads primarily through respiratory droplets and aerosols produced when people cough, sneeze, speak, sing or breathe, are within one metre of each other and also in crowded, poorly ventilated settings. Contact with contaminated surfaces poses another risk. Insistence on wearing good masks, distancing and a prohibition on risky gatherings, such as in restaurants, malls, religious sites, auditoria and on public transport is, therefore, essential.[1]

The outbreak of COVID 19 revealed the true face of healthcare of all the developed and developing countries of all around the world. Unavailability of oxygen, medicines, and vaccines has become a common thing in India after the outbreak of second phase of corona virus.

CONSTITUTIONAL RIGHT TO HEALTHCARE

The preamble of the Constitution of India, which strives to provide for welfare state with socialistic patterns of society under the Article 21 of the Constitution, guarantees the right to life & personal liberty. The concept of democratic socialism aims to improve the condition of health care of the people. The principle of socialism is also embodied in various provisions of part III & part IV of the Constitution. Socialist when the egalitarian principles are followed, rights are valued & the dignity of each individual is upheld.[2]

The Constitution of India nowhere expressly provides healthcare as a fundamental right to the citizens but there are a number of references which states that it is the duty of the state to provide better healthcare to its citizens.

The Constitution has made a strong appeal to the state to have a fair standard of living through the Directive Principles of State Policy. Several legal precedents have established that the government is responsible for the healthcare of its people. Existing constitutional safeguards, legal precedents, and international agreements provide a firm foundation for India’s fundamental right to health. Access to health will become legally binding and accountable as a result of a legislatively assured right.

Article 39 (e) talks about the duty of the state towards the health of the men, women and children working as labourers. Article 42 talks about the health of newborn child and the maternity relief. Article 47 mentions the duty of the state to raise the level of nutrition and standard of living and to improve public health and state shall regard these as its primary duties. But Article 37 which defines the nature of DPSPs states that it is not enforceable in the courts. State uses this Article as a weapon and always gets away from its duties, obligations and liabilities.

The DPSP are only directive to the state. These are non justifiable. No person can claim for non- fulfilling these directions. Article 21 deals with “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to live means something more, than more animal existence & includes the right to life consistently with human dignity & decency.

The Supreme Court has ruled in several cases that the right to health and medical treatment is a basic right protected by Article 21 since health is necessary for making workmen’s lives meaningful, purposeful, and consistent with personal dignity. The Indian courts took an active role by accepting public interest litigation (PIL) under Article 32 of the Constitution, which allows the courts to assess the socioeconomic and environmental situations of the oppressed, underprivileged, and disadvantaged people.

The Supreme Court of India in Bandhua Mukti Morcha v Union of India & Ors[3] interpreted the right to health under Article 21, which guarantees the right to life, since there is no clear acknowledgment of the right to health or healthcare in the Constitution. The Supreme Court reaffirmed in State of Punjab & Ors v Mohinder Singh Chawla[4] that the right to health is central to the right to life and that the government has a constitutional duty to provide health services. The court went on to support the state’s duty to establish health facilities in State of Punjab & Ors v Ram Lubhaya Bagga[5].

Supreme Court, in its land mark judgment in Pramand Katara V Union Of India & others[6] ruled “that every sector whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protection life. No law or state action can intervene to avoid or delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute, and paramount, laws or procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained, and must, therefore give way.”

In September 2019, a High-Level Group on the health sector constituted under the 15th Finance Commission had recommended that the right to health be declared a fundamental right. It also put forward a recommendation to shift the subject of health from the State List to the Concurrent List. The recommendation to declare the right to health a fundamental right, if implemented, will strengthen people’s access. However, the latter recommendation to shift health to the Concurrent List will lead to a constitutional conundrum on whether the centralisation of public health will be helpful in the context of Indian cooperative federalism. At present, the subject of “public health and sanitation; hospitals and dispensaries” falls under the State List of the 7th Schedule of the Constitution of India – which means that state governments enjoy constitutional directives to adopt, enact and enforce public health regulations.[7]

Despite the fact that the Supreme Court of India has recognized the right to health care to be a basic right in a series of judgments, the state has not given it adequate respect. What’s more regrettable is that in a country where the poor and disadvantaged make up a larger percentage of the population and cannot afford to pay for treatment in government or private hospitals, the government should design unique health insurance policies at a low cost.

CURRENT SITUATION OF HEALTHCARE AMID COVID 19

For an exhausted medical community, staggering under the weight of over 37 lakh active COVID-19 cases and a severe shortage of medical oxygen and drugs, the pause in activity comes as a life saver.

At this time, the Indian government, along with other nations, has imposed far-reaching steps such as movement restrictions, mandatory institutional quarantine, and criminalization of those who do not follow the rules. Government has imposed fines on the people who are on the streets without wearing masks. Irony of these restrictions are that those who don’t follow them are being fined or beaten by the police officers but there is no one to keep check on the government policies for production of oxygen and proper medicines. Even though the government of India is claiming that large amount of oxygen, ventilators and medicines are being produced but still people are dying in thousands everyday because of unavailability of necessary requirements in this pandemic.

Recent attempts to use big data analytics to monitor patients and trace connections through apps like Aarogya Setu must adhere to the concept of personal data security, with any use or distribution requiring the citizens’ prior permission in a clear manner. In India, there have been several reports of data falsification in COVID19 cases, which has harmed people’s trust.

The Allahabad High Court observed that “death of COVID patients just for non-supplying of oxygen to the hospitals is a criminal act and not less than genocide”. The judges made observations while hearing the PIL and directed the government to take immediate remedial measures.

Since the beginning of this pandemic we heard the news of unavailability of necessary items to the frontline workers like PPE kits, masks, hand sanitizers etc. despite the claims by the government that they are providing all the necessary requirements to the frontline workers the reports and personal interviews are telling us something else. A worker of Accredited Social Health Activist (ASHA), Lakshmi’s story tells us something else.

Lakshmi Kuril, a community health worker in Maharashtra, India’s western state, had a pre-existing heart problems that was exacerbated by the additional work and burden of battling the COVID-19 outbreak that is ravaging the country.

She felt bad after attending a meeting of fellow health professionals, so she went home to do housework and cooked dinner for her husband, daughter, and son. As she stood to clear the dishes she collapsed. Her husband took her to the hospital, but she did not get adequate care, and she died as a result. She was tested positive following her death. According to the government, 18 ASHAs had died battling COVID-19 as of September last year. ASHA nurses want the government to provide them with the same masks and safety gear as all emergency personnel who deal with COVID-19 patients. According to an Oxfam India survey published in the Indian media in September, only 75% of ASHA employees were given masks and only 62% were given gloves.[8]

There is also a lack of slots in crematoriums in various States leading COVID-19 victims’ relatives to take dire measures to bury or cremate their dead. In Himachal Pradesh, there were claims that the body of a COVID-19 victim was carried to the crematorium in a garbage lifting vehicle in Solan district. While Delhi’s first funeral venue for pet animals will be utilized for the last rites of COVID-19 patients and a park has been converted into a cremation ground in south-east Delhi. COVID-related bodies Family members of 19 victims have been observed keeping them in lengthy lines outside cremation sites for hours, waiting for their turn. Ambulances queued at many crematoriums have been turned away, with the request that they attempt to find a place elsewhere. Delhi also saw a parking lot being turned into a makeshift crematorium for COVID-19 patients.[9]

RECENT JUDGEMENTS AND ORDERS OF COURTS ON COVID SITUATION

  • The Karnataka High Court ruled that failing to administer a second dose of COVID-19 vaccine would be a breach of Article 21 of the Constitution’s universal right to life. The Court in its order said “Once dose is due it is the obligation of the state government to provide the second dose. If a second dose is not provided, it will be a violation of fundamental rights of citizen under Article 21.” The observation was made after the court noted that the State government has a total stock of 12,32,960 doses of vaccines remaining (inclusive of both Government of India quota and state procured) as of today. While in its order of May 11, it had recorded that 26 lakh beneficiaries need second doses and with addition of around 5 lakh frontline and health workers today, a total of 31 lakh beneficiaries require second dose of vaccine.[10]
  • A petition has been filed before the Supreme Court, requesting that it intervene in the case of about 100 bodies found floating in the Ganga in Bihar and Uttar Pradesh, all of whom are suspected of having died of COVID. The petition requested that a special investigating agency be established to oversee the investigation into the deaths of 100 people whose bodies were discovered floating in the Ganga in Buxar, Bihar, and Ghazipur, Uttar Pradesh, and Unnao, Uttar Pradesh. The petition asks the Supreme Court to establish a Special Investigating Agency, which would be led by a sitting or retired judge of this Hon’ble Court, to oversee the investigation.

According to the PIL, 71 bodies were discovered in Mahadev Ghat, Chausa, District Buxar, Bihar, and more than 30 bodies were discovered in District Ghazipur, Uttar Pradesh, according to the petitioner’s information.

According to the plea filed by Advocate Sanjeev Malhotra and drawn by Adv Ashutosh Yadav, each dead body should be removed and a proper post-mortem conducted to determine the cause of death.

“It is clear and apparent that the person whose dead bodies floated has not died their natural death. The Administration in order to hide /save their face from the responsibility of such inhuman act has prepared false verbatim Post mortem without actually doing the Post Mortem of dead bodies. The petitioner makes this statement very responsibly and on personal information received to the petitioner from the reliable sources” the plea reads.[11]

  • The Madras High Court ordered the State Government to issue an advisory to local bodies instructing them to sanitise and spray disinfectant areas within their jurisdiction to the extent possible, as well as to equip the ESI Hospitals with the necessary facilities to treat COVID patients.

Since this is also a preventive measure which is suggested by the petitioner, the State should ensure to sanitize and spray disinfectants, to the extent possible and within the existing constraints, to ensure that the airborne virus is kept at somewhat of a check. An advisory in such regard may be issued to all local bodies so that villages and small towns may yet be saved from the large scale attacks as seen in the urban areas.”[12]

  • We are at pain in observing that death of Covid patients just for non supplying of oxygen to the hospitals is a criminal act and not less than a genocide by those who have been entrusted the task to ensure continuous procurement and supply chain of the liquid medical oxygen,” a Division bench comprising of Justices Siddhartha Varma and Ajit Kumar observed. “How can we let our people die in this way when science is so advanced that even heart transplantation and brain surgery are taking place these days,” the Bench went on to say that these news stories paint a very different picture than the one painted by the government about adequate oxygen supply. The Allahabad High Court has therefore directed the District Magistrate of Lucknow and the District Magistrate of Meerut to conduct investigations into such news items within 48 hours and submit their reports on the next scheduled date. They are also directed to appear before the Court online on the next date fixed.

The order stated[13],

Normally, we would have not directed the State and district administration to enquire into such news that have been viralled on social media but since the Advocates who were appearing in this PIL supported such news and even submitted that more or less situations in other districts of State are the same, we find it necessary to direct for immediate remedial measures to be taken by the Government.

There are many more judgments and orders being issued by courts, and fresh decisions are being issued every day instructing state governments and the central government to take action in response to the COVID situation. In a number of states, the state administration has been ordered by High Courts to impose lockdown, or else they would take action. There are number of PILs that are being filed for the uniform rate of vaccines in all states. Public interest litigation (PIL) has grown so frequent that media now covers some aspect of a new PIL filed or pending PIL on a daily basis. The judiciary is the weakest of the governmental departments because it is reliant on the executive to carry out its directives and lacks the capacity to control the purse. However, it is the sentinel on quive who is charged with defending the rule of law and civil freedoms. PIL is regarded as a solution for all problems. Regulation of blood banks, adoption of children, street cleaning, unapproved hoardings, wasting of public funds in advertisements to acquire political mileage, laying down roads, pollution, voter rights, terrorist attacks, and a lengthy list of other issues are among those addressed under PIL jurisdiction and the decisions depend on the judgments of the court.

CONCLUSION

Strong health policies will lead to the development of social resilience in the face of possible pandemics and public health issues. Human rights obligations cannot be overlooked in the wake of an emergency. The concept of accountability is essential for good governance and maintaining public confidence in government. Knowledge should be available, accessible, and widely disseminated among the population to allow effective oversight of decisions taken by the government and its established institutions. The right to health must also be applied in accordance with the ideals of openness, proportionality, and solidarity. As a state body, India is obligated to improve and offer quality public facilities and a minimum standard of universal health care as part of its commitment to international legal treaties and conventions. Existing constitutional safeguards, legal precedents, and international treaties provide a firm foundation for India’s fundamental right to health.

Author: Shubhashish Roy.


[1] Editorial, Lockdown Gains: On need to augment health system, The Hindu, MAY 10, 2021 13:41 IST, https://www.thehindu.com/opinion/editorial/lockdown-gains-the-hindu-editorial-on-the-need-to-augment-the-health-system-during-the-inevitable-measure/article34522562.ece

[2] Bakshi, P.M., “The Constitution of India”, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2003

[3]  (1997) 10 SCC 549

[4] (1996) 113 PLR 499

[5]  (1998) 4 SCC 117 

[6] AIR 1989 SC 2039

[7] Nishant Sirohi, Declaring the right to health a fundamental right, Observer Research Foundation, JUL 14 2020, https://www.orfonline.org/expert-speak/declaring-the-right-to-health-a-fundamental-right/#:~:text=The%20Directive%20Principles%20of%20State,for%20the%20right%20to%20health.&text=In%20September%202019%2C%20a%20High,be%20declared%20a%20fundamental%20right

[8]  Nilanjana Bhowmick, ‘Our Lives Don’t Matter.’ India’s Female Community Health Workers Say the Government Is Failing to Protect Them From COVID-19, Time, MAY 4, 2021 10:30 PM, https://time.com/6045836/india-covid-19-healthcare-workers-asha/

[9] The Hindu Net Desk, What is happening in India’s crematoriums?, The Hindu, MAY 12, 2021, https://www.thehindu.com/news/national/coronavirus-whats-happening-in-indias crematoriums/article34540033.ece?utm_source=taboola

[10] Mustafa Plumber, Not Giving Second Dose Of COVID Vaccine Is Violation Of Article 21 : Karnataka High Court, Livelaw, 13 May, 2021, https://www.livelaw.in/news-updates/karnataka-high-court-covid-19-availability-of-vaccines-karnataka-government-174100?infinitescroll=1

[11] Srishti Ojha, Corpses Floating In Ganga : PIL In Supreme Court Seeks Judicial Intervention, SIT Probe, Livelaw, 13 May, 2021, https://www.livelaw.in/top-stories/corpses-floating-in-ganga-pil-in-supreme-court-seeks-judicial-intervention-sit-probe-174114?infinitescroll=1

[12] Sparsh Upadhyay, COVID19- Issue Advisory To Local Bodies To Sanitise, Spray Disinfectant; Prepare ESI Hospitals To Treat COVID Patients: Madras High Court, 14 May 2021

[13] Akshita Saxena, Non-Supply Of Oxygen Criminal Act, Not Less Than Genocide : Allahabad High Court Orders Enquiry Into COVID Deaths, 4 May 2021, https://www.livelaw.in/top-stories/allahabad-high-court-non-supply-of-oxygen-criminal-act-not-less-than-genocide-173607

Analysis: Changes in Legal Framework due to Bifurcation of Jammu and Kashmir

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Jammu & Kashmir, also known as paradise on earth is region full of mountains located at the intersection of India, Pakistan, China and Afghanistan. It appears to be landlocked, remote, and covered by successive ranges of Himalayas. “Jammu & Kashmir was named as the paradise on Earth by the Mughals as it has everything that a paradise should have which includes its snowcapped mountains, sunny gardens and romantic households.[1]” However, since past seventy years, the paradise on earth has seen a lot of violence and loss of many lives due to the bitterness in sovereignty dispute of India and Pakistan. The paradise continues to observe bloodshed even today.

The sovereignty of Jammu & Kashmir state has always been an important part of history. Since the time of independence i.e., 1947, majority of region of Jammu & Kashmir comes under the Republic of India. The terms of accession signed by monarchs of Jammu & Kashmir with government of India have been a guide for relationship between Jammu & Kashmir and India. The treaty of accession provided India with the control of power of defense, external affairs and communications in the state of Jammu & Kashmir. The treaty was arranged in such a way that it provided the state of Jammu & Kashmir pseudo autonomy over their internal affairs. The bond between state of Jammu & Kashmir and India got inseparable leading to slowly intensifying the treaty.

On August 5th of 2019, the government of India officially issued presidential orders for the annulment of the 72 years long autonomy of Jammu & Kashmir under the article 370 of Indian constitution. Simultaneously, the very same day, Republic of India passed a bill which made the state of Jammu & Kashmir bifurcate into two new union territories i.e., Ladakh and Jammu & Kashmir. The two measures i.e., the end of special status given to Jammu & Kashmir along with the transformation into two union territories made possible for all bills, act, laws passed by parliament to be used without any restriction of region. The freedom of applying all the laws passed in parliament was earlier not possible as Jammu & Kashmir government was having special powers to pass their own laws except in the area of external affairs, defense and communications. These special powers provided the state of Jammu and Kashmir with way more legislative powers in comparison to other states in India. If say, a state did not pass or comply with one law issued by central government, then the result could be devastating, people of that particular state could be kept away from major legal developments that could have benefitted them like for instance – a substantial thing like Right to Information (RTI).

Jammu & Kashmir having special status did not mean that it had completely different laws from the rest of the states in India. “It was observed that even in special status, many central laws were being passed by the state government and Governor Satya Pal Malik[2]” that got implied in the state of Jammu & Kashmir by just making an exact J&K version of it (for example on medical termination of pregnancy, dissolution of Muslim Marriages, Aadhar). Also, there have been few essential state laws which were implied as it is (for example the Ranbir penal code). However, there were many laws or important amendments of the laws which were passed by Parliament of India but would not be amended in the Jammu and Kashmir version of that law.

So, as a result of the revocation of article 370 and simultaneously bifurcation of the state of Jammu & Kashmir have led to some genuine changes in legal frameworks which have brought legal consequences for the people of Jammu & Kashmir.

Overview of Article 370 –

The most controversial and disputed article within the constitution of India is Article 370. Article 370 has a complex history which was full of immeasurable and temporary provisions. It was also decorated as a “temporary provision” of Indian constitution. According to this article “any modification, amendments or exceptions in Article 370 within the Constitution of India in the application to the Jammu and Kashmir State were within the discretion of the Assembly[3].” There were both historical as well as political reasons to why Jammu & Kashmir under article 370 was accorded with a special status before it was abrogated before 2019. Article 370 was also titled as national liability of Government of India. The basis of this article was not dependent on the legal or constitutional dimension, rather it was more based on religious and political dimensions. When studied in deep, this article also displays the deep understanding of unilateral and bilateral government in a country.

The Path to Article 370 –

Ascending the throne of the princely state of Jammu and Kashmir under British Raj, came Maharaja Hari Singh. Before Maharaja could even take over the reign of his princely state, many men in various regions wanted to get employed in their native region and also, they wanted to restrict outsiders claiming the jobs available in their region. The resentment to do so grew like fire after world-war-I. The resentment was basically against the educated men coming from the districts that neighbored Jammu and Kashmir. These men were perceived as people who came to encroach upon the rights of the state’s indigenous population. In the early stages of resentment, Maharaja tried to ignore this matter but as the agitation grew out of control and Maharaja saw that there was no way to make the agitated citizens to withdraw, he was forced to communicate the declaration that the agitators wanted. He declared that state subjects would be the first preference to get the employment over outsiders. The order also consisted of one more clause and that was that, outsiders will be barred if they would hold an immovable property within the princely state of Jammu and Kashmir. Although orders were passes by the Maharaja but regional and communal tensions continued and were constantly brewing throughout the year, along with the various events of India’s Independence. Lastly, Article 370 and article 35A found its way to the constitution and the state’s law leading Jammu and Kashmir to have a special status within India.
Once the Constitution of India was adopted, Article 370 was added in it on the basis of Instrument of Accession signed between India and the state of Jammu and Kashmir. Whereas, all the other states of India were signing two documents i.e., Instrument of Accession and Instrument of Merger, which made the states merge completely with India, without any special status or relation, the state of Jammu & Kashmir never did the same. The special power that was provided to the state of J&K was always under great contention. Although many people believed that the special status helped the state to establish autonomy which ultimately helped in its existence. On the contrary, many people believed that the root cause for all the problems faced by Jammu & Kashmir before abrogation was due to this article. This conflict in opinions has led to interesting demographic variations in which people could observe that majority of Hindus settled in Jammu region while majority of Muslims settled in Kashmir region.

CHANGES IN LEGISLATION AFTER THE REORGANIZATION-

The abrogation of article 370 and formation of two union territories of Ladakh and Jammu & Kashmir had some genuine legal ramification for people of Jammu and Kashmir. Under the fifth schedule of Jammu and Kashmir Reorganization Act, 2019, 106 Central Act were introduced and 153 state acts were repealed simultaneously in the Union Territories. Also, 7 state acts were implemented in a modified form.

The most remarkable changes that took place are-

  1. Termination of Ranbir Penal Code (RPC) –

Ranbir Penal Code was withdrawn and Indian Penal Code (IPC) was implemented after the reorganization of Jammu & Kashmir. Although RPC was similar to IPC, the following three provisions of it were no longer effective.

  1. Unconstitutionality of Section 377 as held by the Honorable Supreme Court in Navtej Singh Johar vs Union of India was not implemented in the state of Jammu & Kashmir in 2018. Whereas now since IPC is the applicable criminal law in the union territory of Jammu & Kashmir, the unconstitutionality of section 377 will be implemented here as well.
  2. The striking off of the child marital exception under section 375 of the IPC as held by the Honorable Supreme Court of India will also now be effectively implemented in the union territory of Jammu and Kashmir. “As a result, if a man has sexual intercourse with a girl between the ages of 15-18, this will be rape regardless of whether they are married.[4]
  3. The provision and punishment for ‘dowry deaths’ under section 304-B of IPC will also be applicable to the union territories.
  • Implementation of Code of Criminal Procedure, 1973 –

The CrPC was made effective within the union territories of Jammu & Kashmir and Ladakh after the reorganization act was passed. As per the act, “in sub-section (2) of section 1 of CrPC, the words except in Jammu and Kashmir[5]” was to be omitted.

  • Guaranteed Right to Education-

Earlier, the basic Right to Education was not granted to the people of Jammu and Kashmir. With the reorganization of the state, children between the age group of 8 to 14 years living in union territory of Jammu and Kashmir can now avail the Right to Education.

  • The Hindu Succession Amendment Act, 2005 will now be applicable to the union territories of Ladakh and Jammu & Kashmir-

The Hindu Succession Act, 1956 was passed at the same time by the central government for whole of India and by the government of Jammu and Kashmir for its state. However, the Central Act was amended in 2005 with a remarkable development for Hindu women, but it was not implemented in the state of Jammu & Kashmir. Since, Central Act is now in force, this amendment will be effective and applicable to the newly formed union territories as well.

  • Rights of West Pakistan Refugees-

Unlike the situation before reorganization, refugees of West Pakistan can now avail citizenship, democratic and property rights in the union territory of Jammu and Kashmir.

  • POCSO Act, 2012 (including amendments of 2019) will now be applicable –

The Protection of Child from Sexual Offences Act, 2012 was enacted by the Central government in 2012 for the entire country except the state of Jammu & Kashmir. It was in 2018 that the state government of Jammu and Kashmir had implemented their own version of this legislation, but in 2019 again, they did not implement the amendments that were passed by the central government. As a result of the reorganization, the amendments of 2019 in POCSO Act will not be implemented in Jammu & Kashmir as well as Ladakh.

  • Implementation of Right To Information Act –

Earlier, because of the inapplicability of Right to Information Act, the elected government of the state was not accountable, responsible and transparent. In the present scenario, Right to Information, a fundamental right is applicable and investigating authorities like CBI can also invade without taking any permission.

  • Implementation of Juvenile Justice (Care and Protection of Children) Act, 2015 in the union territories-

Earlier, Jammu and Kashmir’s legislation for juveniles were consistent with India’s Juvenile Justice Act, 2000. However, a new legislation known as Juvenile Justice (Care and Protection of Children) Act was passed in 2015 for whole of India but was not implemented in the state of Jammu & Kashmir. Presently, this act of 2015 is applicable to the union territories of Ladakh and Jammu and Kashmir.

  • State regulation on Property transfer and Kashmiri customs now invalid-

Transfer of Property Act, 1977 was effective in the state of Jammu and Kashmir back then and will continue to remain in effect now. “However, it will be a diluted version of this Act that remains in force, thanks to the removal of Section 139, which protected any “Regulation, Hidayat, Resolution, Ailan, Rule or valid custom” in force in the region. This effectively restricted and regulated the transfer of immovable property (land, houses, etc) in J&K.[6]” Section 139 gave rights over land, resources and to curtail alienation of outside parties to local communities of Jammu and Kashmir, but these rights are no longer valid and cannot be practiced now.

  1. The Benami Transaction (Prohibition) Act, 1988 is now applicable-

The reorganization bill stated that the words “except the state of Jammu and Kashmir[7]” in sub-section (2) of section 1 of this act shall be omitted making this act effective in the union territory of Jammu and Kashmir.

  1.  The Hindu Marriage Act, 1955, the Hindu Adoption and Maintenance Act of 1956, The Hindu Disposition of Property Act of 1960 was all enforced in the union territories after the reorganization.
  2. Earlier, the Prohibition of Child Marriage Act, 2007 was not implemented in the state of Jammu and Kashmir. As a result of the reorganization, this act is not applicable to the union territories.
  3. Earlier, scheduled tribes or other traditional communities living in forests had no rights or protection. Whereas, now with the applicability of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forests Rights) Act, 2007, their rights will be protected.
  4. With the recent implementation of Special Marriage Act, 1954 in the union territory of Jammu and Kashmir, more religious harmony and tolerance is expected.
  5. The Consumer Protection Act, 1986 – “In sub-section (2) of section 1, words, except the State of Jammu and Kashmir[8]” was omitted and this act was brought into force in the union territories.
  6. The Disturbed Areas (Special Courts) Act, 1976 – “In sub-section (2) of section 1, words, except the State of Jammu and Kashmir[9]” was omitted and the act was implemented in these union territories unlike earlier times.

In terms of legislation, there were the few major changes brought in union territories of Ladakh and Jammu and Kashmir.

CONCLUSION –

Through this article we can summarize that Maharaja Hari Singh introduced two orders for the princely state of Jammu and Kashmir, which later got written in the constitution of India as article 370 and 35A. These articles were the cause which provided a special status to the state of Jammu & Kashmir. This special status was taken away from Jammu & Kashmir when the central government in August 2019 revoked article 370 and 35A and simultaneously created two new union territories out of the state of Jammu and Kashmir. This bifurcation of Jammu and Kashmir brought many changes including many major changes in the legal framework.

Author: Nikita Srivastava, SVKM’S NMIMS Kirit. P Mehta School of Law, Mumbai.


[1] Adarsh Vijayakumaran, “The Indian Determination of Jammu and Kashmir: A Critical Appraisal of History, Sovereignty, and Jus Genitium” 12 SSRN 15, 20 (2020)

[2] Vakasha Sachdev, “Article 370 ‘Revoked’: How Central Laws Will Impact Kashmiris”, The Quint, Aug.7, 2019.

[3] Anshum Agarwal, “Revocation of Article 370”, 1 Lawjustify Journal, 37,48

[4] Vakasha Sachdev, “Article 370 ‘Revoked’: How Central Laws Will Impact Kashmiris”, The Quint, Aug.7, 2019.

[5] Ministry of Law and Justice, “The Jammu and Kashmir Reorganisation Act, 2019”, 37-41 (August, 2019)

[7] Ministry of Law and Justice, “The Jammu and Kashmir Reorganisation Act, 2019”, 37-41 (August, 2019)

[8] Ministry of Law and Justice, “The Jammu and Kashmir Reorganisation Act, 2019”, 37-41 (August, 2019)

[9] Ministry of Law and Justice, “The Jammu and Kashmir Reorganisation Act, 2019”, 37-41 (August, 2019)

Banking Fraud – Emerging Threat to Indian Economy

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“Bank” when one thought about it, that is always relating to the money whether you borrow it or deposit with bank, the financial institution which accepting deposits and granting loans can be defined as a bank. The Bank has its own significance in the economy of the any country, It is one of the major factor in the economy. It is the institution which offers great help for the economic development of the country, so in the modern time the depends on the bank for its various services has increased a lot, so the risk factor also emerge with it. Risk of depositing money in the bank, risk of giving loans of higher amount to the customer an thereon . When we talk about risk factor from the banks point of view the risk of a fraud is now a days becoming more dangerous not only in respect of particular bank but on the large extend to the overall economic growth of the Nation.

            The bank continuous to work in efficient manner for there customers and the nation so one cannot neglect the contribution of banking sector which has its own importance specially in the modern economy. The manufacturers borrow from the bank the money needed for purchase of raw materials and to meet other requirements such as working capital. The bank plays important role in the creation of new capital (or capital formation) in the country and thus helps the growth process. It is safe to keep money in the banks, interest is also earn thereby so the desire to save  stimulated and volume of saving increases. The saving can be utilized to produce new capital. Bank in this era are more updated and customer friendly by giving different types of services like Net banking to transact with online mode, demat account facility, to deal with shares and debentures, overdraft and many more. There are banks known as industrial banks which assists the formation of new companies and new industrial enterprises and gives long term loan to manufactures. The banking systems facilitates Internal and International trade. A large part of trade is done on credit. Banks provide reference and guarantee on behalf of their customers, on the basis of which seller can supply goods on credit. Trade is also assisted by the grant of a loan by discounting bill of exchange and foreign exchange transactions which are also done through banks.

            So for giving many services the banking system have to work in proper manner. Indian banking system is one of the strongest banking system. The regulation of a banking system is known as “CORE” banking system that is centralize real time exchange it can be define as banking services provided by a group of a network bank branches where customers may access there bank account and perform basic transactions from any of the member branch office. Banking business are usually manage via the corporate banking divisions of the institutions. CORE banking become possible with the advancement of computer and tele communication technology that allows information to be shared between bank branches quickly and efficiently. Core banking functions include transition of accounts, loan, mortgages and payments. Bank make these services available across multiple channels like automated teller machine (ATM), internet banking, mobile banking and branches for the smooth conduct of the banking system. Some necessary security measures had to be taken by bank which include Anti virus, Anti malwares protection. These program helps to detect and prevent viruses and malicious software socket layer (SSL) multifactor authentication measures, credential confidentially etc.

            As the title suggest about the frauds for that matter, the main job of the every bank is to accept deposit and grant loans so, as far as the banking fraud is concern the loan giving policy is that particular thing which matter a lot, Indian banks has variety types of loan (under which the firm or an individual paid certain amount by bank on specific rate of interest) such loans are granted particularly to businessman and members of the public against personal security, gold, silver and other movable and immovable assets at different rate of interest allowed by bank, the rate of interest varies depending upon the purpose, period and the mode of repayment. There are various kinds of loans such as cash credit, short term or long term loan and advances, Demand loans, Bank overdraft, discounting of bills and many others. In the recent past time the banking system has provided another methods of lending money like wise Letter of credit commonly  knowns as LoC it is a document that guarantees the buyers payments to the sellers. It is issued by the bank and ensures timely and full payment to the seller, if buyer is unable to make such payment, the bank covers the full or the remaining amount on behalf of the buyer. A letter of credit issued against a pledge of securities or cash. Banks typically collect a fee. i.e. a percentage of size / amount of the letter of credit.

            Another concept is of letter of undertaking  can said to be sort of guarantee that is issued by a banking entity to the concern person for attaining short term credit from the overseas branch of an Indian bank. Such LoU’s are not issued against retail transactions but are employed in business or trade transactions. In short it is nothing but the guarantee given by the Indian bank to the overseas branch of the said Indian bank for the repayment in foreign currency.

            These facilities which are provided by bank in case of loan sometimes it becomes problematic for the banking institution itself whether it is private or public bank, because there are some individuals or firm who fails to pay the amount of loan with interest so bank have to search many different ways to recover the money from them, this loan related aspects directly affects the balance sheet of bank which show loss and NPA’s (Non-Performing Assets) it due to inability of repayment of loan the various wrongful activities takes place which are known as fraud or scam. The fraud is defined in the laws of India for example Contract Act 1872 section 17 “Fraud means and includes any of  the following Acts committed by party to a Contract or with his connivance or by his agent with intent to deceive another party these to of this agent or to induce his to enter into the contract”

            This is the rising concern in the Indian economy there are different kinds of fraud which may happen due to various reasons, like in normal sense the fraud is the use of potentially illegal means to obtain money, assets or other property owned or help by a financial institution or to obtain money from depositors by fraudulently posing as a bank or other financial institution, in many instances it is an criminal offence. There are multiple types of frauds which can be seen in banking sector like wise accounting fraud which is serious financial problem, some employees purposely make the commission or omission of particular accounting figures in financial statement of bank, Demand draft fraud which lays down by particular bank, another were bill discounting frauds, Fraud related with uninsured deposits of banks, duplication or skimming of card information, cheque fraud and forged or fraudulent documents, false loan applications, fraudulent loans, fraud related with ATM machines these are the major fraud types so nowadays the banks needs to be more careful and accurate in their working system.

            When we talk about the particular crime or offence irrespective of its nature there are particular or common reason behind it at every time when particular wrongful act occurs in any field like that these are very much important reasons behind the banking fraud which are  related with the top management and lower management or may be consists of whole system of the particular bank, public or private does not matter. The reasons if we see or analyze the fraud we usually found those are related with ethics and values, both are the different things one is talk about what is right and what is wrong and another  with its knowing or understanding the right and wrongs. A greed in human nature one can control it or losses it depends upon  the situation, while dealing with the banking transaction the transparency should be always maintain specially with handling the complex financial transactions other wise due to lack of transparency the chances of miss happenings increase. For the maintenance of transparency the whole management is responsible, for that so the poor management will always held liable for the fraud if it happens within the organization so that structure of bank has to be designed in that way whenever if any complicated instances arises the proper solution can be find in less time, otherwise the complex organizational structure leads to the miss appropriation, the poor accounting control, lack of clear moral directions from senior management which include themselves in ‘semicurupt’ behavior will create problems in future for that institution, almost blind faith on an individual can also be one of the reason behind the scam or fraud in banking sector.

            The daily life fraud also can be said as “Phishing” so when we see the no. of events firstly the fraudsters meets each other and gets divided into 2 or 4 groups, while doing a call they always state the name of SBI main branch or the ATM headquarters, minimum two persons requirement is there the fact is that they are not from HQ’s of bank rather from somewhere else, the state bank of India has its huge customer base in India so many  times cheater gives the reference of SBI if not the first but second or third person caught in their snare, the partner of that cheater is ready with e-wallet along side him, the information received by the cheater from the person to whom they have made the call then it is all filled with e-wallet so when all the details once acquired by the cheater then all money from that person’s account come into their account, another thing is that previously the fraudsters only demands for OTP so people started doubting on them then another idea they got rather than directly asking for OTP they used to tell that your ATM PIN is blocked for the purpose of new pin add a secret no to your old pin, what ever it may be but it has to be of four digits then caller provides this secret number to that person on the along side by deducting the secret no. the caller finds the actual pin no. it means just confused the person on the call in the form of OTP, PIN etc. gets acquired  all the details of various cards and debit their whole bank balance. Because of this kind of method it is very much difficult for the police even to catch them because it is done by different people at different levels, the sim card they used to call it is many of times of a dead man when police try to investigate them it found that card is fake or registered on others name which is used only at once for call then thrown away, after when police try to trace the IMEI number of phone or location of it, many times ended by having nothing because the phone was also destroyed after some times and e-wallets were also gets shut down the police states that only those cheaters gets caught who are new in this or make the silly mistakes while doing fraud otherwise it is very difficult to catch them if someone find himself in this situation then firstly informed to their bank and blocked all cards then informed to the nearest police station or cyber cell via online, if possible there are many examples of this frauds like in  January 2020 the lady who was browsing on internet received  one link after clicking on it she lost total 14,050 rupees just within 10 minutes the lady victim didn’t share any PIN or CVV or OTP with anyone yet money was debited by the fraudsters.

PNB FRAUD CASE

            In our life we can see such kind of negligence which ultimately leads to fraud there are some of major cases which took place in recent past in the Indian banking sector which has put big question mark on this sector. When we talk about such cases there are some of the major cases of famous businessman’s like Nirav modi the PNB scam if we look in deep of this scam it happens in 2018 which started many years back then, the Punjab National Bank fraud case relates to fraudulent letter of undertaking worth Rs.11,35,684 crore (US $ 1.4 billion) issued by PNB at its bardy house branch of Mumbai making Punjab National Bank liable for the amount the fraud was allegedly organized by jeweler and designer Nirav Modi. Nirav, his wife Ami modi, brother Nishal modi and uncle Mehul Choksi’s, all partners of the firm, M/s Diamond R US, M/s Solar export and M/s stellar diamonds along with PNB officials and employees and directors of Nirav modi and Mehul Choksi’s firm have all been named in charge sheet by CBI and E.D.

            The bank initially said that two of its employees at the branch were involved in the scam as the bank’s Core banking system was by passed when the corrupt employees issued LOU’s to overseas branches of the other Indian banks, including Allahabad bank, Axis bank and Union Bank of India by using the international financial communication system, SWIFT. The transaction were noticed by new employees of the bank then bank complained to CBI who is currently investigating agency apart from ED and RBI, CBI named some of the key officials in a charge sheet holding them responsible for failure to implement several circular and caution notices issued by RBI regarding the reconciliation of SWIFT messages and core banking system.

            The PNB officials in its complaint informed the agency that at the bank’s branch office at bardy house in fort Mumbai two of its employees retired deputy manager of PNB and another bank officials issued fraudulent LOU’s to Hong-kong based creditors on behalf of three firms associated with Nirav modi and Gitanjali group, As of 18 may 2018 the scam ballooned rupees 14,356 crore and Nirav modi said to be hiding in London by using fake passport, then on 13 June 2018 CBI issued red corner notice by approaching to Interpol against Nirav modi and his co-partners alleged for fraud.

          India’s enforcement directorate had began attaching assets of the accused and is seeking to immediate confiscation under fugitive economic offenders ordnance, in march 2020, ED also auction 72 luxury items sees from Nirav modi for Rs.2.29 crore on June 2020. The prevention of money laundering act (PMLA) court has ordered confiscated of nearly Rs.1,400 crore worth property of Nirav modi.

            Nirav Modi who disappeared in 2018 caught by British police in London on behalf of Indian Police who asked for extradition of Modi. Nirav Modi’s legal team made four bail application which were refused by the UK court on the ground that modi deemed high risk promote majors and legal action taken by the Indian Government and PNB helped in securing the extradition of Nirav modi by the UK. Home security of UK Preeti Patel sign off and order to extradite Nirav modi.

            Besides a case was filled against the fugitive at the depth recovery tribunal who issued and order of recovery about 7300 crores in 2019 from Nirav Modi.

ROTOMAC FRAUD CASE

            There was a another bank fraud case of Rotomac owner and businessman Vikram Kothari, Rotomac is a stationery brand of Pre Internet era is a fresh in our memories for its catch line “Likhte Likhte love ho Gaya” and also because promoted by Bollywood starts, According to reports, the company took loans from Allahabad bank, Bank of India, India overseas bank and Union bank of India, Oriental bank of commerce, Bank of Maharashtra and mainly Bank of Baroda who field a FIR in CBI as Kothari did not repay the loan amount as well as interest. The amount misappropriated reaches around Rs.3,685 crore including interest and penalties of Rs.776 crore.

            As rough estimates suggest from 2008 Kothari took different amount of loans from different banks as mentioned above in this scam, it is particularly observed that Round – tripping is a practice in which a company sells an unused asset to another company while at the same time agrees to buy back the same or similar assets at about the same price. This has been rampant in Rotomac case, the company took money for executing export orders but remitted the same amount to some other accounts, The representative of bank of Baroda who is from the Hong Kong branch visited the address given by the Rotomac for Gulf distribution ltd. and found that the latter maintained virtual office only not a physical office which was not present. The buyers and suppliers of Kothari’s co. actually operated from virtual offices it has found this BOB said in its complaint to CBI, so for this matter the BOB also alleged that Rotomac (FEMA) violated foreign exchange management Act rules and worked for interest rate differential in local and foreign currency.

            Immediately after registering the case the CBI carried out searches at three locations in  which Kanpur included Kothari’s residence, also according to CBI officials the company allegedly used two modes operandi for siphoning off the loans secured from consortium of banks from 2008 onward. Enforcement Directorate (E.D.) files case against promoters of Rotomac for loan default of Rs.3695 crore the agency registered the case under the prevention of money laundering act (PMLA) after standing CBI FIR which was register earlier. The E.D. then attached worth Rs.177 crore in connection with money laundering probe against M/s. Rotomac Global Private Limited and its directors located at various places apart from this Kothari was declared willful defaulter in 2017 by bank of Baroda, the Income tax dept. also came in action by filling 6 charge sheets against Vikram Kothari these complaints were filled in special court in Lucknow under Income Tax Act.

            Besides this there are couple of more popular cases of Vijay Mallya who is also considered as willful defaulter. The Mallya owes Rs.9000 crore from 17 Indian banks and also accused of fraud and money laundering cases in the country. The another complaint in CBI was registered this time by the oriental bank of commerce in which OBC has alleged that jewellery company took loans for gold jewellery export and import between 2007 and 2012 but failed to pay back, CBI action comes in wake, a case was registered after receiving a complainant from the OBC on 16 August 2017 regarding its bank loans. The loan turned into non-performing assets in 2014 but bank approached the agency in 2017 after the company had folded up and prime accused settled the country, then CBI started tracing by issuing look out circulars (LoC’s) against the directors of diamond jewelry exporting firm like this there are many cases of bank frauds.

            When fraud of any kind took place it not only affect the party who involved in it but at a large extent to the whole economy, as far as banking sector is concern the fraud losses the public trust and most importantly the money with the bank of depositors. Bank scams are one of the most distrust factors for any economy. Hence, the scamming bank must face stringent action by regulator, bank scams cause a dis-balance in the economy often leading to the weak of the market.

            Due to such scams stock market faces huge crashes there by affecting the economy in a big way, This causes a slowdown in economic growth often leading to weakening of the economy and often disappearance of foreign investments. Often scam revolves around individuals making such deposits to bank, solely to churn their black money into white, sometimes bank give away loans to individuals or institutions way above paying capacity. Once bank start to falls this leads to a greater effect on the economy and it affect a lot the normal lives. Thus the most important factor in the ‘death’ of YES bank is the trust factor which has declined from the bank. Thus, it has affected millions of people in India and major players who tied up with this bank in their journey.

            From the harmful impacts on the overall growth of the country specially economic development, the fraud prevention must be there for that purpose there are many changes are being made in legal system as of now the RBI becomes more aware has set guide lines in respect of fraud which includes, the managing Directors (MD) / Chief Executive officer (CEO) / (CMD’s) must provide focus on the fraud prevention and management functions to enable among others, for effective investigations of fraud cases and accurate reporting to law enforcement authorities, this can be categories as a general guidelines for fraud, then the classification of fraud has to be there which should be registered in central fraud register (CFR) based on monetary return filed by banks, including updates available and access given to bank of password and user id’s, the caution advices, another important thing that bank should avoid the delays of in reporting of frauds with RBI after that proper report submission is required then the review procedure annually or quarterly, closure of the cases which is also has to be done in proper way.

IPC & VARIOUS ACTS FOR FRAUD PREVENTION      

            There are various offences which consists in cases of fraud those are mention in Indian penal code -1860 those are section 124A criminal conspiracy, 405 criminal branch of trust, 415-cheating, 420 cheating and dishonesty inducing delivery of property, 421 – dishonest or fraudulent removal or concealment of property to prevent distribution among creditors. 464- making  false documents, 463-forgery as far as these offence are concern which were mentioned in IPC  as having a punishment which includes the imprisonment or death penalty depending upon the circumstances in offence. There are certain laws made by government like Debt Recovery Tribunal which was established under the recovery of debts and Bankruptcy Act 1993, with specific objective of providing expeditious adjudication and recovery of debts due to banks and financial institutions. A case can be filled before the DRT where the amount to be recovered from the borrower is more than 10 lakhs, DRT expected to resolves the case within 6 months. Then there was a SARFESI Act 2002 – securitization and reconstruction of financial assets and enforcement of security interest Act in this the bank can acquire the security which is associated with NPA loan and then by registering it on CERSAI can transfer for sell before that bank has to issue notice to borrower & within  25 days can expect  the replay if not received then bank can do further legal proceedings.

            For foreign  regulations there is  foreign exchange management Act 1999, is an act of parliament of India to consolidate and amend the law relating to foreign exchange with the objective of facilitating external trade and payment and for promoting orderly development and maintenance of foreign exchange market in India, previously it was FERA that is foreign exchange regulation act which makes offences related to foreign exchange civil offences according to FEMA Act 1999 section 3 & 4 explains the dealing and holding of foreign exchange section 5, 6 consists of transaction current account and capital account transaction in this act the powers are given Reserve bank to inspect authorized reason and directorate of enforcement who plays vital role with regards to power of search seizure etc. as mention is section 36, 37, 37 A of the said act, further the act has provision for penalties as well which includes in chapter 4 U/s 13, 14, 14 A, & 15, which says that any person who contravenes the provision of this act by violating the rules and regulations issued direction and orders and any condition subject to authorization shall be liable to a penalty up to thrice the same involved in such contravention where such amount is quantifiable or up to 2 lakhs rupees or if he contravention continues the penalty will be extend to five thousand rupees every day If person is found to have acquired any foreign exchange or foreign security of aggregate value as mention is sub-section 1 of section 37 A shall also be liable for penalty up to three times the sum involved.

             Another act which comes in action that is prevention of money laundering act 2002, which has provisions for in respect to Banking companies financial institutions and intermediaries for that purpose there is a mentioning about the powers of directors to impose fine as mention in chapter five of said act u/s 12, 13, 14, 15 when we talk about the offence of money laundering its explanation is given in chapter two u/s 3 and section 4 for punishment in this there is a provision for rigorous imprisonment which is not less than 3 years or extend up to 7 years with fine which may extend to 5 lakhs apart from this in this act also thee is a provisions for summons, searches & seizures as mention in chapter 5 from section 15 to 24, the special court provision is also there u/s 43 to 47.

            In 2018 the Government of India passed another act to prevent the fraudulent activities and its offenders under the fugitive economic offenders Act 2018 which consists of two chapters in the first one if talks about the declaration of fugitive offender and confiscation of property32, in second one which is miscellaneous and includes the rules of evidence, appeal, Bar jurisdiction powers of central government to amend schedules, overriding effects etc. from section 16 to 26 of said act, apart from this in this act various section of IPC are also applicable.

            Though we have a strict law the fraud cases in banking sector are increasing so the question comes why ? if thee is proper law for everything then its implementing also has to be done in proper way within at particular time otherwise the offenders wont be caught. When we see in some of major cases of bank fraud it is observed that most of the time the internal management is liable for that whether it is employees or the manager at top level who knows the exact nature of bank and its policies so by finding loop. Holes in it there are able to work for individuals or for an institution by favoring them in wrongful acts for that matter the RBI should supervise the bank’s working quarterly or annually it has it is also found that after receiving multiple notices bank do not take any actions so in those matters RBI should strictly take action against that bank without wasting time, while giving loan the tract record must be properly verified by banks the audit system should be separately needs to be implemented for the banks so that the detention of wrong activity, like manipulating figure, issuing false document etc. can come forward as far as laws are can earn the provision for punishments should be increased and the procedure has to be complete as early as possible when we talk about different agencies some time the weaker enforcement can be seen because they are burden with excessive work pressure and therefore have to choose different assignments, this is due to insufficient man power and sources available at their disposal. In Indian banks it can be observe that due to poor appraisal system and monitoring mechanism post for sanction of loan is weaker in PSBS compared to PVBS on account of diverse loan portfolio which needs to be change.

            According to working paper of IIM, Bangalore on frauds in the Indian Banking Industry. Observe that more than 95% of a number of fraud cases and amount involve in fraud loans from commercial banks, among the commercial banks, public sector banks account for just 18% of total number of fraud cases. There are various cases in which the courts in India have given proper judgements in relation with bank fraud cases. e.g. IIC Ltd. v/s debt recovery appellate tribunal and others Supreme Court of India.

            The report publish by statistic research department on 15 March, 2021 in the financial year 2020 the Reserve Bank of India reputed a total more than 8700 banks frauds across India which include all kinds like mobile banking, fraud like wise this was another sharp increase compare to the previous year and follows trade of last decade. The total value of bank fraud more than double from 715 billion Indian Rupees to 1.85 trillion Indian Rupees.

CONCLUSION

It is clear that the bank fraud is the critical issue before the country but the pace of development for an effective mechanism to fight it is negligible banking fraud affects the modern quality of a life and imposes a detrimental effect on National growth. A number of strategies can be develop by both the reserve bank of India and Government of India to curb the menace of banking frauds. However these strategies can only be effective if they straight the development of a more effective banking system in fact within the banking system fraud is on of the areas which need immediate and urgent attention.

            However Indian Penal Code 1860 does not recognize banking fraud as a separate offence, different provisions of IPC 1860 are attracted depending upon the facts of each case of banking frauds. This shows that till now, these is no independent legislation to deal with banking fraud exclusively and comprehensively, In general the banking fraud constitute white collar crime committed by unscrupulous person smartly taking under advantages of loop holes existing in current banking system and its procedures.

Author: Durgesh Prashant Parkhi, Law College M.V.P. Samaj’s.

MEDIA TRIAL AND CRIMINAL ANGLE

Photo by Sora Shimazaki on Pexels.com

Even in the Coronavirus lockdown, several cases arose by means of media which questioned the sanctity of judicial proceedings because of the constant gaze aroused amongst the spectators. Media is the fourth pillar in a democracy, but to what extent do we allow freedom of speech to hamper rights of accused in the process towards garnering access to justice? Unnatural demise of Sushant Singh Rajput, “Bois Locker Room” (hereinafter as BLR) have been one of the few cases which have hampered fair trial procedures alongside fair investigation. Throughout, a parallel investigation was running by either the journalistic media or social media, which worsened the situations and also exposed things which infringe persons the right to privacy. Innocence until proven guilty, or discrediting the judicial witnesses, or virtual jury submissions analysing the guilt of an accused have severely distorted the boundaries that media should be permitted to delve into. This paper intends to highlight how media trials ever since Aarushi Talwar’s double-murder case have been a hinderance in access to justice and fair trial, and have malignantly compromised with the principles of natural justice that the Code of Criminal Procedure, 1973, seeks to protect and enshrine.

Article 39(a) of the Indian Constitution[1] postulates that the legal system should operate in a manner to advocate and promote tenets of justice. Article 19(1)(g)[2] guarantees one the right to practice professionally, journalism and work in the fourth pillar of democracy- media. It is when these two rights come intersecting each other’s ways that the scope of this paper initiates. The Constitution has been very considerate in granting to the persons facing accusation the rights of free and fair trial, but it tends to be unable to perform its duty to the best of its capacity when the media picks up an analogous yet unauthorised investigation at its own accord. Soli J. Sorabjee opined,

It has been seen that when a certain case is in court, the media starts a parallel trial, which is not good…Let the court first decide on a matter, then the media can criticize it.”[3]

In many a case, the judiciary has had to put an injunction or immediate stop on the intervention by the non-straightjacketed journalist houses. Delhi High Court issued restraining orders on Arnab Goswami’s defamatory broadcasting on Shashi Tharoor’s court case regarding Sunanda Pushkar.[4] Bombay High Court requests media-houses to show restraint as it was prejudicing the ongoing investigation by the police, in matters of Sushant Singh Rajput’s case.[5] It was also leading to increased number of threat calls and text messages to the accused who wasn’t proven guilty by due procedure of law yet.

The case of K.M Nanavati, which dates back to over half a century ago, was also in the glare of media and became one of the first investigative journalism trials conducted in parallel effect. It hindered the judicial process to the point that the jury members of the trial agreed with the media’s perspective and didn’t find the accused guilty. This was subsequently overturned in Bombay High Court and upheld in the Supreme Court, however it cannot be missed that the influence of media was daunting even back then in the process of justice.[6]

I.                  Provisions of Code of Criminal Procedure:

There are various provisions in the Code which safeguard the interests of every individual involved in a criminal trial, be it the accused, victim, or adjudicators and witnesses. This section of the paper aims to highlight how media trials infringe these rights provided and enshrined by the Code of Criminal Procedure, 1971.

1.     Fair Trial

The cardinal principle of presuming innocence until proven guilty was reiterated in Asharam Bapu v. Union of India and Ors[7] which laid emphasis on the parameters of evidence to prove beyond reasonable doubt the guilt of a person which would then lead to him being a convict of the crime.

Universal Declaration of Human Rights (hereinafter UDHR) were enshrined by the United Nations General Assembly on 10th December 1948, which deal with essential attributes relating to fair trial in a criminal case. They have been embodied in the CrPC as well in form of various distinctive sections.

Article 10 of the UDHR mandates that everyone is to be provided with full equality to public hearing by an impartial and sovereign independent court, and that it should be fair in its proceedings while determining the right and obligations of any alleged criminal charge against them.

Article 11 of the UDHR provides that everyone who is purportedly charged with a penal offence is entitled to be presumed innocent until they are proven guilty according to the due procedure of law in a public trial at which they have had all their guarantees necessary for their defence.

A fair criminal trial has the following attributes:

  1. Since India is an adversarial system of justice, the law must provide fair opportunity to the alleged accused to defend himself fructuously.[8] This is also mentioned in Sections 303 and 304 of CrPC where a pleader of the accused choice must be present to defend him.[9] The indigent accused person should even at the State’s cost avail the services of free legal aid. Upon such denial of the services the trial may amount to be vitiated leading to setting aside of the conviction and sentence of person accused.[10]

In a media trial however, these provisions are vitiated instantly, as the person the media ropes a virtual case against has no defender, no right to set aside the media jury and the viewership’s conviction, and it also leads to heavy defamation of the accused of a penal offence in an actual court proceedings.

  1. The trial must be conducted by a competent judge or magistrate who has the required jurisdiction to conduct the trial in an independent and impartial procedure. This gets significantly compromised in a media trial as the journalists exceed their allowed jurisdiction and try to conduct an independent parallel investigation which is not authorised by law. The Programme Code per Cable Television Networks (Regulation) Act, 1995[11] and 1994 Rules disallow media-houses from conducting these trials as they are in strict non-adherence and violation of the said code, additionally the Code of Ethics and Broadcasting Standards, and the News Broadcasting Standards Regulations.[12] These ethics mention how as a rule the media must maintain a respectable distance and not intrude in the private lives of individuals. The legal ramifications are also well-established and certainly made aware to the smooth running of independent journalism not at the cost of jeopardising the nature of investigation and trial by the judicial bodies themselves.
  2. Section 327 of CrPC demands that the trial should be held in open Court so that there is public access. While Media trials allow for public access, the author shall later in the paper discuss how the in-camera trials also come in the view of camera and breach privacy of respective individuals accused of a crime.
  3. The accused is legally entitled to be provided with the exact accusations against them and the charges are to be explained properly to them as stated in CrPC Sections 228, 240 and 246.[13] While this is not only missed as a step in a media trial, there are further allegations which are self-imposed by the journalist fraternity, which have minimal role from the side of the accused. In Shashi Tharoor’s case[14] the watchdog went so far as to openly label him as a murderer even though it wasn’t proven in the Courts. However vigilant the media claims to be in their work, it is notable that it exceeds its boundaries more than a couple of times to gain more public attention and also manipulates public opinion.[15]
  4. The accused is supposed to be present during the trial so as to have effective prosecution case and defence as well, as per Section 273 of CrPC.[16] In Sushant Singh Rajput’s case, Rhea Chakraborty was called upon by RepublicTV and other News agencies, but in her apparent “witch-hunt”, she wasn’t always present and neither was the news disseminator authorised to summon her legally to be a part of their self-induced media trial.
  5. Proper and sound reasoning should exist in order to compile a coherent judgement as provided in Section 235 of CrPC and the accused must be heard as well (audi alteram partem).[17] Against Rhea Chakraborty, various evidences from twitter fake accounts et al were developed and created to present a disillusioning image to the public on the innocence or guilt of the accused.[18] The sanctity of police investigation should be respected and not foolishly dealt with by conducting another investigation without any sanction from the authorities. It makes the whole process dubious and outrageous as respect is not shown in the legal establishments.

The Supreme Court has observed the significance and need of fair trial in the administration of criminal justice system in a case, where it said that denial of fair trial is injustice to both accused and the victim, but also the society. The need for an impartial judge, a fair prosecutor and an environment of judicial calm exists in a fair trial which also ensures bias and prejudice for or against the accused, the witnesses or the cause are eliminated entirely.[19]

2.     Self-incrimination

Autrefois acquit and autrefois convict are an embodiment of the doctrine that a person who has once been convicted or acquitted cannot be tried for the same offence again, reinstated in Section 300 of CrPC.[20] Media trials take on investigation and sometimes even sting operations to find their version of correct facts. They are not only trying the person without any jurisdiction, but media is also breaching this fundamental principle of natural justice which has been mentioned above. The inbuilt right of an accused to be dealt with in a fair manner is infringed in a media trial.

3.     Power of investigation

The law mandates under Section 165 of CrPC, that the officer-in-charge of a police station can proceed the investigation of a cognisable offence if there is sufficient reason to believe on the virtue of an FIR or any other information received.[21] The power to hold investigation or preliminary inquiry also rests with the Magistrate in a case where the police decides not to investigate the case under proviso of 157(1) of CrPC, so alternatively the Magistrate can conduct preliminary inquiry and investigation as well.[22]

However, the law mandates at no occasion or destination, a provision which empowers media to conduct its investigation suo motu. While dissemination of news is required to enshrine fundamental principles of accountability and free speech and expression, it cannot be stretched to the point where of their own accord media decides to conduct their investigation based on their selective evidences which might be found by using unreliable sources and inadmissible content as per Court requirements.

4.     In-Camera proceedings

A rape victim is supposed to be taken for her medical examination within 24 hours of FIR being registered.[23] To prevent the prosecutrix from anxiety and intimidation from being present in physical proximity to the accused, she is expected to give her testimony from across a screen, as in-camera trials are the rules of procedure.[24] Her mental health is prioritised and relevant measures are taken to protect and ensure security. It is also done to in a way shield the prosecutrix from the ramifications that arise once the matter goes into public scrutiny.[25] However, rampant media trials regarding rape cases have growing concerns as they expose sensitive details that a victim might not be comfortable to share and put in public domain. Indira Jaising has requested medias to follow self-control and self-regulation while going into investigation because they hamper with the rights of victim as well as accused.[26]

II.              200th Law Commission Report:

The Law Commission report deals with the issue of “Trial by Media: Free Speech v. Fair Trial under Criminal Procedure”. [27] It highlights and focusses on pre-judicial coverage by the media on crimes, accused and suspects and how it plays a role in the administration of justice. Criminal contempt can be explained by the kind of publication which, either by words or signs or visual representations, which prejudices or biases the judicial proceeding in a way that is interfering the due course. It also involves the types of publications which tends to obstruct the administration of justice in any form.[28]

Various issues have been brought forth by the report which can be found as under:

  1. Whether publications by the media can subconsciously or unconsciously affect the Judge’s psyche.

Lord Denning M.R has opined in the Court of Appeal that Judges are not influenced by the publicity of the media,[29] a view which the House of Lords didn’t seem to agree with as it came off more as a statement than the truth.[30]

  1. In A.K Gopalan v. Noordeen,[31] the court held that a criminal proceeding is to be deemed as imminent if the suspect is arrested. It also ruled that if a prejudicial or biased publication has been made for a person who has been arrested by the police, then right to freedom of speech and expression[32] must pave way to the rights of an accused which entitles them for a fair trial to be conducted keeping aside any prejudices or influence from the prejudicial publications made by the press after arrest. This was one of the first change in positions of law which was later reversed in the Contempt of Courts Act, 1971, Section 3(2)[33] dealing with innocent publication and distribution of matter, which read that it is in exclusion from criminal contempt if any or all publications made before the filing of charge-sheet are of a prejudicial nature which are capable of interfering with the matters of Court and justice. It was required that there was no mala fide intention in the reason for publishing that material regarding the accused.
  2. The Freedom of Expression and Speech as well as the balance with due process of liberty shall be dealt with in a separate section of this paper, yet it is pertinent for the author to mention that it draws its primary source from the 200th Law Commission Report, as it extensively dealt with these issues as a starting point.
  3. Section 3 of the Contempt of Courts Act, 1971 finally gave contempt charges to whoever interfered by making a publication of an accused which resulted in undue interference of the Court proceedings. However, it doesn’t necessarily mean good implementation, when media-houses are prepared to deal with contempt charges, at the cost of already perturbing the justice system. It is therefore in discussion in the report whether a sort of postponement or suppression of the publication should be directed so as to curb the wide range of ramifications that may arise once the publication is made.
  4. An attempt was made to discuss which categories of media publications are to be given the recognition of being prejudicial to a suspect or accused.[34] Cases that can excite hostile emotions towards an individual under charge can amount to contempt of court.[35] In AG (NSW) v. Willisee,[36] those cases where it is presumed that a person might be guilty of a crime only upon the virtue of their existent criminal record, and is innocent if there is no criminal record found. It was prevalent in a couple of cases where a woman was unduly prejudiced against because she was held of fraud multiple times, so she was assumed to be guilty for abandoning her child,[37] or one man who was charged of forgery earlier on and then was published that he’s been sentenced to imprisonment.[38] In M.P Lohia v. State of West Bengal,[39] newspapers published in an article that the wife was a case of an alleged dowry death case, but the schizophrenic conditions of the wife were not published which gave a biased opinion creating a pressurised environment before the judge. These are unjustified and wrong notions that should be avoided and also mention the role of media in influencing the innocence or guilt of a person in courtroom proceedings. Hence, these intentions behind media trials should be avoided.[40]
  5. Suggestions were made to amend certain provisions of Contempt of Court Act, 1971. It was specified that the journalists should be trained in aspects of law if they voyeur into broadcasting law-related content, since the absolute freedom of media doesn’t seem justified if the media persons aren’t equipped with sufficient inputs of law. Human rights, Constitutional law, Right to life and liberty, Defamation law, Contempt of Court law etc are important from media’s perspective. A diploma and degree course in Journalism and Law should be mandatory for journalists to have adequate knowledge before discussing legal matters.

III.          Constitutional Aspect surrounding Media Trials

The Constitution of India guarantees to the media and judiciary these rights listed as under:

  1. Freedom of Press is guaranteed under Article 19 of ICCPR[41] which affirms the Article 19(1)(a) of freedom of speech and expression.[42] The liberty to seek, receive and disseminate information of all sorts regardless of boundaries exist to every person of the Indian State.
  2. Democracy’s tenets include public participation, and taking Benthamian principles which depend on publicity as the very soul for justice, it gives further confidence to the media.[43]
  3. Article 39(a) states that furthering of justice shall be the objective kept as a priority while operating the legal system.
  4. Article 50 provides separation of power between the judiciary and the executive and there are respective articles to maintain it with legislature as well. Nevertheless, since informally media is thought to be called the fourth pillar of democracy, evidently so a demarcation of jurisdiction should be made imperative so as to ease the functioning as well as ensure and respect the other’s periphery.

Supreme Court has expressed its fears in having media trials as it may inculcate public opinion running on a different tangent from rule of law and constitutionalism, which may increase the demand for capital punishment easily, which in turn can severely damage the tenets of justice.[44]

But to further the agenda of investigative journalism on the fundamentals of Free Speech at the cost of someone’s right to live with dignity[45] seems like a clash of rights. The furtherance of media trials harp on the pressure to increase substantially the TRP ratings and viewership sales,[46] which is a serious impediment on truth and substance as to sell like hot cakes media depends on using juicy headlines, punchlines and interviews which thrive because of the deviation from legitimacy. The right provided under Article 19(1)(g)[47] which allows citizens of India to carry out any profession of their choice, coupled with Article 19(1)(a) which enables them to express themselves without fear of oppression come with a pinch of salt pertaining to reasonable restrictions. ‘Your rights end where my nose begins’ is a common phrase used to explain the limitations of absolute freedom. A trial by media becomes an antithetical governing over rule of law, as it can culminate into a miscarriage in access to justice. Fali Nariman has opined that a “responsible media is the one which is a handmaiden of effective judicial administration”.[48]

IV.           Conclusion

Media has taken the reincarnated shape of Janta Adalat, like the khap panchayats or public courts following regressive mechanisms to nose their way into surmising a verdict by the jury of their stereotypical notions. In Jessica Lal murder case,[49] the media was overjoyed in taking the role of a facilitator of justice as it induced candle light marches and opinion polls to garner public’s opinion on what punitive measures serve the criminality of the scene, yet it was ruled by the Apex Court that freedom of speech needs to be carefully put to use otherwise it interferes with the administration of justice and even amounts to a travesty of justice because the presumption of innocence turns to guilt and burns out in thick air. John Grisham wrote once that media finds guilt on the basis of suspicion while police finds guilt on the basis of evidence, which stands certainly apt for the conditions prevalent in the scenario of current times.

Bois Locker Room (BLR) was an incident which created a lot of ruckus on Instagram. Some screenshots were surfaced and circulated on the platform which were engaging with sexual violence, rape threats and hyper-masculinity. With rapidity, allegations were made wherein one of the alleged minor suspects involved in the fiasco committed suicide because of the mental agony and humiliation.[50] It was later found that the screenshots were manifested by a minor girl who was curious to see the reaction of people in her social-circle. The ramifications of swift methods without precaution and essential due-care for the dispensation of justice can be haphazard. Social media, another form of prevalent and highly popular media is quick in conducting a trial of its own, which causes impediments in the actual procedure which is to be conducted by the courts of justice.

A balance of rights and obligations needs to be maintained between to get the best effective result in a democratic setup. It can be done by implementing a few policy change recommendations like:

  1. Recognising Media as a legitimised fourth pillar of democracy so that rights and restrictions can be mandated by the laws of the land. A free hand and entitlement over independent running should be prioritised but not at the cost of hurting the administration of the legal system.
  2. Media should self-regulate and follow ethics and norms which do not aim to delve into defamation, and other forms of embarrassment for the persons arrested, accused or involved in a trial. These norms are essential as they help underline the respect for judiciary and dignity of individuals of a country. News is essential but it should not impair the already existing mechanisms which regulate and provide justice.

            While the judiciary is expected to be aware of the consequential right of speech and expression granted to media as an institution, the overarching mechanism of conducting investigative journalism and media trials should be regulated by the media houses as they not only hamper rights of the persons involved in the trial but also have far-reaching implications in altering the mindset of general media. Contempt restrictions, ethical guidelines and non-interference with the adjudication process are methods which can push forward this growing power fluctuation between judiciary’s authorised trials and media’s outlawed trials.

Author: Tushmi Udyalak, NUJS, Kolkata.


[1] The Constitution of India, 1950, Art. 39(a).

[2] The Constitution of India, 1950, Art. 19(1)(g).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

[3] Panel discussion on the Self-Regulation of the Media organised by Indian Women Press Corps (IWPC), accessed on https://www.outlookindia.com/newswire/story/there-cant-be-media-trial-in-every-case-soli-sorabjee/762212.

[4] LiveLaw, “Media Can’t Run Parallel Trial”: Delhi HC Directs Arnab Goswami To Exercise Restraint In Tharoor’s Plea Seeking Injunction Against Defamatory Broadcasting, September 10, 2020, available at https://ezproxy.nujs.ac.in:2123/top-stories/breakingmedia-cant-run-parallel-trial-delhi-hc-directs-arnab-goswami-to-exercise-restraint-in-tharoors-plea-seeking-injunction-against-defamatory-broadcasting-162699 (Last visited September 10, 2020).

[5] LiveLaw, Bombay HC Says It Expects Media To Show Restraint In Reporting & Not To Hamper Investigation In Sushant Singh Rajput Case, September 3, 2020, available at https://ezproxy.nujs.ac.in:2123/top-stories/breaking-bombay-hc-asks-media-to-show-restraint-in-reporting-not-to-hamper-investigation-in-sushant-singh-rajput-case-162350 (Last visited September 8, 2020).

[6] LiveLaw, Inquisition By The Media: The Newsroom Is Not A Court Room, August 17, 2020, available at https://ezproxy.nujs.ac.in:2123/columns/inquisition-by-the-media-the-newsroom-is-not-a-court-room-161546?infinitescroll=1 (Last visited September 8, 2020).

[7] Asharam Bapu v. Union of India and Ors (2013) 10 SCC 37.

[8] The Constitution of India, 1950, Art. 21, 22; Legal Service Authorities Act, 1987.

[9] The Code of Criminal Procedure, 1973, §303, §304.

[10] Hussainara Khatoon (IV) v. State of Bihar (1980) 1 SCC 98 at 105.

[11] Cable Television Networks (Regulation) Act, 1995, Chapter IV.

[12] Code of Ethics and Broadcasting Standards, available at http://www.nbanewdelhi.com/assets/uploads/pdf/code_of_ethics_english.pdf.

[13] The Code of Criminal Procedure, 1973, §228, §240, §246.

[14] Supra note 4.

[15] Romila Thapar v. Union of India, (2018) 10 SCC 802.

[16] The Code of Criminal Procedure, 1973, §273.

[17] The Code of Criminal Procedure, 1973, §235.

[18] ZeeNews, available at https://zeenews.india.com/tags/rhea-chakraborty.html (Last accessed September 9, 2020). 

[19] Zahira Habibullah Sheikh (V) v. State of Gujarat, (2006) 3 SCC 374 at 395. 

[20] The Code of Criminal Procedure, 1973, §300.

[21] The Code of Criminal Procedure, 1973, §165.

[22] The Code of Criminal Procedure, 1973, §159.

[23] The Code of Criminal Procedure, 1973, §164A.

[24] The Code of Criminal Procedure, 1973, §327.

[25] Partners for Law in Development, A study of Pre-trial and Trial Stages of Rape Prosecutions in Delhi, available at https://doj.gov.in/sites/default/files/PLD%20report.pdf (Last accessed September 14, 2020). 

[26] LiveLaw, Rape Trials: Media Conducts Parallel Trials In All Sensational Cases, Submits Indira Jaising, SC May Seeks Press Council’s Stand, August 10, 2018, available at https://ezproxy.nujs.ac.in:2123/rape-trials-media-conducts-parallel-trials-in-all-sensational-cases-submits-indira-jaising-sc-seeks-press-councils-stand/ (Last accessed September 12, 2020). 

[27] Law Commission of India, Trial by Media: Free Speech v. Fair Trial under Criminal Procedure, Report No.200, August 2006, available at http://lawcommissionofindia.nic.in/reports/rep200.pdf (Last accessed September 14, 2020). 

[28] The Contempt of Courts Act, 1971, §2.

[29] Attorney General v. BBC 1981 AC 303 (315).

[30] Attorney General v. BBC 1981 AC 303 (HL).

[31] A.K Gopalan v. Noordeen AIR (1969) 2 SCC 734.

[32] The Constitution of India, 1950, Art. 19(1)(a).

[33] The Contempt of Courts Act, 1971, §3(2).

[34] Borrie and Lowe, Law of Contempt 132-179 (3rd ed., 1996).

[35] R. v O’Dogherty (1848) 5 Cox C.C 348 (354) (Ireland).

[36] AG(NSW) v. Willisee 1980 (2) NSWLR 143 (150).

[37] R v. Davis 1960 2 KB 32.

[38] R v. Parke 1903 2 KB 432. 

[39] M.P Lohia v. State of West Bengal AIR (2005) SC 790.

[40] N. V. Paranjape, The Code of Criminal Procedure, (7th ed., 2019).

[41] International Covenant on Civil and Political Rights, 1966[66].

[42] Supra note 32.

[43] K.G. Balakrishnan, The Constitution, The Media And The Courts, The Fourth K.S. Rajamony Memorial Public Law Lecture, Kerala, available at http://www.supremecourtofindia.nic.in/new_links/9%5B1%5D.8.08.rajamony.pdf (Last accessed September 14, 2020). 

[44] Santosh Kumar Shashibhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498. 

[45] The Constitution of India, 1950, Art. 21.

[46] R.K. Anand v. Delhi High Court, (2009) 8 SCC 106. 

[47] Supra note 2.

[48] Fali S. Nariman, Are Impediments to Free Expression in the Interest of Justice, CIJL Yearbook, Vol 4, 1995. 

[49] Sidharth Vashisht alias Manu Sharma v. State of Delhi (2010) 6 SCC 1. 

[50] Available at https://www.nationalheraldindia.com/national/bois-locker-room-case-a-suspected-member-commits-suicide-parents-seek-probe (Last accessed September 14, 2020). 

IMPLICATIONS ON GST COMPLIANCE AND LITIGATION DURING AND AFTER COVID

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The COVID-19 pandemic has dealt a severe blow to an already stressed global economy. The severity of the pandemic across the globe has pushed countries and organizations into unchartered territories. The macro-economic impact of COVID-19 could result in a significant dip in GDP growth, an adverse impact on fiscal deficit and a substantial erosion of investor wealth. While the path to recovery is unpredictable, a prolonged “see-saw” shaped recovery looks most likely for India, leading to a “new normal”. To cope with the crisis, the government initially in the year 2020 announced a stimulus package amounting to INR 20.97 lakh crore, that was around 9.8% of FY21 estimated GDP. Of this package, only 9.7% was the additional burden on the centre’s FY21 budget. An analysis carried out by EY’s Tax and Economic Policy Group shows that, the centre’s fiscal deficit in FY21 may be estimated at 7.1% if this additionality in the recently announced stimulus is to be provided for and the budgeted level of expenditures is to be protected. The pandemic’s impact on Indian economy and finding our way through the new normal. The article on world trade post COVID discusses the potential new environment where countries may start to protect their vital supplies and increase tariff and non-tariff barriers while defending their existing domestic industries through trade remedies measures. As this disease was new in the world and took the entire globe by storm, fewer studies were conducted in so far related to its impact on the fiscal sector; researchers have reviewed some papers to know the implications of this virus on countries economy, review of some papers have been given below.

Balajee, A., Tomar, S., &Udupa, G. in their study entitled, “Fiscal Situation of India in the Time of COVID-19” and found that the Central government has declared package of Rs. 1.7 trillion for mitigating the effects of shut down of the economy. Researchers have also suggested that subsidy rationalization can reduce the fiscal deficit. This study forecasted that fiscal deficit will be as high as to 8.4%”.

Venkateswaran, A. researched, “The Impact of Covid-19 on India” and focuses to know the attitude and awareness level of new viruses among the public. Researcher has also focused on the role of Government, politician, and healthcare officers. This study also suggested that tax concession should be given to small industries, GST relief, guarantee of wages, and, easy accessibility of credit. This research found that coronavirus put a destructive effect on every country of the world.

Every study concluded that it put a negative impact on each sector. Researchers have found that various researches that have been done on coronavirus, but none of the studies has been done related to GST amendments or relaxation during this Covid-19 pandemic.

Objectives: To counter the impact of this new virus on the economy, Government has taken various measures. Relaxation packages of GST is one of the measures. The Central Government has introduced various concessions and relaxation in GST compliances to provide relief to affected persons. The article’s objective is to determine whether the relaxations and relief provided by the Government fulfils its purpose.

Pertinent Questions:

  1. What has been the current impact, of the lockdown due to Covid-19, in the GST litigation space?
  2. What are the changes in the substantive laws that have come about?
  3. What are the changes in procedural laws that have come about?
  4. What are the disputes that may arise or the loopholes that might cause a problem in the future due to these changes?

 Implications on GST compliance during COVID-19 crisis

The last two quarter year have had even the strongest economies across the world struggle with the coronavirus crisis. India is no stranger to economic challenges but a pandemic of this degree is on the verge of crippling several industries and businesses in the country. When a business crumbles, the tax system that generates revenue because of said business will also face challenges. India’s indirect tax system, the Goods and Services Tax is still in its development phase having been implemented merely three years ago in July 2017. Before looking at the GST aspect, looking at the economical aspect is more feasible. The lockdown due to Covid-19 has brought all the economic corporations to a halt, a month-long shut down for a 2.6 trillion dollar economy implies a loss of 217 billion dollars which roughly translates to about 1.4 lakh crores and if the stimulus is seen which is the central government has released which is to the tune of 1.7 lakh crores which clearly shows that Covid-19 disease has put a serious dent in the economy already it was only inevitable that the government would announce to defer the compliances under the GST law and other laws, many measures also include some concessions in other areas of the law example Insolvency and Bankruptcy Code. If we go chronologically on March 19th Prime Minister came before the public and announced the Janta curfew on March 20th, 2020, returns GSTR-3B was required to be filed and subsequently on March 24th, 2020 the Prime Minister again announced the lockdown for 21 days accordingly it was imperative that returns were deferred. On March 24th, our Finance Minister in reference to this lockdown due to the outbreak of COVID-19 they declared certain concessions in a press release. On March 24th the government made some announcements with respect to the indirect taxes, then on 31st March the President came out with the ordinance that was related to taxation and other laws, then finally on 3rd April, the Central Government issued various notifications to bring into effect some proposed concessions.

The plausible challenges that India’s indirect tax reform is currently facing because of the Covid-19 economic crisis, have been demarcated below:

  • Falling revenue collection: Tax collections have suffered in wake of the coronavirus pandemic and consequent lockdown. Union Finance Minister, Nirmala Sitharaman announced that collections for the month of April and May were 45% lower than the usual range. There could be an up in the revenue numbers since the deadline for filing returns has been extended to September 30th, 2020. GST collections for the month of March, 2020 stood at a five-month of Rs. 97,500 crores, falling short of its target of Rs. 1,25,000 crores.
  • Challenges in meeting GST liabilities: The lockdown has disrupted business operations across the nation. Challenges like shortage of raw materials, hiked prices, slowdown in demand, liquidity crisis and delayed payment cycles are likely to cause a lot of issues while filing GST liabilities, even after an extension in deadlines file returns, waiver of late fees and reduction in rate of interest on late filing charges,
  • Demand for rate cuts: Experts have reckoned that the economic crisis caused due to the Coronavirus pandemic is likely to cripple a number of industries especially hospitality, travel and tourism. Obviously, a number of industries are going to demand rate cuts and exemptions. This is going to be quite a challenge for the Government, both Centre and State as any spry of rate cuts will lead to lower revenue collections. On the other hand, no GST exemptions or rate cuts are likely to lead to failure in payment and a build -up of output tax liabilities.
  • Possible disputes while expanding GST ambit: If the Centre Takes on recommendations from certain ministries and other experts and brings certain commodities like crude oil, oil and gas, aviation turbine fuel and natural gas which are taxed under VAT system, under the GST ambit, it could help with revenue collection. But this is likely to fuel the ongoing dispute between States and the Centre who are already knocking heads with the Centre for delayed compensation.

Relaxation in GST compliances during Covid-19 circumstances

To counter the impact of this new virus on the economy Government has taken various measures. Relaxation packages of GST is one of the measures. Due to sudden lockdown taxpayers and professionals are facing various challenges for fulfilling the tax activities. The Central Government has introduced various concessions and relaxations in GST compliances to provide relief to affected persons. All the GST relaxations have been discussed below. For instance:

  • Due Dates of GST returns: The Central Government has taken this lead to give more time to taxpayers for filing the returns. As per the notifications number 30/2020 to 36/2020 issued by the Government in the view of the novel coronavirus, the time limit of indirect tax returns has been extended.
  • Waiver of late fees: Late fees for filing the returns: has also been waived by the Government, till the date of extended due dates of tax returns,
  • Waiver for the Interest: The Government has also waived the interest, if all the return will be filed by the extended due. If a taxpayer unable to file the return within the extended deadlines then interest will be levied at the rate of 9% and 18%.
  • Opting Composition Scheme: Due to this crisis the central government has issued an advisory which states that registered taxpayers who already in the composition scheme are not required to register themselves again for the financial year 2020-21. The date for opting composition scheme has also been increased to 31st March, 2020, for new taxpayers who want to opt the composition scheme through GST CMP-02. ‘
  • Reduces the Compliances: As per the rule 67A a registered tax person can file his amount tax return (GSTR-3B) by typing a typing a short message from a registered mobile number. This return will be verified through the EVC (Electronic Verification Code). Through this no login required, just by SMS return will be filled.
  • EVC Return Filing of Companies: Previously GST return-3B under section 39 of the companies were filed through DSC (Digital Signature Certificate) only, but now the indirect tax returns of companies can be filed by EVC also till 30th June, 2020.
  • Unclaimed Transition Credit Date Extended: The Central Government has extended the date of TRAN-1 till 30th June, 2020. A registered person, who has not taken the transition input or unclaimed ITC by not filing the TRAN-1, will be allowed until 30th June.
  • Validity of EWB: As per the notification no. 40/2020: Central Tax, the validity of an E-Way Bill has increased till 31st May 2020. It will apply to those e-Way Bills, which have been generated before 24th March, 2020 and its expiry is in between 20th March to 15th April, 2020.
  • IRP/RP Registration Time Limit Extended: As per the notification no. 39/2020-Central Tax, the time limit of registration of Interim Resolution Professional (IRP) and Resolution (RP) has been increased to 30th June 2020 or within 30 days of the appointments of IRP/RP whoever is later.
  • Merchant Exports: A merchant exporter has to export within the 90 days of invoice date, but due to lockdown they are unable to export. In view of this the Central Government has issued a circular, which states that merchant exporters will get the extension to 30th June, 2020. It will applicable to those exporters whose 90 days period comes in between 20th March to 29th June, 2020.
  • Validity of LUT: As per the circular 137/7/20, the validity of a LUT (Letter of Undertaking) has also been extended. A LUT, which has been expired on 31st March, 2020, it will be valid up to 30th June, 2020. Changes in procedural and substantive law brought during covid19.

Changes in Procedural and substantive law brought during covid19

Changes in Procedural law: The government has issued 7 notifications, starting from notification number 30 to notification number 36. Now for the purposes of GSTR-3B which is the method through which we remit our tax liabilities, in respect of the concessions with the respect to GSTR-3B the government divided the taxpayer into three brackets, but has not changed the due dates and has granted concession with respect to the imposition of interest. The first bracket includes taxpayers having an aggregate turnover of more than Rs. 5 crores in the previous financial year. In the second taxpayers having an aggregate turnover of more than Rs. 1.5 Crores but less than equal to Rs. 5 crores in the previous financial year. Lastly, in the third bracket taxpayers having aggregate turnover up to Rs. 1.5 Crores in the previous financial year are included. Taxpayers falling in the third bracket have given much more concession in comparison to the taxpayers falling in the other two brackets. Basically, this is the deferment of Returns and the due dates prescribed are higher in case the turnover limit is lesser. So, an assessee having a turnover of up to 1.5 crores would have much higher benefit. These are but with respect to the changes that are on the grounds of interest and late fee for filing the returns.

Notification number 35 was also issued by the government, in terms of this particular notification all the returns under GST regime, for instance, GSTR-6 which has to be filed by the Input Service Distributor, GSTR-7 which is required to be filed by the Taxpayer Deducting Tax at Source, GSTR-5 applicable on Non-Resident Taxable Person, they have also been deferred. In earlier scenarios for GSTR-1 and GSTR-3B the due date was not extended only the concession was granted, however in case of all the other returns the government says that where was the due date with respect to any returns false between March 20th, 2020 to June 25th 2020 the government has extended has extended its due date to June 30th, 2020. Apart from this another important issue was regarding the validity period of the e-way bills, the government has extended the validity period of each e-way bill which expires between March 2020 to April 15th, 2020 it has been extended till April 30th, 2020.

Changes in the Substantive laws: The first change is the insertion of force majeure clause, Clause 8 of the Taxation and Other Laws Ordinance 2020 that has been issued by the president exercise of article 123 provides for the insertion of Section 168A in the CGST Act. Force majeure under clause 8 has been explained as a case of War, epidemic, flood, drought, fire, cyclone, earthquake, or any other calamity caused by nature or otherwise affecting the implementation of the provisions of the act.

The second change was that the government issued notification number 35, in which there is a time limit which has been prescribed in the statute in the CGST Act which prescribes that the appeal has to be filed before the appellate authority within 3 months and there is a condonable period of 1 month. Now the government stated that in terms of this notification whenever the time limit for filing replies, appeals Falls within the period of March 20th, 2020 to June 29th, 2020 was extended to June 30th 2020 and similar concessions have been granted in the ordinance with respect to excise laws and service tax laws also. The third change was added in respect to the restrictions in availing of input tax credit which were added by rule 36(4) of the central goods and services Tax rules 2017 which restricts input tax credit attributable to inward supplies the details of which do not feature in form GSTR-2A to the extent of 10%. Applicability of aforementioned restrictions in respect of ITC attributable to the month of February 2020 to August 2020 will have to be cumulatively observed while filing return for September 2020.

The fourth change was with the respect that any taxpayer who is making Exports is required to realize the proceeds of Exports in order to avail the export benefits under the GST law and the RBI prescribes a time limit for realizing that export proceeds. Now the RBI has extended the period for realization of the export proceeds, in respect of Exports made up to July 31st 2020, from 9 months to 15 months. The negative consequence that can arise is that one would not be entitle to export incentives that basically pertains to the taxability of the transaction and admissibility of refund of the ITC.

Disputes that may arise or the loopholes that might cause a problem in the future due to these changes

All these amendments that are being made are not free from faults. So there is a possibility of a litigation that may arise in the future, if the Supreme Court’s order dated March 23rd, 2020 is considered, this order was passed in exercise of the powers conferred under Article 141 as per which the law declared by the Supreme court is the law of the land. The Court basically took Suo-moto cognizance pf the situation arising out of the challenges faced by the country on account of the outbreak by the virtue of its powers the court had ordered that a limitation period in all such proceedings irrespective of the limitation prescribed under general law or special law whether condonable or not shall stand extended from 15th March, 2020. The ordinance on the other hand, stated that any time limit for completion or compliance of any authority inclusive of filing of appeals if its appeals if it falls during the period from 20th March, 2020 to 29th June. 2020.

So, whenever an assessee is filing an appeal the appellate authority and in case is time period was to expire on or post 15th of March. The appellate authority would probably tell assessee that there was no condonation prescribed under the ordinance or under the notification and if it has not been made in such period it shall get extended to 30th June, 2020. Therefore, there is a conflict between the Supreme Court order and the ordinance passed. Therefore, an appeal to the appellate authority lies against the original order within 3 months from the date of communication of the order, furthermore, one month is also granted which is condonable by the appellate authority thereafter it is not condonable by the appellate authority and had been held in a number of judgments. But the issue which will arise would be whether taxpayer filing the appeal will be required to prefer an application for condonation of delay if such a case arises.

Apart from these there are certain other issues that may arise for instance the ordinance allows the central government to pass notifications with retrospective benefit from the date of commencement of the act and not beyond it. Therefore, we can see that there are inconsistencies between the ordinances and these notifications. There are all these amendments being made in the CGST Act now identical GST law has been framed by the state legislature also. If it is observed these ordinances are making changes in the Central law however there are no corresponding changes being made in the state law so currently there is a conflict exist the state GST law and the central GST law.

SUGGESTIONS/CONCLUSION

Temporary or short-term exemptions on essential goods: While exemptions and rate cuts don’t really help either the Government or businesses or the consumer in the long run, a temporary or short term exemption or a rate cut in the supply of essential goods and services that will help curb the spread of the novel Coronavirus is the need of the hour. Goods like soap, disinfectant and hand sanitizers have had price control imposed on them but fall under the range of 12% to 18% GST. Because the cost of manufacturing essentials has gone up due to a shortage of manpower, raw materials and logistics, a short term rate cut could help businesses continue with production. Needless to say, stringent anti profiteering measures will have to be implemented to ensure that businesses remain ethical.

Zero rated essential services: It is very common to hear consumers shelling out lakhs of rupees on healthcare especially during this pandemic, This could probably be because services are exempt from output GST. While that is a good measure, hospitals cannot claim input tax credit. Yet, they have to incur the expense of input taxes on drugs, medical equipment etc. All of these expenses are then built into the price of the services provided to the consumer. If hospital services were zero rated, they could claim input tax credit and thereby reduce the price of the service delivered to the consumer.

Optimizing flow of input tax credit: Most business sectors have stated that ITC flow is a major pain point for them as it blocks working capital. As businesses start to normalize post lockdown, the offset of input tax credit is likely to stagger, several business verticals like travel and tourism will require immediate and an optimized flow of ITC. A mechanism to ensure optimal flow of ITC will be highly appreciated.

Suspended GST on settlement: Several contractual obligations were violated because of the coronavirus outbreak and consequent lockdown. Obviously, parties will attempt to settle these liabilities through liquidated damages or arbitration. But if the Centre demands GST on settlement amounts, it is highly unlikely that resolutions of these disputes could be delayed indefinitely.

This is an opportunity for India’s biggest indirect tax reform to prove its worth as a user-friendly tax; a collaborative approach between the Centre and businesses could help normalize the situation efficiently. The Centre has been implementing reform and relief measures for various different businesses and hopefully, we should be able to drift through this crisis.

Author: Parth Tehri, Bhartiya Vidyapeeth (New Delhi)

Laws Regarding Autonomous Vehicles in India

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With the technological advancement and rise in the AI (Artificial Intelligence) development we see new wonders and miracles almost similar to a fantasy becoming real every day. One of such miracles is the introduction of the term “Autonomous” in modern technology.

Autonomous means being “not subject to the rule or control of another”, in simple terms not being under any outside control. From the past, scientists have tried to develop machines which will make most complicated and even day to day activities easy for the human kind.

However, these machines still required supervision and care from any outside force. To make the machines free from the taxing and unneeded supervision, autonomous technology was introduced to the modern age. Although automation is not such a foreign concept in other fields, transportation has seen rise in this field recently. A lot of speculations were made regarding the future of vehicles and modes of transportation in general, being automatic was a given in them. Despite being far away from seeing flying cars in our daily sky, the age of seeing driverless cars is here. For a firm standpoint, the vehicles which are able to drive themselves from point A to point B and take all the decisions encountered between those points itself are called autonomous.

 History

The efforts of people trying to make machines needing less manual support and introducing automation dates back to the period between about 300 BC and about 1200 AD. It used to be a preoccupation of the Greeks and Arabs.

A fully automated machine was not introduced till 17711, when Richard Arkwright invented the first fully automated spinning mill driven by water power, known at the time as the water frame. An automatic flour mill was developed by Oliver Evans in 1785, making it the first completely automated industrial process.

 Experiments

However, experiments on self-driving cars didn’t begin till the 1920’s. Worthwhile results came till 1950’s and work has proceeded since then. In 1925, Houdina Radio Control demonstrated the radio-controlled “American Wonder” on New York City streets, traveling up Broadway and down Fifth Avenue through the thick traffic jam. The technology has advanced by leaps and bounds every decade since then. General Motors at the 1939 World’s Fair, exhibited radio-controlled electric cars moving with the help of electromagnetic fields provided by the circuits embedded in the roadways.

The main focus of the researchers and scientists has been on how to move the vehicle from point A to point B without any human interference or manipulation. Any consideration for the outside factors involving environment and obstacles was not given until mid 70’s, therefore, the cars till that era cannot be said to have achieved autonomous driving. Focus on the factors said before and research into the intelligent automated logic needed for autonomous cars was conducted at the Coordinated Science Laboratory of the University of Illinois in the early to mid-1970s.

The first semi-automated car was introduced to the world in 1977. It was a project run by Japan’s Tsukuba Mechanical Engineering Laboratory, which required specially marked streets that were recorded, interpreted

1 https://en.wikipedia.org/wiki/Automation#Early_history

and processed by two cameras on the vehicle and an analog computer. The vehicle reached speeds up to 30 kilometers per hour (19 mph) with the support of an elevated rail.2

 Major Landmarks

The first landmark autonomous car appeared in the 1880’s when Carnegie Mellon University introduced Navlab3, which was funded by the United States’ Defense Advanced Research Projects Agency (DARPA).

Navlab4 were a series of computer operated vehicles developed by the robotics institute teams from the school of computer science in the university. In the series, some required little human input and some were completely autonomous. Consequently, experiments and research were conducted thoroughly. By 1985, the ALV had demonstrated self-driving speeds on two-lane roads of 31 kilometres per hour, obstacle avoidance being added in 1986, and till 1987 5it achieved off road driving in day and nighttime conditions achieving a greater milestone in the field of autonomous vehicles.

The research achieved substantial heights in 1995 when Carnegie Mellon University’s NavLab 5 completed the “first ever autonomous coast-to-coast drive of the United States. From the 4,585 km between Pittsburgh, Pennsylvania and San Diego, California, 4,501 km were autonomous (98.2%), which were completed with an average speed of

102.7 km/h.”

2 “Autonomous Cars Through The Ages”. Wired. Retrieved 26 July 2018.

3 The Carnegie Mellon University Navigation Laboratory. The Robotics Institute. Retrieved 20 December 2014

4 “Navlab: The Carnegie Mellon University Navigation Laboratory”. The Robotics Institute. Retrieved 14 July 2011.

5 (May 1988). “VITS-a vision system for automated land vehicle navigation”

These projects led to the basics and foundation of modern technology involving the development of autonomous vehicles. The dream for having driverless cars was not too far behind after this.

 Automated or Autonomous?

Confusing Automated to Autonomous is a common mistake. The earlier experiments and research conducted can be said for automated technology, while the goal was to create a completely self-governing, requiring little to no human interaction in between the decisions taken by the vehicle going through the journey. These decisions not just mean travelling in a straight line from point A to B. Being truly autonomous means going through all the hurdles and also interacting with the ever changing environment by itself.

Many historical projects related to vehicle automation have been automated (made automatic). They were heavily relying on artificial aids in their environment, such as magnetic strips, rails, radio controlled frequencies, external influence and more. Autonomous control implies satisfactory performance under significant uncertainties in the environment, and the ability to compensate while coming up with a solution for system failures without any external intervention.

 Understanding by Law

Wood et al. wrote in “The potential regulatory challenges of increasingly autonomous motor vehicles”. 52nd Santa Clara Law Review. 4 (9): 1423–1502.an article in 20126, the term “autonomous” was chosen “because it is the term that is currently in more widespread use (and thus is more familiar to the general public). However, the latter term is arguably more accurate. ‘Automated’ connotes control or operation by a machine, while ‘autonomous’ connotes acting alone or independently.”

Fact implied by the above review is that the use of the term autonomous was purely for convenience and not intentional. Current technology cannot, unfortunately, afford to be called autonomous and there is still a considerable amount of innovation to be done in the field.

In Europe, however, the words automated and autonomous might also be used together. The “automated vehicle” and “fully automated vehicle” are defined by the Regulation (EU) 2019/2144 of the European Parliament and of the Council of 27 November 2019 on type-approval requirements for motor vehicles on the basis of their autonomous capacity:7

  1. “Automated Vehicle” means a motor vehicle designed and constructed to move autonomously (without human interaction) for certain periods of time without continuous driver supervision but in respect of which driver intervention is still expected or required.
  • “Fully Automated Vehicle” means a motor vehicle that has been designed and constructed to move autonomously without any driver supervision altogether.

According to the Automated and Electric Vehicles Act 2018 The British law interprets the meaning of “automated vehicle” based on the interpretation section related to a vehicle “driving itself” and an insured vehicle.

 Types and Definitions

Autonomous vehicles are a very wide concept which includes all kinds of technical jargon. Classifying and dividing the different kinds of autonomous vehicles is important for understanding and evaluating them accordingly. Moreover, it gives a sense of understanding to the

non-technical folk with a curiosity towards them.

The British Automated and Electric Vehicles Act 2018 law defines and considers a vehicle as “driving itself” if the vehicle “is operating in a mode in which it is not being controlled, influenced or manipulated, and also does not need to be monitored, by any individual.8

A classification system with six levels which ranges from fully manual to fully automated systems was published in 2014 by SAE International, an automotive standardization body. It was published as J3016, Taxonomy and Definitions for Terms Related to On-Road Motor Vehicle Automated Driving Systems9. This classification was purely on the basis of the driver interaction and attentiveness required from them while driving the vehicle rather than the capabilities or the technology used in the vehicle to make it autonomous.

 The different types are as follows:

  1. No Automation: This type requires full-time performance and attention of the human driver in all aspects of the controlling and driving task of the vehicle; it is needed even when the vehicle is “enhanced by warning or intervention systems”
  • Driver Assistance: This type is also called “hands on” driving. It uses the information about the driving environment and with the expectation that the human driver performs all remaining aspects of controlling and driving tasks of the vehicle. In simpler terms, an automated system performs the task of acceleration/deceleration while the steering wheel is handled by the driver.
  • Partial Automation: Often referred to as the “hands off” driving. The automated driving system controls the task of steering, accelerating/decelerating and braking. However, it does not imply that hands can remain off the vehicle completely. A little interaction and presence of mind is required during the drive by humans. Although, automated driving system monitors the driving environment.

Tesla Autopilot system is classified as an SAE   Level 2 system

  • Conditional Automation: This kind of automation can be referred to as the “eyes off” driving system. The entire tasks from controlling the emergency brakes, steering, engine to the general or soft turns are automated. The computer can be compared to a co-driver who alerts the driver when his intervention is required by the vehicle. Other than the frequent intervention and keeping an eye on the road, the driver is free to perform other tasks of his/her choice.
  • High Automation: It is referred as the “mind off” automation. The driver is free to leave the driving seat and perform the tasks which could take his mind completely off the road for ex: sleeping, eating or watching a movie. Under special circumstances, the automation system can fully take control over the vehicle and perform any or almost all the tasks required while controlling the vehicle. The automation system, however, can park the vehicle or stop if intervention from humans is required or the passenger is off the steering wheel at the time.
  • Full Automation: This kind of driving system is referred to as “steering wheel optional” automation system. Here, no human intervention is required at all. An example of this kind of automation system would be a robotic vehicle that works on all kinds of surfaces, all around the world, in every season, in all weather conditions.

 Criticism

The classification system by Automation Levels of SAE has been criticized for only paying attention to the technology and making it the sole criteria for dividing autonomous vehicles11. According to this system, the more automation, the better it will be. This cannot always be true, taking external factors into consideration is also important. They also never took into account the changes that may be required to infrastructure and road user behavior12. Urban use of autonomous vehicles encounters a lot of unseen forces and many factors may still be unknown, future regulations might change the current classification system completely.

 Legal Status

The 1968 Vienna Convention on Road Traffic,13 which is subscribed by over 70 countries worldwide is responsible for regulating and establishing traffic laws, it also governs them. The basic groundwork for the principles was that the driver is and will be in full control of the vehicle, given there is no outside interference. In 2016 a reform was done which opened many possibilities for the automated technology, trusting a significant amount of tasks, which are performed by the driver to the system. However, the technology which is assisting in this is still undermined, implying the superficial thought given to automation systems. This means, in those countries cars might be automated or autonomous or self-driving but they can’t be driverless.

India, although not being a signatory of the Vienna convention 1968, has conversely applied the principles established in the convention.

However, Global road safety body, International Road Federation (IRF) has urged India to become a signatory to the Vienna Convention on Road Traffic (1968) and be on par with international standards in this area.14 A satisfactory decision is still to be taken on for being a signatory or not of the Vienna convention.

 Regulations in different countries

1.   United States

The United States of America is non-signatory to the Vienna convention. It does not practically accept everything about autonomous systems of driving; however, it prohibits them completely as of 201215. Several

13 “GAR – 1968 Vienna Convention”.

14

http://opiniojuris.org/2015/04/02/guest-post-indian-court-embraces-the-vienna-convention-on-law-of-treati es/

15 “Automated Vehicles Are Probably Legal in The United States”

states in the country have accepted and considered enacting laws for the regulation of automated vehicles. Moreover, by 2016, seven states have even enacted some of these laws in their region. Unfortunately, the recent incidents with Tesla’s autopilot system have forced these states to re-revise and consider the laws for automation more thoughtfully.

2.   Europe

In 2013, the government of the United Kingdom took the lead and allowed testing of driverless cars on public roads.16 Before this all projects were researched and experimented on private properties, generally them being enclosed tracks.

As if taking an example, the governments of France17, Switzerland, Hungary and Germany allowed testing of automated vehicles with proper conditions and restrictions imposed in 2015 and 2017 respectively.

Regulation (EU) 2019/2144 of the European Parliament and of the Council of 27 November 2019 on type-approval requirements for motor vehicles defines specific requirements related to automated vehicles and fully automated vehicles. The law is applicable from 2022. It is based on uniform procedures and technical specifications for the systems and other items.

3.   Asia

In 2016, the Singapore Land Transit Authority began testing a fleet of robo taxis on its streets in partnership with Delphi Automotive; a UK based automotive supplier company. They will be an on demand cab service which will take effect by 2017

Japan

Japan amended two laws in 2019, “Road Traffic Act” and “Road Transport Vehicle Act”. In the Road Traffic Act level 3 self-driving cars were allowed on public roads and in the Road Transport Vehicle Act process to designate types for safety certification on Level 3 self-driving function of Autonomous Driving System (ADS) vehicles; and the certification process for were legally defined. Accepting the modern technology and taking the future to the next step, Japan, in 2020, issued an official roadmap and development plans which considered the commercialization and public acceptance of level 4 self-driving cars.19

  • China

China introduced regulations for partially automated, highly automated and complete automation vehicles in the year 2018.20 Chinese regulations make it mandatory to remotely monitor and make it capable to remake the incidents occurred during test driving and analyze them later. Also, they made it mandatory to have a test driver having at least 3 years of experience with “no incidents” occurring during that period. For future prospects China plans to add highways for the development and public use of automated vehicles in 2021.

4.   Issues posed in India

India, being a country in the process of development itself had and is trying it’s best to be on par with the modern technology. With the introduction of Tesla autopilot in the country India is closing on with the world. However, regulations relating to testing and legalization of automated driving system (ADS) vehicles are still lacking and proper consideration is to be given. Issues for self-driving cars in India are not just limited to proper roads or liability during the accidents, India faces crises bigger and more attention worthy than these.

All the operations for transports are governed by the Motor Vehicles Act, 1988, which does not even allow testing of self-driving vehicles on Indian roads. An amendment was proposed in the Motor vehicles Act bill of 2017 which provides regulations for testing. However, it is still pending.21

In India, current laws provide for ‘no fault’ liability of the owner or the insurance company if an accident results in death or permanent disablement. But with driverless cars around it is very difficult to gauge the situation and assess proper liability. A recent incident with tesla autopilot tried to hold company liable for autonomous system failure.

However, it was stated clearly that self-driving cars does not allow driver to leave the driving seat yet. This confuses law makers’ around the world.

Another major crisis for Indian government is to tackle unemployment which will be caused by driverless cars around. The government argues that there are 40 lakh drivers in the country with a shortfall of 25 lakh drivers. The government does not want to put employment opportunities for skilled drivers at stake and give that job to an automated system.

The roads in India are clearly not suitable for even normal driving. The driverless system will have even more of a hard time in navigating through crowded, traffic packed, and rash drivers. All these issues make autonomous cars a pipe dream for years to come in India.

 Future of Automation

Waymo, a US based automotive company started testing driverless cars without a safety driver in 2017. However, there was still a person present in the passenger position for monitoring and analyzing the situation from inside. In December 2018, “Waymo was the first to commercialize a fully autonomous taxi service in the US, in Phoenix, Arizona”. Waymo launched a geo-fenced driverless ride hailing service in Phoenix in October 2020.

In March 2019, Robocar, set the Guinness world record in being the fastest autonomous car in the world. It pushed the limits of self-driving vehicles, Robocar reached 282.42 km/h, an average confirmed by the UK Timing Association at Elvington in Yorkshire, UK. This was the new achievement which introduced autonomous vehicles to different fields other than public service.

On March 5, 2021, “Honda began leasing in Japan a limited edition of 100 Legend Hybrid EX sedans which were fully equipped with level 3 automated driving systems;” which had already passed with certification of Japanese government to their autonomous “Traffic Jam Pilot” driving technology. This legally allowed drivers to take their eyes off the road.22

 Conclusion

The Autonomous system is not developed and neither completely safe, still it is a necessary evil which is required for the overall betterment of society and leap of humankind into the future of AI (Artificial Intelligence) development. Without a doubt there are several challenges which come along with the automated technology but the advantages which tag with it cannot be ignored too. Accidents can be avoided which take countless lives around the world, mostly caused by human faults.

Time management can be made easier by not involving commute time and leaving driving to an autonomous system. A paradox of automation refers to the necessity and involvement of humans in automation. It says that the more efficient and developed automated systems becomes; the more involvement of the human mind will be needed. It is critical for humans to work along with the AI to take advantage of it effectively.

Lisanne Bainbridge, a cognitive psychologist, identified these issues notably in her widely cited paper “Ironies of Automation.” If an automated system has an error, it will multiply that error until it is fixed or shut down. This is where human intervention is needed. A fatal example of this was Air France Flight 447, where a failure of automation put the pilots into a manual situation they were not prepared for.

Any progress made by humankind has not come without a price in history, and at the time of making development for a new century, being patient and drafting out proper regulations is what needed most.

Following the examples of the past, the dream of having completely automated cars running around our roads is not so unfathomable.

 Author:  Aditya Fouzdar, Jemtec School Of Law, Noida

Public Building and Fire Safety Rules in India

Photo by Oluwaseun Duncan on Pexels.com

Introduction

According to the most current statistics from the National Crime Records Bureau, India’s dismal fire safety record was reflected in the deaths of 17,700 persons in fires in both public and private buildings across the country in 2015. Fire is a severe hazard to a range of constructions in India. Almost every day, fires are reported by media sources around the country. These fires not only killed and injured a large number of people, but they also destroyed a large amount of property.

Construction activity in India has expanded substantially during the last two decades, especially in high-rise structures. As a consequence of its unique character, fire in residential structures, particularly high-rise structures, becomes more complex, making salvage actions more difficult and, in some circumstances, leading in several deaths and major property losses.

Present Status of Fire Services in India

According to Article 243W of the Constitution, municipalities in India are responsible for completing the activities stated in the 12th schedule.Currently, the concerned states, Union Territories (UTs), and Urban Local Bodies offer fire prevention and firefighting services (ULBs).Municipal corporations manage fire services in several states, such as Gujarat and Chhattisgarh. It is controlled by the Home Ministry’s department in the remaining states.

In response to problems in fire services in various regions of the nation and the need to improve them, the Government of India formed a Standing Fire Advisory Committee (SFAC) under the Ministry of Home Affairs in 1956, which was renamed Standing Fire Advisory Council (SFAC) in 1980. In several states, such as Gujarat and Chhattisgarh, municipal corporations are in charge of fire services. In the remaining states, it is under the control of the Home Ministry’s department.

In 1956, the Government of India established a Standing Fire Advisory Committee (SFAC) under the Ministry of Home Affairs, which was renamed Standing Fire Advisory Council (SFAC) in 1980, in response to difficulties with fire services in various parts of the country and the need to strengthen them.

The Problems in the Current Structure

Physically, cities are changing at a dizzying rate, similar to a chain reaction. Additional housing and working space is required as the population grows. As a result, both residential and commercial structures often increase and densify with time.The Firemaster strategy is not being altered or updated even in this circumstance. In addition, just 30% of Indian cities have any form of master plan.

Many commercial and residential structures, particularly high-rises, have been found to be in breach of fire safety rules. Many building tenants or organisations do not care to keep their fire suppression systems up to date on a regular basis. Despite the fact that fire safety audits have been shown to be a useful tool for analysing an organization’s or occupancy’s fire safety standards, none of India’s fire safety laws specify the scope, objectives, methodology, or frequency of a fire safety audit.

Main Regulations

The Twelfth Schedule of the Indian Constitution, which is controlled by Article 243W of the Constitution, governs firefighting services in India. The functions mentioned in the Twelfth Schedule are the responsibility of municipalities. Currently, fire prevention and firefighting services are organised by the respective States and Union Territories. It’s important to note that India’s fire departments are still varied, with the bulk being under-equipped and poorly organised.

India’s primary model regulation for matters such as building construction and fire safety is the National Building Code (NBC). Firefighting and prevention are the responsibility of the state. The majority of fire prevention and protection is the responsibility of state governments. The legislation for fire prevention and protection are established by State Regulations or Municipal By-Laws.

National Building Code:

The National Building Code is created by the Bureau of Indian Standards. The NBC published its debut issue in 1970. Between 1983 and 1997, this edition was modified three times. In 2005, the NBC published the second version. The third edition of the NBC was released in 2016, and it covered the most up-to-date information on the country’s building projects. NBC’s primary purpose is to outline practises that provide a practical and reasonable degree of fire safety. The Code mandates that building occupants and users comply with the basic minimum of fire safety regulations. To guarantee that fire protection equipment/installations satisfy the set quality criteria, it is preferable to use those that have been officially certified under the BIS Certification Marks Scheme. Building constraints in each fire zone are mentioned, as well as building classification based on occupancy, fire zone demarcation, height limitations, kinds of structure construction based on fire resistance of structural and non-structural components, and other restrictions and regulations essential to reduce the risk of death from fire, smoke, gases, or panic before the building is constructed.

The Code recognises that life safety is about more than only escape and, as a result, it tackles a wide range of concerns that are deemed vital to life safety. As a result, the Code includes requirements concerning egress, such as exit access, exit, and exit discharge, among other things. It also provides guidelines for deploying portable and fixed firefighting equipment to protect various occupancies from fire.

State Regulations:

The National Building Code is supplemented, for the most part, by state fire prevention and fire safety statutes and requirements. Many of the NBC Code’s provisions have been adopted by state and municipal governments in their individual building codes. States such as Maharashtra and Gujarat, for example, have enacted legislation and regulations to enhance the overall quality of fire protection measures in their jurisdictions. Many individuals have pondered who will be responsible for supplying a building’s or habitation’s fire protection and prevention system. These concepts are clearly stated by Maharashtra’s statutes and laws. All fire and safety precautions must comply with the National Building Code of India, as amended from time to time, according to Section 3 of the Maharashtra Fire Prevention and Life Safety Measures Act, 2006, otherwise they would be regarded a violation of the Act. It means that the owner or occupier of a building or occupancy is responsible for keeping the fire safety equipment in good working order.

Related Regulations:

Aside from the particular State Acts and Rules listed above, there are a number of other pieces of fire-prevention legislation. Two of the most important are the Factories Act and State Factories Rules. The occupier’s obligations are emphasised in Section 38 of the Factories Act of 1948, which include I taking all possible care to prevent the spread of fire, (ii) providing a safe means of escape, and (iii) providing suitable fire protection. (iv) to instruct all personnel how to use fire escape routes and what to do in the case of a fire. Section 37 of the Factories Act of 1948 also prescribes particular measures to prevent explosions. Under the Factories Act, the State Factories Rules give extensive guidance on how to avoid fire dangers.

Codes and Standards:
IS Codes

BIS has established approximately 150 fire safety standards for buildings, firefighting equipment, and systems, including the following: Buildings, electrical generating and distributing stations, cotton textile mills, rubber and plastic, libraries and archives, iron and steel industries, hotels, and educational institutions fire detection and alarm systems are all covered by this code of practise. Only a few examples are fixed automatic sprinkler fire extinguishing systems, gaseous fire extinguishing systems, water mist systems, portable fire extinguishers, long-range foam monitors, fire detection and alarm systems, and so on.

OISD Standards

The Oil Sector Safety Institution (OISD) is a technical organisation inside India’s Ministry of Petroleum and Natural Gas that develops and monitors a set of self-regulatory processes aimed at enhancing the safety of the oil and gas sector. STD 114 (Safe handling of hazardous chemicals), STD 116 (Fire Protection Facilities for Petroleum Refineries and Oil/Gas Processing Plants), and STD 117 (Fire Protection Facilities for Petroleum Refineries and Oil/Gas Processing Plants) are among the standards created by the OISD (Fire Protection Facilities for Petroleum Depots, Terminals, Pipeline installations & Lube oil installations). Depending on the kind of operation and the nature of the materials handled in the structure, statutory agencies such as the State Factory Inspectorate require an outside fire safety assessment for industrial buildings.

Compliance:

Readers would be interested in the terms of the Maharashtra Fire Prevention and Life Safety Measures Rules, 2009, which were adopted under the Maharashtra Fire Prevention and Life Safety Measures Act, 2006. These legislation required building owners and inhabitants to undertake half-yearly fire safety audits and submit the results to the fire service. Without a doubt, it is an excellent example for other nations to follow. However, leaving the fire safety audit to “Licensed Agencies” has produced some confusion, because the same agency is responsible for I installing firefighting systems in an occupancy with a Form “A” certification and (ii) performing firefighting system maintenance and issuing a half-yearly certificate under Form “B” I

Form ‘B’ certification is sometimes misinterpreted as a Safety Audit, which is erroneous. The scope and methodology of the audit may have been weakened as a result of this agreement. Furthermore, it is not permissible to delegate the auditing work to the same ‘Licensed Agencies’ that installed or maintained firefighting equipment in an occupancy. It’s also controversial if so-called “Licensed Agencies” have the expertise and capability to undertake a comprehensive fire safety audit. As a result, the fire safety inspection appears to have degraded into a routine.

The NBC categorises the structures into nine groups:

These individuals have been classified into a variety of categories. The NBC is also responsible for three distinct types of fire zones and four different types of structures.

NBC Part 4 (Fire and Life Safety), which covers substantial regulations on fire prevention, life safety, and fire protection, contains the fire safety standards. The fire protection, which not only deals with fire prevention and protection, but also gives guidance by setting standards for construction, plumbing, electrical installations, including wiring, lighting, ventilation, heating and air conditioning, safety sanitation, active and passive fire protection systems, and so on.

Shortcomings in the Present System

1. Some states have a deficit of unified fire services, which offer all of the essential requirements and training in firefighting.

2. In India, most fire departments lack adequate organisational structure, training, and opportunity for firemen to further their careers.

3. Current equipment lacks scalability, permission, and standards;

4. Appropriate and sufficient financing is lacking, preventing advancements in firefighting technology.

5. It is difficult to get a real-time awareness of the environment due to a shortage of training institutes.

6. Lack of infrastructure, such as fire stations and lodging for crews.

7. Vulnerability analyses are hardly never carried out.

8. No public awareness initiatives (DOs and DON’Ts), simulated exercises, or evacuation exercises are in place.

9. In certain states, there are no uniform fire safety requirements.

WAY FORWARD

Advance Planning

1. Find out what you’re meant to do ahead of time by checking with your building management and fire department.

2. If a fire is detected, call the fire department and raise the alarm. Pay attention and obey instructions if you hear them over the public address system in your building. It’s conceivable that you’ll be recommended to remain in your current location.

3. Follow your escape plan if you see smoke or other symptoms of a fire.

Be Prepared

1. Recognize the location and function of the fire alarms in the building.

2. Get to know the sound of your building’s fire sirens.

3. Make sure that everyone in your house knows where to go in the event of a fire alarm, and that you all practise your escape plan together. Your building’s administration should post evacuation plans where everyone can see them.

4. Some evacuation strategies may require you to enter the building and wait for firemen to supervise your escape in a “safe area.”

5. Know at least two exits from each of the rooms in your flat.

6. Count the number of doors between your apartment and the nearest building exit. There’s a chance you’ll have to flee a fire in the dark.

7. In certain high-rise situations, staying there and shielding oneself from the flames until the fire department comes is the safest option.

FIRE DETECTORS, FIRST AID FIRE FIGHTING SYSTEM

Determine who is responsible for maintaining your building’s fire safety systems, such as fire/smoke check doors, fire alarms, emergency lights, and fire sprinklers, up to date. Don’t be afraid to report the issue as soon as you notice it. If the situation persists, get assistance from your local fire department. Check to check if anything is obstructing or interfering with the fire suppression systems within or outside the building.

EXITS

It is never a good idea to lock or block fire exits. Garbage should be kept out of the escape route. In the case of a fire, fire doors not only provide a means of escape, but they also aid to reduce the spread of the fire’s and smoke’s effects. A fire door should never be propped open.

IF A FIRE BREAKS OUT ELSEWHERE IN YOUR BUILDING

Usually, staying in your own apartment is the safest alternative. However, if your unit is impacted by heat or smoke, leave right once and shut all windows and doors behind you.

  • Fire Safety Audits should be made mandatory across India, and the auditing job should be given to third-party businesses having prior experience in the sector. Once a year, each tenant should do a fire safety audit. Above all, the effectiveness of fire prevention and firefighting is strongly reliant on the active engagement of all employees.
  • A approach for detecting and analysing possible dangers is HIRA (Hazard Identification and Risk Assessment). A thorough fire safety audit may detect the inherent fire dangers that come with day-to-day workplace operations and provide ways to reduce the risk of fire. Fire Safety Audits should be made mandatory across India, and the auditing job should be outsourced to third-party businesses with prior expertise. Once a year, each tenant should do a fire safety audit. Above all, the effectiveness of fire prevention and suppression is strongly reliant on all employees’ active engagement.
  • HIRA is a technique for detecting and analysing possible threats (Hazard Identification and Risk Assessment). A thorough fire safety audit may detect the inherent fire risks that come with day-to-day workplace operations and provide ways to reduce the risk of fire.

CONCLUSION:

Hazard Identification and Risk Assessment (HIRA) is a method for identifying and assessing possible risks. A thorough fire safety audit may detect the inherent fire threats that come with day-to-day activity in a facility and provide measures to lessen such risks.

Although India has a multitude of fire safety guidelines, regulations, regulations, and regulations, they are rarely followed. Several big fires in various occupancies were caused by a lack of compliance with fire safety rules, some of which ended in tragedy. According to studies, the majority of skyscrapers in Mumbai continue to ignore the compliance certificate for fire safety rules. Several well-known high-rise structures in New Delhi are in great danger of becoming fire traps. In and around Connaught Place, the majority of high-rise buildings lack fire safety certification. Nearly 90% of the structures in Chennai are fire dangers.

Fire Safety Audits should be made mandatory throughout India if you want to reduce the number of fires, and the auditing job should be delegated to third-party agencies with experience in the field. Once a year, each tenant should conduct a fire safety audit. Above all, the effectiveness of fire prevention and fire defence is strongly reliant on active engagement from all members of a workplace. Always keep in mind that prevention is better than cure.

Author: Tanya Godre