Ukraine War effect on oil price and impact on India

Reading time: 4 minutes

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

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

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

Also read: Uniform Civil Code

The conflict between Russia and Ukraine could raise oil prices, putting India’s rising inflation at risk. Although India imports more than 80% of its oil, oil imports account for only about 25% of its total imports. The current account deficit, which is the difference between the value of goods and services imported and exported, will be impacted by rising oil prices. More crucially, the jump increases the pressure on state-owned oil dealers to raise retail prices, which is bad news for the NDA administration. These increases have been put on hold as a result of the state elections, although an increase is likely as soon as the polls close. Given the potential for cascading inflation as a result of the projected price increase, calibrating the raise has become more difficult.

The wholesale price index in India rises by 0.9 percent to 1% for every 10% increase in crude oil prices, while the consumer price index rises by 0.4 percent to 0.6 percent. According to S&P Global Platts Analytics, a 10% increase in oil prices results in an increase of about $15 billion in India’s current account deficit, or 0.4 percent of GDP, causing the rupee to depreciate. According to Platts Analytics, among Asia’s big four oil consuming countries, China is well-positioned as it has substantial domestic production, coupled with relatively high SPR levels. China’s relatively low inflation rate means that it has leeway to boost economic growth if needed, which it expects to be 4.9 per cent for 2022, with oil demand growing at 560,000 b/d.

“India, on the other hand, is more vulnerable as it depends heavily on crude imports, and it has relatively low SPR compared to other major Asian consuming countries. India’s soaring consumer price index continues to be a cause of concern for the economy, although growth is expected to be strong at 8 per cent for 2022,” Lim of Platts Analytics said.

At a recent meeting of the Financial Stability Development Council, the rise in global crude oil prices was mentioned as a possible catalyst for India’s financial instability (FSDC). “It’s impossible to predict how crude prices will move. When the FSDC was looking at the threats to financial stability, one of the things that came up was crude “Nirmala Sitharaman, the Finance Minister, stated. “These are international alarming situations in which we have expressed our desire for a diplomatic solution to the unfolding crisis in Ukraine. These are all headwinds “According to the Finance Minister. “India needs to be prepared for energy market volatility,” Aditya Shah says, laying out the various scenarios that could occur. He stated that oil is clearly on the rise, which will have a negative impact on the Indian economy in the short term if the US releases oil from its strategic stockpiles. “It does not bode well for the Indian economy as a whole because a larger oil import bill will increase the current account imbalance.” As a result, inflation will be pushed into the Indian economy as well as the world economy.

Author:  Shubhi Khandelwal, Narsee Monjee Institute of Management Studies

Editor: Kanishka VaishSenior Editor, LexLife India

UKRAINE CRISIS AND ITS IMPACT ON INDIA

Reading time : 8 minutes

Ukraine Crisis: An overview

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

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

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

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

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

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

Impact of Ukraine Crisis on India

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

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

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

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

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

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

Impact on various other sectors of Indian Economy:

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

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

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

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

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

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

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

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

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

Author: Ravina Raj, NMIMS Hyderabad

Editor: Kanishka VaishSenior Editor, LexLife India

ALTERNATIVE DISPUTE RESOLUTION AND ITS SIGNIFICANCE

Reading time : 8 minutes

INTRODUCTION

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

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

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

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

WHAT IS THE NEED FOR ADR MECHANISMS?

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

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

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

(a) Arbitration;

(b) Conciliation;

(c) Judicial settlement including settlement through Lok Adalat; or

(d) Mediation.

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

WHAT ARE THE OBJECTIVES OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS?

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

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

WHAT DISPUTES CAN BE SETTLED THROUGH ADR?

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

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

Relationship disputes-

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

Contracts and trade-related disputes-

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

Tortious liability disputes-

  • claims for compensation in motor accidents/other accidents;

All consumer disputes-

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

WHAT DISPUTES CANNOT BE SETTLED THROUGH ADR?

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

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

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

(iii) Cases –

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

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

 1. ARBITRATION

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

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

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

Which types of disputes are referred to for Arbitration?

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

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

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

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

Disputes involving

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

fall within the jurisdiction of Arbitration.

Disputes that cannot be arbitrated: –

Disputes involving

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

do not fall within the jurisdiction of Arbitration.

RECENT JUDGEMENTS ON ARBITRATION:

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

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

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

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

2. JUDICIAL SETTLEMENT/ LOK ADALAT

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


Which types of disputes are referred for judicial settlement?

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

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

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

Disputes involving-

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

are mainly referred for Lok Adalat or judicial settlement.

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

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

3. CONCILIATION

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

Which types of disputes are referred to for Conciliation?

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

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

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

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

Also read: PLEA BARGAINING

CASE LAWS

  1. Haresh Dayaram Thakur v. State of Maharashtra and Ors

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

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

 2. Mysore Cements Ltd. v. Svedala Barmac Ltd

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

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

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

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

4.MEDIATION

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

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

Which types of disputes can be mediated?

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

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

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

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

RECENT DISPUTES THAT HAVE BEEN MEDIATED: –


1. Dispute between Mukesh and Anil Dhiru Bhai Ambani

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


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

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


3. Perry Kansagra v. Smriti Madan Kansagra

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

COMPARISON BETWEEN ARBITRATION, CONCILIATION, MEDIATION AND LOK ADALAT

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

SIGNIFICANCE OF ADR MECHANISMS OVER LITIGATION?

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


REFERENCES-

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

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

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

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

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

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

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

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

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

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

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

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

Editor: Kanishka VaishSenior Editor, LexLife India

Pegasus Spyware- A threat to privacy and cyber security

Reading time : 6 minutes

Table of Contents

  1. Introduction
  2. What is Pegasus spyware?
  3. Recent controversy of Pegasus in India
  4. Indian legal provisions for Surveillance
  5. Some eminent case laws
  6. A Major concern for privacy
  7. Conclusion

Introduction

The Pre-Budget session was marked by the protest of the Member of opposition parties and the opposition parties outside the Indian Parliament. A New York times article published on 28th of January brought shocking revelations about the Indian Government’s use of the Pegasus spyware. This made all the opposition parties align together and protest against the government. This article defines and describes all about the Pegasus spyware controversy from recent to past, How it works and from what it is comprised of all the past- instances of it. The most used term Spy-Tech Zero-Click technology which is used in many cyber frauds and it is a most discussed thing nowadays. It’s technique of hacking the phone by just giving a Whatsapp missed call made it one of the most dangerous cyber weopon. Legal provisons such as The Telegraph act,1885 and IT Act, 2000 are some of the laws that deals with the cybercrimes. In this research article, the author will discuss about the Pegasus spyware, legal provisions related with cybercrimes and eminent case laws related with it and How Pegasus is a major concern for the democracy as well as the individual. 

What is Pegasus spyware?

Pegasus is a spyware programme created by NSO Group, an Israeli firm that specializes in so-called “cyber weapons.” It originally made headlines in 2016, when an Arab activist became suspicious after receiving a threatening message. Pegasus was thought to be targeting iPhone users. Apple published an updated version of iOS, a few days after it was discovered, apparently patching the security flaw that Pegasus was exploiting to hack phones.

Pegasus, however, was discovered to be similarily capable of infecting Android Phones a year later by security researchers. More information and security fixes trickled in. After that, in 2019, Facebook sued NSO Group for investing Pegasus. Pegasus was being pursued by Facebook security experts across their networks, and they discovered that the malware was causing problems. The security researchers at facebook were chasing Pegasus across their systems, and they found that the software was used to infect several journalists and activists in India. This Pegasus spyware is not a new concern for privacy and cyber security from 2019 to 2021 the spyware has been called “the most sophisticated” phone hacking tool ever and because it has been used so frequently that we are still hearing stoies about its victim. It is worth noting that NSO Group has confirmed the existence of Pegasus. However, the Israeli company has also said that it sells the tools only to governments and that it is not responsible for its misuse.

How does Pegasus spyware work?

Pegasus takes advantage of Android and iOS flaws that have yet to be disclosed. This means that even if a phone has the most recent security patch installed, it could be infected. A previous version of the malware, which was released in 2016, targeted devices using a tactic known as “spear-fishing,” which involved sending text messages or emails to the target that contained a dangerous link. It was predicated on the target clicking the link—a requirement that was removed in later versions. Pegasus could penetrate a device with a missed WhatsApp call in 2019 and even wipe the record of the missed call, making it hard for the user to realize they were being tracked. Pegasus used a weakness in WhatsApp’s code to infect over 1,400 Android phones and iPhones, including those of government officials, journalists, and human rights activists, according to WhatsApp in May of that year. It quickly fixed the problem. Pegasus also takes use of flaws in iMessage, providing it backdoor access. 

What can Pegasus do?

Pegasus can intercept and steal almost any information on a phone after it is installed, including SMS-es, emails, contacts, call history, calendars, emails, and browsing histories. It can record calls and other conversations using your phone’s microphone, can record your video with the help of camera, and follow you using your GPS.

What does Pegasus comprises of?

Pegasus connects to the attacker’s Command and Control (C&C) servers after installation to receive and execute instructions and transmit back the target’s personal information. Passwords, contact lists, text messages, and live phone calls are all examples of this type of information (even those via end-to-end-encrypted messaging apps). The attacker can control the phone’s camera and microphone, and use the GPS function to track a target. Pegasus only transmits scheduled updates to a C&C server to avoid consuming a lot of bandwidth and alerting a target. The spyware can elude forensic investigation and anti-virus programme detection. When and if necessary, the attacker can also uninstall and deactivate the spyware.

Past Instances of Pegasus Spyware

Pegasus was first discovered on the Smartphone of human rights activist cum promoter Ahmed Mansoor in 2016 by researchers from the Canadian cyber security organisation The Citizen Lab. In September 2018, Pegasus is being used in 45 nations, according to a research published by Citizen Lab. India was featured in the list, as was the case with the most recent revelations. In October 2019, WhatsApp revealed that Pegasus operators were spying on journalists and human rights activists in India. In July 2021,Various nations utilised the software to spy on government officials, opposition politicians, journalists, activists, and others, according to the Pegasus Project, an international investigative journalism endeavour. Between 2017 and 2019, the Indian government allegedly utilised it to eavesdrop on about 300 people, according to the report. According to a report released in 2020, government officials used Pegasus to infiltrate the phones of Al Jazeera and Al Araby workers.

Spy-Tech and Zero-Click

NSO began developing Pegasus as a surveillance option for intelligence agencies and law enforcement organisations. The story they created was that it would be used by government agencies to combat terrorism, drug trafficking, and other crimes. But its first known state client, Mexico, went above and beyond the script, arming itself with cyber-espionage capabilities to combat drug trafficking. Between 2016 and 2017, Mexican agents targeted more than 15,000 phone numbers, according to Forbidden Stories. Those who were close to then-candidate Andres Manuel Lopez Obrador, now President of Mexico, as well as journalists, dissidents, their coworkers, and family members, were among them.

This propelled NSO Group to the forefront of the spy-tech sector, displacing heavyweights like European firms Hacking Team and Fin Fisher.

Pegasus has been using attack vectors like malicious URLs in e-mails and SMS till then. When the link was clicked, the malware was installed, allowing the hacker complete control of the device without the target’s awareness. It then advanced to zero-click infections. End-user intervention is not required for such viruses, which are utilised in WhatsApp and iMessage hacks. A missed call on WhatsApp’s voice call feature inserted a malicious code onto the smartphone. With iMessage, a brief message preview sufficed.

Recent Controversy of Pegasus in India

A New York times article published on 28th of January brought shocking revelations about the Indian Government’s use of the Pegasus spyware. The article exposed the sale of Pegasus to the Indian Government in 2017 as a part of a $2 Billion arms deal in order to carry out targeted surveillance on citizens, claiming that the high-level visits by Prime-Minister Narendra Modi and Former Israel Prime minister Benjamin Netanyahu and even an U.N. vote on a Palestinian organisation was part of a larger backroom deal. The revelations that come from that article of NYT provided fresh ammunition to the opposition parties to corner the government on the issue. NYT’s reporters named several countries including India, UAE, Hungary, Poland and Mexico on the list of those who had purchased the spying software, and said that they had not just strengthened ties with the Netanyahu government, but had shifted on support to Palestine and muted opposition to Israel at the United Nations. In June 2019, India voted in support of Israel at the U.N’s Economic and Social Council to deny observer status to a Palestinian human rights organization. According to the report of the wire over 300 Indian phone numbers were found on the list of project Pegasus which includes ministers, members of oppositions, journalists, judicial members etc. Name of few potential targets from India were; Rahul Gandhi along with his 5 close associates, Prashant Kishore, Abhishek Banerjee nephew of Mamta Banerjee, Prahlad singh Patel (Current minister of state for jal Shakti), Praveen Togadia, Former CJI Ranjan Gogoi and many others except them phone number of 40 journalists were also mentioned in the list. The opposition parties attacked the government, accusing it of ‘misleading’ parliament and the Supreme court. The Congress party said the alleged use of spyware on opposition leaders, Supreme Court judges, Journalists and activists was an “act of treason”. The investigation over whether the Modi Government bought the Pegasus spyware, and used it to hack the phones of a number of citizens not wanted in any criminal cases and carryout illegal surveillance on them is  with the Supreme Court, which appointed a special Committee headed by Justice (Retd) RT Raveendran on October 27, and scheduled another hearing “after eight weeks”, which  has not been listed at present. Due to the article published in NYT, Mallikarjun Kharge, leader of opposition in Rajya Sabha, said, “Parliament was deceived by the Modi government. It is clear that the supreme court was also duped by the Modi government. It is also clear that the people of India were lied to by the Modi government and its ministers.” The clash of against ideas paved the way for forming an anti-government and strengthen the opposition more as it was from farmer laws or the lakhimpuri accident against the minister’s son and forming a more stable anti-government alliance. In a tweet from its official account Trinamool Congress called the Pegasus Report proof of “State sponsored Surveilance” that “blantantly abused the rights of Indians.” The Pegasus controversy catalysed the chaos and agitation against the government and made a stronger argument for the opposition to protest and question the government in its role. This agitation against the government would harm them in their upcoming elections in five states including Uttar Pradesh which is the most significant state in Upcoming lok sabha elections in 2024.

Indian legal provisions for Surveillance

The law of observation in India is beginning when it concerns progressed reconnaissance innovations like Pegasus. In any case, the current legitimate system gives a few shields to the elemental right to protection, permitting proportionate criticism as it were in national, not in private, intrigued. This piece contends that the national security vindication is infructuous within the Pegasus outrage. The government ought to follow to worldwide majority rule standards administering observation innovation.

The laws authorizing interception and monitoring of communications are:

  1. Section 5 (2) of the Indian Telegraph Act, 1885
  2. Section 69 of the IT Act, 2000
  3. IT Rules
  4. Section 5(2) of the Indian Telegraph act, 1885: This act deals with the interception of phone calls. Section 5(2) of this act provides the provision that mentions certain situations under which the central & state government can conduct the surveillance i.e., in case of ‘Public Emergency’or in the interest of ‘Public Safety’. But there are certain grounds available for such surveillance which can be also considered as the reasonable restriction;
  5. When there is threat to the sovereignty and integrity of the India
  6. For the Security of the state
  7. For the friendly relationship with foreign states
  8. If there is a threat on law and orders or in the interest of public order
  9. For immediate incitement of the commission of an offence.

On these grounds and conditions the Indian government is allowed to caught portable phones. In spite of the fact that the act has moreover given certain shields arrangements with regard to securing the basic rights to free discourse for each writer.

  • Section 69 of the IT Act, 2000: This act bargains with the observation of all sorts of electronic communication. Sec 69 of the act gives the arrangements within the favour of Indian government with regard to any electronic observation within the nation. It states almost the interferences, checking of computerized data for the reason of examination of an offense. These arrangements don’t say any grounds related to open security or crisis. Section 69 of the IT Act, 2000 enables competent specialists, with reasons for capture attempts recorded, to put an capture attempts gadget, given, “it is fundamental or practical so to do within the interface of the sway and astuteness of India, the security of the State, neighbourly relations with outside states or open arrange or for anticipating prompting to the commission of an offence”. In any case, Section 69 does not approve any office to introduce spyware to hack a versatile gadget for this. In reality, Section 66, perused with Section 43 of the IT Act, 2000, criminalises the hacking of a gadget.
  • IT Rules: The government re-examined the IT Rules in December 2018 on the affection of moving forward straightforwardness and responsibility and handling wrongdoing and fear based oppression. Through a Statutory Arrange, the government assigned 10 central offices as “security and insights agencies” and approved them to captured, screen and decode “any data produced, transmitted, gotten or put away in any computer”. The State draw rules to choose how a particular arrangement within the essential statute will be worked. These rules ended up the appointed enactment made by the State. The government utilized this inborn control to change the IT Rules, 2009; downsized the shields for individual’s protection; made all-encompassing definitions approving the utilize of hacking apparatuses like Pegasus and gave cover reconnaissance powers to organizations that are not indeed capable for national security, e.g., the Delhi Police and the Directorate of Income Insights. These offices presently collect information without administrative or legal oversight beneath the powers conferred in Segment 69 (1) of the IT Act, 2000, perused with Run the show 4 of the IT Rules, 2009.

The government changed the reason and objective of the law within the statute book and the setting in which it is actualized and presently utilizing these changed rules as a lawful reinforcement for reconnaissance of citizens through hacking devices like Pegasus.

 Some Eminent Case laws

The Indian Courts Interpreted the above mentioned laws several times. We would study some case laws related to the legal provisions mentioned earlier. These are some cases as follows:

  1. People’s Union for Civil liberty vs Union of India: In this case the arrangements of Telegraph Act, 1885 were challenged, and the Supreme Court had expressed the significance of the proper to individual’s personal security. It was held in this case that government observation can undermine the security of an person . This case advance announced the proper to protection as a principal right. Further, within the year 2007 the Run the show 491 had been included within the Telegraph Rules which states that any order related to the interferences of any portable phone ought to come from the Domestic Secretary conjointly specify the foundation of a audit committee to audit an arrange issued by the domestic secretary.
  2. K.S Puttaswamy vs Union of India: On August 23rd 2017, the Supreme Court unanimously recognised privacy as a fundamental right guaranteed by the Constitution:

In 2012, Justice K S Puttaswamy, a retired judge of the High Court, filed a writ petition in the Supreme Court challenging the constitutional validity of the Aadhaar scheme introduced by the UPA Government. On August 11th 2015, a Bench comprising of three judges to decide the matter of fundamental right to privacy. This matter was first placed before a Five Judge Bench headed by then CJI Khehar. Subsequently, the matter was referred to a nine Judge Bench on July 19th 2017 and concluded on August 2nd 2017. In a historic decision delivered on August 24th 2017, the bench unanimously recognised a fundamental right to privacy of every individual guaranteed by the Constitution, within the Article 21 in particular and part 3 on the whole. Since the 2017 judgement, the fundamental right to privacy has been cited as precedent in various landmark judgements.

A  Major Concern for Privacy

After knowing all about the Pegasus spyware, How it is comprised, What is the legal basis of it and the controversies from past to the most latest one now we will know how it affects individuals privacy and the grounds on which the restrictions of government should be laid. Before knowing about How does Pegasus threats to the Privacy of the person knowing the term privacy becomes more eminent.

So, According to Constitutional law, Privacy means the right to make certain fundamental decisions concerning deeply personal matters free from government coercion, intimidation or regulation. In simple terms there are certain things that the Individual needs to keep it confidential and that nobody can force them to knew about that. The Indian Law  gives certain provisions related to the fundamental right to privacy from the eminent case of K.S Puttaswamy vs. Union of India where it was stated in this case the breach of individual’s privacy can only be done on the following grounds; First the state must be sanctioned by law, there should be test of necessity & proportionality, there must be some legitimate state aim for such actions and there should be a procedural gurantees against the abuse of such power. It was this case which mentioned where clearly the right to privacy is integral to the right to life conferred under article 21.

Pegasus spyware is a big threat to a certain individual as it can record data, spy the person’s confidential and the personal matters without the acknowledging the person with whom the data is going to be spyed upon. It is direct attack towards the democracy also as the opposition leader are also being spyed upon, the fourth pillar of democracy Media also gets affected from this as the journalists, Human rights activists and many more are also affected by it. The Government can also not directly conduct surveillance as there are reasonable restrictions to it also.  It also Violates Article 19 of the Indian Constitution which Gives freedom of speech and expression. If a person’s privacy is breached it is a direct attack towards the Individual’s Human rights and the rights conferred to him under various Indian laws. 

There are lot of vague and ambiguous perspective on How to Curb the Menance from Pegasus. These are some smalls tips which can be useful to prevent the device from the spyware such as:

  1. Reboot Daily
  2. Disable iMessage
  3. Disable Facetime
  4. Don’t ever click on links received in messages.
  5. Keep the mobile device up to date; install the latest iOS patches as soon as they are out.
  6. Browse the Internet with an Alternate browser such as Firefox Focus instead of Safari or Chrome.
  7. Always use a VPN that masks your traffic.

Conclusion

Pegasus is a spyware programme created by NSO Group, an Israeli firm that specializes in so-called “cyber weapons.” It came in the limelight when the one of the most popular American based daily newspaper New York Times published an article where it revealed that Indian Government purchased the Pegasus spyware to spy upon the Leaders of Opposition, Journalists, writers, Human rights activists etc. It created a lot of ruckus and chaos all over the country against the government during the Budget session. After discussing about all the important legal provisions of The Telegraph Act, 1885 and The IT Act,2000 and some important case related to fundamental right to privacy such as K.S Puttaswamy vs Union of India,2012 which stated that individual’s privacy can’t be breached at any cost Though there are certain reasonable restrictions which are necessary for the state to do so. One of the most important thing is the Right to Privacy which is violated by this spyware and how this harms an individuals rights and what certain measures that need to be taken up to prevent it and till how much it can affect any individual’s privacy as well as democracy also.

REFERENCES

Author: Aditya Pandey, NMIMS, Hyderabad

Editor: Kanishka VaishSenior Editor, LexLife India

Cryptocurrency: A bright future or just a fad?

Reading time : 8 minutes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Author: Prachi Garg, Reva University

Editor: Kanishka VaishSenior Editor, LexLife India

ONE SUN ONE WORLD ONE GRID  – GO GREEN INITIATIVE

Reading time: 6 minutes           

 INTRODUCTION

It all started in 2015 when India with France revealed the idea that the International solar alliance is planning to provide solar energy to all.

The project aims to go step by step. So, in Phase 1 the routes of countries in South Asia, the middle east, southeast Asia will be inter connected with India to share solar and renewable energy to fulfill the electricity needs during the peak periods. Secondly, in phase 2, the power pool places in the African continent will be interconnected to transfer and share renewable and solar energy. Again in back 2018, while addressing the global re-invest meet PM Modi emphasis on giving importance to solar energy with a slogan of ONE SUN ONE WORLD ONE GRID.

The main goal of the project is to connect the world to increase the use of solar energy without limiting it to the daytime. With this idea in mind, India wants to see a future lightening with renewable energy. Which is affordable to all and can be used anywhere in the world for mutual benefit and solar sustainability

WHAT IS ONE SUN DECLARATION?

PM Modi in partnership with UK Prime Minister Boris Johnson revealed about one world one sun one grid project at the COP26 climate meet, which was held in Glasgow. It is a trans-national electricity grid, which has the goal to provide and transfer solar power across the world. Also to increase clean energy transition, and to fulfill sustainable development goals.[1]

WHAT ARE ITS OBJECTIVES?

PM Modi says that solar energy is the cleanest and most sustainable in nature. Because the sun is the source of this energy it is very much limited to the daytime. And also on the weather condition in a particular area.

 Thus, ONE SUN ONE WORLD ONE GRID will work as a solution to this problem. Its objective is to provide clean energy across the globe. So that it won’t limit itself to the daytime.

For example, if in country X there is a day time and in-country Y there is night time. So we can use the solar energy of country “X” to use it in country “Y”. Because of this our reliability on coal will automatically decrease. Also, it has been revealed by PM Modi that for making this project a global hit. ISRO will make a solar calculator, which will be used to trace the solar power potential of the world. So the solar grid initiative will be planned accordingly.

WHO ALL ARE SUPPORTING IT?

The idea that has come to the mind of PM Modi during the first assembly of ISA back in 2018. Thus, India and UK have decided to combine the one world one sun one grid with UK’s green grid initiative. India and France have jointly develop the ISA, which is an inter-governmental organization backed by 101 members, to increase the use of solar power in the world. Therefore this initiative “one world one sun one grid” has the support of 83 ISA members. Also the World Bank and ISA are jointly helping in executing the project.

HOW “ONE WORLD ONE SUN ONE GRID” MAKE THE WORLD MORE FEASIBLE.

When countries start taking part in this initiative it will lure investment for renewable energy. When there are more countries participating and stakeholders were also coordinating then the cost will automatically decrease, which will lead to more reliability on solar energy and higher efficiency for all. It will not only solve the problem of storage but also increase the viability of solar projects in the world. It will also reduce carbon footprint. The money this initiative will save can be used in different areas like poverty alleviation, providing food stability, improving sanitation facilities etc. the global connection will be used in research and development. [2]

 WHY THERE IS A NEED FOR ONE WORLD ONE SUN ONE GRID INITIAIVE?

Realizing the goal of OSOWOG, which connect countries to transfer the solar energy, important for all the nations so to meet the targets of Paris agreement to stop bad effects of climate change. The countries are very much under pressure to reduce global warming. Because the world has already been heated up by 1.1 degree Celsius, The projection based on planned reduction in emission over the next decade, expected to rose by 2.7 degree by 2100. The efforts made by this project will lured more green investments and open new job opportunities. Sharing the solar energy, we can create a more beautiful and peaceful world. [3]

A POWERFUL IMPACT

India has been always aware about the benefits of using renewable energy. Therefore He has started putting money in solar energy projects to achieve 175 GW by 2022. Also INDIA has been god gifted with the abundant solar energy potential nonstop till 300 days. Government of India has started many national schemes to give subsidy and to use renewable energy efficiently as an alternative to light up the country as bright as it is from the past years. Some of the schemes are,

  1. JAWAHARLAL NEHRU NATIONAL SOLAR MISSION – it is also called national solar mission, the main aim of the scheme is to develop India globally as a leader in the solar sector with the help of creative policy condition. The mission target was placing 20,000 MW of grid connection of solar power by 2022, which later changed to 1, 00,000 MW by 2022.
  • GOVERNMENT YOJNA- SOLAR ENERGY SUBSIDY SCHEME- This scheme provides subsidy to the people who have install solar power plant on their rooftops. The price of subsidy varies as per the capacity of solar power plant.
  • DEVELOPMENT OF SOLAR POWER SCHEME- the scheme has an aim to set solar parks in different states in India, each with the capacity above 500KW. It gives financial assistance to develop the necessary infrastructure for establishing solar power plants. It has a target to build minimum 25 solar parks with a capacity of at least 20,000MW.
  • UDAY SCHEME- back on 2015, ujjwal discom assurance yojna has been launched by the government of India to find a solution to revive the electricity diversification and how to get out from the financial mess the electricity sector is in? The main goal of this scheme to give emphasis on renewable energy, conversation, and cost effective power generation system.
  • SECI SCHEME– the main goal of the scheme is to develop large number of rooftop solar power plant and also to implement MNRE and VGF scheme properly. Under the scheme, till date released tenders are for 4307MW for large projects, in which around 675MW has been commissioned.

This claim can be backed after knowing that India’s biggest coal producer “coal India limited” to go net zero energy company by 2023-24. And also largest coal based company “NTPC” has won a project bid of 420 MW of solar power at 2.01/kwh traffic (Chandra bhushan 2020). But the foremost challenged faced by solar system in India, that they don’t have any proper storage system, which results in having no solar energy available during peak night time. At last, India has to use coal to generate light in the night time. [4]

One sun declaration will help India solving this problem. In this initiative India’s goal is to share renewable energy from Africa (in noon) to India (at night). So that there will be no need to use coal to light up the country. This initiative will also create a platform for leaders to discuss climate related policies and to work together to build a better world by using renewable energy.

Also it will give voice to many India’s multinational company to come up with a solution to end global crisis in African and Asian continent, to give them a helping hand in developing technology.

 ONE SUN ONE WORLD ONE GRID will work just an addition to the solar energy in the current grid system for a particular country with a decentralized solar roof top system.

In the case of Africa, which will get the most benefit as currently they don’t have any electrified system, so they get direct financial help to develop the renewable energy infrastructure from ISA, WORLD BANK, WSB under the initiative of ONE SUN ONE WORLD ONE GRID.

First, the task is to get renewable energy all day and night at very reasonable cost so that it will end the countries dependency on coal. When more countries use renewable energy the cost will also automatically decreases by half. Those will also lured countries to OSOWOG initiative.

Also, if country “x” wants to leave the OSOWOG project after joining. It wills not poses a threat to comprehensive multisystem OSOWOG and also it will not create buffer time to have a conversation with stakeholder just because it’s a phase based project.

FINANCIAL STABILITY

As we all know that the main goal of the initiative is to inter connect the countries so most of the funding will come from the member countries to develop its renewable energy stronger.

But this comes with a challenge, because there will be less funding as most of the capital will be coming from small island countries.

Therefore, what should be done to fulfill the capital need of the project?

To answer the question, not surprisingly India has already give proposal to World Bank to invest $3 billion from which they get 30% ownership and $10 billion authorized fund. (mukul asher 2020)

Another big concern it raises, that how to fix the price of solar energy which is being transferred because each country will generate solar energy in different efficiency. So to ask each member to transfer it on single rate or to keep different rate for the efficiency of solar energy in this globalized grid system will be a tough task.

SCIENTIFIC TOIL

There will be no technical or scientific difficulties when the project will inter-connect the nations grid through land because India will give his full technical support and assistance to build the project.

The biggest concern is submarine HVDC, because if the project inter connect the nation grid through sea cable HVDC system then it raises issues like 1. How it affect Indonesia, Africa, Egypt and some other countries? 2. How to calculate the losses in 100km per project?  3. Does it affect the reliability of the system?[5]

There has been a great research on what are the challenges faced after connecting the project through submarine HVDC system. Some challenges that are tough to achieve are;-

  1. Long term reliability without faults
  2. Less environmental impact
  3. Less water pricking in case of damaging of cable. (energy network Australia, 2016)

AT THE POINT OF VIEW FROM GRID SECURITY

 From the stand point of grid security, the best way to transfer the solar power grid through small lines rather than one big line. Because if there is any failure to transfer the grid supply, it will create block outs when one single line was laid for transfer of the solar power grid. But this won’t happen with the small lines transmission.

Also from the point of view of terrorist attacks, the OSOWOG phrase doesn’t refers to one single line to connect the globe. In fact what it actually means is a mix of small and large lines, with the help of public and private partnership to supply it between the producers and the suppliers.

If we divide the lines in small parts, it would eventually benefit the project even if there is any attack (political or for some purposes) and it won’t led the nation to suffer the power due to any miss happening in any part of the world.

Also the mix partnership of public and private ownership would led attackers think twice because most of the times the terrorist steps back from the attack just because their sponsors has an interest on that project or the area. This will help the project run smoothly. As solar power cannot be stored to use in future transmission. It cannot be treated as a lost good or to sell later on higher prices. [6]

 WHAT ARE THE ODDS OF COST FAILURE?

 From the standpoint of geopolitics, the idea is very attractive like from one shot you have killed 3 birds at a time. Example, trying to solve the renewable energy cost problem with global supply chain, creating mutual political cooperation, working on research and development to create new innovations, getting energy security transfer from fossil fuel (Christopher cooper, 2012) But this will achieve if the project gets complete success.

It has been a topic of debate that it will sabotage the relation between countries. If we assume that the project gets the success, then the energy transmission starts from Africa to west Asia to south Asia but if there is a miss happening, then that led to scarcity of energy in Middle East and they will use the energy of south Asia, which led to black-out in many regions of India. Thus it will sabotage the bilateral relation between the countries. [7]

CHALLENGES AND COMPETITIONS

The most important aspect of the project revolves around the money consuming exercise. So, definitely private companies will take part but this will create problem because each private company has different ideologies and agendas that clashes with government based policies and other organizations. But mostly private firms try to dominate government policies in the project.

Thus, the competition between private and government will be incompatible.

Also from the standpoint of global scale, china is the biggest competitor for the OSOWOG project. Because china’s latest strategy of renewable energy from US and its difference of opinion from the UN, make him secure the position of climate leader in the united nation organization.

Therefore, definitely china will get the benefit in globalized world rather than the India.


[1] Green Grids Initiative – One Sun One World One Grid – ClearIAS

[2] Amit sen, all about “one sun one world one grid”, the Hindu, nov 2021. The director of council for energy environment and water, Delhi says; this is a great initiative to fulfill the climate commitment and more renewable energy will not only reduce emission but also works as an alternative to expensive storage system.

[3] PTI, “at COP26 pm MODI calls for global solar power grid-  ‘One Sun, One World, One Grid’ — At COP 26, PM Modi calls for global solar power grid (theprint.in)

[4] ATMAJA GOHAIN BARUAH, 2019 How Can India Become a Global Leader in Solar Power Generation? *How_Can_India_Become_a_Global_Leader_in.pdf*

[5] Asian Development Bank, “Assessment of the Greater Mekong Subregion Energy Sector Development,” p. 47 https://www.adb.org/sites/default/files/institutionaldocument/33872/files/assessment-gms-subregion-energy-sector-development.

[6] Chandra Bhushan,2020 Energy Transition and Just Transition must go hand in hand- as coal mines become rapidly unprofitable https://timesofindia.indiatimes.com/blogs/toi-edit-page/energy-transitionand-just-transition-must-go-hand-in-hand-as-coal-mines-become-rapidly-unprofitable

[7] Benjamin K. Sovacool,2009 Energy policy and cooperation in Southeast Asia: The history, challenges, and implications of the trans-ASEAN gas pipeline (TAGP) network *Energy_policy_and_cooperation_in_Southea trans asean pipeline.pdf

    

Author: MAHIJA BHALLA, G.D GOENKA UNIVERSITY   

Editor: Kanishka VaishSenior Editor, LexLife India

                    

ABORTION LAWS: PRO-CHOICE VS PRO-LIFE DEBATE

Reading time : 6 minutes

INTRODUCTION

The term abortion is derived from the Latin term ‘Abortionem’ which means “to abort”. Abortion is a procedure to terminate a pregnancy. The methodology is done by performing surgery or by medicine to remove the embryo or fetus and placenta from the uterus.

This procedure is performed in two ways- Induced and Spontaneous Abortion. Induced Abortion is a kind of abortion where a woman voluntarily terminates the pregnancy from a Service Provider, whereas, the Spontaneous is one where the loss of a woman’s pregnancy before the 20th week of pregnancy, which is also known as Miscarriage.

Abortion is a simple term but so formidable to utter in public. It is esteemed as one of the most agonizing procedures. The primitive perception of abortion is contemplated as unethical. It is acknowledged as a taboo. It’s not something to be stigmatized; the women take every precaution not to take such an action. Choosing not to be a mother does not necessarily mean being a bad woman or a bad wife, or the woman is anti-life and a murderer.

Reproductive Rights are the branch of human rights. The person who is pregnant knows best for them, i.e., it is their personal decision. Reproductive Rights include the right to legal or safe abortion, the right to birth control, the right to access quality reproductive healthcare, the right to education, and access to make reproductive choices free from coercion, discrimination, and violence.

Therefore, also include the right to receive education about contraception and sexually transmitted disease.

The most progressive countries are ushering in regressive abortion laws. Instead of providing a helping hand to the women, they are closing the doors for them. Abortion is the hardest decision a woman has to make and there could be any reason for it, such as:

  • Unwanted Pregnancy
  • Rape
  • Unforeseen economic crisis
  • Social Condition
  • Job loss
  • Death of loved ones or spouse
  • Threat to the health of the mother
  • Unready for Pregnancy
  • Mental health issue

Lawmakers have passed a law that either prohibits abortion completely or allows it in certain circumstances. The center for Reproductive Rights states that 41% of the countries in the world forbid the laws however permit under certain medical conditions. 26% of the countries grant permission on broader social-economic grounds. Lastly, 36% have liberal laws.

According to the reports published in Guttmacher Institute Center for Reproductive Rights:

  • 26 Countries, entirely ban abortion even in the cases of Rape, they are forced to bear a child. 90 Million Women of Productive age are affected by such stern laws.
  • 39 countries, allow abortion only when the life of the woman is at risk. 360 Million Women are affected, i.e. the 22% women of Reproductive Age.
  • 56 Countries permit only on health grounds.

WHO’S STANCE ON ABORTION

The World Health Organization defines the ‘Health’ not merely an absence of any disease or infirmity, it is therefore interpreted as a state of complete physical, mental and social well-being. Abortion is a common health intervention.

A major public health and human rights issue is the lack of safe, timely, efficient, and respectful abortion care. Until 2017, abortion was classified into two categories- safe and unsafe. Unsafe Abortion, as defined by WHO simply means the procedure for termination of pregnancy done by an individual who does not have the necessary training or in an environment not conforming to minimal medical standards.

With technological advancement, the classifications got divided into three categories- safe, less safe, and least safe. The Safe Abortion Procedure is provided by health care workers and with methods recommended by the WHO. The Less Safe Abortion method is done by the trained providers using non-recommended methods or using a safe method. Thus, the least safe is done by a trained provider using dangerous, invasive methods.

Access to Safe Abortion was established as a human right by various international frameworks such as the UN Rights Committee, Regional Human Rights Courts including European Court of Human Rights, the International American Court of Human Rights, the African Commission on Human and People’s Rights.

An approach of action that encompasses a commitment to prevent unsafe abortion was sanctioned in 1994 at the International Conference on Population and Development in Cairo. 179 governments were signatories to this Conference.

In 1967, WHO recognized unsafe abortion as a public health problem. Later in 2003, it developed technical and policy guidelines that constitute a recommendation that states shall pass abortion laws to protect women’s health.

Induced Pregnancy Termination is modest and performs conventional healthcare procedures. Every year, nearly half of the pregnancies, 6 out of 10 are unintended pregnancies. Global estimates from 2010-2014 determined that 45% of all induced abortions are unsafe. A third of all unsafe abortions were carried out under unsafe conditions, that is, by untrained persons using dangerous and invasive methods.

The inaccessibility of quality threatens a series of human rights of women and girls such as the right to life, the right to the highest attainable standard of physical and mental health, right to decide freely and responsibly on the number, spacing, and timing of children.

Unsafe abortions account for 4.7% to 13.2% of maternal deaths per year. In developed nations, it is estimated that 30 women die in every 100,000 due to unsafe abortions. Whereas, in the developing nations, 220 deaths per 100,000 women. 

Physical health hazards associated with unsafe abortion include incomplete abortion, bleeding, infection, damage to internal organs (failure to remove all pregnancy tissues from the uterus).

RELIGION AND ABORTION

Abortion is defined in different ways by different people. The medical dictionary states that it is the loss of pregnancy. Religion is an essential determinant that controls morality in society. There is a question of argument between the religious circles of the society that whether the fetus is a living being or not. Also, when and at what stage do the state and religion consider a fetus to be a living being?

In Buddhism, there is no official position for abortion. Many speculate that life begins at conception and killing is against their moral duty. There are a large number of Buddhists in Japan. There are a large number of Buddhists in Japan.

In Islam, Abortion is contemplated as a wrong and haram. Life is believed to be sacred. The soul is breathed into the fetus 120 days after conception, according to Islamic belief. The fear of poverty is never regarded as an excuse for abortion. Such rule is prohibited with some exceptions such as:

  • At what stage of pregnancy the mother is in
  • If there is a legitimate reason to abort, after 120 days, saving the mother’s life is the only case in which abortion is permitted. Otherwise, it is reflected as unlawful feticide which means the killing of a soul.

Different schools of Muslim law have varying views on whether and when alternative grounds for abortion are permissible.

In Christianity, Abortion is regarded as a bad omen, evil practice, and non-acceptance by god. Countries that outlaw abortion happen to be in the Latin American region where the Catholic Church has immense influence. The Church believes that Abortion is murder. The Catechism of the Catholic Church says, “Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable, Direct Abortion, that is to say, Abortion willed either have an end or a means, is gravely contrary to the moral law”.

Moreover, the Hindu classical texts firmly resist the idea. The exception is the case when there is a risk to the mother’s life.

ABORTION LAWS IN INDIA

Before 1971, Abortion was criminalized under section 312 of the Indian Penal Code, 1860, describing it as “Intentionally Causing Miscarriage”. The exception to this section is where the cases where the abortion was carried out to save the life of the woman, otherwise, it was a punishable offense and criminalized, whoever voluntarily caused a woman with the miscarriage.

In the 1960s, 15 countries legalized Abortion. The discussion of a legal framework for induced abortion was instituted as there was a spike in the number of abortions.

In 1964, the Central government-appointed Shah Commission led by Shantilal Shah, emerged with the proposition to draft the abortion laws for the country. This commission was set up for the absolute assessment of the socio-cultural, legal, and medical aspects of abortion.

In its report, the group proposed legalizing abortion to prevent the waste of women’s health and lives on humane and medical grounds. The Medical Termination Pregnancy Act was implemented in 1971. This act made abortion a safer and more convenient procedure.

The Bill proposes requiring the opinion of one certified medical practitioner (rather than two or more) for abortions up to 20 weeks of gestation (fetal development period from the time of conception until birth).

It has also expanded the gestation period for special categories’ of women, which include rape survivors, incest victims, and other vulnerable women such as differently-abled women and adolescents.

ABORTION LAWS AROUND THE WORLD

Abortion is an enormous contentious concern. Its legal status differs from country to country. The bone of contention is between the speculations and thought processes of pro-choice and pro-choice groups. The Pro-choice group esteems that abortion is a personal decision however, it is the right of women to terminate the pregnancy. This group of thought is usually judged to be pro-abortion. On the other hand, the other group believes that it is the right of the embryo or fetus to gestate to term and be born.

Conservative nations such as Turkey posts a complete ban on Abortion.

  • Poland

Until 1993, abortion was admissible beneath certain conditions such as mal-formed or deformity in the fetus. While in 2021, the government nearly imposes a complete abortion ban. They have restricted the right to access safe and legal abortions. Rape, incest, and risk to a mother’s life are exceptions to this. Activists and human rights groups worldwide, including Amnesty International, have widely condemned the Polish court’s decision to call it a violation of women’s human rights.

  • Mexico

Down to 2021, abortion was considered a crime. The Supreme Court decriminalized it in 2021.

  • United States of America

In the case of Roe Vs Wade, the Supreme Court decriminalized abortion nationwide and a constitutional right to abortion was established. The US became the first country to liberalize its abortion laws along with several western nations.

In September 2021, the American state of Texas ruled that abortion shall be terminated it six weeks of pregnancy. The Supreme Court refused to block a Texas-based law banning abortion in the state after six weeks.

  • Japan

Abortion in Japan is legal for up to 21 weeks and 6 days of pregnancy. The prominent difference between Japan and the rest of the world is that Japan requires the father of the child to give consent before the termination of pregnancy. Japan is one of 11 countries worldwide to require third-party consent.

  • Russia

Russia has one of the highest abortion rates in the world. The government, in cooperation with the country’s conservative church leaders, is attempting to channel these funds to maternal support for women who choose to continue their pregnancy to term.

PRO-CHOICE VS PRO-LIFE DEBATE

The debate is regarding the moral, legal and religious status of induced abortion. This debate often presents us with two choices, i.e., pro-choice and pro-life. Pro-choice states that Abortion is a personal choice; hence, women should have the right over their bodies. Thereby, abortion is not the same as pro-abortion. It is a fundamental right of women to do whatever they want with their bodies.

The Pro-Life is a conservative opponent who obstinate it. They believe that life begins at conception and that aborting a fetus is amount to murder. The religion does not believe in it. Personal morals don’t allow a woman to abort.

There is a difference between killing a person and killing a life. The whole anti-abortion argument is smokes and mirrors. Many pro-life activists envisage that a fetus feels pain during the abortion but the truth of the matter that is a fetus can only start feeling pain or any kind of sensation around 26 weeks of pregnancy. The upper limit of pregnancy is 24 weeks.

The Anti-abortion activists believe that abortion causes depression however the fact of the matter is the women who are denied abortion is more likely to be depressed.

The Turnaway research gathered information from over a thousand women at 30 abortion clinics across the United States. Researchers interviewed both women who sought an abortion and those who were denied it, and they discovered that women who were denied abortion were more likely to face major consequences from the end of their pregnancy, including death.

CONCLUSION

Unplanned pregnancy is a subject that needs addressing differently. Abortion is fundamentally breakdown in community. In the moment of greatest need for real compassion empowering human relationship there is a void of connection. Pro-Choice activist are believe to be ant-choice, anti-women and anti-equality. Outlawing abortion laws does not stop it, it only kills women. The question here is to whom exactly we are helping with such outdated anti-choice laws. The woman is the only victim of such obstinate laws.

“Reproductive freedom is critical to a whole range of issues. If we can’t take charge of this most personal aspect of our lives, we can’t take care of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right.”

-Faye Wattleton

Author: APOORVA BHARDWAJ, IMS UNISON UNIVERSITY, DEHRADUN

Editor: Kanishka VaishSenior Editor, LexLife India

Copyright Examination of Video Game Laws of India vs. World: A Comparative Analysis

Reading time : 8 minutes

INTRODUCTION

The video gaming business is quickly becoming one of India’s most important and competitive industries. The decrease in interest rates in the twentieth century, as well as the ease of access and affordability, high-definition graphics, and advanced techniques of playing games, have enchanted users and functioned as a catalyst for the gaming industry’s growth. According to Forbes, India’s gaming sector is worth $1.1 billion, making it one of the top five countries in the world. ‘

Given the great economic importance and growth of the video game industry, it is imperative that the companies’ goodwill and reputation be protected. Due to a lack of jurisprudence on the subject, Indian rules in this area are still in the early stages of development, and there are no specific regulations or norms governing video game protection. Because video games are a complicated aggregation of several separate aspects, recent legislation granting video game protection under a single definition of law is challenged. Furthermore, given the rapid expansion of the subject matter’s legal concerns, India’s Intellectual Property Laws (hereafter IP Laws) are extremely proactive and capable of providing reasonable protection to a few parts of video games subject to their originality, novelty, and applicability.

On a larger scale, government authorities in various developed and developing countries raised similar concerns about the need to enact standard set regulations governing video games, prompting WIPO to become involved in the matter and produce an analytical research study titled “The Legal Status of Video Games: Comparative Analysis in National Approaches,”[1] which examined the current state of the law globally. This paper will primarily focus on the protection of video games under Indian law as well as the legal approaches of other countries to video games.

A SUMMARY OF VIDEO GAMES

In layman’s terms, a video game is defined as “a game played by electronically manipulating graphics created by a computer program on a monitor or other display” according to the Oxford dictionary. However, it is difficult to define the term “Video Game,” but some researchers have come up with a hazy but satisfactory definition: “Video games are complex works of authorship containing multiple art forms, such as music, scripts, plots, video, paintings, and characters, that involve human interaction while being executed with a computer program on specific hardware.”[2]  As a result, video games are not created as single, simple works, but as an amalgamation of distinct aspects that can each be copyrighted if they achieve a specific level of originality and inventiveness (i.e., the characters in a given video game, its soundtrack, settings, audiovisual parts, etc.). In simple terms, a video game is a complicated composition of various variables (music, visuals, hardware, software, codes, and characters) that form a superstructure.

As a result, creating a video game as a single entity is difficult. A wide range of genres can be found in this field. The constitutional aspects will differ depending on the game type, or to be more precise, with the specific game. Despite this, the computer program is the most stereotypical of all the units.[3]

A video game is the result of a lot of hard work in terms of computer programming, source code development, visible artistic labor, and detailed graphical design, to name a few things, all of which can be protected in one way or another.

The following are two essential elements of any current video game.

1. Audio-visuals – characters and plots (visual), dialogues and music (audio);

2. Computer software – the factor that drives the audio-visuals and allows users to interact with and manage the game’s parts.[4]

IP LAWS PROTECTION IN INDIA

In India, there is currently no explicit legal system in place to protect video games. The expansion of the industry has raised various worries, most notably over the protection of video game artists’ and publishers’ intellectual property rights. Although Indian IP laws are unable of providing holistic (single-unit) protection to video games, they are capable of protecting separate aspects of video games under several IP laws, with the Copyrights Law playing a critical role.

COPYRIGHT PROTECTION

The Indian copyright law, like the Indian IP laws, is still in its infancy. Due to a lack of jurisprudence in this area of law, applying Indian IP Laws to video games is the most difficult task facing the legal community. The Video Game cannot be expressly protected by the Copyright Act of 1957 as a single item (hereinafter The Act). However, because a video game is an aggregation of distinct components, a succinct reading of the Act may allow for legal protection of specific elements (such as artwork, sound, and texts) under several headings U/s 14 of the Act.[5]

Let us attempt to express the practical application of the aforementioned argument in the clearest manner feasible. Consider the well-known game “Grand Theft Auto V,” which can benefit from copyright protection under Section 14 of the Act. To begin with, the gameplay (the plot or the manner it is played) can be protected as a literary work under Section 14(a) of the Act. Furthermore, the players in the game, such as Trevor, Michael, and Frank, maybe copyrighted as artistic works under Section 14(c) of the Act, in addition to merchandising rights. Furthermore, sound effects (soundtracks such as theme tunes) encoded in games may be protected as musical works and sound recordings under Sections 14(a) and 14(e). Furthermore, under Section 14(d) of the Act, pre-recorded visual scenes (cinematograph scenes) to show-casting progression in the tale can be safeguarded.

As stated in the case of NRI Film Production Associates (P) Ltd. v. Twentieth Century Fox Films Corporation & Anr, the learned court believed that while fundamentally essential aspects could not be protected and no holistic protection was available, video games could be afforded reasonable and practical protection.

Suggestion:

Furthermore, a discussion erupted about whether video games may be included in the purview of Section 2(f) of the Act, which protects visual recordings because video games are representations of audio-video recordings that are controlled by the game’s users. The characters in the games control the activities that have already been installed/recorded by hitting various combinations of buttons on the controller. As a result, video games may fall under the category of cinematographic films, based on judicial interpretation of the Act.[6]

TRADEMARK PROTECTION

The trademark is the most valuable asset and thus the most visible type of IP protection in the video game industry; the same logic applies. Users are more likely to recognize games by their marks or taglines, such as GTA, EA Games, and so on. Trademarks protect the game’s reputation and visibility as a market brand. Some components of the game, such as the name of the game, taglines, logos, or any other aspect approximating the game in the market, must be registered under Section 28 of the Trademark Act, 1999, which grants trademark holders exclusive rights to exploit the use of marks.[7] In the instance of violation of one’s exclusive rights, one can seek relief in the form of an injunction, damages, or accounts of profits under Section 29 of the Trademark Act, 1999.[8] As a result, if a third party created or attempted to free-ride with the unauthorized use of a video game’s registered trademark, or tried to deceive innocent users by creating a similar trademark, he can be held liable for the breach, thereby protecting the video game’s brand, goodwill, and prominence.

PROTECTION OF PATENT

The law of patents protects the invention from being copied. Under patent law, the term “invention” has a broader definition: it might be a process, the machine, or other ornamentation, as long as it is novel. A video game is made up of different parts that fall under the category of “operational methods and principles of program”[9] and can be categorized as user interface, gaming programs, visuals, and so on. While copyright can be granted to the expression of computer code methods, copyright cannot be granted to the “Operational methods and principles of program.”[10]

It would be nonsensical to claim that copyright is incapable of protecting the functional and operational aspects of the software. This is where the patent law comes to the rescue, as patenting protects the scope (operational techniques) of the invention rather than the theoretical component (how it is developed). Patents will be an excellent way to safeguard the operational aspects of video games. Proviso software is more than just an algorithm; it’s a technical advancement.[11]

According to Section 3(k) of the Patent Act of 197014, it is necessary to demonstrate that hardware is of equal importance to software, and that software must be attached to the invention as a component in order to be patentable. In the case of a video game, the software is linked to the hardware, which includes the console and controller, both of which are equally important aspects in the video. As a result, gaming software might be granted patent protection in India.

Suggestion:

Furthermore, the Patent Act of 1970, Section 2(Ja), preserves patents for creative steps toward technical improvement with economic benefits. Video game techniques can be patented if they follow the guidelines outlined above. The strategies employed by programmers to keep users excited and engaged in the game’s plot are the essence of any game. The procedures or methods are well-developed programmes, not just concepts. In comparison to the techniques of methods used in the 1990’s games such as Mario, Pinball, and so on, modern games are highly involved in technical advancement, with gaming programmers developing various new aspects of playing the games to engage the users in the game, while also benefiting the economic significance of the market through high sales.[12]

PATENT DESIGN PROTECTION

The Design Act of 2000 defines “design” for a product as “the presentation of the completed product as a function of the product’s visible qualities (visual characteristics), which in this case may include numerous features such as shape, configuration, pattern, hues, and composition.” As a result, it can be argued that the product and design are deemed inseparable under the Design Act. The Design Act of 2000 controls the registration of industrial designs in India. The industrial design license is valid for 15 years from the date of registration, and it must be renewed for the first time in 10 years, and then every fifth year after that.[13]

The virtual designs encoded in games by the developer are not covered by the Design Act, 2000, because section 2(d) of the Design Act, 2000, clearly states that protection will be awarded to designs that have gone through an industrial process. Video game designs, on the other hand, are the result of technological interference, but the layouts of video game consoles, controllers, or accessories fall within the scope of Section 2(d) of the Design Act, 2000, which defines the term “design,” as long as all of the elements are met: a. gaming accessories are a by-product of an industrial process, b. the accessories are in tangible form and can be manufactured and sold separately, c. the design in video games appeals to the public.[14]

CENSORSHIP LAWS

After researching the market and the mindsets of the users (mainly youth), game developers have become more aggressive and violent in their graphics advancements in the gaming industry. In a report released by Journal of India Pediatrics, study suggests that teenagers are more inclined towards the aggressive and violent visual games, whilst about 2 percent of the population were fascinated by the educational games. [15]There is no explicit rule, statute, or court interpretation putting limitation barriers on video game material, but there are a few scattered laws like follows:

1. Article 19 (2) of the Indian Constitution, which states that freedom of speech and expression is subject to limitations that protect decency and morality.[16]

2. Articles 39 (e) and (f) of the Indian Constitution, which declare that the state must take preventive measures against activities that abuse or corrupt the minds of innocent children.[17]

3. Section 5(B) (I) of the Cinematograph Act, 1952, which requires the censor Board of the picture to issue guidelines and has the authority to deny the publishing or telecast if the application does not follow the rules.[18]

4. The penal provisions for any conduct involving obscene publications include Section 292[19] of the IPC, 1860 and Section 67 of the IT Act, 2000.[20]

VIDEO GAME DEBATE – AROUND THE WORLD

As previously stated in the article, modern video games are made up of two main components. a. Audio-visuals – characters and plots (visual), dialogues and music (audio); b. Computer software – the factor that drives the audio-visuals and allows users to interact with and control game elements. The application of legal laws and the classification of video games as multimedia works, IT programmes, or audio-visual works were brought to the attention of the entire world. After receiving strong pressure from a variety of government bodies around the world, WIPO became involved in the matter and published an analytical research study titled “The Legal Status of Video Games: Comparative Analysis in National Approaches” (the “Study”),[21] authored by Messrs. Andy Ramos, Anxo Rodriguez, Tim Meng, Stan Abrams, and Ms Laura Lopez. The team analysed and examined the legislation and laws made in the jurisdictions of twenty-two different nations, including China, Germany, India, Russia, the United States of America, and others, in order to safeguard and promote the video game industry in their respective countries. According to the survey, these countries are divided into two groups. The first group believes that video games are superior to computer programmes because they rely on software and lack originality in their work; on the other hand, the second group believes that video games are primarily audio-visual works that contain a variety of artistic and original elements that can be protected in one form or another. Finally, a small number of countries, such as Kenya and the Republic of Korea, began to embrace dual protection for video games, arguing that while the audio-visual aspect is important, the software used should not be left unprotected. Furthermore, the modern video game industry may employ a greater number of experts in complicated writing activities. The protection of video games has appeared to be difficult over the world due to a complex combination of many elements.

Also read: SEAT OF ARBITRATION

Copyrightability of PCC in Gaming Context

First and foremost, we must determine what kind of material people can create within a game. PCC is derived from the terms UGC and UCC. Despite the lack of a universal definition, a UGC is generally defined by I the Internet’s public availability or availability to a select group of people, (ii) a certain amount of creative effort rather than mere reproduction or pre-existing works, and (iii) the availability of the Internet to a select group of people outside of professional routines and practises, amateur invention.[22] UGC is defined as “material made publicly available over the Internet that demonstrates a certain amount of creative effort and is developed outside of professional routines and procedures,” according to an OECD study.[23]

A scripted setting and an unscripted environment are the two types of gameplay environments.[24] A player in a scripted environment has little or no freedom to construct items on his own, and the only things he can make are closed avatars with traits and abilities specified completely by the developer. Players in an unscripted world, on the other hand, are free to roam and do as they choose. They can script or write their own code, or they can operate an open avatar that is defined by their choices in terms of body, personality, and ability.[25] PCC refers to material created by a player in an unscripted environment, including but not limited to photographs, videos, audios, texts, Mods, and machinima, for the sake of this study.

As a result, PCC can be classified into four groups. The first are ‘fan creations,’ such as artwork, stories, costumes, fan websites, and walkthroughs, that are not directly included into the gameplay experience. These types of fanworks have copyright issues that are nearly identical to those of fanworks based on other popular media.[26] The second category comprises traditional art forms such as music, poems, and paintings that are made outside of the framework of gaming but are later incorporated into it in some way.[27] A player might, for example, develop a song and then perform it during a multi-player game session. The player would clearly own the copyright to the song in this situation, at least at first. The third sort of PCC is created and displayed immediately during the gameplay process, rather than using software or an audiovisual screen. This type is more common because modern games are more open and interactive, allowing gamers to fully manipulate the contents of the multimedia work according to their own imagination, transforming the works contained in the multimedia product to the point where they are original enough to qualify as new works. The fourth form of PCC is reliant on the original game, either by modifying, adding, or enhancing the program engines or original codes to produce new game extensions known as ‘Game Mods,’ or by leveraging a game’s graphic assets to make Machinima, which combines VG animation and cinematography. Because the third and fourth types of PCC are particularly prevalent in the gaming setting, the thesis will focus on the legal difficulties that arise with these two types of PCC.

CONCLUSION

Indian Intellectual Property Rights are in their infancy, as a result of which there are various pages left unturned by jurists and legal scholars when it comes to the arena of intellectual property and its protections. Such unturned pages are coined as either lacunas or grey areas (aspects that are yet to be discovered). Unfortunately, Video games and their protection has been the victim of such grey area of intellectual property. The Indian IP Laws are incompetent to bestow holistic (single-unit) protection to Video games, which has left this rapidly emerging industry and its charioteers in agonizing. 

After a conscious and objective analysis of the above research, it is comprehensible that the existing law in India, as well as worldwide, is rigid and insufficient to encompass such as complex amalgamation. It would not be wrong to state that, the IP law enacted in India are in the same developing stage, which considering the time should be revisited. It needs time for an amendment to make pre-existing laws more flexible and open for a broader interpretation, the current law is rigid because of the use of words and definitions construed in the initial stages by the old-school lawmakers, the lawmaker of the new legislation should Considering the IP laws in India, the videos games can be granted reasonable protection to keep the industry running until a new and apt set of rules are passed legislation. The absence of a specific law for the regulation of such a rapidly emerging sector comes with opportunities for malpractice and lack of protection to the developers and the country’s economic development and stability.


[1] Mr. Andy Ramos, Ms. Laura Lopez, Mr. Anxo Rodriguez, Mr. Tim Meng and Mr. Stan Abrams, The Legal Status of Video Games: Comparative Analysis in National Approaches (Feb 12, 2022), https://www.wipoint/export/sites/www/copyright/en/activities/pdf/connparative analysis on video games.pdf

[2] Mr. Andy Ramos, Ms. Laura Lopez, Mr. Anxo Rodriguez, Mr. Tim Meng and Mr. Stan Abrams Supra Note 1

[3] Ibid.

[4] World Intellectual Property Organisation, ] https://www.wipo.int/copyright/en/activities/video games.html (last visited Feb 12, 2022).

[5] The Copyright Act, 1957 § 14, No. 14, Acts of Parliament, 1957 (India).

[6] Varun Munjal, India: Gaming Laws In India: A Toothless Regime, MONDAQ (Feb 12, 2022), https://www.mondaq.com/india/gaming/594124/gaming-laws-in-india-a-toothless-regime.

[7] The Trademark Act, 1999 § 28, No. 47, Acts of Parliament, 1999 (India).

[8] The Trademark Act, 1999 § 29, No. 47, Acts of Parliament, 1999 (India).

[9] Sonal Sodhani, India: Is Software Patentable in India, MONDAQ (Feb 6, 2022,), https://www.nnondaq.conn/india/trade-secrets/810286/is-software-patentable-in-india

[10] Ibid.

[11] V T Thomas v. Malayala Manorama, MANU/KE/0011/198

[12] The Patent Act, 1970 § 2(ja) & 3(k), No. 39, Acts of Parliament, 1970 (India).

[13] The Design Act, 2000 § 2(d), No. 16, Acts of Parliament, 2000 (India).

[14] Varun Munjal, India: Gaming Laws In India: A Toothless Regime, MONDAQ (Feb 9, 2022), https://www.mondaq.com/india/gaming/594124/gaming-laws-in-india-a-toothless-regime.

[15] India: Video Game Industry and Censorship Laws, STALAWFIRM (Feb 10, 2022,), https://www.stalawfirm.conlen/blogs/view/video-game-censorship-india.html

[16] INDIA CONST. art 19, § 2.

[17] INDIA CONST. art 39, § e, f.

[18] The Cinematograph Act, 1952 § 5 (b) (i), No. 37, Acts of Parliament, 1952 (India).

[19] Indian Penal Code, 1860, § 292, No. 45, Acts of Parliament, 1860 (India).

[20] The Information Technology Act, 2000 § 67, No. 21, Acts of Parliament, 2000 (India).

[21] Mr. Andy Ramos, Ms. Laura Lopez, Mr. Anxo Rodriguez, Mr. Tim Meng and Mr. Stan Abrams, The Legal Status of Video Games: Comparative Analysis in National Approaches (Feb, 6, 2022), https://www.wipoint/export/sites/www/copyright/en/activities/pdf/connparative analysis on video games.pdf

[22] Graham Vickery and Sacha Wunsch-Vincent, Participative Web and User-Created Content: Web 2.0, Wikis and Social Networking 18 (2007).

[23] Tyler T. Ochoa, Who Owns an Avatar? Copyright, Creativity, and Virtual Worlds, 14 Vand. J. Ent. & Tech. L. 959 (2012) (hereinafter ‘Tyler Ochoa’); MAI System Corpn. v. Peak Computer Inc., 991 F 2d 511 (9th Cir 1993).

[24] Kim Barker, MMORPGing – The Legalities of Game Play, 3 (1) Eur. J. for L. & Tech. 3 (2012) (hereinafter ‘Kim Barker’).

[25] Daniel Kromand, Avatar Categorization, 4 Transactions Digital Games Res. Ass’n. 400 (2007).

[26] Hanna Elina Wirman, On Productivity and Game Fandom, 3 Transformative Works & Cultures 24 (2009).

[27] Erez Reuveni, Authorship in the Age of the Conducer, 54 J. Copyright Soc’y USA 285 (2007).

Author: Abhishek Bhardwaj, Amity Law School, Noida

Editor: Kanishka VaishSenior Editor, LexLife India

AFGHAN WOMEN’S RIGHTS- AN INSIGHT

Reading time : 8 minutes

INTRODUCTION

Women`s rights are human rights – Hilliary Clinton. Women`s rights can be defined as the liberties, freedom and opportunities that women have. These rights include the right to live free from violence, slavery, and discrimination; to be educated; to own property; to vote, and to earn an equal and fair wage. Women all over the world have been denied these basic rights since times immemorial. This article aims to study and understand the plight of Afghani women`s rights since the Taliban took over in 1996.

  • THE TALIBAN REGIME

The word Taliban means “students’’, in the Pashto language. During the withdrawal of the Soviet troops from Afghanistan, they emerged in the early 1990s in Northern Pakistan.

They ruled from 1996- 2001, until the US- Invasion.

Through the Treaty of Rawalpindi in 1919, Afghanistan achieved independence from the British and became a member of the United Nations. Afghanistan, despite being a party to various international treaties such as the Convention on the Elimination of All Forms of  Discrimination against women in 1979 and Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in 1984, the state of women during under Taliban regime became beyond pathetic. The governance under the Taliban was neither Parliamentary nor Presidential,it was Islamic.

Women`s rights in Afghanistan has often been the subject of various debates and conflicts. Afghan Women’s rights have been oscillating back and forth under various regimes. Before the rise of the Taliban in 1996, women were protected under the law and were afforded basic human rights. As the country was moving towards Democracy,  there was a rise in women contributing in various fields including nation development. In the year 1977, they comprised over 15 % of Afghanistan`s Legislative body. 70 % of the school teachers, 50% of the government workers and 40 % of the doctors were women by the late 1990s. Under the 1964 Constitution, Afghan women officially gained equality, however, these rights were taken away from them in the 1990s through various temporary rulers such as the Taliban during the Civil War. With the rise of the Taliban in 1996, the Afghan women`s world took a full 360-degree turn as all of their basic human rights were robbed away from them.

Under the Taliban regime from 1996 – 2001, women had little to no freedom. In the name of culture and religion, the Taliban justified the violation of women’s rights.[1]The Taliban preached that “women were nothing but a temptation, an unnecessary distraction” and followed strict rules on social relationships. Restrictions on women were imposed in all areas of their life right from their personal affairs to their social, economical and political affairs. The Taliban regime reduced the girls and women to being subjected to illiteracy, poverty and poor health. One of the most serious human rights issues in Afghanistan was violence against women. Throughout their regime in 1996-2001, the Taliban perpetrated violence against women by subjecting them to horrific events such as abduction, sexual abuse, rape and even killing.

The international community

The protests of international organizations had little effect on the Taliban authorities, who prioritized the interpretation of Islamic law and did not feel bound by UN or human rights law, which was regarded as a means of Western imperialism. The UN too, as an organisation found the Taliban extremely difficult to handle.

  • THE US OCCUPATION ( 2001-2020)

In order to dismantle the Al – Qaeda, which had executed the 9/11 attacks, the United States invaded Afghanistan and knocked out the Taliban government. The then US President George Bush demanded the Taliban to hand over all the Al- Qaeda leaders who were involved in the attack. On failure to surrender Osama Bin Laden and the other members of the Al- Qaeda, Military operations were commenced on 7th October 2001by the US.

Bonn Agreement

On 5th December 2001, an ambitious 4-year plan was set up for Afghanistan`s political transition. An interim government was set up and it gave women a newfound hope for a better future. The Ministry of Women`s Affairs was established, 3 out of 25 signatories of the agreement were women.

 All the restrictions that were imposed by the Taliban for women were lifted during this period. Women highly contributed to Nation-building through this period. Gender quotas to promote gender equality was all established under the new Constitution. There was tremendous growth in areas of women`s education, employment and healthcare. However, for the rural women of Afghanistan, the situation was not quite the same, there was an unequal distribution of privileges between the rural and urban women. Particularly for the women in the Pashtun area and other minority ethnic groups, there was not much of a progress.

THE RETURN OF THE TALIBAN

On August 15, 2021, the Taliban invaded Kabul, the capital of Afghanistan, and quickly hijacked the country at a speed that surprised many Afghanistan and Americans alike. The Taliban’s progress came when the United States completed the military withdrawal  agreed in the US Taliban agreement in February 2020. The  withdrawal and evacuation operations of the US military and diplomacy ended on August 30, 2021 with the withdrawal of the US military from Afghanistan.

RIGHT TO EDUCATION

The 1989 UN Convention on the Rights of the Child emphasized that one of the most fundamental of all human rights is the right to free and compulsory education. Due to its low school enrollment rate and the high proportion of illiterate people, Afghanistan has been long held one of the worst educational records in the world as a result of sustained conflict spanning over 4 decades.

THE PAST

1996-2001- TALIBAN REGIME

The educational situation is worsened during the 1996-2001 Taliban Regime. On the order of the Taliban, around half of the country`s schools were destroyed. During this period there was a strict ban from girls attending school, however, this varied from region to region. Only girls under the age of eight were allowed to attend school, provided that only Quran should be taught.

In the UNICEF report,1998 it is found that around 90% of girls and nearly 75% of boys were out of school. In the year 2001, UNICEF further reported that only about 4-5% of Afghan children attended primary school. Access to secondary and tertiary education was a distant dream.

2001-2020- THE US OCCUPATION

The occupation of the United States marked the beginning of a new era of education in Afghanistan. Article 22 of the constitution of Afghanistan guaranteed the right to education to every Afghan citizen, be it a man or a woman. Significant progress was made in the two decades that followed. In the year 2017, the school enrollment rate increased tenfold from just 1 million to about 9.2 million students. The fact that 39% of them were girls was a remarkable advancement.

The recent return of the Taliban has raised serious concerns about the future of education in Afghanistan, especially for girls.

THE PRESENT AND WHAT THE FUTURE UPHOLDS.

RIGHT TO EDUCATION:

There is an underlying fear among Afghans that education will return to the plains when girls were not allowed to go to school in the first place. This is especially unfortunate since all the massive development that took place during the US occupation will go into complete vain.

The situation as of OCT 16, is that girls are not allowed to access secondary education, while boys are.[2]“The de facto minister of education told us that they are working on a framework,which they will announce soon, that will allow all girls to go to secondary school, and we are expecting that to happen very soon,”UNICEF deputy executive director Omar Adbi said at the UN.The taliban claim to be setting up a secure transportation system before allowing them back into classrooms.

A 14-year-old girl identified as Asma expressed her frustration with her situation and  determination to pursue an education.[3]“Will I be able to go to school or not? This is my biggest concern. I want to learn everything, from the easiest to the hardest subjects. I want to be an astronaut, or an engineer or architect…   This is my dream,” she told Amnesty International.”Education is not a crime,” she added. “If the Taliban announce that getting an education is a crime, then we will commit this crime. We will not give up.”When it comes to education, it seems that Afghan women are more aware and resilient than ever and are willing to fight for it.

RIGHT TO EMPLOYMENT

THE PAST  

1996-2001- TALIBAN REGIME

Women were highly involved in “public life” before the Taliban`s takeover. Almost 70% of the teachers,40 % of the doctors and 50% of the civil corp servants in Afghanistan were women. Since the beginning of the Taliban regime, women had been confined to their households. A temporary ban on employment was imposed. Claims were made that they could get back to work once the standards of gender segregation were met, but this had also never been kept as with many of their other promises.

The employment ban was majorly felt in the educational system. More than two hundred thousand school children and 8000 female university graduates were affected as a result, in Kabul alone.

An exemption was made for the health care professionals, however, they too had to operate in reduced strength. The price they had to pay for physically getting to work was them being subjected to harassment, due to which many even left their jobs.

2001-2020 THE UNITED STATES OCCUPATION

During this period women came back into the public sphere wherein they joined the army, police forces, worked as journalists and television presenters, went on to become judges, prosecutors, translators and surgeons. The constitution of Afghanistan ensured that Afghan women be a part of the political process as well. Article 83 of the Constitution reserved around 27% of the seats ( 68 out of 250 seats ) for women candidates in the Wolesi Jirga(House of the People). Among the one-third members of the Meshrano Jirga ( House of Elders), 16 % had to be women candidates.

THE PRESENT AND WHAT THE FUTURE UPHOLDS.

The new regime has resulted in women being ordered to leave their workplace in some areas and have been excluded from the hardline government altogether. According to the announcement made by Kabul’s acting Mayor Hamdullah Nohmani(As of November 2021) the only job that women could do for the Kabul Government currently, is cleaning female bathrooms, this is extremely unfortunate after 2 whole decades of development in female employment.

RIGHT TO HEALTHCARE

THE PAST  

1996-2001- TALIBAN REGIME

[4]The Taliban has ordered male doctors to deny treatment to women not accompanied by a close male relative. Since women were no longer allowed to work outside the home as doctors, and a significant number of women did not have close male relatives, this posed a tremendous problem. Moreover, many home-visit midwives and widow’s health schemes had also been shut down.

There was only one maternity hospital in the country that put pregnant women in the highly disadvantaged lot, further worsening the problem, male doctors were unable to deliver babies, which further took a toll on the mental and physical health of women and children.

On October 1996, women were denied access to traditional hammams, public baths, because of socialization opportunities that were considered non-Muslim. These bathrooms were an important facility in a country with few people possessing running water, and the testing prompted the United Nations to predict an increase in scabies and vaginal infections among women denied methods of hygiene as well as access to health care.

Ninety-seven per cent of Afghan women surveyed by the Doctor of Human Rights showed signs of major depression. A UNICEF study reported that the majority of children were extremely very traumatized and may die before adulthood.

2001-2020 THE UNITED STATES OCCUPATION

Since 2001, the health care status of Afghanistan has slowly and gradually improved.

Medical services were mostly provided by NGOs contracted through the Ministry of Public Health. In the year 2002, the Afghan Ministry of Public Health developed the Basic Package of Health Services (BPHS) as a guide to the health services that the Afghan government would commit to providing to all Afghan citizens. The services identified as having the greatest impact on major health issues were achievable by infrastructure constraints, cost savings, and providing affordable access to health care. equality in urban and rural areas. Areas of focus included maternal and newborn health, child health and immunization, nutrition, infectious diseases, mental health, disability, and pharmaceutical delivery.

THE PRESENT AND WHAT THE FUTURE UPHOLDS.

Afghanistan has been particularly hard hit by the Covid-19  pandemic due to the prevailing social,economic and political conditions as the Taliban have returned back to power.

Hunger has hit 95% of the families, the healthcare system of Afghanistan is on a brink of collapse.[5]“Allowing Afghanistan’s health care delivery system to fall apart would be disastrous,” said Mr. Griffiths. “People across the country would be denied access to primary healthcare such as emergency caesarean sections and trauma care.”

RIGHT TO FREEDOM OF  MOVEMENT AND ASSOCIATION

THE PAST  

1996-2001- TALIBAN REGIME

Under the Taliban regime an extremely problematic policy was introduced, in which the Taliban denied women’s individual liberty by forbidding them from being present in public unless they were accompanied by a male relative. In addition, women were to walk meekly in the streets and refrain from speaking in a pitch too high or laugh out loud. Attending weddings and staying in hotels were all distant dreams. During this period, women were not even allowed to talk to men who were not their own blood. This was seen as an extreme form of discrimination against women especially after years of civil war in Afghanistan.

Black Burqa was the clothing mandate for all the women of Afghanistan. The Taliban considered the burqa a necessary extension of the Islamic veiling custom of Purdah. Before the rise of the Taliban, there was no such mandatory dress code. The windows of the women’s residence were to be painted in black colour; it was forbidden to wash clothes in streams and rivers. When using a means of transportation, all the windows except the facade to be painted in black colour. Women were no longer allowed to board buses with the opposite sex. Taxi drivers were to pick up only women who were escorted by a man. If they were caught breaking this rule, the wife and husband had to bear the consequences.

2001-2020 THE UNITED STATES OCCUPATION

All the restrictions that were imposed with regards to freedom of movement and association, during the period of the Taliban regime were lifted. The Bonn Agreement which set up an interim government for six months stipulated commitment to gender issues.

THE PRESENT AND WHAT THE FUTURE UPHOLDS.

[6]“Women in Afghanistan are being turned down from their offices by the Taliban, universities have been asked to discuss gender segregation possibilities, women are required to be accompanied by male members of their family in public, media are not broadcasting music, journalists and activists are in hiding or in fleeing , former members of the Afghan National Security Forces are scared of the worst, the summary executions, house-to-house searches and information gathering have led to widespread fear.” The Taliban seems to not have changed since the last time it had ruled, even this time it has imposed strict sanctions is on the individual liberty of women.

Thus,to conclude we can say that women`s rights is something that can be gained only when there is a political and economical stability in a nation.


[1] Shannon A. Middieton,Women’s Rights Unveiled: Taliban Treatment of Women in Afghanistan (IND, INT’L& COMP. L. REV. 2001) 11(2) 441

[2] “Taliban To Announce Plans For Girls’ Education Soon”: UN” NDTV,Oct 16,2021.

[3] “Taliban To Announce Plans For Girls’ Education Soon”: UN” NDTV,Oct 16,2021.

[4] See AFP-Kabul, Doctors Ordered Not to Treat Women without their Legal Mahrams

(visited June 25, 1998) <http://www.rawa.org/doctors.htm

[5] Afghanistan’s healthcare system on brink of collapse, as hunger hits 95 percent of families,UN NEWS,Global Human Stories.

[6] Afghanistan women’s rights are ‘red line’, UN rights chief tells States,UN NEWS,Global Human Stories.

Author: Nithyasri G.

Editor: Kanishka VaishSenior Editor, LexLife India

Maritime Security: International Solidarity

Reading time : 8 minutes

Abstract

The Ocean or the World Ocean is the body of water covering around 71% of the earth’s surface. The Law of the Sea regulates the vast surface and its use. Public International Law of the Sea first appeared in 17th Century Europe. Historically a legal framework for the activities in the ocean has existed for quite many centuries now. The United Nations (UN) has set up a firm legal guide for marine activities. The United Nations Convention on the Law of the Sea, 1982 (UNCLOS) serves as the legal framework for international interest. However, it is not the only aiding guide provided. The International Convention for the Safety of Life at Sea, 1974 (SOLAS) protects merchant ships. Trade is integral to human activities on the sea. The International Ship and Port Facility Security Code (ISPS Code) is adopted under SOLAS. ISPS Code is mandatory for all member states of the Convention. These initiatives taken by the UN have a common objective. All of them aim to avoid conflict and maintain peace and friendly relations globally. Maritime security is the most secure way of attaining global prosperity.

Maritime transport and maritime security have been mentioned several times during international diplomatic summits in 2021. Significant developments were – President Joe Biden (USA) spoke on establishing favorable maritime relations with fellow nations, including India and Prime Minister Narendra Modi (India), raised the issue of maritime security as the Chairperson in UNSC 2021. Maritime plays a considerable role in international relations overall and between nations for both trade and military. Maritime security is a harbinger of international peace and prosperity. Coastlines with negative tension and disturbances from outsiders mean good relations with fellow nations. Therefore, Maritime Security has been and will always be the need of the hour.

Introduction

The ocean is not always calm, and turbulence is a natural part of it. However, many times disturbances on the sea are artificial. Artificial implies that such disturbances are a product of intentional and unintentional human activities. The Law of the Sea’s objective is to reduce such tension to the minimum. Hence, countries have developed trade and military routes, industries and have demarcated territorial and business zones. UNCLOS acts as the standard and guide.

In history, capacious claims were put over sea lanes and territory by powerful states. Thus, the principle of “freedom of seas” (“mare liberum” in Latin) is crucial in the history of international law. Hugo Grotius, a Dutch philosopher, and jurist, developed this principle.[1] International law has grown a lot over time. In modern times United Nations has taken up a very active role in setting up firm codified maritime rules. The Geneva Conventions were the first step towards standardized sea laws. With overflowing global trade and commerce, maritime has adopted the principle of “laissez-faire”. This principle has led to the invention of the concept “open-sea”. United Nations Convention on Law of the Sea is an international treaty or agreement signed in 1982, came into force in 1994.[2] This Convention of international law binds 154 nations.

Many seaborne industries have developed with time. Namely – aquaculture, fish processing, tourism etc. Maritime Industry refers to maritime or waterborne transport of goods and people. One of the largest global industries is most definitely seaborne transport. It is a crucial player in global trade and international trade relations. It also acts as an indicator of friendly relations between countries. Maritime transport is the most environmentally stable method of mass transport. It is the least pollution-causing and the most energy-efficient. Past to present, maritime transport carries the most considerable portion of freight transport. Maritime moreover contributes to the economic as well as social sector. It helps create stable economies and provide steady livelihoods. With so much dependence on the ocean, Maritime Security is essential.

Global Village

The world has never been more miniature. “Global Village” is an often-used term. With more interconnectivity of the world, trade and diplomatic relations have also accelerated in the past decade. Hence, the international society requires firm international law that aids and protects every nation’s rights and freedom. The Convention (UNCLOS) is the pioneer of such codified international law.   

UNCLOS and Maritime Agencies

The United Nations Convention on the Law of the Sea, 1982, is historic in every sense. It comes from the primary times when codification of international law materialized. Such a thing was a magnificent landmark achievement in the history of international law. The first paragraph in the Preamble of the Convention sets the mood for the whole maritime legal system. It aspires for cooperation and mutual understanding from all states for the collective maintenance of peace, justice and progress of the world. The Convention firmly believes that the codification of the law is a step towards progressive development, international peace and security.[3] Therefore, the Convention constantly reiterates its motive for international cooperation in its contents.

Furthermore, it has provided a detailed guide on how developed coastal countries should help other land-locked and underdeveloped coastal countries. It details the methods of sharing the resources and water columns amongst coastal and land-locked nations. UNCLOS is respectful of the national laws of every nation. However, it is firm and imposes a duty of maintaining peace on water over all countries.

UNCLOS brought in clear demarcation and delimitation of sea areas under the jurisdiction of the coastal states. The location or the sea areas under the jurisdiction of the coastal states include the seabed, subsoil and air space.

IMO or the International Maritime Organisation is a specialized agency with the global authority and duty to sustain maritime trade safety and security and protect the ocean from pollution. Its sub-division Maritime Security Facilitation’s (MSF) fundamental function is to provide consultation and assistance for safety and security to its member states.

Many coastal nations have domestic maritime agencies like the UK’s Maritime Coastguard Agency and Her Majesty’s Coastguard.

Maritime agencies’ focal objective is to prevent accidents that harm vessels and the ocean environment.

Maritime Security

Maritime security is a specialized field that oversees the protection of vessels internally and externally. Therefore, it is essential to help secure the ships from any threat without fragmenting the flow of international trade. [4]

Maritime transport is no stranger to disturbances. Vessels face several threats during the journey. Piracy, terrorism, thievery, human trafficking and other illicit activities have always been a constant threat to the shipping industry.  For example, piracy is heavily technological and advanced in the current scenario. Similar to automatic cars, automatic ships and vessels have taken over the latest trends at present. These vessels have no crew and hence are more vulnerable to piracy. Thus, with moving times, cybersecurity at sea has also gained importance.

SOLAS and ISPS Code

Maritime transport is the backbone of global trade. There are hundreds of cargo ships sailing on the sea on a regular. Almost all countries depend on and contribute to maritime trade. As of 2020, the United Nations Conference on Trade and Development (UNCTAD) marked that Asian countries have the highest contribution to the marine business.[5] However, merchant ships are very vulnerable to threats and security issues. Therefore, the international society must have firm rules and regulations that protect the vessels and prevents mishaps.

The International Convention for the Safety of Life at Sea (SOLAS)[6], 1974, is the key to protecting merchant ships. So it has been through numerous amendments. In the 1974 amendment of SOLAS, the Convention adopted the most significant addition. It is a new and improved maritime security regulatory regime. Recent advancements in technology and the diplomatic scene required a better and enhanced administration. As a result, it adopted the International Ship and Port Facility Security Code (ISPS Code). This Code provides a thorough list of requirements that the member states must fulfil.

UNSC 2021

The United Nations Security Council (UNSC), a vital organization of the United Nations, had a pervasive and productive debate on maritime security in 2021. UNSC’s fundamental role is to oversee all-inclusive peace and security. In addition, it serves as the international open stage of diplomatic debates and discussions. Thus, the country representatives can peacefully raise their grievances and discuss global prosperity.

Generally, many maritime issues are related to the delimitation of the Territorial Zone, Contiguous Zone and  Exclusive Economic Zone (EEZ). These disputes are handled as per the rules in the UNCLOS convention by the International Court of Justice.

In 2021, India chaired UNSC. As mentioned earlier, maritime security was the session’s topic, and the Indian candidacy emphasized the various threats. India’s Presidential stand in the United Nations Security Council declared the superiority of the United Nations Convention on the Law of the Sea, 1982. The Presidential statement is as follows – “The Security Council reaffirms that international law, as reflected in the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), sets out the legal framework applicable to activities in the oceans including countering illicit activities at sea.”[7]

It was a firm stand that reaffirmed the position and significance of the United Nations Convention on the Law of the Sea, 1982. Furthermore, Indian diplomacy emphasized the need of securing coastal communities against illicit activities. Safeguarding the oceans will never cease to be a priority.[8]

It was the first-ever where UNSC discussed Maritime Security in such a high-level debate. Achieving sea transport without any disturbances is a goal still unattained. Human trafficking is an old-time plague for maritime. It is one of the most prominent issues faced by international marine security. Millions of refugees and immigrants opt for marine transport to escape their homes. Therefore, filtering human traffickers and victims is no easy task. However, this is a problem that needs a definite cure even with no easy way out. The Indian candidacy, therefore, moved the Security Council members to implement the United Nations Convention against Transnational Organised Crime, 2000.

India urged the Member States to implement Chapter XI-2 of the International Convention for the Safety of Life at Sea, 1974 (SOLAS), constituting the International Ship and Port Facility Security Code (ISPS Code). Implementation of this provision is the most concrete way of securing ports, vessels and coastal communities. Furthermore, they added the necessity of Member States to work and collaborate with the International Maritime Organisation (IMO). This collaborative effort shall allow the promotion of inviolable shipping along with freedom of navigation.

Many countries stood in agreement with India’s statement. The Permanent members (USA, UK, China, Russia and France) of the Security Council mostly gave parallel replies to India. All of them reiterated and emphasized the importance of international collaboration and hashing out disputes through dialogue. However, China has been defensive about maritime issues because of the South China Sea disputes. The Chinese delegation even called out the panel from the USA about their support of the importance of UNCLOS as the USA is not a part of UNCLOS. However, despite these to-and-fro comments, China did submit that UNCLOS is a superior international law that all nations must follow.

It is safe to say that Maritime Security has taken center stage in the stage of global politics. As previously mentioned, maritime is arguably the most extensive global industry. Consequently, interruptions in the flow of commerce and shipping have vast global consequences.

South China Sea Dispute

South China Sea dispute is perhaps the most well-known maritime dispute. Maritime issues over delimitation of the Territorial Zone, the Contiguous Zone, Exclusive Economic Zone occur very often. It happens when several coastal countries share the same sea area. Thus, concerned nations must clarify disputes of this manner through dialogue.

The coastlines of several sovereign states share the South China Sea. The Sovereign states are – Malaysia, the Phillippines, Vietnam, Indonesia, Brunei, the People’s Republic of China (PRC), and Taiwan (Republic of China). The People’s Republic of China (PRC) has built artificial islands and started militarizing them for quite some time now. The other six bordering nations have revealed their concerns against such activities time and time again. However, China claims it to be their sovereign state and hence deserves no interference in these matters. Despite such claims, the region concerned remains disputed waters and officially lies outside China’s internationally acknowledged borders.

Nations with due notice have the autonomy of setting up artificial islands and other installations in their Exclusive Economic Zone (EEZ) according to Article 60 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS).

The Exclusive Economic Zone or the EEZ is adjacent to the territorial sea, extending up to 200 nautical miles. Article 38 from the Statute of the International Court of Justice[9] deals with disputes related to the delimitation of the EEZ. The countries must reach an agreement within a reasonable time following Article 38, which analyses international conventions and customs with generally accepted principles by civilized nations. If a timely agreement between the concerned countries is unattainable, Part XV of UNCLOS details the obligations for a peaceful delimitation. The Court and the concerned countries must take practical and unprejudiced measures in the final delimitation.

However, in South China Sea’s case, China refused to accept the ruling of the International Tribunal for the Law of the Sea (ITLOS). Moreover, China has also claimed to have incontestable sovereignty over the Spratly Islands and the neighboring waters.

The South China Sea is critical strategically for both trade and military. It consists of numerous straits. The Strait of Malacca is of utmost importance; it connects the Indian and Pacific Oceans. This strait single-handedly carries one-third of the global maritime industry. Therefore, the Strait of Malacca is one of the most significant geopolitical water bodies.[10]

Despite these statements regarding the South China Sea, the People’s Republic of China (PRC) has submitted to the importance and supremacy of UNCLOS. The United Nations Convention on the Law of the Sea, 1982 is a prevalent and significant international law necessary to maintain peace and unity worldwide.

Conclusion

Maritime Security covers a broad spectrum of topics. From crimes and illicit activities, delimitation of the coastal borders, to environmental issues. The ocean is called the source of life. The phrase can be understood in many ways. It is essential for humans to properly cherish and preserve the sea and its gifts to humankind.

Maintaining peace and order at the ocean is one of the primary duties of individual nations and international diplomatic institutions like the United Nations (UN). However, Maritime is an often disputed matter in the International Court of Justice. Especially the delimitation of the territorial sea amongst countries that share adjacent coasts. Even though the Delimitation of the Territorial Sea (Article 15 under UNCLOS) is uncontroversial, it is a constantly disputed matter in the International Court of Justice.[11]

Therefore, peace and security in the marine sector imply international unity and prosperity. Countries need to realize that Maritime Security is necessary for international solidarity. Increasing globalization needs a peaceful, firm, and secure maritime system. It is plausible when countries recognize and abide by the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). UNSC 2021 debate on Maritime Security was a new and most recent step towards a better maritime system.


[1] Law of the Sea – History, Evolution and Provisions, available at : https://www.legalbites.in/law-of-the-sea/ (last visited on October 15, 2021)

[2] United Nations Convention on the Law of the Sea, available at : https://legal.un.org/avl/ha/uncls/uncls.html (last visited on October 16, 2021)

[3] United Nations Convention on the Law of the Sea, available at : https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (last visited on October 12, 2021)

[4] Guide to Maritime Security, available at : https://www.mitags.org/security-guide/ (last visited on October 09, 2021)

[5] UNCTAD, “Review of Maritime Transport 2020”, 7 (November, 2020)

[6] Maritime Security, available at : https://www.imo.org/en/OurWork/Security/Pages/GuideMaritimeSecurityDefault.aspx (last visited on October 17, 2021)

[7] UNCLOS accepted as legal framework for all activities in the Oceans, available at : https://www.financialexpress.com/defence/unclos-accepted-as-legal-framework-for-all-activities-in-the-oceans-by-unsc/2307540/ (last visited on October 18, 2021)

[8] UNSC meet on Maritime Security, available at : https://www.drishtiias.com/daily-updates/daily-news-analysis/unsc-meet-on-maritime-security#:~:text=India%2C%20as%20the%20UNSC%20president,and%20France)%20attended%20the%20Meet (last visited on October 19, 2021) 

[9] United Nations Convention on the Law of the Sea, 1974, art. 74

[10] South China Sea, available at : https://www.drishtiias.com/to-the-points/Paper2/south-china-sea (last visited on October 19, 2021)

[11] Judicial Uncertainties on Territorial Sea Delimitation under Article 15 UNCLOS, available at : https://www.repository.cam.ac.uk/bitstream/handle/1810/263983/Lando.pdf?sequence=1 (last visited on October 19, 2021)

Author: Ipsita Gogoi, NEF Law College, Guwahati

Editor: Kanishka VaishSenior Editor, LexLife India.