War- A threat to Flora & Fauna

Reading time : 8 minutes

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

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

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

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

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

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

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

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

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

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

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

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

Author: Pragya Narain

Editor: Kanishka VaishSenior Editor, LexLife India

Mediation bill

Reading time : 8 minutes

Introduction

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

What is Mediation?

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

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

History of Mediation in India

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

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

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

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

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

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

Salient features of the mediation bill, 2021

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

Need for the Mediation Bill

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

Advantage of the Mediation bill

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

Disadvantages of the Mediation bill

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

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

Conclusion

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

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

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

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

Author: Shashank Roy, NMIMS SOL, Bangalore

Editor: Kanishka VaishSenior Editor, LexLife India

DOMESTIC VIOLENCE

Reading time : 8 minutes

INTRODUCTION:

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

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

CAUSES OF DOMESTIC VIOLENCE:

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

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

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

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

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

CATEGORIES OF DOMESTIC VIOLENCE:

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

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

LAWS RELATED TO DOMESTIC VIOLENCE IN INDIA:

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

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

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

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

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

  • Need for strict criminal laws to regulate Domestic Violence:

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

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

DOMESTIC VIOLENCE AGAINST MEN:

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

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

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

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

Conclusion:

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

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

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


[1] Article on Domestic Violence: Author

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

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

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

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

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

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

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

[5]Youtube video on Domestic violence

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

Editor: Kanishka VaishSenior Editor, LexLife India

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

Reading time : 8 minutes

Abstract

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

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

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

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Entry 33 of the Concurrent List reads as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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


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

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

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

[4] (1996) 3 SCC 709.

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

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

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

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

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

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

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

[12] The Constitution of India, art 252.

[13] The Constitution of India, art 253.

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

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

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

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

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

[19] (2002) 9 SCC 232.

[20] (2007) 6 SCC 236.

[21] Ibid.

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

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

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

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

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

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

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

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

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

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

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

[33] Supra note 19.

[34] AIR 1953 SC 375.

[35] AIR 1959 SC 544.

[36] (1955) 2 SC 781.

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

[38] Supra note 35.

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

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

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

[42] (1973) 4 SCC 225.

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

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

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

Author: Nikunj Agarwal, Symbiosis Law School, Pune

Editor: Kanishka VaishSenior Editor, LexLife India

NEET PG 2021 ISSUE AND WHY DOCTORS ARE PROTESTING?

Reading time : 8 minutes

INTRODUCTION.

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

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

NEET BACKGROUND.

The entire issue starts from the NEET PG counselling delay.

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

WHY ARE RESIDENT DOCTORS PARTICIPATING IN THESE PROTESTS?

WHO ARE THESE RESIDENT DOCTORS?

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

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

DELAY IN NEET-PG COUNSELLING 2021.

NEET-PG EXAM

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

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

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

Quotas in NEET-PG Counselling:

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

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

ALL INDIA QUOTA (AIO) SCHEME:

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

So far, how has the reservation policy been implemented?

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

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

What has changed now?

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

BIBLIOGRAPHY

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

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

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

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

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

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


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

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

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

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

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

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

Author: MOHIT SHARMA, SYMBIOSIS INTERNATIONAL UNIVERSITY

Editor: Kanishka VaishSenior Editor, LexLife India

PLEA BARGAINING

Reading time : 6 minutes

Origin and History

In India Law Plea Bargaining is define in Chapter XXI-A of CrPC. From section (265A-265L) it was inserted into the Criminal procedure code (CrPC) vide the criminal law (amendment) act 2005 with the effect from 5th July 2006.

The concept of Plea bargaining was taken from the USA and it is known as “Charge Bargaining”. It is an important mechanism it reduces the burden on the courts we all know Indian courts are overcrowded (21 judges/million people)[1] with under-trial prisoners.  Plea bargaining is Latin maxim Nolo Contendere which means “I do not contend”. It is an agreement between the prosecution and defense side that if the accused pleads guilty (instead of pleading not guilty) to the crime he is charged with, his sentence will be reduced.

To trace the history of Plea bargaining in USA reference can be made to Boykin v. Alabama, 395 U.S. 238 (1969)[2]. Even in India if we look towards the history of Plea bargaining in judgement of  Kasambhai Abdul Rehman Bhai Sheikhv. State of Gujarat 1980[3] in which it was held that “the practice of plea bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice”.  State of UP v.Chandrika[4] where the court held that “Mere acceptance or admission of guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty, the sentence should be reduced”. Plea bargaining was firstly recommended by the 154th report of law commission.

Meaning

Plea bargaining is a type of pre-trial negotiation in which the accused agrees to plead guilty. It is not available for all types of crimes; for example, after committing heinous crimes or crimes punishable by death or life imprisonment, a person cannot claim plea bargaining.

Criminal Procedure code and Plea Bargaining

Chapter XXI-A consisting of sections 265-A TO 265-L talks about plea bargaining. Plea bargaining can be use in the case of offenses other than the offenses for which the punishment is more than 7 years. The request of plea bargaining can be initiated only at the stage of cognizance taken by the court. Offences involving socio-economic conditions of the country or offences against women and children below 14 years of age are excluded from the pure view of plea bargaining[5].

Plea bargaining is allowed in the following cases-

  1. In those offences whose punishment is below 7years.
  2. In those offences which are not against women and children below 14 years of age.
  3. In the offences which doesn’t effect the social-economic condition of the country.
  4. Who is not a habitual offendor.

Provisions

S.265-A – Application of the chapter

S. 265A discusses the application of this chapter and states that it only applies to offences in which the punishment is not more than 7 years and where the offence is not against women and children where either-

1. The officer in charge of the police station has forwarded a report under S.173 stating that an offence punishable by imprisonment for less than seven years appears to have been committed. OR

2. After examining the complainant and witnesses and under S.200 of the CrPC (Examination of Complainant), a magistrate has taken cognizance of an offence punishable with less than seven years imprisonment and has issued the process mentioned in S.204 of the CrPC (Issue of Process).

The section also specifies that the Central Government will decide on offenses that have an impact on the country’s socio-economic situation. For the time being, this list includes

  • Dowry Prohibition Act, 1961.
  • The Commission of Sati Prevention Act, 1987.
  • The Indecent Representation of Women (Prohibition) Act, 1986
  • The Immoral Traffic (Prevention) Act, 1956.
  • The Protection of Women from Domestic Violence Act, 2005
  • The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992.
  • Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955).
  • Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955)
  • Offences concerning animals that find a place in Schedule I and Part II of the Schedule II as well as offences related to altering of boundaries of protected areas under the Wildlife (Protection) Act, 1972.
  • Offences mentioned in the Protection of Civil Rights Act, 1955.
  • Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
  • Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.
  • Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995.
  • The Army Act, 1950; The Air Force Act, 1950 and The Navy Act, 1957.
  • The Cinematograph Act, 1952
  • The Explosives Act, 1884.
  • The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

S.265-B – Application for plea bargaining

On the application for plea bargaining, the court will ensure that the application has been filed by the accused voluntarily. The court may require all the parties (public prosecutor, complainant, accused) to appear in court to work out a mutually satisfactory disposition of the case. It may include compensation and other expenses of the trial given by the accused to victim.

If the court finds that the application is filed by accused in involuntarily or he has been previously convicted by the court it shall proceed further in accordance with the provisions of the code from the stage of such application has been filed under sub-section (1). The procedure laid down in this chapter has been held to be mandatory[6].

The code enacts guidelines for mutually satisfactory disposition in sections 265-C and 265-D of CrPC.

S.256- D – Report of the mutually satisfactory disposition to be submitted before the court

Under section 256-D the court shall make the report of mutual satisfactory disposition (whether it is worked out or not) which shall be signed by the presiding officer of the court and by the parties who participated in it.

S.256-E – Disposal of case

If under section 256-D the disposition of the case has been worked out the court shall dispose of the case in following manner-

  1. The court shall award compensation to the victim and release the accused under-:
    1. On probation good conduct
    1. Admonition under section 360
    1. Or deal with the accused under probation of offender act or any law for time being in force.
  2. In last 2 points {1-(b),(c)}  it is the court may released the accused on probation or under any other law, then court shall sentence the accused but if there is no minimum punishment described in the offence then the court will sentence one-fourth punishment provided fir such offence or if the minimum punishment is provided then the court will sentence half of the minimum punishment.

S.265-F – Judgement of the court

The court shall deliver the judgment in open court and shall be signed by presiding officer of the court.

S.256-G – Finality of Judgement

This provision talks about that no appeal shall lie against such judgement but under article 136 (SLP) or writ petition under article 226 or 227 can be filed.

S.256-H – Power of the court in Plea Bargaining

This provision talks about the powers of the court in plea bargaining. Power in respect of bail, trial of offense, and other matters relating to disposal of the case.

S.256-I – Period of detention undergone by the accused to be set off against the sentence of imprisonment.

The provisions given under section 428 shall apply for setting off the period of detention under gone by accused for the sentence given to accused under this section.

S.256-J – Savings

It is a saving clause which talks about the provisions of the chapter that will take effect notwithstanding anything in the Code that is inconsistent with them, and nothing in the Code shall be construed to contain the meaning of any provision of chapter XXI-A.

S.256-K – Statements of accused not to be used

The statement or facts which is given by accused under S256.B shall not be used for any purpose except for the purpose of this chapter.

S.256-L – Non- application of the chapter

This provision makes it clear that this chapter will not pe apply to any juvenile or child as defined in section 2(k) of juvenile justice act,2000.

Types of Plea bargaining

There are 3 types of plea bargaining

  1. Charge bargaining
    1. Sentence bargaining
      1. Fact bargaining
  1. Charge bargaining

This is the most common type of plea bargaining which is practiced in Indian courts. In this the accused pleads guilty in consideration for the dismissal of greater charge. For example- pleading for theft for dropping of the charges of robbery.

  • Sentence bargaining

In this type of bargaining the accused pleads guilty and request for lesser sentence or lighter sentence for the offence he committed.

  • Fact bargaining

This is not commonly used in courts because it is thought to be in violation of the Criminal Justice System. When a defendant agrees to stipulate to certain facts in order to prevent the introduction of other facts into evidence, this is known as a plea bargain.

Advantages and dis-advantages of Plea bargaining

Advantages -:

  • Lighter sentence for crime
  • Reduced charges
  • Fast disposal of case

Dis-advantages -:

  • Chance of coercion
  • Chance of corruption

Demerits of the provision

The very purpose of introducing plea bargaining in India is fast disposal of case. Section 265-A excludes a great number of provisions and statutes from its pure view. Even when it comes to the Central Government’s power to decide on offences that affect the country’s socioeconomic conditions, the Act only contains an arbitrary one-liner with no guidelines as to how such a decision should be made.

Moreover, Section 265-B (4) only states that the parties must reach a mutually satisfactory resolution, but no timeline is given, which is a significant flaw in the design given that the whole point of the amendment was to bring speedy justice and quick case resolution.

Furthermore, while courts have been charged with ensuring transparency in participatory meetings in order to reach a mutually satisfactory disposition, no details on how they will do so have been provided.

Short overview of section / Conclusion

The “plea bargaining” method of resolving cases is an alternative to dealing with the massive backlog of criminal cases. It is truly a measure and remedy, and because it has been enacted into law, it has also added new dimensions to the realm of law reforms in the judiciary. Plea-bargaining refers to pre-trial negotiations between the defendant and the prosecution in which the defendant agrees to plead guilty in exchange for certain concessions from the prosecution. If an accused charged with one of the crimes listed in the preceding section wishes to take advantage of the benefit or concession of plea bargaining, he or she must file an application in the court where the crime is being tried. A brief description of the case to which the application is made must be included the application is filed, along with the crime to which the case relates, and it shall be accompanied by an affidavit signed by the defendant, stating that he has voluntarily preferred, and that he has never been found guilty by a court before. He had been charged with the same crime in that case.

The legislature has established guidelines to ensure that the accused’s Plea bargaining process results in genuine terms of settlement on the basis of which the accused may benefit from plea bargaining. The Court has the responsibility to ensure that the parties are voluntarily participating in the process of reaching a satisfactory resolution of the case. If the victim or the accused so desires, they may seek the assistance of their respective pleaders in settling the case. if a mutually satisfaction report has been worked out between the parties; a report on it must be submitted to the court. Court. The presiding officer of the Court, as well as all parties involved, must sign the report.who attended the meeting and who took part in it If no such agreement has been reached, the situation will be handled as follows:

The court must take note of this observation and continue the case from this point forward.when a plea bargaining application was submitted.

The accused is protected from self-incrimination under this section. Any statement made by the accused in his plea bargaining application cannot be used for any purpose other than plea bargaining.


[1] http://164.100.24.220/loksabhaquestions/annex/177/AU2133.pdf

[2] https://supreme.justia.com/cases/federal/us/395/238/

[3] https://indiankanoon.org/doc/455419/

[4] https://indiankanoon.org/doc/1460353/

[5] S.256-A. See, Lokesh v. state (2011)184 DLT 680.

[6] See, Rajesh Narayan Jaiswal v. State of Maharashtra, WP No.35 of 2011, order date 1-3-2012(Bom).

Author: Kartikeya Misra, JIMS Greater Noida

Editor: Kanishka VaishSenior Editor, LexLife India

MEDIA TRIALS IN INDIA- A QUESTION OF CONSTITUTIONALITY UNDER INDIAN LAW?

Reading time : 6 minutes

Introduction

The role of the media in the functioning of a democratic system is vital. The existence of media is critical because it keeps political powers in check and ensures that they are not abused. It’s important to remember that the right to freedom of speech and expression includes the ability to freely publish and distribute one’s ideas, opinions, and other viewpoints. However, just as Freedom of Expression is not absolute, the press’s freedom is not as well. Article 19(2) places reasonable constraints on freedom of expression. Such liberty entails a certain level of accountability. When the media declares a person guilty by taking sides before the court begins the trial, it calls into question the media’s ethics and professionalism. The media focuses on the accused’s personal life and character, which often has nothing to do with the legal investigation of the case. The creation of widespread guilt on the accused, independent of the court’s ruling, and the impact on the accused person’s reputation by television coverage are both examples of trial by media. This behaviour has posed a serious threat to the legal system, highlighting the critical importance of “responsible media.”

I. What is Media Trial?

The term “trial” refers to a legal procedure that is carried out by the courts. The media trial is unquestionably an undue impediment to the administration of justice. Before diving into the problem of the justifiability of a media trial, it’s important to first clarify what a “trial by media” entails. The right to a fair trial is an essential component of any judicial system. India is a place where everyone has an insatiable need to learn about the exciting and high-profile incidents. People begin to gather information in order to build a case in their minds, while the media, by releasing their own versions of facts in the form of newspapers, news websites, and news channels, quench the public’s appetite for exciting cases. Investigative journalism, which is legal in India, is the term for this type of reporting. Trial by media or media trial demonstrates the power of influence and revolutionising the masses in shaping perceptions against a guilty or innocent mind. The media trial is more than just a legal matter. It’s a political issue, as well.

On the one hand, it swerves the legal system. On the other hand, it diverts the public’s attention away from critical issues such as economic crises, unemployment, and growing unfreedom. Distraction ministries are always present in authoritarian regimes, and they reveal themselves through the media they hire. Continual vigilance is required in a democracy.

The fundamental Right to freedom of Speech and Expression and the Right to Privacy should be balanced. The emergence of media trials has harmed the right to privacy and created an imbalance between the rights of freedom of speech and expression and privacy. Through television and newspaper coverage on a person’s reputation, the media trial creates a public perception of guilt or innocence before a Court of Law announces its judgement. The media trials were created to show the public the truth about situations, however they ended up interfering with the justice delivery system. The concept of a media trial has emerged when the media uses its right to freedom of speech and expression under Article 19(1)(a)[1] to reach out to the public, critique a topic, and, on occasion, pre-judge a case, which could amount to Defamation or Contempt of Court. In the same way that the media essentially convicted the accused in the Aarushi Murder case and Sushant Singh Rajput case.

II. Are Media Trials Fair in India?

Litigation isn’t always about getting to the bottom of a problem. It’s a zero-sum game, according to philosopher Charles Taylor, with the law stating that either A or B is correct. The tug-of-war between two separate ideals, the free trial and the free press, both of which the general public is invested in, has always given birth to a specific kind of dilemma in media trials. In any country, press freedom is an important aspect of democracy. This is the sort of rationale that investigative journalism receives.

However, the right to a fair trial is a fundamental right that is guaranteed to all accused and victims, regardless of their status, and is thus regarded as a fundamental tenant of justice. It ignores the many layers of truth and the complexities of events, topics, and people. Terry Eagleton, a British Marxist, put it into perspective: The line between reality and fiction is blurred in courtrooms, just as it is in novels. The jury decides not on the facts themselves, but on competing versions of them. When a trial by the court is already challenging in the adversarial justice system, a media trial adds to the mix. Hate campaigns and false allegations  have a huge impact on the legal system.[2] They also pollute the nation’s intellectual and cultural environment. Because they operate only on this concept, the media’s trial may be as fair as everything is fair in love and war. Because the public views the media as a trustworthy source of information, the media can operate as a public court deciding the perpetrator before the proceedings begin. By continuously reporting about a person who is convicted in a trial, the media compels the public to form an opinion about that individual as an accused, resulting in the accused’s guilt being established before the trial even begins. As a result, the media trial is not as fair as it could be because they have no capacity to intervene and push the public to form an opinion against an individual. By conducting a pre-trial investigation, the media is interfering with the judiciary’s system and mechanism, which is prohibited by law.  Everything in this country has a limit to it, whether it’s a right or a freedom, and the freedom of speech and expression granted by Article 19(1)(a) of the Indian Constitution has been limited by some reasonable measures under Article 19 (2)[3] of the same act. Clause 2 of the article states that the state has the power to make any law restricting freedom of speech and expression, and that no one is allowed to use this right against the nation’s sovereignty, integrity, and security, or against any friendly nation with other states, or against any public order, defamation, or incitement to an offence, decency, or morality in relation to the nation’s sovereignty, integrity, and security. As per the above-mentioned arguments it would clearly seem that media trials aren’t fair as they accuse or acquit a person of a crime long barre or after the court of law delivers its judgement.

III. Media Trials vs Contempt of Court

The constitution of India has provided for reasonable restrictions under Article 19(2) in the interests of the sovereignty, security and integrity and public order of the nation. These legitimate constraints were imposed by the Constitution to protect other essential rights over one’s freedom. The preamble of the constitution also states that everyone has the right to a decent life and a fair trial, but the media is preoccupied with their own trial; they are unconcerned about the perspective or opinion that their actions will create, or the grievances that the person against whom they have used their power may face. Borders are sometimes crossed, and rules are broken between free speech and a fair trial, resulting in severe effects for individuals and institutions. Tele-terror should not be allowed to interfere with a legally binding trial. This digital violence is a breach of peace. In a liberal and positive sense, the media is an institutionalised anarchy. Contempt of court clearly applies to the media trial. As a result, it needs to be criminalised. The right to a fair trial must be unaffected by news headlines or newspaper articles. What happens, though, when the major news networks choose to disregard the ethical code? Then resolve to damage the accused’s career before his guilt is established in court? They present him as a villain at prime time when the majority of people are seated in front of their televisions. It is vital to remember that the concept of democracy is based on fairness and transparency, and that such a media act puts the concept of democracy in jeopardy. As a result, any attempt by one of them to undermine the other pillars of democracy must be viewed with suspicion[4]. When a conflict emerges between the free trial of the accused and the free press, a thug of war is generally the result. Investigative journalism is justified by the fact that freedom of the press is an integral aspect of any country’s democracy and cannot be taken away. At the same time, an accused person’s basic right to a fair trial and a trial free of any outside influence is acknowledged as a fundamental tenant of justice.

Sec. 2 of the Contempt of Court Act 1972[5] provides a remedy for such an act of the media and pres. The Supreme Court in M.P. Lohia V. State of West Bengal[6] harshly condemned the media for interfering with the administration of justice by publishing one-sided articles on the merits of pending cases. The Supreme Court, in Saibal Kumar V. BK. Sen,[7] attempted to discourage the practise of media trials, stating, “No doubt, it would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and publish the details of the investigation.” This is because newspaper trials must be avoided when a trial before one of the country’s regular tribunals is underway. Contempt of court functions on a different plane, according to this viewpoint. The court’s dignity and the fairness of the trial are the most important factors. As a result, once a matter reaches the courtroom, no one is permitted to publish his or her own version of events. Contempt of court occurs when this rule is broken. The rule developed through the courts and is supplemented by particular statutory provisions that restrict the disclosure of even certain items that occur during the course of a trial. The question now is whether this legal approach is incompatible with the constitutionally protected right to free speech and expression. In this regard, it is worth noting that Article 19(2) of the Constitution expressly saves the use of the law of contempt of court. Whether the inquiry prejudices the accused or the prosecution, such behaviour on the part of a newspaper tends to obstruct the process of justice.

IV. Media Trials and the Right to a Fair Trial

The health of a fair trial is harmed by pre-trial publicity. Due to the media trials, lawyers have been encouraged not to handle cases where the public perceives particular individuals to be guilty without proof, causing the accused to relinquish his right to an attorney. However, it deters advocates from taking on such matters in the first place. The role of the media in the Jessica lal murder case has once again been highlighted. The idea of a media trial isn’t entirely new. In the Priyadarsini Mattoo case, as well as many other high-profile cases, the role of the media was a point of contention. Several times, the media has conducted  the accused’s trial and delivering the judgement before the court. For example, when senior counsel Ram Jethmalani defended Manu Sharma in Jessica Lal’s[8] case, one of the senior editors of a TV news channel declared it to be a defence of the indefensible, implying that the accused was already guilty of the crime for which he had not yet been proven. The media’s presumption certainly violates the accused’s right to a fair trial and a competent attorney. [9]

The court recently held in Dr. Shashi Tharoor v. Arnab Goswami and Anr[10] that the media’s function and right to gather and convey information to the public, as well as to comment on the administration of justice, including cases before, during, and after trial, without violating the presumption of innocence, is the function and right of the media. In truth, the presumption of innocence and the right to a fair trial are central to criminal law and are essential elements of a democratic, rule-of-law based society. Journalists are free to investigate, but they are not permitted to convict somebody, prejudge the problem, or affect the trial. Every fair trial aims to provide the accused with the best possible opportunity to prove his innocence. Conducting a fair trial is advantageous to both the accused and the general public. A conviction obtained as a consequence of a sham trial is incompatible with the concept of justice.

V. Media Trials and the stance of the Indian Courts

The media trials also put pressure on lawyers to take up cases in which the public finds a person guilty and forces the other party to relinquish his or her right to an attorney. It also deters lawyers from taking on the accused’s case. The accused loses both their right to a fair trial and their right to a skilled lawyer in unfair media trials. The media trials put pressure on the lawyers who defend the accused, compelling them to go to trial without a lawyer. The principle of natural justice is violated in this manner. The right of the accused to hire a lawyer cannot be taken away from him. In subjudice situations, Indian courts have the power to issue a pre-publication or pre-broadcasting injunction or a prior restraint order. Before ordering a deferral of publication, the two-pronged test of necessity and proportionality must be met. Furthermore, the injunction order shall only be issued if no other reasonable procedures or measures would be able to prevent the risk. The defendants must send the plaintiff a written notice, via electronic means, before airing any storey involving the plaintiff, requesting his version. If the plaintiff refuses to speak or does not respond within a reasonable period of time, he will not be forced to do so, and the storey will be broadcast with the information that the plaintiff has declined to speak to defend himself.[11]

The Press Council of India was established as a self-governing statutory body. Its overall goal was to protect press freedom. A newspaper or news agency could be warned, reprimanded, or censured by the Council for professional misconduct, a breach of journalistic ethics, or an offence against the public interest. It could also be used to criticise the government or other organisations for interfering with journalistic freedom. While conducting an inquiry under the Press Council Act, it has the same powers as a civil court when trying a case under the Code of Civil Procedure. As a result, the Press Council has taken on the function of a self-regulatory authority for newspapers. In addition to investigating complaints presented before it, the Council has the authority to consider concerns on its own. If it deems it necessary for the discharge of its tasks, it has the authority to make observations against authorities, including the government. As a result, the Press Council is a toothless statutory, quasi-judicial, and self-regulatory entity (with power to impose legal penalties). [12]

As such the freedom of the press is not explicitly mentioned in the Indian Constitution. However, the rights connected to broadcasting are covered by speech and expression. The verdict in Maneka Gandhi’s case supports this point of view. It is held in this case that it is incorrect to believe that a right that is specifically mentioned by name can never be a fundamental right or have the same basic nature and character as the named fundamental right, and that exercising such right is nothing more than an instance of exercising the named fundamental right. The court concluded that shutting down this clearing house would be the death knell for democracy.[13]

VI. Way Forward

As per the above-mentioned arguments the media trials have had a negative rather than a good influence. Courts must govern the media correctly. While a government-controlled media is bad for democracy, the consequences and effects of unaccounted publications are even worse, not only for the person’s reputation but also for the court’s decision. As a result, media trials have only aided people in a few situations, but not all of them, necessitating the imposition of limits. Many people refer to media as the “eyes and ears” of the world. It is our society’s backbone. And a responsible media is supposed to take into account the public’s trust in it, as well as the public’s confidence and faith in the news it publishes.

In fact, the existence of a responsible media is required. There can be no total freedom, no matter how sacred. This holds true for freedom of the press as well. The press is not only bound by the laws of the state, such as those prohibiting contempt and libel, but it is also accountable to the society it serves. In order to fulfil its mission, it must take certain duties. Individuals have differing perspectives on press freedom or media freedom. However, because the media’s rights are not totally unrestricted, some limitations or boundaries must be placed on their freedom. Except for a few exceptions, the media has a harmful rather than a beneficial impact. The media and its activities should be properly regulated by the courts. In the course of the court’s proceedings, the media should not be given too much leeway. The battle between free media and free trial has sparked a lot of intense scrutiny and emotions. To govern the media, those media outlets that break the basic code of behaviour should be subjected to contempt proceedings. The supreme court has agreed to employ contempt powers against media outlets that violate the basic rule of conduct, stating that the media cannot be permitted to prejudgment the case trial on its own. TRP ratings battle is becoming increasingly severe and ruthless, resulting in aggressive journalism. We are currently witnessing the various roles of media that have become self-acquired in the form of ‘trial by media.’ The government must act quickly to avoid citizens’ rights from being eroded as a result of media trials. In conclusion if the media strives to work within the realm of professional ethics and seeks to ensure that the right to broadcast and distribution is not violated by encroaching upon other citizens constitutional rights, then the need for the question of constitutionality of the media would not arise in the future.


[1] The Constitution of India,art.19(1)(a)

[2] Supreme Court Of India On Trial By Media – Litigation, Mediation & Arbitration – India, avaliable at : https://www.mondaq.com/india/trials-appeals-compensation/1006762/supreme-court-of-india-on-trial-by-media (last visited Feb 20, 2022).

[3] Constitution of India, art.19(2)

[4] Media trials in India: An unwritten carve-out to the right to privacy?, avaliable at : https://iapp.org/news/a/media-trials-in-india-an-unwritten-carve-out-to-the-right-to-privacy/ (last visited Feb 20, 2022).

[5] Contempt Court of Act 1972,s.2

[6] M.P. Lohia vs West Bengal (2005) 2 SCC 86

[7] Saibal Kumar Gupta v. B. K. Sen, (1961) AIR 1961 SC 633

[8]Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi)} (2010) 6 SCC 1

[9] Hampering Judicial Independence: Media Trials in India, Its History and a Fresh Perspective – Academike, avaliable at : https://www.lawctopus.com/academike/media-trials-in-india-history/ (last visited Feb 20, 2022).

[10] CS(OS)–253/2017. Case: DR. SHASHI THAROOR Vs. ARNAB GOSWAMI AND ANR. High Court of Delhi (India) – Case Law – VLEX 698096969, avaliable at :https://vlex.in/vid/dr-shashi-tharoor-vs-698096969 (last visited Feb 20, 2022).

[11] Trial By Media – A Threat to Our Judicial System?,avaliable at : https://www.legalserviceindia.com/legal/article-4292-trial-by-media-a-threat-to-our-judicial-system-.html (last visited Feb 20, 2022).

[12] Constitutionality of Media Trials in India – DMAadvocates, avaliable at : https://dmaadvocates.com/constitutionality-of-media-trials-in-india/ (last visited Feb 20, 2022).

[13] Id.

Author: Arnold Stanley, St. Joseph’s College of Law

Editor: Kanishka VaishSenior Editor, LexLife India

FROM ILLEGALISING TO TAXING DIGITAL ASSETS

Reading time : 6 minutes

Income from digital property will be taxed at 30%, stated Union Finance Minister Nirmala Sitharaman whilst supplying the Budget for Financial Year 23 in Parliament on February 1. One percentage TDS (tax deducted at source) might be deducted on those investments. The experts, however, delivered that the tax regime approach the authorities has legalized cryptocurrency as an asset.

The authorities have introduced long-pending clarifications on cryptocurrencies, addressing issues inclusive of components referring to their popularity, security, and taxation. “Clarity on earnings tax is a large fantastic step for the crypto industry. This additionally gets rid of any worry humans had approximately coming near ban. We now recognize that the authorities are actually inching toward rules on this sector,” stated Nischal Shetty, founding father of crypto change platform WazirX. The advent of a tax coverage framework for income from cryptocurrency becomes one of the principal issues, given the paradox over the popularity of the virtual foreign money and associated transactions. Sathvik Vishwanath, co-founder and CEO of crypto organization Unocoin, stated, “The statement has introduced plenty of readability on taxation, and there can be no extra confusion on the way to tax the profits from crypto. We suppose this tax can be relevant to each buying and selling clients and exchanges incomes from cryptocurrencies.” However, the 1% TDS may also effect buying and selling volumes in India as many people do day buying and selling as well. A 1% TDS for each transaction can be extra for such trades and as a result can also additionally effect volumes,” he added. However, he stated that hoepfully the authorities will deal with cryptocurrency as an asset so that “it falls below the ambit of long-time period or short-time period capital gains. But as of now there appears to be a unmarried tax rate.

Money is a currency just when it is given by the national bank, regardless of whether it is a crypto. Anything outside of that, what we allude freely as cryptographic forms of money, are not monetary standards, the money serve said while eliminating any confusion around digital currencies at her post-Budget question and answer session. “We are not burdening the money (advanced rupee) that is yet to be given by RBI. All that wins outside of it, for the sake of computerized, are resources being made by people. Furthermore on the off chance that benefits are being made by executing those resources, we will charge them at 30%.” She said government will keep a watch on the crypto world by forcing a 1% duty deducted at source (TDS) on each exchange.

Amitabh Kant, CEO, NITI Aayog, gave greater clearness and said government isn’t restricting cryptos. “When you begin burdening, it implies you will have an administrative instrument, regardless of whether some viewpoint is managed by RBI or SEBI.” The Budget gives outright lucidity. Government has not prohibited cryptos. It has, truth be told, treated crypto as a resource class, characterized as a virtual computerized resource

The crypto resource market in India is valued at $15 billion, says a report by CREBACO, an examination, rating and insight firm centered on block chain and cryptographic forms of money. The report says the Indian crypto local area might have north of 6,000,000 individuals or 0.5% of the nation’s populace. Focus calls the numbers profoundly misrepresented, yet recognizes that exchanges have been rising. “There has been an amazing expansion in exchanges in virtual advanced resources. The size and recurrence of these exchanges have made it basic to accommodate a particular duty system. I suggest that any pay from move of any virtual advanced resource will be charged at the pace of 30%,” she said in her Budget discourse. This will be material from April 1, 2023, that is to say, for money procured from April 1, 2022, to March 31, 2023.

“Somewhat, I feel it’s an automatic response by government to show that they are accomplishing something here,” says Badri Narayanan, chief accomplice, Lakshmikumaran and Sridharan Attorneys. “I accept a portion of these things will be explained or revised. Some assessment specialists are discontent with the high duty rate. These are the most significant level of expenses conceivable on digital currencies,” says Narayanan. Others concur. “Tax assessment from benefits at 30% may not get equivalent appreciation from all partners,” says Jay Hao, CEO of OKX.com, the world’s second-biggest crypto trade. It might deter financial backers, he says.

Ravi S. Raghavan, partner, Tax and Private Client Group, Majmudar& Partners, says the vendor ought to withhold tax even if there may be no coins involved. “As such, compliance responsibilities are bulky and, to keep away from the excessive charge of 30% tax and 1% withholding tax responsibilities, traders might also additionally select alternatives like listed/unlisted securities, belongings and gold bonds. Investors becomes cautious,” he adds. Some specialists increase the factor approximately NFTs and different enjoyment belongings being exclusive from crypto tokens. “Crypto is a traceable asset and NFTs or gaming digital items are enjoyment belongings or collectible belongings like virtual tune and virtual art,” says Keyur Patel, chairman & co-Founder, GuardianLink, and co-Founder, BeyondLife.club. Patel says NFTs are non-taxable international and it`s vital to recognize that a crypto token isn’t like a virtual NFT token in order that industries which includes gaming, interactive immersive museums and different edutainment NFT frameworks can succeed. “There can also be sensible troubles in complying with tax provisions on transactions wherein the identification of the customer is unknown,” says Harry Parikh, partner, M&A tax and regulatory services, BDO India.

However, others argue that the TDS will, in fact, assist authorities get extra visibility approximately transactions on exchanges and, within side the lengthy term, inspire extra buyers to sign up for this space. With growing consciousness approximately how shady factors use crypto belongings to launder money, TDS can offer facts for tracking transactions, they say. “I do now no longer assume that 1% is a prohibitive amount. It will carry overseas funding to India. In fact, uncertainty and worries approximately legal, regulatory, and taxation reputation reason extra issue and volatility. Once those are addressed to an affordable extent, we can be on our manner to normalizing and legalizing crypto investments,” says Pratik Gauri, CEO & founder, 5ire, a block chain ecosystem.

New tax assessment rules mean a bigger number of individuals, particularly corporates, can now take an interest in the crypto market, says Nischal Shetty, originator, WazirX. Most likely, a momentary market fall can be anticipated, however at that point, pretty much nothing remains to be stressed over as from now into the foreseeable future, we will observe a few prepared and genuine financial backers stepping in, he says. “Companies have remained away basically because of absence of administrative lucidity. We could see a flood in corporate interest from areas which will profit from block chain innovation,” says Amit Nayak, CEO and prime supporter of Sahicoin. We likewise anticipate many banks and monetary accomplices supporting trades, says Shetty of WazirX. Opportunity has arrived for complex financial backers to get hazard and access potential open doors, in India and worldwide, in this arising resource class, says Arihant Bardia, CIO, and Valtrust Capital. Dhaval Kapadia, chief, oversaw portfolios, Morningstar Investment Advisers India, concurs. “In that sense, the higher tax assessment is a positive move to check/control retail interest in the crypto portion,” he says.

The proposed phase a hundred and fifteen BBH does now no longer give an explanation for the connotations of the term “price of acquisition” for a VDA. Necessarily, it approaches the price at which the VDA become bought with the aid of using the investor. However, for a miner, the virtual asset might be a self-generated asset having no price of acquisition, whether or not costs incurred in putting in the mining device and different incidental costs have to be construed as “price of acquisition” – handiest time will tell. In the absence of a selected definition of price of acquisition, there might be extra ambiguity than readability for figuring out tax implications within side the case of a transaction concerning VDA. Besides, valuation of such property for ascertaining earnings chargeable to tax within side the palms of a recipient of a present can also be hard in view of the risky nature of digital property and the absence of valuation guidelines. Furthermore, the proposed tax and the legal responsibility to withhold taxes are sought to be invoked at an prevalence of “switch” of VDA. Under the Income Tax Act, the term “switch” consists of a sale, alternate or relinquishment of property or the extinguishment of any rights therein. The proposed provisions in appreciate of withholding of tax additionally explicitly envisage occasions of barter or alternate wherein attention is discharged both partially or entirely in kind. Therefore, the regulation indicates that withholding tax necessities might be relevant even in a scenario wherein cryptos are used to buy a commodity or whilst one crypto is traded for some other. In a standard scenario, the legal responsibility to withhold tax at supply at one consistent with cent even as making charge of the attention might be at the purchaser of the VDA. However, wherein the purchaser is a non-resident, how might the tax government hint and tune the purchaser for non-compliance. The provisions of the proposed phase a hundred and fifteen BBH additionally comprise regulations in appreciate of placing-off of losses from the switch of a digital virtual asset. The wording of the provisions means that the restriction of placing off of losses bobbing up from the switch of a VDA is handiest towards earnings computed beneath every other provisions of the Income Tax Act. Hence, set-off of losses bobbing up from one magnificence of VDA towards profits from some other magnificence of VDA have to be allowed in a selected monetary year, however, readability is awaited, for the reason that Income Tax Authorities may also contend that any loss from the switch of a VDA might be a sunk price and tax legal responsibility might be decided on each earnings made on switch of a VDA. In a case wherein an organization or start-up can pay a part of the remuneration as VDA, whether or not the equal will be taxable as salaries? Hong Kong, for instance, offers that VDA`s acquired as employment earnings have to be said at their marketplace price and concern to the equal salaries tax remedy as ordinary remuneration. With the cutting-edge legislation, this type of income within side the shape of VDA are maximum actually to be dealt with as a perquisite beneath phase 17 of the Act, however, readability might actually help.

Governments around the world have different views on crypto assets. Some countries like China have banned digital assets altogether. Meanwhile, countries like El Salvador have adopted new technology and made it legal tender. Countries that approve crypto assets either modify existing tax laws or enact separate legislation to address issues related to such assets. For example, Singapore’s Payment Services Act 2019 has established regulations to legalize cryptocurrencies and prevent illegal activities. From an income tax perspective, companies that buy and sell digital tokens are taxed on profits from digital token transactions. Therefore, no tax is levied on the profits resulting from the disposal of digital tokens held as a long-term investment. In contrast to India, Singapore gives VDA investment status. The United States and Canada also consider cryptocurrencies to be an investment. All income from these assets is taxable. The Canada Revenue Agency also has a system to track crypto investments and ensure accurate reporting of crypto investments and the resulting tax obligations. The UK imposes capital gains tax or income tax on cryptocurrency profits, depending on the type of transaction. Similarly, the Australian Government considers cryptocurrencies primarily as assets for capital gains tax purposes. On the other hand, in countries such as Germany and Portugal, the tax system for cryptocurrencies has been slightly relaxed. In Germany, cryptocurrencies are considered private assets with only personal income tax as capital gains tax if sold in the year of acquisition. In Portugal, crypto income is only taxable if it accrues from professional trading activity. Further, no tax is levied on the exchange of cryptocurrency for other currency which implies that buying or selling cryptocurrencies would not be subject to capital gain taxes or Value Added Tax (VAT). As discernible from past deliberations, India is likely to enact a standalone law to regularize digital assets by way of a “Crypto Bill”. Pertinently, no regulated entity will be able to deal with cryptocurrencies unless a Crypto Bill allows them to do so. Back in 2021 when China banned cryptocurrencies, there was a shift of investors to countries like Singapore and the US resulting in huge losses of crypto mining revenues. As crypto may render itself as future of currencies across the globe, well-calibrated clarifications would help in precluding any adverse impact on trading and investments in VDA in the country.

Players like MetaSpace, ZebPay, and others accept that this progression legitimizes digital money. Nonetheless, given the money secretary’s explanation that India won’t make crypto resources lawful delicate, others accept that it is ideal to sit tight and watch for now.

 “The public authority is by all accounts drawing nearer the crypto space with an exhaustive agreement, while remembering the P2P idea of crypto,” thinks Roshan Alam, Cofounder and CEO at GoSats. “While we anxiously sit tight for the crypto charge, we anticipate positive and well thought guidelines going on, which are unequivocally required for customer assurance. UPI and Aadhar are earth shattering and world-renowned money and administration drives. We need something very similar from India’s cryptographic guidelines, “he proceeds.

 Another player, Vikram Tanna, COO and Mzaalo, concurs that it is smarter to delay until the rollout starts keep it away from digital currency boycotts. We anticipate greater clearness in regards to the execution of these actions throughout the following not many days, “he remarked.

 Up until this point, just El Salvador has presented Bitcoin as government-issued money.

 This choice likewise incorporates the extra course of recording a crypto-based business expense form. This infers that there will be more work for these organizations. The crypto trade administrators in India are looking for more opportunities to prepare for this.

 According to one such player Vikram Subburaj, CEO, Giottus Crypto Exchange, “We anticipate the subtleties on what an available occasion is and what the limit for 1% TDS derivation is. We in all actuality do trust that the public authority will give the trades and different organizations a specific time-frame to empower the tech behind TDS derivation and accounting. Counterbalancing and convey sending misfortunes have functioned admirably in different nations however we are glad to see that thought is being given to all such occasions.

Digital belongings at the moment are withinside the maximum tax band. Furthermore, the bulk of stakeholders are in settlement approximately the truth that a 30 in keeping with cent tax charge is excessive. Tax experts reckon that people ought to turn out to be paying extra than 30 in keeping with cent in their crypto income in tax and different charges. “If you made a income of one hundred rupees, then which includes the 30 in keeping with cent tax bracket, plus surcharge and cess, the entire tax outgo may be round forty two rupees,” explains Amit Maheshwari, Partner at AKM Global, a tax and consulting company to Reuters. NFTs or non-fungible tokens are becoming more and more popular and growing exponentially. Chainalysis, a block chain data company, predicts that the NFT market will be valued at $ 41 billion by the end of 2021. Many celebrities have also adopted this technology and launched their own NFTs worth millions to billions of dollars. This means that virtual experiences purchased with all types of NFTs or Metaverses are taxable, as NFTs are grouped together with crypto as virtual assets of the same class. However, NFTs around the world will continue to be classified as tax-exempt assets. Keyur Patel, Co-Founder and Chairman of GuardianLink and BeyondLife.Club says that the government should allow the industries like gaming, Interactive Immersive museums and other edutainment NFT frameworks to succeed without having to shoulder a tax burden. He says that this asset class being treated differently creates an one-sided tax implication versus defining cryptos as Traceable Asset and NFTs or Gaming Virtual Goods as Entertainment / Collectible Assets. Like Digital Music or Digital Art. “It is version 1.0 of the framework. We understand that regulation is needed to control other elements of cryptography. NFTs are in the early stages and such taxation will eventually have to adapt to the growth of the evolving ecosystem,” he says. Since the NFT is still classified as a tax-exempt asset worldwide, Patel recommends that future changes by the government take into account the significant differences between crypto and NFT tokens. Further commenting on how the NFT space is affected by taxation, Patel said: Also, sales above a certain threshold of 1% should trigger tax withholding. This implies huge friction initially until the user base understands that all asset classed must be taxed for holistic economic growth. Initially, this will create a major roadblock for the investor community.” The new tax proposition will take effect from 1st April 2023, for the assessment year 202324. On the whole, the government`s stance on cryptos is now being perceived optimistically, with many forecasting that this decision will usher in more innovations and spur India`s economic and digital growth. However, given the nascent stage of this industry in India, the players are of the opinion that the centre should take a relook at its proposed tax structure for this industry and should reconsider its implementation as well.

Author: ANANYA PANDEY, SYMBIOSIS LAW SCHOOL, NOIDA.

Editor: Kanishka VaishSenior Editor, LexLife India

Medical Negligence – An analysis

Reading time : 6 minutes

Abstract

It is difficult to define carelessness categorically because there is no consensus on the subject; yet, it is a hotly debated topic in Tort law. This article discusses about medical negligence in detail with broadly signifying its essentials and duty of care and standard of care. The concept of Bolam test along with its evolution is also discussed. This article also throws light on the case of V P Shantha along with the relation of medical negligence with consumer protection act of 1986 with specific attention to the definition of “service”. This article addresses the relation of medical negligence with criminal and civil law.

Contents

  1. Introduction
  2. Medical negligence
  3. Bolam vs. Friern Hospital Management Committee (1957)
  4. Criminal Law and Medical Negligence
  5. Consumer Protection Act and Medical Negligence
  6. Civil Law and Medical Negligence
  7. Conclusions
  • Introduction

“When you have a lot of authority, you have to be prepared to take on a lot of responsibility”. In Indian tradition, doctors are ranked next to God Himself – “Vaidyo Narayano Harihi.” Doctors take the Hippocratic oath, in which they swear to treat patients to the best of their abilities, to protect a patient’s privacy, to convey the secrets of medicine to future generations, and so on.

Negligence is defined as a failure to exercise reasonable care as a result of which an injury occurs. Negligence precludes wrongdoing because the two are mutually exclusive. Except in circumstances where the law has imposed a duty of carefulness, carelessness is neither culpable nor a basis for legal culpability.

The medical profession is one segment of society where such a duty has been imposed in the strictest meaning. It is not enough for a medical professional to have acted in good faith to the best of their knowledge and belief. A medical professional is required to possess the necessary expertise and knowledge.[1]

  • Medical negligence

Medical negligence is a type of tort (civil wrong) that belongs to the larger category of professional negligence. In every situation, the question would be whether the medical practitioner had met the legal standard for due care. On the other hand, medical malpractice is more than just a caregiver’s negligence; it’s an intentional decision by the caregiver to offer and force a product, procedure, or investigation on a patient for monetary gain, either individually or for the institution.[2]

According to the case of Moni v. Kerala State, “Negligence in the context of medical personnel is failing to operate in accordance with the norms of reasonably competent medical men at the moment.” There may be one or more fully correct standards, and he is not negligent if he follows one of these proper standards.”[3] As a result, there are three essentials of negligence: 

  1. The existence of a duty to take care, which the doctor owes to the complainant;
  2. The failure to attain that standard of care, prescribed by the law, thereby committing the breach of such duty;
  3. Damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.[4]

Duty of Care

The term “duty” refers to a connection in which one party owes the other an obligation to exercise reasonable care for the benefit of the other. A doctor’s responsibilities to his patient are well defined. When someone declares oneself ready to provide medical advice and treatment, he implies that he possesses the necessary expertise and knowledge. When patients consult with such a person, they owe patients certain responsibilities.

  1. A responsibility to exercise caution when considering whether or not to pursue the matter.
  2. An obligation to use caution while determining what treatment to administer.
  3. A duty of care in the treatment’s administration.

Standard of Care

It is now a well-established legal notion that a medical practitioner must bring a reasonable level of expertise and understanding to his work and exercise a reasonable level of care (standard of care). The law does not demand the highest or the lowest level of care and competency, as determined by the facts in each situation.

The degree of care and competence that an “ordinary competent member of the profession who professes to have such skills would practise in the context in question” is referred to as a “reasonable degree of care and skill.”

The difference between the standard of care and the degree of care. The standard of care is steady and consistent and stays the same in all cases. It is necessary that the doctor’s actions be reasonable and do not have to adhere to the greatest or lowest degree of care feasible. The degree of care is a variable that varies depending on the situation. It’s a term that describes what constitutes reasonableness in a certain situation.

Negligence by Professionals

In Jacob Mathew vs the State of Punjab, the Supreme Court of India, in its verdict, stated that “Any task that necessitates the use of a special expertise would normally be accepted or undertaken only if the person possesses the necessary skill. Any rational man who enters a profession that needs a certain level of understanding to be considered a professional of that area implicitly ensures the person dealing with him that the competence he claims to possess will be handled with a reasonable degree of care and caution”.[5]

When evaluating the practice as applied, the standard of care is judged in light of the knowledge known at the time (of the occurrence) and not at the time of the trial. A simple lack of care, a lapse in judgment, or an accident is not evidence of medical professional negligence.

A doctor cannot be held accountable for negligence simply because a better alternative course or technique of treatment was also accessible or just because a more qualified doctor would not have decided to follow or resort to the accused’s practice or procedure. Every professional cannot claim to have the highest level of experience or skills in the field they work.

  • Bolam vs Friern Hospital Management Committee (1957)

It establishes the professional standard of care for a healthcare provider. It was about a patient who broke his bones while receiving electro-convulsive treatment. Mr Bolam sought compensation on the basis that his anaesthesia had been negligent because:

Mr Bolam claimed that his anaesthetic was negligent since the anaesthetist failed to deliver muscle relaxation before the procedure. During the process, Mr Bolam was not restrained. Doctors had not cautioned him about the dangers and risks he was about to face.

Mr Bolam’s claim was rejected. It was not common practice at the time to offer patients muscle relaxation. Some clinicians believe that giving a muscle relaxant or restraint to a patient could increase the chance of fracture. Furthermore, unless the patient particularly requested it, patients were not routinely informed of the minor hazards connected with ECT.

The team of doctors had followed standard medical procedures in this case. As a result, they were not careless in their application of electric shock therapy.[6]

Bolam Test

The Bolam test determines if a medical professional has violated their duty of care, potentially resulting in a clinical negligence. Any doctor, nurse, anesthesiologist, or other medical practitioner is required by law to offer a reasonable level of care while doing their job. This is referred to as a “duty of care.” Liability for negligence may emerge when a healthcare practitioner fails to uphold their duty of care. The Bolam test is the most common method for determining whether or not a professional duty has been breached[7].

Applying the Bolam test

A medical professional must establish that he behaved in a manner that a responsible body of medical experts in the same field would consider acceptable to meet the essentials of the Bolam test. The test is effectively a peer review of the doctor’s actions: if others would have responded similarly, the doctor is unlikely to have violated his duty of care.

It makes no difference whether or not other doctors would have given a different treatment. Given the intricacies of modern medicine, a dissenting group of doctors could, and probably would, do things differently. The critical point is that a group of professionals believe the doctor acted appropriately.

Test: A doctor is not negligent if he acts in conformity with a practice that a responsible body of medical men experienced in that particular profession has deemed proper.[8]

  • Criminal Law and Medical Negligence

Medical professionals in India are treated differently than ordinary people under Indian criminal law.

Section 304A of the Indian Penal Code of 1860 states that “whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both.”[9]

Similarly, S.336 of the Penal Code provides that it is illegal to risk the human life or personal safety of others by acting rashly or negligently. Three months in prison or a fine of Rs. 250, or both, is the penalty.[10]

S. 337 and 338 of the Indian Penal Code: make it illegal to inflict little or significant harm as a result of a hasty or irresponsible act. For simple harm, the penalty might be up to six months in prison or a fine of up to Rs. 500, or both. For causing grave harm, you could face a sentence of up to two years in prison or a fine of up to Rs. 1000, or both.[11]

In Dr Suresh Gupta vs Govt. of Delhi (2004), it was held that criminal prosecutions for medical malpractice were limited to cases of extreme carelessness. It was decided that a doctor cannot be held liable for every incident or fatality during medical treatment.[12] When a patient dies as a result of a mistake or an accident, there should be no criminal guilt associated. Even if inadvertence or a lack of proper care and caution resulted in civil liability, it would not be enough to hold him criminally accountable.

In Dr Anand R. Nerkar vs Smt Rahimbi Shaikh Madar, It was decided that gross carelessness must be proven and a prima facie case.[13]

  • Consumer Protection Act and Medical Negligence

“Section 2(42) of the Consumer Protection Act of 1986 defines the term “service” as services of any description which is made available to potential users and including but not limited to banking, financing, insurance, transportation, processing, electrical or other energy supply, telecommunications, boarding or lodging or both, home development, entertainment, and amusement or the furnishing of news or additional information, but does not include the rendering of any service free of charge or under a contract of personal service”.[14]

The government has repeatedly stated that the modification in the definition of healthcare will not preclude customers from contacting Consumer Forums in cases of medical malpractice or insufficiency in healthcare services.

The phrase “including, but not limited to” appears in Section 2(42) of the CPA 2019, and it is an inclusive clause. It expressly states that under section 2(42) of the CPA 2019, “healthcare” can still be included and interpreted. As a result, medical services may fall under the purview of Indian consumer law.

Indian Medical Association vs V.P. Shantha (1995)

The question was whether patients are customers under the Consumer Protection Act, and if so, could they sue for damages caused by the doctors, hospitals, or nursing home’s carelessness. Except for those that are given for free or on a service contract, all services are included. Medical practitioners are members of the medical profession and are subject to the disciplinary oversight of the Medical Council of India and/or State Medical Councils does not exempt their services from the Act’s scope.

Deficiency: The test is the level of medical care that a reasonable individual with similar skills and knowledge would use in the same situation. A medical practitioner does not need to be gifted in any way.

As a result, since the members of the Consumer Dispute Resolution Agencies lack medical knowledge and experience, this cannot be claimed.

When an insurance company pays for the policyholder’s consultation, diagnosis, and medical treatment under the terms of the policy, the insurer is considered a consumer under Section 291(d), and services given by the hospital or medical practitioner are considered “service” under Section 2(1). (o).

Similarly, where an employer pays for an employee’s medical treatment, the employer is considered a consumer under the Act.

The Customer Protection Act’s remedy is in addition to civil remedies, and it cannot be denied to a consumer solely because the facts are convoluted or the complainant’s claim is unreasonable.[15]

  • Civil Law and Medical Negligence

The position of negligence in civil law is crucial because it encompasses a wide range of issues. Even if medical practitioners give free services, this principle applies to torts or civil law. It can be argued that tort law begins where the Consumer Protection Act terminates.

In Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole (1969), the court determined specific duties of the medical professionals are –  

  • Duty of care in selecting whether to take the case;
  • Duty of care in deciding what treatment to deliver;
  •  Duty of care in administering that treatment; and
  • Duty of care in responding to a question posed by a patient when he knows the patient plans to rely on his answer..[16]

In Kurban Hussein v. the State of Maharashtra, in the case concerning Section 304 (A) of I.P.C., 1860, it was stated that- “To impose criminal liability under Section 304-A, it is necessary that the death should have been the direct result of rash and negligent act of the accused, without other person’s intervention, otherwise it would simply fall under civil liability .”[17]

In Vinitha Ashok vs Lakshmi Hospital (2001), it was held that a difference of opinion amongst experts on the procedure adopted by a doctor could not be called negligence if the procedure adopted is commonly in practice in an area.[18]

In S. Mittal vs the State of U.P, it was held that a free treatment in a place that gives free treatment to everybody might not entitle the complainant to approach the Consumer Court. But he would still be allowed to approach the District Court for damages.[19]

  • Conclusions 

The Indian regulations governing medical negligence are subject to several criticisms. The first is the ‘Burden of Proof’ principle. The plaintiff bears the burden of proof. As a result, if a patient asserts medical malpractice, the law will demand a higher standard of evidence. It becomes challenging for an ordinary human or a patient to discern the specific damage and the causal relationship between the injury and the doctor’s negligence in this situation.

Consequently, the patient cannot establish the doctor’s liability beyond a reasonable doubt because the area of medicine is unpredictable and unpredictable, and anything can happen in a human body at any time; therefore, the burden of proof falls on the plaintiff. As a result, it is high time for medical negligence laws to be modified to put patients first. Patients should also be educated about their rights in the face of medical negligence by civil society through an appropriate education channel.

“It is health, not pieces of gold and silver, that is a person’s genuine wealth,” said Mahatma Gandhi. As a moral obligation, all concerned authorities, whether the hospital, the government, the Medical Council, or any other entity working to improve healthcare facilities, should collaborate and take actions to:

  • Quality healthcare
  • Adequate healthcare
  • Accessibility of primary health care[20]

[1] Adv. Mihir Desai and Adv. Dipti Chand, Healthcare Case Law in India, Medical Negligence (71-85), https://www.escr-net.org/sites/default/files/Desai%20and%20Mahabal_0.pdf.

[2] Ibid

[3] Moni v. State of Kerala, SA. No. 832 of 2000(G).

[4] Disha Pareek, Medical Negligence And Law In India – An Analysis, blog ipleaders, https://blog.ipleaders.in/medical-negligence-law-india-analysis/#_ftn1.

[5] Jacob Mathew vs the State of Punjab, (2005) 6 SCC 1, (India).

[6] Bolam vs Friern Hospital Management Committee (1957), 2 ALL ER 118.

[7] Ibid

[8] Adv. Mihir Desai and Adv. Dipti Chand, Healthcare Case Law in India, Medical Negligence (71-85), https://www.escr-net.org/sites/default/files/Desai%20and%20Mahabal_0.pdf.

[9] S. 304A The Indian Penal Code, 1960.

[10] S. 336 The Indian Penal Code, 1960.

[11] S. 337 and 338 The Indian Penal Code, 1960.

[12] Dr Suresh Gupta vs Govt. of Delhi (2004), 6 SCC 422.

[13] Dr Anand R. Nerkar vs Smt Rahimbi Shaikh Madar, 1991(1) Bom. C.R. (p. 629).

[14] Section 2(42) of the Consumer Protection Act, 1986.

[15] Indian Medical Association vs V.P. Shantha (1995) 6 SCC 651.

[16] Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole (1969), AIR 1969 SC 128.

[17] Kurban Hussein v. the State of Maharashtra, 1965 2 SCR 622

[18] Vinitha Ashok vs Lakshmi Hospital, (2001) 8 SCC 731.

[19] S. Mittal vs the State of U.P, (1989) 3 SCC 223.

[20] Disha Pareek, Medical Negligence And Law In India – An Analysis, blog ipleaders, https://blog.ipleaders.in/medical-negligence-law-india-analysis/#_ftn1.

Author: Pranav N, School of Law Christ University.

Editor: Kanishka VaishSenior Editor, LexLife India

Data Protection bill

Reading time: 4 minutes

In recent years the question related to privacy has been in debate reason being the internet has penetrated widely in last two decades.

As per Puttaswamy, the landmark judgment delivered by the Supreme Court in the year 2017 recognized the right to privacy as one of the fundamental rights within article 21 and directed the government to frame policy concerning protection of privacy of the citizens.

Data Protection Bill is India’s first attempt to legislate on the issue of data protection and privacy. The bill has been drafted by the committee headed by retired justice B N Srikrishna

The committee has retained the Clause with a minor change. It allows the Government to keep any of its agencies outside the purview of the law. The Clause in the name of “public order”, ‘sovereignty’, “friendly relations with foreign states” and “security of the state” allows any agency under the Union Government exemption from all or any provisions of the law.

The clause is for “certain legitimate purposes” and also there is precedent in the form of the reasonable restrictions imposed upon the liberty of an individual, as guaranteed under Article 19 of the Constitution and the Puttaswamy judgment.

It is commonly referred to as the “Privacy Bill” and intends to protect individual rights by regulating the collection, movement, and processing of data that is personal, or which can identify the individual. The Bill is landmark legislation meant to regulate how various companies and organizations use individuals’ data inside India. The 2019 draft of the Bill proposed the formation of a Data Protection Authority (DPA), which would regulate the use of users’ personal data by social media companies and other organizations within the country…

Data Protection (Meaning):

Data protection is the process of safeguarding important information from corruption, compromise or loss. Data is the large collection of information that is stored in a computer or on a network. The importance of data protection increases as the amount of data created and stored continues to grow at unprecedented rates.

 Main Provisions and Key Terms:

Data- “Data” means and includes a representation of information, facts, concepts, opinions, or instructions in a manner suitable for communication, interpretation, or processing by humans or by automated means.

The Bill trifurcates data as follows:

Personal data: Data from which an individual can be identified like name, address etc.

Sensitive personal data (SPD): Some types of personal data like as financial, health, sexual orientation, biometric, genetic, transgender status, caste, religious belief, and more.

Critical personal data: Anything that the government at any time can deem critical, such as military or national security data.

  • The Bill includes exemptions for processing data without an individual’s consent for “reasonable purposes”, including security of the state, detection of any unlawful activity or fraud, whistleblowing, medical emergencies, credit scoring, operation of search engines and processing of publicly available data.
  • The Bill calls for the creation of an independent regulator Data Protection Authority, which will oversee assessments and audits and definition making.
  • Each company will have a Data Protection Officer (DPO) who will liaison with the DPA for auditing, grievance redressal, recording maintenance and more.
  • The Bill proposes “Purpose limitation” and “Collection limitation” clause, which limit the collection of data to what is needed for “clear, specific, and lawful” purposes.
  • It also grants individuals the right to data portability and the ability to access and transfer one’s own data. It also grants individuals the right to data portability, and the ability to access and transfer one’s own data.
  • Finally, it legislates on the right to be forgotten. With historical roots in European Union law, General Data Protection Regulation (GDPR), this right allows an individual to remove consent for data collection and disclosure.
  • Data Principal: The individual whose data is being stored and processed is called the data principal in the PDP Bill.
  • Data Fiduciary: The ‘data fiduciary’ may be a service provider who collects, stores and uses data in the course of providing such goods and services.
  • Data Transfer: Data is transported across country borders in underwater cables.
  • Data localization: It is the act of storing data on any device physically present within the borders of a country.

Why Does India need Data Protection Law?

Amid the proliferation of computers and the internet, consumers have been generating a lot of data, which has companies show them personalized advertisements based on their browsing patterns and other online behavior. Companies began to store a lot of these databases without taking the consent of the users and did not take responsibility when data leaked. To hold such companies accountable, the government in 2019 tabled the data protection bill for the first time.

According to the Internet and Mobile Association of India (IAMAI)’s Digital in India report 2019, there are about 504 million active web users and India’s online market is second only to China. A large collection of information about individuals and their online habits has become an important source of profits. It is also a potential avenue for invasion of privacy because it can reveal extremely personal aspects. Companies, governments, and political parties find it valuable because they can use it to find the most convincing ways to advertise to you online.

Advantages:

Data localization can help law-enforcement agencies access data for investigations and enforcement. As of now, much of cross-border data transfer is governed by individual bilateral “mutual legal assistance treaties”.

Accessing data through this route is a cumbersome process.

Instances of cyber attacks and surveillance will be checked.

Recently, many WhatsApp accounts were hacked by an Israeli software called Pegasus.

Social media is being used to spread fake news, which has resulted in lynchings, national security threats, which can now be monitored, checked, and prevented in time.

Data localization will also increase the ability of the Indian government to tax Internet giants.

A strong data protection legislation will also help to enforce data sovereignty.

Disadvantage:

Many contend that the physical location of the data is not relevant in the cyber world. Even if the data is stored in the country, the encryption keys may still be out of reach of national agencies.

National security or reasonable purposes are open-ended terms, this may lead to intrusion of the state into the private lives of citizens.

Technology giants like Facebook and Google have criticised the protectionist policy on data protection (data localization).

They fear that the domino effect of protectionist policy will lead to other countries following suit.

Protectionist regime supress the values of a globalised, competitive internet marketplace, where costs and speeds determine information flows rather than nationalistic borders.

Also, it may backfire on India’s own young startups that are attempting global growth, or on larger firms that process foreign data in India.

Way Forward:

In this digital age, data is a valuable resource that should not be left unregulated. In this context, the time is ripe for India to have a robust data protection regime.

It is time that requisite changes are made in the Personal Data Protection Bill, 2019. It needs to be reformulated to ensure that it focuses on user rights with an emphasis on user privacy. A privacy commission would have to be established to enforce these rights.

The government would also have to respect the privacy of the citizens while strengthening the right to information. Additionally, the technological leaps made in the last two to three years also need to be addressed knowing that they have the capacity of turning the law redundant.

Conclusion:

According to the Supreme Court in the Puttaswamy judgment (2017), the right to privacy is a fundamental right and it is necessary to protect personal data as an essential facet of informational privacy, whereas the growth of the digital economy is also essential to open new vistas of socio-economic growth.

In this context, the government policy on data protection must not deter framing any policy for the growth of the digital economy, to the extent that it doesn’t impinge on personal data privacy.

[i]


Author: Pradeep singh kanwal, DSNLU

Editor: Kanishka VaishSenior Editor, LexLife India