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All you need to know about criminalization of politics

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This article is written by Surbhi Jindal, a law student at Dr. B.R. Ambedkar National Law University, Haryana. Through this article, she has discussed the concept of criminalization of politics in the Indian context exhaustively.

It has been published by Rachit Garg.

Introduction 

India gained independence from British Rule in 1947, but a question to ponder over: Is India still an independent nation? It is still being governed by the people who are holding criminal charges against them. Do you think that the country of India will progress in such a way? 

India is a democratic country, with a parliamentary system of democracy, which means that the country is governed by elected representatives. It has many political parties and elections are held every five years. The scope and interest in joining politics are increasing day by day but with this, the percentage of criminal participation has also increased. 

Even the Hon’ble Supreme Court of India, from time to time, has expressed its anguish over the matter of increasing criminalization of politics in the Indian scenario. 

Justice Rohinton Fali Nariman stated that the Supreme Court is bound by the constitutional principle and doctrine of separation of powers. Hence, it cannot make laws and regulations on this matter. Parliament can make laws, but the question arises when India’s Parliament will take steps to clean up Indian politics? Will it ever take action?

The objective of this article is to analyze the causes and impact of the criminalization of politics in India exhaustively. Furthermore, it also discusses how we can take steps to cleanse our Indian politics to make India a better nation.

Let us understand the issue of criminalization of politics that is growing day by day in India. But before we move forward, let us see why many criminals are interested in joining politics in India? What is the reason behind it?

Why are criminals joining politics in India

Criminals are joining politics in India for a variety of reasons. The first reason is that crime pays. Getting into the legitimate sphere of politics is a way to legitimize one’s gains from crime and power their finances further.

The second reason is the lack of opportunities in other fields. In some cases, criminals have been pushed out of their traditional fields due to economic liberalisation and changing labour markets, and so they see politics as an opportunity to make a living without breaking any laws.

The third reason why criminals join politics is that they tend to be more highly motivated than other politicians and thus more likely to deliver on electoral promises, such as providing employment or development projects which can improve people’s lives.

Defining the concept of criminalization of politics

Criminalization is defined as an act when an activity is turned from being legal to illegal. It is the making of actions committed by individuals illegal by any judicial decision or law, and turning the individuals committing those acts into criminals. Criminalization of politics is defined as the situation when criminals participate in the politics of the government, i.e., contest elections and get elected to the Parliament and state legislatures.

This growing menace has impacted our society so rapidly that principle concepts of democracy like the rule of law, fundamental rights, free and fair elections, accountability, and credibility have turned into a just dream and lost their credibility in the real world.

India is one of the world’s largest democratic countries. Elections should be conducted in a free and fair manner, and they must attract the country’s best talent.

The idea of democracy is always based on the will of the people. The intention of the people must always conform to the rule of law. But the choice of people has been undermined by the existence of money and muscle power, which largely affects politics.

Criminals should have no place in the sacred electoral process and therefore, it is important to curb this criminalization in politics.

Statistical analysis of criminalization of politics

The menace of criminalization of politics is gradually degrading the spirit of our Indian democracy. India claims to be the world’s largest democracy, but it cannot be called a democracy of ideal representatives.

Abraham Lincoln, in his Gettysburg address on November 19, 1863, defined democracy. He said, “Democracy is the government of the people, by the people and for the people.” But now, democracy is only seen in the books. In such a situation, how can the welfare of society prevail?

As per the Association for Democratic Reforms (ADR), the chances of winning by people facing criminal charges are more than for innocent and clean-handed people. ADR is an organization that has been working continuously to bring electoral and political reforms since 1999. Let us look at the statistical data of the past three elections.

Year   MPs    with    pendingCases (%)   MPs    with    seriousCriminal cases* (%)
2019   4329
20143421
20093014
*rape, murder, kidnapping, crimes against women

As per the above data, during every election, a consistent increase in criminals participating in the elections process can be seen. In the year 2009, 30% of MPs in Lok Sabha were against criminal charges. In 2014, 34% of MPs in the Lok Sabha faced criminal charges. The percentage was extremely high in the last Lok Sabha elections. 43% of the members in Lok Sabha were facing criminal charges and 29 % had charges of committing serious crimes.

Such a bad condition of a democratic country disheartens. People vote out of fear. Goondas and Mafias are forcing them to give votes to a particular party. Political parties in order to fulfill their political agendas give them some promises in the form of benefits which are forgotten as soon as the election process is over. Goondas and Mafias have always been a part of the electoral process since the birth of Indian democracy.

The recent report on ‘Analysis of Criminal, Financial, and Other background details of Union Council of Ministers, Post Cabinet Expansion on July 7, 2021″ by National Election Watch (NEW) and Association for democratic reforms (ADR) analyses the latest affidavits by 78 ministers including Hon’ble Prime Minister from 2019 Lok Sabha, present Rajya Sabha, and Assembly elections. The criminal background in the recent cabinet is summarized here as follows:

  • Out of 78 ministers, 33 (42%) ministers have declared criminal cases against them.
  • 24 (31%) ministers have reported serious criminal cases against them, such as rape, murder, robbery, etc.
  • Four ministers have cases against them related to Section 307 of the Indian Penal Code, 1860.
  • Five ministers have cases against them related to promoting communal disharmony.
  • Five ministers have declared cases of electoral violations against them.

Furthermore, ADR also stated in his report that the proportion of Union ministers who have declared criminal cases against them has risen by 3%.

Causes of criminalization of politics

Muscle power 

The scenario is changing today more often. Now, the criminals are taking the reins of power into their hands. During elections, it is seen that politicians deliver eloquent speeches expressing their hatred towards crime and promising to eliminate corruption in the country. They lay stress on eliminating the use of muscle power in politics. But this is hardly implemented.

Imagine that the person himself charged with a crime is giving himself a long and beautiful speech at elections for eliminating crime in an area. How ironic is it? First Past the Post system, also known as the simple majority system, works on the principle that a maximum number of votes implies winning a candidate.

An ideology that works behind adopting the method of muscle power is that if one party cannot secure faith in society, then fear and violence may aid them in the same. When there is a nexus between political parties and criminals, the most dangerous elements in society take birth.

Money power

Besides muscle power, black money and funds from the mafia are also significant causes of criminalization in politics. In this context, K.C. Suri believes that since ancient times, the use of money and muscle power by political elites to win elections has been completely wrong. “Large individual politicians, not just political elite, are having a nexus with criminals and this has further channelized social fissure as one of the formidable factors to get through elections.” 

Money accumulated through unlawful acts also acts as one of the primary reasons for increasing criminalization in politics. This amount of money becomes an easy way to buy voters and win elections. The political parties easily buy the majority of voters. It will also provide a breeding ground for another menace called uncontrolled corruption. 

Corruption

Corruption is also one of the major causes of the criminalization of politics. The majority of candidates contesting elections require money, funds, and donations. It is pertinent to note that corruption directly gives rise to contempt of the law. There is a direct relationship between contempt of law, criminalization of politics, and sin. When contempt of law combines with the criminalization of politics, it gives birth to flourishing corruption.

Growing corruption ultimately leads to the criminalization of politics. Corruption has crept into almost every corner of the Indian political system.

Divisions in the Indian political system

The Indian political system is based on divisions in which our Indian society exists. Criminals take advantage of this division and enter the arena of politics. They smartly portray them as the protector of the respective class, caste, religion, and community. In general, while choosing a candidate, hardly the criminal background of a candidate is scrutinized. People tend to vote based on the candidates’ caste, ethnicity, religion, community, and linguistic lineage.

No retirement policy in Indian politics

The other major problem lies in the retirement policy in Indian politics. There is no retirement policy for Lok Sabha members, and hence some members never retire. The issue of family fiefdom seriously jeopardizes the careers of budding politicians and lawyers. The slow working and high rate of pending cases further aggravate the problem of the criminalization of politics.

Impact of criminalization of politics

When lawbreakers get elected as lawmakers, it seems impossible for a country to head towards the path of progress. The working efficiency of Parliament while making laws is reduced, and the effectiveness of administration gets hampered. As a result, the general public loses credibility in the functioning of Parliament.

Patronage by politicians and the adjournment culture further aid in preventing speedy trials against criminals. Corruption levels increase, and it weakens state institutions such as the legislature, bureaucracy, and judiciary. It sets a bad example against the youth and gives support to the violence prevailing in society.

Political standards are continuously going down. The reason is the criminalization of politics in Indian democracy. Politics has lost its earlier identity of members serving society selflessly. It more often presently attracts persons with criminal backgrounds having own- pursuit interests.

It is the country that has to suffer. There has been enough stress laid on the shoulders of lawmakers to come up with the amendments in law but to date, the situation remains the same. 

Role of judiciary in controlling criminalization of politics

From time to time, the Honorable Supreme Court has taken steps to curb India’s increasing criminalization of politics. Various judgments, views, and decisions have been put forward in this regard. But despite this, nothing significant has happened. The Apex Court rightly pointed out in its statement and most of us would indefinitely agree to the statement:

“No one can deny that the menace of criminalization in the Indian political system is growing day by day. Also, no one can deny that for maintaining the purity of the political system, persons with criminal antecedents and who are involved in the criminalization of the political system should not be permitted to be lawmakers.”

In August 2021, the bench of Justices Rohinton Fali Nariman and B.R. Gavai from the Hon’ble Supreme Court expressed their anguish over the criminalization of politics. The Hon’ble Court observed the following:

“The political parties refuse to wake up from deep slumber. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government.”

The Supreme Court ordered the political parties in its February 2020 contempt petition to comply with its judgment of Public Interest Foundation and Ors. vs. Union of India and Anr. (2018). However, the orders of the decision were not followed by the various political parties. The court observed that the Bharatiya Janata Party (BJP), the Janata Dal (United), the Rashtriya Janata Dal (RJD), and the Congress were guilty of contempt because they did not comply with the orders of the Hon’ble Supreme Court. It imposed a fine of 1 lakh for not disclosing the complete details of criminal antecedents of candidates in the Bihar elections in 2020. Apart from this, the Communist Party of India and the National Congress Party were asked to deposit five lakhs each because they did not comply with the orders of the Hon’ble Supreme Court at all.

The present August 2021 contempt petition was filed by Advocate Brajesh Singh, who alleged that the various political parties did not obey the court’s orders during the Bihar assembly elections in 2020. After taking the contentions and arguments put forward, the Bench noted that most political parties have either not given full disclosure or have not followed the format it was to be delivered.

In its latest judgment, the following were the orders and amendments made by the bench in its previous ruling in the year 2020:

  • ECI has been directed to create a mobile application that contains all the information about the criminal antecedents of the candidates so that the general public can have access to information conveniently.
  • ECI has been directed to create a separate monitoring cell for checking whether the parties are complying with the court’s order or not. It has also referred them to bring such instances of the breach to the knowledge of the court. 
  • The Hon’ble Supreme Court directed the political parties to set up a new tab on their homepage of websites named ‘candidates with criminal antecedents’ to make it easier for voters to know more information. 
  • The court has modified its earlier order of February 2020, directing parties to publish details within 48 hours of selection and not two weeks before nomination.
  • It also observed that a unique bench at the Supreme Court might be formed to monitor the cases involving accused MPs and MLAs.  

Further, the issue was taken into cognizance mainly of two separate cases of criminalization in Indian politics. 

  • Cases against the politicians: The Hon’ble Supreme Court observed that the state governments could not withdraw the cases against legislators without the permission of respective state high courts.
  • Parties punished: Nine parties were held guilty of contempt for not disclosing complete details in Bihar 2020 elections. Further, eight of them were also fined with heavy penalties.

In 1997, high courts were directed by the Honorable Supreme Court not to suspend the conviction if that person is found convicted under the Prevention of Corruption Act, 1988.

In the case of Ramesh Dalal vs. Union of India (2005), the Hon’ble Supreme Court pronounced that a sitting member of Parliament and a member of the state legislature can also be disqualified from contesting elections if he is convicted for not less than two years for imprisonment by the court of law.

Furthermore, it was observed in K Prabhakaran vs. P Jayarajan (2005) that, “those who break the law should not make the law. Generally speaking, the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal backgrounds from entering politics and the house – a powerful wing of governance. Persons with a criminal background do pollute the process of election as they do not have many holds barred and have no reservation from indulging in criminality to win success at an election”.

Public Interest Litigation(PIL) was filed in the Supreme Court in 2011, seeking to issue guidelines and lay framework to be followed to curb the menace of criminalization of politics and debar those charged with a crime from contesting elections.

Section 8(4) of the Representation of the People Act, 1951 provided a respite to a member of Parliament or a member of the legislative assembly/legislative council. If the convicted member filed an appeal within three months, then that application was accepted by the Hon’ble Supreme Court. This implied that the member could continue his membership of the concerned legislature until the court disposed of the application. The court struck down this provision in the case of Lily Thomas vs. Union of India (2013). At present, a member of Parliament or member of state legislature stands disqualified if they are convicted of an offence provided in Section 8(1) or 8(2) of the Representation of People Act, 1951. Also, a person remains disqualified from holding a seat after six years of release. Section 8(4) was held unconstitutional since Parliament’s work is to make disqualification laws and not secure the seats for membership.

The Hon’ble Supreme Court held in People’s Union for Civil Liberties vs. Union of India (2018) that the voter has the fundamental right under Article 19(1)(a) of the Indian Constitution to know about the candidates who are contesting the election.

In the year 2020, the Hon’ble Supreme Court reiterated its 2018 order. The main aim is to discourage candidates with criminal backgrounds from contesting elections. Political parties should explain why they have chosen a candidate with a criminal background. The candidate selection must be based on merit, not on winnability, the Supreme Court observed. The information must be published on social media platforms, local and national newspapers, and the website. The same information needs to be submitted to the election commission within 72 hours after declaring the candidate’s name. A compliance report must be filed with the Election Commission or should be ready to face contempt action. It is an undeniable fact that electoral and judicial reforms are the need of the hour.

The way forward

It is an undeniable fact that criminals should not be allowed to contest elections at any cost. They pollute the true spirit of democracy. But what if the person has only been accused? Should it only be based on an accusation, be barred from contesting elections? The answer is no. Our criminal justice system works on the legal principle of ‘innocent until proven guilty’. Every innocent man has the right to contest elections. Then what is the way ahead?

In 2017, the Supreme Court ordered special fast-track courts for such matters. The ultimate advantage would be that since the cases will be decided at the earliest and hence, it could be clear whether that person can contest elections or not.

There is also a need for amendment in the Representation of People Act, 1951. Section 7 to 11 of this Act discusses a person who can contest elections. The provisions need to be revisited to pass the test of time and changed social circumstances.

Committees such as the Vohra Committee and Dinesh Goswami Committee have also given various recommendations. These recommendations must be taken into account as soon as possible. Electoral reforms and judicial reforms are the need of the hour. But it is important to note that it is not only the state’s duty but also of citizens to contribute to maintaining the true spirit of democracy.

Conclusion

Through the above facts and analysis, it can be observed that the corrupt practices of political parties have steadily increased. Various methods have been employed by the political parties to win elections. From time to time, the Hon’ble Supreme Court, Election Commission of India, and Parliament have taken steps to curb this menace, but nothing substantial has been achieved so far.

Stringent laws should be passed, and assistance should be given to constitutional institutions such as the Election Commission of India. It should be given the power to audit the financial accounts of political parties. The other way is to bring the financing of political parties under the ambit of Right to Information (RTI). The problem is a lack of political will, which needs to be addressed by politicians at the earliest. Deeper systematic reforms are required at the earliest.

Our judiciary is indeed taking steps and trying its best to cope with the increasing criminalization of politics. But now, the onus shifts on the Parliament since it has been granted powers under our Constitution to adjudicate on the law-making powers. It’s time for India to become truly an independent and progressive nation.

References


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All about the Internal Complaints Committee (ICC)

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This article is written by Sarthak Kulshrestha, a BA.LLB student from Jagran Lakecity University, Bhopal. The article explains the nature and working of the sexual harassment committees constituted under the Sexual Harassment Act and everything about the Internal Complaints Committee (ICC).

It has been published by Rachit Garg.

Introduction 

We often read the news headlines like, “Parlour owner booked for sexual harassment of an employee in Chennai”, “Law firm intern committed suicide after filing a sexual harassment complaint against seniors”. Such headlines make us aware of the general scenario of the workplaces of our country where women have to face sexual harassment. 

This issue had been considered to be of great concern by the judiciary, and thereby it took some steps to reduce harassment cases and make the working environment more comfortable for women. Apart from the guidelines issued by the Supreme Court of India in this regard, which has been discussed further in this article, the government had introduced a law against sexual harassment, it is known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, (POSH Act). Under this Act, there are provisions that call for a sexual harassment committee to be set up in every workplace so that there can be frequent reporting of the harassment cases. This article explains the functioning of those sexual harassment committees that work to assist aggrieved women and further elucidates some provisions of the POSH Act.

Origin of the law on sexual harassment 

The position of laws for the protection of women against sexual harassment has been widely developed after the infamous Rajasthan gang-rape case. In this case, Bhanwari Devi of Rajasthan used to work as a rural agent towards the prevention of child marriages in her region. Once, she prevented a child marriage of a girl, and her work was criticised a lot and she faced a lot of resentment. The men of the community in which she prevented that marriage, harassed her. Bhanwari Devi complained about the same to the local authorities but no strict action was taken against the men. The apathy of the authorities led to the gang rape of Bhanwari Devi by the same men. 

Based on the facts of the above case, a Public Interest Litigation (PIL) was filed by Vishaka and other women groups against the State of Rajasthan and Union of India before the Supreme Court. It proposed that sexual harassment be recognized as a violation of women’s fundamental right to equality and that all workplaces be made accountable and responsible to protect these rights of concerned women. 

Therefore, in the landmark judgment of the Supreme Court of India, Vishaka & Ors. v. the State of Rajasthan (1997), the Court formulated some guidelines upholding the Constitutional spirit and accorded it with the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

The Supreme Court defined sexual harassment as any unwelcome, sexually determined physical, verbal, or non-verbal conduct. For example, sexually suggestive remarks about women, demands for sexual favours, and sexually offensive visuals in the workplace. The definition was wide enough to cover those situations as well where a woman could be disadvantaged in her workplace due to threats relating to employment decisions that could create a negative impact on her working life. It placed responsibility on employers to ensure that women did not face a hostile environment. It directed for the establishment of a redressal mechanism in the form of Complaints Committee, which will look into the matters of sexual harassment of women at the workplace. 

The Supreme Court raised the responsibility of the employers and workplace institutions to uphold the rights and dignity of women at the workplace. Three key obligations were imposed on institutions to meet that standard, namely:

  • Prohibition 
  • Prevention 
  • Redressal 

In 2013, the Government of India notified the POSH Act, 2013. Consistent with the Vishaka judgment, the Act aspires to ensure women’s right to workplace equality, free from sexual harassment through the above-mentioned three elements. 

Constitution of sexual harassment committees under POSH Act 

The POSH Act, 2013 has the provision of establishing the committees to assist the aggrieved women or the victims of sexual harassment. Under Section 4 of the said Act, the employer of every organisation is ought to set up an Internal Complaints Committee (ICC). The purpose of this body would be to address the complaints of sexual harassment and assist the victims to protect their dignity at the workplace. Every institution or organisation needs to have an ICC mandatorily and non-constitution of ICC can attract a penal liability for the employer.  

The POSH Act requires the employer to specify the term of office of the members of the ICC, which should not be more than three years from the date of their nomination.

Composition of the Internal Complaints Committee

The ICC is mainly composed of four members and the adequate representation of women in the committee is especially considered to form the committee. It comprises :

  • One Chairperson or Presiding Officer – A woman of the same organisation working at the senior level is to be appointed as the Chairperson or PO. The idea behind making a woman the Presiding Officer of ICC is that it would be easier for a woman to approach the ICC to report a complaint of sexual harassment if the same would be chaired by a woman. The aggrieved woman can share her problem more easily and comfortably with a woman rather than a man.

In Shobha Goswami v. the State of Uttar Pradesh and Others (2015), the Allahabad High Court pondered upon the seniority criteria to become eligible to Preside over the ICC. In this case, the respondent alleged that the Presiding officer was his subordinate and was not fulfilling the criteria of becoming the Chairperson of the ICC. But, the High Court rejected the argument and came with the interpretation that the Chairperson should be senior to the employee against whom the complaint of sexual harassment has been filed and held that the seniority of the Chairperson was valid in that particular case. 

The POSH Act also contains the provision for the situation in which there is no senior-level female employee available to fulfil the criteria to chair the ICC. In that case, the employer is free to nominate any such female employee from any of its other offices or workplace, as provided under Section 4(2) of the said Act. 

  • Two members amongst the employees – They can be preferred by choice based on their social work or legal knowledge or the ones who are committed to the cause of women. However, practically it is not easy to find employees with such qualifications. So, as per the requirement, the POSH Act provides for organising camps and orientation programs to make the employees knowledgeable and aware of the duties they need to perform as members of the ICC. 
  • One external member – External members could be doctors, lawyers, or NGOs working for the cause of women. In Ruchika Singh Chhabra v. Air France India & Another (2018), the criteria for appointing such an external member was discussed by the Delhi High Court. The Court observed that the purpose of this committee is to provide the complainant with assistance from the harassment and devise an efficient inquiry mechanism to address all the issues that an aggrieved female employee faces. So, it is important to appoint such an external member who has the qualifications that complement the purpose and aim of the committee. 

In the given case, the external member so-appointed was neither working for an NGO nor had any prior experience in dealing with harassment or other similar social issues for the cause of women. He was just a lawyer, so he could be eligible to become an external member of the Local Complaints Committee (LCC), but not an external member of the ICC. 

Disqualification of the Internal Complaints Committee members

Section 2(5) of the POSH Act prescribes the rules and conditions to disqualify any of the members of the ICC committee. The grounds for the same are as follows: 

  • If a member discloses confidential information related to the complaint filed before the ICC or reveals the identity of the complainant 
  • If any member is convicted or accused of any offence under any law. 
  • If a member has been found guilty of an offence under any of the disciplinary proceedings. 
  • If a member has abused their position or continued membership in the ICC to be prejudicial to the public interest.  

Powers and responsibilities of the Internal Complaints Committee

The Internal Complaints Committee is vested with all the powers necessary to undertake the functions of prohibition, prevention, and redressal of sexual harassment of women at the workplace. According to the POSH Act, the ICC is – 

  • Empowered to initiate the inquiry on the complaint filed against sexual harassment. 
  • It has the power to collect the evidence and summon the witnesses. 
  • It can also recommend the measures and actions to be taken to try another such case in the future.

There are certain responsibilities of the ICC to serve the objective of the POSH Act which are as follows: 

  • Receive the complaints of sexual harassment.
  • Initiate the inquiry and submit the findings from the inquiry done.
  • Direct the employer to undertake required actions.
  • Submit an annual report in the prescribed format.

Complaint mechanism 

After understanding the functioning of the ICC, let us see, how a complaint can be filed by the aggrieved woman against sexual harassment at the workplace. There is a linear complaint mechanism through which the complaints get filed and the ICC performs its functions, thereby required actions are taken.

  1. The complainant is supposed to file the complaint in writing and submit the same before the ICC within three months of the date of the incident or the series of incidents in which the last one happened. The Chairperson is empowered to obtain the complaint in writing by providing all assistance to the complainant.
  2. The committee can also extend the time limit to more than three months for filing the complaint in writing, only if it is satisfied by the circumstances due to which it might not be possible for the complainant to do the same within the said period. 
  3. The complainant can also send the complaint to any committee member via email.
  4. Filing of a written complaint is mandatory which should include full name with other necessary details of the incident(s) of sexual harassment. 
  5. In case the complainant is not able to file a complaint by herself, her legal heirs, spouse, or parents can file the same. 
  6. A third person can also be the complainant provided that a written complaint must be filed by the one who has been subject to sexual harassment. 

Procedure for filing a complaint and conducting the enquiry

Image source: https://cus.ac.in/images/content/static/functionalbody/1116ProcedureforSubmissionEnquiryRedressalofComplaints.pdf 

Inquiry procedure 

Generally, the inquiry must be initiated by the ICC as soon as the complaint has been filed and taken into notice by the committee. The ICC is also supposed to give a chance to the complainant and respondent to represent their case regarding the matter. Below is the procedure of inquiry on the case of sexual harassment:

  • The ICC must, within 7 working days after receiving the complaint needs to forward one copy each to the respondent and ask for his response 
  • The respondent would have 10 working days to submit his response to the complaint and he can also attach some relevant documents or witnesses to his reply. 
  • The ICC shall hear both the complainant and the respondent on the stipulated date(s) and the principles of natural justice will be followed accordingly. Neither of the parties can represent themselves by a legal practitioner. 
  • The process of inquiry shall be completed by the ICC within 90 days from the date on which the complaint was received.  

During the procedure of the inquiry, the ICC may recommend the employer to provide some interim relief to the victim as per her request only. The committee can ask the employer to transfer her to some other workplace, or grant her leave for not more than 3 months, or to restrain the respondent from reporting on the performance of the complainant. 

Local Complaints Committee (LCC)

According to the POSH Act, every organisation with ten or more than ten employees should have compulsorily constituted the ICC. But what about the organisations where less than ten employees work? Or the unorganised sectors where there is no proper structure to file a complaint? These are also the workplaces where women work and they should also be protected from sexual harassment. 

So, the POSH Act provides for the Local Complaints Committee (LCC) which is constituted under Section 6 of the said Act. According to this section, the LCC must be formed by the District Officer for the whole district. The District Officer must designate one nodal officer in every block, taluka, & tehsil in the rural or tribal area and ward or municipality in the urban area. The nodal officer so appointed would be bound to receive complaints and forward the same to the concerned LCC within seven days. The LCC would receive complaints of sexual harassment from the following: 

  1. Employees of organisations having less than ten employees;
  2. Women working in the unorganised sector like housekeeping staff; and,
  3. Employees from organisations with more than ten employees but if the complaint is against the employer himself.

Submission of an annual report 

As we have seen in the ICC that an annual report has to be submitted, similarly the LCC is also supposed to submit an annual report to the District Officer. It should contain- 

  • The total number of complaints of sexual harassment over the year. 
  • The total number of complaints disposed of in that year.
  • The number of cases pending for more than 90 days. 
  • The number of actions taken by the District Officer.

Conclusion 

The issue of sexual harassment of women at the workplace has been very comprehensively addressed by the governmental authorities. The committees which the POSH Act has constituted are thorough. The functions of ICC and its powers make it possible to address the serious issue of sexual harassment comfortably. A limited time frame is also stipulated to carry out the inquiry procedure properly so that the problems could not last very long and the aggrieved individual can stop compromising with her fundamental rights. Both ICC and LCC aim to achieve the three objectives of the Act, i.e. Prohibition, Prevention and Redressal of the problem of sexual harassment and let the women work with dignity in a comfortable environment upholding the constitutional spirit. 

References 

  1. https://indiankanoon.org/ 
  2. https://www.mondaq.com/india/discrimination-disability-sexual-harassment/776002/constitution-of-icc-under-the-posh-act 
  3. https://muds.co.in/internal-complaints-committee-members-training-certification/  
  4. https://cus.ac.in/images/content/static/functionalbody/1116ProcedureforSubmissionEnquiryRedressalofComplaints.pdf 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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All you need to know about assisted suicide

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suicide

This article is written by Abanti Bose, studying at Amity University Kolkata, India. The article discusses everything about assisted suicide, the history of euthanasia, the right to commit suicide, the position of suicide in India, passive euthanasia in India, the legality of assisted suicide in various countries and current developments regarding laws surrounding assisted suicide. 

This article has been published by Sneha Mahawar.

Introduction

Euthanasia and assisted suicide are procedures that refer to deliberate action being taken with the intention of ending a life, in order to relieve persistent suffering. Euthanasia and assisted suicide have remained a fierce debatable issue through generations. The legality of euthanasia and assisted suicide vary from country to country. While some countries have legalized euthanasia and assisted suicide, in other countries it is still an offence to attempt suicide, no matter how grave the circumstance is. Some countries like India, on the other hand only permit passive euthanasia, to free the patient from any terminal incurable disease.

Understanding euthanasia and assisted suicide

In order to understand the legality of assisted suicide we first need to know the meaning of euthanasia and physician assisted suicide. 

Euthanasia

It is the procedure when a doctor is allowed by the law of the state to end the person’s life through painless means as long as the patient and the family agree. Euthanasia is the practice of a deliberate attempt to end one’s life in order to relieve suffering. The legality of euthanasia varies from country to country. Euthanasia can also be termed as voluntary, non-voluntary and involuntary euthanasia. 

Voluntary euthanasia: When euthanasia is conducted with the consent of the individual it is known as voluntary euthanasia. It is legal in many states like Belgium, Luxembourg, Switzerland, etc. 

Non-voluntary euthanasia: When a person is unable to consent due to their current condition and the decision is taken by another person on their behalf it is known as non-voluntary euthanasia.

Involuntary euthanasia: When it is performed on the person who would have given consent but does not either because he was not asked or he was unable to give consent.

Apart from this, euthanasia is also classified as active euthanasia and passive euthanasia.

Active euthanasia: This involves killing a terminally ill patient by injecting a lethal dose of a drug i.e., killing the patient by active means. 

Passive euthanasia: Passive euthanasia on the other hand is the process of removal of life support like turning off ventilators, discontinuing medications, and terminating food and water so the patient dies. 

Assisted suicide

In this case, the doctor assists the patient to commit suicide if they request it. After it has been determined that the condition of the person qualifies under the physician-assisted suicide laws of the state, then the physician’s assistance is usually limited to writing a prescription for a lethal dose of drugs. Some countries have legalized physician assisted suicide under specific circumstances such as Austria, Belgium, Canada, Germany, Luxembourg, New Zealand, etc. In some states the requirements to carry out assisted suicide are:

  • The person must suffer from a terminal disease,
  • The person must be of sound mind, 
  • The person has repeatedly expressed their desire to die, and
  • The person should take the lethal dose by their own hand.

History of euthanasia throughout the world

In ancient Greece and Rome attitude toward euthanasia was tolerant, in fact, Pagan physicians used to perform voluntary and involuntary mercy killings. The physicians understood the prolonged agony among their patients and assisted them to commit suicide by giving them poison.

In the 15th Century with the spread of Christianity, it was viewed that human life is a trust from God, and hence, it forbade the practice of euthanasia as well as assisted suicide. It was believed that committing suicide violates God’s authority over life, which is God’s gift towards humanity. This belief among people was magnified from the Middle Ages through the Renaissance. 

Even in the 17th Century, common law tradition has disapproved or punished the practice of euthanasia and assisted suicide. Despite the decriminalization of euthanasia in many states of the USA in the late 18th Century, the majority population still rejected the practice of euthanasia and assisted suicide. 

The Field Penal Code which was adopted in the Dakota territory in 1877 served as a model for several other western states’ statutes which helped in the codification of assisted suicide prohibition. 

In the early 20th Century the euthanasia debate entered the political forums once again and a bill to legalize euthanasia was defeated in the Ohio legislature by a vote of 79 to 23. Furthermore, in 1936, a Bill to legalize euthanasia was defeated in the British House of Lords. 

In 1938, Charles Francis Potter founded the National Society for the Legalization of Euthanasia (NSLE). 

In 1972 for the first time, the US Senate held the first national hearings on death with dignity entitled “Death with Dignity: An Inquiry into Related Public Issues.” And later in 1977, eight states in the US such as California, New Mexico, Arkansas, Nevada, Idaho, Oregon, North Carolina, and Texas have signed the right to die bills into law. 

Later several societies were formed all over the world to promote euthanasia and assisted suicide. The World Federation of Right to Die Societies (WFRDS) was founded in 1980. The member of this federation was the countries concerned about euthanasia and the right of the individual to die. Later in the year, the Hemlock Society was formed advocating for euthanasia and assisted suicide. 

The right to commit suicide

The right to commit suicide is a concept based on people’s right to end their lives and to opt for voluntary euthanasia. An individual may opt for this right under grave circumstances such as terminal illness, incurable disease, or just losing the will to live. However, whether a person should be granted this right and if this right is granted then under what circumstances this right will be granted is often subjected to debate. 

We can see in many universal declarations of human rights about the ‘right to life’ of individuals but the right to die is not mentioned in international or regional declarations. Even in the US where suicide has been decriminalized in most states, the attempt to commit suicide is regarded as an offence in most of them. 

In the United Kingdom for a long time suicide was considered an offence to God and the Crown. The Suicide Act of 1961 penalized the individuals assisting with the commission of suicide. The Act further prevents any other Acts encouraging or assisting in the commission of suicide. 

Other countries like France, Pakistan, Bangladesh, etc. consider suicide an offence to this date. All forms of suicide will be punishable no matter the circumstances and even assisting in the commission of suicide is punishable by law.  

Current position of suicide in India

The Indian Constitution plays a crucial role in protecting the rights of individuals. In the case Maruti Shripti Dubal v. State of Maharashtra (1986), when the petitioner suffering from prolonged mental health disorders tried to commit suicide, an offence was registered against him under Section 309 of the Indian Penal Code. The constitutionality of this Section was challenged by the petitioner. The Bombay High Court ruled that Section 309 is unconstitutional and violates Article 21. The Court further stated that when a right to remain silent exists with the right to freedom of speech and expression enshrined under Article 19, thus, the right to die should also exist concurrent to the right to life. The desire to end one’s life is not unnatural and therefore one should not be penalised because of this. The Supreme Court of India in the case P Rathinam v. Union of India (1994), also held that Section 309 violates the fundamental rights laid down in the Constitution of India, as it is cruel and inhuman and penalises a person who has already suffered enough to arrive at this decision. 

This decision was however overruled in the case Gian Kaur v. State of Punjab (1996). The five-judge Constitution Bench held that the ‘right to life’ is inherently inconsistent with the ‘Right to die’ as is ‘death’ with ‘life’. Article 21 of the Constitution mentions the ‘right to life’ of an individual which includes the right to life with dignity thus, including a dignified death process and so includes the right of a dying man to die with dignity. The Court further added that the right to life is a natural right but the commission of suicide is an unnatural act therefore, the Apex Court upheld the constitutional validity of the Section. 

In Aruna Ramchandra Shanbaug v. Union of India & Ors. (2011), the petitioner was assaulted by a man who tried to immobilise her with a belt but he hurt her neck instead, which stopped the oxygen supply to the brain and she ended up having brain damage. This made her survive in a permanent or persistent vegetative state for 36 years. When the case reached the Supreme Court, the Court rejected all the pleas for mercy killing but it recognized the concept of ‘living will’ and it permitted passive euthanasia under certain severe circumstances. This landmark judgement of the Supreme Court paved the way for decriminalizing suicide in India. 

The Mental Healthcare Act, 2017 limited the scope of Section 309, which stated that any person who tries to commit suicide shall be presumed unless otherwise proven that they have been suffering from severe stress and that person will not be penalized.  

Should assisted suicide be legalized in India

In the present day, most people agree that human beings should have the right to die with dignity. In fact, India’s aversion to euthanasia is seen as cultural backwardness. Individuals should be given the right to end their lives if the circumstances become intolerable and not be penalised for such acts. So many people suffering from terminal diseases have to carry on with their lives and not be able to end it just because the law demands it. 

Euthanasia would relieve the family members of the patient suffering from a terminal illness as it is difficult for them to afford the prolonged treatments. Artificially keeping a person alive not only becomes economically challenging for the person’s family, but also puts strains on the medical resources of the country. Long-term palliative care for terminally ill patients is a wasteful drain on the precious medical resources of our country. These medical resources should be utilised by the patients willing to live and can benefit from them.

However, the idea of assisted suicide has been rejected in India by many on the grounds that there are high chances people might misuse it. There are various reasons like property, money, and animosity among family members one can exploit the serious practice of euthanasia. Allowing euthanasia or assisted suicide in India opens up the possibility of unlawful murders disguised as mercy killings. In India, a large population is still uneducated and unaware of their rights. Thus, legalizing euthanasia would only victimize the innocent population and subject them to mercy killings.  

Dr Roop Gursahant who was a panellist doctor in the Aruna Shanbaug case, states that assisted suicide should be legalized in such a society that does not suffer from corruption and every individual is ethically and morally responsible. Furthermore, even to this date when the judiciary and administrative bodies are not free from corruption it would be a grave mistake to legalize euthanasia.

Legality of assisted suicide in other countries

The legality of assisted suicide varies from country to country. The legal position of assisted suicide in some countries are mentioned below.  

Canada

Both euthanasia and assisted suicide have been decriminalized in Canada. In 2014, Quebec passed Bill 52 decriminalizing euthanasia but not physician assisted suicide. But in the next year, the Supreme Court of Canada struck down the prohibition on assisting suicide, therefore giving the Parliament enough time to pass a law legalizing physician-assisted suicide and the conditions regulating it. The law lays down, “medical assistance in dying means (a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes death; or (b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death.” However, the law also stated the eligible people for this statute are:

  • Permanent residents of the country,
  • Must be above 18 years, and
  • Have an incurable medical condition. 

United States

In the US several states have legalized assisted suicide such as Oregon, Washington, Colorado, Washington DC, Hawaii, New Jersey, Vermont, California, etc. However, even if the doctor prescribes a fatal drug to a terminally ill patient the presence of a healthcare professional is mandatory when that drug is being administered. And it also requires a 15 day waiting period between two oral requests and a two day waiting period between the final written request and fulfilling the prescription.

United Kingdom

In the United Kingdom, euthanasia is considered murder or manslaughter and people who go through with it are severely penalized. Under the Suicide Act, 1961, assisted suicide is illegal, which states that, if any person aids another person to commit suicide then such offence carries a penalty of 14 years of imprisonment. When the Act decriminalized suicide the Coroners and Justice Act of 2009, amended the law and illegalized assisted suicide and euthanasia. When Diana Pretty who was suffering from motor neuron disease petitioned the Director of Public Prosecutions to allow her husband to aid her suicide as she was terminally ill and the Human Rights Act of 1998 should not prosecute anyone who is assisting terminally ill people to commit suicide. Her request was denied by both the Director of Public Prosecutions and the House of Lords.

Australia

In 1995, euthanasia was legalized by the Northern Territory of Australia when they passed the Rights of the Terminally Ill Act. However, in the next year, a Bill to overturn the Act was introduced on the federal level, and it made both physicians assisted suicide and euthanasia illegal again. 

Efforts were made to legalize euthanasia and physician-assisted suicide in the year 2013 but the Bill was defeated. Recently, Victoria (the second-most populated state in Australia) legalized limited euthanasia and physician-assisted suicide. However, the law has certain conditions, it is only applicable to terminally ill patients who have a life expectancy of fewer than six months. In that case, the patients can obtain a lethal drug from the medical practitioner for self-administration. This also allows the doctor to administer the dose if the patient is unable to do so themselves.

France

Both assisted suicide and euthanasia are illegal in France. Palliative sedation, in which a person will be deeply sedated until they die is permitted but not assisted suicide. In 2021, the French Parliament blocked a proposal to legalize assisted suicide in the country. 

What is passive euthanasia

Passive euthanasia is a kind of euthanasia that allows intentionally letting a patient die by withholding artificial life support such as a ventilator or feeding tube. It is a procedure where the medical treatment is withdrawn to hasten the death of the terminally ill patient. It is also known as the death brought by omission. Passive euthanasia can be of two types such as withdrawing treatment or withholding treatment. 

  • Withdrawing treatment refers to the removal of the machine which is keeping the person alive so that the person dies from the disease.
  • Withholding treatment is not going through with the surgery or medically required treatment which would extend the life expectancy for a short duration. 

Passive euthanasia can be voluntary or involuntary. When the patient’s treatment is stopped, the patient consents to no further treatment by signing a DNR (do not resuscitate). It is a medical order written by a doctor that prevents the healthcare providers to stop treating the patient. This is known as voluntary passive euthanasia as the patient consents to terminate the treatment. In the case of involuntary passive euthanasia, the family or next of kin of the patient requests the medical professional to stop the treatment allowing them to hasten the death of the patient suffering from an incurable disease. 

The legality of passive euthanasia in India

In 2018, the landmark judgment of the Supreme Court legalized passive euthanasia in India. A petition was filed by an NGO, which moved to the court seeking a direction for recognition of ‘living will’ and further stated that when a medical professional is of opinion that a patient suffering from an incurable terminally ill disease that person should have the right to refuse to put on life support. The petition contended that having a patient live on life support or artificial means without their wishes is an assault on their body. 

Therefore, after much deliberation, the Supreme Court allowed passive euthanasia, permitting ‘living will’ by patients on withdrawing medical support if they slip into an irreversible coma. A living will is a written document where a patient can give his explicit intentions in advance about the kind of medical treatment they wish to receive when they would be terminally ill and could no longer be able to give informed consent. 

In this judgment, the directions and guidelines laid down by the Apex Court would remain in force until legislation is brought into this subject. Supreme Court in 2011 recognised passive euthanasia in the Aruna Shanbaug case by which it had allowed the withdrawal of life-sustaining treatment from patients who are not in a position to make an informed decision. Supreme Court laid down two important circumstances for passive euthanasia, which are:

  • If the patient is in comatose or brain-dead condition, then the ventilator or artificial means of life can be removed.
  • For those patients who are in a Persistent Vegetative State (PVS) the feeding tube can be removed and pain managing palliatives can be administered by following the international guidelines. 

In the case of Common Cause (A Regd. Society) v. Union of India (2018), the Supreme Court recognized the concept of living will in India. The Court also acknowledged the right to die with dignity, right to self-determination and right to autonomy as fundamental rights among the citizens of India. 

Legal developments concerning euthanasia and assisted suicide across the globe

In the last 20 years, the practice of euthanasia and assisted suicide has significantly expanded considerably in Europe, Australia and the United States. 

At present, euthanasia is legal in seven jurisdictions across the world such as the Netherlands, Belgium, Luxemburg, Colombia, Canada and Victoria in Australia. Since February 2020, the Spanish Bill debating euthanasia and assisted suicide has been legalized in the year 2021. A similar Bill was introduced by the Portugal Legislature but the President of Portugal has refused to sign the second draft of the bill legalizing euthanasia and physician assisted suicide. In New Zealand, euthanasia became legal when the End of Life Choice Act, 2019 was enacted and it took full effect on 7th November 2021.

Physician-assisted suicide is legalized in Swizterland and ten states of the US. In the US when the efforts to legalize assisted suicide failed in the early 1900s, it was later restarted by fierce public debate followed by court cases, and eventually, the Supreme Court of the US arrived at the decision that the right to die provisions would be left to the states. Therefore, since 1997 physician-assisted suicide has been legalized in the following US states: Oregon, Washington, Montana, Vermont, California, Colorado, the District of Columbia, Hawaii, Maine, and New Jersey. 

In February 2020, the German Supreme Court overturned the law banning the practice of physician-assisted suicide in a ruling by the constitutional court. It includes prescribing lethal doses of sedatives to terminally ill patients and providing consultation on how to legally access life-ending assistance in other countries. This enabled the German legislature to enact two separate draft bills on physician-assisted suicide. 

With legalizing euthanasia and physician-assisted suicide every jurisdiction has laid down certain substantive, procedural requirements and safeguards. Most countries like Canada, Luxembourg, United States have age restrictions such as the person must be above the age of 18 to request physician-assisted suicide. In some countries, there is no age limit for euthanasia and physician-assisted suicide. However, there exist some common grounds which are followed in every jurisdiction concerning euthanasia and assisted suicide.

  • The request must be voluntary.
  • The individual requesting it must be suffering from a terminal incurable disease.
  • The individual must have unbearable physical or psychological suffering which cannot be cured by medical resources of that state.
  • A second physician must be consulted by the treating physician before the procedure is performed. 
  • Some countries also lay down mandatory waiting periods. 

Conclusion

The practice of euthanasia and assisted suicide is becoming legal in the world in recent years with many judiciaries decriminalizing the offence of suicide and the legislatures enacting laws to enable euthanasia and assisted suicide under certain circumstances. As the access to assisted suicide increases, the need for additional research into the impacts on patients, physicians, health care systems, etc. must be the focus of the administration. The substantive and procedural safeguards must be carefully monitored. 

In a country like India, apart from the medical prognosis, ethical and religious factors are also to be considered. Legalizing euthanasia would enable a lot of people to misuse it but also we have to consider that euthanasia and assisted suicide facilitates a person to die with dignity and not force them to carry on living just because the law demands it. There are various which are necessary to be considered before legalizing euthanasia or assisted suicide in India. Such factors include proper diagnosis by a psychiatrist or psychologist, to understand whether the physical or mental condition is reversible or irreversible and take necessary steps because of it, a second consultation must be provided to the patient, no physician assisted report should go unnoticed. Therefore, it is the responsibility of both the medical community and the legislature to encourage the practice of euthanasia and assisted suicide with the required rules and guidelines. 

References


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Section 9 of Indian Evidence Act, 1872

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This article is written by Michael Shriney from the Sathyabama Institute of Science and Technology. This article discusses Section 9 of the Indian Evidence Act, 1872 in detail, including its fundamentals, illustrations, scope, and case laws.

It has been published by Rachit Garg.

Introduction

The Indian Evidence Act, 1872, is a statute that governs statements made before a court of law and enables or requires witnesses to present them in connection to the facts under investigation. The Indian Evidence Act of 1872 was written by Sir James Fitzjames Stephen. The goal of the Act is to lay forth the guidelines for kinds or the procedure in which evidence is accepted in Indian courts. The Act applies to the facts that are relevant and should be considered by the court; admissions, testimonies, oral evidence, documentary evidence, legal presumption, the burden of proof, estoppel, and all other matters involving in the acquisition of evidence and admissibility of issues on which the court must record its observations.

Section 9 of the Indian Evidence Act of 1872 deals with the facts that must be explained nor introduced as an issue of an argument in a lawsuit. In this Section, it is stated what facts are necessary, what facts are to be introduced as facts in the issue, and what are relevant facts. With an example, the concept would be more clear. For example, ‘Akhil’ accused ‘Bhaskar’ of stabbing ‘Chandran.’ In this situation, the facts stated by ‘Akhil’ are necessary. The facts were given by ‘Bhaskar’ who opposed that he did not kill ‘Chandran’ which is the question in hand, i.e., facts in issue. When ‘Denny’ recalls a fact that ‘Bhaskar’ had a knife in his hand when he entered ‘Chandran’s home and saw Chandran dead,’ the fact is relevant to the case. This example demonstrates which facts are made necessary, which facts are introduced as facts in issue, and which facts are important under this Section. 

What is Section 9 of the Indian Evidence Act, 1972

The following are the facts that are necessary to explain or present significant facts in the matter before the court, as stated in Section 9 of the Indian Evidence Act of 1872 :

  • Facts that are required to be explained, or 
  • Introducing a fact in the dispute, or 
  • Relevant facts to be produced in regard to the matter before the court, or
  • The facts that can be supported, or 
  • The facts that are rebutted as a result of an inference drawn from a fact at controversy, or
  • The fact that establishes the identity of anything or anyone whose identity is relevant, or 
  • The facts that fix the time or place at which any fact in an issue or relevant fact occurred, or 
  • The fact that shows the relationship of parties by whom any such fact was transacted, is relevant to the extent that it is required for that purpose.

Illustrations of Section 9 of the Indian Evidence Act, 1972

Validity of a will

  1. The situation of A’s property and family at the time of the claimed ‘Will’ may be essential criteria in determining whether a certain document is the Will of ‘A.’ This is an example of a relevant fact.

Introducing facts in the issue

  1. When ‘A’ sues ‘B’ for false defamation, ‘B’ accuses ‘A’ of his disgusting behaviour. ‘B’ acknowledges that the matter stated to be defamed is a truthful fact. The position and relationship of the parties at the time when the defamed statement was published may be important facts to the facts in the issue. When there is no specific defamation dispute between ‘A’ and ‘B’, it is not considered a relevant dispute; but, when there is a dispute between them over false defamation, it is considered a relevant dispute.

Relevant fact

  1. ‘A’ is caught in the act of committing a crime. The fact that ‘A’ escaped from his residence as soon as the crime was committed, is important to the fact and affects the facts in dispute. The fact that he had an emergency business at the place towards which he went at the time when he left his home quickly is the excuse stated by ‘A’. Here, the court is uninterested in the details of the company, but the explanation of why it was necessary matters.

The relevant fact as explanatory

  1. ‘A’ files suit against ‘B’ for persuading ‘C’ to violate a contract he signed with ‘A’. “I am leaving you because B has provided me with a better deal“, ‘C’ says to ‘A’ as he leaves A’s service. This statement is a relevant fact as an explanatory comment about C’s actions, which is a fact in dispute.
  2. ‘A’ was found guilty of stealing, and it was seen that he gave the stolen stuff to ‘B,’ who then gave it to A’s wife. “A says you have to hide this” ‘B’ adds as he gives it. B’s statement is significant since it explains a fact that is part of the transaction.
  3. ‘A’ is charged with rioting and is found to have marched in front of a crowd. The crowd’s screams are significant because they explain the nature of the transaction.

Conditions for the applicability of Section 9 of the Indian Evidence Act,1972

The Section’s applicability is either due to the fact that it is explanatory or introductory in nature. The following are the conditions in which this Section should be applied in a case:

  1. The facts must necessarily explain the facts in the issue or relevant facts; or
  2. The facts must necessarily introduce the facts in the issue or relevant facts; or
  3. The facts must necessarily support an inference or rebut the fact in issue or relevant fact; or 
  4. The facts must prove the identity of anything or anybody whose identity is important or significant; or
  5. The facts must necessarily specify the time or place of the facts in issue; or
  6. The facts must always show the relation of persons involved in the transaction.

Scope of Section 9 of the Indian Evidence Act,1972

  1. Explanatory facts

When the facts are viewed alone, certain evidence has no meaning, but when they are interpreted in connection with other facts in a case, they become meaningful. Such facts are significant or relevant facts that must be appropriately communicated.

Consider the following scenario: Alexander attempted to kidnap a girl. During the course of the police inquiry, the accused was seen wandering around near the police station. When the girl spotted the accused, she began to cry in front of her brother, who reported the incident to the police. The accused was arrested by the police. The girl’s statement is self-explanatory.

  1. Introductory facts

When facts serve as an introduction to a key fact, they help in understanding the true nature of a significant transaction. Evidence is permitted only to the degree that it is used to introduce facts in the dispute or relevant facts.

  1. Facts supporting inference

This category of fact is neither relevant as facts in an issue nor relevant facts, but it supports or opposes the inference provided by the facts in the issue or relevant facts.

For example, when ‘A’ murders ‘B’, ‘A’ tries to flee from the village. The fact that he managed to flee is a supporting inference in regard to the murder he committed. This is a relevant fact.

  1. Facts rebut inference

With inferences given or relevant facts, the fact might be rebutted or disproved to the facts in the issue.

  1. Facts establishing the identity of a thing or person

When the identification of a thing is at issue, the information that is most beneficial in determining its identity is considered relevant facts.

For example: When ‘A’ conducts a heist that ends in a murder, the housekeeper is asked to identify the stolen items and the deceased objects. The clothing and shoes of the deceased can be used to identify them. The victim’s jewellery is acceptable if it was identified by a neighbour who attended a party in his home.

Identification of person:

Identification of a person is covered by Section 9 of the Indian Evidence Act of 1872. When a person’s identity is being investigated in a relevant matter, identification might be done by parents, siblings, wives, or other relatives. Identification can be detected in certain cases by a physical mark, sign, or any wound on the body. Medical examinations, such as bones, skeletons, age, voice, and so on, are also used to identify a person. Expert identification is achievable owing to the discovery of handwriting, finger and footprints, and other clues. Various approaches and methods are used to identify a person. The purpose of the identity test is to assist the investigative agency. When family members do not identify the gold that belonged to the deceased individual, but the gold’s owner does. It will be decided that his testimony could not be trusted. It is impossible to dismiss the jewels if family members have lost their memories. Identification evidence is considered substantial evidence in court.

Test Identification Parade (TIP)

The ‘Test Identification Parade’ is one of the ways of determining the identity of the accused. The purpose of the tests is to allow an eyewitness to the occurrence to identify the accused before the Magistrate. The identification of the test is absolutely required. The goal of test identification is to evaluate an eyewitness’ recollection and for the prosecution to determine who can be called an eyewitness. The court may consider identification or supporting evidence in some situations. It would be impossible to accept the identification of an accused by a minor witness without confirmation in court, or the identification of an accused by a witness for the first time without confirmation.

Relevant case laws pertaining to TIP 

Heera v. State of Rajasthan (2007)

This specific case involves dacoity in relation to a parade test identification. Seven dacoits broke the door of a Petrol pump office to steal money in the middle of the night while workers were sleeping in the office. The three dacoits who entered the office battered the workers with lathis. Hearing the worker’s cries, a nearby neighbour came to the scene and was thrashed by the dacoits as well. The criminals stole money from the cash box and escaped. During the trial, thirty-seven witnesses were questioned. The suspects were identified using a Test Identification of Parade. 

The following principles are established for holding the Test Identification of Parade (TIP):

  • The Test Identification of Parade (TIP) is not considered significant evidence. These are used to verify the information.
  • The major goal is to put the witness’s memory to the test during the inquiry stage.
  • The Test Identification of Parade (TIP) procedure begins as soon as the accused is arrested.
  • Appreciation will be based on the authenticity of the eyewitnesses.

Rajnath Singh, Mahatim Singh, Ram Manam, Munnu Alias Monu v. State of Uttar Pradesh (1978)

This case involves dacoity in relation to a Test Identification of Parade. At night, four dacoits break into Sheo Shanker Tiwari’s residence in Sakkapur village. They barged into the house carrying weapons such as a gun, a knife and lathis. They also carried torches. These dacoits tied the family to their beds while they were asleep. They were being threatened with weapons by the daicots. They took items and escaped from home. They discovered one of the dacoits names and filed a complaint against him. The names of the others were unknown, but the family recognized them. They were identified by the parade test. The eyewitness tracked down the others, who were arrested and punished.

Value of identification

The value of Identification is beneficial to both the investigative agency and the accused. Even if the witness is not connected with the accused, he may be able to identify the offender provided a test identification parade is organized as soon as possible. 

Identification in court

Section 9 of the Indian Evidence Act, 1872, established the rule to identify the accused as the identification in court. The person identifying in court must confirm the accused’s identity, and the person identifying in test identification must verify the same.

Photo identification

There is no legal need for the accused to be identified by displaying images to witnesses. In practice, the police show the photos to the witness to ensure that the offender is properly identified. Photograph identification is not required to be given to the witness if the culprit is apparent in video identification. After nearly seven years of photography, it can no longer be trusted.

R v. Tolson (1864)

This case is about photograph identification. In order to confirm the first husband’s identification with the person who attended his marriage as a witness on the marriage certificate. The photograph was acceptable as evidence to identify the image’s visual representation of the accused person. The witnesses talk from their recollections of the event through photos. This is just an identification of an accused based on images recognized by witnesses. As a result, the Court decided that pictures, drawings and photofits of crime scenes may be accepted.

Conclusion

The article finishes by summarising Section 9 of the Indian Evidence Act of 1872. The facts are classified as either explanatory or introductory to the relevant facts or facts at issue. The facts must be explained or introduced, and they must be relevant or supportive to the court’s argument. It can also be rebutted if an inference is drawn from a disputed fact, and otherwise, it can identify anything or anybody related to the fact or facts in the issue or when the relevant facts occur. The information that demonstrates the relationship between the parties involved in the transaction must also be relevant to the facts. 

Different tests are also utilized to determine the facts that can be presented as evidence in court by identifying facts. The identification parade test is used to assess the memory of an eyewitness against the accused. The identification of a person is the process of identifying an accused person or a deceased person using any markings or an identification examination, or through identifying family members. It is also detected through picture identification, which is utilized by authorities to identify the perpetrator from eyewitnesses.

References

  1. https://www.shareyouressays.com/knowledge/section-9-of-the-indian-evidence-act-1872-2/120396
  2. https://www.happyhealthysociety.com/section-9-iea-tip/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Role of Indian judiciary in protection of the environment

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Judiciary

This article is written by Saurav Narayan pursuing a Litigation Library.  This article has been edited by Zigishu (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

Man became more materialistic as civilization progressed. His primary purpose in life was to amass increasing amounts of material wealth. This sparked scientific innovation and new technology, paving the door for natural resource exploitation. The deterioration of the environment became a possible threat because of rapid and unregulated industrialization. Large-scale pollution and damage to the earth’s ecology occurred as a result of the Second World War and the industrial disaster. People began to realize that if this persisted, man’s very life would be risked.

Environmental contamination has long been a problem in India. As a result, Articles 47, 48, and 48A were already included in the Constitution by the framers. The state is entrusted with a set of responsibilities under these articles to protect the environment and conserve the country’s natural resources. The Parliament added Article 51(1)(g) into the constitution since India was a signatory to the Stockholm Declaration of 1972. Individuals have a responsibility to maintain and improve the natural environment, including forests, lakes, rivers, and wildlife, as well as to have compassion for living creatures, according to this article. Apart from that, the Parliament passed numerous anti-pollution laws, such as the Environmental (Protection) Act 1986, The Water (Prevention and Control of Pollution) Act 1974, The Air (Prevention and Control of Pollution Act 1981, The Hazardous Wastes (Management and Handling) Act 1972, The Biological Diversity Act 2002, etc. to protect the Environment.

The Supreme Court of India is a well-respected institution; in general, the public views the Supreme Court of India favorably compared to the state’s legislative and executive branches. The Supreme Court has successfully dealt with a complex, multifaceted, and rapidly increasing and changing field of technology and multi-disciplines. Judicial activism has resulted in numerous developments and has provided the valuable raw material for the development of a comprehensive Indian environmental law. Thus, in the sphere of environmental justice administration, the Supreme Court of India has stood tallest not only before the legislature and executive but also before its counterparts in developed and developing countries, whether old or young.

The Indian Constitution ensures that the judiciary is free from the influence of the legislature and the executive branch of government, making it less vulnerable to pressure from both organs of government.

The remaining part of the paper is split into five sections. The following part delves into the existing literature on Sustainable Development. Part 3: the Indian judiciary’s crucial role in interpreting laws to suit the sustainable development doctrine, followed by a court verdict pertaining to Environment protection in Part 4. The conclusion and Suggestions are presented in the final section.

The Supreme Court of India has adopted the sustainable development principles

Sustainable development is not a new notion; many societies throughout history have recognized the importance of achieving a balance between the environment, society, and economics. The articulation of this concept of global industrial and information society in the twenty-first century is novel. Sustainable development means many things to different individuals, but according to the Brundtland Report.

“Sustainable Development is a development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

Sustainable development focuses on raising the living standards of all people on the planet without risking the environment’s ability to supply them indefinitely; it necessitates an understanding that actions have consequences, and we must find innovative ways to change institutional structures and individual behavior, in other words, it’s about taking action, changing policy, and practice at all levels.

The Supreme Court of India has stated that the United Nations Conference on Human Environment raised environmental consciousness. The idea of “sustainable development” was also established for the first time at the Stockholm Conference in 1972, and it is now recognized as a part of Customary International Law

The Supreme Court of India recognizes the following principles of sustainable development, which can be defined as a programme or strategy for sustained economic and social progress without compromising the environment and natural resources on which continued activity and development are dependent.

  1. Inter-general equity consists of: – “Right development must be accomplished so that equality meets developmental and environmental demands to current generations,” says Principle 3 of the Rio de Janeiro Declaration. In the case of Bombay Dyeing & Mfg. Co. Ltd. vs. Bombay Environmental Action Group, the Supreme Court of India supported this approach. The principle’s major goal is to ensure that the current generation does not misuse nonrenewable resources in order to deprive future generations of their benefits.
  2. The Precautionary Principle is as follows: – “In order to conserve the environment, the precautionary approach shall be extensively adopted by States according to their capacities,” says Principle 15 of the Rio de Janeiro Declaration. “Lack of full scientific certainty shall not be used as an excuse to postpone cost-effective steps to avoid environmental degradation where there is a threat of catastrophic or permanent damage.” The Indian Supreme Court embraced this approach in a modified version, explaining that it has resulted in the principle of burden of proof in environmental matters, where those seeking to change the status quo bear the burden of proof as to the absence of detrimental effects of the proposed acts.
  3. Principle 16 of the Rio Declaration: states that “national authorities should endeavor to promote the internationalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard for the public interest and without distorting international trade and investment.” It is obvious from the preceding note that the goal of the above concept is to hold polluters responsible not just for compensating victims, but also for the costs of rehabilitating the ecosystem.

The Indian judiciary’s crucial role in interpreting laws to suit the sustainable development doctrine

The Indian Supreme Court and High Courts have played a significant role in upholding the Sustainable Development Doctrine. Various laws have been enacted in India to avoid environmental deterioration. In this case, the higher court has played a critical role in interpreting those statutes in accordance with the Sustainable Development Doctrine.

The Indian judiciary has played a vital role in promoting sustainable development and fostering public and private industry while minimising the risk of irreversible damage to the natural environment, which is necessary to maintain the planet’s and India’s healthy flora and fauna. It should be mentioned that all lawsuits involving environmental issues have been brought before the court through Public Interest Litigation (PIL) under Article 32 or Article 226 of the Indian Constitution.

The Supreme Court of India has made a tremendous contribution to environmental and ecological protection, as well as the protection of forest wildlife, among other things. Despite the court’s limited jurisdiction, it has played an important role in this regard. True, we have enough environmental regulations, but their execution is in the hands of administrative authorities, and in this regard, excellent governance devoid of corruption is the most important requirement for environmental protection.

Court verdicts pertaining to the environmental protection

This should be noted that the Indian judiciary has taken a leading role in environmental protection and sustainable development in India. The judiciary’s commitment to social good in general, and environmental protection in particular, has resulted in the innovative use of “public interest litigation” under Articles 32 and 226 of the Indian Constitution as a tool for social and environmental justice.

The right to a healthy environment has been incorporated directly and indirectly into Indian top court judgments, with the first link between environmental quality and the right to life being established in the case of Charan Lal Sahu Etc. vs. Union of India and Others, also known as the Bhopal Case.

In Subhash Kumar vs. the State of Bihar, the Supreme Court of India construed Article 21 of the Indian Constitution to hold that the right to life includes the right to a healthy environment, which includes the right to pollution-free water and air for full enjoyment of life. The Supreme Court has recognized the right to a healthy environment as a basic right in this judgment.

The Supreme Court introduced the new concept of “absolute liability” for disasters arising from the storage or use of hazardous materials from their factories in M.C. Mehta vs. Union of India & others, also known as the Oleum Gas Leak case. The enterprise must ensure that no harm has been caused whether negligence occurred or not.

The Supreme Court of India held in Vellore Citizen Welfare Forum vs. Union of India while businesses are important for a country’s development, the doctrine of sustainable development must be adopted by them as a balancing concept, and the ‘precautionary principle’ and the ‘polluter pays principle’ must also be accepted as part of the law.

The Supreme Court stated in M. C. Mehta vs. Kamal Nath that “any disruption of the basic environment elements, namely air, water, and soul, which are necessary for existence, would be hazardous to life.” As a result, a court exercising jurisdiction under Article 32 can award not only damages but also fines for environmental degradation.

The Gujarat High Court stated in Abhilash Textiles vs. Rajkot Municipal Corpn. that “the petitioners cannot be allowed to harvest profit at the expense of the public health.”

Conclusion 

The environment and development are two sides of the same coin, and none can be sacrificed for the sake of the other. Both, on the other hand, are equally important for our better future. In this situation, it is up to the Supreme Court and the High Courts to handle these matters with extreme caution; only then will we be able to fulfill our goal of ensuring a pollution-free developed country for our next generation.

Another issue that needs to be addressed is the location of the industry. In this regard, it is recommended that, when an industry is hazardous, it is not to be in a location where many people live or near a colony, considering the happiness and health of the inhabitant. It pertains to the provisions of Directives Principles of State Policy Articles 48A and 51A (g).

We always kept in mind Resource management, which is another major issue that focuses on the idea of “sustainable development,” which emphasizes that the right to development should not have an adverse impact on the potentiality of natural resources.

Public Interest Litigation (PIL) under Articles 32 and 226 of the Indian Constitution has also played an essential part in protecting the environment, as most of the Supreme Court’s environmental cases are the outcome of this Public Interest Litigation.

The World Commission on Environment and Development observes, “What is required is a new approach in which all nations aim at a type of development that integrates production with resource conservation and enhancement, and that links both to the provision for all of an adequate livelihood base and equitable access to resources.”

These industries or businesses/trades are sometimes found to be carried on in a way that endangers vegetation cover, animals, aquatic life, and human health, but we now know that any trade or business that is harmful to flora and fauna or human beings cannot be carried on in the name of the fundamental right. In this light, we can only hope that the judiciary would play an essential role in protecting the environment and assisting India’s industrial development by adopting a sustainable development policy.


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All about essentials of valid consideration

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This article is written by Rida Zaidi, a law student of the Faculty of Law, Aligarh Muslim University. The author explains essentials of valid consideration and types of consideration under the Indian Contract Act, 1872.

This article has been published by Sneha Mahawar.

Introduction 

Consideration is the price paid for a promise. As per Section 10 of the Indian Contract Act 1872, an agreement without consideration is void, subject to certain exceptions under Section 25, as consideration is one of the essentials of a valid contract. A contract supported by consideration makes it legally enforceable and makes the obligations of the parties binding upon them. In the absence of consideration, such an agreement would be merely a gratuitous one and not legally enforceable. Consideration can be to the benefit of one party and to the detriment of the other. In the words of Pollock and Mulla, “Consideration is the act, forbearance, or promise done or given at the request of the promisor to any other person.” The detriment of one party is sufficient even if the promisor is not benefited from the promise. It is the price for which the promise of the other is bought. Consideration, in order to be valid, must be real, substantial, and adequate. 

This article shall try to deal with the concept of consideration and its types as incorporated under the Indian Contract Act of 1872.

Consideration as per Section 2(d) of the Indian Contract Act, 1872

Consideration, as given under Section 2(d) of the Indian Contract Act, 1872, defines it as “when at the desire of the promisor, the promisee or any other person has done or abstained from doing something, does or abstains from doing or promises to do or to abstain from doing something. Such an act, abstinence or promise is called a consideration for the promise”. In order to understand the definition of consideration, one must try to study its essentials which are embedded in the above-mentioned definition.

For example, A enters into a contract with B that he will sell his car to B for Rs 10,00,000. Here, the consideration for B is the car, whereas the consideration for A is the sum of money received.

A enters into a contract with B that B shall provide him with the services of moving his office to a new place, for which A shall provide him with Rs 20,000. Here, the consideration for B is the sum of money, whereas the consideration for A is the services offered by B.

Nature of consideration

The nature of consideration can be of two types. They are:

Unilateral consideration

The contracts under which the promisor offers to pay only after the occurrence of a specified event. In other words, the promisor is willing to pay for the promise. Under unilateral consideration, it moves only in a single direction. Under such a contract, only the promisor is legally bound to fulfil his promise within the prescribed time duration. For example- Mr Raj lost his dog and makes an offer to Mr Rahul to find his lost dog for which he would pay him Rs. 100. Mr Rahul is under no obligation to accept the offer and it is up to him to accept it or not.

Bilateral consideration

The contract where both parties are under an obligation to fulfil their respective promises is known as bilateral consideration. Here, the parties involved must be at least two, unlike that of a unilateral consideration where only the promisor is bound to fulfil his promise. Under such contracts, consideration moves in either direction. For example-  a sale agreement where the seller enters into a contract with the purchaser to transfer the title of the car to him upon receiving consideration for the same within the prescribed time duration.

Essentials of consideration

Consideration can only be moved at the desire of the promisor

For valid consideration, it should be moved only at the desire of the promisor and no one else. A voluntary act by the promisee or at the occurrence of some third party would not amount to a valid consideration as it was not done at the request or desire of the promisor. For example, A’s house caught fire, and he requested B to help him put off the fire by bringing some water, for which he would provide him with Rs 500. It is a case of valid consideration as the consideration was moved at the desire of the promisor. It was held in the case of Durga Prasad v Baldeo (1880) that since the consideration was not moved at the desire of the promisor, it did not constitute a valid consideration. It was held in the case of The Municipal Corporation of…v. The Secretary of State for India (1932) that the subscriber was fully aware regarding the purpose of the subscription and also that a duty to pay the contractor for his work was based on the subscription. Therefore, in the present case, the act of the promisor in entering into a contract with the contractor is said to be made at the desire of the promisor.

Consideration by promisee or any other person

Consideration can be provided either by the promisee or any other person, but the condition that needs to be satisfied is that it should be moved at the desire of the promisor only. According to English law, the rule is somewhat different, as under English law, consideration can only be moved by the promisee and no third party who is a stranger or who is not a party to the contract can move the consideration. It was held in the case of Tweddle v. Atkinson (1861) that no case could be made out as the consideration was not moved by the husband, who was the promisee. Under Indian law, a person can bring an action even though the consideration might have been moved by a third party. It is a general rule that a stranger who is not a party to the suit can sue if the contract is for his enjoyment. Thus, under English law, a third party cannot initiate action for the same, but under Indian law, a stranger who may not be a party to the contract can also enforce the contract against the promisee. 

For example, If A purchases a watch from B, but instead of A paying him the consideration, C makes the consideration. This it is a valid contract as per Section 2(d) of the Indian Contract Act, as it says that the consideration can be made by the promisee or any other person. It was held in the case of Chinnaya v Ramaya (1882) that it is not binding that the consideration has to be made by the promisee only. It was held in the case of S. Premalatha v. Mysore Minerals Ltd. and Anr. (1992) that Section 2(a) of the Indian Contract Act 1872, includes the words ‘promisee or any other person’, which means a stranger to a contract can sue. It was also held by the Karnataka High Court in the present case that where the statute lays down clearly who can give consideration, no precedent is required for the same.

Privity of contract

The doctrine of privity of contract lays down the fundamental rule that only parties to the contract can bring an action to enforce such a contract. Though a third party may be interested in the contract, he cannot initiate an action for the same. There has to be a relationship existing between the parties that bestows certain rights and obligations arising out of it. The rule of privity of contract applies equally to both India and England. The rule of privity of contract has to be distinguished from the rule that a contract can be enforced either by the promisee or any other person. This rule does not affect the rule of privity of contract. Under the Indian Contract Act 1872, there is no provision for or against the rule of privity of contract, but the rule laid down in the case of Tweddle v. Atkinson applies to the cases of India as well. It was held by the Privy Council in the case of Krishan Lal v Pramila Bala Dassi (1928) that clause(d) of Section 2 of the Indian Contract Act 1872, widened the scope of the definition of ‘consideration’ to enable a person not a party to the contract to enforce it, which if it had been under English Law, would have rendered that party as a recipient of the purely voluntary promise and such a party would not be entitled to bring an action on the ground of Nudum Pactam. According to Section 2 of the impugned Act as well, a person who is not a party to the contract cannot sue. Moreover, the definition of ‘promisor’ and ‘promisee’ precludes this perception. Under Indian law, it would be wrong to assume that people who are not parties to the contract can sue. It was held in the case of Utair Aviation v. Jagson Airlines Ltd. & Another (2012) that though privity of contract exists in India from time to time, a number of exceptions to it have evolved according to which a stranger who is not a party to the contract can sue, that is, if he is a beneficiary, a trustee, or a third party. The exceptions are not exhaustive.

For example, If A and B entered into a contract that binds both parties to fulfil their respective obligations, and if any of the parties fail to perform their part, only the parties to the contract can sue each other and no third party can initiate an action for the same.

Exceptions to privity of contract

Under a contract, only parties can sue each other, but with time, the courts have devised a number of exceptions for protecting the interests of the third party who is not a party to the contract:

Beneficiary under a contract

When two parties enter into a contract with the intent of creating a charge in favour of a third party who is the beneficiary of some specific immovable property, then if either party fails to perform his part of the obligations, the beneficiary can enforce his right. The  Privy Council has recognised this exception in the case of Nawab Khwaja Muhammad Khan v. Nawab Hussaini Begum (1906)

Marriage, partition or family settlement

Where an agreement is entered into in the interest of the beneficiary regarding a marriage settlement, partition or family settlement, such a beneficiary can enforce such agreement even though he or she may not be a party to the contract. Section 15(c) of The Specific Relief Act 1963, enables the specific performance of the suit for entitlement of the beneficiary and therefore, forms an exception to the rule that a stranger to a contract cannot sue. It was held in the case of Shappu Ammal v Subranarayan (1909) that the mother, though not a party to the contract, was entitled to receive equal shares of maintenance from both of her sons.

Acknowledgement of a liability

Where a person is under an obligation to make a payment to a third party and he acknowledges it to that third party through his conduct, part payment or estoppel. The third-party can enforce the impugned contract as it is based on the principle of the law of estoppel.

Covenants running with the land

Where a person has purchased land with a notice that the owner is bound by certain duties affecting the land, he shall be bound by those duties even though he might not have been a party to the contract. In the case of Steel Authority of India v. the State of MP (1999), it was held that the right of exemption from paying land revenues by the undertaking would be similar to that of the Central Government.

Statutory exceptions

Under certain circumstances, the statute provides protection for the third party even though he might be a stranger to the contract but can still avail of that advantage. For example-  an insurance company bears all the risks of the third party in the event of a motor vehicle accident.

Consideration can be past, present or future (types of consideration)

Past consideration

When the consideration is made prior to the promise and the promise is made subsequently, it is called past consideration or executed consideration. Under such a type, consideration induces the promise and is made after an act has been done in the past without the other party making a promise by the other party. A Promise for consideration is made for an act already done in the past so as to motivate the promisor to subsequently pay the consideration for the impugned act. For past consideration, the promisor does not expect anything in return for an act or obligation, already performed. Past consideration is more likely a moral obligation and in most cases, it is not legally required. Generally, such an obligation of past consideration cannot be enforced until a material benefit is involved for the promise of the benefit that was made after consideration. For example, if A asks B to find his lost dog, after which he will give him Rs 500, It is a valid example of past consideration or executed consideration. In the case of M/S Atma Ram Properties Pvt Ltd v. M/S Federal Motors Pvt Ltd (2004), the Supreme Court held that where a decree for eviction of the tenant has been passed. The tenant is entitled to pay the mesne profits or compensation for the use and possession of the concerned premises at the same rate at which the landlord would have released the premises to some other person if the impugned tenant had vacated. Moreover, the landlord is not bound by the contractual rate of rent until the proceeding at a superior forum on the same issue continues.

Executed consideration

Every contract is based on the performance of an act. An act forms consideration for the promise. When the consideration is constituted simultaneously with the promise, it is called an executed consideration. Executed consideration involves an act for a promise. The act stipulated exhausts the consideration so that no new act would be performed until further consideration is made. Under such contracts, the performance of one of the parties is completed, and it is only the other party that is yet to perform his part of the promise. Both acts and promises forming consideration are essential and correspond to the same transaction. It was held in the case of Mohammad Ebrahim Molla v. Commissioners (1926) that the absence of a tinder seal in a contract of executed consideration does not nullify it but where it is expressly provided, this exception does not even apply to executed consideration in a contract.

For example – A is a shopkeeper from whom B purchases some stationary and B in return pays the consideration for the same. Here, both the parties have performed their part of the obligations and thus it is executed consideration or present consideration.

Executory consideration

When parties to a contract agree to execute an agreement on a future date, in other words, when the promisor makes an offer to the promisee that would take place on a future date and the promisee in return accepts that offer and promises to pay for it at a future date, it is executive consideration. Under such contracts, the performance of the obligations by each of the parties is to be made ensuing to the making of the contract. Under an executory consideration, one promise is exchanged for another promise. In other words, the liability is outstanding on both sides. Valid promises from both sides conclude a contract. Therefore, under such contracts rights and liabilities are outstanding on both sides. It was held in the case of The Municipal Corporation of the…v. The Secretary of State for India (1932) that executory promise includes two promises which are also called mutual promises. One promise is a consideration for another, and contrarily.

For example, A promises to deliver certain goods to B on a future date, B, on the other hand, promises to pay the consideration on a future date as well.

An act, abstinence or promise by the promisee forms consideration

According to Section 2(d) of the impugned Act, in order to constitute consideration for a promise, an act, abstinence that is restraining from doing something or a promise by the promisee needs to be made. If there were no acts, abstinence, or promises there would be no consideration. In the case of Muhammad Kutty v. Dhanya (2022), the Kerala High Court held that in the present case, the question before the court is not whether the plaintiff has paid the balance scale consideration within the stipulated time or not. In the view of the court it is not necessary that the plaintiff pay the full amount; what matters is the willingness to pay the consideration. Therefore, the plaintiff was not ready and willing to perform his part of the obligations. Moreover, the defendant was also not justified in paying the cost of the suit for the specific performance of the contract. 

Consideration needs to be adequate 

While dealing with the adequacy of consideration, courts do not enquire regarding the adequacy of the consideration but about its sufficiency if the matter comes before the court of law. It is up to the consent of the parties to decide what should be the consideration after bargaining and negotiating for an agreement involving the two parties. Consideration should be a reasonable equivalent in the eyes of the law. The adequacy or inadequacy of consideration is not a legal base as per Section 25(2) of the Indian Contract Act, but where the question is regarding the free consent of the promisor in deciding the consideration the courts can take into account the adequacy of consideration if in its opinion there is a fraud, misrepresentation, conjunction etc as a factor for determining the same. In the case of Vijay Minerals Pvt ltd v. Bikash Deb (1995) the Court held that it would not enquire concerning the adequacy of consideration when the question is whether an agreement is binding or not. In the case of K Kumara Gupta v. Shri Omkareswara Swami Temple (2022), the Supreme Court held that where a public auction has taken place and the sale is effected in the favour of the highest bidder, no subsequent offers made by any third party would be taken into consideration so as to set aside the impugned sale. It could be only done if there was an inadequate consideration offered due to fraud, collusion, misrepresentation, etc, or if there was any material irregularity in conducting the public auction.

Consideration should be real

Consideration as per the Indian Contract Act of 1872 should be real and significant. In other words, consideration should be physically real and should not be deceptive or legally impossible. It was held in the case of Leelamma Ambikakumari & Anr v. Narayanan RamaKrishnan (1991), that it is always permissible to prove that consideration in a document was not a real consideration but something different.

Physically real means something that can be done practically. For example- A makes an offer to B to walk for 200 km in 10 minutes. Such an offer is unreal as it is practically not possible. 

Legally impossible means something which is prohibited by law. For example- A makes an offer to B to commit robbery in the house of C for which he would pay a consideration of Rs 10,000 to B. Here, the offence of robbery is prohibited by law.

Consideration should be legal

According to Section 23 of the Indian Contract Act of 1872, consideration should not be illegal, immoral, or opposed to public policy. It was held in the case of Rai Bahadur H P. v. Commissioner of Income Tax (1940), that the task of the courts is to examine whether the consideration is good and legal in a case.

Performance of a pre-existing duty is not consideration

The legal duty of a person cannot be regarded as a consideration in the eyes of the law. As consideration requires a person to do something more than which he is already compelled to perform. Consideration must originate from a new obligation.

Promise to pay less than the amount due

A promise to pay less than the amount due was not considered a good discharge. It was held in the famous Pinnel’s case that the debtor was bound to pay the whole amount, but if the debtor gifted a horse, hawk, robe, etc., it would be considered a good consideration. The courts, over a period of time, have accepted a number of exceptions for Pinnels’s rule:

Part-payment by a third party

When the creditor accepts part payment of the money due to him by the debtor in place of a larger sum of money, he cannot afterwards maintain an action for the same.

Compromise

When the parties enter into a compromise agreement regarding accepting a lesser amount of money instead of the larger sum due.

Payment before time

Sometimes, the payment before time in a different mode or different place than what was agreed by the parties is valid.

Promissory estoppel

When a promise is made in the future with the intention of being acted upon and is actually acted upon then it is binding and the parties cannot alter their positions afterwards. The rationale behind the doctrine of promissory estoppel is to protect the interests of the people who rely upon such promises from any injustice. The doctrine of promissory estoppel is an evacuation from the doctrine of consideration.

Consideration for charitable purposes

In exchange for a promise, one cannot rely on the promise made by the other party that he would make up for the consideration by giving them an amount for charity purposes. Such contracts are not enforceable in the eyes of the law. If the consideration depends upon the faith of the promise or some obligation is incurred by it, the agreement is enforceable. 

Exceptions when agreements without consideration are not void

As per Section 25 of the Indian Contract Act 1872, an agreement without consideration is void except under the following circumstances:

Arising out of natural love and affection – Section 25(1)

When an agreement is made without consideration that has arisen out of natural love and affection between the parties having close relations amongst them, such an agreement is valid even though it is not backed by consideration. The essentials that need to be satisfied are:

  • The parties should be in close relations with each other, that is either through blood relations or marriage. 
  • The promise should have arisen out of natural love and affection.
  • The promise should have been made in writing and registered as per the law relating to registration enforced in the territory.

It was held by the Calcutta High Court in the case of Rajlucky Dabee v Bhootnath Mookerjee (1900) that as the agreement in question did not arise out of natural love and affection, it is was an invalid agreement. In order to attract the exception under Section 25(1), the concerned agreement must be borne out of natural love and affection between close relations. In the case of Ranganayakamma & Anr v K.S.Prakash (2008), the court held that in the present case, for a partition deed to be hit by Section 25 and be void, it needs to be acknowledged in the documents that it arose out of natural love and affection. Moreover, no issues were framed, no evidence was produced, and no objections were raised at the trial stage. Therefore, the validity of the partition deed could not be questioned and was not void per se.

Past voluntary services (Section 25(2))

According to Section 2(d) of the Indian Contract Act 1872, consideration can only be advanced at the desire of the promisor. When a person voluntarily furnishes his services without any promise or desire for the same by the other party, it falls under the ambit of Section 25(2), which is an exception to the rule that an agreement without consideration is void. As per Section 25(2) of the Indian Contract Act 1872, an agreement where a promise has been made to compensate wholly or in part for the services voluntarily furnished in the past, such an agreement is valid though not supported by consideration. It must be kept in mind that the voluntary services furnished are for the promisor only and nobody else. The promisor must have been in existence and competent at the time when the past services were voluntarily rendered. Moreover, the intention of the promisor must be to compensate the promisee rather than embracing any other motive for the same. For example, A finds B’s purse, which was lost. B promises to compensate A by giving him Rs 100.

It was held in the case of Donngaramal v Shambhoo Charon Pandey (1964) that a promise was made regarding the maintenance of a woman for her past voluntary services which she rendered and a promissory note concerning it was found to have been written by the promisor. Such a promise would be a valid one.

Promise to pay time-barred debt (Section 25(3))

A promise made without consideration for a time-barred debt is not enforceable as per the law of limitation but is a valid promise as it falls under the exceptions given in Section 25(3) of the Indian Contract Act 1872. Section 25(3) permits the promisee to pay wholly or in part the time-barred debt. The promisee can only be made liable for the part for which he has promised to pay and not the whole, except where he has promised to pay the whole. The debt must be such that the creditor might have enforced it but due to the restriction imposed by the law of limitation, he could not. The debt must be due to the promisor. Moreover, it must be in writing and signed by the debtor and his agent. It should be an express promise rather than a mere acknowledgement of the same. The impugned promise should also be unconditional. It was held in the case of Tulsi Ram v Same Singh (1981) that the mere acknowledgement of an endorsement is not enough; rather it should be such that it shows that the defendant intended to pay the time-barred debt.

Recent case laws

M/S Prestige Estates Projects v. Assistant Commissioner of Income (2021)

Facts of the case

  • The assessee is a company that carries out the business of real estate development. It entered into joint agreements with 54 parties relating to the construction of the land. 
  • The particular agreement under the present case was entered between the assessee, that is, the M/S Prestige Estates Projects, and the landowners for the construction of an area of 11 acres of land for the construction of a residential area, including areas for car parking, terraces, private areas, etc.
  • The terms of the agreement, included that the assessee shall build up an area(31.66%) in return for consideration of 64.34% of land which will be transferred to it by the landowners.
  • As per the agreement, the assessee has paid an amount of Rs 21,85,00,000 as a ‘refundable security deposit’ which is interest-free. 
  • The ‘refundable security deposit’ was to be paid after 18 months from the date of the initiation of construction. The impugned sum of money can also be recovered by the sale of the constructed area of landowners. 
  • The Assessing Officer passed an order where it was held that the assessee had failed to deduct taxes as per Section 194 of the Income Tax Act 1961.
  • The Assessing Officer also held that the ‘refundable security deposit’ constitutes consideration as per Section 2(d) of the Indian Contract Act 1872, as the impugned Act does not define the term ‘consideration’ within it.
  • The assessee made an appeal against the impugned order before the tribunal.

Judgement of the court

The Income Tax Appellant Tribunal held that as ‘consideration’ is not defined under the Direct Taxes Legislation, the same meaning as given under Section 2(d) of the Indian Contract Act 1872, would be taken into consideration. The tribunal also held that the value of the constructed area that had to be transferred to the assessee was 31.66% which was the consideration for the transfer of 68.36%, of land that was accepted by the landowners. The ‘refundable security deposit’ is a part of the sale consideration for the transfer of immovable property. The tribunal held that the assessee was not in default in paying the taxes as per Section 201(1) and Section 201(1)(a) of the Income Tax Act 1961.

Mr. Raghunath M.G.v. Sri D.N. Badriprasad (2021)

Facts of the case

  • The accused and the complainant were acquaintances of each other.
  • The accused, in October 2013, requested the complainant to lend him a loan of Rs  9,00,000 to fulfil his certain immediate financial needs. 
  • The complainant lent the accused a loan of the impugned sum of money by withdrawing some cash from his bank account by means of selling his property on the promise that the accused would repay the loan within three years from the date of receiving the concerned loan.
  • Subsequent to the period of three years, the complainant approached the accused of the repayment of the relevant money, to which the accused pleaded for some more time.
  • Subsequently, the accused sent two post cheques of Rs. 4,00,000 and Rs. 5,00,000 respectively.
  • The complainant tried to encash them but it showed ‘insufficient balance’. The complainant sent a notice for the same to the accused.
  • The accused replied by contending ‘no claims’.
  • The complainant filed a complaint about the same against the accused.

Judgement

The court held that, as per Section 25 of the Indian Contract Act 1872, an agreement without consideration is void except for the exceptions provided under the impugned section. The court held that as per the deposition of the prosecution witnesses, where a suggestion was made to the accused that to repay a loan transaction, the limitation period was for three years, which the accused ignored. Another witness also deposed that the accused had provided a cheque in the favour of the complainant in 2017. These depositions lead to the conclusion that it is a time-barred debt that cannot be recovered from the complainant. The court also held that there was no express promise made to give a fresh period of limitation and it is a well-settled law that an implied promise is not considered. There was neither an acknowledgement of the debt by the accused in the favour of the complainant within the first three years of the time period, which means it is a time-barred debt, nor any express promise was made in writing. Hence, the accused was acquitted.

Conclusion

Consideration is the price of a promise made by the other party. Something such as an act, abstinence, or promise to do or abstain from doing something at the request or desire of the promisor by the promisee or any other person constitutes consideration for the promise. A valid Consideration needs to be significant, adequate, unconditional to be valid. Consideration must be a real one in the sense that it should not be impractical or legally impossible. Consideration must be moved at the desire of the promisor only and nobody. It has to be given by the promisee or any third party, whereas under English law, consideration can only be moved by the promisee. The types of consideration are past, present, and future. The law does not recognise consideration for charitable purposes and it is unenforceable in the eyes of the law. Consideration should always originate from a new obligation, as consideration from a pre-existing duty is not enforceable. An agreement without consideration is void, but there are certain exceptions incorporated under Section 25, such as promises arising out of natural love and affection, past voluntary services, promises to pay a time-barred debt, etc, under which an agreement without consideration is valid.

References


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All you need to know about active euthanasia

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The article is written by Ansruta Debnath, a law student at National Law University Odisha. This is an article on active euthanasia and the issues that generally follow with respect to it. 

It has been published by Rachit Garg.

Introduction

Active euthanasia : a brief overview 

Euthanasia is the practice of ending a patient’s life in order to alleviate their suffering. The patient in question is usually terminally sick or in excruciating pain and suffering. ‘Euthanasia’ is derived from the Greek words “eu” (good) and “thanatos” (death). The notion is that, rather than subjecting someone to a slow, painful, or inhumane death, euthanasia would allow the patient to have a ‘considerably better death’. Euthanasia can occur either in an active or a passive manner. In essence, passive euthanasia is when life support is deliberately withdrawn or withheld and the patient is allowed to die. 

On the other hand, active euthanasia (also called aggressive euthanasia) involves the active killing of a terminally ill patient by injecting lethal substances into their system. This form of euthanasia is also called ‘aggressive euthanasia’. This is a controversial practice where several issues emerge.  

Types of active euthanasia 

It is important to note that active euthanasia can be voluntary or nonvoluntary. Through voluntary euthanasia, a person consents to be killed actively or allows for life support to be withdrawn. But, when the patient is unconscious and is unable to give consent, then the situation becomes more complicated. In those situations, euthanasia may be non-voluntary and consent may be given by the family of the patient or some medical representative of the patient. Here, the wishes of the patient may be unknown and the representatives take the decision keeping the best interest of the patient in mind. 

The term ‘non-voluntary’ is being used to distinguish it from involuntary euthanasia where people are killed against their will and without any form of consent. Involuntary euthanasia is usually considered to be murder and is illegal everywhere. A famous example of involuntary euthanasia is the ‘T4 Euthanasia Program’ of Nazi Germany where mentally ill and elderly people were killed.

Issues with active euthanasia 

An examination of international human rights law applicable to active voluntary euthanasia does not yield any clear cut mandate. Instead, it displays a balancing of rights, the proper balance of which may be subject to differing viewpoints.

As a corollary, the right to live does not entail the right to choose to die. However, it does not oblige a state to ensure that a person’s life is protected when this is contrary to that person’s stated preferences. The State’s commitment to safeguarding life must be balanced against the right to personal autonomy, which is enshrined in the right to privacy, in the case of a request for voluntary euthanasia.

Laws banning access to voluntary euthanasia may infringe on the right to respect for private life given by Article 17 of the International Covenant on Civil and Political Rights (ICCPR), and must therefore be justified as a justifiable restriction of that right.

It is vital to remember that subjecting someone to medical treatment against their will or without their agreement may be a violation of their physical integrity and a violation of their rights under Article 17 of the ICCPR. In addition, the Disability Convention states that people with disabilities have the same right to life, health, physical integrity, and personal autonomy as people without disabilities.

If a country decides to legalise active voluntary euthanasia, the International Covenant on Civil and Political Rights (ICCPR) demands that the legislation include rigorous and effective protections against abuse. Such legislation may need to include an adequately worded ‘conscientious objection’ clause in order to be compatible with the right to freedom of mind, conscience, and belief.

According to the findings, there is no single identifiable right that necessitates the legalisation of voluntary euthanasia, nor is there any single identifiable right that forbids it, as long as strict safeguards are in place. From a human rights standpoint, it appears that the option exists to support the legalisation of voluntary euthanasia procedures if enough safeguards are put in place to prevent “arbitrary” (including discriminatory) deprivations of life.

Arguments for legalising active euthanasia

Right to choose

The fundamental reason for which euthanasia should be legalised is for giving effect to the right of a person to choose how they want to live their life. This involves the right to self-determination. Self-determination is valuable because it permits people to live in accordance with their own conception of a good life, at least within the bounds of justice and consistent with others doing so as well. In the exercise of self-determination, people take responsibility for their life and for the kinds of persons they become. A central aspect of human dignity is a person’s capacity to direct their own life. 

Transparency and legitimacy

What cannot be denied is that active euthanasia can occur illegally. Thus, it is always better to legalise it and bring in structural frameworks which can effectively reduce its misuse. The practice can then occur in the safest manner possible and a statute would also give much-needed predictability for patients and clinicians who aid them. Further, critical safeguards will be put in place making the process more patient-friendly.

Resources

It is always better to channel resources into patients who actually have a chance of recovery. Using them on those people who will not recover has no use and is simply wasteful.

Arguments against legalising active euthanasia

Role of doctor

The belief that such actions undercut the “role of the doctor” as a “healer,” as defined by the Hippocratic Oath, is one of the arguments against legalising active voluntary euthanasia. This is a debatable point of view. Another perspective is that the doctor-patient connection is better defined as a provider/customer relationship, in which the patient as a consumer ‘may ask for whatever he or she wants,’ and the doctor ‘ can choose whatever he or she wants to deliver.’ Under this perspective, a doctor may be justified in acting in a way that could be construed as active voluntary euthanasia.

Palliative care industry

A major argument against active euthanasia is how legalising it would undermine the palliative care industry and reduce investments in them. Further, it would also lead to the gradual rejection of the need for palliative care, something that has enormous value, not only for the patients but also for their families.

Slippery slope

The slippery slope argument, which claims that legalising active voluntary euthanasia would lead to widespread involuntary euthanasia and the end of lives no longer regarded socially useful, is the most frequently stated objection to its legalisation. This, however, is an entirely unsupported claim. The slippery slope argument is frequently stated without respect for the risks of abuse or other issues that come with keeping the current rule in place.

Social perspective

Several faiths consider euthanasia to be a kind of murder and hence morally reprehensible. Suicide is also considered “illegal” by several religions. There is a moral argument that euthanasia will erode society’s respect for life’s sanctity.

Competence 

Euthanasia is only voluntary if the patient is mentally competent, has a clear awareness of the alternatives and implications, and is able to communicate that understanding as well as their desire to end their own life. It is difficult to determine or define competence.

Guilt

Patients may feel compelled to assent because they believe they are a drain on resources. They may believe that their family is under too much financial, emotional, and mental stress. Even if the state covers the expenses of treatment, there’s a chance that hospital staff will have an economic motive to induce euthanasia consent.

Doctor’s perspective on active euthanasia 

In a 2010 study of more than 10,000 physicians in the United States, 16.3 per cent said they would consider stopping life-sustaining therapy if the family asked it, even if they thought it was premature. Around 54.5 per cent said no, while the remaining 29.2 per cent said: “it depends.”  In addition, 45.8% of physicians thought that physician-assisted suicide should be permitted in some circumstances; 40.7 per cent disagreed, and the remaining 13.5 per cent were undecided. 

In the United Kingdom, the assisted dying campaign group ‘Dignity in Dying’ cites research showing that 54% of general practitioners support or are neutral on assisted dying legislation. Similarly, according to a 2017 study published in the British Medical Journal, 55 per cent of doctors feel that assisted dying should be legalised in the UK under certain conditions.

The risk of being asked to engage in euthanasia in a circumstance when they believe it is wrong is a source of concern among healthcare workers. In a 1996 study of 852 nurses working in adult intensive care units, 141 (17 per cent) reported that they had received requests from patients or family members to perform euthanasia or assist in suicide; 129 (16 per cent of those for whom data were available) reported that they had engaged in such practices, and an additional 35 (4 per cent) reported that they had hastened a patient’s death by only pretending to provide life-sustaining treatment ordered by a physician.

Position of active euthanasia in India

Active voluntary euthanasia is valid and legal in certain countries like Belgium, Colombia, Luxembourg, Canada etc. India does not allow active euthanasia but in 2018, through a landmark judgement, the Supreme Court of India legalized passive euthanasia.

The right that comes into question with respect to euthanasia is the right to die. In Aruna Ramachandra Shanbaug v. the Union of India (2011), the Supreme Court held that the right to die was not included within Article 21 of the Indian Constitution which talks about the right to life. This was previously in Smt. Gian Kaur v. the State of Punjub (1996) wherein a Constitution Bench held that euthanasia and assisted suicide were both illegal in India. 

In the Aruna Shaunbaug case, it was stated that active euthanasia was illegal all over the world unless specifically legalised. The same applied in India such that active euthanasia was illegal and a crime under Section 302 of the Indian Penal Code, 1860. The Shaunbaug case also went on to explain active euthanasia as a process in which specific steps are taken to cause a patient’s death, like sodium pentothal, which causes the person to have a deep sleep in a few seconds, and then the person instantaneously dies in this deep sleep without any pain. 

In Common Cause (A Regd. Society) vs. Union of India and Anr. (2018), the Court extensively considered Indian and international precedent and held that the right to die with dignity was a fundamental right under Article 21.

In 2018, an elderly Mumbai couple wrote a letter to the President of India, requesting permission for active euthanasia because they were dissatisfied with their life. This instance highlights a very different aspect of legalizing the right to die. 

Position of active euthanasia : a global view 

As mentioned before, there are certain countries that allow for active euthanasia. Euthanasia is legal in Belgium, Canada, Colombia, Luxembourg, the Netherlands, New Zealand, Spain, and a number of Australian jurisdictions. Between 1996 and 1997, active euthanasia was permitted in the Northern Territory, but it was repealed by a federal statute. Peruvian court-approved euthanasia for one person, Ana Estrada Ugarte, in 2021.

Belgium

Belgium is said to have the most liberal euthanasia law in the world. Since its legalization in 2002, it allows for the same not only for terminally-ill patients but also for children with psychiatric conditions. Many experts feel it allows patients with chronic and intolerable suffering a practical and humanitarian way to die peacefully. Active euthanasia also has popular, public support in Belgium.

Canada

Canada allows active euthanasia for adults suffering from ‘grievous and irremediable conditions’ whose death is ‘reasonably foreseeable’.

Colombia

In Colombia, terminally ill people can request voluntary active euthanasia, with the first such death occurring in 2015. The request for assisted dying must be approved by an independent committee.

Luxembourg

Active euthanasia is legal in Luxembourg for adults who are suffering from ‘constant, intolerable suffering and no prospect of improvement’.

Netherlands

The Netherlands was the first country to legalise euthanasia and assisted suicide in April 2002.

It imposed a stringent set of requirements, including that the patient is in excruciating pain, that their ailment is incurable, and that the demand is made in “full consciousness” by the patient.

Children as early as 12 years old can seek assisted dying, but those under the age of 16 must-have parental authorization.

New Zealand 

Following the implementation of the End of Life Choice Act, 2019 on November 7, 2021, voluntary euthanasia is lawful in New Zealand.

Spain

Spain is the most recent country to legalize active euthanasia for serious, incurable or debilitating diseases when it passed the law in 2021. They also became the fourth country in the European Union to take this step. 

Conclusion 

Active euthanasia seems to be the most humane course of action for terminally ill patients. When it is voluntary, the argument for legalising active euthanasia becomes much more valid and stronger. Simply put, there is no point in prolonging a person’s pain and suffering. The main reason why governments are unwilling to legalize it is to prevent its misuse. But the fact is that misuse of the same happens anyway. So it will only be beneficial if proper frameworks are put in place. It will make the entire system more efficient and patient-friendly. 

References

  1. https://medicine.missouri.edu/centers-institutes-labs/health-ethics/faq/euthanasia
  2. https://www.medicalnewstoday.com/articles/182951#some-statistics
  3. https://humanrights.gov.au/our-work/age-discrimination/publications/euthanasia-human-rights-and-law
  4. https://www.wionews.com/photos/countries-where-euthanasia-assisted-suicide-is-legal-281943#spain-371508

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Digital labour platforms’ implications on workers and employment

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This article is written by  Syed Muheeb a 2nd-year student at Bangalore Institute of Legal Studies pursuing a Diploma in Law Firm Practice: Research, Drafting, Briefing, and Client Management.  This article has been edited by Ruchika Mohapatra (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

At the height of the digital era, we are rapidly witnessing a staggering increase in tech companies and most companies including tech are now generalizing the notion of Work-from-home. Digital Labour is essentially categorized with their ability to work from any place, any time and take up any Job in accordance with their specific skill set.

For this form of labour, the Digital Labour platforms have become facilitators to these gig workers and employ them for part time-based work or freelancing. A couple of key platforms in this are Swiggy, Uber, Ola, Upwork, Fiver. Even as a customer to these platforms they have taken up a huge part in our Contemporary lives. These tech companies reap enormous benefits in terms of saving infrastructure cost, insurance, compliance cost that would otherwise be required for employing them in a traditional office.

History behind digital labour and the platforms 

The Internet has changed the way we perceive things. The work that was traditionally ‘Geography based’ had a significant change with the introduction of the internet. The internet plays a crucial role in connecting the workers and their employers by a facilitator interchangeably used with the term apps. Now the clients, bosses, workers and even the end product users can be located in different corners of the world. Specific examples are the E-commerce industry like Amazon, Flipkart, Alibaba.

This rise in digital Labour can be attributed to the amalgamation of two trends primary being the rise in unemployment and the need to be employed for sustainability. Just in the case of India, the current unemployment rate stands at 6.57% in January 2022 according to (Centre for Monitoring Indian Economy) hereinafter referred to as CMIE. Which is a staggering number that was acknowledged even in the budget of 2022

The secondary influence is the increasing connectivity on a global scale. The rise in smartphone penetration and people being able to access the internet is at 51.4 % in 2019 from 16.8% in 2005 on a global level.

The usual work on these digital platforms consists of two types: Micro-work and Macro-work. 

Microwork are short and the nature of these are copywriting, content writing, clerical nature, Product categorization, Digital Marketing, Verifying and Validating data and translation of data. The Macro work on the other hand are long term projects which require domain expertise such as Website development, Graphic designing, Contract drafting. To get access to these works’ platforms like Upwork and Fiverr play a crucial role and these platforms require these gig workers to highlight their area of work and showcase any projects that they have undertaken.

Current scenario of digital platforms and workers

The work in terms of online web-based platforms across the world has tripled over the last decade. Moreover the number of taxi-based services (Uber) and delivery platforms like swiggy grew significantly. The total number of all such platforms rose from 142 in 2010 to over 777 in 2020, according to the (International Labour Organization) hereinafter referred to as ILO data. The size of these platforms was usually micro that is housing less than 50 employees.

There haven’t been any strong labour reforms in place to oversee the work and payment of these gig workers but recently in the case of Uber BV. The United Kingdom (hereinafter referred to as the UK) Supreme Court has ruled that Uber drivers cannot be treated as independent contractors and directed Uber to treat them as workers and provide them with benefits such as paid holidays, Minimum wage and even pensions. This affects the entire structure of digital platform industries making them fall in line with all other companies in terms of labour laws. 

India has consolidated its labour laws into 4 Codes on industrial relations, occupational safety, wages, and social security. Also known as Occupational safety, health and working conditions code hereinafter referred to as OSHWC Code. Among other changes, this new framework recognises the core work of employment in digital labour such as ‘gig work’. Moreover, the Code on Social Security, for instance, extends employment-related benefits to gig workers, which makes India one of the first countries to insert labour reforms for the digital economy.

Now, as per every digital platform, the core business of these online platforms sustains on networking and building relationships with consumers. This drives innovation and a competitive environment and establishes a new touchstone for digital services. It can be attributed to providing an online equivalent of the scale of economies. The overall utility to total participants is increased by every additional node in the chain of the network which is a reference to these gig workers. 

A good digital network like Upwork or Fiverr has given the consumers of these services hundreds of options to complete their project be it short term or long term and because of this system, the heterogeneous services are being offered at a very low hourly rate. The usual cost of Macro-work will lie somewhere around 5-20% of the total project cost and currently, this does not provide any social security benefits and there are huge concerns around non-payment of wages as well. In regards to the above concerns, the OSHWC Code outlines exceptions to limitations on the use of contractual labour. 

The concerns and need for redressal

In my opinion, the concerns, right from the amount paid to these platform workers, some of them are in the form of incentive-based and even hourly rates. The hourly rates are in dire need of assessment. To cite the survey by ILO, it showed that average hourly earnings were anywhere between US$2 – 6 depending on the type of Micro-work in 2017, The even more concerning part is a significant number of workers in these digital platforms were earning below the prevailing minimum wage in their jurisdiction, most often than not these workers lacked the power of negotiation where the option was either to accept the work or be rejected.

The work intensity during that period of the gig is in a high stressed environment, for example drafting a contract is usually to be done within a day or two, this is amplified by the work availability, unreasonable rejections and even non-payments for pre-agreed amount as the payment is made post completion of work and in the digital era the consumers have reportedly ghosted the gig workers on multiple occasions. To address this platforms like up work and fiver have a strong policy against contacting the consumer or the service provider outside the purview of the platform. Last but not least, social security measures like insurance or coverage from Covid pandemic for all these gig workers from swiggy to uber are virtually non-existent. 

To address these growing concerns, the Court of UK in its major verdict held certain criteria for people who have flexible work hours in order to be classified as workers. The courts will be looking into the substance of the arrangement, degree of control passive or active and then decide if the workers are entitled to receive statutory benefits such as the National minimum wage and holiday entrenchment. The decision has far implications on companies like Uber and Swiggy whose entire operations rests on these gig workers and essentially seek to treat them as independent contractors or clients, rather than full employees to re-evaluate their hiring arrangements and go over as to how they should be treated. 

India’s labour code/OSHWC Code and the recognition of Gig workers not only outlines expectations to limitations on contractual labour but also has covered and extended certain benefits of labour reforms. However, the implementation of the code is left at the discretion of the state. As we all know the history of labour laws, their unpredictable interpretation due to key Stakeholders and convoluted legal drafting has chequered their existence. 

In line with states, constant backtracking on promises to labour is not something that is new. Like in the case of revocation of labour laws during a critical time of the Covid pandemic by Uttar Pradesh and Madhya Pradesh under the pretext of economic sustenance and resilience. The sheer number of cases at district and taluka courts on labour and industrial disputes is a staggering 1.5 lakh cases and is in dire need of attention. The government needs to at least employ smart policies when the economic support is less, to tackle this situation. 

Conclusion

Why do I need to look after the employees who work at the time they like? How are they different from independent contractors? Time has changed with the increasing connectivity of the internet and a major chunk of the workforce increasingly constituting the digital form of labour. It’s absolutely critical that the employees are classified as employees as without these fundamental rights the operations of the companies would essentially be non-functional. They are different from the independent contractors as the quick buck to earn has suddenly transformed itself into a full-fledged primary job, even the working hours are being dictated by the digital platforms as the workers are ready to work even on the barest of income margins and this exploitation is pretty much going unnoticed for several years on record. 

But finding the right balance between the companies and employees is like driving a car with no steering wheel and we all know how that ends up for both driver and pedestrian. However, the ‘comply or explain’ template is proportionate to a digital economy like India and its digital platforms as it forms the core basis of a transparent yet effective regulatory framework. Let’s hope for better employment and work prospects for these invisible armies. 


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All you need to know about the Currency Swap Agreement

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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of the currency swap agreement in which two parties trade the principal and interest of a loan in one currency for the principal and interest in another currency.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction 

A currency swap is a “contract to exchange primary amounts in two distinct currencies at an agreed-upon future date at an agreed-upon conversion rate.” During the contract’s period, the party’s trade interest is computed on the principal amounts in an agreed-upon manner. A currency swap is a legally binding agreement between two parties to swap principal and interest rate obligations, or receipts, in different currencies. The transaction entails two counterparties exchanging precise amounts of two currencies at the outset and repaying them over time according to a predetermined formula that reflects both the interest payment and the principal amount amortisation. This article provides every kind of information associated with currency swap agreement and the concept of currency swap as a whole. 

What does currency swap mean

A swap is a contract between two parties to exchange cash flows with differing characteristics at predetermined future times or at predetermined periodic intervals. The swap is one of three key types of derivatives securities used in risk management, the others being forwards/ futures and options. Swaps, or interest rate swaps, are a type of swap in which all cash flows are exchanged in the same currency. A currency swap is a swap that involves the exchange of cash flows denominated in two currencies, but it also involves the exchange of principals. When all cash flows are denominated in the same currency, there is no need to swap principles.

Purpose of currency swap

The purpose of a currency swap is to obtain loans in foreign currency at lower interest rates than if the funds were borrowed straight from a foreign market. Currency swaps were originally adopted by the World Bank in 1981 in order to obtain German marks and Swiss francs. On loans with durations of up to ten years, this type of swap is possible. Currency swaps are different from interest rate swaps since they entail principal exchanges as well.

Types of currency swaps 

The following types of cross-currency swaps are generally used:

Fixed to fixed currency swap 

Swapping fixed interest payments on a loan in one currency for fixed interest payments on an identical loan in another currency is an example of this type of swap. The actual principal does not have to be changed. Although an alternative currency can sometimes be swapped at spot into the desired currency, the primary amounts are always re-exchanged when the swap matures.

Fixed to floating cross-currency swap

Fixed-rate liabilities in one currency are swapped for floating rate commitments in another currency in this type of swap. For example, fixed-rate US dollars can be exchanged for pounds at LIBOR (London Inter-bank rate) + variable rate.

Stages in currency swap 

The currency swaps involve an exchange of liabilities between currencies and are carried out in three stages provided hereunder: 

  1. A spot principal exchange: This is included in the swap agreement since a comparable impact can be achieved utilising the spot foreign exchange market.
  2. Interest payments continue to be exchanged over the life of the swap: This is equivalent to a series of forwarding foreign exchange contracts over the duration of the swap contract. Typically, the contract is fixed at the same exchange rate as the spot rate used at the beginning of the swap.
  3. Principal re-exchange at maturity: The principal amount getting re-exchanged 

In a currency swap the principal sum is usually exchanged in one of the following manners:

  1. In the beginning.
  2. At a combination of start and end.
  3. In the end.

What is a foreign currency swap

A foreign currency swap, commonly known as an FX swap, is an agreement between two foreign parties to exchange currencies. The agreement entails exchanging principal and interest payments on a loan in one currency for principal and interest payments on a loan in another currency of equal value. A party borrows currency from a third party while simultaneously lending that party another currency. During the term of a currency swap, each party continues to pay interest on the swapped principal amounts. When the swap is completed, principal amounts are re-exchanged at a predetermined rate (to avoid transaction risk) or the spot rate.

Types of foreign currency swap

Currency swaps are divided into two categories, namely:

  1. The fixed-for-fixed currency exchange entails swapping one currency’s fixed interest payments for another’s fixed interest payments. 
  2. Fixed interest payments in one currency are swapped for floating interest payments in another in the fixed-for-floating swap. The principal amount of the underlying loan is not exchanged in this form of a swap.

Examples of foreign currency swaps

Currency exchange is frequently used to get lower-cost debt. For example, European Company ‘A’ borrows $120 million from U.S. Company ‘B’ and lends 100 million euros to U.S. Company ‘B’ at the same time. The rate is based on a $1.2 spot rate, which is linked to the London Interbank Offered Rate (LIBOR). The agreement enables the most cost-effective borrowing.

Furthermore, some institutions employ currency swaps to decrease their exposure to expected exchange rate changes. If a U.S. Company ‘A’ and a Swiss Company ‘B’ want to acquire one another’s currencies (Swiss francs and USD, respectively), they can use a currency swap to decrease their respective exposures. Several developing countries with liquidity concerns were given the option of currency exchange for borrowing purposes by the Federal Reserve during the 2008 financial crisis.

What are interest rate swaps

A simple agreement between two parties to exchange a series of interest payments on an underlying loan is known as an interest rate swap. There is no exchange of principal, and an unrelated quiet financial transaction occurs that has no bearing on the lender. A fixed-rate of interest is replaced with a variable rate or vice versa. A legal agreement between two parties to exchange their interest rate obligations or receipts is known as an interest rate swap. As a result, interest payment streams of various kinds are swapped according to specified rules and are based on an underlying notional principal amount in such a transaction. 

Interest swaps provide a buffer against future interest rate changes as well as the introduction of new, low-cost borrowing options. When a corporation borrows to take advantage of one type of financing but prefers another, its sources will engage in an interest rate swap. In an interest rate swap, two parties exchange interest payment obligations that are denominated in the same currency. The floating/fixed rate swap is the most prevalent of all types of swaps.

Types of interest rate swaps

Interest rate swaps can be structured in a variety of ways to satisfy the specific needs of each company:

  1. A ‘fixed-to-floating swap’ converts your foreign currency borrowings from fixed to floating rates, or vice versa. To reduce interest rate risk over the loan’s life, a company should switch from a floating to a fixed-rate term at the bottom of the interest rate cycle, and vice versa at the crest.
  2. A ‘coupon swap,’ sometimes known as an ‘interest-only swap,’ is an agreement between two parties to swap interest rate commitments in different currencies. For example, if interest rates on the US dollar are predicted to rise, a corporation with dollar borrowings may choose to shift its interest payments to a currency with lower interest rates.
  3. A ‘plain vanilla swap’, is another type of swap in which fixed and floating interest payments are based on a notional principal amount, and is the most common type of interest rate swap.

How does a currency swap work

Financial institutions, trading on their own or on behalf of a non-financial firm, are the most common participants in currency swaps. According to the Bank for International Settlements, currency swaps and forwards currently account for the majority of daily transactions in global currency markets.

FX Swaps and exchange rates

Swaps can extend for years, depending on the terms of the agreement, so the exchange rate between the two currencies in question on the spot market can fluctuate considerably throughout the duration of the trade. Currency swaps are used by organisations for a variety of reasons. They know exactly how much money they will get and how much they will have to repay in the future. If they need to borrow money in a specific currency and expect that currency to appreciate significantly in the coming years, a swap can assist them to reduce the cost of repaying that loan.

FX Swaps and cross-currency swaps

A currency swap is also known as a cross-currency exchange, and the two are nearly identical in terms of functionality. However, there may be minor variations. A cross-currency swap is similar to an FX swap in that the two parties exchange interest payments on the loans throughout the swap’s duration, as well as principal amounts at the beginning and the end. Interest payments are sometimes included in FX swaps, although not always. Interest can be paid in a variety of ways. A fixed or floating rate can be paid by both parties, or one party can pay a floating rate while the other pays a fixed rate. This form of swap generally helps borrowers achieve cheaper interest rates than they could get if they were required to borrow directly in a foreign market, in addition to managing exchange-rate risk.

Illustration to show the functioning of currency swap

Consider a corporation that has US dollars but requires British pounds to start a new business in the UK. Meanwhile, a British corporation requires US funds to make a US investment. They find each other through their banks and come to an agreement where they both acquire the money they need without having to go to a foreign bank for a loan, which would almost certainly come with higher interest rates and a larger debt load. Currency swaps are not required to be recorded on a company’s balance sheet, although loans are.

Benefits of currency swaps

  1. Currently, swaps allow businesses to make use of their comparative advantage in raising funds in one currency in exchange for savings in another.
  2. Currency swaps allow businesses to switch their loans from one currency to another based on their predictions for future currency and interest rate movements.
  3. It gives companies more options when it comes to hedging the risk of a certain currency.
  4. If a corporation has chosen the wrong currency for its overseas finance operations, currency exchange can rectify the damage.
  5. Currency swaps allow you to lock in exchange rates for a longer length of time without having to monitor and review them.
  6. To restructure the currency base of a company’s liabilities, the currency swap mode can be selected.
  7. Currency swaps are used to reduce the cost of raising funds and to mitigate currency risk on future receipts (asset swaps) and payments (liability swaps).
  8. The currency swap market’s strong liquidity provides a continual supply of principals willing to take the other side of a transaction.
  9. In a currency swap, the maturity exchange rates are known from the start.
  10. By mutual agreement, the counterparties may be able to terminate swap arrangements early.
  11. Currency swaps can be entered into at any point during the transaction’s life cycle, and they are used to hedge.

Disadvantages of currency swaps

  1. In the short run, the costs of putting up a currency swap may make it unattractive as a hedging tool against currency swings. In the long run, where the risk is higher, the swap may be more cost-efficient than other types of derivatives. One downside is that there is always the possibility that the other party to the contract will default on the agreement.
  2. There is a risk of Central Government interference in exchange markets. The same thing happens when a government purchases a large quantity of foreign debt in order to temporarily stabilise their country’s weakening currency, which can result in a significant drop in the local currency’s value.

The market for swaps to function

Swaps account for 80% of the worldwide derivatives market, with a market capitalisation of $320 trillion as of 2015. The swap market has long been considered an ‘Over the Counter Market’ since these products are often tailored to the needs of the client and are difficult to standardise so that they can be sold in an exchange. The swap market, on the other hand, is one of the world’s largest, most liquid, and competitive markets. Despite these qualities, it has not been immune to digitisation in recent years, and a considerable number of the most popular contracts are now negotiated electronically using platforms such as Bloomberg, Tradeweb, or individual brokers’ platforms. The swap market is undergoing significant regulatory changes in order to improve openness and access to information while also lowering systemic risk.

What is a currency swap agreement 

A currency swap is an agreement to swap fixed or floating rate payments in one currency for fixed or floating rate payments in another currency, as well as an exchange of principal currency amounts. A consumer can re-denominate a loan from one currency to another by using a currency exchange. The aim is to match the difference between a currency’s spot and future rates over a set period of time. The re-denomination of a currency is done to reduce the cost of debt borrowing and to protect against exchange risk. 

In most swap transactions, institutions with a global presence operate as mediators, bringing the two parties together. Banks may become counter-parties to a swap arrangement and attempt to mitigate the risk they are taking by entering into an offsetting swap deal. Banks might also take positions in the futures markets to protect themselves.

In currency exchange, a common approach is to include simply the loan principal in the agreement. The parties agree to swap the principal of their loans at a certain rate at a set point in the future. Alternatively, the principal exchange of the loans could be combined with an interest rate swap, in which the parties swap the interest streams on the loans. The currency exchange in some situations would only apply to the interest on the loans, not the principal. Over the course of the arrangement, the two interest streams would be switched. As these interest streams are in separate currencies, the payments would be made in full by each party rather than being netted into a single payment as would be the case if only one currency was involved. 

Currency swaps provide the advantage of bringing together two parties who each have a competitive edge in a specific market. A domestic corporation, for example, may be able to borrow on better terms than a foreign company in a given country. As a result, a currency swap would make sense for a foreign corporation entering that market. The cost of obtaining a willing counterparty is one of the costs that a firm seeking a foreign currency swap may face. This could be accomplished through the use of an intermediary or through direct negotiations with the opposing party. In terms of fees imposed by an intermediary or the cost of management time spent negotiating, the process could be costly. There will also be legal fees associated with drafting the currency swap agreement.

Top clauses that must be present in a currency swap agreement

A general overview of the clauses that are a must in a currency swap agreement have been provided hereunder:

  1. Provisions on termination of the agreement: This segment will be consisting of provisions on the following:
  • Payment of early termination.
  • Termination currency.
  • Additional termination event.
  1. Tax representations:
  • Payer tax representations.
  • Payee tax representations.
  1. Agreement to deliver documents: 
  • Tax forms, documents or certificates to be delivered.
  • Other documents to be delivered.
  1. Miscellaneous: 
  • Addresses for notices.
  • Process agent.
  • Offices.
  • Multibranch party.
  • Calculation agent.
  • Credit support document.
  • Credit support provider.
  • Governing law.
  • Netting of payments.
  1. Other provisions:
  • Payments.
  • Payment instruction for both parties of the transaction.
  • Representations.
  • Event of default.
  • Termination. 
  • No set-off.
  • Transfer.
  • Facsimile transmission.
  • Definitions.
  • Interpretations.
  • International Swaps and Derivatives Association (ISDA) Definitions.
  • Inconsistency.
  • Limitation on liability.
  • Procedures for entering into transactions.
  • Replacement currency swap agreement.
  • Disclosure to related bodies corporate.
  • Appointment of manager.
  • Anti-money laundering.

Key takeaways of a currency swap agreement 

  1. The equivalent principal amounts are exchanged at the spot rate, at the beginning of the swap.
  2. Each side pays interest on the exchanged principal loan amount for the duration of the swap.
  3. The principal amounts are exchanged back at the end of the swap at either the current spot rate or a pre-agreed rate, such as the rate of the original principal exchange. Use of the original rate would eliminate the swap’s transaction risk.

Take, for example, an American corporation may be able to borrow at a rate of 6% in the United States, but a loan in rand is required for an investment in South Africa, where the equivalent borrowing rate is 9%. At the same time, a South African company wants to fund a project in the US, where the direct borrowing rate is 11%, compared to 9% in South Africa. A fixed-for-fixed currency exchange allows one party to gain from the interest rate of the other. In this scenario, the American firm can borrow dollars at 6% interest and then lend the money to the South African firm at 6% interest. The South African firm can borrow South African rand at 9% and then lend the money to the US firm for the same amount.

Terminologies that need to be acknowledged while dealing with a currency swap agreement

  1. Balance of payment (BOP)
  1. A country’s balance of payments (BOP) can be defined as a systematic account of all of the country’s economic dealings with the rest of the world during a given time period, usually a year.
  2. The BOP account can have a surplus or a deficit overall.
  • If there is a deficit, money can be taken from the Foreign Exchange (Forex) Account to cover it.
  • The term ‘BOP crisis’ refers to a situation in which the reserves in a currency account are running out.
  1. The components of BOP includes the following: 
  • Current account: It depicts the export and import of visible and invisibles, respectively (includes goods and services).
  • Capital account: It depicts a country’s capital spending and revenue. It summarises both private and public investment flows into a given economy.
  • Errors and omissions: The payment balance does not always balance. Errors and omissions in the BoP reflect this imbalance.
  1. Foreign exchange reserves
  1. A central bank’s foreign exchange reserves are assets denominated in a foreign currency.
  2. Foreign currencies, bonds, treasury bills, and other government instruments are examples of foreign exchange reserves.
  3. These reserves are utilised to back liabilities and exert monetary policy impact.

Things to remember about currency swap agreements

  1. Swap is a term that signifies ‘exchange.’ A currency swap is an agreement or contract between two countries to exchange currencies under predetermined terms and circumstances.
  2. A currency swap, (for example) is effectively a loan from Bangladesh to Sri Lanka in dollars, with the promise that the debt will be returned in Sri Lankan rupees with interest. This is a better deal for Sri Lanka than borrowing from the market and is a lifeline as the country struggles to retain appropriate foreign exchange reserves (FX reserves) as it prepares to repay its external obligations.
  3. Currency swaps are used by central banks and governments to address short-term foreign exchange liquidity needs or to assure adequate foreign currency to avert a Balance of Payments (BOP) crisis until longer-term arrangements can be established.
  4. As the transaction terms are determined in advance, there is no exchange rate or other market risks in these swap operations. Exchange rate risk, often known as currency risk, is the financial risk posed by changes in the value of a base currency relative to a foreign currency in which a firm or individual has assets or liabilities.

How can India benefit from currency swap agreements

  1. So far, the Government of India’s Ministry of Commerce has finalised agreements with 23 nations with which Indians can trade in local currencies. Simply put, both countries’ importers and exporters must quote and receive settlements in their own currencies. For starters, there is no third-country currency involved, so there is no need to be concerned about exchange rate fluctuations. 
  2. India has placed a strong emphasis on persuading nations with large or significant trade deficits with India to join this agreement. Dues are still payable in rupees, avoiding the need to settle in foreign exchange in US dollars, Euros, or other currencies. Once the Ministry of Finance has approved the countries with which such an arrangement would be mutually beneficial, the Ministry of Commerce is in charge of initiating bilateral talks to reach an agreement.
  3. It should be remembered that in the instance of Iran, 45 percent of the dues for oil imports were paid in Rupees and credited to their UCO Bank account in Kolkata. In Turkey, the balance was made available in Euros. Iran now has a credit balance of Rs 50,000 crore (about $6 billion), and it is in our best interests to work closely with them to suit their needs in terms of products, services, and turn-key projects.
  4. It should be mentioned that in the first half of the fiscal year 2013-14, the government’s foreign exchange reserves were depleted by $10.7 billion due to a drop in net capital inflows.
  5. Fortunately, key oil exporters such as Angola, Algeria, Nigeria, Iran, Iraq, Oman, Qatar, Venezuela, Saudi Arabia, and Yemen are included in this list of CSA countries. Currently, we are working to expand our exports to Iran, Iraq, Oman, Qatar, and Saudi Arabia. We have advanced countries like Japan, Russia, Australia, and South Korea on the list of non-oil exporters with which we have major commerce, as well as Singapore, Indonesia, Malaysia, Mexico, South Africa, and Thailand. Japan has boosted the volume from $15 billion to $50 billion to allow trade between the two friendly nations to flourish without the use of third currencies. Our current account deficit has shrunk to around 2% of GDP, down from 4.5 percent in the first half of last year. Exporters must take advantage of the current arrangements and support the government’s efforts by closely sticking to the rupee trade quotations.
  6. In terms of promotion, India should make an effort to attend international trade exhibits in all of these nations and fund trade delegations in order to expand our commerce. The Ministry of Commerce must take the lead in launching vigorous promotional activities in the nations named above, particularly Iran, Nigeria, Qatar, Saudi Arabia, Japan, South Korea, Mexico, and Venezuela, with whom we have debit balances. Incredible India advertisements on local television and through local chambers of commerce might be beneficial. Efforts to promote India as a viable and serious trading partner would assist to solidify our ties with these nations.

The SAARC currency swap framework

The SAARC currency swap mechanism went live on November 15, 2012, with the goal of providing a backstop line of finance for short-term foreign exchange liquidity needs or short-term balance of payments stress until longer-term arrangements can be negotiated. In November, the RBI decided to implement a revised framework (2019-2022) on currency exchange arrangements for South Asian Association for Regional Cooperation (SAARC) countries, with the approval of the Indian government, with the goal of promoting financial stability and economic cooperation within the SAARC nations. From November 14, 2019, till November 13, 2022, the framework will be in effect. The RBI will enter into bilateral swap agreements with SAARC central banks that desire to use the swap facility based on the framework’s terms and criteria.

Within the entire corpus of USD 2 billion, RBI will continue to offer swap arrangements under the framework for 2019-22. Withdrawals are available in US Dollars, Euros, and Indian Rupees. Certain advantages are available for swap drawals in Indian Rupee under the Framework. All SAARC member countries are eligible for the facility if they execute bilateral swap arrangements. Afghanistan, Bangladesh, Bhutan, Maldives, Nepal, Pakistan, and Sri Lanka are the other members of the SAARC.

What is this currency swap arrangement (CSA)

An agreement between two friendly countries to trade in their respective national currencies. Both countries pay for import and export commerce at predetermined exchange rates, rather than bringing in a third-country currency such as the US Dollar, as per the agreement. There is no third-country currency involved in such arrangements, therefore concerns about exchange rate fluctuations are the least requirement. The Reserve Bank of India has agreed to a $400 million currency swap facility for Sri Lanka till November 2022.

Significance of the currency swap arrangement

  1. Improves the Indian market’s confidence.
  2. Allows India to access the agreed-upon amount of funds.
  3. Reduce the cost of finance for Indian companies seeking to enter the international capital market.
  4. Aids in the stabilisation of India’s foreign exchange and capital markets

Notable currency swap agreements 

Two notable currency swap agreements and associated information relating to them have been shared hereunder. 

Indo-Japan currency swap arrangement

The Union Government of India had signed a bilateral currency swap arrangement with Japan in 2018. The country that takes out the loan pays interest to the country that gives it to them at a benchmark interest rate, such as LIBOR. While India has such agreements with a number of Asian countries, the one with Japan is the largest, valued at $75 billion. The administration expects that this agreement will serve as a buffer for the rupee, which has lost 14% of its value against the dollar in 2018

How did the Indo-Japan currency swap agreement work

  1. The currency swap agreement allowed the Reserve Bank of India to borrow up to $75 billion in yen or dollars from the Japanese government anytime it needed.
  2. The RBI could sell these dollars (or yen) to importers to settle bills or to borrowers to repay foreign borrowing.
  3. The Reserve Bank of India could even keep the money to shore up its own foreign exchange reserves and protect the rupee.
  4. While the RBI had $426 billion in foreign currency reserves by April 2018, it has had to use part of it in recent weeks to keep the rupee afloat.
  5. Though the RBI’s current FX reserves of over $390 billion are sufficient, having a $75 billion loan-on-demand from Japan provides an additional buffer.

The reason behind the Indo-Japan currency swap arrangement 

  1. The rupee has been losing ground versus the dollar in recent months due to the country’s expanding current account deficit (the difference between imports and exports of goods and services).
  2. As a result, importers’ demand for dollars rises well above what exporters bring into the country.
  3. A swap agreement with Japan provides substantial confidence to India, as Japan is the world’s second-largest holder of dollar reserves, after China, with over $1.250 billion in cash on hand.
  4. As a result, while Japan is unlikely to request a dollar loan from India, India can benefit from such a loan at extremely low-interest rates.
  5. This agreement could also be seen as a payoff for lucrative investment deals that assist Japanese corporations in setting up companies in India.

What does the Bangladesh-Sri Lanka currency swap mean

Bangladesh’s Central Bank has approved a $200 billion currency swap facility to Sri Lanka. According to Bangladeshi media sources citing the bank’s spokesman, the Bangladesh Bank has authorised in principle a $200 million currency swap agreement with Sri Lanka, which will aid Colombo in overcoming its foreign exchange problem. Sri Lanka is in desperate need of foreign money, with an external debt repayment schedule of $4.05 million that was due in 2021. Its own foreign exchange holdings were $4 million as of March 2021. To put the facility sanctioned by Bangladesh Bank into action, the two parties must sign a written agreement. Following a proposal from Sri Lankan Prime Minister, Mahinda Rajapaksa to Bangladesh’s Prime Minister Sheikh Hasina. In this, Dhaka consented to extend the service.

What does currency swap mean in this context 

A currency swap, in this context, is effectively a loan from Bangladesh to Sri Lanka in dollars, with the promise that the debt will be returned in Sri Lankan rupees with interest. This is a lifeline for Sri Lanka, which is struggling to retain adequate forex reserves as payback of its external obligations approaches. The agreement will specify the duration of the currency swap.

Is it unusual for Bangladesh to swap currency with Sri Lanka

  1. Bangladesh has not been perceived as a source of financial aid to other countries in the past. It has long been one of the world’s poorest countries, and it continues to receive billions of dollars in aid. However, over the last two decades, it has literally dragged itself up by the bootstraps, and by 2020, it will be the fastest-growing economy in South Asia.
  2. Bangladesh’s GDP expanded by 5.2% in 2020 and was anticipated to expand by 6.8% in 2021. Millions of people have been lifted out of poverty throughout the country. Its per capita income recently passed that of India. This may be the first time Bangladesh has offered assistance to another country, thus it is a watershed moment.
  3. Bangladesh’s foreign exchange reserves were $45 billion in May 2021. Despite predictions that the pandemic would have a negative impact on remittances, Bangladeshis residing abroad sent over $21 billion in 2020. Sri Lanka is also borrowing from a SAARC country other than India for the first time.

Why didn’t Sri Lanka approach India, the biggest economy in the region

Sri Lanka did approach India for a currency swap, but it received no response from the nation. President Gotabaya Rajapaksa met with Prime Minister Narendra Modi in 2020 to request a $1 billion credit swap and, separately, a freeze on debt repayments to India. However, tensions have arisen between India and Sri Lanka as a result of Colombo’s decision to reject a vital container terminal project at Colombo Port. 

India delayed making a choice, but Colombo no longer has that luxury. Sri Lanka had already lost one of its main foreign exchange pullers before the pandemic, with the tourism industry decimated since the 2019 Easter bombings. The pandemic, which is harming exports, has also hit the tea and clothing industries. In 2020, remittances grew, but they were not enough to help Sri Lanka out of its dilemma.

China already owes the country a large amount of money. Sri Lanka received a $1.5 billion currency swap facility from Beijing in April 2021. Separately, China, which provided Sri Lanka with a $1 billion credit in 2020, has extended the second $500 million tranches of that loan. Sri Lanka, according to media estimates, owes China up to $5 billion.

Sri Lanka’s tourism industry may suffer greatly as a result of the prolonged FX crisis. The economic situation in Sri Lanka is deteriorating, according to the latest British government report, with shortages of basic needs such as medications, petrol, and food due to a lack of foreign currency to pay for imports. Grocery stores, gas stations, and pharmacies may have long lines. Local governments may implement electricity rationing, resulting in power disruptions, according to the alert. Canada has also recommended its citizens to keep food, water, and fuel on hand in case of prolonged interruptions, as well as to ensure that they have an adequate quantity of medicines on hand in case they are unavailable, and to keep an eye on local media for the latest developments. 

Credit swap facility that India gave Sri Lanka in 2020

The Reserve Bank of India (RBI) did grant a $400 million credit swap facility to Sri Lanka in July 2020, which was settled in February 2021 by the Central Bank of Sri Lanka. The contract was not renewed. The RBI has a structure in place that allows it to grant credit swap facilities to SAARC countries up to a total of $2 billion. The SAARC currency swap facility was launched in November 2012 with the goal of providing “a standby line of finance for short-term foreign exchange liquidity requirements or balance of payment crises until longer-term arrangements are made,” according to RBI.

This information was already communicated by the Indian High Commission in Colombo to senior authorities in the Sri Lankan government and the Central Bank of Sri Lanka. According to a High Commission statement, on July 22, the High Commission supported fruitful technical discussions on Sri Lanka’s bilateral debt repayment rescheduling. According to the statement, “these positive developments demonstrate active implementation of the leadership-level commitment to work together to address the challenges arising from the COVID-19 pandemic and further the mutually beneficial India-Sri Lanka partnership, including in the economic domain.”

How do companies benefit from interest rate and currency swaps

Companies can use currency and interest rate swaps to traverse the global markets more efficiently. Swaps of currency and interest rates bring two parties together who have a competitive edge in distinct markets. Interest rates and currency swaps, in general, provide the same benefits to a corporation. 

The interest paid on the principal amount and the currency utilised for payment differ in the interest rate and currency swaps. An interest rate swap is a transaction in which two parties exchange cash flows based on interest payments for a specific principal amount. A currency swap entails exchanging the principal as well as the interest rate in one currency for the same amount in another. A currency swap is an ‘off-balance-sheet’ transaction because it is a foreign exchange transaction. 

A cross-currency exchange can also be beneficial for a corporation that has issued bonds in a foreign currency and wants to convert those payments into local currency. Currency swaps are sometimes necessary when a corporation receives a loan or revenue in a foreign currency that needs to be converted to local currency, or vice versa.

Currency and interest swaps in case of companies 

The interest paid on the principal amount and the currency utilised for payment differ in the interest rate and currency swaps. These derivatives or securities allow corporations to minimise or control their exposure to interest rate volatility or achieve a lower interest rate than they would otherwise be able to receive. Swaps are frequently employed since a domestic company can typically get better rates than a foreign company. As a currency swap is a foreign exchange transaction, it is not legally required to be reported on a company’s balance sheet. This means that they are ‘off-balance-sheet’ transactions, and a company’s swap debt may not be declared in its financial statements.

Assume that firm A is based in the United States and company B is based in the United Kingdom. Company A must take out a loan in British pounds, while Company B must take out a loan in US dollars. These two companies may do a swap to benefit from the fact that each has superior rates in their respective countries. By merging their privileged access to their respective marketplaces, these two corporations may save money on interest rates. 

Swaps also assist businesses in hedging interest rate risk by minimising the unpredictability of future cash flows. Companies can use swapping to adjust their debt terms to take advantage of current or anticipated future market conditions. As a result of these benefits, currency and interest rate swaps are employed as financial tools to reduce the amount needed to pay a debt. Although there is some risk connected with the likelihood that the other party will fail to meet its obligations, the benefits of participating in a swap significantly exceed the costs.

Conclusion 

A currency swap is an agreement between two parties to exchange currencies under predetermined terms and circumstances. Currency swaps are primarily used to mitigate various risks and instability in exchange rates and foreign exchange markets. Governments and central banks conduct currency swaps with their foreign counterparts to ensure that sufficient foreign currency is available in the event of a foreign currency shortage.

References 


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All you need to know about Public-Private Partnership in India

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This article is written by Rida Zaidi, a law student of the Faculty of Law, Aligarh Muslim University. The author tries to analyze the concept of public-private partnerships in India in detail.

It has been published by Rachit Garg.

Table of Contents

Introduction

A public-private partnership is a collaboration between the government and a private entity for financing the economic infrastructures such as airports, highways, railways, etc. by the private sector, which was traditionally controlled by the government. It is a contractual agreement. The allocation of resources, risks, etc. involved is predetermined. It is a win-win agreement for both the government and the private entity, as the government needs investment in its projects and the private entity requires profits for the same. Private entities combine their technology and innovation with the government’s ability to complete a project within a given time frame and limited budget. The Indian economy during these past one and a half decades have shown a tremendous increase in public-private partnerships in all sectors of the economy. The Central and various state governments have taken measures to frame policies in order to promote and increase the scope of public-private partnerships. The government has set up a public-private partnership appraisal committee for the approval of such projects and transparent bidding competition amongst the private companies. The government, in its Draft of National Public-Private Policy (2011) has laid emphasis on creating a broader framework for inclusive and sustainable growth of these partnerships. The impugned draft has laid down the principles that govern public-private partnerships; the different models of public-private partnerships; the institutional and governance mechanisms etc. The public-private partnership also involves certain advantages and disadvantages. This article tries to observe concepts of public-private partnerships in India.

Public-private partnership meaning

Public-private partnership is an arrangement of a government or statutory entity or government-owned entity on one side and a private entity on the other side, for furnishing public assets or public services. Public-private partnership is invested and maintained by the private entity for a specified period of time for which the private entity is provided with a performance-based remission that is either fixed or performance-based. In a public-private partnership, the facility or service is provided by the private entity to the people at large. The allocation of risks is maintained in an optimal manner so that the party best suited, must bear the risk. The purpose of public-private partnerships is to improve performance rather than to just provide services. As it is based on a contractual agreement, it is constituted for a predetermined period after which the partnership terminates. Such a partnership utilizes the private sector’s efficiency in supplying quality services. In a public-private partnership, the private entity engages itself in designing, managing, operating, implementing, etc. On one hand, the government benefits from the efficient services of a private entity whereas, the private entity receives profit for the same. An example of a public-private partnership is that In 2017, the Union Cabinet approved a new Metro Rail Policy according to which the public-private partnership (PPP) model is now mandatory for availing metro rail projects. 

Models of public-private partnership

There are a number of models of public-private partnership on the basis of the degree of investment, technical collaboration, duration, etc. Some of them are as follows:

Build-Operate-Transfer Model (BOT)

Under this model, the government enters into a contract with a private company to design, build and facilitate. The private entity is entitled to collect the revenue and maintain it. After the contractual period is over, the private entity transfers the facility back to the government, and the government then maintains and operates the facility by itself. For example, the National Highways are an example of the BOT Model of Public-Private Partnership.

Build Own Operate (BOO) Model

Under this model, the government assigns a private entity to design, build, facilitate, and operate a facility. After the facility is designed, the private entity retains the ownership rights of the concerned service.

Build Own Operate Transfer (BOOT) Model

Under this model, the government grants a franchise to a private entity to build, design, and operate a service for a specified time. After the specified time the facility is retransferred to the government.

Build Own Lease Transfer (BOLT) Model

Under this model, the government grants a concession to a private entity to own the facility and lease it to the government sector. After the lease period, the facility is retransferred to the government.

Design-Build Finance Operate (DBFO) Model

Under this model, the private entity is responsible for the design, construction, finance, operation, etc. for a long term lease. After the lease period, the facility is retransferred to the government.

Lease Develop Operate (LDO) Model

Under this model, the government continues to hold the ownership rights of the facility and receive remission for the lease agreement from the private entity.

Analyzing the draft of National Public-Private Partnership (2011)

In 2011, the Ministry of Economic Affairs published a draft regarding the National Public-Private Partnership on its website for persuading comments from the stakeholders. There has been a lot of debate concerning the particular draft on the grounds of its transparency and accountability. The impugned draft was a good step taken by the government of India, as through this draft people as well as stakeholders could raise their concerns and suggest reforms for the same. The draft of the National Public-Private Partnership incorporates the principles governing the implementation of public-private partnership, enabling frameworks, public-private partnership process, governing mechanisms etc.

Principles conducting the implementation of Public-Private Partnership

  1. The first principle is to provide a fair and transparent mode of scheme for the public-private partnership that would encourage and promote it.
  2. The second principle is to provide an equal and fair opportunity to the contesting private entities so that fair governance can be maintained over the project.
  3. The third principle is that the purpose of the public-private partnership must be related to the maximum satisfaction of the consumers, and similarly, the maximum interest of the stakeholders should be met.
  4. The fourth principle is to provide quality services with the best innovative ideas possible, skills, knowledge, and the efficiency of the private entity to the users.
  5. The fifth principle is to provide a broad framework so as to include greater participation of private entities, which would help in greater investments and greater public-private partnerships. It would also help in creating long-term relations for the creation of public assets and public services in the future.
  6. The last principle is recognising the ultimate development aim of such partnerships, which would aid the government in formulating the policies and programmes accordingly. It would also help the government in bringing the required changes in the legislation if required in the interest of public-private partnerships.

Public-private partnership (PPP) process

The public-private partnership process involves the following stages: identification, development, procurement, contract management and monitoring stage.

Identification stage

In order to make the existing assets and the new assets that would be formed, conducive, the government frames a broad vision or plan regarding the public-private partnership. Every agency would assess the role of every project that is planned for each financial year. The risk of being bored is always kept in mind while envisioning the framework for the same. The private investment which would be impacted by the project and the revenue that it would generate is also analysed. The choice of approach for money assessment needs to be analysed carefully, as to whether it is the best approach for the acquisition of the value of money and whether it would be a good value of money for the public sector. Before framing the body of any public-private partnership, it is checked as to whether the concerned project is permitted to be executed as per the legislation, and if it is not, but it is prudent to execute it, the government shall make the necessary amendments in the concerned legislation. The assessment of every project is carried out by considering the interests of the stakeholders and the development of the impugned project. If the project does not align with the above-mentioned criteria, the agency dealing with the particular project can consider any other alternative for the same.

Development stage

The development stage of the public-private partnership involves the preparation stage. The Preparation Stage comprises the technical practicality assessment and financial potential assessment to be made regarding every project undertaken. This stage also comprises the preparation of contractual documents, obtaining clearance and approval for the concerned projects. The objectives of these activities are:

  • Determining the scope of the projects and the requirements of the concerned agency. The roles and responsibilities of the parties need to be decided well.
  • Determining the revenue system as to whether it is firm and sustainable to operate the projects.
  • Optimally allocating the risks.
  • Ensuring that the contractual documents include all the necessary clauses regarding the obligations of the parties, consideration for the contract, termination clause, arbitration clause, etc.

Economic, financial and affordability assessment

The agencies would evaluate the project in terms of the value that it would provide to the consumers and the benefit that would be received by the private entity. The agencies would also engage with experts regarding financial, technical, and legal assistance that would be needed while undergoing the designing and building of the impugned project.

Economic assessment

The economic assessment involves the evaluation of the project regarding the satisfaction it would provide to the users, the cost assessment, the interests of the stakeholders, and the benefits arising from the future assets that would be created. Moreover, it will also be assessed whether the public-private partnership is the best model available compared to the conventional mode of procurement of revenues.

Financial assessment

The financial assessment involves the evaluation of the revenues and whether there are sufficient revenues to provide an acceptable return of revenues. 

Affordability assessment

The affordability assessment is analysed considering both the perspectives of the stakeholders as well as the users. Moreover, loans, guarantees, and other fiscal liabilities should also be taken into consideration while assessing the public-private partnership model.

Management risks

The government analyses the kinds and degree of risks involved in every project. The objective of the public-private partnership is to allocate the risks in an optimal manner and to weaken the risks as much as possible. The genuine concerns of the stakeholders are kept in mind while determining which entity is best suited to bear the concerned risks. The government does not bear those risks that the private entity is accustomed to bearing. The contractual agreement envisages the allocation of risks and protects both parties from the undue advantage that might be taken. The government prescribes certain guidelines for the approval and formulation of central sector public-private partnerships. All such partnerships have to adhere to these guidelines. The state governments are also directed to formulate their guidelines for such projects accordingly. The government can also review and revise its guidelines regarding the allocation of risks involved in public-private partnerships.

Procurement stage

The Procurement Stage involves the process of fair, transparent, accountable, and non-discriminatory procurement of a private entity. The government has prescribed certain guidelines for the procurement process. The Government tries to enable maximum participation of the private sector so as to obtain the best possible proposal for the project. The necessary documents for the bidding process include the test of interest, qualification, technical support that will be provided, etc. The agencies take all the necessary steps to get the approval and to proceed with the project as prescribed by the norms of the government. A timeline is provided for the completion of the projects in order to prevent any delays and to provide the services on time to their users. The government prescribes its guidelines by issuing them in the form of notifications from time to time. 

Contract management and monitoring stage

The contract regarding a public-private partnership is an active process and not a passive one. The conditions during the completion of the project keep changing so it requires an authority that could monitor and keep control over the ongoing activities of the concerned project. The contract manager must be functioning as an effective and responsible authority. The authority must be appropriate, so as to carry out any action in the cases of any default in the performance of the service, delay in completion, etc. The timely and smooth implementation of any project involving a public-private partnership is one of the essential elements of the project. The concerned agency establishes monitoring units to coordinate among different departments for the effective implementation of the service. The database of every project is recorded in the form of tabular data regarding the ongoing projects and the status of the concerned projects of the public-private partnership for improving and delivering quality services to the users. 

Key sections of the Public-Private Partnership Agreement in India

A public-private partnership agreement in India comprises sections and chapters. When some detailed information regarding a specific issue is required, it is provided in the form of annexes or schedules. The public-private partnership agreement in India varies according to the nature of the agreement, mode, risks, responsibilities etc, but there are certain key sections that are common in all public-private partnership agreements in India:

Introduction

The introductory section of a public-private partnership identifies the parties involved, the scope, description, objectives, language, date and place of agreement etc.

Definitions

This section of the agreement provides all the definitions and their interpretations that are necessary for the understanding of the impugned agreement. It also lays down the solutions which could be adopted by the parties in case there are any ambiguities in the text.

Obligations of the parties

This section sets forth the rights, privileges, mutual obligations, and expectations of both the parties involved in the agreement.

Allocation of risk

This section involves information concerning the allocation of risks. When a private company is under an obligation to perform a task as per the impugned agreement, all the risks and expenses associated with such tasks are on the shoulders of the project company.

Engagement of sub-contractors

This section involves the rights, obligations, duties, etc. of the sub-contractors and agents.

Project site

This section includes the necessary information regarding the project site, its title, possession, maintenance, and the licenses that are needed to be collected by the private company.

Construction design

This section includes the architectural design of the physical infrastructure, its monitoring, supervision, etc. and the approval and review of the construction design. The terms of the initiation and completion of the project design, its repair and maintenance, etc.

Commencement and duration

This part of the agreement involves the information concerning the starting date of the project work and the duration, which is fixed regarding the expected period in which it would come to an end.

Changes if any

This section involves the process and procedure in case any changes take place after the commencement of the project work.

Finances

This section involves information concerning the fixation, payment, adjustment of finances and bonuses, the mode and time of payment, performance security, VAT, taxes, charges of the supervising authority, etc.

Waste treatment

This section includes information regarding the management of waste disposal, its transportation from the site to the treatment centre, and then the final stage of recycling.

Change in law

This section involves the terms of the agreement in case any changes are made in law after the parties have entered into a contract.

Force majeure

This part includes the provision concerning such circumstances which prevent the happening of the performance of a contract and the legal remedy for the same.

Termination of contract

This section includes the terms of the termination of the contract, the renewal of the contract, and if any new operator takes over the impugned project.

Handover formalities

This section includes the procedures and formalities concerning the handover of the project by the private company upon its completion within the predetermined period.

Functioning as an auditor 

The appointment, obligations and discharge of the duties of the auditor are laid down in this section.

Dispute resolution mechanism

This section involves the procedure of alternation dispute resolution, the rights and obligations of the parties involved, etc.

Representations and warranties

This section involves the representations and warranties of the private company, and if any change is made, it has to be notified in this section.

Miscellaneous

This section includes indemnity, liability, governing laws, etc.

Authorising structure

The government has a financial support system for public-private partnerships to fill the financial gap. The government plans to intervene more in such partnerships and recognises new sectors, such as the health and education sectors where these projects would have a significant impact. The government, in order to mobilise a greater number of financial resources and new financial instruments for public-private partnerships, should have a regular interface with banks, financial institutions, etc. The government determines the need for consistent and clear communication during the completion of the projects. It gives an opportunity to the stakeholders to raise their concerns, and the legal framework would protect the interests of the public, specifically those who would use those services that would be provided by the impugned project.

Public-Private Partnership Cell

The Public-Private Partnership Cell in the Ministry of Economic Affairs would provide expertise and technical support for public-private partnerships. The cell would comprise of experts from various fields such as law, finance, science, etc. Those experts would be experienced in both public and private sector duties. They will aid in the discharge of the projects by providing technical and financial support. Moreover, they shall also engage in coordinating, developing, constructing etc. The public-private cell will also review the projects at various stages of their progress, along with the Ministry controlling and evaluating the audit of the projects.

Institutional and governance mechanism

The Cabinet Committee of the Ministry of Economic Affairs in order to promote and encourage public-private partnership has constituted a Public-Private Partnership Appraisal Committee (PPPAC). It comprises of the following:

  1. Secretary, Department of Economic Affairs (Chairman)
  2. Secretary, Planning Commission
  3. Secretary, Department of Expenditure
  4. Secretary, Department of Legal Affairs
  5. The Secretary of the Department is sponsoring the project

Every public-private partnership requires clearance from the appraisal committee. The purpose of obtaining clearance is to make sure that the project is commercially well built. The contract of the partnership safeguards both the interests of the users and the public. Moreover, the commercial liabilities of the government are also covered by it. The Public-Private Partnership Appraisal Committee encourages structured contractual documents that adhere to the norms, such as including the allocation of risks, contingent liabilities, providing quality services, providing standard performance, etc. The government in order to enhance fairness and transparency would take measures to strengthen the processes and institutions of the government that are accountable to the stakeholders. 

Role of Public-Private Partnerships in infrastructure deficit

The physical infrastructure of any country plays a key role in determining its economic development. India, owing to its geographic and economic size, does not adhere to the standard of infrastructure required. Congested roads, airports, inadequate healthcare and education facilities etc, are a result of infrastructure deficiency in the country. The infrastructure deficiency generates a lack of productivity, constraints on growth, unemployment, etc. The issue of lack of infrastructure in India is highlighted by the World Economic Forum, according to which the global requirement for infrastructure spending over the next 20 years is at least USD 40 trillion, i.e. USD 2 trillion per annum. Before 1991, infrastructure projects were controlled and handled by the government, but after the initiation of new economic reforms and the Industrial policies of 1991, private participation was encouraged and emphasised. The meaning of the term ‘Infrastructure’ was also reformed from time to time to enable the private sector to avail of the financial inducements and concession duties during the completion of the project. Public-private partnerships are working towards filling these infrastructural gaps. The government has somewhat succeeded in attracting the private sector to fill such gaps. The Ministry of Economic Affairs has invited recommendations from the World Bank regarding the steps which it could take to procure, identify, and develop public-private partnerships. The focus of these projects is the role of the central government in promoting such partnerships in the country. The infrastructural deficiency could not be worked upon merely by the efforts of the government alone, as the government is already facing monetary restrictions and is seized by increasing liabilities. Public-private partnerships aid in the execution of the projects in a better way as they now utilise the efficiency and technology of the private sector, while allocating the risks and resources in an organised and judicious manner. Recently, India has become the third-largest public-private partnership in the country. India, now has the experience of around ten years in dealing with public-private partnerships, though the degree of success achieved in the projects varies from state to state. In some states, the projects have a sound framework whereas, in other states, the projects are poorly conceptualised and fail to provide the standard performance. Public-private partnerships have gained success in the telecommunication industry, followed by airports and roads. Road projects of public-private partnerships account for 36% and ports account for 56% of the total percentage of public-private partnerships. The states which have shown success in these projects are Madhya Pradesh, Tamil Nadu, Karnataka, Gujarat, etc. 

Need for Public-Private Partnerships

Public-private partnerships have shown diverse results in terms of the degree of success they have achieved. There have been a number of problems that arose from errors in balance sheets, issues of land acquisition, obtaining regulatory approvals etc. However, the government, from the very beginning, has encouraged and promoted public-private partnerships and is confident that they will achieve success in the future as well. The following are the concerns that still need to be addressed by the government:

Regulatory approval

Land which is required for a project is owned both by the central and the state governments. Though the land is awarded by the government or any statutory entity of the government, the state government retains jurisdiction over the same. The main concern that arises is the process of obtaining approvals, clearances, land acquisition financial closures, etc. In some cases, it takes almost 9-15 months from the date of awarding the project to the date of beginning the course of work for the concerned project. It is the responsibility of the government to hand over the land and right of way to the dealer, failing which would lead to increased costs and undue delays. Sometimes, after the handing over of land by the government, the state governments do not make efforts to resolve the land disputes, which also causes delays in the process of obtaining approvals. Projects worth Rs 1000 crores or upwards require the sanction of the Union Cabinet, which also causes hurdles in the course of work.

Changes that may occur during the course of the project

When a contractual agreement is entered into for a public-private partnership, the terms and conditions are laid down in different clauses as per the needs and requirements of the parties. In some cases, there may be unpredictable happenings that might not have been expected by the parties owing to their uncertainty. But there is always a possibility of such things, as in some cases, the contract might be terminated before the agreed period, changes in government policies, or failure to perform the obligations by any of the parties that are either the private entity or the government. For example, in road projects, the actual traffic is usually less than the predicted traffic by the government.

Authority on pricing

The government is responsible for the utility of the services provided, and the private sector does as much as it is paid for and nothing more, as per the World Bank. As the private sector desires, it should also retain a certain amount of control over the service as it incurs certain risks as well. Private entities are also subject to certain tariffs as levied by different state governments.

Advantages of Public-Private Partnerships

  1. Public-private partnerships prove to be the best alternative as both the parties, that is, the government and the private entity, do what they are best at doing.
  2. Public-private partnerships provide efficiency and transparency as the skills and expertise of the private sector are involved.
  3. Public-private partnerships reduce the overall cost of the government as it is only to implement the service after it has been delivered to it by the private sector.
  4. Public-private partnerships provide timely completion of projects and standard performance, as well as within the budget expected by the other party.
  5. The Public-Private Partnership’s return on investment is greater than the traditional way of procuring a project by the government.
  6. Public-private partnerships allow the government to access the private sector’s finance.
  7. Public-private partnerships enable the government to transfer the allocation of risks to a private sector entity.
  8. Public-private partnerships aid the government not just by increasing the efficiency of the project by the timely completion of the project in which the private sector has invested, but the government can also redirect those residue funds for other socio-economic causes.
  9. Public-private partnerships furnish efficiency in the projects through which the government can reduce government budgets and budget deficits.
  10. Public-private partnerships enable the private sector to keep a check so that the government does not make any unrealistic promises or expectations.

Disadvantages of Public-Private Partnerships

  1. The private sector invests a huge sum of money in public-private partnerships and, as the private sector bears the risks and is expected to be compensated by the government in such a situation, the costs of the government increase.
  2. When competition among private entities is limited, that is, only certain entities are capable enough to procure a particular project, it restricts the competitiveness of a cost-effective partnership.
  3. Profits that are expected to come from projects vary in terms of risks, competitiveness, complexity, scope, etc.
  4. If the expertise required comes under the ambit of private sector duties, then the government may be at a disadvantage, as it may not be able to evaluate it.
  5. Public-private partnerships are most of the time facing issues such as not obtaining regulatory approvals, issues of land acquisitions, undue delays etc.
  6. The outcome of the degree of success of public-private partnerships is somewhat mixed and does not always succeed as predicted.
  7. In some sectors of public-private partnerships, many projects act as channels of capitalism.
  8. Some public-private partnerships are well connected with certain private firms, which easily renders an opportunity for such private entities to win contracts and procure particular projects.
  9. Public-private partnerships furnish all the work to the private sector, which reduces the employment opportunities that were earlier available in the public sector.
  10. The government of India does not have a good track record of performance in all the sectors of public-private partnerships.

Conclusion

Public-private partnerships are collaborations between the public and private sectors for the designing, financing, and procuring of projects that were earlier handled by the government. These partnerships are effective as they are more efficient, transparent, timely, etc. Public-private partnerships are not exactly privatisation but are somewhere between nationalised or centralised and privatised. The private sector and the government are bound by a contractual agreement to comply with their obligations, which are agreed upon by them. All the necessary clauses such as obligations of the parties, termination, allocation of risks, penalty etc are laid down in it. There are various models of public-private partnerships such as Build Own OperateTransfer, Build Own Transfer etc. Public-private partnerships have shown success in recent times, and the government has taken measures to promote and encourage these partnerships and to strengthen the institutional and governing mechanisms that control and monitors them. It has also encouraged the private sector to increase its participation in public-private partnerships. Public-private partnerships have their merits as well as demerits.

References

  1. https://ppp.worldbank.org/public-private-partnership/sites/ppp.worldbank.org/files/documents/India_draftnationalppppolicy_EN.pdf
  2. https://rbidocs.rbi.org.in/rdocs/Publications/Pdfs/Public-Private.pdf
  3. https://ppp.worldbank.org/public-private-partnership/library/india-national-public-private-partnership-policy 

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